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

Minister, could you advise me how many companies in the building and construction industry do not have a 2016 code compliant agreement?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Thank you for the question, Senator Cameron. I think you would be aware that the government is not in possession of that information, for a number of reasons, but, for the record, I point out that, as you are again aware, building industry participants have had, since April 2014, advanced notice of the fact that the government intended to issue a new Building Code. In fact, you would also be aware that there are a number of agreements that have specifically put in place clauses within them—for example, the Lendlease Building CFMEU New South Wales, Australian Capital Territory, Victoria and Tasmania Agreement 2016, which provides:

Compliance for government funded building work.

(a) It is recognised by the Parties that whilst this Agreement is in operation, Commonwealth, State or Territory Governments may impose particular requirements on the content of enterprise agreements in order for the Company to be eligible for future government funded building work. It is essential that the Agreement is compliant with any such requirements in order for the Company to remain eligible to tender for future government funded building work. If any new requirements are promulgated during the life of this Agreement, which impact on the content of this Agreement, this clause will be applied.

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

That is Lendlease, but I am advised, arising from the committee hearing yesterday, that there are some 3,300 agreements that would not be compliant. That information was made available yesterday. Were you advised of that information?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I am aware that the CFMEU are claiming all sorts of things in relation to the passing of the amendment to the Building Code.

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

This is a serious issue. The evidence we have is that many companies will be facing a situation of having to renegotiate their agreements, and even Lendlease would have to renegotiate their agreement. Have you had advice—I do not want to know what the advice is—as to the implications of another bargaining round arising from this bill, if it is passed?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, the answer to your question is no. In relation to what you are implying, you seem to fail to understand certain things. In the first instance, compliance with the Building Code is voluntary. It is an opt-in scheme. If companies do not want to undertake Commonwealth funded government work they do not have to opt in to the scheme. There are also, as you know, many, many companies that have held out since they were given the advance release of the Building Code, many of them small and medium businesses, and they are ready, willing and able to negotiate with the CFMEU, should the CFMEU wish to negotiate with them.

In relation to those who have a non-compliant agreement, if they do not tender for and are not awarded government work, again, the provisions of this code do not become relevant for them until they do that. For those companies which currently have a non-compliant agreement, they do not have to renegotiate their entire agreement, Senator Cameron. That is wrong. All they have to do is vary the clauses that will offend the provisions of the Building Code. For example, if a company has an agreement that has one clause in it that offends the Building Code and the company wishes to tender for a future project, that company merely has to vary that one particular clause—that is it—to become compliant under the Building Code.

Again, for the record, certain companies—for example, Lendlease—have already negotiated with the CFMEU. This agreement I have here is an agreement that was made in 2016, which specifically, at clause 7.3, provides—for the benefit of those listening to this debate I will read it—as follows:

7.3 Compliance for government funded building work

(a) It is recognised by the Parties that whilst this Agreement is in operation, Commonwealth, State or Territory Governments—

Not just the Commonwealth government—

may impose particular requirements on the content of enterprise agreements in order for the Company to be eligible for future government funded building work. It is essential that the Agreement is compliant with any such requirements in order for the Company to remain eligible to tender for future government funded building work. If any new requirements are promulgated during the life of this Agreement, which impact on the content of this Agreement, this clause will be applied.

The clause goes on, so clearly the parties had a very clear intent that in the event that the Building Code, in this case, was to change, they would enable the following:

(b) In this event, the Parties—

Lendlease and the CFMEU; they are the parties to this agreement—

agree—

It is already agreed between Lendlease and the CFMEU; that is not in dispute—

to apply to the FWC to terminate this Agreement in accordance with the Fair Work Act (within 7 days of any such requirement being promulgated) and the Company and Employees will commit to negotiating a replacement Agreement which is compliant with any such requirements.

But they go on further to state: 'The company will seek to ensure that no employees are financially disadvantaged as a result of the termination of the agreement'. So, Senator Cameron, what you have there is a clear acknowledgement—by, in this case, Lendlease and the Construction, Forestry, Mining and Energy Union, or the CFMEU, New South Wales, Australian Capital Territory, Victoria and Tasmania—that in the event that the laws change, the union and the company have agreed to do what they need to do—application within seven days—to ensure the agreement complies with the relevant law.

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

Minister, I am not sure how long it is since you have practised industrial law. It is a fair while since I have been involved, but what I can tell you is that when you talk about 'renegotiation' it means renegotiation; it does not mean a defined outcome. Does the minister then accept that if the agreement is terminated workers would be entitled to take protected industrial action to deliver on the outcome of the agreement?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Industrial relations laws will apply.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Minister, you identified one company that has that clause; you have not been able to identify any others. So can I ask you this: how many lift and escalator companies have compliant agreements?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Thank you, Senator Marshall. I appreciate the significance of the question, given your background. In response to your question: to date, I am advised that 16 per cent of companies have been identified as having such clauses in their agreements. That is a significant number of companies. That is based on a survey by the department.

