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

Labor opposes the Building and Construction Industry (Improving Productivity) Bill 2017. Legislation for the reintroduction of the Australian Building and Construction Commission passed the parliament in the final sitting week of last year, as you will remember, Mr Deputy Speaker. It passed after a protracted and bungled process which began all the way back on 14 December 2013. It passed in a late sitting in the last week of the year with the support of many on the crossbench, including Senators Hinch, Xenophon and Leyonhjelm and senators from Pauline Hanson's One Nation. In fact, the specific provision we will amend here today, if the government has its way, was proposed by Senator Hinch and supported not only by the crossbench but also by the government.

In our view, we have dealt with this matter, a matter that started, as I said, in December 2013 with the introduction of the ABCC bill into this place. Of course, that bill was rejected by the parliament at that time, and a compromise was reached and, indeed, supported by the senators I have just mentioned. So, having settled the law with respect to the building industry—according to the Prime Minister a vital economic reform—the government now wants to trash its own law.

Companies that have enterprise agreements which are legal but not code compliant are nonetheless able, until 29 November 2018, to submit expressions of interest and tenders and be awarded Commonwealth work. That is the law as it stands. The government is proposing to further amend the Building and Construction (Improving Productivity) Act 2016 less than three months after its passage to wind back the exemption period for non-code-compliant companies from two years to nine months, and limit the exemptions so that companies that are not code compliant may tender for but not be awarded any Commonwealth building work within the nine-month exemption period. The effect of this amendment on those companies that have signed agreements, approved by the Fair Work Commission pursuant to the Fair Work Act, which are legal but not code compliant is that they will have to make a commercial decision not to tender for Commonwealth building work or they will have to seek to renegotiate their agreements with parties to those agreements in a very limited time frame. According to news reports, it is estimated—and, indeed, it was confirmed in the very brief Senate inquiry yesterday—that there are over 3,000 enterprise agreements that were made pursuant to the act, which were made lawfully and in good faith by employers, their workforce and unions, and they will have to be renegotiated before August this year.

It is important to remember that all of those companies that negotiated with unions in good faith and entered into legal enterprise agreements over the last three years acted prudently and reasonably. What was not reasonable for them to have to do was to anticipate a law that may or may not be enacted by the parliament. In fact, on the basis of the rejection of the code throughout the course of the last parliamentary term, it was quite reasonable, and indeed entirely proper, for employers not to have regard to the code, which had no legal basis, no legal standing whatsoever, when they negotiated and settled those agreements. It is also important to remember that the code they are supposed to comply with not only was not law when those agreements were made, as I have just said, but had been rejected time and time again by the parliament.

While Labor does not support the existence and substance of the code, the only sensible thing for the government to do would be to exempt those companies from the operation of the code until their existing enterprise agreements nominally expired. In other words, if an employer under the law entered into an agreement with its workforce and relevant unions then it would be entirely unfair for them now to be punished for negotiating those agreements in that manner—yet that is exactly what the government seeks to do. It seeks to punish significant large, medium and small employers who entered into agreements before the bill was enacted last year. Of course, this legislation will further punish those companies and make it even more difficult for them.

The advice we gave the government at the time is that they should have waited for the nominal expiration date of those agreements, which would have been only fair. But, of course, common sense is rare in the Turnbull Liberal government. Instead, we have this rushed, ideological, damaging piece of legislation, which will throw the industry into chaos. How exactly the government believe that this will improve productivity is anyone's guess.

You might recall the Prime Minister claimed victory after the passage of the ABCC bill in December last year. He was ecstatic, in fact. He stood at the dispatch box—I was opposite—and he lauded the agreement and effectively said that this was the end of the matter. He went on to say that this bill was a vital economic reform. He was, if you like, crowing about his success. Whilst we did not agree then and do not agree now with the substance of the bill or the code, we believe it is quite improper now for the government to renege on that settlement.

However, Labor, the crossbench and, most importantly, the industry have every right to believe that the bill that passed last year would be the end of the matter, would be settled law. On the passing of the ABCC legislation last year, the Prime Minister confirmed in this place:

Up until 29 November 2018, it will allow building industry participants whose enterprise agreements are not Building Code compliant to tender for and be awarded Commonwealth-funded building contracts.

