Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I rise to indicate Labor's opposition to the Construction Industry Amendment (Protecting Witnesses) Bill 2015. The bill will continue state discrimination against building and construction industry workers by maintaining a coercive power that applies to no other Australian worker.

Labor appointed the respected former Justice Murray Wilcox QC, to undertake consultation and prepare a report on matters related to the creation of a specialist division of the inspectorate of Fair Work Australia. Justice Wilcox provided a report to the Labor government in 2009. The report recommended a continuation of compulsory interrogation powers, subject to a sunset clause and an inquiry into their continuance or otherwise. In addition to the sunset clause, checks and balances were included such as the issuing of compulsory attendance for interrogation only by a presidential member of the Administrative Appeals Tribunal. The government must conduct a properly established independent inquiry into the merits or otherwise of extending the sunset clause. We will not support this bill when the recommendation for a review is being ignored for political and ideological reasons.

Six years on, and despite the best efforts of the coalition government to denigrate building workers and their unions, no evidence exists that the continuation of discrimination against building and construction workers is in the national interest.

The government and government senators, in their Senate Education and Employment Legislation Committee report on this bill, made it clear that they want a return to the draconian Australian Building and Construction Commission. The ABCC bill will remove the important safeguards Justice Wilcox identified and Labor enacted in relation to the Administrative Appeals Tribunal. Arguments from government senators that this is simply about extending the operation of the powers under the act are patiently untrue. Just read the coalition senators' report in the bill to see the true agenda.

This is a government that cannot be trusted, a government addicted to deception. I will not repeat the concerns raised by the Parliamentary Joint Committee on Human Rights and the Senate Scrutiny of Bills Committee, suffice to say that none of the deep concerns raised by these joint party committees have been addressed by the government.

The government is determined to trample the human rights and the industrial rights of a group of Australian workers in what can only be viewed as an attempt to increase the share of income going to the profits of the building companies at the expense of building and construction workers around the country.

Is it any wonder that workers' rights are being trashed when the Liberal National Party receives massive election funding from the industry? An example of this is the $430,000 paid to the coalition front company, the Altum property trust, by Walton Construction. This cosy relationship between the coalition and the building industry continued even when Walton Constructions was about to collapse, owing Sunshine Coast subcontractors $2.9 million. This collapsed building company donated more than $1.4 million to the Liberal National Party between 2009 and 2013. Is it any wonder that the coalition want to do the bidding of the building industry?

I would call on Senator Lazarus to consider this outrageous position prior to making any decision to support this legislation.

Queensland workers and Queensland small businesses were ripped off at the same time as the Liberal National Party were pocketing $430,000 of this distressed company's money. This money should have been helping to feed and clothe the families of Queensland construction workers, and it should have been maintaining small businesses in their capacity to employ construction workers.

I call on the Liberal National Party to give the money back to the small businesses and the construction workers who were ripped off by this company. They should do that as a matter of morality and as a matter of natural justice.

This bill is the precursor to extremist industrial legislation. It is being justified as being in the national interest and improving productivity. There is no evidence that this is the case. The approach taken by this government against building and construction workers is nothing more than modern McCarthyism. They have established a royal commission with narrow terms of reference designed to inflict maximum damage on workers' rights to form a union and collectively bargain. They have made allegation upon allegation without evidence or corroboration. They are using parliamentary privilege to name CFMEU officials and to link them, without evidence, to criminal activity—including threats of rape. They have manufactured evidence of productivity gains by funding flawed and discredited econometric modelling. They are overstating the threat to the economy. They are removing individual rights. They are discriminating and intimidating building workers. They are using the so-called 'national interest' to diminish the human rights of building workers. They are favouring employers at the expense of employees. They are legislating to diminish equality at law and they are establishing a biased, politically-driven regulatory body.

The government have used a range of arguments to justify this McCarthyism. They continually use the Econtech report, which was based on flawed analysis, to argue that productivity, industrial lawlessness, health and safety and fatalities have been positively affected by the introduction of the ABCC. The Econtech report and its methodology have been criticised and critiqued by the Productivity Commission, PricewaterhouseCoopers, the Grattan Institute, Professor David Peetz, Justice Wilcox and a range of other eminent economists. The critiques have been so strong that Econtech changed its name to KPMG Econtech and then to Independent Economics. Is it any wonder that this company has changed its name to run away from its flawed analysis?

If ever there were evidence that hired-gun economists will produce econometric modelling to justify their client's case then this is it. There was no magical 9.4 per cent increase in productivity as a result of the ABCC or other reforms. And there was no equally magical seven per cent drop in productivity as a result of the fair work building commission coming into effect—absolutely no evidence.

In their recent productivity scorecard focused on the construction industry, PricewaterhouseCoopers made a number of observations. You would not argue that PricewaterhouseCoopers was a supporter of the CFMEU. But PricewaterhouseCoopers said that growth in labour productivity in the construction industry has tracked closely with the market sector over the past 15 years aside from a dip around the introduction of the GST, when housing construction was brought forward. They went on to say that, in relative terms, capital productivity outperformed the market sector between 1994-95 and 2004-05, due to the poor performance of the market sector generally. However, since 2005-06 it has declined at a similar rate as the market sector. Multifactor productivity for the construction industry has tracked closely with the market sector since 2007-08.

In 2013 Econtech cited a Grattan Institute report as supportive evidence. However, PricewaterhouseCoopers made the following observation on the construction industry and the relevance of external research:

The Grattan Institute notes that at the macro (i.e. economy-wide) level, 'there is no clear link between labour productivity growth and IR laws', and also 'at a firm level there is no obvious link between IR reform and productivity changes.'

Despite these observations, industrial relations (IR) is one of the key productivity battlegrounds in the construction industry.

So PricewaterhouseCoopers said it is a battleground for productivity and that it really has no basis to be that battleground. PricewaterhouseCoopers said:

Much of the focus in recent times has been on the potential reinstatement of the Australian Building and Construction Commission (ABCC).

There has been considerable debate about the degree to which the ABCC is a positive for productivity in the construction industry. A series of benchmarking studies commissioned by the ABCC and the Master Builders Association have sought to portray the ABCC as the driver of improved productivity in the construction industry. These studies have been critiqued and the analysis found wanting on a number of methodological grounds.

The fair work building commission, under its current regime, has selectively chosen data to give the impression that, under the ABCC and the recent iteration of the fair work building commission, workplace deaths in the industry have declined. This is part of a political campaign and political lobbying conducted by the fair work building commissioner, Mr Nigel Hadgkiss. Mr Hadgkiss has been politically lobbying crossbench senators and using flawed, incorrect and misleading overheads in presentations to crossbench senators.

It is disgusting that a so-called 'public servant' would deliberately use selective statistics on workplace fatalities to advance his career and the extremist policies of the government. Using manipulated and flawed workplace fatality statistics as part of a political campaign is disgusting and reprehensible. It demonstrates how low this government and its attack dogs will go to attack collective bargaining and trade unionism in the building and construction industry.

Safe Work data shows that over the period of compulsory interrogations—that is, 2006 to 2009—the rate of fatalities was 32 percent higher than the subsequent period when the compulsory interrogations ceased. The fair work building commission data also suggests that construction has one of the lowest fatality rates of any industry. But many industries are missing from the chart that they use. In fact, over the period 2004 to 2014 construction fatality rates were always above the national average, unfortunately so.

The claim that coercive powers have led to more successful prosecutions and that they are necessary for proceedings to take place is also false. It is based on the data analysis through the various iterations of the building industry tribunal, ABCC and fair work building commission. In fact, more successful prosecutions occurred during the period after 2009, without the use of coercive powers. The arguments for coercive powers do not stack up. Treating building and construction workers differently from the rest of the community is unjustified and unfair.

The government should look at the real issues affecting the building and construction industry. Recent analysis shows that in the last 10 years more than one in five of all insolvency events occurred in the construction industry, with an estimated $2.72 billion owed to creditors in 2013-14 alone. Administrators have reported that in 2013-14 some $137 million was owed to construction workers and their families, including $63 million in superannuation. More than three-quarters of these reports also identify some type of civil or criminal misconduct by a company director. The Australian Securities and Investments Commission reports only two 'enforcement outcomes' under the insolvency category for the full two-year period 2013 to 2014.

The government has cut ASIC's funding by $120 million over four years, with a loss of 209 staff. In the same budget, the fair work building commission received a 17.25 per cent increase in funding, to $34.3 million, including a 32.6 per cent increase in spending on staff. So the enforcement agency for employers gets cut; the enforcement agency against workers get an increase. How fair is that? How tenable is that? This is another example of this government's bias and unacceptable position. Pursuing its ideological vendetta against the trade union movement is more important to this government than ensuring the rule of law is enforced against corrupt employers.