In relation to your question, I do not have those specifics. But I can tell you this: I have spoken to a number of small to medium businesses who are involved in the industries which you just referred to. And guess what? They cannot stand up to the CFMEU, they cannot stand up to Lendlease; they cannot stand up to Probuild. That is why we are moving this amendment with the crossbench, because we are here today to say to the big end of town and to say to the CFMEU—and not just them alone. I am not going to blame the CFMEU here, because in this game it takes two to tango. So I am going to lump Lendlease in there and I am going to lump Probuild in there, on Hansard. I am going to say to them: 'The reason we are doing this is to stop your cartel-like behaviour'.

I will stand up here every single day of the week and go into bat for the small to medium businesses who do not have the purchasing power, who do not have the voice and who rely on us. That is the person Senator Hinch spoke to in the post office. He proudly stood here today and relayed that story. They are the people, Senator Cameron, we are here today to help. Quite frankly, I can say to the big end of town: 'You are big enough and ugly enough to look after yourself'. That is evidenced by this agreement here between Lendlease and the CFMEU. But, in relation to the little guys that you are referring to, they need this chamber to do the right thing by them and give them a chance to participate in the third-biggest industry in Australia.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Thanks, Minister, for that answer, but it really did not go to the question that I asked. I will just make a couple of points. The CFMEU does not have members in the lift and escalator industry so it is not about standing up to them. The sorts of companies that would be tendering for the work that the Commonwealth is involved in are not small- and medium-sized companies. It is quite a unique industry. They are not little companies. Otis elevator, for instance, is part of United Technologies, which is probably one of the biggest global entities in the world and which has enormous resources in their human resources department. You have Kone elevators, which again is one of the largest construction companies in the world. You have Thyssenkrupp. These are not small companies that are at anyone's mercy. The question I am really going to is that this is quite a niche industry, but it is crucial in the building and construction industry. I am just trying to confirm with the department, because they should know. This is not a lot of companies to check whether they have agreements or not. My advice is that none of them have compliant agreements. Not one.

So when we get to the stage of whether these companies want to bother tendering for jobs, if they do not have a compliant agreement in the short space of nine months in which they are going to be allowed to tender, they are just not going to bother. How is any construction project going to proceed? I suppose there will be some construction projects that do not involve escalators, but it is hard to imagine what they would be. The government is rarely involved in construction that will not have lifts or escalators, even if it is a matter of disabled lifts. So we are going to have a situation where potentially none of those companies are able to change their agreement in this short time frame. It is not as easy as simply saying that people will agree to change it. There is a process by law which people have to go through to get a change. I will ask more questions about the timing of that again, but I hope that in the small period of time that I have been speaking the department has been able to give you some advice about how many companies in the lift and escalator industry, which is nothing to do with the CFMEU, will have code-compliant agreements.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Marshall, I do not have that information; however, again I go to the point that this is an opt-in scheme. If you do not want to perform Commonwealth-funded work, you do not have to. It is as simple as that. It is an opt-in scheme. Building industry participants have now had since April 2014 to bring their enterprise agreements into line with the new Building Code. I am advised that over 600 companies sent their agreements to the Department of Employment to be assessed against the advance release of the code since April 2014. Master Builders themselves have publicly stated that there are contractors that have enterprise agreements that comply with the 2016 code. As I have already stated, 16 per cent of companies have the clauses that have been referred to in relation to changing the agreements when the law changes.

Ultimately, what it comes down to is this: is the CFMEU honestly going to say no to their members having jobs? I think the answer to this question has to be no. It is up to the CFMEU. If a company with a non-code-compliant agreement has to become code compliant within this period of time in order to be able to undertake Commonwealth government work, that is the choice the CFMEU have. Do you know what I would do if I were the CFMEU? I would renegotiate as fast as I could if I was dinkum about my members actually undertaking work and having jobs, as opposed to—I have the article here somewhere—threatening to close down Australia. If this Senate today votes on this small amendment to this bill—they have openly issued a statement on 15 February. The summation of the statement is that they are so offended that they will close down Australia. I say this to the CFMEU: you can close down Australia. It is up to you. But you can also do the right thing by your members and ensure that in the event—because it may not occur—that the person or company you are working for becomes subject to the code and is required to have a code-compliant agreement, you are going to do your dammed hardest to ensure that you can front up on Monday morning with a job. That is the decision the CFMEU can make. They can shut down Australia or they can ensure that their members have jobs.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Minister. Again, you went back to the CFMEU. The CFMEU do not have any members in the lift and escalator industry. I take it that the department has not been able to advise you, so I suspect that my information is right—that there is not a single company that has a compliant agreement. How many companies in the air conditioning industry have agreements that are compliant with the code?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Again, I am not in possession of that information, but I stand by my previous answer.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Again, I find it extraordinary, given that the department is there. The debate always seems to be about the big building companies and the CFMEU. The industry is much broader and more complex and detailed than that. Again, my advice, and it is only advice, is that not one air conditioning company in this country has a code-compliant agreement. It is hard to imagine that the Commonwealth will be funding any building and construction projects that will not need air conditioning contractors, as with my last question about lift and escalator contractors. I find it extraordinary. We talk about the 3½ thousand CFMEU agreements, but in the rest of the industry we have air conditioning, lifts and escalators, mechanical services, plumbing, electrical, boilermaking and steel fixing, civil engineering, mechanical engineering—the list goes on and on.

