Sam Dastyari (NSW, Australian Labor Party) Share this | Hansard source

Yes, the building developers' Christmas party. I will take that interjection and I will nod as though I know whether or not it is true. But where is everybody—this debate that was so important? As Senator Di Natale pointed out earlier, the government is still trying to stitch together its own desperate deals to get this piece of legislation passed.

I have a lot of respect for Senator Xenophon. Senator Xenophon is very passionate about water issues as they relate to South Australia. Look, the water debate is worthy of debate in this chamber and in this parliament. But what does it have to do with the ABCC? And Senator Leyonhjelm—again, I do not necessarily agree with a lot of what Senator Leyonhjelm stands for, but I respect him as a senator, I respect him as a policy maker and I respect him as someone who has grown to become a friend. But what does the ABC have to do with the ABCC? I am not quite sure that the question of whether or not the ABCC is worthy of being passed as legislation has anything to do with whether or not public meetings are going to be held for the ABC board. Again, if that is something the Senate wants to look at—have committee inquiries into and look at improving the ABCC and have a debate about exposure and public consultation—then let's have that debate. I suspect I may end up on a different side than Senator Leyonhjelm, and that is fine. But none of that has to do with this bill.

This is another plank in a relentless attack on the trade union movement, because what we have opposite is a divided government that can only barely agree on what they hate. And they hate the trade union movement. They hate collectivism. They hate workers' rights. That is the tiny bit of glue that is holding together a government that has, for all intents and purposes, already fallen apart.

I will let you in on a bit of a secret. I mentioned a little earlier the lacking elements of my social life. Yesterday morning I did get up quite early to have the chance to see the member for Warringah, a backbencher, on television. Being a recently joined backbencher myself, I feel that we have a bit in common. The member for Warringah was giving some advice to the government about having a bit of backbone, about actually standing up, about sticking up for the important principles they believe in, like the 2014 budget. I will be honest: I do not necessarily agree with what the member for Warringah believes in. I do not agree with what he stands up for. I do not agree with him on what he sees as priorities. But—and I never thought I would say this—at least he stood up for something.

This is really Seinfeld now: this is a government about nothing. Senator Cash runs around and revs up these union issues to try to hold the party together, to try to stick their movement together, and says, 'We're conservatives and we can do this and we can do that and we can all hate together.' But if you scratch the surface you realise there is nothing there. You realise that there is actually no basis. There is a desperation here that has resulted in them trying to ram this legislation through.

I have to say: put up or shut up. You went to a double-D election; bring on the double D. We are not afraid. We are not afraid of having this debate. The only people who are afraid of an election right now are the conservatives, who know that any support they may have had a little while ago has already fallen apart. Let's not pussyfoot around this issue. There is not a genuine need for the ABCC if the real goal here is about improving union governance. This bill has nothing to do with productivity. The government's own industry monitor has shown that construction sector labour productivity over the past five years has actually been increasing. So, the industry itself is getting more productive. It is nothing more than an ideologically based attack, a politically motivated attempt to crack down on the ability of unions to advocate for workers' rights. And productivity, as this government tries to phrase it, is not about improving the sector. The sector has been improving. There are measures that can be taken and that we can actually debate that are about making better use of workers' skills.

No: productivity, the way this government is talking about it, is only through the restricted frame of taking away workers' rights, because real productivity is about making the most of our workers, not the productivity this government has gone around talking about. This bill will treat construction workers as second-class citizens by singling out the industry for particular oversight and regulation. At the heart of that, there is a condescending arrogance that this government believes they are somehow better than these construction workers, that they should somehow be treated differently and that a different set of rules should somehow apply to them and not everyone else. Where is the focus in this bill on the things that matter—safety and the fact that people are dying in the construction industry in this country and that workers are being ripped off?

Senator Cameron has done an incredible job in exposing the phoenixing behaviour that has gone on. I was fortunate enough to chair an inquiry last year looking at the act of phoenixing—an inquiry in which Senator Cameron really led the work. Phoenixing is where a construction company will not pay subcontractors, will force itself into faux liquidation and will then reappear a few days later under a different name or as a different organisation with a different set of directors, be they relatives—for example, cousins—or whatnot. They reappear under a different banner and go about doing the same thing—ripping off workers, taking advantage of them and hanging them out to dry. After all the work that Senator Cameron did in that space, after the committee report and after the recommendations, what does the government do in a space that is affecting workers' lives, causing workers to be ripped off and—as the inquiry uncovered—helping drive some of the poor behaviour in the industry. Subcontractors in the industry were so desperate to get paid that they were resorting to tactics which none of us would encourage or support but which we would perhaps recognise as the actions—in some cases, the misguided actions—of desperate people trying to make sure they got paid. This was the tragic outcome of a set of circumstances that should never have been allowed—even though none of us would ever condone that type of activity.

