Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

In rising tonight I want to remind this place of the history of this particular piece of legislation. This bill was introduced into the 44th Parliament on 14 November 2013. Indeed, it was introduced by the former Minister for Employment, Senator Eric Abetz. The bill in fact sat idle until 17 August 2015, when it was defeated in the Senate. The same bill was reintroduced in February 2016 before being defeated again in April 2016. As we know, the government used it as a trigger for the double dissolution. If the bill were the cause of the double dissolution which resulted in an election, you would have thought this bill would have been of the utmost importance to the maintenance and direction of our nation. However, the Prime Minister, Mr Turnbull, mentioned the ABCC legislation on only four days of what was a very long election campaign of some 55 days—four out of 55 days. Why so little mention of it? Quite frankly, the Prime Minister and this government know that this legislation is unpopular; it is not a vote winner; and its basis is completely unfounded and unjustified. It is, in fact, a political witch-hunt.

The government established an $80 million political witch-hunt royal commission in an attempt to justify it unsuccessfully. The royal commission report weakened, rather than strengthened, the case for the re-establishment of the ABCC, and that re-establishment in this legislation is completely and utterly unnecessary. As we know, we already have a building industry regulator in place and therefore the choice before this parliament today is not whether to establish a regulator, because we already have one—the fair work building commission which already has coercive powers. In its last annual report the FWBC had 124 investigations and used its coercive powers on 14 occasions. So, clearly, we have a regulator, and it is working. There is, in my view, no need to replace it, particularly when we know exactly what the legislation before us will do—we have seen it before.

What of the ABCC last time? Ironically, the bill before us is named 'improving productivity', but this, my friends, is so far from the truth that it is most laughable. The last time the ABCC was established, it did not bring in a new era of productivity; rather we saw productivity decrease in this country. Construction industry productivity increased more in the seven years before the introduction of the ABCC than it did in the seven years of the ABCC's existence. Productivity has been higher every year since its abolition in 2012. The ABCC did not reduce industrial disputes last time, either. Apart from an aberrant quarter in September 2012, working days lost per thousand workers due to industrial action under the FWBI were nine days lower than they were from the start of the series under the ABCC of some 10 days. In fact, there was less industrial action without the ABCC. The total number of days lost each year is similar on average under the FWBI—29,866—to under the ABCC at 29,950.

What could be the possible justification for this legislation? What did the legislation do last time? It in fact increased the number of tragic workplace deaths in our nation. We saw under John Howard's WorkChoices and the ABCC, workplace deaths increase by more than 25 per cent. This is a tragic and unnecessary statistic. These were the lives of workers who did not go home to their families. Deaths of construction workers specifically increased from 2.5 per hundred thousand to almost five per hundred thousand. That is five deaths per 100,000 workers, and that is a terrible statistic. Because of the ABCC, we had more families suffering what is an unthinkable tragedy—their loved one not coming home from work at the end of the day. After Labor abolished the ABCC, workplace deaths dropped by 60 per cent.

But, since Mr Abbott appointed Nigel Hadgkiss to the Fair Work Building and Construction Commission, workplace deaths have again started to climb, and I think there is an easy explanation for that. It is because, with Nigel Hadgkiss's modus operandi, the ABCC have sought to make it more difficult for our nation's unions to do their job of calling out on site the day-to-day health and safety concerns in the workplaces that members and officials see before them. The statistics demonstrate the importance of unions in protecting the health and safety of workers and, indeed, their vital role in preventing workplace deaths in our nation.

Last time, under the Howard government and the ABCC, union officials were prosecuted by the ABCC for taking action on health and safety breaches. A good example of this was in 2008, when the ABCC commenced legal proceedings against rigger Ark Tribe, following his attendance of a meeting related to safety breaches on a site in South Australia. At this meeting attended by Ark Tribe, workers were discussing various concerns they had relating to the lack of proper safety on their site. A list was drawn up of breaches that needed attending to. Tribe was called to a secret interview by the ABCC to discuss the meeting; and, when he refused, he was prosecuted over an 18-month period—simply for raising safety concerns in his workplace.

The right to a safe workplace, senators, is internationally recognised and enshrined in law in many countries. The ABCC undermines what is a fundamental right in this nation. It will make workers fearful of speaking out, because of the harsh penalties they will face. This bill means the safety of those in the construction industry will suffer. The bill mean more workers will be subjected to unsafe and possibly deadly working environments.

The ABCC restricts democratic rights and equality before the law. The re-establishment of the ABCC not only poses a significant risk to the safety of workers but also restricts, in my view, their most basic democratic and human rights. It restricts the rights to freedom speech and freedom of association, the privilege against self-incrimination and the right to silence, over basic industrial matters. In that sense, under this ABCC legislation, workers will be guilty until proven innocent for simple things like raising breaches of workplace safety.

The principle that the prosecution bears the onus of proof against an accused should be regarded, in my view, as the golden thread of the criminal law and a cardinal principle of our system of justice, and this bill removes that for workers in our nation.

These are rights that we in a democratic country hold very dear. They are rights that we must protect. Under this bill, the ABCC will have coercive powers that can compel everyday workers to be subject to things like secret interviews, deny them legal representation or threaten them with imprisonment if the person subject to such coercive powers refuses to cooperate. The powers are excessive, undemocratic and unwarranted. I know that from speaking to workers who were affected firsthand by the first iteration of these laws, when they were previously in place.

The International Labour Organization condemned the ABCC for being contrary to our nation's obligations as a signatory to international labour conventions. Shame on us. This legislation targets construction workers in our nation. It extends the reach of the ABCC into picketing and offshore construction. It extends the ABCC's jurisdiction offshore to as far as Australia's exclusive economic zone or waters above the continental shelf. It will also encompass the transport and supply of goods to building sites, including resource platforms.

These extensions of the ABCC's powers demonstrate the government's very clear agenda of attacking construction workers, wherever they may be working. This bill targets one group of workers and not others. They are being singled out for special treatment in a way that is completely unprincipled and undemocratic. It is a targeted attack on construction workers—an attack on workers in some of the most dangerous industries in our country. Why the government would want to paper over the risks that workers take in this industry, by silencing their right to raise concerns, completely baffles me. These are workers we should be protecting, not attacking. We should be protecting and supporting them, and valuing the contribution they make to our country in doing dangerous jobs, building our infrastructure, our homes, our ports, and our offshore oil and gas facilities. Construction can be dangerous and dirty work, and we need the protection of unions to help keep workers safe, because everybody has a role to play in that.

The ABCC has no protections from abuse of power by the regulator that oversees it. The government's bill removes the current protection which requires the director of the Fair Work Building and Construction Commission to apply to the Administrative Appeals Tribunal to issue an examination notice. This is akin to the police being able to conduct a search without having to go to a magistrate to justify why they need a warrant. There was a similar principle in the previous iteration of the legislation and it had a terrible effect on the workers that it was used against. This means that workers that may be affected by this legislation will have no protection from an abuse of power by the regulator. It is quite a scary concept indeed. It is part of a very strong anti-union agenda coming from the government, and I wish I could say I was surprised by this. Sadly, I am not. We have seen it from the government time and time again. Workers have fought it time and time again, and they will continue to. We on this side of the chamber will continue to fight with workers, arm in arm with them, against this agenda. It is part of an ongoing agenda from the coalition to undermine the union movement and to undermine the workers we represent.

