Nick Champion (Wakefield, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That this House:

(1) notes the:

(a) Australian Building and Construction Commission (ABCC) created under the Howard Government' s industrial relations legislation unfairly targets workers in the construction industry; and

(b) Government believes the current ABCC should be abolished and replaced with a new inspectorate that is part of the Fair Work Australia system; and

(2) calls on all m embers to support the abolition of the ABCC to restore fairness in the construction industry for workers and employers.

The Australian Building and Construction Commission is a regulator that was conceived as part of the legislative malice that the previous Howard government exhibited to organised labour and to the working men and women of this country. It is a malice that we have seen over 100 years. We saw it in the 1890s, in the shearers' strikes; we saw it in the 1930s, in the railway strikes that brought Ben Chifley to this parliament; we saw it in Mudginberri and the disputes of the eighties; and we saw it on the docks with the dogs and balaclavas and the illegal sacking of Australians simply for being members of a union.

We see this malice towards the working men and women in the construction industry—900,000 people singled out for special observance under special powers and special prosecution with special penalties. All of this is simply because they want to be part of a union and want to organise and exert their rights at work. The ABCC is the last remaining edifice in the legislative malice that was Work Choices and the 1998 Workplace Relations Act. The then government sought to insert into Australian law all of the unfairness and viciousness that they had in their hearts for organised labour.

The building industry is at the heart of our economy. It is an industry that is robust, diverse and at times troubled. There are many examples of this. I am sure members opposite will make plenty of remarks and observations about the conduct of unions and workers. But we know this is an industry that has huge problems with sham contracting, phoenix companies, unpaid entitlements and bills to other firms. We know it is an industry with a problem with the employment of illegal workers.

The Sydney Morning Herald on 26 June 2011 observed the death of a Mr Hwang who had been working illegally in Australia since 1998 and who had died of a respiratory illness. He died a pauper. He was an illegal worker in the tiling industry and one of many in that industry who are subject to those conditions. He had never been on an employer's books and was never paid any superannuation. On the website Adelaide Now on 9 March 2011 was the headline 'Dodgy builders "out of control"', and the story referred to underpaid construction workers, many of them illegal workers, flooding into South Australia's construction industry. It outlined the cases of workers on the SAPOL building site who were owed $200,000 in wages by a subcontractor who had fled the country. There were individuals there who were owed $11,000—one was owed $18,000—and these are just some of the examples of workers in this industry who have been ripped off, underpaid and undocumented and who have taken Australian jobs.

When we look at how the ABCC has performed and what it has done about problems such as these, we see they have received $182 million over the last few years and have had exactly five employer prosecutions. There were zero in 2006, zero in 2007, zero in 2009 and zero in 2010. Less than five per cent of all prosecutions were of employers. These were quiet years for the ABCC. This was because this regulator is myopic and blinkered. It was conceived in malice—that is why it has to go.

It is a regulator that has not fairly applied the rule of law to this industry. It has not put in place safeguards to protect civil liberties or workers. It has not looked to be a fair regulator for the Australian people, and that is why we look forward to it being replaced by a regulator that will put at its heart the rule of law, will protect civil liberties such as the right to a lawyer and will enshrine in legislation a sunset clause to protect Australians from its extraordinary powers. This is a regulator that was born of malice, and it must be replaced by a regulator that is born of fairness.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

Is the motion seconded?

Amanda Rishworth (Kingston, Australian Labor Party) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to this | Hansard source

