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

I am pleased to speak on the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011. I would like to make some preliminary remarks about the state of small business and the circumstances that they face in the context of the current regulatory environment. Our shadow minister for small business, the member for Dunkley, spoke earlier in the House and, I think, reflected incredibly well the environment in which small business operates and the difficulties that it faces.

This particular bill, the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011, creates a strong but fair set of compliance arrangements for the building and construction industry. It implements the following reforms: it abolishes the Office of the Australian Building and Construction Commissioner and it creates a new agency, the Office of the Fair Work Building Industry Inspectorate, to regulate the building and construction industry; it removes the existing building industry-specific laws that provide higher penalties for building industry participants for breaches of industrial law and broader circumstances under which industrial action attracts penalties; and it includes a capacity for the director of the building inspectorate to obtain an examination notice authorising the use of powers to compulsorily obtain information, including through requiring a person to attend an examination and answer questions, or documents from a person who the director believes has information or documents relevant to an investigation.

The bill introduces the following safeguards in relation to the use of the power to compulsorily obtain information or documents: use of the powers is dependent upon a presidential member of the Administrative Appeals Tribunal being satisfied that a case has been made for their use and issuing an examination notice; persons summoned to interview may be represented by a lawyer of their choice, and their rights to refuse to disclose information on the grounds of legal professional privilege and public interest immunity will be recognised; people summonsed for examination will be reimbursed for their reasonable expenses, including reasonable legal expenses; all examinations will be videotaped and undertaken by the director or an SES officer; the Commonwealth Ombudsman will monitor and review all examinations and provide reports for the parliament on the exercise of this power; and the powers will be subject to a three-year sunset clause. The decision on whether the coercive powers will be extended after three years following a review of their use and ongoing need. The bill creates an office of the independent assessor, who on application from stakeholders may make a determination that the examination notice powers will not apply to a particular project. It does not affect the provisions that establish the Office of the Federal Safety Commissioner and its related OH&S accreditation scheme.

The coalition strongly oppose the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill because we believe that every Australian, whether they be an employer or an employee, deserves to be able to go to their workplace and operate in an environment where basic law and order is enforced. Every Australian has that right. This bill abolishes the body that ensures that law and order is enforced in the building and construction industry. It strips away the protections for workers to work in a safe and lawful environment. The replacement agency will be a toothless tiger that will again encourage a mentality of lawlessness, violence and thuggery. The Australian Building and Construction Commission has done a stellar job in addressing the concerns highlighted in the Cole royal commission. Rampant lawlessness, violence and intimidation were commonplace on building sites across this country. In total the Cole report catalogued more than 100 different types of unlawful conduct in that sector. In the interim, the Building Industry Taskforce was established until the creation of the Australian Building and Construction Commission in 2005. The ABCC was granted the powers that it needed to be the tough cop on the beat, working towards changing the lawless culture that was so prevalent in many of the work sites across Australia. It has also, very importantly, resulted in a significant reduction in the number of days lost to industrial action. For the workers in the building and construction industry it has resulted in real wage increases of more than 15 per cent.

If we are to flashback to the Cole royal commission we are again reminded of the pervasive culture of lawlessness that was rife within this industry at the time. Cole came up with more than 100 examples of the lawlessness that occurs. I would like to remind the House of some of the case studies he presented. He talked about a Japanese company called Saizeriya. They wanted to establish new facilities in Victoria. It is generally acknowledged that it is in Victoria and Western Australia that the militant construction unions are at their worst. After some discussion with the state Labor government in Victoria, Saizeriya decided to make a massive investment in food processing infrastructure. They were going to invest in the first instance $40 million. This project would have created 100 jobs locally and about 500 full-time jobs on an ongoing basis, with experts predicting that the indirect flow-on effects from the establishment of new facilities would create up to 3,000 additional jobs. Saizeriya's long-term plan was to open a new facility every five years. They wanted to invest more than $200 million over a 20-year period.

But the second they started work on their first site the Victorian Trades Hall Council and the militant unions started their normal campaign of work bans, boycotts, contractor restrictions, strikes—the sorts of behaviour I outlined earlier. They did this in support of union demands that three workers who were not needed on the project but who were members of the union be employed, that arrangements be made for employees from an asphalting company to be dual ticketed, that a barbecue lunch be provided on site at Easter 2001, and that the company agree to provide a DVD to be raffled at the barbecue, with the proceeds to be paid to the CFMEU fighting fund to support its opposition to the work of the Cole royal commission.

