House debates

Tuesday, 18 October 2016


Building and Construction Industry (Improving Productivity) Bill 2013, Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013; Second Reading

5:02 pm

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

These bills, the Building and Construction Industry (Improving Productivity) Bill 2013 and cognate bill, were so important to the government that they have procedurally gagged members of this House—new members who wanted to participate in this debate. These bills were of course subject to a double dissolution election and yet the parliament is not in a position to have a full debate on one of two matters that were subject to the double dissolution election. Why would the government shut down debate, gag members of parliament and deprive new members to this place—there was more than one new member on the other side and, indeed, many new members on this side—who wanted to argue the case in relation to this matter? It really says everything about this government and it says something about these bills too, because not only are these bills fundamentally undemocratic and breach international labour conventions and other principles of democracy but, indeed, the fact that the government do not even want to debate the merits of these bills shows the disregard they have for democracy, for this parliament and for this place and their contempt for the Australian people.

The reality is: the more things change the more they stay the same with this government. The composition of this House may have changed since the last time I rose to speak on these bills, but the same tired policy of the Abbott-Turnbull government has not. You could forgive me for having a sense of deja vu in standing here and discussing the Building and Construction Industry (Improving Productivity) Bill 2013—the third time I have done so in the same number of years. Is there a glitch in the matrix? No. Malcolm Turnbull is no Neo. Despite the Prime Minister telling everyone he is the most innovative, agile, thought-provoking Prime Minister in a generation, we are here debating bills Tony Abbott promised back in 2013—bills that were defeated not once but twice in the last parliament. To be very clear, Labor opposes these bills because a return to the Australian Building and Construction Commission is based on flawed and often ridiculed modelling. Their proposed powers are extreme, unnecessary and undemocratic and they restrict the civil liberties of ordinary working people.

It is worth reminding ourselves of the history of these particular pieces of legislation for they have had a chequered past. The bills were introduced into the 44th Parliament on 14 November 2013. It was the former Minister for Employment, Senator Eric Abetz, who had carriage of the legislation. Unfortunately for Senator Abetz, the proposed legislation has outlasted its drafter and its drafter's boss, the member for Warringah. The bills sat idle again until 17 August 2015 when they were defeated in the Senate. Then in September last year, as we all recall, we had the prime ministerial coup, but no consequent change of direction by the government. The very same bills were then reintroduced in February 2016 before being defeated again in April this year, ultimately resulting in the bills being a double dissolution trigger. It is a matter so critical to the national interest, but guess how many times the Prime Minister mentioned it during the very long election campaign.

Ms Chesters interjecting

No, a few more than that. Four times in 55 days the Prime Minister mentioned this very important matter. To put it in context, the Prime Minister used the hollowed slogan 'jobs and growth' 37 times in his first press conference. So Australians went to a double dissolution election on a matter the Prime Minister barely referred to during the longest election campaign in many generations. The whole process since the birth of this legislation has been a shambolic disgrace. Today we find the government shutting down debate and depriving members of the opportunity to debate the dissolution bills. The member for Burt, a new member on our side of the chamber, who has put his name down to speak on this, is not in a position to contribute to this debate—a debate supposedly so important. If he is not in a position to do so, I would say that that is very, very shameful.

I turn to the substantive reasons why the bill should never become law. They are compelling reasons. The ABCC is unjustified. The government established a $60 million dollar political witch-hunt to justify the bill. The only glaring problem for the government is that the bill has not changed one bit since its introduction in 2013, despite the fact that we have had a royal commission since then and many recommendations by that commissioner. The trade union royal commission was established on 13 March 2014. The bill predates the commission. The government established a lengthy, expensive and highly partisan royal commission and yet has not sought to enact any of its recommendations.

Let us remember the manner in which this government uses royal commissions. They set up two royal commissions, called three Labor leaders and compelled them to those royal commissions. That is unprecedented in our history since federation, that the leaders of the political opponents of the government were subject to such conduct and scrutiny by the use of executive power. In the case of this particular commission, it treated Kathy Jackson with kid gloves, and the commissioner accepted an invitation to a Liberal Party fundraiser yet failed to disqualify himself once that was subsequently disclosed publicly. Given the fact that the recommendations do not find their way into this bill, what was the point of that royal commission? We know what the point was—to slur the political opponents of the government; to use taxpayers' money and the powers of the state to demean and traduce and defame opponents of the government.

This government is either incompetent or lazy, though it is becoming increasingly apparent that they are both. It must be mentioned too—though it might come as a shock to those trying to follow this issue—that there is already a building industry regulator in place today with coercive powers: Fair Work Building and Construction. So the parliament's choice today in debating this bill is not between the ABCC and no other regulator; it is between the ABCC and Fair Work Building and Construction, which already has coercive powers, albeit there is some oversight with respect to those powers. In its annual report of 2015-16 Fair Work Building and Construction noted that it commenced 130 investigations and used its coercive powers on 17 occasions, yet none of the investigations where coercive powers were used led to any prosecutions.

