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

I move:

That the Code for the Tendering and Performance of Building Work 2016, made under the Building and Construction Industry (Improving Productivity) Act 2016, be disallowed.

This morning we heard Minister Cash, in one of her diatribes, say that workplaces should be cooperative, productive and fair. Let me tell you that the building and construction code does not lead to cooperative workplaces. It does not lead to productive workplaces and it does not lead to fair workplaces. I notice that the minister never mentioned having safe workplaces, but let me add that to the list that Minister Cash outlined. Let me indicate that the Australian Building and Construction Commission does nothing for safety in relation to building and construction workers in this country.

Minister Cash also said this morning that small and medium workplaces need to be able to compete. Really, that is code—not the Building Code—but it's a code for letting the cowboys loose in the building and construction industry. The cowboys are in there, with no concern for health and safety. And what we see is what happened to two young Irish backpackers in East Perth, who were employed by Jackson Construction. They were Gerry Bradley and Joe McDermott, young Irish construction workers killed on the job, even after the CFMEU had notified WorkSafe in Western Australia that there was a problem and after they had tried to enter the Jackson site to deal with health and safety issues. And what happened to them? They were obstructed by the ABCC. You let cowboy companies on the job, and what do you get? You get young workers killed. You get a 27-year-old German backpacker working 13 floors up, falling to her death. That's the type of situation you get when you have the ABCC and this Building Code in place.

We need to get back to a situation in the industry where the tripartite groups—the government, the building unions and the employers in the industry—can come together and sit down to discuss the issues that will improve productivity and that will improve health and safety on the site, not this ideological nonsense that Minister Cash proposes every time she's on her feet, which is about diminishing workers' rights in the building and construction industry and diminishing health and safety. It's an ideology which has no concern for proper training and skills in the industry, letting exploitation take its way in the industry—where the small businesses and big businesses can exploit workers without any fear of any government regulation or government legislation that will deal with it.

We see overseas labour flooding into these building and construction sites, many of them young backpackers with no experience in the industry, being killed and being maimed in the building and construction industry—a very dangerous industry. We see apprentices being exploited in the industry. Does the Building Code fix that? No, it doesn't. Does the ABCC deal with that? No, they don't. This is just an ideological group set up by this government to diminish workers' rights and access to the unions in the industry. It's about allowing a dog-eat-dog undercutting of the rates of pay properly negotiated by the unions and the building industry by providing protections for these fly-by-nighters, the cowboys in the industry, coming in to undercut decent wages in the industry. It's one of the reasons we have wage stagnation in this country. It's one of the reasons the Reserve Bank Governor has come out and said, 'Make more demands for wages,' because wages under this minister are stagnating. Profitability is going up and wages are going down, and that's because of these ideologically driven pieces of legislation that provide for the ABCC and the Building Code.

I have to say to you—and I've said this on many occasions—I have never seen a more incompetent servant of the Australian public than Nigel Hadgkiss, the building commissioner, who established their approach under the direction of the former minister, Senator Eric Abetz, and continued on with the ideology that drives Senator Cash to attack working people and their unions, to determine that the core business of the ABCC will not allow them to deal with workers' exploitation. They won't deal with phoenixing and sham contracting. They won't deal with health and safety. And it was only after legislation to re-establish the ABCC came to this Senate—last year, I think, now—that we actually got changes to the legislation to try to widen the issues that the ABCC dealt with. I know Senator Xenophon made comments about the conduct of Mr Nigel Hadgkiss, the commissioner for the ABCC, who has responsibility to oversight this code—a code that is simply about diminishing workers' rights in the building and construction industry. And Senator Xenophon agreed with me that there were significant problems with the operation of the ABCC. How such an incompetent, ideologically driven public servant could ever be given the responsibility to implement legislation in the building and construction industry beggars belief. I just don't understand it. He is absolutely incompetent and absolutely ideologically driven.

Let's look at what this minister has delivered with this code. This is a code that is supposedly improving productivity but, when you look at it, it's only about driving down wages and conditions and trying to ensure that the building and construction unions have little opportunity to increase rights in the building industry.

One of the clauses in that building code stops unions negotiating with companies to increase the opportunities for young Australians getting apprenticeships in the industry. I was a union official for 27 years, and one of my jobs whenever I was bargaining was to get young kids a job—give young kids an opportunity to get an apprenticeship. But that is directly illegal under this building code. That's despite the ABS estimating that, in 2015, approximately 27,400 young people applied for apprenticeships in the industry, but were unsuccessful in obtaining one. This is something that has been allowed for decades in this country, because this government determines that you are not going to be allowed to bargain with your employer to increase apprenticeships. What a nonsense!

