Red Rag

From what I hear, industrial relations law in Australia has just taken a shaky step down a very dangerous path. A union leader has apparently been charged under the Criminal Code with extortion for a threat of industrial action.

The background, as I understand, is that a construction company is on the verge of insolvency and is going into administration. A union leader, Joe McDonald of the CFMEU, exercised his legal right of entry to a site, threatened industrial action and was subsequently arrested and charged. I think it is most likely that he was demanding that workers entitlements be protected in the event that the company went under. He probably threatened to strike if workers lost out. (I must stress that this only happened this afternoon, and allegedly. I haven’t heard any media coverage, just a relayed account of a phone conversation.)

The (presumably) relevant part of Section 397 of the WA Criminal Code is the following:

Any person who, with intent to extort or gain anything from any person, –

(2) Orally demands … that anything be procured to be done or omitted to be done by, any person, without reasonable cause, with threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with,

is guilty of a crime, and is liable to imprisonment for 14 years.

I have highlighted two phrases there, which are likely to be central to the success of any case brought. The second is presumably the justification that employers will use for bringing the charges. Industrial action is “detriment of any kind” to the employer, therefore it potentially falls under this section. A court might find that industrial action is not considered “detriment of any kind” according to the intention of the statute. However, there is a strong chance that this will not be the case.

More important, though, is the first phrase: “without reasonable cause”. It is entirely open to a court to suggest that an employer’s refusal to meet an industrial demand is reasonable cause for the threat of industrial action. I would suggest that that is the most appropriate decision to be made. Nonetheless, there is a risk that a court will find against the unionist (and common sense). From that point on, to threaten industrial action would be a criminal offence.

That would be an outrage. The fact that the charge has been laid at all is an outrage. It is perhaps the single most serious attack on labour’s fundamental human right to organise in recent history. You can bet that if an employer threatened to sack a worker over an industrial claim, they would not be charged with a criminal offence, and the reason is clear: we have a well developed industrial relations framework within which such disputes should be resolved. It might involve arbitration or charges under IR legislation, but the Criminal Code should certainly be left out of things.

Employers have been fighting a consistent battle to destroy workers rights in WA by going around IR laws. The most recent case was the attempt to issue a restraining order against the same union official. He had entered a site legally (according to right of entry provisions) and was subsequently restrained under civil law from being there.

Urgent action must be taken by both workers and the Government to prevent this going any further.