Joe Ludwig (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The Building and Construction Industry (Improving Productivity) Bill 2013 seeks to re-establish the Australian Building and Construction Commission. Let us call it the ABCC; they want to re-name it with a fancy new title but it is the still the same old entity that Labor fought hard to abolish in 2012. This is just one of a number of bills the coalition is seeking to push through the Senate that hark back to the days of Work Choices. This is not a revival we are having here. Those on the other side, though: you would think they were at a revival meeting. They ought to start clapping when these bills come in, because that is exactly what they are doing. These bills seek to re-establish Work Choices by another name.

The ABCC re-established under this bill will have significantly broader powers than its 2005 incarnation. In 2005, the ABCC was created to investigate breaches of and to enforce federal industrial law in the building and construction industry. As bad as that was, back then the extreme powers granted to the ABCC were normalised, let us say, by Work Choices. But in 2015 there is nothing for this bill to hide behind. It cannot be compared and put with all the other awful industrial relations legislation that this government was serving up with Work Choices.

The Abbott government's determination to force a return of the ABCC only shows, quite frankly, that Mr Abbott is capable of misleading again. He said it was 'dead, buried and cremated'. But I think he had his fingers crossed behind his back because he really went on to say, 'We can't guarantee that new bills won't come back.' The Abbott government want to bring back Work Choices. It is in their DNA. But they do not want to tell the Australian people that because they know how negatively that impacts upon the punters out there. So what they are doing is bringing back, slice by slice, industrial relations legislation that is aimed squarely at removing the rights of workers at the workface. Mr Abbott claims that his workplace policies will return the industrial relations pendulum back to the 'sensible centre'. No matter how many times he uses that phrase—let us be honest: he likes repeating himself twice—it does not make it true. It does not make it true one bit. Demonising construction employees and their representative bodies could not be further from sensible. Its powers will be extreme and unnecessary and will compromise civil liberties.

Fair Work Building and Construction, established by Labor, already has sufficient powers to deal with unlawful behaviour in the industry—not to mention the Australian Crime Commission, the Australian Federal Police, and state police are well equipped to deal with any crimes committed in the workplace, whether it be by an employer, an employee or a union delegate. No-one condones bad behaviour by unions, employers or employees at the workplace. But Labor asks: why do you need a special power for this industry?

It was Mr Abbott who called for the Cole royal commission in 2001—a royal commission to investigate supposed criminality, fraud and corruption within the building and construction industry. Despite the widespread allegations which I suspect they, like Senator Abetz in here, pump up—a bit of buffery does not hurt—it did not lead to one criminal prosecution and was simply another political stunt at the expense of taxpayers. In response the coalition established the ABCC regardless of it having no role in investigating crime, which is most obviously a matter for the police.

But let's put the politics aside for a moment. There is no denying the damning statistics concerning workplace injuries and deaths that occur under the watch of the ABCC. There were 36 fatalities in the construction industry in 2007-08, twice as many as in 2004-05, immediately before the ABCC commenced operations in late 2005. During the years of the ABCC construction became the industry with the highest number of deaths. I think it is a confronting figure. If you are going to spend any time looking at how you assist the workplace, if you look at how you are going to improve productivity and ensure there would be a safe place of work, this is the statistic you would most closely look at and figure out how to reduce.

Although, as I have said, these figures are confronting, they are not one bit surprising. The biggest issue facing the industry has always been poor workplace safety. In this area where unions are bullied out of workplaces, occupational safety will diminish and lives will be put at risk by companies that put their own financial interests before the wellbeing of their employees. If you do not think that is true—if you think I am stretching the truth here—the statistics do not lie. Unfortunately, it is the case where you will have companies that will cut their corners to achieve an outcome and put workers' lives at risk.

