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

Labor opposes the Building and Construction Industry (Improving Productivity) Bill 2017. Legislation for the reintroduction of the Australian Building and Construction Commission passed the parliament in the final sitting week of last year, as you will remember, Mr Deputy Speaker. It passed after a protracted and bungled process which began all the way back on 14 December 2013. It passed in a late sitting in the last week of the year with the support of many on the crossbench, including Senators Hinch, Xenophon and Leyonhjelm and senators from Pauline Hanson's One Nation. In fact, the specific provision we will amend here today, if the government has its way, was proposed by Senator Hinch and supported not only by the crossbench but also by the government.

In our view, we have dealt with this matter, a matter that started, as I said, in December 2013 with the introduction of the ABCC bill into this place. Of course, that bill was rejected by the parliament at that time, and a compromise was reached and, indeed, supported by the senators I have just mentioned. So, having settled the law with respect to the building industry—according to the Prime Minister a vital economic reform—the government now wants to trash its own law.

Companies that have enterprise agreements which are legal but not code compliant are nonetheless able, until 29 November 2018, to submit expressions of interest and tenders and be awarded Commonwealth work. That is the law as it stands. The government is proposing to further amend the Building and Construction (Improving Productivity) Act 2016 less than three months after its passage to wind back the exemption period for non-code-compliant companies from two years to nine months, and limit the exemptions so that companies that are not code compliant may tender for but not be awarded any Commonwealth building work within the nine-month exemption period. The effect of this amendment on those companies that have signed agreements, approved by the Fair Work Commission pursuant to the Fair Work Act, which are legal but not code compliant is that they will have to make a commercial decision not to tender for Commonwealth building work or they will have to seek to renegotiate their agreements with parties to those agreements in a very limited time frame. According to news reports, it is estimated—and, indeed, it was confirmed in the very brief Senate inquiry yesterday—that there are over 3,000 enterprise agreements that were made pursuant to the act, which were made lawfully and in good faith by employers, their workforce and unions, and they will have to be renegotiated before August this year.

It is important to remember that all of those companies that negotiated with unions in good faith and entered into legal enterprise agreements over the last three years acted prudently and reasonably. What was not reasonable for them to have to do was to anticipate a law that may or may not be enacted by the parliament. In fact, on the basis of the rejection of the code throughout the course of the last parliamentary term, it was quite reasonable, and indeed entirely proper, for employers not to have regard to the code, which had no legal basis, no legal standing whatsoever, when they negotiated and settled those agreements. It is also important to remember that the code they are supposed to comply with not only was not law when those agreements were made, as I have just said, but had been rejected time and time again by the parliament.

While Labor does not support the existence and substance of the code, the only sensible thing for the government to do would be to exempt those companies from the operation of the code until their existing enterprise agreements nominally expired. In other words, if an employer under the law entered into an agreement with its workforce and relevant unions then it would be entirely unfair for them now to be punished for negotiating those agreements in that manner—yet that is exactly what the government seeks to do. It seeks to punish significant large, medium and small employers who entered into agreements before the bill was enacted last year. Of course, this legislation will further punish those companies and make it even more difficult for them.

The advice we gave the government at the time is that they should have waited for the nominal expiration date of those agreements, which would have been only fair. But, of course, common sense is rare in the Turnbull Liberal government. Instead, we have this rushed, ideological, damaging piece of legislation, which will throw the industry into chaos. How exactly the government believe that this will improve productivity is anyone's guess.

You might recall the Prime Minister claimed victory after the passage of the ABCC bill in December last year. He was ecstatic, in fact. He stood at the dispatch box—I was opposite—and he lauded the agreement and effectively said that this was the end of the matter. He went on to say that this bill was a vital economic reform. He was, if you like, crowing about his success. Whilst we did not agree then and do not agree now with the substance of the bill or the code, we believe it is quite improper now for the government to renege on that settlement.

However, Labor, the crossbench and, most importantly, the industry have every right to believe that the bill that passed last year would be the end of the matter, would be settled law. On the passing of the ABCC legislation last year, the Prime Minister confirmed in this place:

Up until 29 November 2018, it will allow building industry participants whose enterprise agreements are not Building Code compliant to tender for and be awarded Commonwealth-funded building contracts.

Unfortunately, what the Prime Minister said in December last year has proven to be a lie, has proven to be untrue, because, while he said one thing in December, this bill fundamentally contradicts that commitment. Less than three months later, the government is shifting the goalposts again. Let there be no mistake. If the bill passes, it will be a pyrrhic victory, as there will be chaos, uncertainty and potentially industrial conflict in the building and construction industry.

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