Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I move:

That the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012, as passed by the House of Representatives on 16 February 2012, be referred to the Education, Employment and Workplace Relations Legislation Committee for inquiry and report by 8 May 2012.

It has been said:

Anybody who breaches the law should feel the full force of the law. Each and every breach of the law is wrong and each and every breach of the law should be acted upon.

So spoke the then Minister for Workplace Relations, Ms Gillard, in introducing legislation into this place to get rid of the Australian Building and Construction Commission.

As a result of this legislation being put forward, the Senate had an inquiry into the bill. After the Senate had finished its inquiry and was busily writing its report, the Labor government in the House of Representatives, at one minute to midnight, introduced a Greens-inspired amendment to absolutely gut that which would have remained of the Australian Building and Construction Commission. And the issue that needs to be reviewed by the Senate committee is not only a workplace relations issue. This goes to the very issue and fundamentals of the rule of law in our country. Indeed, that which Ms Gillard promised—like she promised with the carbon tax—has now been shown to be an empty promise. But this is even more serious than the carbon tax, because it undermines the very fundamentals of the rule of law. Allow me to explain. The amendment that the Greens inspired and the Labor Party passed in the other place means that a prosecuting authority can no longer pursue the prosecution if the parties have come to a settlement between themselves. Just imagine if the police were no longer allowed to charge somebody who drove through a red light, settled up with a person whose car they damaged—and paid them a bit of extra money—and as a result the police were denied prosecution of the case. Or imagine an arson case in which somebody does not want to go to jail, does not want to be prosecuted and goes to the person whose property he has burnt down and says, 'I'll pay for all the damages plus $100,000,' and the police are then denied prosecution of that person for arson.

That is what the Labor Party and the Greens want to introduce into the industrial law of this country. What it means is that big unions and big business—with big wallets—will be able to buy themselves out of prosecution but the individual worker will not be able to, because they will not have the money. The small subcontractor on our building sites will not have the money to do that. There will be institutionalised corruption and institutionalised pay-offs. What is more, this has been such a deceptive move. Indeed, when we as the coalition senators wanted the hearing to go on for a bit longer than we had been allowed we were told, 'All this has been canvassed for ages.' If it had been canvassed for so long—for ages—then why this last-minute amendment?

Let us be quite clear. The government must have known it was going to move this amendment but deliberately hid it from the Senate and the public to ensure that this amendment, which is just so fundamental in undermining the rule of law in our country, was hidden from the inquiry so it could no longer be investigated. Or it was a genuine last-minute amendment. And if it was a genuine last-minute amendment then, given that it is of such consequence that three state Attorneys-General have come out to condemn it as undermining the whole basis on which the rule of law runs in this country, this is worthy of further examination by the Senate.

The Australian Greens, I have no doubt, will be voting against this matter going to a Senate committee, as will the Labor Party. If they do so it will be proof positive that they knew about this beforehand and that it was deliberately denied to the Australian people. Either way, this matter should be going to a Senate committee for further consideration.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

The government does not support this motion. In fact, the opposition knows that the Senate does not support the motion. Regardless of that, here they come again, the old relics of the Work Choices era, all lined up trying to stop one of the last bastions of fear from their terrible era in government from being abolished. They are so desperate to cling to this relic of the past, so desperate that—although a report on this bill is due to be provided to the Senate next in the schedule—they seek to send it off again to the same committee and for the same purpose, no doubt wasting the time of the industry in again making submissions and again appearing before the committee.

The government's position on the ABCC has been clear for a long period of time. Unlike the coalition with Work Choices, which was thrust upon an unsuspecting electorate, the Labor Party made a commitment to the Australian people prior to both the 2007 and the 2010 election that we would replace the ABCC with a new body, that we would provide a balanced framework for cooperative and productive workplace relations in the building and construction industry, that we would provide a body that is part of our fair work system. There can be no doubt that the government has a mandate to abolish the ABCC. We won the 2007 election and, much to the chagrin of those opposite, were able to negotiate confidence and supply from some of the Independents in 2010 because those Independents decided that the Labor Party was the best party to govern this country and progress reform for the betterment of hardworking Australians.

You also know full well that we have consistently stated that anyone who breaks a law should feel the full force of the law. As a responsible government we will not tolerate an environment in which people choose which laws to obey and which ones to ignore. But we expect this to apply for all industrial participants, and we expect that an industrial regulator will use its resources fairly and not just single out workers and their democratically elected representatives. They waltz in here with their attempts to stifle the work of the Senate with procedural debates and with this motion, which is to come just before the release of the report by the Senate committee.

