Wednesday, 4 March 2015
Building and Construction Industry (Improving Productivity) Bill 2013, Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013; Second Reading
I rise in continuation of my speech on this bill. I was describing the concerns that both the Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights had in relation to the problems with this bill about trampling civil and political rights.
Personal rights and liberties will be trampled by clause 72, which provides for authorised officers to enter premises without a warrant. It is a cornerstone of justice and civil rights that a warrant issued by a court should be the basis on which authorities can enter premises. The fact that the explanatory materials accompanying the bills do not contain a compelling explanation for a departure from this principle demonstrates in the clearest terms that the government can find no justification for it. There is the question of whether the provision in clause 86, that the rules of evidence and procedures for civil matters applying in relation to the civil remedy provisions is consistent with rights associated with a fair trial, particularly when the penalties available under the bill are at the criminal penalty end of the scale. In relation to the main bill, the Parliamentary Joint Committee on Human Rights noted:
In relation to the main bill, the statement of compatibility does not include information and data which is necessary for an assessment of the human rights compatibility of the bill. On various occasions, the statement of compatibility and the explanatory memorandum make assertions or statements of fact which are not demonstrated by reference to supporting data
The use of assertion, anecdote and allegation, as the government has done, without evidence, does not satisfy the requirement that the curtailment of human rights in Australia must be in pursuit of a legitimate objective.
These bills largely mirror the 2005 legislation that established the former Australian Building and Construction Commission. The supervisory committees of the ILO, the tripartite Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations found that the 2005 legislation breached Australia's international obligations in respect of provisions that rendered some industrial action unlawful, the imposition of penalties and sanctions on workers and unions that engaged in industrial action, the unenforceability of project agreements, the National Code of Practice for the Construction Industry and associated guidelines, the investigative and enforcement powers of the ABCC, the absence of proportionality with respect to offences prescribed under the act, and the focus of the ABCC on investigating and prosecuting workers and trade union officials.
These bills repeat the breaches of Australia's international obligations that were found in the 2005 legislation. The opposition firmly believes that no legitimate objective exists that would warrant the interference with human rights and Australia's international obligations on the scale contemplated by these bills. The committee notes that any human rights engaged by legislation must be proportionate to the objective and 'limitations on rights must go only as far as necessary to achieve a legitimate aim.' The analysis provided by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights demonstrate the disproportionality of the limitations to be placed on human rights by these bills. They provide ample evidence that the bills should be opposed in their entirety.
The government claims that the ABCC's earlier incarnation in the building and construction industry caused productivity growth in the industry of unprecedented proportions. The claims of enhanced productivity caused by the ABCC are based on reports prepared and endlessly recycled by Econtech and Independent Economics. They are not supported by the evidence. They are made on the basis of deeply flawed analysis that has not withstood scrutiny by academic and business economists and, recently, appraisal by the Productivity Commission in its draft report on public infrastructure. When you lose the Productivity Commission on this agenda, you have really lost the argument. They have been produced for the sole purpose of propping up the original flawed findings of the Cole royal commission and the case for the existence of the ABCC and its coercive powers. They do not provide a credible economic case for the re-establishment of the ABCC. The Productivity Commission concluded about the latest Independent Economics report:
… as it stands [it] should be given little weight.
The Productivity Commission has said that the arguments put forward by the government on this issue should be given little weight. The Productivity Commission considers the assumptions and the conclusions reached by Independent Economics and makes the following observations:
First, no judgment can be made about the effects of the FWBC from the data currently available. There is only one year of data and the conclusion ignores the fact that, even during the ABCC period, relative costs sometimes rose.
Second, over a longer period, the link between the IR regimes and productivity is not robust.
Third, even if the IE numbers were robust, concluding that IR is the exclusive factor explaining the trend fails to consider a range of rival explanations and considerations.
The Productivity Commission concludes its analysis by stating that Independent Economics results are:
… 'neither reliable nor convincing indicators of the impact of the BIT/ABCC', and cites the views of major business consultants who have also expressed doubts about the findings …
You are going to have government senator after government senator quote these findings, the findings that have been destroyed by the Productivity Commission, the findings that have been destroyed by independent economists. I again quote the Productivity Commission:
Major business consulting firms have expressed doubts as well ... For example, Allen Consulting argued in a report to the Business Council of Australia:
It is not feasible to link the size of the productivity shock to definitive evidence of recent performance. Events that have given rise to concerns about industrial relations unrest are too recent to appear in economic statistics.
Proponents of the ABCC have been unable to answer the detailed criticism of the assumptions and methodology adopted by Econtech and Independent Economics. Despite this, supporters of the ABCC, including the Prime Minister, the Minister for Employment and employer organisations, continue to use the reports as their fallback in support of these draconian laws.
As if to compound its errors, the government cites the domestic cottage construction industry as a model for efficiency and industrial relations practice in the commercial construction sector. However, recent reports from the Fair Work Ombudsman's audit program show the terms and conditions of people working in the domestic building industry are routinely and comprehensively undermined by employers. These contraventions include noncompliance with hourly rates of pay, allowances, record keeping and pay-slip obligations. The figures were particularly damning for apprentices employed in the domestic building industry. As the Fair Work Ombudsman notes:
Apprentices are usually young workers, in their first job and may be unaware of their rights.
The audit of 164 employers in Victoria showed that only 6.1 per cent of employers were compliant with regard to the pay, terms and conditions of their apprentices. Figures from the Tasmanian domestic building industry audit show similar noncompliance across the sector, again in relation to the most vulnerable employees: apprentices. The audit showed that there is a culture of noncompliance in the domestic housing sector in relation to the proper payment of awards and conditions of apprentices. The Victorian figures are startling in that 93.9 per cent of employers are acting outside the law in the domestic building industry. I note that the Fair Work Ombudsman revealed at budget estimates that they will be conducting two significant national compliance audits this year.
The opposition will be looking very carefully at the outcome of those audits in the building industry, on which the future of the commercial building and construction sector, according to the coalition, should be modelled. Unlike the existing act, the bill does not require the ABC commissioner to apply to the Administrative Appeals Tribunal for an examination notice. However, the ABC commissioner must still provide a report, videorecording and transcript of the examination to the Commonwealth Ombudsman, who must then review the examination and provide annual reports to parliament. Effective oversight of the former ABCC and the FWBC and the proposed re-establishment of the building commission is essential.
The former ABCC was subject to no oversight. It had unprecedented coercive powers to conduct compulsory examinations and we found, only through budget estimates, that it botched every single compulsory examination notice under the stewardship of the then director, Mr Lloyd. Every one of the 203 compulsory examination notices issued by the ABCC under Mr Lloyd, from its establishment to November 2010, were invalid. There can be little confidence that without adequate oversight the ABCC's extraordinary powers will not be misapplied if not misused.
In his review of the former ABCC, former Federal Court judge Murray Wilcox strongly recommended oversight of the ABCC's coercive powers. Mr Wilcox recommended that the compulsory interrogation powers should be retained but with necessary safeguards. Those safeguards are in place now. The government wants to get rid of them. The bill's provisions are a significant watering down of the safeguards that currently exist. The proposition that the Ombudsman will provide adequate oversight will be largely ineffective.
In his submissions to the committee inquiries into the establishment of the ABCC, the Commonwealth Ombudsman made it clear that his ability to effectively oversee the use of the ABCC's coercive powers would be minimal. The ombudsman anticipates an increased workload if these bills are passed. He said in his submission to the Education and Employment Committee that this would not be an appropriate position, because the power to issue notice and conduct examinations is exercised properly. To ensure that we can— (Time expired)