Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

Pursuant to order, I present the report of the Education and Employment References Committee on the Australian Building and Construction Commission, including the provisions of the Building and Construction Industry (Improving Productivity) Bill 2013 and any related bills, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

These ABCC bills have quite a history. As the Senate is aware, it is the second introduction by the government of such draconian laws to an industry and it has absolutely failed on both occasions to show due cause why we need such draconian legislation. Last year in December the legislative committee recommended that the bills re-establishing the ABCC be passed. However, the legislative committee did not have the benefit of a significant body of material that this committee, the references committee, has received in evidence through its three hearings, evidence that clearly undermines the case for the re-establishment of the ABCC.

In December last year the government and the supporters of these bills wanted the Senate to simply abandon its role to scrutinise, and simply pass the bills. The legislation committee was given a very short time in which to consider the bills, just 18 days to hear from submitters and produce a report. Indeed, submitters were rushed too, having a mere eight days to prepare submissions and gather evidence, and they were expected in that time to cover a wide range of complex matters. Then, there was only one public hearing, with just 3½ hours available to the committee to hear evidence from a very wide range of submitters who had very different points of view.

Since the tabling of the legislative committee report on 2 December 2013, the second report of the Parliamentary Joint Committee on Human Rights has been tabled and, shortly after the tabling of the legislative committee report, the Senate Standing Committee for the Scrutiny of Bills report was also tabled. Both of these reports have raised very, very serious concerns which go to the limitation, curtailment and, indeed, extinguishment of a wide range of the civil, human and political rights of people working in the building and construction industry, and both of those committees have written to the Minister for Education and Employment seeking detailed evidence to support the government's assertions that the interference with human rights contained in the bills is necessary, reasonable and proportional. However, the government has yet to provide responses to the concerns of either of these committees and the minister's submissions to this inquiry of the references committee did not provide sufficient details or quality to satisfy the high standard—and there should be a high standard—of proof required to establish that human rights should be interfered with in the manner in which it is intended in the ABCC bills.

Throughout the references committee inquiry we heard evidence from the department and the minister, the Master Builders Association and the Australian Industry Group. We had an academic paper from Professor Peetz. We heard from a range of unions, but in particular the Construction, Forestry, Mining and Energy Union gave evidence, as did the Maritime Union of Australia, and then we heard the evidence of the Australian Council of Trade Unions, the ACTU. That evidence, as the Senate can imagine, was quite different, quite polarising. But what I want to say here today is that the evidence of the minister and the department, the MBA and the AiG was really quite inflated and did not go to facts or evidence to support the reintroduction of such draconian legislation, legislation which goes to the very heart of people's human rights. Certainly the CFMEU, the MUA and the ACTU said time after time that their approach as trade unions and, indeed, the peak body of trade unions, had a zero tolerance towards any form of corruption and, whilst that was put on the record, the MBA, the AiG and the minister completely disregarded the views of the unions and the ACTU about their attitudes towards corruption or alleged corruption in the building and construction industry.

It seemed that the MBA, the AiG and the department relied on one single report, a report by a company known formerly as Econtech, and now known as Independent Economics, which is flawed factually. That has been acknowledged by a range of bodies but in particular it has been completely discredited by Professor Peetz in both the submission to the references committee but also in an academic peer-reviewed paper that Professor Peetz reviewed. It goes to the heart of two key areas. One of the issues that the government and the MBA on behalf of the government kept putting was the notion of productivity gain, claiming just a little over nine per cent productivity gain during the life of the ABCC. Despite the fact that Professor Peetz in a methodical academic way completely discredited the nine per cent claim, the facts did not alter the views of the minister.

The productivity gain starts off by comparing the domestic building industry with the multistorey CBD industry and it looks at a variety of building work that is done. One of the areas it looks at is the putting up of a wall. We know in our domestic building sector, particularly with housing, the architectural design of those houses does not change very much, that every second or third or fourth house is simply rearranged on the block or changed slightly—almost building by numbers. Yet, Econtech, or Independent Economics, took the building of a wall in the domestic situation and compared that to the building of a wall in a multistoreyed, uniquely architecturally designed building and came up with a cost. The cost was designed by simply phoning building companies, calling building companies who operate in a competitive environment, and asking them how much that cost. On the basis of that, they came up with this absolutely flawed and discredited number on productivity, and nobody who regards themselves as a rigorous academic agrees with that number for productivity.

The other area that we heard a lot about from the MBA and the government was this issue of lawlessness. In fact, they tried at one point to hold up a graph that supported and reported the number of lost days in the sector. In evidence, the CFMEU told us that in most of their enterprise bargaining a large majority of it is conducted without any authorised industrial stoppages, which are absolutely authorised under the current Fair Work Act. And what the government tried to do was take that lost days statistic, although it was not able to say which were authorised days and which were not, and say somehow there was lawlessness in the building industry.