The Building and Construction Industry (Improving Productivity) Bill 2013 seeks to create criminal penalties for actions that are not criminal—industrial disputes are civil disputes, and this bill does not change that. Despite what the government tries to tell us, the ABCC will not stamp out criminality in the construction industry. The explanatory memorandum to the bill refers to violence and thuggery as reasons why this bill should be passed, but these are criminal matters, properly dealt with by existing laws and criminal law enforcement agencies. Fair Work Building and Construction can and does make referrals to prosecuting authorities, where necessary. It is completely untrue that this bill will deal with criminality, because it does not. It is a lie. It does not even attack corruption. This bill cannot adequately address corruption either. This bill is about the unnecessary and harsh industrial regulation of workers in the construction industry. Make no mistake, senators: this legislation is an attack. It is a nasty, pathetic, politically-motivated attack on construction workers in our nation. It is an attack based on lies.

The Liberal government is again trying to demonise Australian workers and make them out to be criminals, which they are not. This government talks about industrial action, strikes and pickets, and under this bill it wants to introduce harsher penalties for taking what is simply industrial action. The reality is that levels of industrial action in our nation are at an all-time low and have been for many years now. I am sick and tired of this government, and other Liberal governments before them, attacking unions. They have attacked unions unfairly, harshly and completely unjustifiably. I am particularly sick of them attacking unions like the CFMEU, a union which has fought long and hard battles, to the betterment of its members. It is a union which has had to deal with some of the most abhorrent cases of workplace health and safety breaches. It is a union which has had to deal with the most tragic of workplace deaths. Indeed, an old friend and comrade of mine, Mark Allen—who was a union organiser in Western Australia—died more than 20 years ago. It is a union which has had to fight with employers who undermine workers' pay and conditions time and time again.

On that note, I remember a very bright sunny day in November last year. I was walking through East Perth on my way to a meeting and I saw a street closed off. There were ambulances and flashing lights right next to a JAXON construction site that I have often walked past. Indeed, my old office was a couple of houses down. It looked like something pretty serious was going on—and it was. I hurriedly looked on internet to find out what was going on. Media was swarming around. I was incredibly upset and alarmed to find that two Irish workers had been killed that morning by a falling concrete panel. These deaths were tragic and utterly avoidable. The CFMEU had attempted to visit this site to inspect for safety breaches and were prevented from doing so by JAXON. They were prevented from accessing that site and other JAXON sites a total number of 18 times. These two deaths and others like them—like the German woman that was tragically killed quite recently in Western Australia—were utterly and completely preventable. It is exceedingly alarming to me that construction deaths make up 15 per cent of all workplace deaths, despite the industry making up only nine per cent of our workforce. We rely on unions like the CFMEU to ensure that workers in the construction industry are safe at work. We rely on unions like the AMWU to ensure that workers are safe at work so that they can return home safely to their families.

The right to take industrial action on the basis of safety concerns is absolutely fundamental to workplace safety and to our democracy. Workers should have the right to withdraw their labour when their employer is not treating them fairly or when their workplaces are not safe. The right to withdraw your labour under those circumstances is absolutely fundamental. Labor has repealed this horrible legislation before. This place has, more recently, rejected this legislation. (Time expired)

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I want to thank Senator Pratt for what I thought was a fantastic contribution to this debate on the Building and Construction Industry (Improving Productivity) Bill 2013. This is nothing more than a desperate try-on from a desperate government that has no agenda, has no direction and is searching for anything it can cling onto to be part of some kind of a legacy. This is a bill that was supposedly so important that we had to have a double dissolution election on it.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I was disillusioned!

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I will take that interjection. Senator Bilyk talks about how disillusioned she has been by this entire process. Senator Bilyk, you have been around longer than I have. Can you imagine my shock and horror, as a young migrant in this place, to see where this government will stoop to? A bill that we went to an election on, a bill that was meant to be a priority: in the last week of parliament, a half-arsed attempt to ram it through—and I am sure that is parliamentary language!

Let's be clear. I am comfortable with the hours motion insofar as I am comfortable to stay in this chamber to participate in debates. I will let the chamber in on a little secret: hanging out with Senator McCarthy is actually the highlight of my social calendar. But on a bill that was so important that we needed to bring it forward and debate it in this way—where are the conservative senators? Where are they all? Where is everybody? I believe there are a few Christmas drinks going on around the place. That is the only place I can assume they are, because they are certainly not here in the chamber.

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

The building developers' Christmas party!

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Yes, the building developers' Christmas party. I will take that interjection and I will nod as though I know whether or not it is true. But where is everybody—this debate that was so important? As Senator Di Natale pointed out earlier, the government is still trying to stitch together its own desperate deals to get this piece of legislation passed.

I have a lot of respect for Senator Xenophon. Senator Xenophon is very passionate about water issues as they relate to South Australia. Look, the water debate is worthy of debate in this chamber and in this parliament. But what does it have to do with the ABCC? And Senator Leyonhjelm—again, I do not necessarily agree with a lot of what Senator Leyonhjelm stands for, but I respect him as a senator, I respect him as a policy maker and I respect him as someone who has grown to become a friend. But what does the ABC have to do with the ABCC? I am not quite sure that the question of whether or not the ABCC is worthy of being passed as legislation has anything to do with whether or not public meetings are going to be held for the ABC board. Again, if that is something the Senate wants to look at—have committee inquiries into and look at improving the ABCC and have a debate about exposure and public consultation—then let's have that debate. I suspect I may end up on a different side than Senator Leyonhjelm, and that is fine. But none of that has to do with this bill.

This is another plank in a relentless attack on the trade union movement, because what we have opposite is a divided government that can only barely agree on what they hate. And they hate the trade union movement. They hate collectivism. They hate workers' rights. That is the tiny bit of glue that is holding together a government that has, for all intents and purposes, already fallen apart.

I will let you in on a bit of a secret. I mentioned a little earlier the lacking elements of my social life. Yesterday morning I did get up quite early to have the chance to see the member for Warringah, a backbencher, on television. Being a recently joined backbencher myself, I feel that we have a bit in common. The member for Warringah was giving some advice to the government about having a bit of backbone, about actually standing up, about sticking up for the important principles they believe in, like the 2014 budget. I will be honest: I do not necessarily agree with what the member for Warringah believes in. I do not agree with what he stands up for. I do not agree with him on what he sees as priorities. But—and I never thought I would say this—at least he stood up for something.

This is really Seinfeld now: this is a government about nothing. Senator Cash runs around and revs up these union issues to try to hold the party together, to try to stick their movement together, and says, 'We're conservatives and we can do this and we can do that and we can all hate together.' But if you scratch the surface you realise there is nothing there. You realise that there is actually no basis. There is a desperation here that has resulted in them trying to ram this legislation through.

I have to say: put up or shut up. You went to a double-D election; bring on the double D. We are not afraid. We are not afraid of having this debate. The only people who are afraid of an election right now are the conservatives, who know that any support they may have had a little while ago has already fallen apart. Let's not pussyfoot around this issue. There is not a genuine need for the ABCC if the real goal here is about improving union governance. This bill has nothing to do with productivity. The government's own industry monitor has shown that construction sector labour productivity over the past five years has actually been increasing. So, the industry itself is getting more productive. It is nothing more than an ideologically based attack, a politically motivated attempt to crack down on the ability of unions to advocate for workers' rights. And productivity, as this government tries to phrase it, is not about improving the sector. The sector has been improving. There are measures that can be taken and that we can actually debate that are about making better use of workers' skills.

No: productivity, the way this government is talking about it, is only through the restricted frame of taking away workers' rights, because real productivity is about making the most of our workers, not the productivity this government has gone around talking about. This bill will treat construction workers as second-class citizens by singling out the industry for particular oversight and regulation. At the heart of that, there is a condescending arrogance that this government believes they are somehow better than these construction workers, that they should somehow be treated differently and that a different set of rules should somehow apply to them and not everyone else. Where is the focus in this bill on the things that matter—safety and the fact that people are dying in the construction industry in this country and that workers are being ripped off?