The amount of agreements the CFMEU has is only a portion of the agreements. Again, my estimation and advice is: in excess of 6,000 agreements are non-compliant in the industry. Six thousand have to be renegotiated and have to go through the process of getting changed through the commission. My advice is that that generally takes 12 weeks. So if we assumed that everyone could come to an agreement tomorrow about getting their agreement code-compliant, it would be 12 weeks before they even started to get to the commission. That is my advice. That is the way the commission has operated—by the time the agreements are voted on and registered. There has to be a period for the vote to take place. So, only then, in excess of 6,000—and this assumes that everyone can reach agreement then—goes through. You could do back-of-the-envelope figures, but I suppose it is an agreement being processed every couple of minutes in the commission to meet the nine-month deadline. Again, then you have companies saying 'Well, if we're not absolutely sure that we're going to be within that nine-month deadline, why would we spend and invest the money to tender only to find out that we might be over that nine months, and it's money down the drain?'

I have asked about air-conditioning. Maybe I could ask about mechanics services, as well. How many code-compliant agreements in the mechanical services component of the construction industry are code-compliant?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Marshall, I see that you and I are going to be playing a tag team all night. Again, I am not in possession of that information. But, in relation to a number of the points that you have made—again—it is an opt-in scheme. It is as simple as that. If you want to undertake Commonwealth government work, yes, you will need to be code-compliant. If you do not, the scheme has absolutely nothing to do with you.

Everybody you refer to has had since April 2014 to get their affairs in order. There are numerous companies out there who have code-compliant agreements. In relation to those who do not, it is only if they are going to be affected by the changes to the code that they will have a vary their agreements. They have a considerable period of time in which they can do that under this amendment—until 31 August 2017. I would also say to you that this is something that the commission does on a regular basis. I am not going to underestimate the capacity of your appointment to the commission, President Ross, to undertake or to discharge his job in an incredibly diligent manner. This is bread-and-butter core business for the Fair Work Commission.

But I would also point out, Senator Cameron, as you know, government tenders are not awarded overnight. There is a process that needs to be gone through. During that time, these companies have the opportunity to vary their agreements—but only in the event that they require to.

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

Minister, you have descended into the rhetoric almost immediately about closing Australia down. But you have also raised the issue of cartel-like behaviour and you have accused Lendlease and Probuild of engaging in cartel behaviour. This is the rhetoric that One Nation have been espousing. Senator Roberts has been espousing this as cartel behaviour. You have now adopted One Nation's rhetoric on this. I also would like to ask you: have you advised or notified ACCC of cartel behaviour of these companies? And if you feel there is that cartel behaviour—as you have publicly indicated here—and if you have not advised of that behaviour, why not?

Also, in relation to the survey that you say you did in the elevator industry, can you advise me what other areas of the building and construction industry have you conducted surveys? What were the outcomes of the surveys and what did the surveys comprise of? What was being asked in the surveys?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, again, as last time, it is clearly going to be a very, very long night. In relation to the cartel-like behaviour, you will be aware that what the code is seeking to do is break—we admit it—the cartel-like behaviour between head contractors and unions.

While they often directly employ few workers on site, big builders often enter into deals with unions that seek to mandate the pay and conditions for all subcontractors on site. This is directly relevant to small and medium enterprises who need to have the freedom to make a deal with their employees free of coercion. For example, the CFMEU's pattern bargaining agreement, which they require everybody in the chain to adhere to, contains a raft of restrictive work practices. It is okay for the big end of town; they can afford that. But the small and medium businesses are the ones who, unfortunately, do not have the power or the money to necessarily comply with these pattern bargaining agreement requirements. And, as such, they are quite literally not able to participate in the industry.

In terms of the survey that I referred to, as I said, 16 per cent of the agreements that the department had assessed had clauses in them that directly relate to the cause that I read out in relation to the renegotiation of agreements. My understanding is that the ACCC is currently investigating cartel behaviour within the building and construction industry—and the example given is, obviously, Boral.

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

It certainly is going to be a long night, because it is obvious that you are scrambling—as you did when we last debated the bill. Minister, I am really surprised that you do not understand the basics of your portfolio. You talk about agreements covering everyone on site; Minister, you would be aware, or you should be aware, that agreements do not cover everyone on site. You should correct that position, because it has not been legal to have pattern agreements on sites for many, many years. I am not sure why you are using this rhetoric about agreements covering everyone on site. You mentioned Boral. You have basically named and shamed two companies, Lendlease and Probuild, and I am asking you whether you have referred Lendlease and Probuild to the ACCC. Do you have evidence of cartel behaviour that breaches the ACCC legislation? You shake your head, so you have no evidence. I think it is outrageous that you have no evidence, shaking your head, 'No, I've got no evidence,' and yet accuse companies who have operated legally in enterprise bargaining for years.