A 2010 report using ASIC insolvency data showed that the six most commonly reported reasons for corporate failure in the construction sector were (1) inadequate cash flow or high cash use, (2) poor strategic management of business, (3) poor financial control, including lack of records, (4) poor economic conditions and (5) trading losses. The big bad CFMEU do not come onto the radar. They are not the issue. The issues are the issues outlined by the ASIC investigation. The sixth area was undercapitalisation. Industrial relations did not make the first six issues.

I want to now turn to the current operation and leadership of the ABCC. I have never seen a more biased, politically driven and incompetent public servant than the current fair work building commissioner. Mr Hadgkiss in his appearances before Senate estimates and in Senate inquiries has demonstrated either that he is incompetent or that he holds the Senate and parliament in contempt. Mr Hadgkiss, in his appearances before estimates and committee hearings, has been evasive, arrogant, contemptuous and incompetent. If crossbench senators approve this bill then they will be giving power to a public servant who will abuse it. Nigel Hadgkiss is nothing more than a puppet of the government. He is the government's attack dog in the industry, using legislative power to intimidate workers exercising their rights to belong to a union, collectively bargain and be safe at work.

Nigel Hadgkiss is the perfect example of the problems of regulatory capture. According to the Australian National Audit Office in its Administering regulation: better practice guide:

I was absolutely gobsmacked when during the February additional estimates I asked him whether he had heard of regulatory capture. The exchange goes like this. I asked Mr Hadgkiss:

… you meet with the industry players on a regular basis—some 50-odd times—and you have got Master Builders providing training for your people. Have you heard of a regulatory capture?

He replied: 'A what, sorry?' I responded: 'Regulatory capture.' Mr Hadgkiss said:

I am not sure what you are talking about, Senator.

I asked again:

You do not know what a regulatory capture is? I think Mr Corney is trying to explain it to you.

Mr Hadgkiss conceded:

I am not familiar with it, Senator, no.

In disbelief, I asked again:

You are not familiar?

Mr Hadgkiss said no. This is a regulator with immense power overseeing an industry where employers have significant power and control over their employees. This is an industry that has captured the regulator. The regulator has absolutely no clue about the serious implications of this failure of leadership. For a regulator to have no understanding of regulatory capture is beyond belief. This simply demonstrates that Mr Hadgkiss is unfit for office. (Time expired)

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Construction Industry Amendment (Protecting Witnesses) Bill 2015. This bill arises from a desperate attempt of the government to retain the draconian powers that arose out of the establishment of the Australian Building and Construction Commission, which was subsequently abolished by the parliament and which the government has sought to re-establish. Because it was clear that the Senate would not support the reinstatement of the ABCC, the government has done a deal to retain the remaining coercive powers continued after the ABCC was abolished by extending the sunset clause in the act.

I want to make it crystal clear that, unlike others in this place, the Australian Greens will not participate in an attack on workers' rights. There is no justification for the coercive powers that cover the building industry to be extended for another two years. The powers and the criminal sanctions which attach to it are excessive, unnecessary and inconsistent with internationally recognised labour standards and the industrial norms of a modern democracy.

We will be opposing the bill. The current powers of inspectors operating under the Fair Work Act 2009 are adequate to allow for satisfactory investigations. These inspectors are able to enforce industrial laws. The Fair Work Ombudsman as an industrial regulator has the necessary powers to be an effective body for the industry.

Under current federal legislation there are two separate and separately funded statutory agencies enforcing one set of industrial laws. The Fair Work Ombudsman was established under the Fair Work Act, and the Office of the Fair Work Building Industry Inspectorate was created by that act. Although the Office of the Fair Work Building Industry Inspectorate is confined in its role to laws applying to building workers, its statutory mandate is virtually identical to that of the Fair Work Ombudsman.

Since the introduction of the Fair Work Amendment Act 2012 there is no difference in the laws that the Fair Work Ombudsman and the Office of the Fair Work Building Industry Inspectorate enforce or the penalties which apply to any contravention of these laws. In particular, it is important to note that neither the Fair Work Ombudsman nor the Office of the Fair Work Building Industry Inspectorate has any role in enforcing criminal laws covering such things as intimidation, blackmail or offences under the Corporations Act. These are matters that are being discussed as justification for this bill's passage.

It is really important to realise that, if this bill is rejected, the Office of the Fair Work Building Industry Inspectorate inspectors will have the same powers in respect of building matters as those available to inspectors of the Fair Work Ombudsman under the Fair Work Act. There has never been any suggestion that these powers are ineffective or inadequate for an industrial inspectorate. To the contrary, the Fair Work Ombudsman has proved an effective regulator and has used all of its available powers to investigate and prosecute industrial matters in an uncontroversial and apolitical way.

Further, the Office of the Fair Work Building Industry Inspectorate's own records show that there has been very limited recent use of these powers at all. The most recently published report of the FWBII shows that its coercive notices were relied on only four times in 2013-14 and only twice in 2012 and 2013. The fact is the Office of the Fair Work Building Industry Inspectorate has not used these notices to cover for large numbers of witnesses, as it is claimed, who would not come forward without them.

The Greens are opposed to the use of coercive powers in the industrial context. These powers and the associated criminal sanctions have no place in a democratic society. There is no justification for introducing this measure which allows certain workers to be secretly interrogated. These measures are inconsistent with international labour standards. The civil penalty supporting the power to require production of documents and records is an adequate deterrent.

The powers and the criminal sanctions behind them represent a serious incursion into the civil liberties of Australian citizens which is unwarranted in a workplace context. They are plainly not critical to the investigation and enforcement processes of the FWBII. The powers conferred by the Fair Work Act are adequate and proportionate to the purpose of industrial investigations.

Workers in the construction industry should come under the same laws as all other workers. If this bill is passed, it will mean that workers could be subject to arbitrary interrogations. This is a form of harassment and intimidation that runs counter to the norms of a fair society. It is relevant to consider where support for this legislation is coming from. Vigorous support is coming from those who profit enormously in the construction industry. As many construction company owners mistakenly equate union activity with reduced profitability, they have in turn supported coercive powers, executed by a publicly funded prosecutor of unions and workers.

The regulation of the construction industry should come under the same regime as that which covers all workers and their employers. The Combined Construction Unions noted in their submission that the Wilcox inquiry did not support the extension of coercive powers beyond 2015. They stated:

… Wilcox was satisfied that the Parliament, in introducing the Fair Work Act, had recently considered what the federal labour inspectorate should look like and what the necessary and appropriate powers of such a body would be. His view was that whilst there might be some temporary short term focus on the construction industry, this should be through administrative arrangements only and could be carried out through the FWO. There should be no ongoing statutory agency like the FWBII and no ongoing need for coercive powers of the kind provided for by this Bill.

There is no good reason to extend these coercive powers for a further two years. The existing powers of inspectors under the Fair Work Act are more than adequate to allow for effective investigation and enforcement of industrial laws. The idea that there should be coercive powers above and beyond those enjoyed by the Fair Work Ombudsman, especially when these are focused on employee and union conduct, offends against the most basic principle of equality before the law.

The proper objective should be to do away with these extraordinary powers and return the regulation of the construction industry to the same regime as applies to all other Australian employees and employers. There should be no separate agency and no separate powers in the form outlined in this legislation; therefore, the Australian Greens will absolutely be opposing this bill.

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

It gives me great pleasure to rise to speak in support of the Construction Industry Amendment (Protecting Witnesses) Bill 2015. This is important and urgent legislation to preserve the existing investigative powers of Fair Work Building and Construction. This stopgap bill will allow more time for senators to consider the broader problems with the current regulation of the building and construction industry—problems that can only be rectified through re-establishing effective legislation and re-establishing the Australian Building and Construction Commission. The pressing issue today, however, is that the compulsory powers of the current regulator are due to expire on 31 May 2015.

The Labor Party would have been happy to do away with these compulsory powers when it abolished the ABCC in 2012 but its own review of the construction industry recommended against this course. In the Labor inquiry into the ABCC in 2009 former Federal Court judge Murray Wilcox QC said that he could not recommend getting rid of the compulsory powers because to get rid of them—and it is a pity that Senator Cameron has left the chamber and cannot hear the words of Justice Wilcox—'would not be a responsible course'. He went on to say, 'The reality is that, without such a power, some types of contravention would be almost impossible to prove.'