Senator Cameron has done an incredible job in exposing the phoenixing behaviour that has gone on. I was fortunate enough to chair an inquiry last year looking at the act of phoenixing—an inquiry in which Senator Cameron really led the work. Phoenixing is where a construction company will not pay subcontractors, will force itself into faux liquidation and will then reappear a few days later under a different name or as a different organisation with a different set of directors, be they relatives—for example, cousins—or whatnot. They reappear under a different banner and go about doing the same thing—ripping off workers, taking advantage of them and hanging them out to dry. After all the work that Senator Cameron did in that space, after the committee report and after the recommendations, what does the government do in a space that is affecting workers' lives, causing workers to be ripped off and—as the inquiry uncovered—helping drive some of the poor behaviour in the industry. Subcontractors in the industry were so desperate to get paid that they were resorting to tactics which none of us would encourage or support but which we would perhaps recognise as the actions—in some cases, the misguided actions—of desperate people trying to make sure they got paid. This was the tragic outcome of a set of circumstances that should never have been allowed—even though none of us would ever condone that type of activity.

Where is the focus in this bill on the use of temporary visa holder workers to undermine Australian jobs, security and conditions? Where is the focus in this bill on the use of nonconforming building products? The Senate Standing Committees on Economics has looked at this area time and time again and highlighted these issues. The insolvency of builders keeps going on and on and has led to phoenixing. This is another attempt by this government, through the back door, to rip away workers' rights and conditions. We saw them do it with Work Choices. We saw them try to do it again. I am not a fan of former Prime Minister Mr Howard. His policy and his politics were obviously different to mine, but at least he had the decency to be up-front with what he was trying to achieve, and he allowed a public debate—a debate that people like me did not support and fought against. But this is Work Choices by stealth; it is Work Choices through the back door. It is not even an attempt to bring it through the back door—it is through the neighbour's fence; it is through the garage!

Clause 34 this bill allows the minister to issue a building code which is to be complied with by persons in respect of building work. On 17 April 2014, the government published an advance release of the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014. A revised advance release was announced on 28 November that year. This new building code will come into effect when the Building and Construction Industry (Improving Productivity) Bill—the bill we are talking about today—commences as an act. The code itself is outrageous. It is a rort. Under the 2014 code, enterprise agreements will not be able to contain customs and practices that are lawful in any other context. In other words, in any context other than in the code that this bill will activate, these practices would be lawful. In fact, when it commences, the provisions of the code will apply retrospectively to any enterprise agreements made on or after 24 April 2014. I want to stress that point to some of the crossbenchers—in the unlikely event they are listening to this. The idea of activating retrospective legislation should be worrying to everybody who believes in the fundamental rule of law.

Businesses with agreements that are already in force at that time but that do not meet the code's content requirements will not be eligible to tender for, or be awarded, Commonwealth funded building work. The code prohibits clauses in workplace agreements ensuring that employees have security of employment. The code prohibits clauses against casualisation. The code itself bans clauses that prohibit sham contracting. Let us just be clear about that: you cannot have a clause that bans sham contracting. Somehow this is meant to improve the situation! The code outlaws clauses that place limits on weekly hours of work. The code outlaws clauses requiring employers who want to employ overseas workers to ensure they are in Australia legally and able to work legally. I want to touch on that for a moment. What logic could be behind the existence of a code that does not allow you to stipulate that illegal workers cannot be used? How can that have the purpose of improving the legislation? The code prohibits clauses that mandate that employees can take public holiday long weekends off work to be with their families. In other words, this is a code that can cancel Christmas! But do not take my word for it—I am sure some of you will not. In October 2016, the McKell Institute published a report entitled Unfounded and unfair: an analysis of the building and construction code (2014).The report highlighted that the code is a fundamental change to the existing code of practice and will effect a significant detrimental impact on the Australian construction industry. The code of conduct seeks to undermine the ability of employers to make enterprise bargains directly with their own workforce. The code, which is heavy with prescriptive red tape, is specifically designed to limit the ability of employers to manage their own staff. It is deliberately designed to limit their ability to agree on conditions that are commercially right for that business. This significantly changes the enterprise-based workplace relations system that has underpinned productivity growth in Australia since the 1990s.

Employment law expert and Adelaide law school professor Andrew Stewart has told TheGuardian the code is a source of significant concern in the construction industry. He said that 'virtually every major builder will be non-compliant.' He said that the code could be changed to only bar agreements struck after it was passed, in which case it would have 'minimal practical effect', or it would apply retrospectively and 'force building companies to renegotiate their enterprise agreements simultaneously causing industrial mayhem.' Stewart said that the code barred any clause with any impact on productivity, or the right of companies to manage their own businesses. He said that it essentially gives Fair Work Building and Construction director Nigel Hadgkiss, or whoever is the director of the ABCC, discretion to object to any union agreement on a wide number of bases.

This is bad legislation that has been handled poorly. The fact that this legislation, which the government pushed and said was going to be such an urgent and important piece of legislation, is being handled in this manner demonstrates that this is a government that has lost touch, lost focus and has no agenda. The notion that we will be here till the end of everyone having their second reading speech and that we will be returning tomorrow until midnight as part of a desperate bid to try and ram through some kind of last-minute deals—sneaky agreements—to get this legislation passed says so much about what this government, after a few short years, has become. The fact that, after all this time, it is running around stitching weekend deals with crossbenchers, promising whatever it can promise, getting whatever it can get and horsetrading on any other piece of legislation, with the sole focus or emphasis on getting a dirty deal done on this bill, says a lot about it. It says a lot about this government that it has got to this stage this early.

It is hardly surprising that, when we look at the sitting schedule for next year, so few weeks have actually been planned, because this is how the government appears to be wanting to do its business. It wants to create artificial emergencies, to try to ram legislation through, rather than handling it in a sensible, methodical way. If you shine a light on the details of this piece of legislation, it does not stand up to the scrutiny. It is a bad bill. It is a bad bill that does not warrant how it has been treated. More importantly, it does not warrant being passed by the Australian Senate. I urge my colleagues, crossbench senators and the minor parties to have a close look at the detail of this legislation, because this is and remains a bad bill. (Time expired)

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak against the Building and Construction Industry (Improving Productivity) Bill and the Building and Construction Industry (Consequential and Transitional Provisions) Bill. With these bills, Prime Minister Malcolm Turnbull shows that he is no different to his predecessors Mr Tony Abbott and Mr John Howard. Despite his attempt to be an agile and innovative Prime Minister, which he said he was going to be, all he has at his disposal are the failed ideas of the past. All he can propose to improve productivity are tax cuts for big businesses and the removal of workers' rights. All he has are the failed ideological and politically-motivated attacks of years past.

These bills will take us back to the dark old days of the Work Choices era, where the Australian Building and Construction Commission, or the ABCC, will be brought back from the dead. These bills present a plan to restore a failed body that was built on flawed premises and that will demonise construction industry workers and those who represent them and do nothing—absolutely nothing—to improve productivity or safety on building sites.

Under this legislation, the ABCC will have extreme and unnecessary powers—powers that fundamentally compromise basic civil liberties. The new ABCC could compel ordinary workers to attend secret meetings. Not only that, they could be threatened with imprisonment in order to get information. They would have no access to legal representation and they would have no right to remain silent. They would have no right to protection from self-incrimination and no right to even tell their family. These are people who would not have committed a crime, but who would be treated worse than criminals. Let's be clear: there is no other worker in the federal system that will have this sort of draconian regime imposed on them. It is fundamentally undemocratic to impose this only on workers in the building and construction industry.