The ABCC will not be the sensible tough cop on the beat that Mr Abbott promises; it will be an extreme and unnecessary workplace bully. What is also concerning is that the ABCC in its previous form was found to be in breach of the international labour organisation conventions, which this country has ratified. This is a government that is, effectively, snubbing its international obligations in favour of its big friends at the big end of town. You could only imagine the destructive effect the new ABCC will have with even more expansive powers than the last. It will just continue the coalition attack on workers' rights and entitlements. This bill will remove the safeguards that currently exist under the Fair Work (Building Industry) Act 2012 on the use of coercive powers, including the requirement of a person to give information, produce documents and attend an interview to answer questions. The ABCC will have powers to compel Australian workers to be subject to backroom interviews, denied legal representation and threatened with imprisonment for refusal to cooperate. These are unfettered powers where workers will not have the right to silence and are denied the right to be represented by a lawyer of their choice. When you listen to them, you hear how excessive, unwarranted and undemocratic they really are.

This is a Work Choices in disguise. It is, quite frankly, a poor disguise. It is a case for this government to go back to the future with the ABCC. This bill will further extend its reach into picketing, offshore construction and the transport and supply of goods to building sites. Not content with just attacking the building industry, it wants to expand its powers into offshore construction and the transport and supply of goods to building sites without any clear evidence that there is an issue that needs to be addressed other than the stupid rhetoric from those opposite that 'There must be a problem if I say it.'

There are no prohibitions that exist on picketing under any previous or existing legislation. This bill creates the new offence of engaging in or organising an unlawful picket, punishable by fines of $34,000 for an individual or $170,000 for a body corporate. To be unlawful, the picket must both restrict access to a work site and be motivated by the purpose of supporting or advancing claims against a building industry participant in respect of the employment of employees. It will also be unlawful if it is motivated by the purpose of advancing industrial objectives of the building association. The new powers aimed at stopping picket reverse the onus of proof in relation to reasons for actions and the ABCC commissioner to the defendant. To escape harsh penalties, the individual or body corporate must prove they were not motivated by an industrial objective.

In fact, when I listen to that, it reminds me of the Joh era in Queensland, where they banned street marches, where they banned people's right to protest against the awful practices that that government was doing. That was in the eighties. This is a government that looks stuck there as well, and I am sure Mr Abbott would think Joh Bjelke-Petersen was a hero. Quite frankly, we are well rid of people like that.

This bill will also extend the ABCC's jurisdiction offshore to as far as Australia's exclusive economic zone. It wants to go fishing, by the look of it, in waters above the continental shelf including resources platforms and ships in the EEZ or those waters and also on Christmas and Cocos islands. It will also encompass the transport or supply of goods to building sites. The operation of this bill will be extended to the transport and supply. Where is the justification for that? There is none.

Building work is also defined more expansively to include construction, restoration, repair and demolition, any operation that is part of or preparatory to such activities and prefabrication of made-to-order components, whether carried on or off site. You wonder whether the poor old handyman in his handyman van is going to be attacked by this legislation as well. It is a disgrace, when you look at it.

This bill is just a first indication that this government will try to push through legislation of this type to extend beyond the construction industry and to other sectors of our economy. It is because they can. At least, they want to. It is not because there is a justification, a problem to be addressed, corrupt practice that needs a foot-stamp on it. It is none of the above. What it wants to do is peddle its poor ideology across these sectors, expand their power and make sure they can put the hobnail boot on workers.

Let us recall that Work Choices extended some of the provisions in the previous act that created the ABCC to the workforce more generally. The FWBC is getting on with the job of investigating and prosecuting unlawful behaviour. As I said, everyone agrees that if there is unlawful behaviour it should be dealt with in the appropriate way, but you should not have a need—and there is no need—for a specialist body to look at a problem that they think exists. It is only politically motivated. There is no other reason.

If you look at the work that the FWBC does, it applies to employers, employees, unions or contractors. It is undertaking and concluding more investigations and getting matters to court faster than its predecessor, the ABCC. The ABCC was not even particularly efficient at its job either, but this is a sensible return to the centre. It is a sensible government—although good government only started earlier this year. What we have is a reintroduction of legislation that stinks. It has no fit purpose and will continue to be inefficient should it pass this place. It will not find the things the coalition thinks it will find.

The performance of the FWBC has been superior to the ABCC, in terms of productivity and industrial disputation. Therefore, why would you dabble with a body that is doing its job—and getting on with its work, and managing pretty hard work in these areas—by creating a politically motivated body that will achieve very little? Not only does this bill repeal the FWBC and re-establish the ABCC but also it enlarges its jurisdictional and industry-sector application. It creates those new coercive powers and reintroduces criminal and civil penalties.