So Labor were in a sticky place. They wanted to abolish the powers to appease the ETU and the CFMEU but only by flying in the face of the evidence in their own report and ignoring its recommendations. It is very quiet on the other side. This is why Labor retained the ABCC powers. Let us be very clear—the powers we want to extend today are the very powers Labor introduced in their legislation. Even though Labor kept the former ABCC's powers, they included a sunset date of 31 May 2015. Labor also watered down the industry regulator's authority, cut the maximum penalty for wrongdoing by two-thirds, removed a third of the regulator's staff and cut a third of its funding.

Any independent observer will agree that the level of respect for the law in the industry has not improved since Justice Wilcox made his recommendations to Labor. There remains an unacceptable level of unlawfulness and disregard for the rule of law exhibited by some in the building industry. The reality is that the present legislation is simply not enough to deter certain elements from repeatedly breaking the law as and when it suits them. For this reason the coalition government is committed to re-establishing an effective regulator in the ABCC. But while senators take the necessary time to consider the ABCC legislation we cannot afford to lose the compulsory powers that are necessary for the FWBC to carry out its role. This is what the protecting witnesses bill will do.

Whilst this stopgap measure is important, we must not lose focus on the underlying problem—a problem that the former ABCC was starting to address before it was abolished in 2012. Labor experimented with a weaker replacement framework and regulator after it abolished the ABCC but that experiment has not been successful in bringing the rule of law back to the industry. Labor gave the construction unions an opportunity to improve their conduct. It was quite literally only weeks after Labor abolished the ABCC in 2012 that the CFMEU, supported by the ETU and other construction unions, shut down part of the Melbourne CBD for days in the infamous Grocon dispute. We have all seen the footage of the violence and thuggery unleashed on the streets of Melbourne by the CFMEU and ETU as part of the CFMEU's attack on Grocon and its workers.

What made this worse was that the blockade occurred in defiance of court orders—court orders, mind you, that the then newly weakened regulator did not seek. Indeed, the CFMEU has been before the courts 87 separate times since 1999. Just this year we heard from the Director of the FWBC that at that one time 72 CFMEU officials, including almost all of the union's state secretaries, were before the courts or industrial tribunals in a number of cases.

The courts have repeatedly made reference to the CFMEU's blatant disregard for the law. The Heydon royal commission found in its interim report that 'a culture of wilful defiance of the law appears to lie at the core of the CFMEU'. In a decision delivered by the Federal Court only the week before last the Federal Court found:

Mr Latham asked what the ramifications would be if—

the company—

did not enter into an enterprise agreement with the CFMEU. Mr Edwards—

the then CFMEU Victorian President—

answered that the CFMEU was going to 'f*** you over'.

My apologies to Hansard. The court also said:

This is but one of many examples of the CFMEU's sense of entitlement to pursue its objectives by any means, lawfully or unlawfully.

This is yet further evidence of the failure of Labor's watered-down legislation.

The FWBC is already weak. We cannot let it lose even more of its powers. So there is no misunderstanding I once again highlight that this stopgap bill simply extends powers which Labor retained from the former ABCC and which Labor gave to the FWBC. There is false outrage from those opposite—and Senator Cameron did quite a job. I love the fact that he regaled us with his interpretation of the Senate estimates process and his interactions with Nigel Hadgkiss. I encourage anyone who is interested in this issue to go to that transcript. It is fascinating reading. Despite the false outrage from those opposite, the Gillard government understood the need for the compulsory powers in this particular industry. Labor preserved and retained the ABCC compulsory powers. The coalition is now seeking to preserve these powers today until the ABCC is re-established.

The Senate Education and Employment Legislation Committee recently handed down its report on this bill. This is a committee that I chair. Labor members of the committee delivered a one-page dissenting report recommending that the bill not pass, which is somewhat extraordinary given, as I have said before, that we are dealing with the continuation of their own policy, of legislation introduced by Labor under the Gillard government. The Labor senators on the committee relied on two arguments to oppose the bill, both of which misstate and misunderstand the problem in the industry and history.

This is, frankly, a desperate and dishonest approach that has been taken by Labor senators, and it ought to be called out for what it is. Labor needs to write more than one page to explain why something that was good enough for Gillard Labor is not good enough for Shorten Labor. The two false arguments the Labor senators relied on were, firstly, that there is not a need for special powers in the construction industry. What an extraordinary position to take. I have spoken in this place a number of times, for anybody who has taken the time to listen, on what the CFMEU and other unions have been doing; their behaviour within the industry and external to the industry itself is unlawful. It seems these Labor senators have been absent for the last number of years and have missed the repeated instances of unlawful industrial conduct in this industry by construction unions, most of which is backed by intimidation, thuggery and the coercion of those too weak or too scared to stand up to the CFMEU and its thugs for fear of retribution.

It is incredible that Labor senators could ignore the mountain of evidence disclosing this enormous problem and this specific issue in the industry. It is a problem which Labor's own 2009 review highlighted and relied upon in recommending the retention of the ABCC powers. There was then and, regrettably, there still is now a culture of industrial unlawfulness in the construction industry. For many years it has been only too clear that the commercial building and construction sector provides the worst examples of industrial unlawfulness. No other industry comes close.

If Labor and its senators have not lost all credibility on this issue by suggesting there is nothing unique about the level and type of unlawfulness in the construction industry, one only needs to look at their second reason for not supporting the bill. The second, absurd, reason is that the government has not consulted enough. Seriously, what a joke! What an absolute joke. I cannot believe you could stand there with a straight face and make that accusation or assertion. The legislation to re-establish the ABCC, which retains the same compulsory powers we are talking about extending today, was introduced into the House of Representatives in the first sitting week of this coalition government. These compulsory powers have been a clear feature of the ABCC legislation from day one, and the powers have been discussed, explored and consulted upon. And, I might add—as the senator who chairs the committee responsible for this type of legislation and the deputy chair of the references committee which also examines this type of issue at the wont of Labor Party senators—they have been discussed in excruciating detail in both houses of parliament and numerous consultative forums. The bill that deals with these compulsory powers has been subject to not one, not two, but three separate Senate inquiries—two inquiries by the legislation committee and one by the Labor controlled references committee. These three Senate inquiries, each of which considered the compulsory powers, have received hundreds of pages of submissions from employer groups, employees, unions, industry and government. There have been numerous days of hearings in Canberra and elsewhere, and dozens and dozens of pages of reports have been published, yet Labor senators of the committee have the gall to say there has not been enough consultation and that is the reason they are opposing the bill. What a joke! What makes the Labor senators' dissenting report and the Labor position so intellectually dishonest is that these same Labor senators were part of the three other reviews.

The honourable thing for Labor senators to do today would be to vote for the extension of powers given to the FWBC by their own former Prime Minister—to stand by their own legacy. But I guess, when construction unions are the Labor Party's loan sharks, there has to be a payoff. You have to pay the piper, even if it results in witnesses and whistleblowers in the construction industry not having protection from reprisal by Labor's favourite union thugs for daring to speak out.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I would like to indicate my support for the measures in the Construction Industry Amendment (Protecting Witnesses) Bill 2015. I want to make it clear that I do not have a final position on the Building and Construction Industry (Improving Productivity) Bill and associated legislation; however, I do think it is useful to amend the sunset provision relating to the investigative powers of the Fair Work Building Industry Inspectorate so the current conditions can continue while the ABCC bills are debated.

I am a strong supporter of unions, and I believe they form a vital part of Australia's workplace relations framework. It is incredibly important that workers have the power of union representation, and the long history of unions in fighting for better pay and conditions speaks for itself. However, I do believe there are some unscrupulous operators within some unions—as there are in any organisation—and, insofar as there may be systemic issues in respect of some unions or industries, they need to be dealt with in a way that is fair and comprehensive, and that is why this sunset clause needs to be extended.

All of the union officials I have spoken to are strongly against any kind of illegal or unconscionable activity and, indeed, have taken significant steps to investigate and address any such allegations. I have met and worked with Michael O'Connor, the head of the CFMEU nationally in this country, whom I have a lot of time for. We have worked together closely on issues such as dumping, which is costing Australians good jobs because products are being dumped in our market below cost in breach of WTO rules which I do not think are being enforced adequately in this country. I have worked with him on issues such as imported products which are of inferior quality, and we have seen in the building sector some cladding that is not fireproof, which is a real issue. That is an issue that transcends ideology or politics—that is an issue we need to look at very, very closely. So there are issues we work together on very closely, but fundamentally I do not support the CFMEU's position in terms of the sunset clause. I think it is essential we maintain it.