These bills will restrict freedom of association, expression and privacy. The bills will give inspectors the power to enter residential premises without consent or warrant. This would be reasonable in situations of emergency, serious danger to public health, or where there is a serious threat to national security. However, there is no evidence that entering the homes of building and construction workers and union officials would constitute such a reasonable situation.

While the stripping of these rights is terrible, it is nothing on the move within these bills to reverse the onus of proof. Under these bills, a legal burden of proof is placed on workers to prove that any action they are involved in is not industrial action but based on health and safety concerns. This can have huge implications for the reporting of safety issues, as it is often very difficult to prove a safety issue. As a result, workers may avoid discussing health and safety issues out of fear of slipping up when reporting their concerns and facing the full face of the law for simply raising a safety issue to try to protect their colleagues.

It is clear that this Prime Minister does not care about safety on work sites. It is clear that this Prime Minister does not care about fundamental rights—rights of freedom of association, expression and privacy; the right to a fair hearing; and the right to a fair go. This Prime Minister only cares about appeasing those in industry who do not value workers and who want to strip away basic protections and basic rights in their quest to accumulate more and more wealth while their workers are killed and injured and their projects are not built to the standards the community expects.

I note that there is already an organisation called the Fair Work Building and Construction inspectorate. The inspectorate regulates the workplace laws that govern the building and construction industry, regulations which those opposite seem to ignore in their ideological and politically-motivated attacks on construction trade unions in this country. They would have the public believe that there are currently no regulations in place to oversee the management of construction trade unions in this country. In doing so, they present a false argument that their proposal is the only way to improve governance of construction trade unions, when in actual fact their agenda is clearly to undermine and attack the ability of construction trade unions to advocate on behalf of Australian workers.

It is clear that the ABCC's building code will discourage the employment of apprentices and local workers and prevent unions from ensuring workers are safe. The code, which sits beside the legislation, not only applies to construction sites but also to all employees working in the private sector for the organisation tendering for government work and all organisations that supply prefabricated materials. The code prevents an employer and unions from including certain clauses in an enterprise bargaining agreement.

The code will limit the employment of apprentices. This will prevent many young Australians from taking up a trade. The code will not require employers look for local workers first. This will allow employers to bring in and exploit cheap overseas labour instead of employing young Australians. The code will allow for unlimited ordinary working hours. This will lead to fatigue, lead to the exploitation of workers, lead to workers missing important family events and lead to more deaths and injuries as a result of worker fatigue. The code will prohibit clauses that permit union officials from visiting a site to assist with a dispute settlement process at the request of an employer. This is despite the property owner's right to invite whomever they want onto their premises. The code will prevent site inductions by union members and delegates, despite general occupational health and safety requirements that all persons are inducted. The code will prevent limits on labour hire and casual work, which will disrupt the lives of many construction workers as they are pushed from permanent to casual work.

It is no coincidence that the Prime Minister sat this bill with the registered organisations bill as double dissolution triggers—bills that will do tremendous damage to collectivism in this country, that will make workplaces less safe, that will make organising workers to bargain together for fair a pay rise even harder, that will put at risk hard-won working conditions, and that will add a layer of stress to workers around their ability, or lack thereof, to speak up at work.

The Australian people can see the damage these bills will do to our society. They are not fools. That is why the Prime Minister and those opposite did not talk about these bills at all during the election campaign. The bills were used as a trigger for a double dissolution and quietly placed in the top drawer. The election was set up as a debate on the merits of these bills. The double dissolution was used by the Prime Minister so that he would not have to negotiate with the opposition and minor parties. Yet, the only days these bills were mentioned during the election campaign were day one and day 55. It is disgraceful! Despite the Prime Minister's assurances of their importance to the future of the nation, the bills were not mentioned by those opposite during the bulk of the eight-week election campaign.

But, all of a sudden, these so-called vital reforms were pushed aside. The Prime Minister knows the Australian people do not support these bills. That is why they were tucked away for the winter, so desperate were those opposite to have these bills passed without amendment. There is a lot of talk by those opposite of misleading campaign tactics by their opponents, yet what is more misleading than to call an election on a specific issue only to never mention that issue during the election campaign? What is more misleading than to hold a politically-motivated, ideologically-driven belief that these changes are vital for the future of this country and yet not spend the time explaining the changes to the Australian people?

The bills have been available for the Prime Minister to pass unamended through a joint sitting of the Senate and the House of Representatives for over four months—a unique event that would garner much attention across the community. So, of course, it is an event that the Prime Minister is avoiding at all costs. Here we are, months after the election, debating the bills which the Prime Minister used to trigger the double dissolution. But we are not doing it in a joint sitting. No, we are back in the Senate for the fourth time in four years. This situation of public silence but parliamentary uproar is a tremendous irony. If these bills are so important, Prime Minister, why don't you explain them to the Australian people? Why doesn't your government take the Australian people through the current regulations and how the amendments will supposedly improve governance and accountability? Because, to do so would be to recognise that there are regulations in place that are reasonable. They are already there.

There is always room for improvement, but, on the whole, the regulations are working. Why? It is clear that the regulations must be working, because the bill before us today does not incorporate any findings from the government's wasteful $80 million royal commission into trade unions. This bill includes the same set of amendments to the act that those opposite had proposed before the establishment of the royal commission. How could such an expensive exercise yield so little in a policy sense? And if the royal commission did point to necessary changes, then where are they? Why is this bill identical to that proposed in the last parliament and why is it being debated in the Senate and not in a joint sitting?

Despite this bill being the trigger used to call the early election, an election in which the Prime Minister lost a large number of members and senators, it is rarely raised by members opposite in the community. It is even rarer for a member of the community to raise their support of this bill with me. When people are angry, we hear them. We hear them when we are door knocking and when we are walking down the street. We receive phone calls, emails and petitions. Yet, the only interactions I receive on this issue are from people saying that the Prime Minister and his government are overreaching with this bill. Instead of praising this bill, people tell me that it will have drastic implications for construction workers, it will decimate their ability to raise basic issues of safety, it will destroy protections for their current working conditions and it will hang a cloud over all workers in the construction industry, as they could be treated worse than criminals if they speak up.

I can assure the Senate that Labor will do everything it can to support and protect Australian jobs and workplace entitlements. Labor will not support politically motivated witch-hunts that are designed to kill off workers' rights. While those opposite like to talk about jobs and growth, when context is added, it is clear that their latest three-word slogan is code for less secure jobs and less equal growth. In comparison, Labor has placed inclusive prosperity at the core of our agenda. It is a positive agenda, which focuses on improving job security, addressing the challenges of the changing world, taking steps to ensure growth at all levels of the income scale and ensuring adequate support for those not in the workforce.

Almost two million Australians are members of trade unions, organisations that have for over a century advocated for positive social change and organisations that are managed by members, for members. They are not for profit and not for personal gain, but to ensure that their members are safe at work, receive appropriate remuneration for their labour and return home to their families safely after each shift. Those opposite like to ridicule unions and use the actions of a few to mock the millions of Australians who are union members. The conservatives of Australian politics seek to push an agenda where collectivism is admonished. They fail to recognise many of the very best parts of the fabric of Australian society were created because of the collective spirit of Australian workers, through trade unions.

Whether they belong to a union or not, Australians know and appreciate the benefits of collectivism, beginning with a generous social compact comprised of:    decent conditions at work; occupational health and safety, and workers compensation; the weekend itself and penalty rates for working on it or at other unsociable hours; annual leave and sick pay; parental, carers and domestic violence leave; Medicare and the foregone wage increases to pay for it; a good education and support for children; and universal superannuation that provides for a good retirement. Instead of increasing the barriers to collectivism in Australia, we need governments that place a greater emphasis on how together we can solve the big challenges of today. Instead of attacking all volunteers and members of trade unions, we need governments to get on with creating an environment where unions are protected and can shine. Instead, we have the Turnbull government and this bill, which is just an attack on the members and officials of construction trade unions.