I can understand this type of attack by the Liberals and Nationals in the Senate. It is in their DNA. They see workers and they want to put their hobnail boot on them. That is where they sit in this debate. I accept that. That is their ideological bent, but they should not bring it in here and try to dress it up as a sensible centrepiece of industrial relations for this country. This type of attack is unwarranted and unnecessary and only proves what I have been saying all along—that the coalition is hell-bent on hurting workers.

You only have to look at the magic they did with the Productivity Commission. This is a government that promised stable industrial relations and that we would not return to Work Choices. Instead: 'What we'll do is get the Productivity Commission to have a look into workplace relations, more broadly, and see what they come up with.' Mr Joe Hockey and Senator Abetz sent it off to the Productivity Commission, knowing what they would get back. They got an issues paper back that said: 'We'll have a look at the minimum wage, as to how we can cut it. We'll have a look at how we can reintroduce a 45D and 45E, which will attack workers. We'll have a look at how we can cut penalty rates.' Senator Abetz threw his hands up in the air and said, 'No! We didn't mean that at all. The Productivity Commission's gone off on a frolic of its own.' You sent it on that frolic and you wanted that outcome.

The true reason Senator Abetz threw his hands up in the air on this one is that he was trying to save the skin of his Prime Minister. By the time he got to estimates, he said, 'Everything's still on the table. We're still looking at everything. We'll wait and see.' Once the crisis had passed—for the moment—for Mr Abbott, he had a bit of clean air, so he said, 'We've still got everything on the table. We'll still look at all of these things.' This is a government that will go back to the Productivity Commission report. It will have a look at the outcomes and will attack the minimum wage, will attack penalty rates and will want to reintroduce 45E and 45D secondary boycotts, and it will want to give the power back to the ACCC so that it can punish workers.

This is a government that will not bother seeking a mandate. It will want to do it well before the next election, if it can get away with it. Our job on the crossbench is to ensure that you cannot get away with it and that it does get highlighted. These are atrocious laws. Bringing back the ABCC in a new dressed-up piece of legislation, particularly with the nomenclature of improving productivity, is a falsehood. It should not be countenanced by this Senate. I suspect those on the other side will do a sterling defence of this bill and argue why it is so necessary.

I point those opposite to the areas of transport, supply, offshore oil rigs and the home handyman—the poor old home handyman; he has been wreaking havoc in this area!—and ask them why these people need to have the coercive powers applied to them

I suspect they will not be able to point to any home handyman who has been errant, who has been a problem in the industry, who has troubled a household severely or who has caused a problem. I suspect they will then go to the broad issues again, because at their base they really hate workers and workers' rights. They want to reduce workers' rights and they want to make sure there is a master-and-slave relationship back in place, because it is in their DNA.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I rise to speak to the Building and Construction Industry (Improving Productivity) Bill 2013 and Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013.

This is one of the most difficult bills I have had to consider while I have been in the Senate and, like the Fair Work (Registered Organisations) Amendment Bill 2014, I have serious concerns and reservations. It is clear that the intent of this bill is to target and punish unions and organised labour groups, while neglecting to impose the same set of rules and standards on corporate Australia.

The intent of this bill follows a pattern set by the Liberal and National parties. It is similar to other bills brought before this Senate by the Liberal and National parties, which rely on destruction and undermining of basic civil rights and freedoms in order to achieve a quick law and order outcome. It is a pattern of legislative behaviour that we witnessed in Queensland and driven by former Premier Campbell Newman. However, in the rush to achieve a quick outcome or get an easy conviction, we run the risk of damaging the fundamental human and civil rights building blocks of our nation.