The union's demands were clearly ludicrous, but because those demands were not met this union went about disrupting the project and ensuring that it could not go ahead in a timely manner. As a result, the first plant, which was due to open in early 2002, was not completed until June 2003. After completion of the first stage and because this company had found it so difficult, the company decided to pull the plug on any further investment. So the $200 million and the 3,000 jobs that would have come into the Australian economy were pulled because the company found it far too hard to do business in Australia because of the unions and the poor industrial relations climate that existed. Here we have a significant investment threatened by the blatant bullying of the CFMEU. The company even considered moving its business to New Zealand as a result. The militant unionism that cause so much havoc and destruction pre-Cole is likely to reignite.

As I stated previously, it is in Victoria and Western Australia that you see these militant construction unions at their worst. The Cole royal commission outlined the case of Dependable Roofing. The situation was that a contractor had engaged Dependable Roofing, which was not on the union's list of approved companies, to perform work. The CFMEU, led by Joe McDonald, raided the site. This is the same Joe McDonald who is trying to get back onto work sites, claiming he is a changed man. They hunted down the employees of Dependable Roofing who were at the time working on a scissor lift some 6½ metres off the ground. The CFMEU raided the site and hunted down employees of this contractor, which was not a union approved contractor. This happened in the last decade; it is not ancient history. This union official is still causing trouble and he is still the lead union official for the CFMEU in Western Australia at this moment. He hunted down the employees. The raiders surrounded the scissor lift and prevented it from being moved. They then turned off the central control unit of the elevated platform and removed the keys so that these workers were stuck 6½ metres in the air and could not get down.

After stranding the workers up in the air the union then claimed it was a safety issue. When Dependable's workers finally were able to get down from the lift they were so intimidated by the raiders that they were forced to retreat into their site office. During that time one worker was assaulted by Joe McDonald and others were surrounded, abused, threatened and told to get off the site. When in the site office, which was a demountable, a temporary arrangement, the raiders bashed and kicked the side of the office and eventually lifted that site office from its mounts and pushed it over—with the people trapped inside.

Yet this is the type of behaviour that we could well see again with the abolition of the ABCC. We have already seen union heavies flex their muscles on the Westgate Bridge, albeit without the guts to actually show their faces hiding under balaclavas. There have been allegations of bikies being paid money to attend protests. There have been attacks on the private homes of supervisors. There has been damage to vehicles. There have been bricks thrown through windows with death threats. Ultimately, police have been called in to protect workers who just wanted to go onto that site and do their job. All of this has happened within the last 12 months. Now we find this government is going to abolish the one body that has the powers to control that sort of behaviour.

The Cole royal commission also found that payments had been made to the CFMEU in Western Australia of over $1½ million for so-called casual tickets, which is basically money paid in return for industrial peace on sites where all workers are not members of the union. The Cole commission found that of the $1½ million that had been paid they could trace less than $500,000. So $1 million of this money paid to the CFMEU has just disappeared.

It is interesting that the Labor Party members here seem to think that this is all made up. They might want to go back and refer to the Cole royal commission. Apparently they will not believe that members of the CFMEU would behave in this way. It is only that sort of denial that could lead you to support this ludicrous bill that abolishes the body that controls this sort of behaviour. There are significant problems with this legislation that we are opposing here today as the opposition. Despite the rhetoric of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations that it maintains a tough cop on the beat—and this is another great example of the minister's cliches; saying 'tough cop on the beat' but sadly it does not mean anything—this bill removes the independence of the building inspector and it ties up a watchdog in red tape. It actually has a sunset clause for the abolition of the powers that the new body has to do its job properly. Most ludicrously, it contains provisions that switch off the powers that the new inspectorate within Fair Work Australia has to enforce law. That seems to me to be an extraordinary thing to contain within Commonwealth legislation. If there are laws that are established so that an independent body can do its job and you can apply to have those laws switched off, why would you need those laws switched off? That is unclear to me. Of course, what will happen is that this will become part of negotiations. The unions will demand that these powers be switched off for any particular site and therefore they can return to their bad old ways without the fear of having a policeman on the beat who has the power to draw them into line.

This bill also reduces penalties for unlawful behaviour within the industry by two-thirds. It narrows the definition of industrial action and it removes provisions that stand against coercion and undue pressure being put within that industry. It is not just the opposition that is appalled at what is happening here. With the exception of the militant unions, which are going to be given carte blanche to return to their bad old ways through this bill, all of the stakeholders within the industry are publicly on the record opposing what is happening.

