Barely a day passes without Hadgkiss issuing a media release announcing the latest prosecution of the CFMEU and its various officials.

But there are important differences between the Fair Work Building and Construction inspectorate, led by Hadgkiss, and the ABCC, which was abolished by the former Gillard government in 2012.

First, under the FWBC legislation, Labor slashed the maximum penalties imposed for unlawful conduct by two-thirds. If the ABCC returns, maximum penalties will jump back up by 66 per cent.

Fines 'cost of doing business'

Cash argues that the existing regime has failed to deter the CFMEU and its officials from repeatedly breaking the law; that any fines are seen by the union as the "cost of doing business".

Second, while the FWBC, like the ABCC, has compulsory powers to obtain information, it risks losing these powers when they expire on June 1, 2017. The government insists the powers are critical to combat the "culture of silence" in the construction industry and says whistleblowers won't speak out for fear of reprisal.

Significantly, the FWBC, unlike an ABCC, must meet a range of procedural requirements – so-called 'checks and balances" – before a notice to conduct a compulsory interrogation can be approved.

But Labor says the ABCC bill gives the regulator the ability to use coercive powers that are stronger than those provided to state or federal police.


In their recent dissenting report, Labor senators said the bill would give the ABCC commissioner the power to require any person to produce information or documents, and answer questions under oath, where the commissioner "reasonably believes" the person has information relevant to an investigation.

They argued that even in the interrogation of "suspected terrorists", a warrant must be issued by a federal judge or magistrate. "The ABCC under these bills would operate with more coercive powers than the Australian Security Intelligence Organisation," they said.

​In advocating the compulsory powers, the government points to the findings of former judge Murray Wilcox, who headed the former Labor government's review of the ABCC.

​Wilcox said he understood why building industry workers resented being subject to an interrogation process that did not apply to other workers. He even expressed sympathy for them.

Removing interrogation power 'not advisable'

But he found that given the level of "industrial lawfulness" in the building industry, especially In Western Australia and Victoria, removing the power of the inspectorate to conduct compulsory interrogation would not be advisable. "The reality is that, without such a power, some types of contravention would be almost impossible to prove," he said.

Unlike the ABCC, the FWBC is also prevented from starting or continuing legal proceedings if private parties – read the CFMEU and a company – reach a settlement.

The government says this is an unreasonable and unique restriction that does not apply to other Commonwealth regulators. It says the clause encourages the union to further coerce an employer into a confidential deal so the regulator cannot prosecute.


But Australian Council of Trade Unions secretary Dave Oliver accuses the Coalition and business groups of perpetrating myths about the benefits that would flow from passage of the ABCC bill and the Registered Organisations bill.

Rather than an increase in workplace disputes since the ABCC was scrapped in 2012, Oliver says Australian Bureau of Statistics data shows industrial disputes in the construction sector have fallen significantly.

He says the economic benefits attributed to the ABCC have been exaggerated while. according to Australian Workers Compensation Statistics, the number of serious injuries in the construction industry has declined since the ABCC was abolished.

The CFMEU further argues that while workplace deaths in the construction industry rose significantly under the ABCC, they fell after it was abolished. In 2013, Safe Work Australia recorded the lowest number of deaths in a decade.

Unions also dispute employers claims that the return of the ABCC would address corrupt activity within the building industry.

ABCC for civil matters, not criminal

"As a civil body, the ABCC does not investigate breaches under criminal law, it only deals with possible contraventions in industrial law, which are civil matters," Oliver says.

"If the government is really serious about investigating corruption, a national ICAC is the right policy tool for corruption, not the ABCC. Additionally, the ABCC got to exercise their security agency powers against people with no role or interest in the construction industry – even bystanders – so anyone is at risk.


Dave Noonan, the national secretary of the CFMEU's construction division, said Hadgkiss has also refused to pursue employers over unpaid employee entitlements.

But business groups respond that it is unreasonable that the building industry – the nation's third-largest industry, providing jobs to more than a million Australians – "suffers from a culture of unlawfulness" due to the absence of the ABCC.

"The culture is ingrained and institutionalised and it cheats the community by driving up the cost of building schools, hospitals and childcare centres by as much as 30 per cent," Master Builders Australia chief executive Wilhelm Harnisch says.

"In no other industry are ordinary people, when going about their daily work, confronted by overt aggression, denigration and bullying," he says. "In no other industry are small business people routinely intimidated and coerced by the threatening behaviour. In no other industry are women subjected to aggression and abuse. Most of these behaviours would not be tolerated at home, let alone in a workplace. But it happens and it is getting worse."

Willox wants passage without delay

Australian Industry Group chief executive Innes Willox says the ABCC and Registered Organisations bills need to be passed without delay.

In August 2015, the Senate voted 34 to 33 against changes to the Fair Work Registered Organisations Act that would impose the same transparency and disclosure obligations on union officials as company directors. It was the second time the Senate voted down the bill.

"The community has an obvious, direct interest in ensuring that the rule of law is upheld in the construction industry, and the ABCC bill will create a more effective deterrent against law-breaking in the industry," Willox said.


"The Registered Organisations Bill will ensure higher standards of governance and accountability for unions and other registered organisations, given the major deficiencies in the governance standards of some unions that were uncovered by the Heydon Royal Commission.

"The unacceptable actions of the CFMEU and other construction unions add extra costs on to every taxpayer funded road, building, school and hospital across the country. These extra costs are inevitably passed on to consumers."

It is worth noting that even if the Coalition gets the ABCC and Registered Organisations bill passed, it plans to announce further industrial relations changes in the lead-up to the federal election.

Cash will propose further changes to the laws governing registered organisations, to incorporate proposals recommended by the Royal Commission into Trade Union Governance and Corruption. It will also propose industrial law changes selected from the findings of the Productivity Commission report into the workplace relations framework.

If the election is held on July 2, there is a prospect the Fair Work Commission will hand down its ruling on penalty rates to apply in certain industries during the federal election campaign.

If there was any doubt, it now seems certain that the focus on workplace relations in the build-up to the 2016 poll will be the most prominent since the Your Rights At Work election of 2007.