House debates

Wednesday, 29 March 2017

Private Members' Business

Motion for Disallowance

9:52 am

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

I move:

That sections 11(3)(a) and (c) of the Code for the Tendering and Performance of Building Work 2016, made under section 34 of the Building and Construction Industry (Improving Productivity) Act 2016 on 2 December 2016 and presented to the House on 7 February 2017, be disallowed.

After 20 minutes of us furiously agreeing to bring this matter on, the reason I tabled this motion in this place was to ensure that we can constrain some of the worst aspects of the building code that was supported by the government. It is clear that Labor did not support the bill that was enacted by the parliament and we did not support it for good reason. We had concerns about civil rights; we had concerns about safety issues; we did not agree with the proposition that productivity would improve—in fact, we think it will decline as a result of the reinstitution of the ABCC; and we had problems with the bill.

But this is not about the bill. Whether I like it or not, the fact is that the parliament enacted that bill and, whilst we stand by our position, this motion is about dealing with the code. The secondary arguments we made were just as important insofar as the effects of this code. The problem with this code is that it sets up a set of laws for employers and workers in the building industry that does not exist in any other industry. In fact, it goes broader than the building industry because the reach of the code and the reach of the bill have gone beyond the building industry itself. What that really means is that the code, as it stands, denies employers to put in agreements ratios of apprentices to workers. This is the only industry in which that is denied.

This code denies the right to limit or constrain in any way temporary work visas for work in workplaces in the building industry. It is the only industry that is not in a position to negotiate enterprise agreements with provisions that regulate the workplace in such a way as to, for example, limit the use of 457 visas or limit the use of holiday-maker visas and student visas—which are becoming increasingly prevalent in the building industry at the expense of unemployed tradespeople and labourers who live in this country and need work.

There are other concerns we have with the code, but we have chosen to focus on these two matters. We believe that two sections of the code which are particularly egregious because they undermine Australian apprenticeships and Australian jobs. They are sections 11(3)(a) and 11(3) (c), as I indicated. Section 11(3)(a) prohibits enterprise agreements from having clauses to prescribe the number of employees or subcontractors that may be employed or engaged on a particular site, in a particular work area or at a particular time. Section11(3)(c) precisely prohibits enterprise agreements from having clauses that require or result in discrimination between classes of employees because of the basis on which they are lawfully entitled to work in Australia.

Labor warned that passing the ABCC legislation and the code would prevent enterprise agreements from containing clauses which mandate a ratio of apprentices to tradespeople and which require consultation on the use of temporary overseas workers. If only members of parliament who like to talk big about protecting Australian jobs in their electorates voted to protect Australian jobs in the parliament. I call upon government members to consider this: the bill will not be changed, and that is a shame, but that is not what is before us. The code itself can be limited to ensure that employers, unions and workers are able to have provisions in place so that we put workers in this country first—we put Australian workers first. We have very high numbers of unemployed Australians in the building industry who cannot find consistent work or enough work and in some cases they cannot find any work.

Government members have an opportunity in supporting this motion for disallowance to limit the effects of the code so that, if an employer chooses to say that he wants to limit the use of 457 visas, he can do so by having an enterprise agreement approved by the Fair Work Commission. If unions on behalf of workers want to negotiate with employers to do just that, they can do so. It is quite extraordinary that the government has set up a code that does not allow for the ratio of apprentices to be set inside an enterprise agreement and yet in every other industry it can happen.

Labor's warnings have proven to be well founded. The ABCC has issued a list of clauses from enterprise agreements that have been submitted for assessment to the ABCC. An advice about whether the clauses meet the requirements of section 11 of the building code 2016 or whether they are non-compliant. The following clause in the existing agreement has been deemed by the ABCC to be non-compliant with section 11(3)(a). This is a provision that, up until the code took effect, was allowable at workplaces in the building industry across Australia, and it says:

Apprentices are the future of our industry, and the parties reaffirm our commitment to the training of apprentices. Further, they shall make every endeavour to make full-time apprenticeships available with the company. The employer will employ at least one apprentice for every eight tradespeople employed.