The other aspect of this building code is about increasing casualisation. That's what it's about. It's about stopping workers getting permanent jobs in the industry. Clauses requiring casual conversion to permanent work after six weeks is not code compliant. I don't know anywhere in this country, never mind overseas, where you can't bargain for those issues. I don't know anywhere else in the world, in advanced economies, where unions can't bargain on behalf of the workers to get a conversion to permanent work after six weeks. This government—the ideologues and rabble of a government that they are—and this minister have determined that this doesn't fit with their view of the world and it doesn't fit with the employers who pour money into their election campaigns every year. That's despite that one in four workers in the industry are casual—23.9 per cent casual. That is significantly higher than the national average across all industries.

This code makes vulnerable temporary overseas workers even more vulnerable. Clauses and agreements which require the parties to confer to ensure that all parties are satisfied—that all laws in relation to sponsorship, engagement and employment of a person who is not an Australian citizen are complied with—are banned by the code. The unions—the workers on the job—cannot get a clause in an agreement that says, 'Migrant workers or workers who are coming here on a temporary basis are employed under Australian law.' This is despite the fact that, while there are approximately two million temporary workers in Australia—including over 1.4 million with work rights—the overseas workers team at the Fair Work Ombudsman consists of 17 full-time inspectors to investigate cases of exploitation. That's 80,000 visa holders per inspector. But does this code contemplate any of those issues? Does this code assist working people and ensure that foreign workers are coming in on the correct basis? It doesn't.

The code also bans clauses in enterprise agreements which ensure Australian residents will have preference in recruitment, employment and training opportunities relative to temporary foreign workers. What could be more crazy than that? This is a government who wants to reduce wages and conditions in the building and construction industry through this code and make it easy for companies to bring in temporary foreign workers at the expense of jobs for Australian workers. It makes it illegal to consult with the workers' union prior to the initial mobilisation of foreign labour. It makes it illegal for a union and workers on the job to ensure that, in the event of redundancies, temporary foreign workers will be made redundant first, given that temporary foreign workers are intended to supplement the Australian workforce. So this is what is in this code. It's not about productivity. It's not about ensuring that workers get rights. We so often hear from Senator Cash that the coalition are somehow standing up for workers' rights. I just can't stop laughing when I hear that from this rabble of a disjointed, divided government in here. They almost sound like Senator Roberts—completely out of touch with reality.

The last point: although confirmed as non-compliant with the ABCC guidance note, it is in direct contradiction to the promise that the minister made in the debate on the building and construction amendment bill on 14 February. So this is a minister that can't even keep her word. Her ideology just dominates her capacity to keep her word. And they have even banned a union flying charity flags from cranes. The code doesn't allow the flying of union flags or the Good Friday Appeal flag. The Turnbull government's building code has been used on Victoria's sky rail and Tullamarine upgrade to block efforts by the CFMEU to raise money for the Royal Children's Hospital Good Friday Appeal. We hear so much from this minister, this ideologue across the chamber, coming after unions for stopping the job at a children's hospital because workers were dying on the job. But when workers were raising $800,000 last year for charity, this code stopped them raising that money. It's just crazy!

They even got to the stage where they cancelled Christmas in the building and construction industry. Clauses which provide that in the construction sector Christmas shutdowns shall be observed as per the industry calendar are non-compliant. It is something that's happened in the building and construction industry for decades. But it doesn't fit with the ideology or the cost cutting that business want in that industry. There's no say for unions in fatigue management. Clauses in enterprise agreements that require union consultation for overtime in excess of 58 hours a week to be worked are banned. No wonder workers are getting killed in the building and construction industry directly because of this code. There is more fatigue and more pushing for long hours in a very dangerous industry. You can't deal with it in your agreement between you and the employer.

The code says that any disputed or delayed payment has to be reported to the ABC commissioner and the relevant funding entity. The ABCC has defined a payment has 'disputed' when it's referred to adjudication, and it's delayed when the amount payable is in accordance with a determination of an adjudicator. This doesn't help contractors and their reluctance to report that they're not being paid in the first place. This is an abomination of a code. It inhibits union officials' access to their workplace. The bulk of the disputes in the building and construction industry are when union officials are trying to get onto the site to protect their members' wages and conditions, protect their health and safety, and deal with workers who are being maimed and killed in the building and construction industry. Twenty five have been killed in recent times. It's absolutely unacceptable. This Senate should not allow this code to continue.