Before I give examples of the damage this legislation will cause to fundamental Australian human and civil rights, it is worthwhile to remind the Senate what an official explanation of the bill is. The Building and Construction Industry (Improving Productivity) Bill 2013and Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 were introduced with the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013. The bill: (1) re-establishes the Australian Building and Construction Commissioner and the Australian Building and Construction Commission; (2) enables the minister to issue a building code; (3) provides the appointment and functions of the Federal Safety Commissioner; (4) prohibits certain unlawful industrial action; (5) prohibits coercion, discrimination and unenforceable agreements; (6) provides the ABC Commissioner with powers to obtain information; (7) provides for orders for contraventions of civil remedy provisions and other enforcement powers; (8) and makes miscellaneous amendments in relation to self-incrimination, protection of liability against officials, admissible records and documents, protection and disclosure of information, powers of the commissioner in certain proceedings and jurisdiction of courts.

At first glance, there are compelling arguments both for and against this piece of legislation; however, when the argument is simplified and when it is reduced to its essence, what this bill does is to re-establish a Star Chamber where basic civil rights for Australian citizens and workers are suspended in an attempt to address corruption, misconduct and crime within the Australian building industry. In taking this extraordinary action—the suspension of basic human rights—there is an implicit assumption that Australia's existing laws and law enforcement agencies cannot properly address the corruption, misconduct and crime within the Australian building industry, which, I have no doubt, exist, just as corruption, misconduct and crime within the Australian banking industry and within political parties, undoubtedly, exist.

The Liberal government have tried to justify this extraordinary legislation by attempting to take the high moral ground, but I say, 'What's good for corrupt building workers is good for corrupt bankers, corrupt bureaucrats or corrupt politicians.' And that is why, when I spoke to similar legislation which suspended and destroyed basic civil and human rights in order to achieve an easy quick law and order outcome with regard to corruption and organised crime, I said on Monday:

I believe that an equitable solution to corruption in the workplace and broader Australian society is the establishment of a permanent corruption watchdog whose star chamber powers will apply to bankers and union members equally. They must be applied equally. Combine that body with reformed world's best whistleblower or public interest disclosure laws that protect, encourage and reward genuine whistleblowers to come forward and then corruption in the workplace, corruption in government departments, corruption in the board rooms and corruption in political parties will be properly addressed.

Most Australians would not be aware of the extraordinary powers that this legislation will give not to police officers but to lesser trained public servants. The average Australian would expect that if they were accused of a crime they would have the right to silence and the assumption of innocence. Under this legislation that right to silence has been destroyed, and the assumption of innocence has been overturned and reversed. The government, through Senator Abetz, admits so in the official explanatory notes when he writes:

Under clause 57 of the Bill, where an application has been made regarding contravention of a provision in Chapter 6, and it is alleged that a person took action for a particular reason or with a particular intent, that allegation is presumed to in fact be the intent of the person, unless the person proves otherwise.

People who have been targeted by the legislation and accused of a crime or wrongdoing will have to prove that they are not guilty, rather than the authorities having to prove they are guilty. My point is: if you are going to apply a legal standard to a building worker, why is the same rule not applied to a bank manager or a financial adviser? Clearly, there is just as much wrongdoing, fraud and crime in corporate Australia as there is in the building industry. And, that being the case, if we are going to have a watchdog, let that watchdog track down corruption and organised crime in every location in Australia. Do not just start up a special government organisation to exclusively target the people who do not donate to your electoral campaigns. If you are going to bring that bureaucrat beast to life, as I mentioned in a speech earlier this week:

Of course there is an ongoing need to monitor, investigate and enforce our laws wherever crime and corruption is found within any organisation, whether it be government departments, political parties, corporations or unions. Wherever there is a concentration of power and money, the risk for criminal or unethical behaviour increases, because, as we all know, if you are human, power corrupts and absolute power corrupts absolutely.

However, the problem I have when the Liberals say they want to apply corporate standards of regulation to the unions is that Australian corporate standards are not all that flash. The standards the government want to impose on the building industry should be applied to their mates in the banking and finance industry. Otherwise it is not fair taking away the basic civil rights of a group of Australian blue-collar workers, while duchessing and pandering to white-collar workers and the big end of town.

Inspectors of the new commission under this proposed Liberal law will have more powers than police officers and less accountability. If a police officer wants to search your home, ordinarily that police officer has to apply to a judge or magistrate for a search warrant and justify his or her actions. In doing so, the police officer will be held accountable for their actions both during and after the search is carried out. In other words, a citizen's right to privacy is protected by rigorous checks and balances which have evolved in our legal system. These rights to privacy have been influenced by fundamental democratic human rights which, as the government admit, prohibit unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. This legislation bypasses all those checks and balances by giving public servants—with questionable training—the power to enter people's businesses and residences without any warrants approved by judges or magistrates.