Tonight's debate calling on members to support the abolition of the Australian Building and Construction Commission is a prudent opportunity to remind the Australian public of why the ABCC was established. The coalition set up the ABCC in response to the Cole Royal Commission into the Building and Construction Industry when the brutal thuggery of some unions and businesses was making it impossible for small business and independent contractors to access sites without conceding to often unlawful union demands. Australians fully supported the Howard government's establishment of the ABCC, appreciating that we needed a body with the clout to enforce law and order on building and construction sites around Australia. The ABCC is responsible for monitoring conduct in the industry and prosecuting unlawful industrial action, breaches of freedom of association laws and addressing all complaints of unlawfulness in the industry. We have seen bikies on the West Gate Bridge, union officials being prosecuted over threats to kill, and illegal blockades of building sites. The blockade by the CFMEU at the Melbourne Markets relocation project site, between 19 May 2010 and 28 May 2010, is a prime example. The CFMEU refused to accept the greenfields agreement between the developer and the Australian Workers Union. Construction was blocked for 10 days by union members. Such heavy-handed, illegal behaviour on the part of unions provides the evidence of the need for the ABCC. When we have union officials blockading worksites with cars and rocks, and going as far as allegedly luring kangaroos onto a worksite to disrupt building, we have a real problem. This behaviour is unacceptable in Australian workplaces. It is a direct attack on prod­uctivity and employers, and the vandalism and obstruction that occurs on construction sites in Australia needs to cease.

Without the ABCC, Australia could descend back to the dark old days of corruption and heavy-handed union bullying. Yet preventing the bully-boy tactics of unions is not the only role of the ABCC. They do go into bat for workers, ensuring they receive the correct pay and entitlements. Workers at the Pentridge Prison Apartment development received back pay recently, when the ABCC became aware of allegations of underpayments following reports on Melbourne media saying that workers at the site had been locked out and had not been paid their wages. The ABCC can provide one-on-one advice to employers in the building and construction industry about classifications and hourly rates, record-keeping obligations, leave and termination issues and employment condit­ions. Yet Labor's contempt for the ABCC is longstanding. Despite going to the 2007 election committing to keep a tough cop on the beat, they are now backflipping—proposing to give the minister the capacity to issue directions to Fair Work Australia about the policies, programs, priorities and the manner in which the powers and functions of the building industry inspectorate are exercised and performed. This is in stark contrast to a commitment made by the now Prime Minister when she was confronted with a sea of yellow T-shirt wearing protestors in Brisbane in 2009. She stated:

Like me, I am sure you were appalled to read of dangerous car chases across Melbourne city involving carloads of balaclava-wearing people, criminal damage to vehicles resulting in arrests, threats of physical violence and intimidation …

Balaclavas, violence and intimidation must be unreservedly condemned … and the Rudd Labor government will do everything necessary to ensure that we do not see this appalling conduct again.

That is what the Prime Minister said.

It is a real shame that the Gillard Labor government does not share this commitment, and the only promise that matters now is one that has apparently been made to the backroom boys of the unions. Unfortunately, the faceless men of the Labor Party are once again pushing their own agenda. And if it means holding an industry hostage to enact their own power plays then this is exactly what they want to do.

The coalition supports the Australian Building and Construction Commission, and we definitely support the need for keeping a tough cop on the beat. This private member's motion is nothing short of a pathetic Labor attempt to appease its faceless union bosses.

Amanda Rishworth (Kingston, Australian Labor Party) Share this | Link to this | Hansard source

I am very pleased to second this motion. I would like to thank the member for Wakefield for bringing it to the House tonight. This motion rightly points out that the Howard government's Australian Building and Construction Commission has unfairly targeted building and construction unions and their individual workers. It is clear from the comparison of the total number of successful prosecutions made by the ABCC. We have five for employers—

Mr Briggs interjecting—

The member for Mayo has just walked in. I am sure he was critical, just as he was with Work Choices, in the back room, in coming up with the best plan about how to target unions and their rank and file members—because we know he has some runs on the board there. However, we saw five successful prosecutions of employer groups and 86 of employee organisations. The previous speaker suggested—and I find it very hard to believe—that there were no other issues, that employers in the building and construction industry never do anything wrong; they never have issues where they underpay their workers or do not hold high health and safety standards. Those numbers I think clearly state that this organisation was there to target unions and their rank and file members. This is a very important point because we do need to make sure both employees and employers are held accountable. It is important that employers do uphold health and safety standards as well as their employees and ensure that there are decent conditions for workers on building sites and workplaces right around this country.