Senator Xenophon needs to address these issues and why workers in this country are being denied the rights that are allowed in every other advanced country in the world. It provides a fig leaf to legitimate problems in the industry by paying lip-service to being concerned about health and safety, wage theft, worker exploitation, contractor underpayments, the exploitation of foreign labour and non-conforming building products that are killing people all over the world.

John Holland have seven convictions for serious breaches of the Commonwealth Occupational Health and Safety Act—four of those involving fatalities—but they haven't been banned from construction building work. So you can kill workers on a building site but you can't fly a union flag. How ridiculous is that? How much more does this mob need to do to demonstrate how stupid they are in relation to this building code? Only two companies have lost accreditation for work on Commonwealth safety provided by the Federal Safety Commission in the 12 years that this has been established. But there has been fatality after fatality. There have been 424 fatalities in the construction industry in the last 12 years, as of 2 August. But do you hear any concerns about that from this rabble of a government? No; it's about stopping workers accessing a decent union and stopping them accessing decent rights. (Time expired)

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

Bullying, thuggery, intimidation, standover tactics, vile threats, refusing to obey the law, fines now totalling in excess of $10 million, cartel-like behaviour between some head contractors and the CFMEU, actively and proudly locking out of the building and construction industry mum and dad hardworking sub-contractors, taxpayers paying up to 30 per cent more for public infrastructure, fewer schools, fewer roads, fewer hospitals and industrial action proudly taken to ensure delays in the building of children's hospitals. Unfortunately, for too many years now, the building and construction industry has proven to all Australians the worst examples of illegal industrial behaviour, unnecessary disruption and unrest.

The sheer weight of evidence regarding this unlawful conduct is staggering. To quote recent Federal Court judges in relation to the CFMEU:

No penalties that have been imposed in the past have appeared to reduce its willingness to breach the law.

As for the position of the CFMEU itself, the commissioner tendered schedules of prior cases involving the CFMEU that on any view reveal a lamentable, if not disgraceful, record of deliberately flouting industrial laws.

It has also been stated that the 'normalisation of contraventions' by the CFMEU:

… has been the subject of comment by judges on so many previous occasions that any further observation on my part here would amount to little more than stating the obvious.

… if there is any union in the industrial universe which should be acutely aware of the importance of understanding the boundaries of lawful conduct in the prosecution of disputes, it is this one. Self-evidently, it does not care to do so.

It was also stated that the CFMEU:

… is an organisation with a long and sorry history of industrial disputation in which its willingness to disregard the industrial laws of this country seem to know no bounds. The CFMEU has an egregious record of repeated and wilful contraventions of all manner of industrial laws.

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

Blah, blah, blah!

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

Senator Cameron, I do not often take your interjections, but, just to repeat for the Hansard record, they are not my words; they are the findings of Federal Court judges—respected men and women in this country who are there to ensure the laws are upheld and, in the end, they are not to apply the appropriate penalties.

Senator Cameron interjecting—

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Order on my left!

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

I'm going to address one claim that is made in relation to the building code. I am not going to address others, because I'm not allowed to call anyone in this place a liar, so all I will say is that what have been on display tonight are nothing more and nothing less than falsities in relation to the claims of safety. It is an utterly false claim that the building code reduces workers' safety provisions on building sites. It grossly misrepresents the building code and all of the government's agenda—

Senator Cameron interjecting—

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Minister, resume your seat. Senator Cameron, order! Order on my left! Senator Cameron, you were heard in total silence. I ask you to show the same respect for other speakers in this chamber. Is that clear? Continue, Minister.

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

It grossly misrepresents the building code and, I would hope, every single person's agenda in this place for a safer and more productive building industry. The code requires employers to strictly comply with all applicable work health and safety laws. In the event that they don't, they will face consequences, including being banned from tendering for Commonwealth government work.