You raised the issue of 2014. I want to draw your attention to the fact that on two occasions parliament rejected the bill that would have provided for the code that is now in place, and no company had a legal obligation to comply with a code that had not been subject to a legislative change within parliament. Really, your capacity to understand these issues to me seems to be less and less every time we are here. That is why it becomes a long night, because either you or the government do not understand how industrial relations works in this country. I asked you, 'Have any other surveys been done?' and I thought it would have been an easy answer—either surveys have been done or they have not. If no surveys have been done, are you relying on the MBA for your advice as to what is happening in the industry?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Prior to the ABCC bill passing last year, Master Builders Australia advised that the overwhelming majority of its members had enterprise agreements that are code compliant. Also, many enterprise agreements, as I have already stated, include clauses that commit the parties to amendments in the event that the new code is introduced. As I have also stated, the department has undertaken an analysis of a number of agreements and found that 16 per cent of agreements had these types of clauses.

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

Minister, I am still not sure. You are saying that it is 16 per cent across the board. That means that 84 per cent do not have such a clause. That is why I think many companies are concerned about stability in the industry and about the capacity of the industry to deal with this change in such a short period. Minister, the day after the bill was passed you issued a press release—

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

Who's scrambling?

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

Sorry?

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

I don't think the minister is scrambling. Do you need a hand with your papers?

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

No, I am fine. Minister, you issued a press release which basically said that companies had until 2018 to become code compliant. What changed?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, as you would well know, the government's position for many, many years now has been very clear: the government's preference was to have the relevant provisions of the original bill commence following gazettal. The government's position was not preferred by a majority of people within the Senate and, as such, the government sought an accommodation with the crossbench, as Labor and the Greens refused to deal with the government in relation to ensuring prosperity and productivity in the building and construction industry.

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

You say the government sought an accommodation. Senator Hinch indicated that he went to the government—that is on the public record. Senator Hinch also indicated that the Prime Minister wrote on a piece of paper, and passed that piece of paper over to Senator Hinch, with the 2018 date. Did you have any involvement in determining the 2018 date and are you now saying that Senator Hinch's view of what happened where the Prime Minister offered up the 2018 date is wrong?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, I have made statements on many occasions since coming into government that I do not reveal the contents of negotiations with the crossbench. That would just be inappropriate. The government's clear position was that we would have preferred the relevant provisions of the original bill to commence following gazettal. That position was not supported by a majority of senators, and we were able to negotiate a position which the government ultimately agreed to and which was passed by a majority of the Senate.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, I also wanted to take up a similar question to that which Senator Cameron asked about how the change came about, because it was only a few months ago that we were here and the two-year grace period was agreed to by the Senate. I notice that you have changed your language somewhat, putting it on the crossbenchers, but we know it went through unanimously; it was agreed to. So, my question is: when did you change your mind and decide to bring legislation back to the parliament—the legislation that we are now debating? When did that change and what was the catalyst? It is a very big change. In November you signed off on legislation—the two-year grace period was unanimous. So, for the understanding of how the government works and, most importantly, going to the heart of what we are debating here, that needs to be unravelled. It is important, if this is a house of review and you are committed to that openness and transparency, to understand the process here. That should be answered.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Thank you for that question, Senator Rhiannon. Again, the government's preference—it has been since we first introduced this legislation a number of years ago—was to have the relevant provisions of the original bill commence following gazettal. It is a fact that the government does not have the numbers in the Senate and therefore we need to negotiate passage of legislation. Last year we were able to negotiate passage of the legislation and the benefits of that legislation through the Senate. However, we were also given an opportunity—and I do not know about you, Senator Rhiannon, but I am someone who is always looking to improve what the government can do. We are now in a position whereby we can improve on our first attempt, and that is what we are doing.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

So, Minister, do we understand that you are acknowledging what happened when we were last debating the ABCC legislation? As you know, there were a number of amendments that were agreed to in the end. Are you acknowledging that the legislation was rushed, that it was sloppy in the way it was handled and that there were a number of things that you were not happy with, so we well could be revisiting this time and time again when you get the numbers? Is that how this government is now going to conduct itself? It rushed something through so that you could go out there before Christmas and say that you have achieved what you went to the election with. But then you will chip away at the crossbenchers and you will bring in the big guns to put the pressure on, and we could be facing a piecemeal approach to how sloppy legislation has been dealt with in the past. Surely that is the essence of what you are saying.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

