In 2010 Ark Tribe, a South Australian rank and file construction worker is on trial and could face imprisonment as a result of charges laid by the Australian Building Construction Commission for his alleged failure to reveal who said what at a meeting of his workmates, which was called to discuss their concerns about workplace health and safety.

These charges have been laid under laws made by the former Howard Liberal Government, which the Rudd Labour Government has failed to repeal.

In 1974 the Warringah Mall Shopping Centre, in Brookvale, Sydney was being built by a French Construction Company by the name of Citra. There were over 300 construction workers on the project.

The organiser of the Building Workers Industrial Union, Don McDonald and the organiser of the Builder’s Labourers Union, John McNaughton were both being regularly called to the project as a result of workers being injured.

In one year there were over 180 workers injured.

Workers voice their concerns

The workers had been continuously complaining to site management about unsafe working conditions, which were being ignored. The workers had also rung the Workcover Inspectorate on many occasions, which brought no improvement.

The union organisers had also complained to the Workcover Inspectorate as well as to the site management, which brought no change.

Finally a worker was killed as a result of a nail gun accident, which caused the project to explode with the workers going on strike.

Citra immediately tried to cover up the unsafe working conditions with management staff, however, the unions organised a picket to stop this from happening. Following the commencement of the strike the dispute came before the Conciliation and Arbitration Commissioner Brack for a hearing.

Commissioner Brack immediately adjourned the hearing so that he could visit the project together with Senior Inspectors from the Workcover Inspectorate together with the union officials and Citra management.

Union picket successful

As the union picket had successfully prevented site management doing any rectification work so as to cover up the hazardous nature of the project, there were over six pages of safety breaches compiled by the Senior Workcover Inspectors as a result of the inspection.

Upon resumption of the hearing before Commissioner Brack, the Commissioner immediately ordered the following:

• That the strike cease with all workers returning to the project so as to form rectification teams to rectify all safety breaches
• That construction work resume section by section after all rectification work is completed
• That all workers be paid for the 3 days on strike
• That the Citra Industrial Relations Manager, Mr Alex Hubert, the BWIU organiser Mr Don McDonald and the BLF organiser, Mr John McNaughton draw up an Occupational Health and Safety Code for the project

Occupational Health & Safety code

This OH&S Code not only applied to this project, it was soon adopted industry wide to become known as the Building Industry Safety Code.

Some of the principles adopted in the Code included the following:

• The right of workers to have an OH&S Committee in the workplace with half of the committee members being from management and half of the committee members being from the construction workers plus a chairperson to be elected from among the ranks of the construction workers
• That there is an OH&S Officer appointed who shall conduct regular OH&S inspections of the workplace as well as to attend to any OH&S complaints
• That any worker who felt that his workplace was unsafe be put on other work pending rectification
• That should there be a dispute between management and workers in regard to OH&S, that the Workcover Inspectorate be called to the project, pending which the worker or workers be transferred to other work
• That OH&S training is provided to all employees on the project

In 1984 the NSW Wran Government passed the NSW Occupational Health and Safety Act embracing many of the principles that were included in the Building Industry Safely Code.

The industrial action taken by construction workers on the Warringah Mall Shopping Centre Project in 1974, following the death of a workmate led to major improvement in occupational health and safety throughout NSW, which has probably saved many lives and prevented many, many injuries.  

If those 300 construction workers who took that action in 1974took that same action today, in 2010, under the law which the Australian Building Construction Commission authority operates, then they could be subject to heavy fines. While failing to attend and answer questions about so-called 'Unlawful Industrial Action' can lead to imprisonment.

Do we still have democracy in Australia?

If so, how can any worker be subject to imprisonment for refusing to be interrogated about a safety meeting?

What more democratic right is there that the right to protect life and limb in the workplace?

Don McDonald AM

Former Secretary NSW Branch BWIU (CFMEU)

Former Construction Industry Senior Adviser to Worksafe Australia.

Former NSW Government Workers Compensation Conciliator.