Again, I say this: this government is committed to doing all that is necessary to reform the building and construction industry to ensure that the rule of law prevails in this sector. Taxpayers, consumers, mum-and-dad small businesses and workers are all benefitting from the re-establishment of the ABCC. There have been bullying, thuggery, intimidation, standover tactics, threats, refusal to obey the law, fines now totalling in excess of $10 million, cartel-like behaviour between some head contractors and the CFMEU, proudly and actively locking out mum-and-dad subcontractors from the building and construction industry, taxpayers paying up to 30 per cent more for public infrastructure, fewer schools, less work, fewer hospitals. No person in Australia—woman or man—should have to work in an industry where these conditions prevail. We will do everything we can to ensure that the rule of law is upheld in the building and construction industry and to wipe out once and for all the bullying, thuggery and intimidation.

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

On behalf of my colleagues, we cannot support this disallowance motion. There has been no shortage of debate on the ABCC legislation and the building code that goes with it. Last November, I moved a series of amendments to that legislation, which were about making the bill fairer, making it more effective in terms of job creation and improving productivity in this country. The amendments included an important right to judicial review of decisions made by the ABCC, which had never existed before.

As a general principle, I understand fully the argument that one industry should not be singled out for different treatment, but the industrial relations framework in the building and construction industry has a long, complex and 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. Justice Wilcox found that there was still a significant level of industrial unlawfulness in the building and construction industry. He was critical not just of unions but also of employers.

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 in December 2015 the royal commissioner confirmed his findings 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, the national secretary of the CFMEU, and Dave Noonan, another very senior officer, have not been tainted by any of these allegations in the royal commission. Despite the fundamental differences that I have with Michael O'Connor over the building code, it was grossly unfair that he was wrongly reported for breaches of the act—that is, that he was named for allegedly being at an unlawful picket when he was in fact in another state. The leaking of that information, dragging his name into the parliament, was wrong. It was a disgrace.

The issue before us is whether the building code should be disallowed and in particular section 11 of the code. 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. 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, notes that there is an issue with the culture in the building and construction industry. It is a difficult issue because the argument of those opposed to the building code is that it ought to be within the framework of the Fair Work Act and not derogate from that framework.

That to me seems to be the key debate and the key ideological debate in respect of this. Those in favour of it say that if cultural change is needed then the building code will be the most effective tool, and it is needed because the courts have said this about the conduct on building sites. Justice White said in April last year in a case involving the CFMEU:

On any reasonable measure, that is an appalling record. It bespeaks an attitude by the CFMEU of ignoring, if not defying, the law and a willingness to contravene it as and when it chooses.

Last year as well Justice Jessup said:

The CFMEU's record of non-compliance with legislation of this kind has now become notorious. That record ought to be an embarrassment to the trade union movement.

Justice Mortimer in a 2016 case said:

The conduct has in common features of abuse of industrial power and the use of whatever means the individuals involved considered likely to achieve outcomes to the interests of the CFMEU.

The conduct occurs so regularly, in situations with the same kinds of features, that the only available inference is that there is a conscious and deliberate strategy employed by the CFMEU and its officers to engage in disruptive threatening and abusive behaviour towards employers without regard to the lawfulness of that action, and impervious to the prospect of prosecution and penalties.

It is for this reason, because of these exceptional circumstances, that the provisions of the building code are necessary at this time. If the behaviour changes, I would support the code changing.

Unlike some of my crossbench colleagues, I have continued to engage with the CFMEU in recent weeks. I did so in good faith. I spent a lot of time with them. Even though the CFMEU has previously unleashed a massive advertising campaign against me, featuring gross misrepresentations, outright lies and a post-truth campaign par excellence—the billboards and the full-page ads said that I didn't care about safety or about jobs—I have continued to talk to them. I've been told that after today in effect Armageddon will be unleashed against me and that there will be a massive campaign, the likes of which I have never seen. This fear-and-smear campaign on anything other than the code, as I understand it, is designed to damage and destroy, based on lies, distortions and misrepresentations, but I suggest it is counterproductive.

I want the best outcome for Australian workers on building sites. If Commonwealth money is involved on these sites, then it is reasonable to expect a reasonable standard of behaviour. I say to Senator Cameron, who I respect and admire for his passion on this and many other issues: the Senate estimates process is one of many processes to examine the conduct of the ABCC. If Senator Cameron has further evidence of what he considers to be unfair conduct and that requires a separate parliamentary inquiry, then the general principle is I will support that. But right now we have a situation as to whether the code should stand. The conduct and the behaviour has not changed; therefore, the building code should not change. I do not support this disallowance motion.

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

The question is that the motion moved by Senator Cameron be agreed to.