The willingness on the part of union leaders such as Michael O'Connor to address these issues does not mean that the powers currently held by the Fair Work Building Industry Inspectorate are redundant. I note that both the opposition and the Greens, in their separate dissenting reports to the committee inquiry into this bill, stated that, as these powers have not been used extensively, they should not be maintained. I disagree. I am glad there has not been an extensive need for the inspectorate to use these powers, but that does not mean they should not exist. We do not just wear seatbelts when we have a crash; we wear seatbelts in case we have a crash. In my view, these investigative powers are an important part of the inspectorate's toolkit. The fact that they have not been used excessively is actually a good sign; a sign that the inspectorate takes these powers seriously and uses them sparingly.

I acknowledge the concerns that have been raised in the context of the building and construction industry bills. I look forward to further debate on these matters. As I mentioned earlier, I have not yet reached a final position on the measures in those bills, although I can say that if you have people being paid well, people being treated fairly and increased levels of productivity then that must be a good thing in terms of the national interest. If our buildings are being built more productively and if people are being paid well that has to be good for our nation's wealth as a whole. In the context of this bill it is useful, it is necessary, in fact it is essential that the status quo continue until the vote on these bills is finalised. As such, I will be supporting this bill, and I look forward to debating the building and construction industry bills at a later date.

The final point I wish to make is this: when this debate came up under the former government, under the Gillard government, it was acknowledged that these powers should exist. These powers of compelling witnesses to give evidence are not unusual in other pieces of legislation. ASIC, our corporate regulator, has them and the ACCC, our consumer and competition watchdog, has those powers. I think it is appropriate that similar powers exist in this sector. So with those comments it seems to me to be illogical not to allow the sunset clause to be extended pending further consideration of other measures for the construction industry. I think that if this bill is defeated it will be an issue of real concern in terms of those minority elements in the sector that are not doing the right thing, and I include a number of rogue employers who are involved in agreements and conduct that would be improper. I think these powers need to be maintained. That is why I strongly support this bill.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

It gives me great pleasure to follow Senator Xenophon on one of those occasions when we are both supporting the same bill. I think the conclusion that we come to is that the construction industry is too important to be overrun by those that simply choose to ignore the rules as and when it suits them and then target those that dare to stand up and speak out. The FWBC compliance powers that exist to protect witnesses must be preserved until they can be provided to a re-established ABCC. These are the same compulsory powers of the former ABCC that were then retained by the Gillard Labor government and given to the FWBC. Because these powers, as has been explained, will sunset before the Senate can deal with the ABCC legislation in the coming weeks, we need to pass this protecting witnesses bill so that any current investigations are not prejudiced.

In researching these powers, I had occasion to watch a video that the CFMEU has put out on the compliance powers of the ABCC. To say it was rife with dishonesty would be an understatement. It was filled with dishonesty and false assertions. It was a work of fiction and, may I say, it was not a very good one at that. During my speech, I want to touch on the most egregious falsehoods in the video. Firstly, the dramatised clip shows three people literally standing over a witness and aggressively asking questions. This is completely dishonest. This indeed may reflect or disclose how the CFMEU conducts itself and its interviews but it is certainly not the case with the public officials at the FWBC and the ABCC. The irony of the CFMEU complaining about intimidation would be laughable if it were not that the consequences for victims of the CFMEU's intimidation and thuggery were not so devastating.

The video falsely claims that the ABCC powers would subject construction workers to laws which no-one else is subject to in Australia. This is nonsense. It is a complete fabrication. Firstly, let me be very clear: the ABCC powers are the same powers Labor gave the FWBC. Secondly, these powers are not new nor are they unique to the construction industry. The power to compel people to attend interviews and answer questions exists in ACCC, ASIC and APRA amongst others. These agencies have had those powers for longer than either the ABCC or the FWBC. So to suggest that these powers are unique to the construction industry is a deliberate falsehood.

The CFMEU also fails to disclose the important safeguards that apply to the FWBC and ABCC powers; the most significant being that any information given by a witness cannot be used against them in legal proceedings. Let me say that again: any evidence given by a witness cannot be used against them in legal proceedings. They are given an automatic immunity. This is why no-one who is suspected of breaking the law is ever examined. Even if a witness incriminates themselves by answering a question that information cannot be used against them. We should not forget that any witness can have a lawyer attend with them and that most FWBC and ABCC examinations are conducted by members of the independent bar. The CFMEU video also fails to mention that the FWBC pays witnesses their reasonable expenses, including the cost of their lawyer, their travel and any lost wages. Each interview is also tape and video recorded and witnesses are given a copy of the transcript to review and check.

I would also like to address an outrageous CFMEU falsehood I have heard; namely, that the ABCC or FWBC can come, and I quote, 'Take people off the street.' It is utter nonsense. This is nothing more than a desperate CFMEU ploy to scare and mislead people. If they have got nothing to hide why do they have to make stuff up?

But the worst and most dishonest aspect of the video is that it tries to piggyback off the important issue of workplace safety to oppose the powers. The video ends saying, 'Standing up for a safer workplace should never be a crime.' That is an absurd statement in that context. Of course it should not be a crime, and it is not a crime. It was not a crime under the former ABCC, it is not a crime under Labor's FWBC, and it will not be a crime under a re-established ABCC. This is just another terrible example of the unions misusing safety to promote a self-interested and purely industrial agenda. The CFMEU video ends by saying that those that stand up for safety should not be treated as criminals. Let me tell you they are not. For too long the unions have falsely cried safety as a lazy defence for their unlawful and unethical industrial conduct. They have cried wolf so often that they can no longer be believed.

Just so there can be no misunderstanding, I want to get a few facts onto the record. The former ABCC, Labor's Fair Work Act 2009, Labor's FWBC and the proposed ABCC all use the same standard when it comes to safety. If an employee has a reasonable concern about an imminent risk to his or her health or safety, it is not industrial action for that worker to stop work. This is the same rule that applied to construction workers under the former ABCC, that currently applies under Labor's current legislation and that will apply under a re-established ABCC.

In misusing safety for industrial purposes, unions only do their members a great disservice. On the broader need to re-establish an effective framework, I noted with interest that the Victorian State Secretary of the CFMEU, Mr John Setka, has sought to justify and excuse his unlawful conduct with a rather pathetic statement, 'I'm no choirboy,' as though this somehow justifies his intimidation and threatening conduct.

I would like to examine for a moment some of this conduct. Someone stands over others, intimidates and coerces them and then threatens them with reprisal if they speak out but then seeks to deprecate their behaviour with the words, 'I'm no choirboy,' as if that makes it okay. In 2003 it was reported that Setka, acting as a CFMEU official, threatened to 'fix up' two construction managers who were witnesses in an industrial relations case—but hang on: under Mr Setka's logic, he is no choirboy and we accept that, so it must be okay. Setka was charged with two counts of threatening the two Grocon employees as well as two counts of conduct 'calculated to improperly influence' the two witnesses to the commission case. Mr Setka was reported to have said to a manager: 'You effing watch, I'll get you. I've got a 12-year-old son and I swear on his effing life. You watch; I'll fix you up.' But don't worry about it; it's okay to make such threats because Mr Setka wants us to accept, as he accepts, that he's no choirboy! Thankfully, the court saw Mr Setka's threatening of witnesses for what it was and, choirboy or no choirboy, he was found guilty. Let's not forget this was conduct by the now State Secretary of the CFMEU targeted towards people who were going to stand up and speak out as witnesses in a commission case.

But I cannot pretend it is just one individual. It is not just John Setka. This is not a case of one rogue individual; it is a case of an endemic culture pervading this union and its officials. The royal commission interim report found in respect of senior CFMEU official Shaun Reardon:

In the weeks following the accident Mr Shaun Reardon (the Assistant State Secretary of the CFMEU) attended the site, shook the fence and yelled obscenities and threatening comments.

A witness statement further elaborates on Mr Reardon's behaviour and states, 'Shaun Reardon, who was an organiser, would regularly attend the Pentridge Village site and taunt, by shaking the fence and yelling, "We're going to get you and your family!" to a subcontractor and other staff on site.' In New South Wales we heard of the on-site conduct of CFMEU official Luke Collier—conduct aimed at sexually harassing and intimidating female FWBC inspectors on site. This is the same individual who failed to disclose serious criminal convictions in his application for a right-of-entry permit despite signing a statement acknowledging that he did not have any prior convictions.

We remember footage coming out of the royal commission of a South Australian CFMEU organiser physically assaulting an FWBC inspector on a construction site in Adelaide, verbally abusing and intimidating the independent public official. We recall the history of Craig Johnston, the former AMWU official who was jailed for a violent and destructive 'run through' of an employer's premises during an industrial dispute—a run through which left a pregnant worker cowering under her desk during the violent incident. After prison the CFMEU welcomed him with open arms to join the ranks of its officials.