On the measure that the government seek so often to rely on—productivity—their argument does not stand up to scrutiny. We have heard the Prime Minister talk about the correlation between this bill and productivity. We have heard the Leader of the House talk about the correlation between this bill and productivity. Yet, according to the ABS, productivity in the construction industry increased more in the seven years before the introduction of the ABCC than it did in the seven years that the ABCC existed. The fact is that there was no correlation between improved productivity and the existence of that former body. Productivity has been higher ever since the abolition of the ABCC in 2012.

The Productivity Commission's public infrastructure report of 2014 says it all. That report states:

The evidence that the ABCC stimulated material improvements in aggregate productivity or achieved cost reductions is weak.

That is what the Productivity Commission said. This is the government's principal review and advisory body on economic policy and regulation, the body that has been advising governments for many a year—the productivity experts, if you like—yet they repudiate the arguments put forward by the Prime Minister, the Minister for Employment and other government members in relation to the correlation between the existence of the ABCC and improved productivity. It is the body the government commissioned to do the review of the workplace relations, and it is saying that there is hardly a skerrick of evidence of cost savings and productivity increases the last time the ABCC was in place. So there is little or no evidence that there will be any improvements to productivity as a result of this body being enacted. True to form, the government is prepared to accept the PC's advice when it is convenient for its political interest, but in this case wants to dismiss or ignore it because it does not support their agenda.

However, there is even more data which debunks the government's claims. Figures produced by Austrade for international investors establish that the Australian construction sector is '19 per cent more productive than global competitors and, measured against global competitors, is relatively more productive than other industry sectors including media, retail and banking.' But of course we are not looking at ways to make the banking sector more productive, are we?

The ABCC did not reduce industrial disputation last time either. Whilst there has been an argument that somehow there is lawlessness in the building sector, which we refute, the fact is that the existence of the ABCC did not reduce in any way industrial disputation last time. Apart from one aberrant quarter, the fact is that the total number of days lost each year is similar, on average, under Fair Work Building and Construction as under the ABCC. In fact, the differences are negligible—to again undermine the arguments put forward by the government that somehow there is a correlation between the introduction and implementation of a new body, the ABCC, and industrial disputation. The Productivity Commission's review into workplace relations says:

Industrial disputation, as measured by working days lost per 1000 employees, has declined markedly over the past three decades. The average number of days lost over the past five years was less than one tenth of the days lost on average from 1985 to 1990. Similarly, the total number of industrial disputes, the number of employees involved in industrial disputes, and the total number of working days lost to industrial action, have all declined substantially over this period, notwithstanding the substantial increase in employment over the ensuing decades.

In other words, the labour market has got larger; industrial disputation has got smaller. There are fewer days that involve industrial disputation, not only in the building and construction sector but in all other sectors of our economy—and the arguments put forward by the Prime Minister, by other ministers and, indeed, by members of this government are just patently wrong. Any claim that the ABCC reduced industrial disputation is completely debunked.

The PC noted further:

… these concerns—

that the Fair Work Act led to increased disputation when it was attacking the system—

may be based on quite selective comparisons drawn over a short timeframe, by comparing more recent 'spikes' in the rate of disputation around 2011 and 2012, with low levels observed in 2006 to 2008. In doing so, they overlook the similarly low rates of disputation that were subsequently observed in 2013 and 2014, and fail to acknowledge that the apparently high levels of disputation in 2011 and 2012 were roughly the same as the level in 2005 …

In other words, it is selective use of data that has allowed the government to erroneously conclude that there has been an increase in industrial disputation. But there is more to that. The government's own report says:

Rather than focusing on increasing restrictions on industrial action, the WR framework should seek to ensure that parties' incentives to engage in action are appropriately aligned.

There are no blowouts, we would argue, with labour costs, and schools, hospitals and other public infrastructure projects will not be cheaper, we would contend, under the ABCC. In fact, a BIS Shrapnel analysis recommends governments should fast-track infrastructure spending to take advantage of record low construction costs, which are delivering some projects at half the price they were before the global financial crisis. Let's reiterate: before the global financial crisis—when, indeed, the ABCC was in existence—costs were higher, according to BIS Shrapnel analysis where they say that record low construction costs are delivering some projects at half the price they were before the global financial crisis. Analysis by the Parliamentary Library shows that, when the ABCC was last in operation, between 2004 and 2012, the cost of non-residential building grew faster than the CPI. Let's just dwell on that for a moment: it cost more to build when the ABCC was around, not less.