People in the community see this bill for what it is: a direct attack on working Australians and their ability to collectively organise. It is an attack that seeks to further divide this country. This attack on workers' rights will undermine opportunities for Australians to collectively bargain and be represented by a union. It will see management get richer and workers faced with lower wages, worse conditions and unsafe workplaces. It is clear that the Prime Minister and his government seek to foster an environment where work continues to become less secure and where inequality continues to increase. We hear it in the rhetoric from the Prime Minister and in his blatant disregard for the welfare of many Australian workers who, through no fault of their own, are losing their jobs in this rapidly changing world.

Instead of being that agile, innovative leader, this bill demonstrates that the Prime Minister represents nothing more than the tired ideological arguments of years past. Prime Minister, the reforms you espouse do not guarantee enduring economic success for Australian workers. Prime Minister, the trickle-down economics of tax cuts for business and reduced workplace rights that you wish to push on the Australian people will not miraculously increase our nation's wealth. But Prime Minister, you are correct in one assertion: your policies will create winners and losers in the near term.

This bill is just one in the suite of measures that form part of the Prime Minister's jobs and growth plan. It is a plan that works well as a three-word slogan. But if it is passed without amendments, we will see any increased economic growth further concentrated in the hands of the few at the top and we will see wages stagnate, working conditions continue to slide and productivity failing to improve. This government's recipe for improving the Australian economy is to undermine unions, remove workers' rights, remove workers' ability to collectively organise and provide massive tax cuts for big businesses, while cutting skills, training and research programs.

Together, these measures will only ensure one thing: that the Australia of tomorrow is not a land of opportunity for all, but a land of opportunity for those with means. It will be a land where the extra profits from lower taxes will go to higher dividends and share buybacks and the only employees set for wage rises are those in executive positions. Prime Minister, the losers from your policies will be Australian workers and their families. Asserting that the Australian people must accept being losers in your agile, innovative economy and that the Australian people must accept reduced living standards and reduced rights at work so that you can provide tax cuts and more power to big businesses demonstrates that you are no different from your predecessors, Mr Abbott and Mr Howard. Prime Minister, you continually demonstrate that you have no appreciation of the hard labour and sacrifice of Australian workers, and no inclusive plan for the future of work and life in this country. Your philosophy of letting the market rip, by the magic touch of an invisible hand, will not solve our challenges and it will not absolve your responsibility for those left behind. The poor and the marginalised cannot be set aside as collateral damage in your pursuit of economic growth. And it is not a matter of accepting your false dichotomy that we must follow your plan or face deteriorating living standings. Australians are smarter than that. They deserve better leadership, particularly from a Prime Minister who, in challenging for the role, said:

We need advocacy, not slogans. We need to respect the intelligence of the Australian people.

How quickly the mighty can fall. The bill before us today is exactly the same as that which was negatived on numerous occasions by the previous Senate. Yet, instead of taking that identical bill to a joint sitting, which was the key point for the double dissolution election, the bill before us was rammed through the House of Representatives. Senators then took advantage of our committee processes, and a short inquiry into the bills was conducted. The committee reported over six weeks ago, and since that time the government has had a number of different positions on how it would proceed—so much for the stable government the Prime Minister promised in September last year. I urge senators to vote against the bills.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

When I was elected to this parliament I made a commitment to the people that I would speak with honesty and accountability. So I stand here and support the ABCC, as put forward by the Turnbull government. I have listened to the other side—I have listened to the Labor Party and their comments. They say that this will destroy Australian jobs, but that is not the case. I wish we were having a truthful debate about this. It is not about Australian workers. It is not about taking their jobs. It is about the CFMEU, who are throwing their weight around this country and destroying jobs and who think they can go onto building sites with their bullying and their thuggery.

Since my election, I have had meetings with businesses from the first and second tier, who are at their wits end and fed up with the building and construction industry. Demands are being put on them. They are being asked to pay union fees and wages before a job can go ahead. They are told, 'You must sign a cheque for $5,000.' Then money must go into union superannuation funds. If businesses do not comply, then the tactics start. If they are pouring a concrete slab it is shut down, because, the unions say, 'It's unsafe for work.'. Businesses have no-one to turn to.

The ABCC was replaced in 2012. It has not been not around since then, so for the other side to say that this is about safety and deaths on building and construction sites is not the truth. The ABCC has not been around for the last four years, but there have still been deaths—they are not because of the ABCC. No-one wants to see deaths on building sites, and, yes, we must make sure there is decent work health and safety, but the fact is this is about reining in delegates who are obstructionists. Their obstructions add costs of anywhere between 25 to 30 per cent to building and construction projects—it can cost the taxpayer that much. This is going to destroy jobs in Australia.

I have listened to the other side say, 'We are going to have 457 visa holders come and take jobs.' That is a totally different issue to the ABCC. Reining in 457 visas holders in Australia is another issue for this government and the Labor side to deal with—it is not under the ABCC. Then the other side says, 'You are denying apprenticeships.' That has nothing to do with it either. That is all under enterprise bargaining; it has nothing to do with the ABCC. Yes, I would dearly love to see more apprenticeship schemes in Australia, and I do have a policy for that, but not under this bill. If a company has five workers, you cannot say to them, 'You must put on an apprentice.' You cannot tell subcontractors they have to have workers, because a lot of them are struggling. They do not have apprentices, and you cannot force them to put on apprentices, because it is not just for a few weeks—the time period is years. We have to start looking after businesses and subcontractors, because if we do not they will fold and shut up shop. Then we will have international interests in this country doing the jobs and bringing in their own workers. Unless we get smart, we will not have Australians doing the jobs. That is why this legislation is here, and I do support it.

Even judges comment on how uncouth the CFMEU has been. You have coercion of employers to enter into enterprise agreements, you have denial of the right of employees to not join unions, you have blackmail of subcontractors who do not agree to the union's demands—these things are happening. I cannot understand why the Labor Party will not be up-front and honest. Tell the Australian people what is happening. Explain to them why we need these changes in this legislation. The whole thing is because the Labor side is funded by the unions. That is why they will not come out against them and be honest with the Australian people and the Australian workers.

This goes far beyond just jobs. We have to look at future generations here, so that we will have businesses and industries and growth in this country and will not be shutting businesses down. I will not stand by and watch the thuggery that goes on in this country and see anyone, it does not matter who they are, being bullied. This is Australia. We are not like other countries around the world. We must stand up and fight against this. That is why I support the government. Minister Cash has done a very good job in drafting this legislation on behalf of the government, and I support it fully.

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

There has been no shortage of debate and scrutiny of this ABCC legislation. During the 44th Parliament a total of six separate Senate committee inquiries were held into the two bills. On two separate occasions both bills were previously inquired into and reported on by a committee. On both occasions the committee recommended that the Senate pass the bills—not surprisingly, because it was a government dominated committee. In addition, the Senate Education and Employment References Committee has considered both bills in depth. Aspects of the bills have also been considered by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights. Over the course of the current and previous inquiries there have been no fewer than six public hearings in relation to this legislation. It was the failure of the Senate to pass these bills that led to the Prime Minister in May 2015 to request the dissolution of both houses of parliament prior to the 2 July federal election.

When I spoke on this legislation on 18 April 2016 I supported the second reading stage of the bills, which would have allowed for amendments to be considered in the committee stage. Those amendments were important in order to make the bills fairer, to make them more effective in terms of job creation in this country and to deal with issues of productivity, which I will address shortly. That opportunity did not arise. However, we do have that opportunity in this parliament and there are some important issues to be debated.