This was a provision of an existing agreement that was entered into in good faith between employers, their workers and the unions, and that will no longer be allowed as a result of this code. In fact, that is no longer allowed as a result of this code. But, if we support the motion before us, we can ensure that that type of revision, either in the existing or a future agreement, can be enforceable and can be agreed to by employers, workers and unions.

The following clause in an existing agreement has been deemed by the ABCC to be non-compliant with section 11(3)(c):

2.1 The Employer endorses the following principles:

2.2 Temporary foreign workers are intended to supplement the Australian workforce, and will only be recruited and employed where there are insufficient Australian workers available to do the work, including through training.

2.3 Workers who are Australian residents will have preference in … training opportunities relative to temporary foreign workers, to the maximum extent permitted by law.

2.4 While it may be agreed that recruitment of temporary foreign labour is necessary—

from time to time—

the intention is that reliance on temporary foreign labour will be reduced over time during the life of the Agreement.

That clause was allowable until this code took effect. The clause was regulating the workplace and really allowing the employer to say, 'We want to put Australian workers first in order to ensure that the growing number of unemployed building workers in this country get the first opportunity; we do not want a situation where the first port of call for an employer is to employ people on temporary work visas'—not only those on 457s where there is at least some limitation because of labour market testing, and I might add that that is a test that the now government and then opposition totally opposed, but also regulating what are at least 500,000 temporary work visas that are covered under two visa categories: the holiday-maker visa and the student visa. The 500,000 workers in this country on temporary work visas are here for legitimate purposes in many respects, but the idea that those visa holders will get opportunities before unemployed Australian workers is unfair. That is why the employers in this industry, as in other industries, have reached agreement with their workforce to say, 'We value your work, we are concerned about unemployed residents in this country and we're going to give you preference.' As a result of the code the preference is no longer happening, but if you support this motion that will allow employers to negotiate ratios of apprentices, like they do in every other industry, you will enable the regulation of the use of temporary workers to ensure that workplaces can look to local employment—look local first—before having to look overseas.

It is important to remember that all of those companies who negotiated with unions and their workforce in good faith and entered into legal enterprise agreements over the last three years acted prudently and reasonably. It would be wrong if companies who have enterprise agreements with clauses like the two the ABCC have ruled to be non-compliant—clauses which are about supporting Australian jobs—are banned from undertaking Commonwealth construction work.

The government has sought to say they have concerns about the use of temporary work visas in this country. In fact, during question time and on other occasions the minister now at the table, the Minister for Immigration and Border Protection, has said he has concerns. He can reflect the sincerity of those concerns by voting on this matter and supporting Labor. If he genuinely has concerns—indeed, if the government has genuine concerns—about the way in which we give preference to local workers before having to use overseas workers then he would support this proposition. In fact, to vote down this amendment to the code will mean that you do not support the right of not only unions and workers but also employers wanting to regulate their workplace to give preference to Australian workers. If you vote down this restriction on the code, it is signalling to not only the 750,000 unemployed Australians across all industries but also the 1.1 million underemployed Australians is that you are not concerned for them and you do not want employers in industries to be able to sit down with their workforce and restrict the use of temporary workers in this country by negotiation.

This is an untenable position. You cannot on one hand say that you have concern about the use of temporary workers in this country and yet vote against Labor's proposition today. You cannot argue you have concern for the lack of apprentices and the lack of opportunity for young people to get a trade in this country when we have seen a cut of 133,000 apprentices since this government was elected. You cannot say that you are concerned about the difficulties young people are having in acquiring the skills that they need in the fastest changing labour market in human history if you are not going to support the right of employers in this industry, or for that matter any industry, to sit down with their workforce and say: 'We're happy to give a ratio of apprentices to trades people. We want to do that.' It is not outlawing the ability just for unions to negotiate this—it is not even allowing employers to do it.

Say, for example, an employer chose to have an agreement without unions. That is not my preferred option, but an employer is not even allowed to enshrine their position in a registered instrument to say they want the number of apprentices to be set as a ratio to tradespeople. Clearly that is not acceptable—the government's absolute enmity towards unions has blinded their commonsense. In their attempt to destroy the capacity of unions to bargain they have thrown under the bus apprentices and permanent workers who deserve to get opportunities before temporary workers in this country. That is what has happened.