The explanatory notes issued by the government, under Senator Abetz's name, prove that point when he writes:

Inspectors are able to enter business premises without force if they have the reasonable belief that there are records or documents relevant to compliance purposes on the premises, or are accessible from a computer on the premises, or if a person who ordinarily performs work or conducts business at the premises has information relevant to compliance purposes. Both of these grounds of entry are restricted to situations where the inspector has a reasonable belief that there is information or a person relevant to a compliance purpose present at the premises. …

Inspectors are also able to enter premises, whether residential or business, in a narrower range of circumstances; namely if they reasonably believe that a provision of the Bill, a designated building law or the Building Code applies to work that is being done, or applied to building work that has been, performed on the premises, or that a breach by a building industry participant of those same laws is occurring, has occurred or is likely to occur.

During the whole of that explanation from Senator Abetz, there is no mention of search warrants, and that concerns me greatly. We do not take the law into our own hands.

Probably the worst example of a politician infringing on the basic civil right of freedom of association was in Queensland, when Campbell Newman almost made it illegal for people like Vietnam veterans to ride motorbikes in a group. This bill contains a provision which breaches the human right of freedom to associate, which underpins the right to collectively bargain. Senator Abetz writes in his official notes:

To the extent this provision will restrict the application of site-wide agreements in the building and construction industries, the Bill limits the right to collectively bargain.

It is there in black and white—the government do not like workers organising themselves and collectively bargaining. So they introduce legislation which makes it illegal in certain circumstances.

Senator Abetz writes in relation to privilege against self-incrimination and the right to silence:

Clause 102 of the Bill provides that a person is not excused from giving information, producing a record or document, or answering a question under an examination notice, or as the result of an inspector exercising their relevant powers, on the grounds that to do so might tend to incriminate the person or otherwise expose the person to a penalty or other liability. This limits the right not to be compelled to testify against him or herself or to confess guilt.

In other words, Australian citizens, if this legislation is passed, can be compelled by public servants to testify or confess guilt against themselves. Surely this breach of a fundamental right and legal standard must concern the majority of members of the Senate.

As the official name of this legislation, the Building and Construction Industry (Improving Productivity) Bill 2013, suggests, the whole purpose is to improve productivity in Australia. With extraordinary powers which target and destroy basic civil and human rights contained in this legislation, you would expect productivity in Australia, when compared to the rest of the world, to be very poor. The government's own documents prove that this is not the case. The Why Australia: benchmark report from Austrade sells Australia to the rest of the world and undermines the political doom-and-gloom message that the Abbott government needs to peddle locally in order to convince ordinary Australians to easily give up their basic civil and human rights and therefore accept unacceptable government behaviour when the likes of Mr Hockey, the PM and Senator Abetz steal from the sick, the poor and the elderly and then, with the assistance of a compliant media, rebadge the theft as 'budget savings'

Whenever the government members say 'budget savings', they are clearly misleading the nation. 'Budget savings' is a clever way for Liberal politicians to say, 'Hey, let's steal from poor, vulnerable Australians while we look after our own rich mates.

In relation to labour productivity, this is what the Abbott government is telling our foreign neighbours.

Australia has enjoyed a sustained period of labour productivity growth exceeding growth in real wages. Over Australia's 23 years of consecutive economic growth, labour productivity has recorded a compound annual growth rate of 1.8 per cent per annum, while real unit labour costs have fallen by 0.5 per cent each year. Australia has experienced particularly strong labour productivity growth over the past two years, with growth of 1.9 per cent in 2012-13 and 2.6 per cent in 2013-14. During this same period, real unit labour costs have broadly remained stable, indicating that effective cost of labour has remained in line with productivity improvements.

The government's own words have busted their own myth regarding a labour productivity crisis in Australia. Therefore the government's own words have undermined the reason to rush extraordinary legislation through this parliament before the final findings of a royal commission into union corruption are made public and properly considered and the recommendations put across the table.