It appears the minister is not going to respond to that. I would like to ask the minister more about the agreements. One of the things that concern me is how the commission is going to process this change in such a short, narrow time frame. I have one question and then I might ask a few more that the department might have to run around and get information on. The first question I have relates to the 16 per cent of agreements that the department said they have tested that are code compliant. It was 16 per cent of what?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Marshall, to be clear, this was 16 per cent of the agreements that the department looked at that had that clause. They looked at 100 enterprise agreements and found that 16 per cent of those agreements had these types of clauses. As I said though, prior to the passing of the ABCC, Master Builders advised that the overwhelming majority of their members have enterprise agreements that are code compliant.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Thank you for that, Minister. And that is fine—they have done the sample of 100. And maybe the MBA are right—maybe the majority of their members do—but they rarely actually employ people on building and construction sites. They are effectively a manager of contractors and subcontractors, and of course they are the people that need to be on the sites to do the work. So how many agreements do we think are in the building and construction industry—not just the CFMEU but across the whole industry, including mechanical services, electrical services, air conditioning, the civil component?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I am not in a position to give you a figure, but I think on any analysis there would be thousands.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I agree, but I think it is probably tens of thousands. It does concern me that the department cannot offer that sort of advice. The whole thrust of this amendment is reducing the transition time to enable the agreements to become code compliant. One would have thought some analysis had in fact been done on whether it is even physically possible to have agreements transfer to code compliance in this space of time. If the department is able to find that information, that would help me. Can I ask then: what does the department predict is the amount of time taken from an agreement being reached, voted upon and lodged in the commission to a decision being made? How long will that take per agreement?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Marshall, as you would know, the normal processes apply. In the event that the CFMEU—I will use the CFMEU as the example union—activates this clause within seven days they will be seeking to vary their agreement, and then the normal processes of the commission would apply.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Seven days is the process to apply to get to the commission, but before that, there has to be a process of negotiation and consultation that satisfies the legal requirements of doing that in the first place. Again, my advice is that that is at least 28 days then the seven days will kick in and then there is a process of how busy the commission is going to be at that point in time, with potentially tens of thousands of agreements lining up. Can I ask whether the Fair Work Commission has been consulted about its capacity to actually vary potentially tens of thousands of agreements over the next nine months.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I think you are actually underestimating and undermining the work of the Fair Work Commission. This is bread-and-butter work for the commission.

Companies and the unions have had the opportunity since April 2014 to become code compliant. Again, it is an opt-in scheme. You do not have to opt into this scheme should you not wish to. If you do not wish to then you do not need to vary your agreement. In the event that you do wish to, and you do not have a co-compliant agreement—because a number of companies have code compliant agreements—then you merely need to seek to vary the offending clause. If it is one clause, you merely seek to vary one clause.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

But the reality is, whether it is one clause, 10 clauses or 50 clauses, the time process for negotiation, consultation, lodgement and assessment is fixed. It is going to take that long anyway.

Again, I do find it somewhat surprising and, in fact, somewhat alarming that the department, first of all, cannot tell us how many agreements there are in the industry. They have done a sample to determine that they believe that 16 per cent are code compliant, so 84 per cent are not code compliant. If we are talking about tens of thousands of agreements, we are potentially talking about tens of thousands of agreements that are not code compliant.

I do not really want to get back into the argument about whether they should have had code compliant agreements. Quite frankly, the legislation had been defeated twice. I think it was quite reasonable for a lot of people to assume that they did not need to be that code compliant because the parliament had actually determined this issue on two occasions. In any case, the 2016 code is different from the 2014 code and we have had that evidence; it has been presented to the committee and in the reports.

Again, I would like to know what the estimation is. If I just do the rough calculation, I think the commission is probably trying to process an agreement every four minutes. That is assuming that the potentially tens of thousands of agreements are all agreed immediately. If you accept that, even with the whole nine months, you cannot get through it. You cannot do it; it is a physical impossibility. The point I am trying to find out is: does this amendment actually enable people who might want to become code compliant, even if they wanted to and even if they did everything in their best endeavours with their workforce, to achieve that goal? That is my question.

I suggested earlier that we would be here all night and I know we will not be, because you came down to listen to my second reading speech and I could see in your eyes that I got you halfway to the line. I know you are on board and you are convinced with the strength of my argument and I know you are listening very intently now.

You have a department that has the job of collecting these statistics. Again, I find it incredibly frustrating that we just seem to have arbitrary numbers pulled out like 'two years', which was just written on a piece of paper by the Prime Minister and slid across the table to Senator Hinch. And we know that was not advice that the department provided because they gave that evidence. Now we have a nine-month transition period. We know that was not the advice of the department because they gave us that evidence. Clearly, it is now pretty obvious to everybody that they would not have given that advice because, for a start, they do not even know how many agreements are in the industry—and they should. They believe, however many it is, that 16 per cent may be code compliant so 84 per cent are not but they do not actually know what that figure is. They certainly have not sought any advice from the Fair Work Commission about their ability to process such a number of agreements. In fact, they seem to have provided no advice to the government.

