Andrew Giles (Scullin, Australian Labor Party) Share this | Hansard source

I rise in opposition to the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 and in support of the amendment moved by the member for Gorton, the shadow minister. This is unnecessary legislation that takes us back to the future without due consideration of past experience. It is ideologically motivated and it is divisive. It is unconcerned with building cooperative workplaces, much less with the rights of those thousands of Australians who work in building and construction or indeed the concerns of their families.

I mention the families because the nature of the powers intended to be given through these pieces of legislation impacts beyond those individuals actually working in the industry. The regime proposed by these bills is unbalanced, unlike that which it proposes to replace. It raises some very real questions about the democratic functioning of our society. It is disappointing that we are having this debate now, because it is a debate that has been had. It is telling that the rhetoric that members opposite rely on is unsupported by evidence.

I propose to focus in my contribution on two aspects of these pieces of legislation: the argument around productivity that is said to justify their introduction, and the coercive powers that the pieces of legislation contain. But I am also concerned that the very fact of these pieces of legislation flies in the face of this government's deregulatory principles, so I will also touch upon this. This is a government that says one thing and does another.

I have this morning reread the    Governor-General's speech, which is full of references to reducing regulation and to small government. It can only charitably be said that those aspirations are not on display here. Whatever else this legislation is, it is illiberal. As the member for Blair has reminded me and hopefully also members opposite, it is not legislation that John Stuart Mill would intuitively find appealing.

We have heard much said by members opposite in this debate around safety at work and around suggestions of the misuse of existing provisions in other legislation designed to secure workplace safety. There have been lots of tabloid allegations and lots of assertions, but very little evidence—which is, of course, this debate here in a nutshell.

It saddens me and it burdens me, rising here, that this year has seen—as all years do—a number of deaths in the construction industry in Melbourne and no doubt elsewhere in Australia. One death at work is obviously one too many. I am sure that is something we all share in this chamber. But it must also be said that there is a relationship between workplace regulation and safety outcomes. As Professor Peetz of Griffith University has pointed out, observance with occupational safety does tend to be lower where unions are weaker. Of course, these bills are designed at their very core to weaken unions. I take this opportunity to acknowledge the important and often difficult work of unions and of workplace safety representatives, in particular, in standing up for safe workplaces. I hope they will not be deterred from doing so as a result of this debate should these bills be enacted.

I am proud that Labor opposes a return to the Australian Building and Construction Commission. This is not the 'sensible centre' of which the Prime Minister is so fond of speaking. Indeed, demonising construction workers and their representative bodies by returning to the ABCC could not be further from the sensible centre of the industrial relations debate. When one thinks of the sensible centre, one thinks of a sense of moderation, of fairness, but this is an attack on workers' rights and workers' entitlements.

As previous speakers on this side of the chamber have made clear, the ABCC's proposed powers are extreme and unnecessary and most certainly compromise civil liberties. Those proposed powers include unfettered coercive powers, the prospect of secretive interviews and the prospect of imprisonment for those who do not cooperate. Persons interviewed have no right to silence and are denied the right to be represented by a lawyer of their choice. Again, I ask myself: is this the supposed sensible centre that the Prime Minister has referred to?

Mr Abbott has not, as members opposite have asserted, just revived the ABCC as was committed to. These pieces of legislation in fact substantially extend the reach of the ABCC, including in manners which would appear to make the scope of its operation somewhat uncertain. I refer here in particular to the definition of building work, the reference to ancillary sites and the extended geographical scope of this legislation. Of the many concerns that I have in this regard, the greatest is—and perhaps this is an unintended consequence of drafting—that we may see the extension of these coercive powers into a wider section of the economy, including the manufacture of goods. Complexities of this scope should be addressed in this place and not left to courts to determine. This is clearly more than just a revival.

The re-established ABCC will also have significantly broader powers than its 2005 incarnation. It is very strange, as I mentioned earlier, to hear from self-described champions of small government that they are so strongly in favour of such big, draconian emanations of state power. It makes a mockery of all the invocations of people's lives being free from government intervention that we have heard often from members opposite in recent weeks.

I reiterate the member for Gorton's statement that the ABCC's proposed powers are extreme, are unnecessary and compromise civil liberties. These powers are not used, we remember, to investigate allegations of criminality. So much for concerns of proportionality and reasonableness.

On this note, I take this opportunity to remind members of the actions of ABCC officials in 2007, who detained an innocent bystander, not even an employee in the building and construction industry, for hours and subjected him to interrogation in secret. This person's crime was that he happened to witness an alleged altercation as he walked past a construction site.

In response to this incident, Professor Andrew Stewart stated that the ABCC's then powers were 'extraordinary, analogous to those of ASIO'. He said:

Ordinarily, under our laws, you have certain rights not to answer questions … You have privileges against self-incrimination. But these rights do not exist when you are being interviewed by the ABCC. That an innocent member of the public can get caught up in these powers simply increases the concerns.