Those opposite cannot accept that they lost the argument in 2007. The people spoke. The people said they wanted a fair industrial relations system in this country. This bill, the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012, moves well in that direction. This bill strikes a balance of fairness. It is sad for this country that those opposite are so committed to obscuring fairness in the workplace for everyday Australians—those workers who are building Australia. The construction industry is a dangerous and arduous industry to work in. It is characterised by a system of subcontracting, many small employers, widespread use of a labour hire workforce and intense competitive pressures. They can contribute to compromises on safety issues, breakdowns in the chain of responsibility and difficulties in maintaining effective employee representation on safety issues from job to job. Injury and fatality rates remain unacceptably high.

But it is a fact that there is a positive link between trade union involvement at workplaces and improved OH&S outcomes. Workers are best placed to know what issues make their workplace unsafe and workers should have the right and the power to seek changes to bad practice before accidents occur. If workers feel intimidated about raising issues of safety concern, everyone working at a site is at a higher risk of an accident.

The ABCC has its origins in the recommendations of the Cole royal commission into the building and construction industry. This was set up by those opposite in a desperate attempt to attack unions in the lead-up to the 2001 federal election campaign. The royal commission was an intensely politicised process from the outset. The focus was almost exclusively on union conduct. No serious attempt was made to balance the inquiry with an examination of employer conduct. Interestingly, despite its enormous cost to the public, of the 392 instances of so-called unlawful conduct in the final report only one was ever pursued and it was ultimately dropped without being prosecuted to finality.

The government understands that the industry contains unique challenges for both employers and employees and as a result we have always supported a strong building industry regulator to ensure lawful conduct by all participants and a strong set of compliance arrangements for the building industry. This bill honours those commitments but, as the coalition fails to understand, it strives to strike a balance.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

As the deputy chairman of the committee that investigated this issue—the Education, Employment and Workplace Relations Legislation Committee—I wish to register in the strongest possible terms my absolute disgust at the attempt by the government and the Greens to try and pervert what I would call the course of justice in relation to this late amendment. It has been said that we wanted a range of people to appear before that committee and, of course, we were denied access to it. We went through this whole process in the best of good faith. To see now that this has appeared minutes before midnight and to see that it has been made public in a media release from a House of Representatives member, being a Greens member, is a travesty and something that this chamber should not accept.

It was then Minister Gillard, now the Prime Minister, who made these statements to the National Press Club:

Anybody who breaches the law should feel the full force of the law.

She went on to say, and what empty words they were, as we know now as a result of her performance with the carbon tax:

… there should be absolutely vigorous, hard-edged compliance and no tolerance at all for unlawfulness. … each and every breach of the law is wrong and each and every breach of the law should be acted upon.

What this amendment does is go right to the core of those comments that Ms Gillard made. It emphasises again her absolute emptiness when it comes to any attempt with regard to justice and honesty and fairness in this process.

Yesterday I asked the minister with responsibility, Senator Arbib, if he could respond and, of course, in his final days in this place he has lost interest so therefore he was not only not across the issue but was not able to answer my question. But he made one allegation to me, and that is that my interests are with workers and small businesses and contractors. If he wants to apply that to me, I will accept that with pride, because what this committee tried to do was to absolutely protect the interests of workers, small businesses and contractors—and this amendment goes completely to the heart of those three particular groups. All Senator Arbib could do was bleat about a tough cop on the beat. If indeed the government knew that this amendment was coming on why was it not presented for the committee to debate? I am bitterly disappointed that my Senate colleague and chairman of this committee did not see fit to come into this place and to actually defend it. Why? Because I believe he would be as embarrassed as I, as the deputy chairman, am angry to have been dealt with in such a tawdry fashion.

So what are we going to have now if this is not going to be the subject of a reference back to our committee? What we are clearly going to have is pay-off money. We are going to see pay-off money at every level and it may well apply on the union side and it may well apply on the employer side. It does not matter what side it applies on. The fact of the matter is that this amendment, if passed, will remove the right of the police and other law enforcement agents to actually prosecute the case. We could think of many instances—as Senator Abetz has said, in a road accident or in a drug related situation—in which somebody is apprehended, they go to the other side, they put pressure on them and they may or may not offer them money in return for the case being dropped. Well, isn't that wonderful, given the level to which we have descended in this country where you can have a bit of a backroom deal between two parties, whether it is fair or whether it is not fair, and this Senate of the Australian parliament is actually going to endorse this! The Senate is going to improve it! The Senate is going to deny the police and other parties the right to actually investigate aberrant and illegal behaviour be it of employers, unions, contractors or whomever. And who are the losers in this? The ones that I spoke to Senator Arbib about yesterday. It will be workers on sites, it will be employees, it will be small contractors. They are the ones who will be the losers and they will look to this chamber and say, 'A pox on you for your failure to protect us.' This must go back to a reference to the committee. (Time expired)