AMMA have supported some aspects of the bill, but their overall impression is:

… the effect of the Bill will be to disarm the tough cop and tie up the building industry watch dog in red tape; …

Master Builders Australia said that the government must reconsider the bill and not proceed with its passage, and that the bill is potentially disastrous for the building and construction industry. Ai Group, perhaps one of the government's more favoured business groups, have said that cultural change has not been achieved within the industry. They have raised concerns about the proposed switch-off provisions, about the five-year sunset clause and about the watering down of penalties by two-thirds. They are also concerned about the lack of independence of the proposed inspectorate. The Civil Contractors Federation has echoed the concerns of Ai Group, as has the Business Council of Australia. They have said that they want the bill delayed and that they are opposed to having switch-off provisions within the bill—provisions which are, quite frankly, ludicrous. The Air Conditioning and Mechanical Contractors Association oppose the bill. They say that this bill will result in:

… a significant diminution of the powers of the "cop on the beat"—

and that—

… there is likely to be a return to a level of unlawful behaviour on construction sites that prompted the actions that were taken by the government in 2002 to curtail such behaviour.

These are the bodies that actually represent people who are engaged in this industry on a day-to-day basis, and they are saying that the passage of this bill will result in a return to those bad old days within the building and construction industry. Finally, the Chamber of Commerce and Industry Western Australia, a body that knows all too well the behaviour of the CFMEU in WA, say:

Removal or weakening of such power is expected to encourage union lawlessness.

So there we have it. All of the organisations representing people who actually operate within the industry say that the passage of this bill is going to result in a return to lawlessness within the building and construction industry—a return to the practices which, I have reminded the House, were exposed by the Cole royal commission and that led to the establishment of the ABCC. It was established with the powers that it needs to maintain law and order within the industry, with all the resulting good that that has done for the Australian economy as a whole—not just for the building and construction industry.

Nobody should be fooled by Labor's spin on this particular issue. This bill fulfils the long and oft-stated goal of the militant construction unions to abolish the ABCC; it is replaced by a toothless tiger that does not have the powers to do the job properly. In a tough industry, the new body is going to be weak and it is not going to have the ability to do what it is supposed to do. The opposition will oppose this legislation at every step of the way, because every Australian employer and every Australian employee deserves to be able to work in a culture that is free of lawlessness, free of thuggery and free of intimidation. They should expect that they will be able to go to work in the building and construction industry and have the same law and order that every Australian worker expects when they get up in the morning and go about their lawful business.

So let us just go over the facts here again. By keeping disputes to a minimum the ABCC has helped to increase productivity and lower construction costs around Australia while ensuring safe and harmonious working environments for workers. The protection provided by the ABCC for workers and the productivity that comes as a result were put in place as a direct result of the royal commission, but once again this arrogant government thinks it knows best and will unravel a proven and workable solution on the basis of ideology, exactly like they did on border protection.

With the ABCC, we have seen an increase in productivity by 10 per cent, an annual economic welfare gain of $5.5 billion per year, lower inflation, increased GDP and the lowest levels of working days lost in the building and construction industry in history. Labor's weakening of the ABCC has already seen working days lost skyrocket to 44 days lost per thousand employees within the building and construction sector—the highest level since 2005. And the Wonthaggi debacle has already given us a glimpse of what is in store.

This bill will strip away the protections that workers in the industry enjoy and roll out the red carpet to union militancy. Make no mistake: this bill will mean unrest on building and construction sites right around Australia and a return to the 1970s, with the union thugs in charge of what gets built and when depending on the size of the bribe. By caving in to the demands of the 'I'm all right, Jack' militants within the union movement, who wish to water down the powers of the industrial watchdog, Labor has abandoned the interests of workers, productivity and the economy. This bill should be opposed and Labor's attempts to abolish the ABCC should be seen for what they are.

Gai Brodtmann (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

I am always bemused when the member for Farrer speaks. I am usually on after her and it is always an apocalyptic vision of what is going to happen as a result of legislation that is introduced by the government. The last time I followed her in a speech I think she was suggesting that public servants were going to be scuba diving in Lake Burley Griffin during their lunch breaks. I find that quite extraordinary, given that the winters in Canberra are not terribly conducive to scuba diving for about seven months of the year. Now I would just like to calm things down a bit and suggest to those here tonight that the world is not going to end and that the apocalypse is not coming.

I rise this evening to speak on the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011. This is the second time this legislation has been presented to the House, being first presented in 2009 but lapsing upon the prorogation of parliament before the last election. It is a bill that brings to completion the commitment of the Gillard Labor government to abolish the Australian Building and Construction Commission and to restore fairness to Australia's industrial relations system. Industrial relations and how it is legislated have been some of the greatest ongoing political and philosophical debates in Australian history. These debates stretch all the way back to Federation and beyond. These debates sit at the very core of the Labor Party. Some of the first legislation in Australia's parliament was on this very issue. I am thinking here mainly about the Conciliation and Arbitration Act 1904, which to me underscores that industrial relations underpins Australia as a nation and underpins Australia's history as a nation.