Unfortunately, what the Prime Minister said in December last year has proven to be a lie, has proven to be untrue, because, while he said one thing in December, this bill fundamentally contradicts that commitment. Less than three months later, the government is shifting the goalposts again. Let there be no mistake. If the bill passes, it will be a pyrrhic victory, as there will be chaos, uncertainty and potentially industrial conflict in the building and construction industry.

Sarah Henderson (Corangamite, Liberal Party) Share this | Link to this | Hansard source

Mr Deputy Speaker, on a point of order: I would ask that the member withdraw the unparliamentary term that he used in his speech just a minute ago.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

In the context in which it was used, I do not believe it was unparliamentary, so there is no point of order.

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

The government, in collusion with a number of Senate crossbenchers, is now looking to rewrite the legislation, pulling the rug out from under the industry. I am particularly disappointed in Senator Xenophon, who must know the consequences of his support for this irresponsible approach. As to why Senator Hinch has taken this action is anyone's guess, because it is almost impossible to know what he stands for on any given matter on any given day. He did remind us in the Senate inquiry yesterday, though, that it was not he who proposed the 29 November 2018 date as the transition period for the code to apply. It was the Prime Minister who wrote, on a note that he passed across the table to Senator Hinch in December last year, 'Let us have a two-year grace period for those companies.' It is the Prime Minister who proposed the amendment that was reflected in the bill last year, and it is that change that is occurring which really shows how dishonourable the Prime Minister has been with respect to this matter—very dishonourable indeed. The fact that Senator Hinch has gone along with the change is also very, very disappointing. He engaged with many stakeholders over the course of the debate, he gave undertakings, he stood up in the parliament, he moved the amendment and now he seeks to change that.

With respect to Senator Xenophon, he should know better. This is a senator who has been in the parliament for a considerable time, having of course been in the South Australian parliament for a long time before that. More to the point, it is Senator Xenophon who often likes to portray himself as a friend to Australian workers—a friend of the worker, as he would like to see it. Senator Xenophon trumpets the fact, for example, that he supports Australian-made products, and yet, if he supports this code in either of the two parts, he will be denying the ability for employers and unions and their workforces to negotiate Australian-made protective clothing in enterprise agreements. Here is a senator who has said he supports Australian-made products. He will be denying provisions that currently exist in enterprise agreements in the building industry and therefore denying Australian-made products to be reflected in those agreements, as a result of his support for the code.

He lays claim to be concerned also by the growth of asbestos related diseases and deaths. In fact, Senator Xenophon is the co-patron of the South Australian Asbestos Victims Association. As the co-patron of what is a remarkable organisation—and I have had the great pleasure of attending the remarkable commemorations that they hold each year—has he spoken to that organisation and said that he supports a code that will remove from enterprise agreements in the building industry the ability to have accredited training on asbestos safety?

If this code is to take effect, whether it is in August this year or later on, there are provisions that currently exist in certain enterprise agreements that will be struck out of those agreements if the employer chooses to be code compliant. I will refer to one example. It is a Queensland enterprise agreement that says: 'The employer agrees that it will, within three months of the commencement of this agreement, schedule a nationally accredited asbestos awareness training course for each employee covered by this agreement. Further, the employer agrees that it will, within three months of each new employee commencing employment, ensure that the employee successfully completes a nationally accredited asbestos awareness training course.' That provision will be struck from enterprise agreements across the building industry if the code takes effect.

Further to that, we have heard Senator Xenophon, Senator Hinch and, indeed, One Nation senators talk about their concerns about temporary workers getting jobs before and instead of unemployed construction workers in the industry, and yet there are provisions that go to the use of temporary work visas that will be struck out of agreements across the country. Firstly, in a Victorian agreement there is a clause that says the following:

The Employer will ensure all Employees are lawfully entitled to work in Australia performing work under the Agreement. Before employing overseas workers [on] any temporary visa, the Parties will confer to ensure that all parties are satisfied that all laws in relation to sponsorship, engagement and employment of a person who is not an Australian citizen.