Matt Thistlethwaite (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I must say that I find the opposition's hysteria on this particular issue somewhat amusing indeed, because if we did accept this motion from Senate Abetz we would find ourselves having this matter referred to a Senate inquiry not for the first time, not for the second time, not for the third time and not for the fourth time but for the fifth time. It would be the fifth time that the Senate would have looked at this particular issue. It was first looked at in 2003, then in 2005, in 2008 and in 2009 and we have done an inquiry that has just been completed and is the subject of a report before the Senate—and now Senator Abetz is asking for another inquiry into these provisions. I am all for scrutiny in this place, but this is beyond the pale. This is gilding the lily. This is an unbelievable waste of the Senate's resources, particularly in the context where in 2007 the Australian public made it very clear indeed that they had had enough of the Howard government's regime of workplace relations. They thoroughly rejected the Work Choices regime, the forcing of people to bargain as individuals, which cut rates, cut penalty entitlements and cut other entitlements, particularly for younger workers. They had had enough of the coercive powers of the building and construction industry commissioner. They said quite clearly at that election that change was required, and of course in the wake of that election the government acted on the Forward with Fairness election policies that we had taken to the 2007 election. The suite of reforms that are finally being introduced through the legislation and through the subject of this report deliver on that commitment that we made to the Australian public.

But we have also ensured that a process was undertaken in the building and construction industry to ensure that there would not be unintended consequences of the reforms. In that respect, the Hon. Murray Wilcox, QC, a former Federal Court judge, was instructed to conduct an inquiry into the transition to Fair Work Australia for the building and construction industry. He made a number of recommendations which are enshrined in the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012, which will see established the Fair Work (Building Industry) Act. We have gone through the process three or four times. We have been through the arguments when it comes to reform in this area. We have been through the arguments in respect of the coercive powers and of differential penalties, and we have found, based on the recommendations, that we are implementing a fair and balanced system.

There is no greater example of that than in the recommendations that were made and the provisions that are being enacted with regard to coercive powers. This legislation will still include the capacity for the director of the building inspectorate to obtain an examination notice authorising the use of powers to compulsorily obtain information or documents from a person who the director believes is relevant to an investigation. However, there will be a strong set of safeguards which will enshrine the principles of fairness and natural justice, and those powers will not be able to be used unless a number of safeguards have been satisfied, including a presidential member of the AAT being satisfied that the case has been made for their fair use.

In respect of the points made by Senator Abetz, the amendment will ensure that the building industry participants are not subject to multiple proceedings, that matters that have been the subject of litigation and are settled will not be reinvestigated and will not be the subject of further litigation. That is in accordance with accepted civil law principles. (Time expired)

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

The government should cease and desist from trying to wave the spectre of Work Choices at the opposition because there has come a time when we will no longer be cowed by that. Senator Thistlethwaite and Senator Urquhart, you suggest that we are trying to go—

Matt Thistlethwaite (NSW, Australian Labor Party) Share this | Link to this | Hansard source

You're trying to go back to it!

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

Exactly! He just said it again: 'back to it'. Back to the past. This government with this amendment to the legislation is trying to take the entire country to a place that we have never been before. This government with this amendment, which was, as Senator Abetz said, snuck in—a dirty deal between the government and the Greens to buy the Greens' support for the bill in the Senate—five minutes before midnight, takes the entire country and the laws of this country to a place they have never been before, and it is a whole new low. As Senator Abetz said, this goes way beyond workplace relations. It even takes workplace relations itself to a whole new realm and of course, just as the CFMEU wants, it takes the building and construction industry to a whole new realm which did not even exist in the circumstances that led to the creation of the Cole royal commission into the building and construction industry. How so?

As to how this takes the country to a whole new place beyond workplace relations, the Australian Securities and Investments Commission retains discretion to prosecute, even in the event that the alleged victims of breach of the law might have reached agreement with the alleged perpetrator. ASIC still retains discretion to prosecute. No matter what the alleged offence, no matter what an alleged victim or an alleged offender might say about cease and desist or whatever else, the police properly retain a discretion to proceed. Nowhere in this country is there legislation that says that if there is some sort of settlement the authorities—be it ASIC, be it the police—are legislatively prevented from proceeding. But the government wants to have it in the building and construction industry.

