Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011. I ask leave of the House to move government amendments (1) and (2) together.

Leave granted.

I move government amendments (1) and (2):

(1) Schedule 1, item 94, page 48 (lines 19 and 20), omit the item, substitute:

94 Section 73

Repeal the section, substitute:

73 Director etc. must not participate in court proceedings in relation to settled matters

(1) This section applies if:

(a) either:

  (i) the Director (or an inspector) and another party or parties are joint applicants in a building proceeding before a court; or

  (ii) the Director (or an inspector) has intervened in a building proceeding before a court under subsection 71(1); and

(b) before the court has given judgement in the proceeding:

  (i) the matter that is the subject of the proceeding is settled between the parties to the proceeding (or if more than one matter is the subject of the proceeding—one or more of those matters is settled between the parties to the proceeding); and

  (ii) a notice is filed in the court discontinuing the proceeding to the extent that it relates to the settled matter or matters.

(2) The Director (or inspector) must not continue to participate in the building proceeding to the extent that it relates to the settled matter or matters.

(3) A reference in subparagraph (1)(b)(i) to parties to the proceeding does not include a reference to the Director (or inspector).

(4) In this section:

building proceeding means a civil proceeding in relation to a matter that arises under a designated building law and involves a building industry participant.

(2) Schedule 1, page 48 (after line 20), after item 94, insert:

94A Section 73A

Repeal the section, substitute:

73A Director etc. must not institute court proceedings in relation to settled matters

(1) This section applies if:

(a) a building proceeding was instituted in a court; and

(b) neither the Director nor an inspector:

  (i) was a party to the proceeding; or

  (ii) had intervened in the proceeding; and

(c) the matter that was the subject of the proceeding was settled between the parties to the proceeding (or if more than one matter was the subject of the proceeding—one or more of those matters was settled between the parties to the proceeding); and

(d) a notice was filed in the court discontinuing the proceeding to the extent that it related to the settled matter or matters.

(2) The Director (or an inspector) must not institute a building proceeding in a court if the conduct giving rise to the proceeding was the subject of the settled matter or matters referred to in paragraph (1)(c).

(3) In this section:

building proceeding has the same meaning as in subsection 73(4).

The amendments replace schedule 1, item 95, lines 19 and 20 of the bill. The amendments provide that a director or an inspector of the Fair Work Building Industry Inspectorate is prohibited from commencing or continuing civil proceedings in a court where proceedings arise under a designated building law and involve the building industry participant and the matter of the subject of the proceedings is subsequently settled and discontinued by the parties other than the inspectorate.

I acknowledge the work of the Greens in proposing amendments to the bill and, in particular, their proposed amendment seeking to limit further proceedings when matters have settled. The government amendments will ensure that all building industry participants are not subject to multiple proceedings in relation to matters that have already been the subject of discontinued litigation as well as ensure the resources of the Fair Work Building Industry Inspectorate are more appropriately targeted to matters which remain unresolved.

Peter Slipper (Speaker) Share this | Link to this | Hansard source

The question before the chair is that the amendments moved by the minister be agreed to.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 1:

(1) Clause 2, page 1 (line 9) to page 2 (line 6), omit subclauses (1) and (2), substitute:

This Act commences on the day this Act receives the Royal Assent.

(2) Schedule 1, items 1 to 104, page 3 (line 4) to page 50 (line 15), omit the items, substitute:

1 The whole of the Act

Repeal the Act.

There is a problem with the rule of law in this country.

Peter Slipper (Speaker) Share this | Link to this | Hansard source

Will honourable members be quiet so that we can all hear what the honourable member for Melbourne is saying.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

As many of us know, the rot really set in under the former Howard government. Under that government it became normal to treat certain groups of citizens differently, to treat certain groups as having different and lesser rights to others. We saw it in the sphere of immigration; we saw it with the terrorism laws that were rushed through and that removed the very old right to silence; we saw it with Work Choices, where the minister was able to step in and take away people's right to bargain without even a hearing—a provision that, to its shame, the Labor government has retained; and, of course, we also saw it in the separate set of regulations and legislation for workers in the building and construction industry.

There is a basic principle that should continue to apply: there should be one set of laws in this country that apply uniformly to all citizens. You should not have fewer rights in this country just because you turn up to work in a hard hat and boots than if you turn up in a suit and tie. I am a firm believer in the principle that you do not make things better and solve problems by taking away people's rights. It is a pernicious attitude that unfortunately pervades through both sides of this chamber far too often.

If industrial policemen could walk into an office or if industrial policemen could walk into a shop in this country and take a worker out and require them to go to a secret hearing where they would be forced to name names, there would be an outcry. Yet it seems that this is acceptable in the building industry. We have a unique chance to undo the damage that was done by the Howard government. It may be the only chance that comes around for a long time. We now have enough support on the crossbenches to repeal this legislation once and for all. That is what my amendments will do. If these amendments are not supported, members of this House would be well advised to remember one thing: the person in a hard hat and fluoro vest that they stand next to for a photo opportunity during an election campaign one day could be hauled off for questioning the next.

