CFMEU ‘strategy’ ends the level playing field

CFMEU ‘strategy’ ends the level playing field

Members may be aware that the CFMEU continues to try to reinvent history in the wake of the successful passage of the ABCC legislation, which saw the re-establishment of the ABCC and the commencement of a strengthened Building Code from 2 December 2016 – now known as the Code for the Tendering and Performance of Building Work 2016 (Building Code 2016).

The CFMEU’s principal claim is that Master Builders has ended the ‘level playing field’ and have created a ‘2-tiered system in the Victorian construction industry’. Whilst flattering to be held in such high regard, the reality of course is that it was the current leadership of the CFMEU, who dissatisfied with the ‘less ideological, more pragmatic’ approach of the previous CFMEU leadership, decided to embark on a new ‘strategy’ whereby they would refuse to engage with Master Builders at the industry level in the negotiation of a successor to Industry EBA 2011-2015.

Presumably, the thinking behind this new ‘strategy’ was that engagement with Master Builders would ultimately result in an ‘unacceptable’ outcome – i.e. one that delivered sustainable wages and provided certainty to contractors wishing to be eligible for federally funded work (through compliance with the (then) proposed Building Code 2014).

The CFMEU leadership therefore elected to pursue its ‘more ideological, less pragmatic’ approach of threatening protected industrial action and sitting down with those the CFMEU considered ‘friendlies’. It is important to note that a number of that group do not do federally funded work and employ a minimal number of direct employees covered by the EBA.

Such appears to have been the naïve arrogance of the CFMEU leadership, that the presumption appears to have been that once the group signed off on the CFMEU’s ‘breakaway’ EBA – the rest of the industry would simply form an orderly queue at the CFMEU’s Carlton offices to sign up. Those that didn’t would quickly capitulate under the threat of protected industrial action.

The result? Roughly 25 per cent of those that held Industry EBA 2011-2015 have signed onto the CFMEU’s new Pattern EBA. The remaining 75 per cent are making their own arrangements – either through negotiating their own non-pattern EBA directly with their employees, or for the time being, simply remaining on their extant Industry EBA 2011-2015. With the commencement of the Building and Construction Industry (Improving Productivity) Act 2016 and Building Code 2016 from 2 December 2016, the CFMEU’s attempts to convince more contractors to sign their new Pattern EBA through a strategy of coercion, discrimination and misinformation (i.e. a new Code ‘will never get up’) has been significantly impacted.

Whilst many of those who signed the CFMEU’s Pattern EBA were understandably relieved when Senator Derryn Hinch was successfully lobbied to move his eleventh-hour amendment allowing contractors with EBAs that are not compliant with Building Code 2016 to continue to be eligible to tender provided their EBAs are fully compliant prior to 29 November 2018. However, there remains the real risk that this sense of relief, for those who do federally funded work, may ultimately prove short lived in practice.

However, out of the uncertainty of the Hinch amendment, also comes opportunity for those who have yet to sign a successor to Industry EBA 2011-2015. Ironically, this opportunity is likely to be forced upon many by the ideology of the CFMEU. Rather than taking the opportunity to negotiate a Building Code 2016 compliant version of their Pattern EBA as soon as practicable – the CFMEU are likely to try to delay for as long as possible, initially by awaiting a parliamentary motion to disallow Building Code 2016 (that appears doomed to failure) and subsequently through Court challenges. In the interim, as CFMEU members increasingly come to the realisation that the newly re-elected CFMEU Executive continues to put their ideology and ego first and their members last, employers and employees will increasingly come to their own arrangements without the ‘assistance’ of the CFMEU.

The reality therefore is that unless it reverts to the previous ‘less ideological, more pragmatic approach’ approach of its predecessors, the current leadership of the CFMEU will have accomplished a feat that most have long thought impossible in the Victorian commercial construction industry – the death of the ‘Industry Pattern’ and the end of the so-called ‘level playing field’.

Whilst Master Builders continues to make itself available to engage with the CFMEU to expedite a Building Code 2016 compliant solution for the industry – in the interim, it will continue to advise members on the range of alternatives available to employers and employees.

Members seeking further information are encouraged to contact the IR Department on (03) 9411 4560.

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