And, back in Victoria, Setka's heir apparent at the CFMEU, Shaun Reardon—let's consider him again for a moment. Let me remind the Senate and ask people to recall the CFMEU dispute with Grocon. We remember—or we should—seeing images of workers on the news having to be bussed into the site through a back entrance because the CFMEU did not let them through.    And who was waiting for the workers at the back entrance as the police escorted their bus? None other than Mr Shaun Reardon. And what was he doing? He was using his phone to take video recordings of the faces of those workers that were coming off the bus and going to work.

I wonder why Mr Reardon and the CFMEU were so interested in identifying who the workers were that were going to work despite the CFMEU's blockade. Why was it necessary for the union's second in command to take video identifying who wanted to work? One would hope it would have absolutely nothing to do with creating scab sheets and organising retribution. Regrettably, that appears to be precisely what has happened. There was a poster—and I will not use it as a prop, but I will refer to it here—named 'Grocon's scabs named and shamed', in which photos of construction workers were put on a sheet of paper, and it says:

Get rid of these scabs out of our industry. They will never be forgotten.

That sort of shameful outing of people who just want to go to work, get on with it and not be part of the CFMEU's scandalous and outrageous conduct is a shameful thing. The same thing happened in Queensland, where it says:

Grocon flew these grubs to Queensland to cross a picket line and is paying them to do its dirty work in Victoria. Get rid of these scabs out of our industry. They will never be forgotten.

I can only presume that the photos and names appearing on this were taken from Mr Reardon's mobile phone footage.

It is a shame on the CFMEU to pursue this sort of activity in this country. It is a shameful confirmation of the mentality of the industry: that you do what the union tells you and, if you stand up or you speak out or, God forbid, you just want to go to work to put some food on the table for your family, you are going to be targeted. Who can deny, with the overwhelming amount of evidence that is available, that there is a culture of intimidation, threats, fear and reprisal for speaking out against injustice in the CFMEU?

That is why the compulsory powers are so necessary to protect witnesses. As a first step, we have to pass this stopgap protecting witnesses bill. As a necessary second step, we must re-establish the ABCC and return the rule of law to this industry. I will be supporting this bill.

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

Mr Acting Deputy President Sterle, thank you for taking my chair's duty. I rise this morning to oppose the Construction Industry Amendment (Protecting Witnesses) Bill 2015, and I think we just need some background on this bill. What we have seen from the Abbott government is that it attacks all sections of the Australian community. If it is not pensioners it is attacking, it is families; if it is not families it is attacking, it is young people; if it is not young people it is attacking, it is the unemployed; if the unemployed are not under attack, it is the homeless; and if the homeless are not under attack then it is refugees, workers and unions, particularly the CFMEU. They are all under attack from this government. It is indeed a partisan government, a government that governs only for the big end of town, and any group or any individual who threatens to disrupt that partisan relationship comes under attack from the Abbott government. This bill does just that—seeks to protect the interests of only one group.

The Construction Industry Amendment (Protecting Witnesses) Bill 2015 is another example of the Abbott government's ideology and its Tea Party agenda—its agenda to simply agree with its mates at the big end of town. This bill, regardless of what you will hear from the government, seeks to extend the coercive powers which Justice Wilcox said required not just a sunset clause but a review, a proper review that took into account all points of view—not just a chat with the Abbott government's mates at the big end of town but a proper review—with terms of reference and an independent chair. But, of course, we have never seen any independence from the Abbott government—never. It takes a partisan view on every single thing it does.

Let's have a look at what is at stake here. We have heard from the other side today all sorts of innuendo, exaggeration and untruths about a whole range of matters. But the simple facts are that there are currently laws in place which deal with corruption wherever it occurs, and Labor are on the record, as are the unions, as saying that we do not support corruption. Labor are on the record as saying that we do not support illegal behaviour. Indeed, there are powers within the current Fair Work regime and the Fair Work (Building Industry) Act to deal with the whole manner of complaints where people assert there has been some kind of illegal behaviour, whether that is employer behaviour, union behaviour or worker behaviour. The laws are there. But, of course, we never hear that from the Abbott government. You certainly never hear about the bad behaviour of employers, where lockouts occur, people have their rosters illegally changed and they get underpaid. None of that ever comes within the remit of the Abbott government, because they like to demonise unions and particularly the CFMEU.

The Labor government did act when we were in power, but certainly what we did was fair and just. We abolished the draconian Australian Building and Construction Commission that was established by the former Liberal government, and we established the Fair Work Building Industry Inspectorate. In establishing the new body, we acted on our election commitment at the time to consult widely on its operations and its functions. To that end, as many in here have mentioned, we asked the respected former Justice Wilcox to undertake consultation and prepare a report on matters related to the creation of a specialist division of the inspectorate of Fair Work Australia. Mr Wilcox provided a report to government in 2009, and the bill which gave effect to Mr Wilcox's principal recommendations was legislated in 2012. That sunset clause was put into the legislation, and it required—and it should require—any government to justify, with evidence, the need to extend that clause.

We heard this morning that there has been consultation. Well, there simply has not been consultation. There have been chats with the big end of town. There has been no formal consultation with the ACTU. There has been no formal consultation with any of the construction unions, because the government do not believe in formal independent processes; they just believe in innuendo and exaggeration. That is what they have done; they have simply exaggerated and continued to tell the stories they like to tell in here, which are half-truths and exaggerations, and say that somehow there has been some kind of consultation.

There has been no formal independent review of the very serious issues that Justice Wilcox entertained, and there has been no serious proper independent review of the legislation that Labor put in place. All we have heard from the Abbott government is hearsay, exaggeration, innuendo and untruths. Until the government provide evidence as to the merits or otherwise of extending the sunset clause, Labor will not be in a position to have an informed view on this matter. Of course, the government would rather keep making it up, keep the exaggeration and innuendo going, because that suits their political agenda. So Labor calls on the government to conduct the review, rather than using the sunset provisions as a political stunt in their never-ending crusade against the union movement.

Additionally, the government's bill, which they try to say is some kind of replication of what is already in place, seeks to reinstate the draconian Australian Building and Construction Commission. It removes the important safeguard, which Mr Wilcox identified and Labor enacted, that the ABC Commissioner needs to apply to a president member of the AAT for an examination note. The government also seek to remove the privilege against self-incrimination. So what we have here is the government saying that they merely want to extend the operation of the powers—and we have heard that this morning from government senators—but that is patently untrue. In reality, what the Abbott government really want to do—and it is clearly evident in their bill to reinstate the ABCC—is to impose more coercive powers with fewer protections and safeguards on their use.

It is important to note that, even if this bill is not successful, the Fair Work Ombudsman and those within the Office of the Fair Work Building Industry Inspectorate who are appointed as Fair Work inspectors currently have the power to compel the production of records or documents to assist in investigating industrial contraventions. We never hear about that; we hear stories, but we never hear where matters have been referred. Of course, there is also the Australian Crime Commission, which has significant coercive powers available to investigate allegations of criminality. It is also worth noting that Fair Work Building and Construction's annual report details that coercive powers were used only four times in 2013-14. So all the stories that we have heard in here this morning, of course, did not require the use of those coercive powers. All of those stories did not require workers to be pursued in the way that the government wants to pursue them with this bill. Of course, we know, from Senate inquiries and other areas, that the failure of the government to review is typical of the partisan manner in which the FWBII has operated since the election of the Abbott government.

We have heard in this place the demonisation of unions—particularly the CFMEU—go on and on this morning under the guise of parliamentary privilege. Labor has said over and over again, 'If matters are serious, they should be investigated.' If the Abbott government have evidence or information about serious matters that they have not made available to the proper authorities, they ought to do so as a matter of urgency. The only time the Abbott government attack the CFMEU, or indeed officials of the CFMEU, is under the guise of parliamentary privilege. That tells you, in and of itself, that they have nothing to justify these continued attacks. If they did, their obligation would be to report; their obligation would be to have the proper independent authorities investigate these matters. But that does not suit their political agenda. Their political agenda is about demonising particular parts of our community. In this case, it is the unions.

This particular bill has been shrouded in secrecy. It was introduced into the parliament in March, but there has been no public hearing on this bill. Not only have we not had the proper independent review that should have been conducted, we also have not had an open public inquiry into this bill, despite having had the time to do so. The bill was introduced in March, and the reporting date to the Senate from the committee was May. And, yes, we have had inquiries into other aspects of the building and construction industry, but this bill should have had a public review in and of itself where we could have had witnesses talk further to their submissions and where we could have had additional information brought to the committee. Of course, that did not suit the government. It did not suit the Abbott government to have that public inquiry, because their attacks under parliamentary privilege might well have been challenged in that Senate inquiry. But we will never know that, because we never had the opportunity of a public open inquiry process, despite there being ample time.