If these coercive powers and this legislation remain and if we continue with two tiers of industrial regulation in this country, where you may have fewer rights because you work in the building industry, it will be purely and simply because Labor wants it to remain that way. I commend the amendments to the House.

The SPEAKER: I thank the honourable member for Melbourne. I call the honourable member for Kennedy and then I will call the honourable the Minister for Employment and Workplace Relations. Minister, you may want to listen to all the contributions before giving the government's point of view.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

In ancient history there may have been some very serious problems in the area of building and construction. There is a saying in the law that hard cases make bad law. That most certainly would be the case with this legislation. I feel very uncomfortable about the fact that discriminatory laws mean that one group of people is treated entirely differently from others. Those of us with dirt under our fingernails and calluses on our hands—there are very few such people in this place—know that at workplaces there are extremely dangerous situations. As a worker you accept that. We had very high pay at Mt Isa but we had to work in extremely dangerous situations. Where there is weak industrial representation lives can put in serious jeopardy. I do not want to take up the time of the House explaining actual cases at Mt Isa, but I know of such cases recently and a long time ago. Building, particularly high-rise construction and tunnelling construction, is equally as dangerous as mining. That is why workers in those industries get a higher pay and why they most certainly deserve a higher pay.

I heard of a series of accidents during the construction of a tunnel in Brisbane. I was put upon to go to a big stop-work rally at the tunnel. I have said this in the House before, but I think it bears saying again: I knew that because of an accident there was a person whose life was hanging in the balance. That occurred after a series of confrontations about safety at the workplace. There had been a series of bad accidents and the workers were saying it was unsafe. Then there was a very serious accident where a person's life was in jeopardy. I went to the stop-work meeting on the principle that the situation was wrong and that laws had to be changed. You cannot intimidate trade union officials in this industry, where there is a risk of accidents, because if you do it there can be terrible outcomes.

I do not know whether trade union officials were intimidated, kept away or confronted. I do know that there was a series of confrontations over safety and that a young man was seriously injured. I went there on principle. When I got there I found out that the young man was the brother of one of my very good friends, who will be running for, and will probably become, mayor of one of the towns in my electorate. I had acted on a principle, and I found out that the principal person concerned was someone who I knew. That person subsequently died. I do not know that we have improved the situation there, but I do not want to be inhibiting our protectors any longer. There are a set of laws that apply to everyone in Australia and that set apply to those protectors. If they get a bit carried away with their job as protector and start a Wyatt Earp game, then there are laws in place to restrain that sort of behaviour. But the existing laws that remove the most fundamental rights and freedoms are excessive. The right to remain silent is respected in every single jurisdiction in the world. The only exception to it is here. I have very great pleasure in backing my colleague's proposal.

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

(

Peter Slipper (Speaker) Share this | Link to this | Hansard source

The question before the chair is that the amendments moved by the honourable member for Melbourne be agreed to.

A division having been called and the bells having been rung—

As there would appear to be fewer than five members on the side for the ayes in this division, I declare the question negatived in accordance with standing order 127. The names of those honourable members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Bandt, Mr Wilkie and Mr Katter voting aye.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (10) as circulated in my name:

(1) Schedule 1, item 2, page 3 (lines 23 and 24), omit paragraph 3(d).

(2) Schedule 1, item 3, page 3 (lines 27 to 31), omit the item.

(3) Schedule 1, item 16, page 5 (lines 4 to 7), omit the item.

(4) Schedule 1, items 23 and 24, page 5 (line 23) to page 6 (line 2), omit the items.

(5) Schedule 1, item 31, page 6 (lines 23 to 26), omit the item.

(6) Schedule 1, items 36 to 39, page 7 (lines 8 to 25), omit the items.

(7) Schedule 1, item 49, page 10 (lines 6 and 7), omit paragraph 10(h).

(8) Schedule 1, items 52 to 71, page 20 (line 14) to page 39 (line 9), omit the items, substitute:

52 Part 1 of Chapter 7

Repeal the Part.

53 Division 1 of Part 2 of Chapter 7

Repeal the Division.

(9) Schedule 1, items 78 to 86, page 46 (line 10) to page 47 (line 24), omit the items, substitute:

78 Section 65

Repeal the section.

(10) Schedule 1, item 103, page 50 (lines 1 to 13), omit the item.