It is not surprising that this was created by the Howard government, because they created so many things, including their first wave of industrial relations changes in 1998 and then their second wave, through Work Choices, where they got a little giddy with their Senate majority and decided to really rip away the wages and conditions of ordinary Australians that deserved—

Mr Briggs interjecting—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The member for Mayo can tell us when he gets his chance.

Amanda Rishworth (Kingston, Australian Labor Party) Share this | Link to this | Hansard source

good health and safety standards and good conditions at work. There are many who believe that, as a result of the culture of fear and intimidation that occurred as a result of the ABCC, workers could not feel they could voice their concerns about their workplace. They did not feel that they could raise health and safety issues or their entitlements, that under the ABCC if they did raise these issues or took action to address these issues they would be compulsorily interrogated and not be provided the appropriate protections and safeguards, including the fundamental right to legal representation. So it is no wonder that there are many that believe that there were reduced safety standards on building sites, increased injury rates and reduced access to employee advocates and unions for workers. And, as a result of the climate of fear and intimidation, there are many who felt they could no longer put their tools down to ensure that safety was there on the worksite. One particular story was related to me about how this affected a construction site. There was a site on which water supplies were turned off by management despite the fact that temperatures were topping about 45 degrees on some days. When water supplies were turned on again, black sludge then flowed from the taps, so workers determined that the lack of water constituted a significant safety risk and walked off the job until water supplies were fixed. However, some months later, the workers who walked off the job, as well as their friends and colleagues at the construction site, were subject to what they felt was threatening and unwarranted interrogation to determine whether a safety risk was sufficiently immediate to warrant walking off the job. I am not sure about you, Madam Deputy Speaker, but I think black sludge and no access to water are an evident safety risk, and it is no wonder that in this example—and I am sure there are many others—workers felt that they were unfairly targeted by the ABCC.

It seems that with the previous government there was an obsession with targeting workers, an obsession with reducing their pay and conditions, an obsession with ensuring that people did not get a fair day's pay for a fair day's work. It has been this Labor government that has taken action to create Fair Work Australia, to restore the safety net that was destroyed by the previous government. On that point, I commend the motion to the House.

Karen Andrews (McPherson, Liberal Party) Share this | Link to this | Hansard source

I rise to speak against the motion by the member for Wakefield to abolish the Australian Building and Construction Commission. There are many years of history to industrial disputation in the building and construction industry, and there have been a number of investigations and inquiries into that sector over the years.

In the late 1980s—more than 20 years ago—the full bench of the Australian Industrial Relations Commission conducted a review into the building and construction industry. Extensive submissions were made to the full bench by employers and unions on a wide range of industry practices, resulting in the consolidation of a number of awards into the National Building and Construction Industry Award 1990. The full bench found, firstly, that there was inconsistent industrial regulation between the federal and state jurisdictions and that a framework should be developed to deal with those issues; secondly, that the paid rates system should be abandoned in favour of a minimum rate plus a supplementary payment or allowance, which was consistent with the prevailing wage fixation principles; and, thirdly, that a single award should be established with a rationalisation of respondents. This was a step in improving the performance of the building and construction industry, but clearly more work needed to be done on reforming some entrenched practices in the industry.

In early 2001 the government called for an initial report into the building and construction industry. An investigation was undertaken by the Employment Advocate on a wide range of matters such as breaches of freedom of association, including the forcing of construction workers to join a union; the pursuit of contractors to enter into an agreement in possible breach of the Workplace Relations Act; strike pay; and right of entry. This report was the precursor to the Cole Royal Commission into the Building and Construction Industry.

Whilst there were more than 200 recommendations, Commissioner Cole spec­ifically recommended changes to ensure bargaining only at enterprise level, elimin­ating pattern bargaining; mechanisms to 'ensure that any participant in the industry causing loss to other participants as a result of unlawful industrial action is held responsible for that loss'; mechanisms to ensure that disputes are settled in accordance with legislated or agreed dispute resolution procedures 'rather than by the application of industrial and commercial pressure'; and the creation of an independent body which:

… will ensure that participants comply with industrial, civil and criminal laws applicable to all Australians … as well as industry specific laws applicable to this industry only.