What then of the victim of repeated domestic violence? Look only at the history of that terrible type of crime, where victims often say, 'No action, thank you.' Is the government saying that police should not have the discretion to prosecute nonetheless in that scenario? What about in workplace relations itself, where the Fair Work Ombudsman has the discretion to prosecute, for example, an employer who underpays workers? Is Senator Cameron really saying that if the employer underpays workers the Fair Work Ombudsman should be legislatively prevented from prosecuting the employer for breaching the law? I would like to hear him say so. Is the government really doing with this legislation what it tries to say it is doing in its attempt at justification for the bill?

The report says, 'The committee remains opposed to industry-specific legislation as a matter of broad principle. The goal should be coverage of all workers in the building and construction sector by the provisions of the Fair Work Act.' Are you going to make the provisions of the Fair Work Act in this respect apply to all workers? Do not be silly. No, no, no—the government is not only giving the CFMEU legislative encouragement to do dirty, dirty, dirty deals and legislative sanction to do dirty, dirty, dirty deals; it is encouraging it to do so in a way that was not even done before the commissioning of the Cole royal commission. This bill should be sent back to the Senate committee for inquiry. We are entitled to get the answers to questions like,'How does this keep Julia Gillard's promise about the industry?'She is disappointed that there are still pockets of the industry where people think they are above the law. Well, you are going to be legislating that the CFMEU can do a deal to take people out of the law. It allows sidestepping of the law. We are entitled to ask Mr Noonan if he thinks this is a good thing, because it would be a waste of taxpayers' money to prosecute when there is a deal. Does he say the same of an ASIC prosecution if there is a deal? Does he say the same of a police prosecution if the alleged victim and alleged perpetrator reach a deal? I hardly think so. (Time expired)

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

If any worker is listening in then they should understand why other workers are very, very afraid of the coalition ever having anything to do with workplace relations law in this country. I did not hear Senator Abetz's contribution , because I had constituents in my office, but I suppose Senator Abetz took his usual professional approach on this, which is very, very dangerous for workers. They should read between the lines of what Senator Abetz says every time he is on his feet, because Senator Abetz is one of the original work choice warriors.

I have to say that the contributions from Senator Back and Senator Fisher were absolutely over the top. That must be how the debate goes on in the coalition party room, with people being really strident to make sure that workers do not have any rights, to make sure that they can get back to Work Choices and to make sure that they can get the ABCC to act in a way that disadvantages workers from having a fair go in the building and construction industry.

I thought it was quite amazing that Senator Fisher said, 'There will come a time that we will not be cowed by it.' What she meant was that I was raising the spectre of Work Choices. You have got every reason to be cowed by Work Choices. You have got every reason to be cowed by that terrible legislation that was the ABCC. I have worked in the building and construction industry. I actually know the industry, and it is nothing like what you are saying and what is being promoted here. It is a tough industry. There are tough people in the industry amongst the workers, the unions and the employers.

I draw to your attention the number of judicial criticisms of the ABCC. The ABCC was headed up by a guy called John Lloyd. John Lloyd was a professional Tory, a professional union buster, a professional who was there to make sure—

Senator Fisher interjecting—

You have just heard how this craziness from the other side becomes actual fact for workers on the job. When you get highly respected judges like Justice Spender saying that the ABCC were not performing in an even-hand manner then you have got to ask the question. When Justice Spender was commenting on the Steven Lovewell and Bradley O'Carroll case, he said:

The case, as brought and as evidenced by the evidence yesterday, was misconceived, was completely without merit and should not have been brought. There is room for the view that if the commission—

that was the ABCC—

was even-handed in discharging its task of ensuring industrial harmony and lawfulness in the building or construction industry proceedings, not necessarily in this court and not necessarily confined to civil industrial law, should have been brought against a company, Underground, and its managing director and possibly another director.

I have not got the time to go into all the details but there is case after case after case where senior judges of this country say that the ABCC have acted in a biased manner against union officials and against workers—case after case. It is an absolute disgrace. It is an absolute tragedy for democracy and a fair go in this country. What will it mean for workers if Senator Abetz, the work choice warrior, Senator Back, who does the bidding of the Western Australian mining companies, and Senator Fisher, who has made her career off the back of trying to destroy workers' rights, were in charge of industrial relations in this country? It will mean that their penalty rates will go. Their rights will go. They will be subjected to some of the worst law that will be seen not only in this country but in any comparable country overseas. No modern country has legislation like theirs. It is Tory legislation. It is conservative legislation. It is bad legislation. And we will not have a bar of it. (Time expired)

John Hogg (President) Share this | Link to this | Hansard source

The question is that the motion moved by Senator Abetz be agreed to.