That form of regulation, to make sure there is not exploitation or abuse of the visa system, will be struck from any further agreement, whether it is in Victoria or in any other state, in the building industry. Further to that, there is a provision in an enterprise agreement in Queensland that says, if there are to be redundancies in the building industry, local workers will not be made redundant before temporary work visa applicants. The provision in this Queensland enterprise agreement says:

In the event of redundancies required during the life of the Agreement, in occupational classifications where both Australian workers and temporary foreign workers are employed, temporary foreign workers will be made redundant first, given that temporary foreign workers are intended to supplement the Australian workforce.

That provision, which prefers local workers and ensures that they are not sacked before overseas workers, currently is in an enterprise agreement in the building industry in Queensland—and it will be disallowed as soon as the code takes effect. So there is no point One Nation, Senator Hinch or Senator Xenophon talking about local workers or Australian workers when they are supporting a code coming in earlier than the government intended and actually precluding any provisions in those agreements that will protect the interests of Australian workers.

These are the types of provisions, by the way, that can be in enterprise agreements in any sector of Australia other than the building industry, and yet the government supports this anti-worker legislation and is being supported at this time by Senator Xenophon, Senator Hinch, One Nation senators, Senator Leyonhjelm and others. We urge those crossbench senators to rethink their position because the effect of this code has a consequence that is completely contrary to what they say they support when they go back to their constituencies. They should rethink their position in relation to the code more generally, but at the very least, if they do not change their position on the code, they should reject this bill because it brings forward the implementation of the code, after the Prime Minister made a commitment that there would be a two-year period of grace before the transition took effect. They are some of the provisions that would be struck out of enterprise agreements if the employers were able to settle the changes to become code compliant.

Senator Xenophon likes to talk about his support for Australian made products. I mentioned earlier protective clothing and how there would be no right for agreements to ensure that protective clothing is made to comply with relevant Australian standards. A provision which currently is in Probuild enterprise agreements states: 'All endeavours will be made to provide clothing that is Australian made.' That provision will have to be struck out if they want to tender for Commonwealth work. So you have a situation where the Commonwealth government is imposing restrictions not only on workers but on unions and employers from agreeing on having Australian made protective clothing. If they do not strike this provision out of their enterprise agreements, they will not be allowed to tender for Commonwealth funded work. There is a bit of a cruel irony to this situation, but that is the effect of the code—and, indeed, the code will be brought forward to August this year if this bill passes. There are a whole series of implications for employers, their workforce and unions in relation to what is allowable and what is not allowable in the building industry. It is very important for people to understand that provisions that would no longer be allowed in the building industry are entirely permissible in every other industry in this country.

This is the reason why Labor are very adamant that we oppose this bill. That is why we have always opposed the code. That is why we will oppose the bringing forward of the implementation of the code—because it has this very significant adverse impact on the ability of employers, their workers and unions to negotiate in exactly the same manner, with the same rights and entitlements, as every other worker, employer and union in this country.

These are things that the Senate crossbench should be seriously contemplating. They may say they were not aware of the implications of the code. You might remember much was made of the provisions of the bill—it was undemocratic; it was in breach of civil rights; it was in breach of many of the International Labour Organization conventions that this country has signed up to. That is true. Indeed, much of the debate that was had in this place over the course of the three years since this bill was first introduced did focus very much on the bill itself. It focused on the way in which the onus in health and safety matters was going to shift to require the employee to justify why they may have raised health and safety matters, the fact that there were limited rights of legal representation, and the fact that there were powers that were, we would say, excessive, particularly in the civil jurisdiction. It is true to say that is where much of the debate focused in this place. However, the issue with respect to the bill before us today is the effect the code will have upon the capacity and rights of not only workers and unions but employers to bargain in good faith in this industry. As I say, it would deny the rights of provisions that go to asbestos safety training that would be accredited. It would deny the rights of the parties to have visa provisions that would temper and regulate the use of temporary workers in the industry.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour. The shadow minister will have an opportunity to conclude his speech at that time.