So we are actually making policy that can have a significantly detrimental effect on industry and companies just based on an arbitrary number of nine months. Maybe I am missing something but I have to say I find that extraordinary. I thought that in this place, and certainly as part of the committee process, we tested how rigorous the policymaking process was in what we are debating and what is in front of us. It appears there was no policy making here. It was simply a number pulled out of thin air an applied with no testing against reality and no testing against capacity. I find that extraordinary. I know in the next couple of hours you will, ultimately, agree with me. You will withdraw the legislation and we will be able to move on. It will not be a late night. I can see many on your side agree with me already.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, I want to go back to a question Senator Cameron asked earlier, and it concerns the inquiry. Before you were a minister, when you were in opposition, you would have sat on these inquiries, and I am sure it says probably somewhere in Hansard, somewhere in committee reports, that you acknowledged the importance of it. And he asked whether you had been informed that there could be 3,300 agreements that would not be co-compliant. The impression I got—and this is what I want to check—from how you handled that question was that your office had not made you aware of what happened at that inquiry. So, my question is, have you been briefed about what happened at the inquiry into this legislation this week?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Yes.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

This is a huge part of what we are debating, that there could be so many of these agreements—thousands of agreements—not co-compliant. And in answer to an earlier question, you appeared not to know about it. Surely that was in the briefing. Is it a briefing just along the line that there was an inquiry today? Or were you actually given information about it that you considered before you came into this debate? I mean, this is very relevant. Are you taking the Senate processes seriously?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Unfortunately I am tempted to actually respond to you. This bill has been presented to the parliament on a number of occasions. There have been copious Senate inquiries into it. Another Senate inquiry—you are right—was held on Monday. And yes, I was briefed on that inquiry.

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

As a servant to the people of Queensland and Australia I am seeking through these questions to protect workers, union members, small business and taxpayers. My first question to the minister: it seems to me, Minister, that the key and perhaps only question, the only issue here, is the decrease in the transition period from two years to nine months—nothing else. Anything else is a distraction from this bill and outside the intent and scope of this bill. Secondly, given the ABCC's benefits to workers, small businesses and taxpayers, isn't that necessary to get the ABCC into place as quickly as possible?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

You are correct: the exemption currently runs until the end of 28 November 2018. This bill will, if passed by the Senate, bring this exemption forward to 31 August 2017, and this is obviously key to ensure that there is a level playing field for all involved, regardless of their size, as soon as possible. And I have been very up-front with the Senate: the government's preferred position was that the provisions commenced following gazettal. But we also acknowledge that that was not the preferred position of the Senate, and we are very happy that we have been able to work constructively with the crossbench, and Senator Hinch in particular, to put in place a nine-month transition period—bearing in mind that April 2014 was when notice was first given.

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

Minister, just to clarify further: that is the only issue under discussion, as I understand it, in this bill—reduction from two years to nine months in the transition period?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

As I said, yes, the exemption currently runs until the end of 28 November 2018. The bill will bring this forward to 31 August 2017. It is a very short amendment.

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

Again to the minister: during the committee stages yesterday Mr David Noonan from the CFMEU said that Assistant Commissioner Fontana from the Victorian police recanted his original statements, and I read one of those statements, and that statement said:

… union officials use organised crime figures to act as debt collectors in the industry'. Specifically, Victoria Police has intelligence which indicates that members of outlaw motorcycle gangs now regularly undertake debt collection for union officials.

In his response, Mr Noonan from the CFMEU said that subsequently Assistant Commissioner Fontana had retracted those statements and apologised.

Now, I have since checked the Heydon royal commission transcript, and it says quite clearly that the CFMEU's barrister's question to Assistant Commissioner Fontana was:

In your written statement you do not describe Mr Meyer as a union official. Paragraph 48 is the place in your statement where you mention the CFMEU.

And Assistant Commissioner Fontana said, 'Sorry, you're right,' and then the barrister for the CFMEU said, 'Of the Comanchero sergeant-at-arms, Norman Meyer?' and Fontana said yes. And then the barrister for the CFMEU said, 'But in your oral evidence you have described him as a union official.' And then Assistant Commissioner Fontana said, 'I've got that wrong; I apologise.'

In other words, Assistant Commissioner Fontana said that he apologised for confusing Meyer as being a union official when in fact he was a union member only, and no-one disputes that he is a member. What I am saying is that yesterday in the Senate committee hearing Mr Noonan for the CFMEU made a number of false and misleading statements that misrepresented the truth. So, that is the first one: there was no apology for his allegations about the CFMEU from Assistant Commissioner Fontana, and there was no retraction of his claims about the crimes associated with the CFMEU.

I further take note that in his response to me yesterday Mr Noonan for the CFMEU said words to the effect that the CFMEU has zero tolerance for criminal activities and does not endorse criminal involvement in the union. Yet surely people are aware that in recent years several CFMEU officials have been purged by Mr Noonan for blowing the whistle on corrupt dealings between the CFMEU and organised crime figure George Alex. Whistleblowers have made claims that Alex was paying cash to the CFMEU officials.