I will not go into the details of these amendments, because I think most people have made up their minds about which way they are going here. The amendments cut to the coercive powers. There are certain pillars upon which our society is built—habeas corpus, the fact that land cannot be taken from us, section 39 of the Magna Carta. A more modern one is the right to silence. It is accepted in every single jurisdiction in the world that I know of. You cannot have it tortured out of you; we are not the Spanish Inquisition. And that is really what the coercive powers are about: we can grab you, hold you, put you in incarceration and you will talk—and if you do not talk you are breaching the law and we are going to keep you there indefinitely.

Does any fair-minded person really believe that that is what should be happening here? The history of this is that there was excessive behaviour at one stage, going back to the days of the painters and dockers. But we have to go back 50 years now in order to quote those sorts of incidents. There may have been some excessive behaviour that sparked this legislation. But it was bad legislation at the start. It was excessive legislation. I go back to that famous legal phrase that hard cases make bad law.

We are continuing on with the bad law, all due respect to the government, because this is a cunning little two-step. It was the people on my right who decided we would deregulate the labour market. Ask the farmers about deregulation. Ask them how they fared under deregulation. When the dairy farmers were deregulated and faced these sorts of oppressive powers—

Warren Entsch (Leichhardt, Liberal Party) Share this | Link to this | Hansard source

They deregulated themselves.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

They did not deregulate themselves. That is a lie, and it is perpetrated by people who tell lies.

Peter Slipper (Speaker) Share this | Link to this | Hansard source

The honourable member will return to the substance of the amendments.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

Coercive powers are used. We do not live in a jungle. We live in a civilised society, and we must attempt at all times to assert the principle of a civilised society where we do not have coercive powers. Why is it that in no other area of the law do we have coercive powers?

In this case we are talking about safety. We are talking about riggers working on steel skeletons 40 storeys above the ground. We are talking about people going down mines, where, if a cable is not properly tied down, the entire roof will collapse. For those who think that does not happen, I was in a taxi in Mt Isa and I asked the driver, 'Why did you leave a job at $200,000 a year as a miner?' He said, 'Because I was asked to do the tie-down cables.' I said, 'But you don't know anything about tie-down cables,' and he said, 'Too bloody right I don't. I told the young engineer, "No way in the world," and he said: "Well, you're the only one who's got any experience here. No way in the world will I touch it." ' Because he did not want to appear to be stupid, this young engineer went off and attached the cables himself. Twelve minutes after crib time the entire roof of the crib came down, and it would have killed 16 people.

Peter Slipper (Speaker) Share this | Link to this | Hansard source

The honourable member will address the amendments he is proposing.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

What we are proposing here is the removal of those coercive powers now instead of having, in three years time—as the government well knows—this other mob over here coming in. They cannot even spell 'workers' rights'; it means something different to them. To the government I say: fair go; we know what you are up to here. You have appeased all your corporate bonus sponsors and friends. You have made them happy, because it was never really going to happen, because the other mob will get in and of course will never remove the coercive powers.

So that is the reason we are moving these amendments today. This is not excessive legislation that we have proposed. It is simply getting in step with the rest of Australia and the rest of the world. As the great Alfred the Great said, 'I want it to be said of we English that we are a civilised people.'

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

I am speaking against the amendments. Whilst I understand the passion in the remarks of the member for Kennedy, the government does not support them. In particular, we do not support the remarks about appeasing corporate donors—although I did find some sympathy for the member's analysis of the coalition. The government's bill reflects the recommendations of the Wilcox—

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

You shouldn't be talking about donations.

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

If the hat fits, member for Mayo. In our bill we are reflecting our election commitments. I also acknowledge the concerns raised during the debate by many members about coercive powers. In accordance with the Wilcox recommendations, the bill retains coercive powers but with important and significant safeguards. These include the requirement that a presidential member of the Administrative Appeals Tribunal be satisfied a case has been made for the use of coercive powers on each occasion they are to be used; the right for individuals to be represented by a lawyer of their choice; recognition of the right to refuse to disclose information on the grounds of either legal professional privilege or public interest immunity; reimbursement of reasonable expenses, including reasonable legal expenses, for people summonsed for examination; the requirement that all examinations be undertaken by the director or an SES officer; the requirement that all examinations be videotaped; and the requirement that the Commonwealth Ombudsman, informed by the videotapes, monitor and review all examinations and provide reports to the parliament on the exercise of this power.

In addition to these and other safeguards, this bill reflects the government's priority in focusing compliance activities where those activities are most needed. Consequently, the coercive powers are subject to a three-year sunset clause in the bill. Prior to the sunset, a review of all matters relating to compliance in the building and construction industry will occur. Any such review would of course be inclusive of all stakeholders.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I support the amendments moved by the member for Kennedy. If these amendments do not get up, building workers in this country will have fewer rights than accused criminals. Building workers will be able to be hauled in for investigation, forced to answer questions and forced to name names. I hear the minister point to some of the other amendments, including that building workers will have their expenses reimbursed. I tell you what: I reckon someone would rather have the right to silence than have their taxi fare paid—for a taxi ride to ferry them into a star chamber where they can be forced, in true McCarthyist style, to name names.

