Monday, 18 April 2016
Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2], Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [No. 2]; Second Reading
Here we have a bill, the Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2], attempting to crack down on lawless and defiant actions by participants in the building and construction industry which, anecdotal evidence suggests, exist and are detrimentally affecting the productivity of the sector in Australia to some unknown extent. I am extremely disheartened by the government's inflexibility to support the critical and reasonable proposals by members of this chamber to balance their own legislation.
The circumstances around us being here today indicate to me that the government is banking on a 2 July election and has been for some time, which further adds to my disappointment, given that an early election will undoubtedly cut short the important work of the proper inquiry which was set up by Senator Madigan and me to review the need for a national integrity commission. However, those are the circumstances I find myself in. I am asked to support unbalanced legislation, and to agree to a process that quashes a critical inquiry that everyday Australians outside Capital Hill want answered.
Let me be clear: everyday Australians are not overly concerned about the ABCC legislation. Instead, they are greatly concerned about the need for a national anticorruption watchdog to cover politicians and political donations, the institutional behaviour of banks and financial institutions, the conduct of sporting organisations, and so on. Whether I am in this place or not, this is something that the next government of the day will have to take action on.
Back to the bill at hand: I refer to Machiavelli, who once said: 'It must be remembered that there is nothing more difficult to plan, more doubtful of success nor more dangerous to manage than a new system, for the initiator has the enmity of all who would profit by the preservation of the old institution and merely lukewarm defenders in those who gain by the new one.' The government's proposed new system, as contained in this bill before us, is unbalanced because of the government's inability to work towards the middle ground. The commission will surely face failure before success.
In case we do not get to the committee stage on this bill, I would like to put on the record the extent of my work to try and make this bill fairer, balanced, more reasonable and proportionate, to address the issue facing the building and construction industry, that I think addresses some of the oversights in the ABCC bill. I am seeking to repeal section 20(4) in chapter 2, part 2, dealing with the annual report to be tabled by the commissioner. In repealing this section, I am removing the ability of the minister to direct the commissioner to not cover health and safety matters that do not comply with the building code. Given a decline in workplace safety is levelled as one of the arguments against the commission's re-establishment, it is only fair that all health and safety non-compliance be comprehensively dealt with. This morning, I was informed by the minister's office that the government is prepared to accept this particular amendment. I thank the minister's office for their response.
Secondly, the Productivity Commission's report into workplace relations in 2015 found that sham contracting and wages exploitation, particularly of illegal workers, is prevalent in all sectors, including the construction industry. Both major parties appear to be planning to cover these areas as part of policies for their election campaigns, which I expect to be called in the very near future. While I acknowledge that the number and complexity of the PC's recommendations are likely to require some time to consider and address appropriately, my current amendments simply require the ABCC to report instances of suspected wage exploitation cases and sham contracting to the Fair Work Ombudsman for investigation, noting that the Fair Work Ombudsman is currently responsible for investigating and resolving these disputes across all sectors, and then include the details on all of the references in the commissioner's annual report. This is an interim measure. I call on the government of the day, whichever party that may be after the election, to put pen to paper and give effect to the PC's recommendations and also to provide the Fair Work Ombudsman with adequate resources to effectively police these areas of employee exploitation.
Thirdly, I commend my crossbench colleague Senator Muir for his amendment seeking to maintain the status quo in relation to the use of examination notices. Currently the director of Fair Work Building and Construction must apply to the president of the Administrative Appeals Tribunal before issuing an examination notice to a building industry participant. I believe in the importance of check-and-balance requirements, particularly where the commission's power to exercise its coercive powers is concerned. Needless to say, I will be supporting his amendment if we get to the committee stage. This is not a cumbersome requirement on the ABCC or the AAT, particularly if you consider that only 14 notices were issued in the previous year, according to the FWBC's annual report, which is up from a total of four in the year before that.
I would also like to pre-empt the government's argument against a check-and-balance process, given other Commonwealth agencies are not required to adhere to a check-and-balance process before exercising their powers. If the government is referring to agencies like Centrelink, Medicare, ASIC, ATO and the ACCC, I think it is fair to say that these particular agencies have access to a large amount of reliable data, which suggests that the agency is relying on appropriate information before using its unchecked coercive powers. In fact, as recently as last year, the ATO and the Department of Social Services began sharing information. Further to this amendment on examination notices, my amendment requires the Commonwealth Ombudsman, who has broad oversight over these powers under this chapter, to prepare a report to be tabled in parliament quarterly as opposed to annually. It is critically important that these powers are exercised in a transparent and accountable manner.
In relation to the variation or withdrawal of enforceable undertakings, which can be entered into between inspectors of the commission and building industry participants, I am seeking a minor amendment that simply requires the commissioner to not unreasonably refuse consent to vary or withdraw an undertaking.
My next amendment is to require the minister to issue a ministerial direction that establishes the factors that must be taken into account by a commissioner before they publish the names of individuals, companies or organisations for non-compliance with the Building Code. When the potential harm of public exposure puts at risk those whose conduct may not warrant such disclosure, a direction is not necessary. Conversely, when a building participant's non-compliance actions are so poor that the public ought to be aware of their conduct, the direction will be necessary. A direction should rightly take into account the gravity and significance of the non-compliance, the cost to the taxpayer and the potential harm of such publication.
Finally, I propose to add on the record that some clarity around what behaviour or conduct would meet the elusive standard of 'good faith' would be of assistance to those who allege damage or loss suffered as a consequence of the commissioner's conduct. To that end, the following should be indicative of what good faith requires in this context: honest conduct between the parties, evidenced by clear communication and full and frank disclosure, where the circumstances allow for it, and a reasonably observed lack of malicious or fraudulent intent in dealings; the provision of information that is not misleading or deceptive, including an obligation that the commissioner advise persons subject to examination notices that they are entitled to seek their own legal representation; initiating enquiries promptly and providing responses promptly; and giving due consideration to offers from each party to mitigate or remediate non-compliance, which is particularly relevant to enforceable undertakings. It is quite a shame that these amendments may not even be considered by the Senate today. Once again the crossbenchers have found themselves locked into an ideological battle between the Liberal Party and the Labor Party. Sometimes the crossbench gets the blame, one way or the other. That is the nature of being a crossbencher, even though everyone I know on the crossbench is trying to do their best job.