Although the government's attacks on unions are about driving record low wages even lower, it would seem that the Prime Minister and the Treasurer cannot get their argument straight. We saw today this contradiction in action. The Prime Minister says the ABCC will stop excessive wages, whereas the Treasurer says it will support wages growth. They cannot both be right. If you had to guess—and we are talking about a Liberal minister—it is more likely that anything they do will lead to a reduction in wages. But here we have the Treasurer of the country wanting to argue that we will see an increase in wages if we introduce this bill, enact it and set up the ABCC, while at the same time the Prime Minister is saying, 'We can cut labour costs by attacking excessive wages.' The two most senior ministers in the government clearly are at odds when it comes to this issue, which really says everything about this matter. The government will do anything and will run any argument, even when they are clearly contradictory, to try and get this legislation through. The fact is that it seems this government will use whatever argument it thinks is most popular in order to desperately try to pass this bill.

After repudiating the alleged economic benefits, Labor opposes this bill because the ABCC restricts democratic rights. 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.

The Law Council says that the ABCC laws are 'contrary to the rule of law', an irony lost on the Prime Minister, who has been known to claim that the ABCC is required to 'return the rule of law to the construction industry'. So an independent body, replete with eminent experts in the area of civil rights, has claimed that the laws of the ABCC—that is, the manner in which we would be using laws in this civil jurisdiction in the building and construction sector—would be contrary to the rule of law as we know it in this country, while the Prime Minister argues the opposite. The ABCC breaches the principle of equality before the law. Workers in the building and construction industry should be subject to the same laws as apply to other workers. This legislation extends the reach of the ABCC into picketing, offshore construction and the transport and supply of goods to building sites. So not only will we see, if this were to pass, the reintroduction of an undemocratic body; it would also be broader in its reach, going well beyond workers in the construction sector.

The ABCC does not deal with criminal behaviour, but it effectively has criminal justice powers. We have debated this matter at length. The fact is that we are dealing in the civil jurisdiction. We are dealing with, in effect, industrial laws. If there is crime in the building industry—or if people are committing crime in any part of our society—we have crime-fighting agencies. If there is organised crime in banking or in the building industry, we have the Australian Crime Commission, the Australian Federal Police, AUSTRAC and other agencies and state agencies that can fight crime.

These matters are not to do with crime. The ABCC has no criminal coverage whatsoever. It does not deal with criminal matters. So every time a member of the government talks about criminal behaviour anywhere, they are talking about the wrong matter, because the ABCC, if introduced, would not be in a position to deal with such matters. That is why we established the Australian Crime Commission. The Australian Crime Commission emanated out of, in fact, a royal commission many, many years ago. Then the National Crime Authority was established by the Hawke government after the then Fraser government recommended that there be a body established, a standing commission, dealing with serious crime. And the Hawke government did so. We then, of course, changed its name to the Australian Crime Commission. Every government since has had that body at its disposal to fight crime. So if there is crime in the building industry or the banking industry, or anywhere for that matter, we have a standing commission with coercive powers that can fight crime. That has been the biggest furphy in this debate. None of the matters, none of the rhetoric about crime have anything to do with the regulation by a regulator in the building industry. Whether it is the Fair Work building commission or the ABCC, they have no powers.

If those opposite think we are going to fight crime by setting up this legislation, they have no idea what they are talking about. Those matters have to be dealt with by the Federal Police, state police, AUSTRAC, the Australian Crime Commission. They are the agencies. As the former minister they used to report to me. I know what they do. Unfortunately, the government does not seem to know what the ABCC will do if enacted. That is, again, something that really underlines the dishonesty in this debate in relation to this matter.

The ABCC, furthermore, has no protections from abuse of power by the regulator. That is really concerning, particularly when we are not talking about breaching criminal laws. The government's bill removes the current protection which requires the director of Fair Work Building and Construction to apply to the Administrative Appeals Tribunal to issue an examination notice before coercive powers are deployed. It is like the police being able to conduct a search without going to a judge to justify why they need a warrant. For many, many things, the police, in their work in the criminal jurisdiction, have to gain a warrant from a judge or from other bodies—third parties—who have the authority to grant such a warrant. In this case, we will be stripping away the only existing oversight that is with the current regulator and be allowing the regulator to deploy coercive powers—moreover, coercive powers in the civil jurisdiction—without any oversight whatsoever. This bill is offensive and, on any objective analysis, is a return to the dark days of the ABCC. It is completely unnecessary.

The most distressing effect of this proposal is the fact that, if the ABCC comes into force, it is very likely—more likely than not—that workplace deaths and injuries in the building and construction sector will increase.


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