What does the Ark Tribe case have to do with workplace safety?

Australian trade unions, particularly those in the construction sector, have strongly supported Ark Tribe in his battle with the Australian Building & Construction Commission (ABCC).  Outside of the world of Australian construction trade union politics, the Ark Tribe issue has been difficult to understand without over-simplifying the issue.

In 2008, Ark Tribe attended a union safety meeting conducted by union organiser Justin Feehan.  The meeting was unauthorised and led to Tribe being called on for an interview with the ABCC.  He refused to attend and legal action has been taken which is likely to be resolved in the Australian courts today.  Tribe faces six month’s jail.

Regularly the saga has been described as one concerning workplace safety.  An unauthorised safety meeting may have been the initial event but the issue passed being an OHS matter very quickly to become one of industrial relations and a cause celebre against the ABCC.

Briefly the ABCC was established under John Howard’s conservative government to reduce industrial disputation in the building and construction industries.  Most action taken by the ABCC has been against the trade unions.  The Labor Party pledged to abolish the ABCC but once in power retained the Commission, albeit with a slightly changed function, much to the disgust of the trade unions. Further background is available HERE

According to a report in The Australian newspaper on 16 June 2010, the safety issues are being given renewed prominence by the Construction Forestry Mining & Energy Union.  National Secretary, Dave Noonan, released copies of prohibition notices issued by SafeWorkSA inspector, Graham Gibbs, which reportedly state that Gibbs  was “of the opinion that there is an immediate risk to the health and safety” of the workers on the site.

The Australian notes that this differs from the information provided by the union to the Federal Court on 13 April 2010 but the newspaper is not a “friend” to the union movement.  The article itself is a bit of a mess and it is unclear from this source if the site had legitimate hazards or not.

SafetyAtWorkBlog has viewed copies of the SafeWorkSA prohibition notices distributed by the union on 15 June.  The statement of “immediate risk” is a printed element of all prohibition notice proformas.  The notices concerned the use of mobile scaffolding.

The ABCC was always a political tool to reduce union action on construction sites and the Labor Party should have honoured its election pledge but the dispute is no longer about workplace safety but about industrial relations.


There is an important lesson in the Ark Tribe case and the role of the ABCC for the forthcoming harmonisation of Work Health & Safety Act.  The new act promotes consultation as an important element of achieving safe work environments (Part 5, Division 2, Sections 47-49).  It is clear that Justin Feehan called a union meeting over safety issues and, media reports say, those matters were resolved on the same day as the SafeWorkSA notices were issued.  An OHS inspector was asked to attend the site, a legitimate action under OHS legislation, and apparently, verified some of the workers’ OHS concerns.  Normal day in the life of a work site and an OHS inspector, however, the ABCC stepped in as the safety meeting occurred on a construction site and the Ark Tribe sage began.

OHS law must be applied equally across all types of worksites if there is to be fairness in achieving safe and healthy outcomes for employees and employers.  The influence of the ABCC is an unjustified intrusion into one industry that would never be tolerated in other industry sectors and impedes the satisfactory implementation of safety measures.

In a couple of months, SafeWork Australia will be releasing draft codes of practice and regulations for public comment.  Two of the codes relate to consultation and the construction industry.  It is hard to see any public comment on consultation, in particular, being any more than academic whilst there is the risk of jail from discussing workplace hazards with one’s work mates.

Safety professionals and regulators all agree that OHS is best achieved through consultation.  In Australia and in the construction industry consultation must be able to occur without third-party pressure.

Kevin Jones

reservoir, victoria, australia

4 thoughts on “What does the Ark Tribe case have to do with workplace safety?”

  1. Darren I personally have been on many sites where at times there was no drinking water or toilets available. In the past we would stop work until these issues were rectified but now with the ABCC around we just keep working.

    The reason for Ark not going to the meeting is missed by the article. He refused to go because he was not allowed legal representation at the meeting. The right of representation is availiable to any person who commits the most serious of crimes, but not available to a construction worker concerned for their safety.

    This is Australia and we are in the 21st century. Why can\’t construction workers be allowed to go home in the same condition they left it?

  2. Kevin,

    Regarding consultation, you\’re absolutely right. That it has become a political issue is both distracting and unneccessary, and of little relevance to ensuring the health and safety of all personnel onsite.

    I would sincerely hope that the safety concerns were raised by the appropriate channels internally prior to involving the union, but this assumes that appropriate channels existed within Hindmarsh Constructions safety policy (toolbox meetings, weekly safety checklists etc.) and the site management team was competent in meeting company OHS obligations.

    Some of the alleged safety breaches according the article \”Where are Ark Tribe\’s rights at work?\” by Margarita Windisch & Ruth Ratcliffe for \”Green Left\” (30.05.10) are:
    – equipment being operated by unlicensed workers
    – scaffolds with improper access
    – no evacuation plan
    – a lack of overhead protection
    – a lack of change rooms, decent amenities and clean drinking water

    No OHS manager in their right mind could allow the above to transpire over a sustained period of time (i.e. beyond early establishment). I have to question just how well these issues were raised and addressed, or even if some of them existed at all.

    It has become apparent though, that the proper documentation and remediation of OHS issues is as much about protecting workers from workplace hazards as it is protecting the company from industrial hazards.

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