When I looked at the submissions from the employers, it was almost as if the government, the employers, the big end of town, ACCI, Master Builders and so on were speaking with one voice. So all I saw in the submissions from the employers and employer associations was further innuendo, further exaggeration and further hearsay about this general nature of industrial unrest in the construction industry. And nothing could be further from the truth: there has been a decline in days lost to industrial action, but you do not hear that from the Abbott government. There has been a decline in the number of days lost to industrial action—industrial action properly constituted as a bargaining process—but you will not hear from that from the Abbott government either.

Of course the serious issue of the increasing number of deaths in the construction industry is not something you will ever hear the Abbott government speak about. Last year there were 28 tragic deaths in the building industry. What did the Abbott government have to say about that? Not one word—there was not one single word from the Abbott government about those deaths. Shamefully, the number of deaths is up—11 more deaths than in the previous calendar year. In the previous calendar year there were 17; last year there were 28. Do we have legislation before us to urgently address those deaths in the construction industry? No, of course we don't—because it does not suit the government's political agenda. Their political agenda is about demonising unions, not protecting workers. If they were genuine about protecting workers, they would do something immediately about those 28 deaths in the construction industry. Indeed, in all industries the number of deaths is much higher than that. No Australian worker should lose their life earning their livelihood, and yet this issue goes completely unnoticed by the Abbott government.

When I asked the Department of Employment what they were doing about this increase in deaths in the workplace, they told me they were continuing to apply their 10-year plan. When I suggested to the department that because of this tragic and unnecessary increase in deaths perhaps their plan needed to be reviewed, they did not think that was the case. That was because the government is not leading on this issue; the government is not leading on workplace deaths. I cannot imagine the effect on families, on friends and on workplaces of a death that occurs in the workplace. We are better than this. Australian workplaces should be death free, but that is not the agenda of this Abbott government. There has been complete silence—not even condolences to those families or a plan saying, 'This is a national tragedy, and we are going to act on it.' No, the demonisation of the unions continues. The unions are trying to do something about deaths in the construction industry, and yet when they use their right of entry to investigate a health and safety matter the Abbott government accuses them of not pursuing health and safety. The record speaks for itself. You cannot have 28 deaths in an industry and suggest that that industry is a safe place to work. Clearly it is not. Union officials have a right to go in, but going in after a death is too late. We need to stop the deaths occurring right now. I want to see action from the Abbott government on that. I suspect there will continue to be silence.

The coercive powers have been used just four times. Of late, we have also seen workers in this country being ripped off, being underpaid and treated appallingly. The emphasis still remains on the construction industry, where we have seen less industrial action—proper legal industrial action as per Fair Work rights in relation to enterprise bargaining—and less lost time. That is not something you will hear about from the Abbott government. They will not admit that. It is time they started to admit that the construction industry in Australia is a dangerous place to work. We should be reviewing all our workplace health and safety and acting immediately to stop any more deaths in this industry. But, no, the demonisation will continue. I stand proudly, as many Labor senators do, in support of unions and workers. I want to see action on health and safety issues, and of course where allegations are made that individuals have broken the law then there are proper procedures in place to deal with that—but we not do not hear about that either from those opposite, because they would rather, under the guise of parliamentary privilege, continue telling untruths, exaggerations and hearsay. If they have evidence it is not appropriate to be raising it in this place and not raising it with the appropriate agencies that are there to deal with these issues. Their Tea Party ideology fools nobody anymore. If there is a state election coming up, you can bet your bottom dollar that unions will be demonised in this place. Their agenda is so transparent that they do not fool anyone with their right-wing Tea Party ideology of demonising unions. They do not fool workers and they do not fool the Australian voters.

The government should look at some of the programs the CFMEU has in place. FIFO suicides are a big problem in Western Australia, but they are not even regarded as deaths in the workplace. The CFMEU have done some fabulous work on putting mentors in place to ask their workmates if they are okay—good programs. They have good programs in place concerning domestic violence, but you will not hear about that from the Abbott government. They have good programs on health and safety, but the Abbott government would rather say they are abusing their powers when they enter the workplace to talk about health and safety. So let us hear about some of the good things that are going on. If the law is being broken, yes, let us pursue that, but let us stop demonising and pretending.

Ricky Muir (Victoria, Australian Motoring Enthusiast Party) Share this | Link to this | Hansard source

I rise to speak on the Construction Industry Amendment (Protecting Witnesses) Bill 2015. The Fair Work (Building Industry) Act 2012 was passed by the Labor Party when it was last in government. It contains coercive powers which make it a criminal offence not to cooperate and also provides for a maximum penalty of six months imprisonment if somebody is found guilty of failing to cooperate. These powers are subject to a sunset clause which takes effect on 31 May 2015.

The purpose of this bill is to extend that sunset clause for a further two years. This means that the Director of the Fair Work Building Industry Inspectorate can apply to a nominated Administrative Appeals Tribunal presidential member for an examination notice until 1 June 2017.

The debate surrounding the coercive powers has a long and complicated history and it is not going to be resolved during the debate on this bill. In its submission to the Education and Employment Legislation Committee, the Combined Construction Unions said that they have:

… consistently opposed the introduction and use of these powers in industrial matters since their inception. The power, and the criminal sanction which attaches to it, are excessive, unnecessary and inconsistent with internationally recognised labour standards and the industrial norms of a modern democracy.

The Department of Employment, in its submission to the same committee, stated:

The ability to compel a person to provide information is vital to protecting workers and witnesses who stand up to unlawfulness and intimidation and assist the regulator in its investigations. The powers also ensure the Fair Work Building Industry Inspectorate is able to carry out its investigations effectively and break down the 'culture of silence' and retribution that exists in the industry.

I want to make it clear that, as a person with a strong working-class background, these powers do not sit comfortably with me; however, the debate over whether these powers should continue to exist is far from over.

I would also like to take this opportunity to raise some of the issues I have observed during the debate over whether the ABCC should be reinstated and replace the current body, Fair Work Building and Construction. In my opinion, the government have muddied the waters of this debate by throwing around allegations of corruption, bikie gangs and criminal behaviour within the construction industry in order to justify the return of the ABCC. There may be instances of corruption and bikie gangs in the construction industry—there are a lot of colourful characters, I am sure—but the ABCC is not the body that is responsible for investigating and prosecuting these types of offences.

I agree with Mr Dave Noonan, the National Secretary of the Construction General Division, when he said that CFMEU members work in an industry full of risk—both physical and financial—on a daily basis. It is the union that chases companies for lost wages and entitlements; it is the union which tries to instil safety measures and regulations on sites; and it is the union which has to deal with unscrupulous employers who take shortcuts to increase their bottom line.

My vote today does not represent supporting the government on changes to workplace relations laws; it represents the continuing support of a law introduced by the Labor Party in 2012. I call on the government to conduct an independent review into the continued use of these powers within the next 12 months. FWBC has rarely used its coercive powers; however, that is beginning to change. If the government and Mr Hadgkiss claim that these powers are necessary, then I look forward to seeing the evidence.

I want to finish by making it clear that my support for this bill does not mean that I will support the reintroduction of the ABCC, and I look forward to contributing to that debate.

Eric Abetz (Tasmania, Liberal Party, Minister for Employment) Share this | Link to this | Hansard source

I thank honourable senators for their contributions, especially Senator Muir—except, I think for the last line of his speech; I would have liked him to have absolutely committed himself to support of the ABCC legislation of which in fact this bill is part and parcel.

As the Senate continues its consideration of the ABCC legislation, it has become necessary to address the expiry of the Fair Work Building and Construction's compulsory powers later this month—namely, on 31 May. It is crucial the Senate passes this stopgap bill so current and ongoing investigations are not compromised.

The compulsory powers of the FWBC and ABCC are essential to piercing the sinister veil of silence from witnesses and victims because they fear retribution and reprisal for speaking out against the intimidation that we so often see in this industry, most commonly on the part of the CFMEU. These powers are essential to give witnesses the protection of saying to union thugs and unscrupulous figures who threaten them not to cooperate with authorities that they were compelled and did not have a choice.

We heard, in the royal commission, Assistant Commissioner of Police Fontana give evidence that the Victoria Police were unable to continue numerous investigations because, even though witnesses were happy to tell police their story, the witnesses were too scared to sign their name to the statements. One wonders why they were too scared. The answer of course is: they would be targeted if they spoke out, and this is regrettably indicative of the state of the industry.