When this legislation was introduced, Labor were right there standing for the principles of the rule of law, knowing that we should not have a situation where building workers had fewer rights than accused criminals. We now have the opportunity to restore the rule of law, to restore that fundamental principle of the right to silence and to address the situation where building workers have fewer rights than accused criminals. So I heartily support these amendments.

Peter Slipper (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Kennedy be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side of the ayes, I declare the question negatived in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Katter, Mr Wilkie and Mr Bandt voting aye.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I move the amendment on sheet 3:

(1) Schedule 1, item 52, page 21 (lines 2 to 12), omit the subsections 36A(1) and (2), substitute:

This Part applies to an investigation by the Director into a suspected contravention, by a building industry participant, of an offence against a designated building law punishable by imprisonment for a period of 12 months or more.

I note that we have coercive powers remaining in this country. These are the same coercive powers that the United Nations labour body, the International Labour Organisation—of which we are members and of which we have ratified the conventions—has said, on no less than eight separate occasions, contravene international law.

When these findings were handed down under the former Howard government there was a massive hue and cry from sections of those who believe in the rule of law, from the trade union movement and from the Labor Party. These provisions are exactly the same, have the same effect and remove the same rights as under the former government. I am disappointed that the last set of amendments moved by the member for Kennedy was not successful and so I move a compromise, which is that we retain these coercive powers only for the most serious of offences.

I move that we keep them only for those offences against a designated building law, punishable by imprisonment for a period of 12 months or more. If this amendment is not supported it is the equivalent of saying that coercive powers should apply for the industrial equivalent of a parking fine. It should not be the case that any simple, merely alleged breach of the law removes your right to silence and allows you to be hauled in for questioning. It should only be, at an absolute minimum, saved for those most serious of offences. I am hopeful that this compromise amendment will even get the government's support.

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

I am sorry to disappoint the member for Melbourne. We do not support this amendment. We believe that we have put in important and significant safeguards for the use of coercive powers. We have acted in accordance with the Wilcox recommendations.

The safeguards are, of course, that a presidential member of the Administrative Appeals Tribunal be satisfied on a case that has been made for the use of coercive powers on each occasion that they are used; individuals are represented by a lawyer of their choice; there is the right 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 their reasonable legal expenses; all and every examination must be undertaken by the director or by an SES officer; and all and every examination will be videotaped and, informed by the videotapes, the Commonwealth Ombudsman will monitor and review all examinations and provide reports to the parliament on the exercise of these powers.

In addition to these and other safeguards we have put in, the bill contains a sunset clause for the coercive powers at the end of three years, which of course will be reviewed prior to the sunset.

Peter Slipper (Speaker) Share this | Link to this | Hansard source

The question is that the amendment moved by the honourable member for Melbourne be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the ayes in this division, I declare the question negatived in accordance with standing order 127. The names of those honourable members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Bandt, Mr Wilkie and Mr Katter voting aye.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (70) on sheet 2 together:

(1) Schedule 1, item 2, page 3 (lines 23 and 24), omit paragraph 3(d), substitute:

(d) protecting workplace rights through the prohibition of sham contracting arrangements; and

(2) Schedule 1, item 2, page 3 (line 26), at the end of section 3, add:

; and (f) protecting vulnerable workers.

(3) Schedule 1, item 10, page 4 (line 17), omit "59C(3)", substitute "15(4)".

(4) Schedule 1, item 11, page 4 (lines 18 and 19), omit the item, substitute:

11 Subsection 4(1) (definition of civil remedy provision )

Repeal the definition, substitute:

civil remedy provision has the same meaning as in the FW Act.

(5) Schedule 1, page 5, after item 15 (after line 3), insert:

15A Subsection 4(1) (definition of CSC )

Repeal the definition.

(6) Schedule 1, item 19, page 5 (lines 13 to 16), omit the item.

(7) Schedule 1, item 25, page 6 (line 6), omit "Director", substitute "Fair Work Ombudsman".

(8) Schedule 1, item 25, page 6 (line 8), omit "59", substitute "15".

(9) Schedule 1, item 35, page 7 (lines 5 to 7), omit the item.

(10) Schedule 1, page 8, after item 47 (after line 18), insert:

47A Paragraph 5(1)(d)

Before "operation", insert "on-site".

(11) Schedule 1, item 48, page 8 (lines 19 to 22), omit the item, substitute:

48 Subparagraph 5(1)(d)(iv)

Omit ", whether carried out on-site or off-site".

48A Paragraph 5(1)(f)

Omit "purpose;", substitute "purpose."