For an organisation that has 'zero tolerance', I think they were Mr Noonan's words, it is quite clear from an article in The Herald Sun that the unions muscleman, Norm Meyer, has been revealed as the key player in the standover tactics for the militant CFMEU and the building industry. I also have a photo here of a police raid on an outlaw motorcycle gang clubhouse which prominently features Norman Meyer who is a member of the CFMEU and connected with the Victorian CFMEU assistant state secretary Shaun Reardon and is connected in turn to the CFMEU state secretary John Setka. Then I have a photo here—it is a notorious picture, I am told—of Norman Meyer walking with an outlaw motorcycle gang T-shirt under an open CFMEU jacket alongside the Victorian CFMEU state secretary Shaun Reardon. I am wondering how much credibility Mr David Noonan has, because it is quite clear that there is a lot of tolerance for organised crime and corruption within the CFMEU. Further, I understand that some of these links have been drawn to the attention of Mr Albanese and Mr Bill Shorten. In fact, in response to whistleblowers' claims David Noonan summonsed the whistleblowers and then dismissed the whistleblowers. Far from having zero tolerance for crime and corruption, it seems that the CFMEU has zero tolerance for whistleblowers.

My question is: how can we take the CFMEU seriously? How can the ALP, Greens and independent MPs and senators condone anything but putting an end to this corruption as soon as possible? Senators Hinch and Xenophon have been smeared in attempts to intimidate and control their position and to change their position. This is just unacceptable, and it reaches right through this parliament with people outside the Greens and the ALP—independent MPs and senators—receiving money from the CFMEU. The CFMEU is trying to intimidate honest senators who have gone out to listen to their members and then act in response to their constituents. How can we tolerate this? I put it to you, Minister, that the sooner this ABCC comes into place the sooner we start ending the corruption that has its tentacles right through this parliament.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Thank you, Senator Roberts, for those comments. I wholeheartedly endorse them. Royal commission after royal commission would endorse the comments that you have made. This is a vital sector of the Australian economy, and our role in this chamber should be to ensure that it is as efficient, safe and law-abiding as possible because when that industry performs in that manner it creates more jobs and gives more Australians opportunities. That is all we are trying to do.

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

Minister, I want to go back to the issue of your survey that showed that only 16 per cent of the industry agreements surveyed were code compliant; and so, obviously, 84 per cent were not compliant. When you talk about a level playing field, it seems to me that the concept of a level playing field for the coalition is that the 84 per cent have to move over to where the 16 per cent are to create that level playing field. It just does not make a lot of sense when you have a situation where 84 per cent of the industry will have to go through extensive negotiations. If you have ever done any negotiation, you would know that even getting a change to one clause can be a lengthy and complex negotiation. Given that you have put so much effort into dragging 84 per cent of the industry over to the 16 per cent, I am wondering how many of that 16 per cent made donations to the Liberal Party's election campaign. I am also wondering in relation to competition in the industry if, as Senator Marshall has indicated, there are delays in getting agreements firstly negotiated and secondly approved, why would the coalition be creating a circumstance where a non-code compliant company could provide the lowest cost tender with maybe a shorter time frame, the best quality outcomes against a code-compliant company. Why would the Australian public be disadvantaged by not being able to have the benefits of the non-code-compliant company providing a better outcome in terms of economics, quality and delivery in the industry? What does this mean for competition? Have you received any advice about the implications for proper competition in the industry arising from this amendment?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Up-front I need to say to you that you are completely wrong in your analysis of the figures—completely wrong. You have also verballed me, I will not say deliberately; I am sure you have merely made a mistake. We did not say that 16 per cent of agreements were code compliant and therefore it automatically meant that 84 per cent were not. That is wrong.

Senator Cameron interjecting—

I said that the department had undertaken a survey of 100 agreements and had found that 16 per cent of those agreements include the types of clauses which I had referred to—in other words, when the law changes, the union has already agreed that the parties will renegotiate or vary the agreements.

It goes back to the basic premise, Senator Cameron. This is an opt-in scheme. You need to opt in to it. No-one forces you to opt in to it. If you want to participate in Commonwealth-funded works—some do, some don't; that is the nature of the lay of the land—and you do not have a code-compliant agreement, you need to vary your agreement. You have a nine-month lead-in time to do that. The number that vary their agreements will depend on the number who want to do future government-funded work. That's it.

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

Minister, what if no-one opts in?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, I actually do not even know how to answer that question, because it is so obtuse.

Senator Rhiannon interjecting—

It is hypothetical but obviously it will open the market up to a whole lot of other players who are prepared to opt into the system and currently have code-compliant agreements.

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

Minister, isn't it true that there are many, many small contractors who are more efficient, who are trying to get into this field and who cannot because they are locked out of a monopoly controlled by the cartel, particularly by the CFMEU's lists? That is the first thing. The second thing is that a non-code-compliant company would be burdened by inefficiencies and rorting. So it would be preposterous that they could be the lowest bidder. This is about protecting workers, small businesses and taxpayers; therefore, we need to ignore what I perceive as Senator Cameron's perception that turns economics on its head.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Again, Senator Roberts, thank you very much for those comments. All I can say to you is: yes and yes.

