House debates

Wednesday, 3 February 2016


Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2], Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [No. 2]; Second Reading

9:05 am

Photo of Brendan O'ConnorBrendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise once again to oppose the Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2]. I am adding to my first contribution on this bill in 2013. This bill was negatived in the Senate on 17 August last year, having first been introduced on 14 November 2013. Here we are again, revisiting a bill which, for more than two years, has not had the support of the parliament. As I said when I first stood at this dispatch box to respond to this bill at the beginning of this parliamentary term, Labor opposes this proposed legislation, which forces a return to the draconian Australian Building and Construction Commission. As I said:

The ABCC is based on flawed—and often ridiculed—modelling. Its proposed powers are extreme, unnecessary and undemocratic and they compromise civil liberties.

Labor opposed the introduction of the ABCC in 2005. It is in our platform. As I stand here today, our view has not changed. The foundation of the bill is rotten to the core. Nothing that this antiworker Liberal government or its $80 million political witch-hunt into the union movement has done has convinced us otherwise. Most certainly, the royal commission did discover some serious and unacceptable examples of corrupt behaviour, stealing from workers and obtaining unfair benefits. Labor have absolutely no tolerance for that conduct, as we have no tolerance for corporate corruption.

As Labor have always said, we will consider sensible reforms for unions and workers. We will consider, as we will consider later, sensible reforms for registered organisations. Indeed, in December we announced proposed reforms that we want the government to consider in that regard. But we will not support legislation that aims to destroy a strong representative of working Australians. It remains the case that we believe that whatever laws are introduced to deal with corruption must be universal. They should not unfairly target one set of workers. As a Labor government, we would never enact a set of laws to go after one set of employers. We would argue that is exactly what this government is doing with the return to the ABCC: unfairly targeting those workers in the building and construction sector. So we call it what it is: a determination to take Australia back to the ABCC, along with seeking to introduce a raft of other industrial relations changes since this bill was first introduced. We believe it shows an appetite to return to Work Choices, which, of course, is the real desire of this government.

As I stand here today, that could not be clearer. Here we are, participating in a Turnbull government accelerated debate. Yesterday, in defiance of the usual parliamentary conventions, a procedural motion was moved by the government to go after the union movement. The contrast between the two major parties is laid bare today. The Liberals have spent all of their energy playing politics with a taxpayer funded $80 million royal commission. They have done absolutely nothing about the numerous examples—the thousands and thousands of examples—of workers being blatantly exploited at work. This week, Labor announced that a Shorten Labor government would put in place a suite of reforms to protect rights at work by cracking down on unscrupulous employers who are willing to exploit workers. We will stand up for middle- and working-class families. Labor will put people first, strengthening and protecting people's rights at work by cracking down on underpayment of workers with significant and increased penalties and ramping up protections for workers from sham contracting by strengthening legal protections for workers' entitlements and increasing penalties, giving the Fair Work Ombudsman more power to pursue employers who liquidate their companies in order to avoid paying the money they owe workers—not just the money they owe workers but the money they owe creditors generally.

We want to introduce reforms to ensure that temporary overseas workers are not exploited and underpaid and to ensure that there is a level playing field for workers in this country. We have seen some extreme examples, not just with backyard operators but associated with household company names, of systemic underpayment and I would argue corruption; 7-Eleven, Pizza Hut, Myer and Steggles chicken are significant companies that of course provide a service to the community, but something has gone completely awry when you see hundreds if not thousands of workers underpaid, and there needs to be redress. Yet here we are debating legislation that will have precisely the opposite effect. If this bill is enacted it will attack the rights of working people. For example, Nicola McGarrity and Professor George Williams from the Faculty of Law at the University of New South Wales say:

… the ABC 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.

Some of the provisions of these bills are more akin to a police state. Undemocratic powers are hard enough to justify in a time of war, let alone dealing with civil laws in this country's workplaces. I think this is a point that has been missed by many.

This is a body that, if established, would govern the civil jurisdiction. And I say as a former national security minister—and indeed a minister who had the Australian Crime Commission report to me—that of course there are times in which this country needs to have laws in place to deal with the most serious challenges to society and the most serious threats to our citizens and our nation. And we do, and Labor stands with the government on those national security matters. As you know, Mr Speaker, we work very closely with the government on such significant matters, and we also accept that there are occasions on which you need to enact exceptional laws that potentially deprive people of their freedom, because the threat is so great. Those powers should be used in exceptional circumstances, in times of emergency, in dealing with serious and organised crime or in dealing with terrorist threats to this nation.