48B Paragraph 5(1)(g)

Repeal the paragraph.

(12) Schedule 1, item 49, page 9 (line 3), omit "Director", substitute "Establishment".

(13) Schedule 1, item 49, page 9 (line 6), omit "a Director of", substitute ", within the Office of the Fair Work Ombudsman,".

(14) Schedule 1, item 49, page 9 (line 9), omit "Director", substitute "Fair Work Ombudsman".

(15) Schedule 1, item 49, page 9 (line 9), after "functions", insert "under this Act".

(16) Schedule 1, item 49, page 9 (line 31), omit "Director", substitute "Fair Work Ombudsman".

(17) Schedule 1, item 49, page 10 (line 5), omit "participants;", substitute "participants.".

(18) Schedule 1, item 49, page 10 (line 8), omit paragraph 10(i).

(19) Schedule 1, item 49, page 10 (line 9), omit the note, substitute:

Note:   The Fair Work Ombudsman also has the functions of a Fair Work Building Industry Inspector (see section 16).

(20) Schedule 1, item 49, page 10 (line 12), omit "Director", substitute "Fair Work Ombudsman".

(21) Schedule 1, item 49, page 10 (line 13), omit "Director", substitute "Fair Work Ombudsman in relation to this Act".

(22) Schedule 1, item 49, page 10 (lines 14 and 15), omit paragraph 11(1)(b), substitute:

(b) the manner in which the Fair Work Ombudsman is to perform or exercise the functions or powers of the Fair Work Ombudsman under this Act.

(23) Schedule 1, item 49, page 10 (line 18), omit "Director", substitute "Fair Work Ombudsman".

(24) Schedule 1, item 49, page 10 (line 23), omit "Director", substitute "Fair Work Ombudsman".

(25) Schedule 1, item 49, page 10 (line 24), omit "Director's", substitute "Fair Work Ombudsman's".

(26) Schedule 1, item 49, page 10 (line 25), at the end of subsection 12(1), add "under this Act".

(27) Schedule 1, item 49, page 10 (line 28), omit "Director", substitute "Fair Work Ombudsman".

(28) Schedule 1, item 49, page 11 (line 1), omit "Director", substitute "Fair Work Ombudsman".

(29) Schedule 1, item 49, page 11 (line 3), omit "and (3), the Director", substitute ", the Fair Work Ombudsman".

(30) Schedule 1, item 49, page 11 (line 4), omit "Director's", substitute "Fair Work Ombudsman's".

(31) Schedule 1, item 49, page 11 (line 7), omit "an inspector", substitute "a Fair Work Building Industry Inspector".

(32) Schedule 1, item 49, page 11 (line 9), omit all the words from and including "Director" to the end of subsection 13(2), substitute "Fair Work Ombudsman must not delegate his or her functions or powers as a Fair Work Building Industry Inspector".

(33) Schedule 1, item 49, page 11 (lines 15 to 23), omit subsection 13(3).

(34) Schedule 1, item 49, page 11 (line 26), omit "Director", substitute "Fair Work Ombudsman".

(35) Schedule 1, item 49, page 11 (line 29), omit "Director", substitute "Fair Work Ombudsman".

(36) Schedule 1, item 49, page 12 (line 2), omit "Director", substitute "Fair Work Ombudsman".

(37) Schedule 1, item 49, page 12 (line 4), omit "Director's", substitute "Fair Work Ombudsman's".

(38) Schedule 1, item 49, page 12 (line 5), omit "Director's", substitute "Fair Work Ombudsman's".

(39) Schedule 1, item 49, page 12 (line 14), omit "Director", substitute "Fair Work Ombudsman".

(40) Schedule 1, item 49, page 12 (line 16), omit "Director", substitute "Fair Work Ombudsman".

(41) Schedule 1, item 49, page 12 (line 18) to page 14 (line 29), omit sections 15 to 22, substitute:

Part 2—Fair Work Building Industry Inspectors

15 Appointment

(1) The Fair Work Ombudsman may, in writing, appoint as a Fair Work Building Industry Inspector:

(a) a person who has been appointed, or who is employed, by the Commonwealth; or

(b) a person who has been appointed, or who is employed, by a State or Territory, or who holds an office or appointment under a law of a State or Territory.

(2) The Fair Work Ombudsman may appoint a person as a Fair Work Building Industry Inspector only if the Fair Work Ombudsman is satisfied that the person is of good character.

(3) For the purposes of subsection (1), a Fair Work Building Industry Inspector is to be appointed under the FW Act as a Fair Work Inspector but must not perform functions or exercise powers other than:

(a) in relation to a building matter; and

(b) in accordance with such conditions and restrictions as are specified in his or her instrument of appointment.

(4) A matter is a building matter if it relates to building work.

