First published to AFR.com on 29 January 2014.

By Scott Barklamb.

ALLEGATIONS of corruption within Australia’s largest construction union reflect the lawless and intimidatory culture from which the more militant elements of the trade union movement approach their role in our workplace relations system.

While a restored Australian Building and Construction Commission will properly enforce the law, we also need to deal with day to day union bullying on individuals.

Less than a month after the start of the new national anti-bullying jurisdiction, the CFMEU is standing up for the “rights” of its members to bully, abuse and belittle fellow employees.

The CFMEU is set to appeal to the High Court a decision that a coalmining company legitimately dismissed an employee who held up a sign abusing ¬n¬on-striking workers as “scabs” with “no principles” and “no guts”.

“Scab”, “dog” and “mongrel” are hate words, deliberately used to bully people. Such abuse should not be considered acceptable, simply because it is seeking to intimidate workers to toe the union line.

This type of abuse is no more acceptable, and potentially no less harmful, than some of the abuse that gave rise to our anti-bullying laws.

It should have no more a place in modern Australia than racial, sexual or religious slurs.

AREEA has consistently maintained that if the new federal anti-bullying system is to stamp out bullying, it must extend to the conduct of union officials, members and supporters.

Ambiguity arises from statutory protections against dismissal and discipline on the basis of union activities. These “adverse action” protections were considerably extended in recent years by the previous government.

These highly contentious powers have served to complicate the system and encourage litigation. Adverse action is increasingly being exploited by unions to render actions relating to strikes, pickets and industrial action entirely immune from employer discipline and control – even where these actions threaten to harm other employees.

In this case, the CFMEU consistently claimed the employer had taken “adverse action” against the dismissed employee, discriminating against him on the basis of his industrial orientation and decision to involve himself in union activities.

The Federal Court’s ruling that this was not the case was a rare win for employers.

For some time we have seen the Fair Work Act’s adverse action provisions being used to dress up unfair dismissal claims as matters of unlawful industrial discrimination. In fact many union members dismissed for inappropriate conduct have been encouraged to try their hand at an adverse action claim due to the uncapped compensation and reverse onus of proof imposed on the employer.

When it comes to discipline and dismissal for bullying, this is particularly beyond the pale.

What’s sauce for the goose (employers) on bullying has to also be sauce for the gander (unions and union members). If workplace bullying is unacceptable and must be stamped out, it shouldn’t matter who does it. Unions should not be a protected species.

The Fair Work Commission website tells us that workplace bullying occurs when “a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers and that behaviour creates a risk to health and safety”.

There is nothing special or privileged about personal abuse and victimisation simply because it relates to an industrial dispute. One of the judges in the recent decision described “scab” as no more than “common abuse”. The community would not view such abuse as reasonable behaviour, and anyone with even a passing familiarity with workplace bullying would instantly see the risks to health and safety.

The Fair Work Act should be amended to ensure participation in union activities in no way removes exposure to the new anti-bullying jurisdiction, should explicitly identify union officials and their supporters as subject to the new bullying jurisdiction, and should empower employers to take action and protect employees from abuse.

Another extraordinary practice revealed in the recent coal decision was the CFMEU’s cottage industry producing posters, stickers, clothing and signs that abuse, belittle and bully people making legitimate decisions not to associate with unions. Whatever the union’s intention, it is effectively providing the means to facilitate bullying and abuse.

Then minister for workplace relations, Bill Shorten, introduced the new anti-bullying jurisdiction arguing: “Bullying is a real menace in our workplaces that costs the economy as it damages productivity. Most tragically, it hurts people.”

We hope that in coming months the opposition will have an opportunity to show they do not believe bullying by unions and their supporters is justified and to recognise that this sort of abuse and threats hurts people.

Surely it shouldn’t take the type of tragic circumstances that gave rise to the new anti-bullying laws for our legislators to expose union abuse to the full force of the law.

Scott Barklamb is executive director of policy and public affairs with the Australian Mines and Metals Association.

Click here to read the published article, printed in the Australian Financial Review on 29 January 2014.