The legislation that gave effect to the Cole commission's desire for the implementation of the rule of law included the Workplace Relations Amendment (Codifying Contempt Offences) Act 2004 and later the Building and Construction Industry Improvement Act 2005. The second act commenced in September 2005, with its main object being to provide an improved industrial relations framework:

… to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.

This act provided for the establishment of the Australian Building and Construction Commission.

The role of the commission is to monitor and promote appropriate standards of conduct throughout the building and construction industries. As well as an education and training role, the ABCC can, and has, instituted proceedings for contrav­entions of laws relating to freedom of association, coercion in agreement making, right of entry, strike pay, sham arrangements and unfair services contracts. Specifically, when the ABCC uncovers a contravention, it will initiate proceedings in the courts or Fair Work Australia, and to date the courts have imposed $4,123,125 in penalties, $698,300 suspended, in successful ABCC cases. From its inception in October 2005 through to 31 May 2011, the ABCC has been successful in 74 cases and unsuccessful in only eight cases. The majority of proceedings have been in Victoria, which has had a long and difficult history with the building and construction industry, including the bitter disputation leading to the deregistration of the Builders Labourers Federation in 1986.

The ABCC has a very positive role to play in monitoring and ensuring compliance with relevant legislation in an industry that has been dogged by practices which, if not unlawful, are precariously close. The greatest risk in the abolition of the ABCC is that the positive progress that has been made to date in reforming this industry will be eroded. If that happens there is a risk that there will be a return to the poor practices that were prevalent during the— (Time expired)

Laurie Ferguson (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

That was a very interesting recitation of historical events, but I think the reality is better summarised by George Williams in an article on 6 July 2010 in the Sydney Morning Herald. He noted that this legislation:

… can be applied to anyone. Workers can be brought in, not because they are suspected of wrongdoing, but to report on the activities of their co-workers. Family members, including young children, can be told to reveal information about a parent in the building industry.

… One person who just happened to be passing a building site was reported in this paper—

that is, the Sydney Morning Herald; it is not the construction union making this report—

to have been ''hauled in for several hours of secret questioning'' after seeing a confrontation between a union official and a building manager.

That is a recitation of the truth, the coercive powers in this legislation, coercive powers that the police forces of this country lack in many cases in regard to real criminality. As other speakers have indicated, there is a total imbalance in the way this organisation has operated. That is because it has a very close association with the infamous Cole royal commission into the industry. As the member for Mayo well knows, it was a politically driven royal commission and totally discredited.

There is a total imbalance in the way this organisation has operated in the industry. That is derived from the way it was created and the reasons that the Howard government created it. There is a situation here where the industry in Sydney is characterised by the heavy use of imported labour. In Sydney people are locked on sites and are not allowed to leave the place where they are working. They are living on rations. On many building sites in Sydney you not only have the worker; you have his spouse working on the building site for no payment providing food. In some cases we have got a situation where, as the mover of this motion indicated, the amounts of money owed to these workers are horrendous. There has been very little activity by this organisation in regard to—

Mr Briggs interjecting—

Name them? You would be advised to read a few newspapers and do a bit of research for the first time in your life. The situation here, as I say, is that there is a total imbalance in the way the organisation has operated. The member for Mayo will be able, of course, because he is such a knowledgeable person in this field, to recite case after case where this organisation has pursued employers in regard to sham contracting, in regard to pyramid company operations, in regard to underpayment. I challenge him to come forward with those, because previous speakers on this side have indicated the large degree to which union officials and individual workers have been prosecuted. That is a challenge to you, my friend.