Note:   A Fair Work Building Industry Inspector is eligible for reappointment (see section 33AA of the Acts Interpretation Act 1901).

16 Fair Work Ombudsman is a Fair Work Building Industry Inspector

  The Fair Work Ombudsman is a Fair Work Building Industry Inspector by force of this section.

17 Inspectors' power to monitor compliance with Building Code

(1) Fair Work Building Industry Inspectors are also to monitor compliance with the Building Code.

(2) For this purpose, a Fair Work Building Industry Inspector has the functions and powers under Subdivision D of Division 3 of Part 5-2 of the FW Act that he or she would have if the Building Code were a fair work instrument.

(42) Schedule 1, item 49, page 15 (line 1), omit "2", substitute "3".

(43) Schedule 1, item 49, page 15 (lines 8 to 15), omit all the words from and including "is to make", substitute:

is:

(a) to determine:

  (i) policies to guide the performance and exercise of the Fair Work Ombudsman's functions and powers under this Act; and

  (ii) the priorities of, and the programs to be implemented by, the Fair Work Ombudsman in the performance and exercise of the Fair Work Ombudsman's functions and powers under this Act; and

(b) to make recommendations to the Fair Work Ombudsman about any matter that the Minister requests the Advisory Board to consider.

(44) Schedule 1, item 49, page 15 (line 18), omit paragraph 25(a).

(45) Schedule 1, item 49, page 15 (line 26), omit "the Director or".

(46) Schedule 1, item 49, page 16 (line 13), omit "the Director or".

(47) Schedule 1, item 49, page 16 (line 16), omit "the Director or".

(48) Schedule 1, item 49, page 17 (line 18), omit "the Director or".

(49) Schedule 1, item 49, page 17 (line 21), omit "the Director or".

(50) Schedule 1, item 49, page 18 (line 2), omit "the Director or".

(51) Schedule 1, item 49, page 18 (line 13), omit "Director", substitute "Fair Work Ombudsman".

(52) Schedule 1, item 49, page 18 (lines 14 and 15), omit all the words from and including "Director" to the end of subsection 26G(2), substitute "Fair Work Ombudsman and one other member".

(53) Schedule 1, item 49, page 19 (line 7) to page 20 (line 8), omit Part 3.

(54) Schedule 1, items 50 to 73, page 20 (line 10) to page 42 (line 23), omit the items, substitute:

50 Section 28

Repeal the section, substitute:

28 Building Code to be comprehensive statement

  In contracting for building work, the Commonwealth must not require compliance, by a building industry participant, with a requirement that is not:

(a) set out in the Building Code; or

(b) of a kind specified in the Building Code as being exempt from the operation of this section.

28A Building Code to be consistent with FWA instruments

  The Building Code has no effect to the extent that it is inconsistent with an instrument (however described):

(a) that has been approved by FWA; and

(b) is in force.

51 Chapters 5 and 6

Repeal the Chapters, substitute:

Chapter 5—Sham arrangements

36 Sham arrangements

(1) A person (the employer) must not engage, or propose to engage, an individual to perform building work under a contract for services where the true character of the engagement or proposed engagement is that of employment.

Note:   This subsection is a civil remedy provision (see Part 4-1 of the FW Act).

(2) A person (the employer) must not enter into a contract with another person (the contractor) under which services in the nature of building work are to be provided to the employer, if:

(a) the services are to be performed by an individual (who is not the contractor); and

(b) the individual has any ownership in, or is an officer or trustee of, the contractor; and

(c) if the contract were entered into with the individual, the contract would be a contract of employment.

Note:   This subsection is a civil remedy provision (see Part 4-1 of the FW Act).

(3) The employer's state of mind is not relevant for the purposes of subsection (1) or (2).

(4) If a person (the employer) enters into a contract in contravention of subsection (1) or (2), then, for the purposes of determining the rights and obligations of the employer and the individual in relation to the performance of services under the contract, the individual is taken to be an employee of the employer.

(5) Subsections (1) to (3) have effect as if:

(a) they were included in Division 6 of Part 3-1 of the FW Act; and

(b) the term building industry participant had the same meaning in that Act as it has in this Act; and

(c) the reference to 357(1) in item 11 of the table in subsection 539(2) that Act included references to subsections (1) and (2) of this section.

37 Effect of other provisions with respect to building work

  For the purposes of the application of section 357 of the Fair Work Act 2009 in relation to a person that employs, or proposes to employ, an individual to perform building work, subsection (2) of that section is taken to be replaced by the following:

"(2) The employer's state of mind is not relevant for the purposes of subsection (1)."

Note:   Section 357 of the Fair Work Act 2009 deals with misrepresenting employment as an independent contracting arrangement.

52 Chapter 7 (heading)

Repeal the heading, substitute:

Chapter 7—Federal Safety Officers

53 Part 1 of Chapter 7

Repeal the Part.

