Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

Labor opposes the Building and Construction Industry (Improving Productivity Bill) 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013. This legislation is intended to bring back the draconian Australian Building and Construction Commission. The ABCC is based on flawed—and often ridiculed—modelling. Its proposed powers are extreme, unnecessary and undemocratic and they compromise civil liberties. The legislation ignores what is already in place, the Fair Work Building and Construction agency, which is working much more efficiently than the ABCC ever did. In addition, Labor's Fair Work Building and Construction agency already has sufficient powers to deal with any unlawful behaviour in the industry. Let us call this what it is—the determination to take Australia back to the ABCC shows a return to elements of Work Choices, which is lurking just below the surface.

Labor opposes bringing back the Australian Building and Construction Commission for a number of reasons. The Prime Minister has made a habit of referring to his workplace policies as:

… returning the industrial relations pendulum back to the sensible centre.

Demonising construction industry employees and their representative bodies by bringing back the Australian Building and Construction Commission could not be further from that so-called sensible centre. For the Prime Minister, going back to the future with the ABCC is strictly personal. It was the Prime Minister, then the minister for workplace relations, who in 2001 called for the Cole royal commission into supposed criminality, fraud and corruption within the building and construction industry. But the investigation of crime, let alone organised crime, is obviously a matter for the police, not for the ABCC. After 18 months and $66 million of taxpayers' money, the Prime Minister's expensive political stunt failed to produce one single criminal conviction.

In this 44th Parliament, the Prime Minister seeks to continue his attack on workers' rights and entitlements. The Australian Building and Construction Commission's proposed powers, as I said, are extreme, unnecessary and undemocratic and they compromise civil liberties. Those proposed powers include unfettered coercive powers, the power to conduct secretive interviews and the power to impose imprisonment on those who do not cooperate. In his second reading speech on these bills, the member for Sturt said that he believed workers deserved to go to work each day without the fear of being harassed or intimidated. I agree with that contention. Yet these bills seek to arm the ABCC with powers to deny people the right to be represented by a lawyer of their choice. The primary bill seeks to arm the ABCC with powers to interview people in secret and to deny them the right to silence. Indeed, the previous iteration of the ABCC prohibited people from disclosing that they had been interviewed by the commission—even when they had done nothing wrong. As Nicola McGarrity and Professor George Williams from the Faculty of Law at the University of New South Wales say:

… the ABC Commissioner's investigatory powers have the potential to severely restrict basic democratic rights such as freedom of speech, freedom of association, the privilege against self-incrimination and the right to silence.

Some might say, and I understand this assertion, that some of the provisions of these bills are more akin to legislation you would see in a police state—undemocratic powers hard enough to justify in a time of war or a state of emergency let alone in civil laws governing workplaces. That is exactly what this commission will do, if constructed—impose unfettered, excessive, undemocratic and unnecessary powers upon ordinary workers in governing civil laws in workplaces in this country. Is this the workplace free of harassment and intimidation that the member for Sturt wants for employees? Is this really the sensible centre that the Prime Minister has long referred to?

The attack on workers, however, does not stop there. After pledging to revive the Australian Building and Construction Commission, Mr Abbott has broken his promise—he has broken his promise because this legislation extends the reach of the ABCC into picketing, offshore construction and the transport and supply of goods to building sites. This is more than a revival of a former body—it is a greater encroachment upon workers than was originally the case. Australians are not getting the government they voted for. A re-established Australian Building and Construction Commission will have significantly broader powers than its 2005 incarnation. The then Prime Minister, Prime Minister Howard, came into this place and stood opposite where I stand now and made a ministerial statement introducing all of the elements of Work Choices without any mandate whatsoever from the Australian people. Part of that process included this commission. This is incidental to those provisions, so let us not pretend that we are not returning to elements of Work Choices legislation that will deny workers in this country basic rights.

The Prime Minister's Australian Building and Construction Commission is not, to use his own words, the tough cop on the beat—it is an unnecessary workplace bully. Surely before the government enacts such a body it must establish the merits of the reform. The Leader of the House in his second reading speech tried in vain to justify the need to return to the Australian Building and Construction Commission. By anyone's measure it was a soft and unconvincing performance. The Leader of the House quoted a recent report completed by consulting firm Independent Economics, or Econtech as it was formerly known. This firm has a long history of being paid to churn out report after report attacking workers and their unions while supposedly demonstrating a path to improved productivity. Having behaved in such a mercenary and partisan manner, it is utterly laughable that they can rebrand themselves as independent. Hypnotised, the Leader of the House, the member for Sturt, parroted the report. He regurgitated its findings, which were supposedly that under the ABCC consumers were better off by $7.5 billion annually, that productivity grew and that fewer working days were lost through industrial action. What the Leader of the House failed to disclose was that this consulting firm once had the rare distinction of producing modelling so inaccurate that it was described as deeply flawed and 'ought to be totally disregarded.' Who said that about the Econtech report? None other than former Federal Court judge Justice Murray Wilcox. I am sure the Leader of the House thinks he knows better than Justice Wilcox, but it is not only former Federal Court judges who find the government's foundation for the ABCC rather shaky. Journalist Bernard Keane analysed the recent report of Independent Economics. The conclusion was that construction productivity had outperformed productivity in the rest of the economy since 2002, and Bernard Keane said:

Okay, so rubbish reports like this are common as muck, true. But this is more significant because it's on the basis of stuff like this that the Coalition has committed to reinstitute a major attack on basic rights. And that attack will not be just on the rights of construction industry unionists, but all of us.