The industrial relations framework in the building and construction industry has a long, complex and, some would say, vexed history. There was the Winneke royal commission in 1982, the Gyles royal commission in 1992, the Cole royal commission in 2003 and, most recently, the Heydon royal commission in 2015. There was also the Wilcox report, which was an initiative of the then federal Labor government in 2008. The final report was handed to the then Deputy Prime Minister, the Hon. Julia Gillard, in April 2009 in relation to the operations of the office of the Fair Work Building and Construction inspectorate.

As part of the review Justice Wilcox was asked to investigate and report on some of the following issues: the operational structure of the specialist division, the independence and accountability of the specialist division, the scope of investigations and compliance activities to be undertaken by the specialist division, the powers required by the specialist division and its inspectors for the purpose of conducting investigations and compliance activities, and the best manner of ensuring an orderly transition between the ABCC and a specialist division.

Following an intensive and, some would say, extensive consultation period, Justice Wilcox found that there was still a significant level of industrial unlawfulness in the building and construction industry, particularly in Victoria and Western Australia. While His Honour 'accepts that there has been a big improvement in building industry behaviour in recent years, some problems remain'. That was in section 3.23. Justice Wilcox found that the current levels of investigation and penalties held by the ABCC were justifiable because of the poor conduct that has been, and continues to be, displayed by many building industry participants. I emphasise that this is not just about singling out the union; it also relates to some employers.

His Honour stated:

I am satisfied there is still such a level of industrial unlawfulness in the building and construction industry, especially in Victoria and Western Australia, that it would be inadvisable not to empower the BCD—

the building and construction division—

to undertake compulsory interrogation. The reality is that, without such a power, some types of contravention would be almost impossible to prove.

While Justice Wilcox reported that 'the ABCC has made a significant contribution to improve conduct and harmony in the building and construction industry', the view of the then Labor government was to downgrade it to an inspectorate.

The more recent inquiry of former High Court Justice Dyson Heydon gathered a great deal of evidence—some of which I found quite compelling—about serious issues: allegations of corruption, bullying and harassment. In his interim report Commissioner Heydon found that some CFMEU members had acted in wilful defiance of the law and there were allegations of corruption, death threats, extortion, gross neglect and other serious criminal matters. In his final report, released last December, the royal commissioner confirmed his finding that corruption was widespread and deep-seated. The union officials allegedly involved ranged in seniority from the most junior to the most senior, although I hasten to add that Michael O'Connor, National Secretary of the CFMEU, and Dave Noonan, another very senior officer, have not been tainted by any of these allegations.

It should be noted that there has been agreement in the past from the opposition that the building and construction sector needs a strong regulator. These were some of the comments made when the ABCC was replaced by the FWBC. There was acknowledgement that there was a need for a specialist division to deal with these issues. The Hon. Bill Shorten, on 16 February 2012, said:

The government understand that the industry contains unique challenges for both employees and employers. As a result, we have always supported a strong building industry regulator to ensure lawful conduct by all participants and a strong set of compliance arrangements for the building industry.

Dr Andrew Leigh, on 15 February 2012, said:

We know the industry can be difficult. Because of the unique challenges faced by the industry, it is important to make sure everyone applies the right conduct and continues to be lawful. As is so often the case in industrial relations, that is a tough balancing act—but this is a decision we are not afraid to make.

Simon Crean, on 3 November 2011, said:

The government believes that the safeguards in the bill for the coercive examination powers achieve the balance required to ensure compliance with the law and the fair treatment of individuals. Law-abiding industry participants who have nothing to fear from the existence of these strong laws will be so accorded. Ultimately, whether or not the powers are used remains in the hands of all building industry participants.

They are some of the comments by the ALP. I hasten to add that that was in the context of the FWBC about the need for a specialist division. I accept and respect that the opposition's position is one of trenchant opposition to this bill and to the powers contained in it, but it does acknowledge some of the unique challenges faced by this industry.

Commissioner Heydon recommended a new national regulator with the same powers as ASIC be established. I note that former Senator Muir made reference in his contribution earlier this year to the huge number of court cases in which the CFMEU has been found to have broken the law, or admitted to have broken the law, and the more than $8 million in penalties over the last decade that have been issued against that union. That was an observation but I also note that this is a very large sector with very large turnover in terms of the scope and size of the industry. Last year, in South Australia, the courts issued fines against the union and its representatives with $949,100 in fines, which was a significant amount.

The opposition and others have tried to label the Heydon royal commission—which was not perfect—as a political witch-hunt, but its finding and the large body of evidence presented and the evidence in numerous court proceedings cannot be lightly dismissed, neither can the previous royal commissions. They certainly raise the question of whether our existing legislative framework is strong enough to properly address these issues. I notice Senator Cameron has been a trenchant critic of the current director of the FWBC, Mr Hadgkiss, but I do have concerns about the way that office has been run, its impartiality and whether it has also adequately pursued employers who have not done the right thing and contravened the current legislative framework. That is an observation I make and I do not believe that it is a unfair one in terms of the conduct of the current director of that inspectorate.

One of the key issues, perhaps the key issue, relates to section 11 of the Building Code. This section prohibits code-covered entities from being covered by an enterprise agreement in respect of building work, which includes certain clauses, or from engaging in certain conduct. This section is the centrepiece of the Building Code and its aim, as essentially stated, is to change the culture in the building and construction industry. The long history of royal commissions together with the Wilcox report recommends that there is an issue with the culture in the building and construction industry. It is a difficult issue because the argument from those who are opposed to this bill is that it ought to be within the framework of the Fair Work Act and not derogate away from that framework. That, to me, seems to be the key debate and the key ideological debate in respect of this bill. Others say that those in favour of it say that if cultural change is needed then the Building Code will be the most effective tool. I expect that there will be a furious debate in relation to these issues.

I have continued to speak with the CFMEU and I will continue to speak with them on this issue. I have listened to their concerns and I do take their concerns seriously. There is the conduct of Mr Hadgkiss, where, for instance, a number of months ago Mr O'Connor was charged, and details of those charges were leaked, only to have those charges dropped. That is something that raises particular concern. On the part of Mr O'Connor, I thought that that was most unfair conduct and I do have concerns in relation to the way that the FWBC inspectorate has been operating.

I support the second reading of this bill, as do my colleagues, in order to debate this issue and the amendments that I will move. Some have already been circulated and I will speak in more detail to those during the committee stage. One of the key issues that concerns me is security of payments. What Senator Cameron did—and I am sure we will have fierce debates in the context of the committee stage of this bill—in terms of instigating the Senate Economics References Committee report on Insolvency in the Australian construction industry, is to be absolutely commended. It reported in December 2015. If we are to be serious about the issue of productivity and bad behaviour in the construction sector, the issue of security of payments is fundamental to that. We cannot simply talk about the behaviour of some in the union. We also need to talk about the behaviour of a number of principal contractors and the way that people have been left in the lurch, the way that many thousands of subcontractors have not been paid and have not been treated fairly and that many have been driven to either the brink of bankruptcy or actual bankruptcy.

The recommendations of that report are to be commended—I participated in that inquiry. I have an amendment—it is something I worked on with Senator Hinch as well, who also shares my concerns—that there will be a security-of-payments working group that is designed to complement the new section 11D of the Building Code. It will be made up of employee, employer and contractor representatives. It will be required to meet at least four times a year, and it will monitor the impact that the ABCC has on the conduct and practices of building industry participants in relation to security-of-payments legislation.

