Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I rise to join this debate on the government's Building and Construction Industry (Improving Productivity) Bill. Labor opposes this bill for several reasons. First, because far from improving productivity in the building and construction industry, the bill will lead, again, to a deterioration in productivity in this industry. Second, this bill will undermine efforts to improve safety on building sites in this country. There are already far too many workers injured at work—or worse, in Australia's building and construction industry. Rather than improving workplace safety in this industry, this bill will simply increase the risks to the safety of building workers. Third, this bill represents an attack on the legal rights of individual building workers. It has rightly been said that under this proposed legislation, workers in the construction industry will have fewer legal rights and lesser legal rights than criminals such as drug dealers. Finally, Labor opposes this bill because it is the latest phase in the Turnbull government's policies to undermine and to attack the Australian trade union movement.

As I said in debate on the registered organisations bill last week, the Liberal Party have never accepted that trade unions play a legitimate and important role in our workplaces and in our society. The fact is that Liberals always want to attack the trade unions. It is in their DNA. They always want to deregulate the Australian Labor market and they always want to cut wages and conditions and reduce rights and protections for working people. So we know what this bill is: it is another instalment in the Liberal Party's pursuit of that hardline, anti-union, anti-worker agenda—a bill motivated by ideology not by evidence. Because, what the evidence shows is that the changes proposed under the bill will be bad for productivity, bad for workplace safety and bad for workers' legal rights. That is why this Senate has previously rejected this legislation and why Labor will continue to oppose the bill. No amount of tinkering by the government to garner crossbench support can fix the fundamental flaws at the heart of this bill, and no amount of cross-trading that this government is prepared to engage in will alter the fundamentally flawed nature of the legislation.

It is a bill that will introduce a draconian system of regulation for more than a million workers in Australia's construction industry, a draconian system of regulation which has already been put to the test under the former Liberal government and found to be deeply unfair and a resounding failure, even on its own terms. At the core of this bill is the establishment of a new regulator for the construction industry: the Australian Building and Construction Commission. What would this be? This would represent a return to the failed regulatory system that was in place under the former Howard government. The government, as is its want, has given this bill another Orwellian title; this time it is the Building and Construction Industry (Improving Productivity) Bill. I say it is Orwellian because we know from past experience that the bill's key changes will reduce productivity, not improve it.

The Australian Building and Construction Commission was established by the former Howard government in 2005. It operated for nearly seven years from late 2005 to 2012, when it was replaced by the Fair Work Building Inspectorate. That means we do have something which is rare in public policy debates—we have a before and after experiment, which would allow us to assess the real world impact this bill would have. And what we know from that real world impact is the ABCC was a negative. When it comes to productivity, the evidence is clear: the ABCC was a negative when it was last in place.

The Australian Bureau of Statistics figures show that productivity in the construction industry increased at a faster pace in the seven years prior to the ABCC being established than it did in the seven years after it was established. And the data shows productivity in the construction industry has been higher every year since 2012, when the former Labor government replaced the ABCC with the Fair Work Building Inspectorate. The government's rhetoric is that productivity is low in the Australian construction industry, and they persist in telling all and sundry that it is all the fault of the workforce, it is all the fault of the workers and it is all the fault of the unions. This rhetoric is belied by the government's own export and investment agency, Austrade.

Austrade has produced figures for international investors which show the Australian construction sector is 19 per cent more productive than global competitors. In fact, Austrade's analysis shows that the Australian construction industry, when measured against global competitors, is more productive than several other industry sectors, including banking, media and retail. So the government has singled out for an attack an industry which actually has a better relative productivity performance than many other industries, an industry that has a better productivity performance relative to global peers than many other industries. And the government have also attacked construction workers and their unions over the issues of costs, and claim that the ABCC is needed to stem excessive labour costs. Again, this is not borne out by the evidence. Analysis by the Parliamentary Library shows that between 2004, when the ABCC was last in place, non-residential building costs increased faster than CPI. So the system this government are promoting with this bill, the re-establishment of the ABCC, has already been associated with construction costs rising at a faster pace than inflation.

Now I want to turn to workplace safety. This is a government that talks a lot about productivity and costs—even though its facts are wrong—and attacks trade unions and the building industry, a lot. You know what it talks a lot less about and what this minister talks a lot less about? The welfare and safety of workers. We know from tragic experience, safety is a critical issue in this industry. It is an industry where too many families have seen their loved ones go to work, only to come home with serious injuries, and some have not come home at all. Safe Work Australia's figures show that over the 11 years, from 2003 to 2013, there were 401 work-related fatalities in the construction industry. That is an average of 36 workers a year losing their lives on building sites or on building jobs. Over the 13 years from 2000-01 to 2012-13, an average of 12,600 workers were seriously injured every year—that is an average of 35 serious injuries every day. We know from Safe Work Australia figures that construction has one of the highest incidences of serious workplace injuries in the Australian economy—17 serious workers compensation claims for every 1,000 workers in the construction industry in 2012-13, and the fourth-highest serious injury incidence rate amongst all industries in Australia.