54 Part 2 of Chapter 7 (heading)

Repeal the heading.

55 Divisions 1 and 2 of Part 2 of Chapter 7

Repeal the Divisions.

56 Division 3 of Part 2 of Chapter 7 (heading)

Repeal the heading, substitute:

Part 1—Appointment

(55) Schedule 1, item 74, page 43 (line 1), omit "Division", substitute "Part".

(56) Schedule 1, item 77, page 43 (line 8) to page 44 (line 31), omit section 64, substitute:

64 Disclosure of information to the Advisory Board

(1) This section applies to information that is:

(a) information acquired by the Fair Work Ombudsman in the course of performing functions, or exercising powers, under this Act; or

(b) information acquired by a Fair Work Building Industry Inspector in the course of performing functions, or exercising powers, as a Fair Work Building Industry Inspector; or

(c) information acquired by a member of staff referred to in subsection 697(1) of the FW Act in the course of performing functions, or exercising powers, as a member of staff in relation to this Act; or

(d) information acquired by a person in the course of assisting the Ombudsman under section 698 of the FW Act, or in the course of performing functions, or exercising powers, as a consultant under section 698 of the FW Act in relation to this Act; or

(e) information acquired by a person in the course of assisting a Fair Work Building Industry Inspector under section 710 of the FW Act in performing functions, or exercising powers, as a Fair Work Building Industry Inspector.

(2) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information to the Advisory Board if the Fair Work Ombudsman reasonably believes that the disclosure is likely to assist the Advisory Board in performing its role.

Note:   Section 718 of the FW Act also deals with disclosure of information by the Fair Work Ombudsman.

(57) Schedule 1, items 78 to 86, page 46 (line 10) to page 47 (line 24), omit the items, substitute:

78 Subsections 65(2) to (8)

Repeal the subsections.

(58) Schedule 1, item 88, page 47 (line 32), omit "Director", substitute "Fair Work Ombudsman".

(59) Schedule 1, item 88, page 48 (line 3), omit "Director", substitute "Fair Work Ombudsman".

(60) Schedule 1, item 90, page 48 (line 10), omit "Director", substitute "Fair Work Ombudsman".

(61) Schedule 1, item 91, page 48 (lines 11 to 13), omit the item, substitute:

91 Subsection 71(1)

Omit "ABC Commissioner may", substitute "Fair Work Ombudsman may, with the leave of the court,".

91A Subsection 71(2)

Omit "ABC Commissioner" (wherever occurring), substitute "Fair Work Ombudsman".

(62) Schedule 1, item 92, page 48 (line 16), omit "Director", substitute "Fair Work Ombudsman".

(63) Schedule 1, item 93, page 48 (lines 17 and 18), omit the item, substitute:

93 Section 72

Omit "ABC Commissioner may, by giving written notice to the General Manager of FWA", substitute "Fair Work Ombudsman may, with the permission of FWA".

(64) Schedule 1, item 94, page 48 (lines 19 and 20), omit the item, substitute:

94 Sections 73 and 73A

Repeal the sections, substitute:

73 When exercise of powers and proceedings must cease

FWA matters

(1) Where FWA is exercising any powers in relation to an issue that is related to a building matter, it must cease exercising those powers if it is satisfied that the issue has been settled or resolved by the building industry participants involved in the issue.

Court proceedings for civil remedy provisions

(2) Where there is a proceeding before a Court pursuant to a civil remedy provision, and the proceeding involves an issue that is related to a building matter, the Court must cease dealing with the proceeding in so far as it relates to the issue, if the Court is satisfied that the issue has been settled or resolved by the building industry participants involved in it.

(65) Schedule 1, item 95, page 48 (line 23), omit "Director", substitute "Fair Work Ombudsman".

(66) Schedule 1, item 96, page 48 (line 25), omit "Director", substitute "Fair Work Ombudsman".

(67) Schedule 1, item 100, page 49 (lines 11 to 16), omit section 76, substitute:

76 Court not to require undertaking as to damages

  If the Fair Work Ombudsman or a Fair Work Building Industry Inspector is an applicant in court proceedings under the FW Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the court cannot require the Fair Work Ombudsman, the Fair Work Building Industry Inspector or another person, as a condition of granting an interim injunction, to give undertakings as to damages.

(68) Schedule 1, item 101, page 49 (line 19), omit "Director", substitute "Fair Work Ombudsman".

(69) Schedule 1, item 102, page 49 (lines 23 to 27), omit paragraphs (a) to (e) of the definition of protected person, substitute:

(a) the Fair Work Ombudsman;

(b) a Fair Work Building Industry Inspector;

(c) a person assisting a Fair Work Building Industry Inspector under section 710 of the FW Act;

(d) a member of staff referred to in subsection 697(1) of the FW Act;

(e) a person assisting the Fair Work Ombudsman under section 698 of the FW Act;

(ea) a person engaged as a consultant under section 699 of the FW Act;

(70) Schedule 1, item 103, page 50 (lines 5 to 11), omit paragraphs (l) and (m).