So the government has completely failed on every single test to give any credible factual evidence to support the reintroduction of harsh laws that go to the very heart of people's human rights. Indeed, the minister is on the record as saying it is going to combat this alleged lawlessness in the building industry, and yet it only ever goes to civil penalties despite it using coercive powers—coercive powers which community and human rights organisations have said are completely over the top in terms of what they seek to do. I am pleased to say that the majority report of the committee has rejected these bills out of hand, and the government should now simply remove them from the Senate.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to totally reject the majority report of the Senate Education and Employment References Committee's inquiry into the Australian Building and Construction Commission bills. Once again, regrettably, the quality of the activities and the reports and the recommendations and the work of this chamber has been cheapened.

I regret, on behalf of coalition senators, that the Labor Party's decision, with support from the Greens, to refer this legislation for further review is an abuse of the process. It was only in December that the legislation committee reported on this very question. For those who wished to, they had the opportunity to present, to submit, to appear as witnesses and to put information before that committee—and they did so. Literally, only within weeks of the legislation committee reporting to the Senate on the outcome, which of course was that the ABCC legislation should proceed, we had the circumstance in which we had yet another series of hearings by the references committee going over exactly the same information.

I do want to record, in the few minutes available to me, the courtesy that the minister, Minister Abetz, showed to this references committee by appearing. I do not recall too many instances when Labor were in government that the minister of the day appeared before a committee and made themselves available. Minister Abetz, obviously along with his officers, did that.

Of course it is not necessary for me to read out the long litany of current reasons why we need the re-establishment of the ABCC. Just simply, if I may, Business SA submitted to the legislation committee that there was evidence that lawlessness identified by the Cole royal commission had returned in full force. The Master Builders, describing the 2011 Melbourne markets case, demonstrated that the courts had recognised—the courts had recognised!—deliberate flouting of the law by the CFMEU to obtain industrial advantage. Do I need to go on? In that case, the court imposed a $250,000 penalty.

On the day that this references committee met in Melbourne, only as we rose—there is a three-hour time difference between Perth and Melbourne—did we hear of the judgement in the federal court in Perth in which $684,000 in fines and compensation was awarded against the CFMEU, while the union's assistant state secretary, Mr Joseph McDonald, was himself fined $30,500 and banned from Brookfield Multiplex worksites until December 2016. I cannot for one moment imagine how my colleagues on the other side could come forward with the recommendation that there is no need for the re-establishment of the ABCC. I asked the CFMEU representative what was he willing to do, what evidence could he show of action by the union in condemning the use of force and abuse of process. Of course I got no answer at all. The MBA—the Master Builders Association—listed a number of examples.

Time does not permit me to spell out all the reasons why I believe this references inquiry really, with deep respect, ended up being worse than a farce. Coalition senators believe the Labor and the Greens senators must carefully consider their actions in the spirit of what this place is for—that is, for the opportunity for inquiries to be raised, for terms of reference to be struck, for submissions to be prepared and presented, for witnesses to appear, and of course for due process to take place. It has not taken place in this case. The coalition senators stand by the legislation committee and its recommendations. I thank you for the opportunity to comment.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

The Senate Standing Education and Employment References Committee has not minced words in delivering its report into the government's approach to re-establishing the Australian Building and Construction Commission, or the ABCC as I will call it from now on.

There is a long history to this issue, and the committee's findings can be summarised around five key problems. Firstly, the government's proposal embodied in the Building and Construction Industry (Improving Productivity) Bill 2013 disproportionately compromises human rights when you consider its objectives. Secondly, the bill does not contain adequate protections to balance the extensive coercive powers that the ABCC would have. Thirdly, there is no evidence that the ABCC would enhance productivity. In fact, the few sources that the government uses to support this claim have been discredited to the extent that they cannot be relied upon. Fourthly, the ABCC would have no jurisdiction to investigate criminality in the building and construction industry, so the claim that criminality in these industries is a rationale is spurious. In fact, evidence from law enforcement agencies was that the fact there may be criminals involved in the industry does not make it unique. Finally, the committee also concluded that the findings of Cole's Royal Commission into the Building and Construction Industry—still cited by supporters of the ABCC proposal after more than a decade—do not warrant re-establishing the ABCC.

The Australian Greens are particularly concerned about the proposal's impact on human rights and its disregard for appropriate legal protections. Even from a general legal point of view the bill is troubling. The Law Council of Australia states it has numerous features which are contrary to the rule of law principles, traditional common-law rights and privileges. These relate 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. The New South Wales Council for Civil Liberties also highlighted the human rights implications and the extreme powers that the ABCC would have to compel workers to produce documents, attend hearings and answer questions under the penalty of imprisonment. The Law Council, in its submission to the inquiry, submitted that the Commonwealth government has committed to upholding traditional rights and freedoms and yet here we have proposed legislation that would transgress many of those. It would be inappropriate to pass this legislation without considering this bill's significant impact on those.