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

Minister, we have been trying, patiently, to get some information as to what the implications of this bill will be in the context of competition and in the context of capability—that is, having the companies that can go out and do the work. Given that you have indicated that only 16 per cent of the 100 companies that were surveyed have a clause that goes to renegotiation, it means that even in those 100 companies there are many companies that would have to go through a full process of seeking to have, first of all, negotiations with the unions that are party to the agreement and then get the agreement before the commission and go through the whole process in the context of delivering a bargaining outcome. That is the issue: getting a bargaining outcome. What you are saying is that you do not have a clue about how many companies do not have an agreement. That does lead to what Senator Marshall has indicated—chaos in the industry, a position where competition is diminished in the industry and where companies that may have been financial donors to the Liberal Party are advantaged against companies that have simply abided by the law and negotiated agreements under the Fair Work Act. Minister, have you got any idea of the number of companies that will have to go through a process of renegotiation in the building and construction industry? If you do not know, why have you supported this bill? Why are you proposing this bill when you obviously do not understand the implications for competition and continued efficiency in the industry? Why?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, thank you. I do not think I need to tell anyone in this chamber that, in terms of the CFMEU donating directly to the Labor Party, one of the reasons the CFMEU and Labor are able to fund campaigns against Senator Hinch and Senator Xenophon is the millions and millions and millions of dollars that they have, much of which is funnelled directly into the Labor Party's coffers.

Mr Chair, I have answered this question several times tonight. Unfortunately, Senator Cameron does not like the answer, but we know why. He is completely, totally and utterly opposed to law and order within the building and construction industry. Senator Cameron, it is a choice. It is an opt-in scheme. It is a choice whether a building industry participant or a company wishes to tender. It is a choice. No-one is forcing anyone—unless, of course, you want to talk about a particular union, the CFMEU, forcing someone to take on the terms that they want them to take on and then passing them down through the chain so that small and medium players who cannot afford these terms are completely locked out of the third largest industry in Australia. Again, it is opt-in. They have had over two years in which to get their affairs in order. They are now able to get their affairs in order by 31 August, and many companies are already code compliant.

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

Minister, when the transition is completed, wouldn't there be increased competition in the industry? If that is correct then my faith in people shows that there is an incentive for people to become code compliant. That will mean that all the hurdles to getting code compliant will be overcome through an innate cooperation between people, and small companies in particular will find it very easy to get code compliance. What this really brings is a culture change, once the transition is completed, that will bring increased safety and increased efficiencies for the taxpayer, small businesses and union members. So I put it to you that with the ending of the cartel, there will be increased competition, we will get compliance and we will get the code implemented very quickly.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I will just briefly respond because I understand we are about to interrupt business for a condolence motion.

The answer is yes, Senator Roberts. Again, I go back to a discussion we had earlier on this evening. If a particular union wants its members to have a job, if it wants its members to be able to go onto a building site and work, it will vary the agreement in the event that it has to. But you are right: what this does is give a level playing field to all participants, but in particular the small and medium players who, to date, have been locked out.

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

Minister, it is clear that there has been a lot of debate about this already, but I just want to seek some clarification of some numbers. How many companies currently are tendering for Commonwealth business and how many of those companies do you know are currently compliant with your new Building Code?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Thank you for the question, Senator Rice. I am advised that since the new code commenced on 2 December there have been 18 tenders.

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

That was not my question, Minister. I wanted to know how many companies are currently tendering for or working on Commonwealth building projects.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I have nothing to say.

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

That, I would have thought, was a pretty basic question of knowing the extent of the number of companies that are currently tendering for or currently working on government projects. How can you have any idea what the impact on the building industry is going to be if you cannot even supply us with that basic information?

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

Minister, Senator Cameron said that he has done some negotiations—so have I, industrially. In fact, I led the negotiation and the implementation of the first modern award in the coal industry in the 1990s, at a time of considerable turmoil. It was a radical change for those days. I have worked through years as a miner, as a member of the CFMEU, and I must say I am appalled that the CFMEU now gives money to GetUp! in close association with George Soros, who has done a lot of damage in many countries of the world. I understand that GetUp!'s foundation board of directors included someone by the name of Bill Shorten. It is ironic that the CFMEU's practices lead to increased funds for the CFMEU taken from the taxpayers and that those taxpayer funds are then redistributed to an organisation like GetUp!, which is going hell for leather to smash the Australian coal industry. So the CFMEU, which pretends to cover coalminers, is actually funding the organisation that is trying to destroy the coal industry. That just gives me a little bit of a background picture on the CFMEU as it is today.

In fact, in 1991 I had dealings with a man for whom I had some respect as a CFMEU vice president at the time, and he told me that the CFMEU was heading in the wrong direction because it was not serving its members. Now, we can see. The cartel behaviour has been raised—this was something also that either Senator Marshall or Senator Cameron raised earlier—to the public media and has been discussed extensively by journalists. And I have raised with you, Minister, that we need to look at narrowing the IR carve-out and look at getting the ACCC involved, and I have had discussions with the ACCC chair into narrowing the IR carve-out.

Would you like me to repeat that? Is it not true that I have requested that the ACCC chairman consider doing a review of narrowing the IR carve-out? Further, is it not true that I have spoken in this chamber on the need to send industrial relations back to the states so that we can restore competitive federalism in this country?