I am not naive or inexperienced enough to believe that all is well in the building and construction industry or has been well in the union movement. Some elements of Australia's union movement have behaved in a shameful, selfish and unpatriotic manner. Hal GP Colebatch has written a book which details and proves how Australian unions sabotaged our troops in World War II. The book tells the shocking, true but largely suppressed and hidden story of the war waged from 1939 to 1945 by a number of key Australian trade unions against their own society and against the men and women of Australia's fighting forces at the time of Australia's greatest peril.

However, I have to say that, to their great credit, the union movement are now leading the way, helping our veterans integrate and transition back into civilian society, when this Liberal-National Party is trying to cover up the deadly dysfunction in the Department of Veterans' Affairs. The union movement has a program called Helmets to Hardhats which aims to re-employ and train some of the 70,000 young diggers who have served in war zones over the last decade and a half. They have also joined the fight to lower the appalling suicide rate of our veterans—a very dark fact that this Liberal-National Party does everything to cover up and hide, because they know it is a national shame.

There may be a few in the union movement who are happy that I will vote against this legislation. They may think that they can continue to get away with their illegal activities. I have received many briefings from Tasmanian builders who have great fears over the undue and allegedly corrupt and criminal behaviour of the unions who work in the building industry. Of course, I urge those builders to document their concerns and allegations and take them to the police and other law enforcement agencies. However, if the Tasmanian builders do not receive action and enjoy the justice they deserve from the existing authorities, I will take their sworn statements of corruption and/or criminal behaviour and table their allegations in this Senate under privilege. I will not tolerate any illegal activities, bully boys or standover activities on building sites in Tasmania. I will not tolerate Tasmanian builders and their employees who work on the mainland being bullied, stood over or discriminated against. There may be some in the union movement who have not got the message that criminal behaviour will no longer be tolerated or accepted and that from this day forward we will have new opportunities for consensus and cooperation in the building industry. For those silly few left in the union movement who think they can take me on over the protection I will give to Tasmanian builders and workers should our law enforcement agencies fail, I have a simple message. Islamic State threatens to behead me. That does not intimidate me, and neither will any threats from any unions or bullies.

I oppose this legislation because it demonstrates a pattern of political behaviour that we witnessed in Queensland that was driven by former Premier Campbell Newman. In the rush to achieve a quick outcome or get an easy conviction through by passing the existing system of law and order, Australia runs the risk of damaging fundamental human and civil rights—building blocks of our nation.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

I rise to make what appears to be a very short contribution to this—

A government senator: Short but elegant.

I am hoping. In the couple of minutes I have, what I want to point out is that I listened carefully to the contributions made over the course of this morning on the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013. Here they come—the conga line, the chorus boys for the trade union movement. They will not want to hear what I have to say, because I listened carefully to the contributions, particularly from that side of the house, and not once did I hear them use the words 'rule of law'—not once in any contribution. Not once did I hear them talk about the victims of the thuggery that exists in the construction industry—not once. Here is the clanger: the reason they did not talk about this is that they do not understand it—the word 'productivity' and improving productivity. Mine is in about 22-point font right at the top of the paper. I must say—through you, Mr President—that you did refer to productivity, Senator Lambie. That was the only time any contribution referred to it today. Nobody talked about the rule of law. Nobody talked about the protections that should be in place for people in the workplace. No-one talked about the private sector, which contributes almost absolutely to the productivity of this nation.

What I have to say about our colleagues on the other side is that they have spent their lives trying to take something off somebody else. You do not create wealth. You do not create employment. You just wait like a vulture, standing to take something off somebody else. If you want that to continue—if you want the private sector to make the contribution to the economy—you have to allow productivity to occur. There they are—a conga line of apologists for the trade union movement who just come in here, never mentioning the victims of the thuggery that occurs in the construction industry. Until you can create—

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Mr President, on a point of order, we are just wondering if the senator is speaking from his correct chair.

Stephen Parry (President) Share this | Link to this | Hansard source

That is no point of order. He is acting whip, so there is no point of order. Order! It being 2 pm, we now proceed to questions without notice.