Yet this body, if established, would be presiding only over the civil jurisdiction of the construction industry and broader than that, of course, because it seeks to broaden its reach into the maritime area and the transport sector, where there is an association with construction. We would say to the parliament and to the people that this is a disproportionate response. I do not condone every act that occurs by a worker or union in the building and construction industry, but I ask: what is the justification for applying to workers laws that we would normally confine only to potential terrorists—to allow these laws to apply to workers, and not just union officials? I say to the parliament and I say to the people via this place that these are disproportionate and excessive.

There is a central tenet here: workers in the building and construction industry should be subject to the same laws that apply to other workers. This is consistent with the principle of equality of all persons before the law. So, I ask the question: why does the Prime Minister think there should be a different law for construction workers than for the director of the Victorian branch of the Liberal Party? It is absolutely misleading for the government to keep referring to alleged criminal conduct to justify this bill. Remember, the ABCC, as I have said, governs civil law—not criminal behaviour but civil behaviour. It does not matter how many times the government refers, in the same sentence, to criminal conduct and to the necessity to revive the construction watchdog; it does not change the fact it is a civil regulator.

The creation of the ABCC in 2005 was the first time in Australian history that an industrial-specific inspectorate had been legislated with such powers. It operated in a hostile, biased and coercive manner and did not pursue or investigate breaches such as underpayment of wages, phoenixing of companies and sham contracting arrangements or health and safety matters in an industry which can be very dangerous, where the number of fatalities is way too high, where the number of injuries is too high and where too many workers go to work and do not come home.

The genesis of the former Australian Building and Construction Commission arose, as we know, from recommendations of the Cole royal commission. I notice Mr Cole has forayed into the public debate only this week. That commission, established by the Howard Liberal government, said the construction industry was supposedly characterised by lawlessness. The then minister, in his second reading speech, said of the report:

It found consistent evidence that building sites and construction projects in Australia were hotbeds of intimidation, lawlessness, thuggery and violence.

That was what was said then. The minister was happy to repeat the royal commissioner's sweeping statements, but the minister failed to mention something in his contribution yesterday. The $60 million Cole royal commission, which consisted of 23 volumes, referred 31 individuals for prosecution. But it resulted in how many prosecutions and how many convictions? There was not one single criminal prosecution, let alone any finding of guilt.

More than $60 million of taxpayers' money was spent on the Cole royal commission. It had lots of colour and movement, there were many assertions by Liberal members of parliament and, indeed, a Liberal minister, and it was again relied upon this week by the government . But that royal commission, with all of that expense, with the use of state powers, with all of those findings, led to not one criminal conviction of a union official or a worker—not one. People's reputations were destroyed. People were smeared. There were attacks on people's reputations which were never addressed. Yet not one person was found guilty of a criminal offence in a court of law. Out of this lawlessness that was supposedly rife, there was not one single criminal prosecution. How is it that the commissioner and the government can rely on the assertion there was 'consistent evidence', yet that supposed evidence resulted in not one criminal prosecution against a union official or a worker based on that evidence? It would be laughable if it were not so serious. Royal commissions are not courtrooms. The same evidentiary standards do not apply. Hearsay evidence, which is not able to be cross-examined and should not be relied upon in the way in which I believe the commissioner relied upon it, has been stated as fact. Likewise, the most recent trade union royal commission has referred a number of matters for further examination by authorities—somewhere in the region of 93.

Let's also not forget the most recent royal commissioner, Mr Dyson Heydon, in the view of the opposition, clearly had an apparent conflict of interest. Mr Heydon accepted an invitation to a Liberal Party fundraiser while he was royal commissioner. He then sat in judgement of himself because, we would argue, the then Prime Minister chose not to act. That should not be forgotten when the substance of the report is being considered. Whether the commissioner had a conflict of interest or not, there was sufficient evidence to show he was willing to help raise money for the government by accepting an invitation to a fundraiser event while he was royal commissioner. On the face of that, there was an apparent conflict, particularly given his own words, when he was a High Court justice, that any departure from neutrality or an appearance of neutrality should be sufficient for a person to stand aside. He did not even heed his own words when making the decision to continue.

He may have cleared himself but I would say to you, Mr Speaker, and to this place that in the court of public opinion, the credibility of this commission was irreparably damaged. The government does not like reminding the public and the media of that, but we would argue that he made a mistake, a fundamental error, in not standing aside. Leaving aside, of course, that apparent conflict of interest, we have said that the terms of reference of the commission written by the government was always going to lead to a bias outcome. The terms of reference, regardless of the government's commitments on their announcement in relation to cutting both ways—


Martin Daniel
Posted on 8 Feb 2016 1:25 pm

Well said.