This same sentiment was expressed by FWBC Director Hadgkiss when he gave evidence in Senate estimates recently—and I note that Senator Cameron, true to form, once again attacked Mr Hadgkiss under parliamentary privilege, and doing so to a statutory office holder indicates the depths to which Mr Shorten will sink in asking his frontbench to come in and make those sorts of comments. What Mr Hadgkiss told Senate estimates is this:

We certainly have people in mind who have told us things off the record, but who are not prepared to go that one step further to provide a statement or to give an affidavit. But they have indicated that were we to exercise a compulsory examination that, obviously, they would come in and tell us what they saw and what they witnessed.

I simply say that these powers that we are seeking to extend are nothing new. Indeed, compulsory powers of a very similar, if not identical, nature—which includes failure to comply having a consequent term of imprisonment—are not rare. That sort of power exists with other regulators such as ASIC, APRA and the ACCC. Where is the cry of human rights when we impose that sort of legislative framework on company directors? There is no problem there according to Labor and the Greens. But yet when you want a similar situation for the construction union of this country and employers engaged in that sector—and it is a sword that cuts both ways that is both for the trade union movement and employers—there is this squeal of human rights.

What none of the Labor contributors said today, nor will they ever admit publicly, is that Labor's very own Fair Work Act, which they all campaigned for and voted for in the late 2000s, provides terms of imprisonment if a person fails to attend the Fair Work Commission or refuses to answer questions. Where is the outrage there? No problem there. It nearly seems as though the construction union, the CFMEU, should be sacred territory on which the law that applies to virtually every other citizen should not apply to them. I simply ask, rhetorically: where is the confected outrage from Labor and the Greens or the unions in relation to these compulsory powers that exist in the Fair Work Act? It is legislation they championed through this place.

Unlike the Fair Work Commission, the FWBC and ABCC compliance powers have significant safeguards. Key amongst them is that any evidence they give in an ABCC compulsory interview cannot be used against the witness. The other safeguards under the FWBC and ABCC compulsory powers are that witnesses are provided with at least 14 days written notice, entitled to have a lawyer present and reasonable expenses, including legal fees and travel, are covered. They receive conduct money to cover wages. The hearings are taped and video recorded. And a witness gets a copy of the transcript and an opportunity to correct it to their satisfaction. All of this is overseen by the Commonwealth Ombudsman. Not all of those provisions apply in relation to the other compulsory powers that I have just referred to.

There are many other aspects of the FWBC framework that we must also fix. Labor's weak regulator experiment of abolishing the former ABCC and replacing it with a weak imitation has been a monumental failure. Since the abolition of the ABCC, respect for the rule of law in the industry has become worse. One of the reasons is that the penalties clearly have not worked to deter people from breaking the law, and repeatedly so. The courts have said time and time again that the CFMEU continues to ignore the law despite the imposition of penalties. The maximum penalties are not acting as a deterrent and that must be addressed.

We must also establish an effective building code to ensure that those contractors that want to do taxpayer funded work pay their employees correctly, strictly comply with safety laws and do not violate migration laws. We must make an emphatic statement to everyone in the industry that cutting corners on any legal obligations is no longer an option. We must also ensure that those contractors do not engage in antiquated practices that only delay and add costs to the taxpayer. An effective building code means more public infrastructure gets built for the taxpayer and more jobs for the industry. If projects are not delayed and cost blow-outs are avoided, everyone benefits.

The CFMEU and ETU falsehoods about the code, including fanciful assertions that it bans days off on Christmas or that it bans penalty rates and rostered days off, have been debunked for the desperate scare campaign that they are.

Another problem with the current legislation is the completely absurd and unprecedented limitation imposed on the FWBC and its ability to enforce the law. The FWBC currently has no power to commence proceedings when someone who breaks the law reaches a 'private settlement' of legal proceedings with a person affected by the breach—that is, private parties can prevent the independent regulator from starting legal proceedings or, if it has commenced proceedings, from continuing them. These changes create the perverse outcome where wrongdoers have an incentive to also pressure their victims into so-called settlements to stop FWBC from holding them to account for breaking the law. It is the equivalent of an employer underpaying an employee, then pressuring that employee to settle for a nominal $5 payment and the regulator being unable to pursue the employer for a breach of workplace laws, or of a motorist running a red light and crashing into another car, settling with the other driver to pay for the damage and then the police losing the power to prosecute the driver for running the red light because of the private settlement. No other government regulator has the same limit on its powers. Why would you impose such a limit on the powers of the FWBC? An answer has never been given by the Australian Labor Party or the Australian Greens, who forced that through the Senate in the death throes of the previous government.

These amendments were introduced and then rushed through the House of Representatives in one day. The absurd limitation was condemned at the time, including by the Law Council of Australia, and this must also be addressed through the re-establishment of the ABCC.

We should not be surprised that Labor introduced this ridiculous amendment limiting the powers of the FWBC. After all, we heard a few weeks ago in the royal commission evidence from a senior former ETU official, Dean Mighell, when he disclosed that Labor traded policy positions for loans and donations from the CFMEU and ETU. Mr Mighell was quite open when he gave evidence that:

Given that the Federal ALP is desperate for funds, surely we can say that we will help them if and only if, they abolish the ABCC.

Out of a trade union official's mouth, under oath, is the evidence for all to see. I continue the quote:

I can tell you for a fact that unions are donating to Federal Labor for outcomes not promises.

And here they are—and undoubtedly later today they will vote according to the ETU and CFMEU wishes, courtesy of the money that has been paid over.

And, just in case you think that might be fanciful, let me join Senator Cameron's contribution earlier—and let him say that all those donations should be returned to the union. He spoke of a figure of $400,000. Let me give some context—and I call on Labor to return donations it has received from its key backers in the CFMEU and ETU. In 2010-11 the unions donated $11 million to the ALP, including $1.72 million from the CFMEU, $1.73 million from the ETU and $932,000 from the CEPU. Indeed, in recent times we have heard how the ETU made loans available to the then secretary of the ALP in New South Wales, now Senator Dastyari, who projects himself as the man for all financial rectitude. The loan was dealt with by a post-it note and not even recorded in the official minutes. The $500,000 and the other hundreds of thousands of dollars that he was able to get from the various trade unions were so desperately needed for the Labor Party to stay afloat, but of course $350,000 of that money went to pay for legal fees for one Craig Thomson so that the Gillard government could remain in power. This is the power of money talking and that is why, regrettably, the ALP and the Greens are going to vote the way that they will, I am assuming, later on today.

Can I simply say that Senator Cameron and Labor have lost all credibility in relation to this issue. We have seen, regrettably, Senator Cameron, on behalf of Mr Shorten, going into Senate estimates and running a defence for Luke Collier—for his despicable actions at a New South Wales site where all sorts of inappropriate, sexist and foul language was directed at a female public servant. Labor does not seem to want to condemn that but ran arguments about privacy when it was discovered that this particular person, who was an official of the CFMEU, had not disclosed prior convictions in his application for a right-of-entry ticket.

Those are the sorts of issues that we are dealing with in the construction sector. The construction sector is a vital sector. It is important. It is jobs-rich. And that is why it should not be subjected to the sort of blackmail that we have now seen over the years. Indeed, the Labor Party had its own inquiry under Justice Wilcox as to whether or not it was necessary for these coercive powers to continue. I confess I was one of those who assumed that it would be a foregone conclusion what Mr Wilcox would determine. But he himself was mugged by the overwhelming evidence, and he said that the coercive powers need to be retained.

So the question then is: having made that determination, what has occurred since Justice Wilcox's findings and Labor's own legislation that would lead you to a conclusion that these coercive powers are no longer necessary? Indeed, all the evidence is that things are getting worse, courtesy of Labor pulling the teeth of this very important watchdog that the Howard government had implemented to protect workers, to protect businesses and to protect those union officials who actually wanted to do the right thing by their workers and not engage in the sort of funny-money games that Dean Mighell and others have now exposed.

Can I say briefly in response to Senator Lines: of course we all support workers; of course we all support safety; and of course we all acknowledge the trade unions have a place. But if this legislation is, as she tried to say, 'Tea Party, right-wing ideology', can I simply remind her that her party introduced this legislation and voted for it only a matter of a few years ago. So does she say that she and her party were Tea Party propagandists only a few years ago? Of course not. The evidence is there. It is clear and it is regrettable. In my ideal world there would be no need for such a body. But the evidence is overwhelming and, given the overwhelming evidence, I encourage all honourable senators to support this stopgap measure, which simply extends the current powers of the Fair Work Building and Construction body to be able to protect witnesses when they give their evidence for another period of two years, during which time we will, hopefully, see the reintroduction of the full Australian Building and Construction Commission.