We are not trying to have a further debate or go back to a debate on the issues that go to the bill. Even though we have strong reservations about the bill, we have lost that battle, at least at this point, but we still hold the same position. What we have instead chosen to do today is, rather than have the whole debate about that matter, confine this debate to two issues: the opportunity for young people to get apprenticeships in the building industry and the need for there to be an opportunity for all workers in this country before temporary work visas are used and for employers in this industry to be allowed to regulate that.

I think that is reasonable. I find it very difficult to understand, given the rhetoric of the government—in particular, the Minister for Immigration and Border Protection—why the government cannot support this proposition. They like to talk about conspiracy theories to do with unions and the like—but, in the end, this comes down to whether you support apprentices and whether you support permanent workers in this country.

Photo of Rob MitchellRob Mitchell (McEwen, Australian Labor Party) Share this | | Hansard source

Is the motion for disallowance seconded?

10:07 am

Photo of Lisa ChestersLisa Chesters (Bendigo, Australian Labor Party) Share this | | Hansard source

I second the motion. This is a chance for the government to acknowledge they have made a mistake with the code. This disallowance motion will help the government live up to their rhetoric of supporting Australian jobs and supporting the growth of good, secure, well-paying jobs in this country.

Labor stood firmly against the Liberal government's anti-worker ABCC legislation and the accompanying Building Code. This particular focus of the government and these new rules that they have brought in—or old rules that they have brought back—are part of a draconian regime that says that any company that wishes to express interest in tendering for Commonwealth building work must comply with the Building Code. It should also be noted that this will apply in August, so we are talking a couple of months away.

Two sections of the code go after and attack Australian jobs. They undermine Australian apprentices; they undermine Australian jobs. These are sections 11(3)(a) and 11(3)(c). They are the two parts that we seek in this place to disallow today. Section 11(3)(a) prohibits enterprise agreements from having clauses which:

(a) prescribe the number of employees or subcontractors that may be employed or engaged on a particular site, in a particular work area, or at a particular time …

So this is what is happening right now. This is a clause under which employees and employers sit down and agree how many subcontractors may or may not work on a site. This government wants to stop that conversation from happening. It wants to stop that from being in an agreement.

Section 11(3)(c) prohibits an agreement having ratios or clauses around apprenticeships and clauses about employees based upon when they are lawfully entitled to work in Australia. So, where we have agreements that talk about apprenticeships, limiting the use of 457 visas or limiting the use of subcontractors and therefore prioritising local Australians being directly employed for these jobs, this government now says, 'If that is in an agreement, that company can now not tender for federal government work.'

This particular part of the code, like the whole code, must apply by August—meaning, as we have seen in media reports, about 3,000 agreements need to be renegotiated by August if those companies want to tender for Commonwealth work. There are not enough days left to be able to do that and for the Fair Work Commission to be able to consider them. Even if the employees and employers could reach an agreement, there are not enough days between now and August for the Fair Work Commission to consider all of those agreements—3,000 of them. So the government have brought forward this code knowing full well it is impractical and impossible for that to occur.

Let's just talk about why. Why is it that the government are so fixated on these particular parts of the code? Why will they not stand with Labor? As the previous member has said, they are blinded by their pure hatred of unions. In their pure hatred of unions, they will actually damage things and will slow things down. They will create chaos in the construction industry.

We heard during the suspension motion the Minister for Immigration and Border Protection say that there are currently dozens of union officials that are facing charges for criminal offences. That is wrong. In this country if you enter a workplace as a union official and you have not given notification it is not a criminal offence. If two union officials have a cup of tea, it is not a criminal offence. Equally, it is not a criminal offence if an employer knowingly breaches occupational health and safety and it leads to a death in a workplace. In this country, industrial manslaughter is not a criminal offence. If there are employers in this country who knowingly ignore health and safety laws and that leads to the death of a worker, that is not a criminal offence. So let's be very careful with the language that we use in this place.

It is not a criminal offence in this country for a union official to enter a workplace. If you want to talk about scare campaigns, the government like to pretend this. They beat up on the unions. They beat up on the workers in the construction industry. Now they are beating up on the employers in that industry who have sat down and bargained in good faith an agreement that talks about Australian jobs. You would think that the government would welcome this. We are trying to correct a mistake that they have made. If they wanted to be true to their rhetoric and to stand up for Australian jobs, they would support this disallowance motion.