We on this side of the chamber take occupational health and safety seriously. We recognise that this is a particular challenge for the construction industry, a challenge which requires commitment by all: by workers, by unions, by employers—both head contractors and subcontractors—and by governments and regulators. This is another reason why we oppose this bill and oppose the re-establishment of the ABCC. Under this bill, workplace meetings over safety issues would be made illegal, and individual construction workers could be fined $36,000 for attending such meetings to deal with safety issues. The ABCC has a track record of prosecuting union officials and workers for taking action on safety. The case of the Adelaide rigger, Ark Tribe, is well known. In 2008, Mr Tribe attended a meeting on an Adelaide building site, where workers discussed safety problems and drew up a list of safety issues that needed attending to. The ABCC used its powers to call him to a secret interview. It then prosecuted him when he refused to attend. Our concern is that this system and the re-establishment of the ABCC would simply lead to an increase workplace injuries. Those concerns are not based on a fantasy; they are based on the conduct of the ABCC the last time it was in place, and on the safety outcomes during that period. When the ABCC was last in place, fatality rates for construction workers doubled from an average of 2.5 per 100,000 workers to five per 100,000 workers. In 2007, when the ABCC was last in place, worker deaths on construction sites hit a 10-year high with 51 workers killed. After the former Labor government replaced the ABCC, workplace deaths declined by 60 per cent.

Mr Acting Deputy President O'Sullivan, we should never forget the real-world tragedies that statistics like the ones I have outlined represent. They are about workers losing their lives, and the suffering of their families and loved ones. One of these tragic cases was the death of Ben Catanzariti, whose mother, Kay, has contacted the offices of many senators, including mine, to raise her concerns about workplace safety on building sites. Her son was killed when a 39-metre concrete boom collapsed onto him at an ACT building site on 21 July 2012, when he was just 21 years of age. Four years later, the whole family is still dealing with the legal processes arising as a result of this incident. Kay says she thought she was sending her son off to a workplace, not to a war zone. To her great credit, in the face of this personal tragedy, Kay has been working to raise awareness of the issues of workplace safety in the building industry. She has called for better communication and cooperation between unions, master builders, governments and workers. She has also said that she is concerned about this proposed legislation and its impact on workplace safety. For the reasons I have outlined, these are concerns that Labor shares.

We also oppose this bill because it gives excessive powers to the proposed new ABCC, powers which override the legal rights of workers in the construction industry. The ABCC's proposed powers include unfettered coercive powers, secretive interviews and penalties including potential jail terms for those who do not cooperate. The government wants to arm the ABCC with powers to deny people the right to be represented by a lawyer of their choice and to remove lawyer-client privilege. The ABCC will be empowered to interview people in secret with no right to silence. It will interfere with freedom of speech and freedom of association. As Nicola McGarrity and Professor George Williams from the Faculty of Law at UNSW say:

The ABCC Commissioner's investigatory powers have the potential to severely restrict basic democratic rights such as freedom of speech, freedom of association, the privilege against self-incrimination and the right to silence.

Both the Parliamentary Joint Committee on Human Rights and the Law Council of Australia say this legislation breaches fundamental human and legal rights. Under this legislation, ABCC inspectors will be able to search private property without a warrant, including, in some cases, a person's home. The legislation will erode fundamental common law rights like the privilege against self-incrimination. If this bill is passed into law, the ABCC will be able to enter private premises and seize property, question witnesses, and order the production of documents without regard to the privilege against self-incrimination. These aspects of this bill have been strongly criticised by the Law Council. In a submission to the Senate Education and Employment Legislation Committee, the Law Council said:

A number of features of the Bill are contrary to rule of law principles and traditional common law rights and privileges such as those relating to the burden of proof, the privilege against self-incrimination, the right to silence, freedom from retrospective laws and the delegation of law-making power to the executive.

These are draconian powers in the hands of the ABCC. They will allow excessive intrusion by the executive government into the construction industry and into the lives and livelihoods of construction workers, and they will erode the civil liberties of such workers. It will mean that the Turnbull government will give fewer legal rights to Australia's 1.2 million hardworking construction industry workers than it does to criminals like suspected drug dealers. And you have to ask, Mr Acting Deputy President, what is the public policy benefit in giving some people who are the subject of much greater criminal allegations a privilege against self-incrimination, but not giving that privilege to a building worker? The government has never advanced a justification for that proposition.

All parties in Australia's workplace relations system must abide by the law, and allegations of breaches of workplace law must be investigated and, where the law is found to have been breached, relevant sanctions and penalties should be imposed. That is why Labor established the Fair Work Building Inspectorate, a tough regulator for the building and construction industry. It operates under legislation and regulations which get the balance right between policing and enforcing workplace law, whilst recognising basic civil liberties and workplace rights.