Mr Acting Deputy President, I notice Senator Lambie coming into the chamber. In the event that she would seek to make her contribution now, I can indicate we would give leave.

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

Thank you for pre-empting that, Senator Abetz. Senator Lambie did approach the chair and ask to speak, so, with permission of the chamber, Senator Lambie, please go ahead and speak.

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

Thank you, Senator Abetz. I was actually wrapped up with the Minister for Defence, Minister Andrews, this morning. I thank him for his time, because he gave me a whole hour and some more.

I rise to contribute to the second reading debate on the Construction Industry Amendment (Protecting Witnesses) Bill 2015. This is one of a number of bills before this parliament and Senate which will have a significant impact on the Australian building and construction industry. I have spent many hours hearing from both employers and union leaders whose members work in the building and construction industry. As I have mentioned in previous speeches, this is one of the most difficult issues and pieces of legislation I have had to consider and make decisions about.

There is much disagreement between builders and union bosses in the construction industry, but it is fair to say they agree on the purpose of this bill. The CFMEU say in their briefing documents:

… the Construction Industry Amendment (Protecting Witnesses) Bill 2015 … amends the Fair Work (Building Industry) Act 2012 (FW (BI) Act) to extend the period during which the Director of the Fair Work Building Industry Inspectorate (FWBII) can apply to a nominated Administrative Appeals Tribunal presidential member for an examination notice by a period of two years. Under the current provisions of the FW (BI) Act, the capacity for the Director to make such an application will expire on 31 May 2015.

3.The FW (BI) Act now provides that the Director may apply for an examination notice in circumstances where he/she wants to obtain information relevant to an investigation into a suspected contravention of the FW (BI) Act or a designated building law by a building industry participant. Once issued, these examination notices can compel a person to give certain information or documents to the Director, or to attend in person before the Director to answer questions relevant to an investigation not less than 14 days after the examination notice is given. A failure to comply with these notices is a criminal offence attracting a penalty of up to six months imprisonment. The common law privilege against self-incrimination which would otherwise apply is overridden by the FW (BI) Act.

4. The power to issue coercive notices in construction-related industrial matters, supported by a criminal sanction for non-compliance, has existed since the introduction of the Building and Construction industry Improvement Act in 2005.

5. In 2012, following the Wilcox review, the FW (BI) Act came into effect. This Act retained the coercive powers/criminal sanction until May 2015. It also introduced a number of statutory safeguards designed to minimise the chances of this intrusive power being abused.

Minister Abetz, in his second reading speech, essentially agreed with the CFMEU's description of the bill's purpose and powers when he told the Senate:

… this Bill, the Construction Industry Amendment (Protecting Witnesses) Bill 2015, will extend the period during which the Director of the Fair Work Building Industry Inspectorate can exercise the agency's compulsory powers.

The Bill will extend the powers for a further two years. All other aspects of the current legislation are unchanged, including the automatic immunity given to a witness over their evidence.

However, that is where the agreement between the CFMEU and the government stops. The common ground is exhausted. The CFMEU say:

The power, and the criminal sanction which attaches to it—

this legislation—

are excessive, unnecessary and inconsistent with internationally recognised labour standards and the industrial norms of a modern democracy.

The government, through its minister in his second reading speech, counters the union's argument that the laws breach fundamental civil rights, including the right to silence and the right to be presumed innocent until proven guilty, by stating:

The ability to compel a person to provide information is vital to protecting workers and witnesses who dare to stand up to unlawfulness and intimidation and assist the regulator to clean up the industry. The powers also ensure Fair Work Building and Construction is able to carry out its investigations effectively and break down the 'culture of silence' and retribution that exists in the sector.

So the key question that must be answered is: what is the level of corruption, crime and dysfunction in the building industry and is there an involvement of organised criminals in the Australian building industry? If, as the government says, the construction industry has been affected by unlawful conduct, thuggery and intimidation for too long, and if there is an involvement of organised criminals in the Australian building industry, then there is a strong case to support these extraordinary laws which take away basic civil liberties.

The best independent authority today to make that call and make those findings is the current royal commission. Their findings are not handed down until later this year. I would prefer that legislation which establishes the ABCC is debated in this Senate after those royal commission findings are made public. A previous royal commission headed by the Hon. Justice Terence Cole RFD, QC did make the case that the industry was characterised by lawlessness in the conduct of industrial relations and it recommended significant changes to industrial relations laws, which resulted in the current system. However, the Cole royal commission in the early 2000s found no evidence of organised criminal activity.

The acknowledgement of organised criminal activity in the Australian building and construction industry today by a royal commissioner would, in my mind, justify extraordinary action and legislation. However, until that official acknowledgement happens, I will be very cautious in my approach to any legislation which comes before this Senate which affects the basic human rights of building workers.

Apart from the current royal commission, I am aware of an official report that could answer with some credibility the question: are organised criminals involved in Australia's building and construction industry? I have been informed by many, including the report's author, that the Victorian government have a copy of that report. I have written to the Victorian government, to Premier Andrews, requesting that they release that report. To date they have acknowledged my letter, but I have had no further reply. The content of that letter to Premier Andrews is as follows:

Dear Premier

I refer you to what is allegedly a secret report, as well as a Cabinet in Confidence Report, authored by Nigel Hadgkiss, a former Construction Code Compliance Chief. Mr Hadgkiss is now a Director of the Fair Work Building and Construction Commission.

I have been reliably informed that one of the main purposes of the Report was to examine the connection between organised criminal gangs and the building and construction industry in Victoria.

A number of media stories have alleged that the Report given to the Victorian Government in 2013 warned of illegal behaviour during the Grocon dispute was "the tip of the iceberg" in an industry where "unlawful activity extends beyond unlawful industrial relations conduct into serious criminal activity".

Media reports in the Herald Sun on 1 April 2014 allege that strong links between a number of outlaw bikie gangs and the provision of drugs and prostitutes to the workers during the construction of the desalination plant also occurred.

I am very concerned about the alleged links between organised criminal gangs and Australia's Building and Construction industry and would appreciate if you could provide me with a copy of Mr Hadgkiss' Report.

I believe that Mr Hadkiss' Report is an important document which would allow me to become fully informed as I prepare to cast my vote and make a decision in the Federal Senate regarding the Australian Building Construction Code legislation. I understand the original terms of reference included:

I also believe that an updated final report was submitted by Mr Hadkiss in August 2013 with additional terms of reference:

I would appreciate it if you could please provide both these reports by return.

Yours sincerely

Senator Jacqui Lambie

Failing the receipt of a final report and recommendation from the current royal commissioner, the report held by the Victorian government may be enough to make an informed vote on the Abbott government's full legislative plan to manage the Australian building and construction industries.

So today I ask Minister Abetz to support my call for the Victorian government to make public Mr Hadgkiss's document. It is one thing to receive pressure from a crossbench senator; it is another to receive pressure from a federal government. So I think us working together could ensure that the document is made available to the public either through this Senate or through the existing royal commission, which may have powers to seize or at least request this important document.

Of course, this explosive report was initially made available to a Liberal state government, which then used the old technique of 'cabinet-in-confidence' to cover up its contents—which prompts the question: why? If the report does contain evidence of organised criminal involvement in the Victorian building industry, why would the Liberal Party want that evidence covered up? Up until now, the Liberal Party has been able to take the high moral ground when debate and community discussion focus on the Australian building industry, but the actions of the former state Liberal government in officially covering up this report at the very least must raise a few eyebrows.

I have had conversations with people who say they contributed to the secret Hadgkiss report. They have confirmed to me that the report would be damaging to both the Labor and Liberal governments. And that report is a tipping point and pivotal to the debate on the introduction of a strong regulator. So, if this government really wants to clean up the building industry, my message is loud and clear: find a way to make the information in the Hadgkiss secret report public. If the Liberal government fails to do that, then it is open to legitimate criticism that the Liberals, as well as Labor, have plenty to hide when it comes to corruption and organised crime connections in the building and construction industries.

Perhaps we should look at the high-rise building approvals granted to developers and fuelled by Chinese money during the time that the Liberals were in caretaker mode in the lead-up to the last state election. Did any of those big dollars find their way to any political parties? I guess we will not know that until the Hadgkiss report has been released, and I need to see that. I am sure that the crossbenchers would like to view that document as well. Thank you.

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

The question is that the bill be now read a second time.