We must have a uniform, national system. What we have at the moment is woefully inadequate. We do have a system in place and it does work from time to time. We have rapid adjudication in some states, but not in others. In Queensland, prior to 2014, they had a pretty good system in place and then the then Newman government in their wisdom, or rather lack thereof, scuttled it and destroyed the essence and the effectiveness of that piece of legislation, and we went back to square 1. But occurred in Queensland pre-2014 made a lot of sense, and it meant that a lot of contractors could have rapid adjudication to have their matters dealt with. If all of us are fair dinkum about productivity in the building sector, we need some fundamental reforms of security-of-payments legislation and the framework. I believe that these amendments will advance that in a very realistic way. I will have more to say about that in the committee stage of this bill.

In terms of the functions of the ABC commissioner, the annual report and the appointment and the termination, there are issues there that must be raised to ensure that the functions of the commissioner are carried out in an impartial manner across all building industry participants because I am not satisfied that they have been carried out impartially in recent times. There must be additional reporting requirements to the annual report to increase transparency and accountability. It must ensure that the commissioner upholds the APS values set out in section 10 of the Public Service Act, and expressly state that the commissioner will perform his or her functions in an apolitical manner and act impartially and professionally. The bill should be amended to include an additional ground of failing to act impartially between all categories of building industry participants.

There is also the issue of judicial review. There ought to be an amendment that will mean that decisions made under this legislation—for example, the issuing of a compliance notice—are subject to judicial review. This is the first time in industrial relations law, if passed, that it will be subject to judicial review. It is a significant amendment which will add a layer of review and improve accountability.

In relation to examination notices and AAT oversight, it is important that we maintain the current administrative oversight for the use of coercive powers. The government seeks to overturn that. I believe we need to keep that. It is important that an Administrative Appeals Tribunal presidential member rather than the ABC commissioner will be required to issue the examination notice, as the bill in its current form provides. This is a safeguard against any misuse of the coercive power. There is also the issue of procurement. It is something that I am still having discussions with the government about.

The Building Code can play a powerful role to ensure that procurement is carried out in a way that is fair; that is robust; that takes into account that materials used on building sites with Commonwealth funds comply with the Australian standard, are certified to comply with the Australian standard, are subject to an auditing process—and I suggest that the federal safety commissioner has an important role in respect of that—and that has a consideration and a weighting given in terms of the economic impacts of making a procurement decision in terms of the impact that it has on jobs, the economy and particular industries. These are not novel concepts. It is an approach that has been taken overseas by the UK, by the Netherlands, by an increasing number of European countries, by the United States and by Canada, and I think it is something that would be very positive in terms of productivity in this sector more broadly and in terms of ensuring that there is a more level playing field that will, in effect, mean more Australian jobs rather than using substandard building materials. As you are aware, Acting Deputy President Sterle, as you have a great interest in this, having building materials with asbestos in them is strictly unacceptable, and we need to make sure that the Australian standard is kept.

There will be, no doubt, a very comprehensive committee stage of this bill. There needs to be so that amendments can be considered, questions asked and this bill subjected, along with its amendments, to sufficiently robust examination. Along with my colleagues Senators Griff and Kakoschke-Moore, I will support the second reading stage of this bill. In the event that it does pass the second reading stages, I look forward to the committee stage.

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to oppose this bill. In doing so, I went back a couple of years and read a couple of speeches. In those speeches were the terms 'Labor's payback to union masters', 'union control of Labor' and 'the unions are now running policy'. There was a very old speech by the Hon. Kim Beazley, and in that speech he quoted Peter Reith: 'Never forget the history of politics and never forget which side we're on.' This bill, this agenda has its origins way back when Work Choices roamed the land.

The best character analysis of Peter Reith I have ever read—and this is a direct quote from the Hon. Kim Beazley's speech—was actually written about 70 years ago by George Orwell in the famous novel Animal Farm. Another George, the Hon. George Brandis, likes his books. Anyway, he introduces one of the farmyard animals:

The best known among them … was a pig named Squealer, with very round cheeks, twinkling eyes, nimble movement, and a shrill voice. He was a brilliant talker and, when he was arguing some difficult point, he had a way of skipping from side to side and whisking his tail which was somehow very persuasive. The others said of Squealer that he could turn black into white.

I think we have a character very much the same as the one described by the Hon. Kim Beazley moving this legislation in this suspension of standing orders in the chamber. Very clearly the Hon. George Brandis believes he is invincible, believes he is very persuasive and believes that, if he repeats allegations of corruption—yet, strangely, the bill does not deal with corruption. But he repeats that allegation time and time again.

Then he repeats the allegation of foul language. My goodness, Acting Deputy President Sterle! You and I have both worked in a number of workplaces in Australia where the language is foul. That is the nature of hard physical work: people often have an intemperate use of language. I heard Senator Reynolds from Western Australia saying you have not to walk past bad activity. Well, Senator Reynolds, I am sure in your career in the Army you walked past some bad activity. I know from some of the references that have been put to the Senate Foreign Affairs, Defence and Trade Committee that there are very unsavoury allegations of activity in the Army, in the Navy and in the Air Force. If you look at the Defence Abuse Response Taskforce, it was proven, so don't lecture us about an industry which you don't know anything about.

I have driven trucks in and out of building sites on many occasions. I have even worked on building sites as a brickies labourer. I know the induction process now is a hundred times better than what it was in the past. I know the difficulty of building industry contractors in securing long-term access to work. That is why we have the portable long-service scheme in the building industry in Victoria: because people do not get continuity of work. The concreters will go in and do the concreting. That part of the job is gone, they go to the next building site and on it goes. And the competitive pressures in there are intense.

What the union tries to do is organise safe, well-paid workplaces, and those people are elected. Believe it or not, they are not just found around the corner, waiting to sign on. They are elected by the members they represent and, if they do not deliver safe, well-paid workplaces for their membership, they will not be elected at the next union election. That might seem exceedingly strange to those on the other side.

But I suppose my point is this: this is a well-worn path of all coalition governments to take and try to smash a segment of the workforce—particularly one that may not be meeting their standards of wage outcomes. If they want to be able to achieve a five per cent increase and they do not think they will be able to, they will take whatever action they need—a $50 million or $60 million royal commission; they will put in place Mr Hadgkiss. A lot of the evidence that you see is digging up old ground, seeking evidence about what someone said and encouraging people to tape-record, heaven forbid, bad language. In the 42 years I have been a member of the Transport Workers Union, if I worried about bad language, Mr Acting Deputy President O'Sullivan, much the same as you, I would have no hair at all—not just grey hair; I would be completely bald if I worried about a bit of bad language.

I do not ever support intimidation and I do not ever support bullying or harassment of people. People line up on the other side and talk about an industry they have no knowledge about. They have probably never even been at a building site and have certainly never worked on one. They have certainly never worked at a poor building site where you have to worry about whether you will get out alive at the end of the day, where you really have to worry about the safety and conditions, because everybody is competing for their jobs and their space on a building site; they are competing for their trade to get the job finished, make their money and get out; and the boss and the developer are hoping it all happens as quickly as possible because that is where the money is. Less time spent on building a building is efficient. It makes money.

We have a coalition vendetta. It was the MUA. Peter Reith set the dogs on the MUA. He went down there and tried to smash that activity. Now the CFMEU are in the spotlight. Exceedingly strange, the bill does not deal with corruption. Can anybody on the other side point out what it actually does about corruption? My understanding of corruption is that something has to change hands—some pecuniary interest or some actual money. What is going on? Senator Hanson, in her contribution, said people have to pay superannuation. That is a legal entitlement. Every worker is entitled to superannuation. There was a case just recently in Western Australia which may be of interest to some senators where a worker had no superannuation paid for 12 months and died. His estate said, 'That's not his fault. His employer should have paid it,' but the court case found that, because the worker had a letter saying his insurance premiums had not been paid and therefore his policy may stop, they threw the case out. So, despite the fact that the employer never paid the contributions, there was no liability determined on the employer.