There is more to say about the critiques of this firm's reporting prowess. Econtech's 2007 report, which purported to demonstrate that the ABCC had been effective in bringing about significant reform and improvement in the building and construction industry, was picked apart in a report appropriately entitled '"Anomalies", dammed "anomalies" and statistics: Construction industry productivity in Australia.' Authored by David Peetz, Cameron Allan and Andrew Dungan, the report concluded:

The great gains for construction industry arising, it was said, from the near equalisation of costs in the commercial and domestic residential sectors that was attributed to the ABCC have disappeared, like a mirage on the horizon.

Their analysis went on to say:

This close analysis of the Econtech data raises serious questions about the nature of regulation in the building and construction industry. Alleged economic benefits, used to justify denial of basic rights to employees in the industry—rights which everybody else is, at least at present, entitled to enjoy—are based on discredited cost data. In short, there do not appear to be any significant economic benefits that warrant the loss of rights involved in recent arrangements.

This is the sad reality of the government's revival of the ABCC. It is based entirely on discredited reports that have been described as not worth the paper they are written on. But the lack of evidence to warrant the ABCC does not end there. The government clearly has the blinkers on when it comes to ignoring evidence that the current building industry regulation arrangements are working well.

Let us now consider what the ABS data indicates. While the Leader of the House may be willing to dismiss the analysis of a former Federal Court judge, I would be staggered—I should not be at all surprised, perhaps—if he disputed the data of the ABS. Does he dispute that ABS data shows industrial disputation in the building and construction industry during our period in government was on average less than one-fifth the rate seen under the previous, coalition government? Does the Leader of the House dispute that labour productivity has increased over the last 10 quarters and, on average, is almost three times higher under Fair Work than it was under Work Choices? Does he dispute that, under Fair Work more generally, the rates of industrial disputes are on average around one-third the rate we saw under the previous, coalition government? Is the Leader of the House and, indeed, the Prime Minister and this government so desperate to argue the shallow case for the Australian Building and Construction Commission that they not only dismiss the analysis of a former federal court judge but also deny the analysis of our national statistical service?

I say to the government that the data is in, and the data is crystal clear. Fair Work Building and Construction, established by Labor, has continued and will continue to outperform its predecessor, the ABCC. Furthermore, Fair Work Building and Construction already has sufficient powers to deal with unlawful behaviour in the industry. Fair Work Building and Construction has a full suite of appropriate investigative and prosecutorial powers to deal with any unlawful behaviour in the building and construction industry, whether by employers, employees, unions, contractors or others. Fair Work Building and Construction is undertaking more investigations, concluding investigations, getting matters to court faster and recovering more money for underpaid workers in the industry. Fair Work Building and Construction has secured over $2 million in unpaid wages and entitlements for more than 1,500 workers. Of course, these were the sorts of breaches that the former body, the ABCC, never focused upon.

The Abbott government is seeking to rewrite history by contradicting empirical evidence with respect to industrial disputation in the building sector. This is at a time when more Australians than ever before are covered by enterprise agreements, which shows that the vast majority of agreements are made without any industrial action at all. And on the most important measure of all—safety—we have been seeing fewer deaths on construction sites. While all members of this House would, I hope, agree that one death is one death too many and that we should strive to be better, the evidence at hand does not justify this government's response. I know it is a complex area and there are a combination of reasons we may see fatalities in workplaces, but it is important to note that in 2007, during the life of the ABCC, worker deaths on construction sites hit a 10-year high of 51. There were 51 deaths in 2007. More than a year after its abolition in 2012, that number had reduced by 60 per cent to 30. Once again, on these measures, Fair Work Building and Construction is doing a better job than the ABCC. So, again, why is there a need for the Australian Building and Construction Commission?

The Abbott government's determination to take Australia back to the ABCC shows, as I said earlier, a return to Work Choices. That is what this is about. We know this because it is entrenched in the DNA of those on the government benches. It is an insatiable appetite to pursue a politically motivated witch hunt to attack unions and diminish their capacity to represent their members, thereby slashing workers' rights and entitlements. This is something the government has to consider. When we are dealing with matters as significant as this, when we are dealing with proposed laws as excessive as the laws that are contained within the bills that are before the House, then there must be an extraordinary or an exceptional reason for the government to go down this path. This case has not been made by the government. In fact, the evidence shows, to the contrary, that, during the life of the previous body that was somewhat similar to the one proposed, productivity did not go up. In fact, during the life of the ABCC industrial disputation did not go down. If you compare the time under Work Choices with the time under Fair Work legislation, you find Fair Work is favourable in this regard.

For these and other reasons Labor therefore strongly opposes these bills, and we call on the government to rethink its position. We oppose the return to the draconian and extreme Australian Building and Construction Commission, and we will fight this government's ideological war on working Australians every step of the way.

Therefore, I move:

That all the words after "That" be omitted with a view to substituting the following words:

"the House declines to give the bill and the related bills a second reading because it would be ill advised to continue having regard to:

1.   the negative impact of the re-establishment of the Australian Building and Construction Commission on the rights and entitlements of Australian workers; and

2.   Government plans to equip the Australian Building and Construction Commission with powers that are extreme, unnecessary, undemocratic and compromise civil liberties."

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