Nick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

On behalf of my colleagues, we cannot support this disallowance motion. There has been no shortage of debate on the ABCC legislation and the building code that goes with it. Last November, I moved a series of amendments to that legislation, which were about making the bill fairer, making it more effective in terms of job creation and improving productivity in this country. The amendments included an important right to judicial review of decisions made by the ABCC, which had never existed before.

As a general principle, I understand fully the argument that one industry should not be singled out for different treatment, but the industrial relations framework in the building and construction industry has a long, complex and vexed history. There was the Winneke royal commission in 1982, the Gyles royal commission in 1992, the Cole royal commission in 2003 and, most recently, the Heydon royal commission in 2015. There was also the Wilcox report, which was an initiative of the then federal Labor government in 2008. The final report was handed to the then Deputy Prime Minister, the Hon. Julia Gillard, in April 2009 in relation to the operations of the office of the Fair Work building and construction inspectorate. Justice Wilcox found that there was still a significant level of industrial unlawfulness in the building and construction industry. He was critical not just of unions but also of employers.

The more recent inquiry of former High Court justice Dyson Heydon gathered a great deal of evidence, some of which I found quite compelling, about serious issues—allegations of corruption, bullying and harassment. In his interim report, Commissioner Heydon found that some CFMEU members had acted in wilful defiance of the law, and there were allegations of corruption, death threats, extortion, gross neglect and other serious criminal matters. In his final report released in December 2015 the royal commissioner confirmed his findings that corruption was widespread and deep-seated.

The union officials allegedly involved ranged in seniority from the most junior to the most senior, although I hasten to add that Michael O'Connor, the national secretary of the CFMEU, and Dave Noonan, another very senior officer, have not been tainted by any of these allegations in the royal commission. Despite the fundamental differences that I have with Michael O'Connor over the building code, it was grossly unfair that he was wrongly reported for breaches of the act—that is, that he was named for allegedly being at an unlawful picket when he was in fact in another state. The leaking of that information, dragging his name into the parliament, was wrong. It was a disgrace.

The issue before us is whether the building code should be disallowed and in particular section 11 of the code. Perhaps the key issue relates to section 11 of the building code. This section prohibits code covered entities from being covered by an enterprise agreement in respect of building work which includes certain clauses, or from engaging in certain conduct. This section is the centrepiece of the building code. Its aim, as essentially stated, is to change the culture in the building and construction industry. The long history of royal commissions, together with the Wilcox report, notes that there is an issue with the culture in the building and construction industry. It is a difficult issue because the argument of those opposed to the building code is that it ought to be within the framework of the Fair Work Act and not derogate from that framework.

That to me seems to be the key debate and the key ideological debate in respect of this. Those in favour of it say that if cultural change is needed then the building code will be the most effective tool, and it is needed because the courts have said this about the conduct on building sites. Justice White said in April last year in a case involving the CFMEU:

On any reasonable measure, that is an appalling record. It bespeaks an attitude by the CFMEU of ignoring, if not defying, the law and a willingness to contravene it as and when it chooses.

Last year as well Justice Jessup said:

The CFMEU's record of non-compliance with legislation of this kind has now become notorious. That record ought to be an embarrassment to the trade union movement.

Justice Mortimer in a 2016 case said:

The conduct has in common features of abuse of industrial power and the use of whatever means the individuals involved considered likely to achieve outcomes to the interests of the CFMEU.

The conduct occurs so regularly, in situations with the same kinds of features, that the only available inference is that there is a conscious and deliberate strategy employed by the CFMEU and its officers to engage in disruptive threatening and abusive behaviour towards employers without regard to the lawfulness of that action, and impervious to the prospect of prosecution and penalties.

It is for this reason, because of these exceptional circumstances, that the provisions of the building code are necessary at this time. If the behaviour changes, I would support the code changing.

Unlike some of my crossbench colleagues, I have continued to engage with the CFMEU in recent weeks. I did so in good faith. I spent a lot of time with them. Even though the CFMEU has previously unleashed a massive advertising campaign against me, featuring gross misrepresentations, outright lies and a post-truth campaign par excellence—the billboards and the full-page ads said that I didn't care about safety or about jobs—I have continued to talk to them. I've been told that after today in effect Armageddon will be unleashed against me and that there will be a massive campaign, the likes of which I have never seen. This fear-and-smear campaign on anything other than the code, as I understand it, is designed to damage and destroy, based on lies, distortions and misrepresentations, but I suggest it is counterproductive.

I want the best outcome for Australian workers on building sites. If Commonwealth money is involved on these sites, then it is reasonable to expect a reasonable standard of behaviour. I say to Senator Cameron, who I respect and admire for his passion on this and many other issues: the Senate estimates process is one of many processes to examine the conduct of the ABCC. If Senator Cameron has further evidence of what he considers to be unfair conduct and that requires a separate parliamentary inquiry, then the general principle is I will support that. But right now we have a situation as to whether the code should stand. The conduct and the behaviour has not changed; therefore, the building code should not change. I do not support this disallowance motion.