Monday, 19 March 2012
Education, Employment and Workplace Relations References Committee; Reference
I rise to support the motion before the Senate that this matter be referred to the education, employment, workplace relations references committee for its examination and report back to the Senate.
The amendments and the guidelines maintain a ban on most unregistered written agreement for builders bidding for government funded construction projects. The difficulty is that there are then a number of unregistered written agreements, and it is those that ought be the subject of scrutiny by the relevant references committee. Perhaps it might not be as necessary and my colleagues and I might not be as concerned had we not had to deal in recent times with the quarter-to-midnight change and introduction of an amendment to the building construction regulation process after the Senate Education, Employment and Workplace Relations Legislation Committee had actually concluded its hearings into matters pertaining to regulation. There is firstly the question of the timing of an amendment in the House of Representatives, following the conclusion of the hearings of the Senate committee, which the government and Greens members of that committee must have known would be presented in the House of Representatives. The fact of that inordinate activity taking place is one thing. Even more serious, as we know, Madam Acting Deputy President Fisher, was the actual text and content of that 11th hour 59th minute amendment. The effect of the amendment, which has been discussed in this place, is to allow two parties—be they both guilty of activities that would otherwise cause the attention of the regulator or one party and a victim—to come to a side deal involving perhaps the payment of money or maybe just bullying on its own which would then preclude the regulator from investigating that particular anomaly. It is against that background and in the light and spirit of that perversion that I say that these particular amendments do need to be the subject of scrutiny by the references committee.
I go back to guidelines of July 2009 and refer to the tendering section 4.2.4 of those guidelines introducing new tenderer evaluation criteria. There are some familiar words to those we are seeing here this evening. I refer to: preference given to tenderers which demonstrate commitment to adding and retaining trainees and apprentices—something we would all applaud; increasing women's involvement in the industry—well and truly accepted as we heard from the comments of my colleague Senator Cash on International Women's Year; and promoting the engagement of Indigenous Australians in industry. But I come to these words in section 4.2.4 from the 2009 guidelines: 'However, value for money will still be the core principle underpinning decisions on government procurement.' I repeat: value for money will still be the core principle.
It is useful to reflect on the National Code of Practice for the Construction Industry which is a set of principles describing good practice in respect of workplace relations—something we would all applaud and work hard for—occupational health and safety, procurement and—these final words are relevant, given the time interval from when this document was written—security of payment in the construction industry. The code and guidelines cover the responsibility of Australian government agencies as clients, project managers, contractors, subcontractors, consultants, related entities, industrial associations and employers. It is in that context that I believe this matter needs to be referred to the references committee.
As usual and regrettably, as has been the track record of this government which we see in so many other areas, there has been a lack of consultation with affected stakeholders. For example, where has been the consultation with state governments, who will be so intimately involved and subject to these amendments? Where has been the consultation with employer groups? The previous speaker, in moving this motion, spoke of the references from the managing director of Grocon, an Australian owned and managed building construction company, expressing his concerns about elements such as these.
I come back to the unregistered written agreements or side agreements or, dare I say, sweetheart agreements out to the side, and I ask: what is the range that will encompass these particular sweetheart agreements? How wide is it? Who participates? What are the topics? Who has there been consultation with? Where are the possible loopholes? Have industrial lawyers from either side of the equation, employers or employees, had an opportunity to examine this and what is their advice? These are the very matters to which we could go in examining this, should it go to the references committee. They go to the very heart of what this Senate expects of its standing committees. I ask, and this question has certainly not been answered as yet: who oversights these unregistered written agreements? It is almost an oxymoron: unregistered written agreements.
The industry has a right to be concerned about the proposed amendments. As I said earlier, one need only look at the anomaly which occurred here in this place in the last two or three weeks when we saw the further emasculation of the would-be building industry regulator as a result of those amendments which will now allow illegal practices to take place under the umbrella of this legislation. We know how dangerous that precedent is. We know what the Law Council of Australia has said.
I go back to the national code of practice and the set of principles I read out, describing the last one, after 'procurement', as 'security of payment' in the construction industry. And I look at the instance they are facing now in New South Wales with Reed Constructions, a company in severe financial difficulty. I understand that company was allocated some $383 million under the $16.2 billion memorial halls, or Building the Education Revolution, scheme to deliver buildings to 411 schools in southern New South Wales. Where, I ask, has the code of practice been to the fore in a circumstance where it appears, contrary to the objectives of the code in which security of payment is a principle and a pillar, that not only will subcontractors in many instances not be paid but employees and workers will not be paid?
We have seen too many instances since Labor came into government of their inability to be able to subscribe to and hold to that National Code of Practice for the Construction Industry. One need only reflect back on the pink batts in which there was a total and utter failure to be able to adhere to the sets of principles associated with tendering for government contracts. I think of the Building the Education Revolution, or the memorial halls project itself, in which after the coalition pushed for some form of independent evaluation, which was subsequently undertaken by Mr Brad Orgill and his team. Even he concluded that several billion dollars had been wasted. One has no confidence in the capacity of this government to be able to oversee, to bring to account, to audit and to satisfy the taxpayers of Australia that the national codes of practice in fact have been adhered to. It was only by the grace of God that the 'cash for clunkers' never got underway after the 2010 election. We could of course talk about the Green Loans Scheme, about the funding of the car industry for the eco-cars—and I could go on.
I endorse the recommendation by the mover of this motion that this particular matter be referred to the Senate Education, Employment and Workplace Relations References Committee so that these matters can be fully examined and fully understood. I do not disagree with Senator Marshall in some of his comments about the history of the introduction of the original legislation and its guidelines. But there are many unanswered questions before this place at the moment and those are the questions that will only be resolved when we can actually take them to a references committee, have a series of public hearings, put out the terms of reference and allow the affected stakeholders of all persuasions—be they employers, the unions, the state and territory governments—that are going to be the subject of this legislation to examine them. Bearing in mind that under the terms of the amended guidelines federal government legislation will override that of state governments, I believe that it is only appropriate that we do refer this matter to the references committee for a full investigation and for a report back to the Senate.