I support the right of an appropriate organisation to make sure that workers on building sites have insurance and they have superannuation. We saw two very classic cases in recent times—one in Adelaide and one in Brisbane—where two workers were killed. They paid the ultimate price. Why should their family pay another price because no superannuation had been paid on the site? Who is going to police that? Is the ABCC going to go around and check employers' records and see that superannuation is paid up and all the insurance is there in case something untoward happens? No, they will not. That is left, quite appropriately, in most states to unions and their members. They look after themselves. If they do not have their superannuation paid, they tap on the boss's door and they say, 'Pay it.' When that person pays it and he is six months behind and he goes to see One Nation or the Xenophon party and says, 'I was stood over. I had to pay $50,000 worth of superannuation,' that is only because they had paid it late. It is quite common. In the transport industry people do not always pay their bills on time. They do not always pay the legal entitlements on time. In the case in Western Australia, the mining company did not pay for 12 months and the worker had no insurance. You cannot lambaste the union for actually doing their job. They are elected to provide safe, well-paid workplaces. They go about it in a very vigorous and very successful way.

A number of times senators have stood up on the other side and complained about the language. Oh my goodness. I think they ought to get out a bit more. My local pub on a Friday night is not for people who just say, 'And how are you, George?' They get stuck in. Workers do that. It is no great surprise. And our representatives do it as well. It is no great surprise. In all the time that I have driven trucks on and off building sites, they have been a lot safer for the presence of the CFMEU. There will be an induction. You will make sure you have your hard hat, your safety glasses, your earmuffs if required and your steel capped boots, and if you do not have them you do not get on, and that is not always policed by the employers. A lot of contractors moving from job to job do not police it either. They send out their workers in the morning. Plenty of companies with electricians in Melbourne would work a 60-hour week and 12-hour shifts. You get a van, you take it home and you go to the job. You go to the job, you do the work and you go home. But, if you go to a CFMEU job and you do not have your safety gear, you probably will not be operating, and rightly so. That is not corruption, that is not extortion; that is rightly so. You should not risk yourself or anybody else on a building site. But it does cost money and people need to charge for the appropriate training, induction, licensing and provision of that safety gear.

The reality is that this is the same old agenda of the coalition government. It will not benefit them. They might win this argument tonight, but what we will have is a less safe and less well-paid segment of the building industry. We will have, despite Senator Hanson's proliferations, probably an increase in exploited immigrant labour or 457 visa labour. We will see that because of the challenges with languages. We have seen it in the trucking industry where people of an ethnic origin have been given 600 licences without doing the test. Do not think it cannot happen in the building industry. If you dismantle the CFMEU's safety-conscious activity in the building industry, you will make it less safe. Importantly, from the boss's perspective, you will make it cheaper. People will come in and bid on less safe equipment, less safe standards and will probably spin their super out for a bit. There will be more rip-offs. Senator Xenophon's attempt is honourable—to make sure people get paid on time—but I do not think it is going to be all that successful because, when you deregulate and you get the CFMEU out of all of the useful activity that they are involved in, it will be less well-paid and less safe. Unfortunately, there will be more deaths and more people not paid correctly.

Ark Tribe, a building worker in Adelaide, was one of the first people charged under the legislation. He went to a meeting as an occupational health and safety officer. He was called in and was not given the right to silence. A drug dealer has the right to silence, but a delegate in this circumstance must make a disclosure: who was at the meeting and what did they say? He refused. Through a number of court cases—it went on for quite a period of time until eventually he was acquitted—he refused to contribute under the coercion powers of this legislation. I am not sure what anybody in the building industry has done to be treated less favourably under the law than someone dealing drugs. You must tell them who was at the meeting, what you said and what was discussed. That is not Australian. That is most definitely un-Australian.

The reality is that workplace deaths and injuries will increase. If the Hon. Malcolm Turnbull has his way and construction workers are hit with a $36,000 fine for acting on safety concerns at work, fewer of them will act on safety concerns. There is no doubt about that. I come from a vintage where when a worker was killed on a building site everybody used to donate a day's pay. That was the only compensation really. A day's pay would be collected from everybody on the site. If you are going to fine a worker $36,000 for identifying and acting on safety concerns, that is really a serious problem. Essentially, it will be a $36,000 fine for saying, 'That's not safe and I don't think I can do it.'

Joe McDermott and Gerry Bradley, the two workers who were killed at Jaxon Construction in the Bennett Street project, died because their company had not set up an exclusion zone. Both were crushed to death by falling concrete. CFMEU organisers were restricted from carrying out their rights on that site. Because the company had been advised about right-of-entry provisions, no-one was able to go in and say: 'Look, that's not safe. We shouldn't organise that work that way.' Two men are dead because of the application of the current act, and those opposite want to go on to make it stronger.

There was the case at the Royal Adelaide Hospital of two workers who were both tragically killed on-site, both in a scissor lift accident. Both were crushed. There were multiple complaints about fatigue, schedules and disorganised sites, and consistently calculated blocking of legitimate OH&S initiatives from unions at the hospital site, all to no avail. But if the workers took action there would be a $36,000 fine. It is a volatile industry. It is not always as easy as it looks from the perspective of someone sitting in a Senate office. In a lot of cases these sites are multistorey and multifaceted. There are a lot of people going in different directions doing different jobs. You need vigilance in safety on any multistorey or multifaceted project. Who is going to provide it? The employer is conflicted. The employer or the major contractor needs to get things done in full and on time to get the work done, get the payment in and get reimbursed. Quite clearly, in those circumstances safety is not at the forefront of their mind. There are some very good companies with very good policies, but who enforces them? It has to be the workers. The workers have got to be able to say, 'That's unsafe.' If they risk a $36,000 fine, not too many workers are going to be saying that. They are more likely to say, 'It's not my job; I hope nothing happens,' which is not the right attitude to have.

We know that there have been deaths in the building industry for a long, long time, but I can tell you from my lived experience that building sites are safer than they were five years ago, much safer than they were 10 years ago and dramatically safer than they were 20 years ago. The only common denominator in those 30 years or thereabouts has been an active building union. They follow through not because they retire as millionaires, as property developers. They retire richer in a much broader sense because they have contributed to people's working lives. People have survived and worked longer—without injuring their back, without losing a limb, without paying the ultimate price—and they have got a decent wage out of it. That is what union delegates and organisers retire with: the knowledge that they have fought hard for their fellow worker, been as collective as they could, had good outcomes and contributed to the fabric of Australian society.

If you want to go down this path, chop up what is a very good industry and make it less safe, less well paid and more fragmented, it is not where Australians want to go. Australians have rejected your well-worn path of Work Choices and AWAs and dog-eat-dog industrial relations. Peter Reith knew which side he was on and he was not afraid to say it: 'I'm on the side of big business.' That lot over there are on the side of big business. They are doing the job for big business. They are not looking after the small and medium sized contractors in the industry. They could not care less about them. They are looking after their big end of town. That is the be-all and end-all of their campaign. They come in here screeching about someone using bad language on a building site. Well, go and visit one at lunchtime and see what happens. You will probably be treated with absolute courtesy. When things get a bit willing, people do tend to swear—that is, in the world I live in. I have four sons. They tend to turn the air a bit blue occasionally. I know from someone in the other chamber who has a couple of young lads in the building industry that they come home and are a bit robust. They are great people, they work hard, they want to get home every day safely and they want to earn a good quid. And they are members of a union, heaven forbid! They are members of the CFMEU, a great union doing good work for safe workplaces and better paid Australian workers. Long may they continue and more power to their arm.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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