Professor Ron McCallum described the ABCC's powers as 'similar to aspects of the terrorism laws'. I am troubled by this and by many aspects of these coercive powers. I am troubled by the reverse onus provisions in clause 57 and, more fundamentally, by the curtailing of the presumption of innocence, the right to peaceful assembly, the privilege against self-incrimination and freedom of expression.

The provision in respect of retrospective application appears to me at least unnecessary and plain wrong—to suggest that people should be punished for actions that were lawful at the time. I am also troubled by the capacity given to the ABCC to effectively enable the re-litigation of matters that have been settled between parties. The bald statement of compatibility that asserts that workers' rights to freedom of assembly would be enhanced would be funny if it were not so serious in its consequences.

All these provisions raise deep concerns as to how our society should operate. They undermine key safeguards of civil liberties and fundamental aspects of our social fabric. They are of course also inconsistent with international obligations we have assumed as a nation. Unlike members opposite, I do not regard construction workers or, indeed, people walking past construction sites as terrorists. They should not be treated as such. I do not see that the case is being made in any way, shape or form for these extraordinary coercive powers.

I note that Fair Work Building and Construction, established by Labor, already has sufficient powers to deal with unlawful behaviour in the industry. Fair Work Building and Construction has outperformed and will continue to outperform its predecessor, the ABCC—and, should these bills come to pass, its successor. Fair Work Building and Construction has a full suite of appropriate investigative and prosecution powers to deal with any unlawful behaviour in the building and construction industry, whether by employers, employees, unions or contractors. Fair Work Building and Construction is undertaking more investigations, concluding more investigations, getting matters to court faster and recovering more money for workers in the industry. I remind members opposite that the work of Fair Work Building and Construction has secured over $2 million in unpaid wages and entitlements for more than 1,500 workers. These were the sorts of breaches the ABCC was never focused on and, it appears, will not be focused on.

ABS data shows that industrial disputation in the building and construction industry is on average less than one-fifth the rate seen under the previous coalition government. Labour productivity has increased over the past 10 quarters and, on average, is almost three times higher under Fair Work than it was under the Work Choices regime, and, in the building and construction industry, the rate is on average less than one-fifth the rate we saw under Work Choices. This is at a time when more Australians than ever before are covered by enterprise agreements, showing that the vast majority of agreements are being made without any industrial action at all.

The Governor-General's entire speech to the Senate chamber was littered with references to cutting red tape as a way to increase productivity, as I mentioned earlier in my contribution. Yet trying to find statistical data to support the assertion that the reintroduction of the ABCC will increase productivity in the construction industry produces very little. For example, the coalition have been unable to adduce any ABS statistics that conclusively demonstrate that the ABCC improved productivity in the construction industry or that the ABCC's abolition created a corresponding decrease in productivity.

As the member for Gorton and other speakers have shown eloquently and effectively, the best that the supporters of this legislation can come up with is a widely discredited Econtech report—the same report that simply plucked a figure out of thin air when it came to estimating the productivity gains that would be lost with the abolition of the ABCC. Coalition members cling to this report like a drowning man clings to flotsam and jetsam. On the other hand, to make our case, we only have to look at reputable sources like the ABS's basic productivity figures from 1988-89 to 2011-12. Whilst productivity depends on many factors and it is hard to attribute productivity changes to a particular cause, these figures show a gradual improvement in productivity in the period of the ABCC, but these productivity rates accelerated after Labor changed the remit of the ABCC.

So, if the coalition are in favour of improving productivity in the construction industry, they should simply adopt and support Labor's existing policy and carry on a real dialogue with workers, unions and employers around this shared challenge. Given the inability of supporters of this legislation to substantiate their assertion in respect of productivity, the only conclusion that can be arrived at is that these assertions are baseless. Indeed, in the Minister for Employment's media release of 14 October 2013, the minister mentions improving productivity—ostensibly the justification for this legislation—as if it were a mere afterthought. It is asserted twice as a given, with no further elaboration or elucidation.

Again, in the bill itself, productivity is mentioned just twice. For a bill that is supposedly concerned with the topic, it is a curious oversight, to say the least. The first mention is just the usual one-sentence assertion, whilst the second proceeds with Orwellian menace to state that the reintroduction of the ABCC involves 'providing a framework for ongoing cooperation between individual building industry participants'. And this gets to the heart of it. It gets to the true obsession of the coalition and the true nature of this legislation: to strip away the rights of people at their workplace and intimidate people from coming together and joining their union. It is not about productivity, nor even about building and construction. Let's cut to the chase. This is the thin edge of the wedge, a precursor to a return to Work Choices. I oppose that return in any shape or form, and I oppose these bills.

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