The Labor Party was born out of the labour movement in the late 19th century and its fight to ensure that all workers are given rights. The origins of our party lie in our belief that there is a clear distinction between worthwhile employment and the indentured servitude and poor working conditions that were the norm in the 19th century—conditions that, sadly, for too many around the world continue to this day. Indeed, there can be no greater distinction between us on this side of the House and those opposite than the difference on the issue of industrial relations, because we believe that workers should be treated with dignity and given every opportunity to thrive on the fruits of their labour and those opposite believe that workers are not to be trusted—they will go scuba diving in their lunchbreak—and that employers should be given free rein to treat them as they will, stripping entitlements and employment protections. We believe that employers and workers can reach mutually beneficial agreements and harmonious working conditions given the right framework. Those opposite believe that workers and their unions are fundamentally corrupt—and we heard those views from the member for Farrer tonight—and are merely out to drive the economy into ruin, so they attempt to drive them out rather than work with them toward mutual goals.

There can be no greater evidence of these distinctions than the actions taken by those opposite when in government. The Howard government consistently, year after year, opposed submissions that would see increases to the minimum wages and conditions of Australia's most vulnerable workers. The Howard government tried for decades to remove protections from unfair dismissal and finally succeeded with that goal with the implementation of that purely ideological piece of legislation Work Choices—and some of its chief architects still sit opposite today. That legislation stripped not only unfair dismissal protections but penalty rates and many of the rights that working Australians had struggled for, had fought for, for decades. Those opposite were apparently surprised when it left working Australians vulnerable and worse off. This was either a stunning admission of the naivety of the Howard government or just a plain misleading statement about what they knew was going to happen.

The Howard government's ideological obsession with industrial relations culminated not only in Work Choices but also in the creation of the ABCC. I understand that there were significant problems specific to the building industry. The government has always maintained that there are unique challenges for both employers and employees in that industry. This is why we support a construction industry regulator to ensure compliance with the law from all parties in the construction industry. However, the difference between us and those opposite is that we want to ensure that there is a strong regulator to resolve these issues and that the rights of people in the construction industry are not needlessly or capriciously eroded. We believe in getting the balance right. In contrast, those opposite could not help themselves when they heard of problems in the construction industry. It was like a red rag to a bull. They rushed in and used it as an excuse to impose an ideologically driven agenda to remove the rights of workers. This was the difference of approach taken to the 2007 election, and it is clear which approach was endorsed by the community.

The new regulator, which this legislation establishes, will operate in accordance with community expectations for a fair and just workplace relations system—the message on those expectations was very clearly sent in the 2007 election. The regulator will operate within the current fair work system. Specifically, this bill abolishes the Office of the Australian Building and Construction Commissioner and creates the new agency of the Fair Work Building Industry Inspectorate. This legislation will also remove the building industry specific laws that implement harsher penalties for breaches of law by those in the construction industry and remove the broader circumstances under which industrial action would attract penalties. It will also include the capacity for the director of the building inspectorate to obtain a notice authorising the use of powers to compulsorily obtain information and for the examination of witnesses. I understand that this power was one of the most controversial aspects of ABCC. However, I understand and accept the view of Justice Wilcox when he reviewed the ABCC and concluded that there is still a role for these powers, although from my reading he was not convinced that these powers would need to be permanent.

I note that he also recommended that there be strong safeguards on the use of such powers, which he noted were not included in the original legislation. Specifically, this legislation places a number of new safeguards on the use of this power. This legislation states that the power can only be used upon a presidential member of the Administrative Appeals Tribunal being satisfied that a case has been made for its use. It will allow people summonsed to be represented by a lawyer and recognise their right to not disclose information on the grounds of legal privilege or public interest immunity. These people will also be reimbursed for reasonable expenses and legal costs incurred by their summons. All examinations will be videotaped and the Commonwealth Ombudsman will monitor and review all examinations and provide a report to parliament on the exercise of this power.

Finally, this legislation places a three-year sunset clause on this power and necessitates that before it can be continued there must be a review of its use and further need. As Minister Crean pointed out in his own speech on this legislation, there has been a decline in the use of this power as a result of better process from the ABCC. This reduction has, in the opinion of the ABCC, not reduced the effectiveness of its investigations. To me, all of this points towards the eventual removal of this power on the basis that it is no longer necessary.

This legislation restores balance, it restores fairness and it restores natural justice to those engaged in the construction industry. It will ensure that the construction industry continues to play its important role on the national economy and that all stakeholders operate within the law for the mutual benefit of workers, employers and all Australians. I support this legislation and commend it to the House.

Debate interrupted.