We have seen $30 million of taxpayers' money expended on a series of unsuccessful prosecutions, nationally covered, in relation to Ark Tribe and others that were exonerated. It is also worth noting a poll by Essential Media in November 2010 which indicated public opinion on these matters. They said that 63 per cent of Australians were opposed to the fines this organisation could impose and 55 per cent of Australians were opposed to the way in which evidence was produced. With regard to seeking documents it was 58 per cent, and another 60 per cent were opposed to the use of these industrial laws in general. So Australian public opinion is very much concerned about the extreme powers this body has.

It is also worth noting an article by Bernard Keane in Crikey. I know the member will comment on this as well. It certainly demolishes some of the research by Econtech in regard to the way in which this has been justified. A figure of 9.4 per cent for productivity improvements was put forward by that research. Once again that supposed gain for the industry was demolished by the Wilcox royal commission. The situation here is that severe problems in the industry are being ignored. This organisation is one whose agenda is essentially driven by a biased position. We do not see any concern about donors in Western Australia on the wharves who have said they are prepared to bring guns onto building sites to solve industrial problems. There is no activity or prosecution by this organisation.

In summary, this is not $30 million worth of taxpayers' money well spent. It is an organisation which has been discredited by the failure of its activities. Its prosecutions have been essentially unsuccessful, it has been regarded by the Australian people as having too extensive powers, powers that go beyond any other body in this country, and it is selective in who it has concentrated on. (Time expired)

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

It does give me great pleasure to speak on this motion moved by my little friend over there, the member for Wakefield. I must say I am surprised that the member for Wakefield has moved this motion. I cannot quite work out the connection. He is obviously trying to find some connection into the Left in South Australia. We have got Don's children here in the parliament tonight. We have got the member for Wakefield, the member for Adelaide and the member for Kingston, Don's children, before us—born out of the SDA, given birth to by Senator Don Farrell, who famously yesterday wished the Minister for Foreign Affairs happy anniversary, this week being the anniversary of fundamental injustice.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The member must stop reflecting on members in the parliament and get to the motion.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

I am just reflecting that it is a surprising motion moved by a paid-up operating member of the SDA. I will say another thing about the two former practising industrial advocates over on the other side who both referred to the 1998 workplace relations act. I thought they would have known better; it was 1996 to begin with. They were reforms moved in 1986, landmark reforms from a great workplace relations minister, Peter Reith, the former member for Flinders, a fantastic minister for workplace relations who got things done, who fixed the wharves. I notice the member for Wakefield referred to that earlier in his remarks.

This is an industry that was littered with illegality, where the rule of law no longer applied. Terence Cole QC in a royal commission found example after example of illegality which bedevilled this industry, which added cost to buildings across this country, reduced productivity across this country. The previous speaker, the member for Werriwa, has got a great connection with the CFMEU, a long-term connection which he should have declared during his remarks, although it is so well-known he probably did not need to.

What those on the other side forget to mention is that this legislation deals with both sides. If there is illegality in the system, both sides of the argument will be prosecuted. It was out of the royal commission of Terence Cole, a very well-credentialled man who those on the other side were very happy to support in 2007 when he conducted another royal commission, which may have involved the former member for Mayo. They were very happy to support his inquiry then. But when he did this inquiry he was some sort of political partisan. The truth is that he was not. What he found was disgraceful and disgusting and needed to be acted upon. That is what the Howard government did, because that is what the Howard government did when they were in government: they delivered legislation which delivered high real wages, more jobs, higher productivity. They delivered legislation which fixed up this industry which was riddled with illegality, which was riddled with behaviour which I am surprised that the member for Wakefield is supporting, I must say. It does surprise me that the former SDA organisers, Don's children over there, are so supportive of this union and its activities.

Of course, not all members of the CFMEU are bad people. There are some members of the CFMEU who are good, hard-working Australians. This legislation has never sought to take any action on them; it seeks to take action on those who break the law. That is who it seeks to take action on, that is what it was designed to do and that is what it has been doing. That is why it is an utter disgrace that these people want to take it away. I will tell you why they want to take it away. They have been talking about the corruptibility of political parties with donations. The reason they want to take this away is the donations they receive from their mates in the trade union movement. That is all that this is about.

Debate interrupted.