We do have a problem with temporary work visas in the construction industry. We do have a problem with international students and backpackers working in the construction industry. There has been a misuse of 457 visas in the construction industry. This government's own report by the Fair Work Ombudsman has told us that and exposed that one in five people here working on a 457 visa have been found to be underpaid or not employed in the job they were engaged for in the first place. This was under this government's watch. You would think that they would join with Labor and disallow these things that are in the code that will make it harder for workers and employers to restrict the use of labour hire of temporary workers here in this country, including backpackers in the construction industry. When you talk to a labourer or a construction worker, they are baffled by how we let backpackers work in the construction industry. How can they have the skills and the Australian standards to work in the construction industry? We know the tragic consequences of it. In Perth last year, there was the tragic death of a woman who fell. She was here as a backpacker. She fell down a lift shaft and was killed. In the very same city, Perth, a year before we also lost two Irish backpackers. They were supposed to be on the trip of a lifetime in this country. They were working on a construction site and were killed. It is not fair that we allow them to work in these workplaces. That is why we have seen employers and employees sit down with the union and negotiate agreements to say, 'We take responsibility for who works in our workplaces. We will ensure that it is locals for local jobs first.'

Why would a government not want to support Australian kids getting apprenticeships? It is as simple as that. Why would a government disallow apprenticeship ratios in collective agreements for employers and employees that are saying, 'We take responsibility for the next generation of tradespeople and we will mandate ratios for how many young people we will have on a site'? They are employers that are saying, 'We acknowledge there is an extra cost to investing in the next generation, but we will do it.' They are companies that will stand with the CFMEU and the workers and say, 'Together, we will invest in the next generation.' Why would a government want to stop that? When we have a youth unemployment crisis in this country and a loss of apprentices because we are seeing a downturn in the manufacturing industry, why would a government not support Australian kids getting apprenticeships in our construction industry? This government is so out of touch with what is happening in Australian workplaces and the construction industry. It should support Labor's proposal to disallow these parts of the code so we can put Australian jobs and Australians first, and so we can put our young people first to make sure that they get apprenticeships so that they, too, can have careers in construction. We should put unemployed local tradespeople first so that they can get work, because we have a downturn in our economy.

We should encourage, support and champion businesses that sit down with unions and negotiate these kinds of clauses in their agreements. They are showing the leadership that this government is failing to show. Instead of championing that, this government says, 'We want to make it illegal for you to do that.' It is putting a handbrake on our ability to employ locals and our ability to train the next generation. This government needs to support this if it is genuine about construction jobs. It also needs to support this to save itself.

10:18 am

Photo of Andrew WallaceAndrew Wallace (Fisher, Liberal Party) Share this | | Hansard source

The member for Gorton has moved to disallow the Code for the Tendering and Performance of Building Work 2016. The member for Gorton's private member's business motion is yet another example of Labor's rank hypocrisy and its outright subservience to the CFMEU. It is absolutely undeniable that the Labor Party and, in fact, the Leader of the Opposition, are owned lock, stock and barrel by the CFMEU. My sources in the building and construction industry inform me that the CFMEU are white-hot angry with the opposition leader and the Labor Party for their failure to stop the reintroduction of the ABCC and the building code, because they know that the implementation of these measures has resulted in a severe disruption of their illegal and corrupt conduct.

I am one of the few people in this place who understands the building and construction industry. I have worked in the industry as a carpenter, a builder, a mediator, an adjudicator and a barrister in construction law. I have given 30 years of my working life to the industry. It has been good to me and my family, as it has been good to many families around this country. But I have seen firsthand the best and the worst that the industry can bring. I have personally been subjected to threats and intimidation by the loyal thugs of the then Builders Labourers Federation. The Builders Labourers Federation was the precursor to the CFMEU. That group of lawless individuals was so bad that Prime Minister Hawke deregistered it. The CFMEU entered into the equation, and they have not changed their tune—not one iota.