Where is the focus in this bill on the use of temporary visa holder workers to undermine Australian jobs, security and conditions? Where is the focus in this bill on the use of nonconforming building products? The Senate Standing Committees on Economics has looked at this area time and time again and highlighted these issues. The insolvency of builders keeps going on and on and has led to phoenixing. This is another attempt by this government, through the back door, to rip away workers' rights and conditions. We saw them do it with Work Choices. We saw them try to do it again. I am not a fan of former Prime Minister Mr Howard. His policy and his politics were obviously different to mine, but at least he had the decency to be up-front with what he was trying to achieve, and he allowed a public debate—a debate that people like me did not support and fought against. But this is Work Choices by stealth; it is Work Choices through the back door. It is not even an attempt to bring it through the back door—it is through the neighbour's fence; it is through the garage!

Clause 34 this bill allows the minister to issue a building code which is to be complied with by persons in respect of building work. On 17 April 2014, the government published an advance release of the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014. A revised advance release was announced on 28 November that year. This new building code will come into effect when the Building and Construction Industry (Improving Productivity) Bill—the bill we are talking about today—commences as an act. The code itself is outrageous. It is a rort. Under the 2014 code, enterprise agreements will not be able to contain customs and practices that are lawful in any other context. In other words, in any context other than in the code that this bill will activate, these practices would be lawful. In fact, when it commences, the provisions of the code will apply retrospectively to any enterprise agreements made on or after 24 April 2014. I want to stress that point to some of the crossbenchers—in the unlikely event they are listening to this. The idea of activating retrospective legislation should be worrying to everybody who believes in the fundamental rule of law.

Businesses with agreements that are already in force at that time but that do not meet the code's content requirements will not be eligible to tender for, or be awarded, Commonwealth funded building work. The code prohibits clauses in workplace agreements ensuring that employees have security of employment. The code prohibits clauses against casualisation. The code itself bans clauses that prohibit sham contracting. Let us just be clear about that: you cannot have a clause that bans sham contracting. Somehow this is meant to improve the situation! The code outlaws clauses that place limits on weekly hours of work. The code outlaws clauses requiring employers who want to employ overseas workers to ensure they are in Australia legally and able to work legally. I want to touch on that for a moment. What logic could be behind the existence of a code that does not allow you to stipulate that illegal workers cannot be used? How can that have the purpose of improving the legislation? The code prohibits clauses that mandate that employees can take public holiday long weekends off work to be with their families. In other words, this is a code that can cancel Christmas! But do not take my word for it—I am sure some of you will not. In October 2016, the McKell Institute published a report entitled Unfounded and unfair: an analysis of the building and construction code (2014).The report highlighted that the code is a fundamental change to the existing code of practice and will effect a significant detrimental impact on the Australian construction industry. The code of conduct seeks to undermine the ability of employers to make enterprise bargains directly with their own workforce. The code, which is heavy with prescriptive red tape, is specifically designed to limit the ability of employers to manage their own staff. It is deliberately designed to limit their ability to agree on conditions that are commercially right for that business. This significantly changes the enterprise-based workplace relations system that has underpinned productivity growth in Australia since the 1990s.

Employment law expert and Adelaide law school professor Andrew Stewart has told TheGuardian the code is a source of significant concern in the construction industry. He said that 'virtually every major builder will be non-compliant.' He said that the code could be changed to only bar agreements struck after it was passed, in which case it would have 'minimal practical effect', or it would apply retrospectively and 'force building companies to renegotiate their enterprise agreements simultaneously causing industrial mayhem.' Stewart said that the code barred any clause with any impact on productivity, or the right of companies to manage their own businesses. He said that it essentially gives Fair Work Building and Construction director Nigel Hadgkiss, or whoever is the director of the ABCC, discretion to object to any union agreement on a wide number of bases.

This is bad legislation that has been handled poorly. The fact that this legislation, which the government pushed and said was going to be such an urgent and important piece of legislation, is being handled in this manner demonstrates that this is a government that has lost touch, lost focus and has no agenda. The notion that we will be here till the end of everyone having their second reading speech and that we will be returning tomorrow until midnight as part of a desperate bid to try and ram through some kind of last-minute deals—sneaky agreements—to get this legislation passed says so much about what this government, after a few short years, has become. The fact that, after all this time, it is running around stitching weekend deals with crossbenchers, promising whatever it can promise, getting whatever it can get and horsetrading on any other piece of legislation, with the sole focus or emphasis on getting a dirty deal done on this bill, says a lot about it. It says a lot about this government that it has got to this stage this early.

It is hardly surprising that, when we look at the sitting schedule for next year, so few weeks have actually been planned, because this is how the government appears to be wanting to do its business. It wants to create artificial emergencies, to try to ram legislation through, rather than handling it in a sensible, methodical way. If you shine a light on the details of this piece of legislation, it does not stand up to the scrutiny. It is a bad bill. It is a bad bill that does not warrant how it has been treated. More importantly, it does not warrant being passed by the Australian Senate. I urge my colleagues, crossbench senators and the minor parties to have a close look at the detail of this legislation, because this is and remains a bad bill. (Time expired)