These amendments do different things, but they are very important. One thing they do is to implement the government's election platform: that is, they say that this new entity—which is obviously now well on its way to being set up to be a special secret police in the building industry—should not be the kind of autonomous juggernaut that was established by the former government, the kind of juggernaut that gave the lie to the idea that this is about preserving the rule of law because, when you look at who it turned its attention to, the statistics speak for themselves.

In the period between October 2005 and June 2011, the ABCC commenced 86 prosecutions against workers, their representatives and their officials, and five against employers. The situation did not get any better with the change of government because, in the financial year 2009-10, there were 29 proceedings commenced against workers, their representatives and officials, and none against employers.

That is why it is so critical that these amendments do what the government had actually proposed in seeking election—that is to say that this new entity will not be a stand-alone, autonomous institution that is able to continue a process of litigating against a particular sector of the community and a particular side of that sector but, instead, will come under the Fair Work Ombudsman as an administrative division of the Fair Work Ombudsman.

The amendments do a number of other things. I will not go through them all, but I will draw the House's attention to a redirection of the new inspectorate's activities to some of the real problems in the industry. These amendments would require the new inspectorate to deal with the very real problem of sham contracting, and that is where—and we know it happens, and even the current Australian Building and Construction Commissioner tells us that it happens, and it defrauds the Commonwealth's purse of revenue—someone turns up to work and the employer says, 'We'll give you a job, provided that you incorporate yourself or come back with an ABN, and you won't get sick leave, you won't get superannuation and you'll be responsible for taking out your own WorkCover insurance.' This practice is rife. These amendments will tighten up the definition of sham contracting and require the inspector to pay attention to it.

The amendments will also require the inspector to pay attention to another critical issue: the exploitation of overseas labour in this industry. We have no problem with people coming from other countries and working here, but they should be entitled to the same wages and conditions as local workers. We know that this does not happen in the construction industry. We have routinely seen instances over the last couple of years—and it has usually been the union that has exposed it, not a government inspectorate because they are too busy prosecuting the unions—of people being drastically underpaid. It is about time that we redirected the government inspectorate's attention to this serious problem, and that is what these amendments will do. I commend the amendments to the House.

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

I listened carefully to the contribution of the member for Melbourne but I have to advise that the government will not be supporting his amendments. The government's position on the ABCC has been clear for a very long time. We have committed to the Australian people that we will replace the ABCC with a new body to provide a balanced framework for cooperative and productive workplace relations in the building and construction industry—a body that is part of our fair work system but which is a specialist body. We have committed to a strong building industry regulator to ensure lawful conduct by all building industry participants, a strong set of compliance arrangements and penalties for conduct in contravention of workplace law. We committed to a review of building industry regulation and we committed to introduce safeguards for the use of coercive examination powers to achieve the balance required to ensure compliance with the law and the fair treatment of individuals. This bill honours our government's commitments.

I do acknowledge the work of the Greens in proposing this set of amendments to the bill and in particular their proposed amendment seeking to limit further proceedings when matters have settled. The government understand the policy intent of the Greens amendments in limiting the exposure of the building industry participants to multiple and ongoing proceedings. But, as the House has seen in the last half hour, the government have its own amendments which limit the capacity for the new Fair Work Building Industry Inspectorate to commence or continue litigation, but only where the litigation on the same subject matter has been discontinued because the building industry parties have settled their difference. We want to ensure that all building industry participants are not the subject of multiple proceedings in relation to matters that have already been the subject of discontinued litigation, as well as ensuring the resources of the Fair Work Building Industry Inspectorate are appropriately targeted to matters which remain unresolved.

Peter Slipper (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the honourable member for Melbourne be agreed to.

A division having been called and the bells having been rung—

Without wanting to be too pedantic, I remind those honourable members who do not have a jacket on that, while it is certainly in order to come into the chamber to vote wearing whatever you are wearing at the time, it is technically disorderly to remain in the chamber during debate. While I do understand that we have a number of divisions, and I probably should not be too strict on this, I would ask honourable members to note this for the future.

I have also had complaints from a number of honourable members that they are not able to hear other honourable members in the chamber because of the strength of the PA system. I have asked the Clerk to look into that matter.

As there are fewer than five members on the side for the ayes, I declare the question negatived in accordance with standing order 127. The names of those honourable members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Bandt, Mr Wilkie and Mr Katter voting aye.

The question now is that this bill, as amended, be agreed to.

Question agreed to.

Bill, as amended, agreed to.