On the other side of the House, who has actually worked in the building industry? I do not mean working as a shop steward, union delegate or organiser. On the other side of the House, who has swung a hammer, dug trenches or built things in the building industry? I would suggest that not one person has worked on the tools. Those opposite do not care about the workers—the mums and dads—who struggle every day to make a living in the nation's third-largest employment sector. Those opposite are interested in trying to appease their union masters that have donated $10 million in recent years to the ALP election coffers.

To all the mums and dads out there working on every building site, I am talking to you right now. Believe it or not, there are mums and dads out there listening right now.

An honourable member: They are turning it off.

No, they are not turning it off; they are listening, and I am talking to them right now. I am suggesting to you that the CFMEU has no interest whatsoever in your welfare or your work conditions. All they want is your union membership. All they want is your money and the power that enables them to wield over their political arm, the Australian Labor Party.

The member for Calwell's private member's business motion, which seeks to disallow the building code, should be seen for what it is—a clumsy attempt made by both the Leader of the Opposition and the member for Gorton to try and re-enliven the protection racket that has been waged by the CFMEU, underwritten and supported by the Labor Party federally and throughout the country, particularly in my home state of Queensland. You see, the Labor Party have to be seen to be trying to prevent the reintroduction of the rule of law on Australian building sites, but we on this side of House will not stand for that. We will fight tooth and nail against any suggestion whatsoever to try and reintroduce the lawlessness that has sat in the industry since the ABCC was last abolished.

I want to take this opportunity to give the House a little bit of a history lesson here. The ABCC was established by Prime Minister Howard in 2005 but, unfortunately, it was abolished by the Leader of the Opposition in 2012 at the behest—no, at the demand—of the CFMEU. During the seven years in which the ABCC operated, productivity in the construction industry increased by 20 per cent. Since its abolition, it has flat lined. Since the ABCC was abolished, the rate of disputes in the sector increased by 43 per cent, even while in other industries the rate of industrial disputes declined by 32 per cent. Prior to the ABCC, industrial disputes in the construction industry were at five times the all-industry average, but the other side say: 'Nothing to see here. It has got nothing to do with the ABCC.' During the ABCC's operation, disputes fell to double the average. Since its abolition in 2012, disputes have again risen to around five times the average. The building code works in tandem with the restored ABCC to fix a major problem in our third-largest industry, the building industry.

The CFMEU is notorious for bullying, intimidation and lawlessness in the industry. What some people do not understand—clearly those opposite do not understand—is that the high rate of industrial disputation adds cost to the cost of public infrastructure and private infrastructure. The building of schools, bridges, roads, hospitals all significantly increased. There is some talk about these increases being 30 per cent, but I believe, and my own evidence has shown me, that that figure is a gross underestimate. My figures demonstrate that the cost of lawlessness in the building and construction industry adds costs somewhere between 60 per cent and 100 per cent, particularly of public infrastructure.

I can see some there shaking their heads on the other side. They do not want to believe it. Open your eyes, do some investigations yourselves and see what the CFMEU are doing to this country; they are destroying this country because the increased costs—

Photo of Tim HammondTim Hammond (Perth, Australian Labor Party) Share this | | Hansard source

We are not all Satan.

Photo of Andrew WallaceAndrew Wallace (Fisher, Liberal Party) Share this | | Hansard source

You are absolutely right; you are not, and that is a very good point. There are very good people in the union movement, and Australia needs a union movement. We on this side do not hate unions. What we hate is union thuggery and union lawlessness. That is what we hate and that is what we will stand up against. We on this side of the House recognise that unions play an important part in this country and we will stand up for them. But we cannot stand and we will not stand for union lawlessness.

Our building code means that if you want to tender for Commonwealth funded work, small businesses must now get a fair go. Those opposite talk about section 11A of the building code but those opposite clearly have not read the note that immediately precedes section 11A. For those interested, which should be the other side, section 11(3)(A) says:

Note: this does not prevent the inclusion of clauses in an enterprise agreement that encourage the employment of apprentices.

You left that off, didn't you? It is ridiculous. Section 457 visas— (Time expired)

10:28 am

Photo of Christopher PyneChristopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | | Hansard source

I move:

That the motion be put.

Question agreed to.

10:32 am

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The question is that the motion moved by the member for Gorton be agreed to.

The House divided. [10:32]

(The Speaker—Hon. Tony Smith)