We do not need to speculate to understand how the ABCC would impact on the industry. In the scheme of things the ABCC has only recently been abolished, and one of the worst examples of the ABCC's excesses in its last incarnation is the story of Ark Tribe, a unionist who hails from South Australia, my home state. In 2008 Ark Tribe, who is a rigger, discussed safety issues with his union colleagues on a construction site at Flinders University in Adelaide. As a consequence, the ABCC demanded he meet with them to discuss the legality of his actions. When he refused to give details of the meeting, the ABCC took him to court. In this landmark case, Ark Tribe was ultimately found not guilty after an 18-month legal fight, but it was a fight that took its toll on Ark, his family and supporters and had the potential to deter others who are committed to taking action in relation to workplace safety. That finding was a nail in the ABCC's coffin, yet this government proposes to resurrect it.

I commend this report to the Senate. The Australian Greens believe that free, independent and democratic unions are an essential pillar of a civil society. Unions have a proud history of enhancing wages and conditions for their members. Their role in ensuring the best possible safety for workers, especially in high-risk industries, is crucial. The benefits unions have fought for and won over a long period of time flow on to all workers. As long-term advocates against the ABCC, the Australian Greens will continue to fight for workers' rights to organise and work within a fair and equitable industrial relations system. The Greens will block this ABCC legislation and future attempts to legislate it.

Bridget McKenzie (Victoria, National Party) Share this | Link to this | Hansard source

I feel like it is Groundhog Day.

Senator Lines interjecting—

Senator Lines, you were not in the 43rd Parliament. Issues around the building and construction industry and this side of the chamber's desire to fix and address the lawlessness that is inherent in the industry, particularly in my home state of Victoria, are falling on deaf ears with the unity ticket opposite. The Greens and the ALP are fighting for the hearts and minds of the trade union movement, slugging it out in inquiry after inquiry, contribution after contribution. Who is going to end up with the support at the end of the day? It is quite a tussle.

Over on this side of the chamber I think it is quite clear whose side we are on. We are on the side of the honest workers, the honest trade unions, the honest employers, those that are interested in ridding the building and construction industry of corruption and intimidation. I can briefly go through a list of examples in my home state where the current system is not working. It is not working for honest workers and it is not working for employers either. Both the Greens and the Labor Party failed to recognise or admit in their contributions to this debate here today that the legislation seeks to deal with corrupt behaviour and that it does not matter who is doing it, it applies equally, whereas they are only focused on how it is going to affect their union mates. I think we really have to ask what protection racket is actually being run.

I think of Boral Cement being black-banned and the effect on their industry and their business. I look at the Grocon building site in central Melbourne, where police horses were punched and witnesses said police used capsicum spray on protesters. There had been no work at the Myer site since last week, a delay that has cost Grocon $371,000 a day. Similarly with the Werribee picket line and the city west water project: a $40 million project and no work. At the desalination plant in Victoria, with the stoppages there and the impact on the Victorian budget and household costs for water, we have an issue. And an article headed 'Behind the Coles picket line, food may go off', in The Age on 20 June 2012, said about 250 of the Somerton National Distribution Centre's 467 permanent employees decided to go off the job while at least $32 million worth of food and alcohol stuck in the Somerton warehouse could go off, with the impact that has on that business's viability.

Senator Wright talks about free and democratic unions. I could not agree more with the role of unions in ensuring safe workplaces throughout our nation's history. But when the CFMEU and the AMWU were ordered by the Supreme Court not to picket, not to prevent free access to the site in a WA family business, they defied it and proceeded onto the site. So the courts can do what they like, but the sense of lawlessness inherent in the Australian union movement at present requires a tough cop on the beat, the Building and Construction Commissioner and draconian legislation, as Senator Lines likes to call it. That is exactly the type of legislation that is required to address the lawlessness inherent in the construction industry. We are interested in ensuring that honest workers and honest employers get to work in an industry where corruption does not abound.

The Labor Party and the Greens have joined together and abused Senate processes for the first time in 17 years by sending legislation to a committee which had been examined in the previous parliament. It had also been through a comprehensive consultation process through our own coalition policy development process, where the shadow minister at the time did consult with unions and employer organisations to come up with a comprehensive policy to address corruption within the building and construction industry and produce the bill. I know it is odd that we actually go through a consultation process to produce well-designed policy! You do not like to hear it, but maybe it is a methodology you should consider involving yourself in. Here we are, having had roughly 19 submitters in December and roughly 19 submitters today. It is just a delaying tactic, looking after your union mates.

Debate interrupted.