Senate debates

Monday, 19 March 2012


Education, Employment and Workplace Relations References Committee; Reference

6:04 pm

Photo of Gavin MarshallGavin Marshall (Victoria, Australian Labor Party) Share this | | Hansard source

Well, what a rambling nonsensical contribution from Senator Fisher! The nightmare of the hokey-pokey continues with us. If Senator Fisher had danced out that contribution it would have made more sense—because it was just terrible. When Senator Fisher gets up and wants to defame and slander people across the board as 'the sometimes thuggish union officials', she ought to look to her own behaviour, because she is the last person in this chamber who should accuse anyone else of being 'sometimes thuggish'. I suppose that really highlights her contribution on this matter in its totality.

The government does not support this motion. It is simply another cynical attempt to try to delay the workings of this government. Senator Fisher rambled around the world, talking about bills, about agreements written in lemon juice, and about how people do not understand the building industry. If Senator Fisher actually ever went on a building construction site I would be very, very surprised. Maybe she should. It might actually be a good lesson for her.

Senator Fisher talked about how this government whacks out revised guidelines and then she compared the guidelines to the Bible. It was just a completely nonsensical contribution. I know people may have been completely lost listening to Senator Fisher, so let us be clear. Senator Fisher is asking the Senate to refer some administrative guidelines to a committee for inquiry. The guidelines have been changed many, many times and have never been referred to the committee. Is she really suggesting that every time the government changes something by regulation, by guidelines or by any other manner that is not legislation that it should be referred to a committee?

I think she would probably like that but if she is going to be consistent, why wasn't it done when the Howard government changed the guidelines? This is certainly not the first time the guidelines have changed. The original guidelines were issued in February 1998 and revised in December 2003. Who was in power in 2003? The Howard government. Do I recall—I was in the Senate at that time—Senator Fisher, who probably was not in the Senate, or any of her colleagues on the coalition saying, 'These guidelines have been revised. Let's refer them off to a Senate committee'? No, we did not because it is the normal process and procedure for these guidelines to be issued by the minister and then they come into effect.

The guidelines were further revised in 2005. I think from memory it was still the Howard government in power and, again, I was here. I did not hear anyone in the coalition suggesting that that revision of the guidelines ought to go to a Senate committee for inquiry. They have been adjusted a number of times since: in 2009 and now in 2012. When they were revised in 2009, again, I did not hear—this was under a Labor government—the coalition at the time calling for these matters to be referred to a Senate committee. The fact is: this is the normal process and one set up by the legislation.

Who initiated this legislation? It was the Howard government. What we are doing is using the Howard government's legislation to administer their act the same way they did, the same way we did and the same way we are doing now. It is a ridiculous proposition for Senator Fisher to suggest anything other than the normal processes that are in place in this place.

It was really about giving Senator Fisher a platform to try and talk about the building construction industry as if she knows anything about it. She, like Senator Abetz, sees a red under every bed, a trade union official lurking around every corner. They have no interest in fact, no interest in reality, and she dared us to accept that one of the new objectives of a fair, cooperative and productive workplace was a bad thing—that is what she is putting to this Senate. We do not think it is a bad thing; we think it is a great thing. That is what we want to see happen. We know when there are good relationships in workplaces they lead to good outcomes for employers, good outcomes for employees and good outcomes for the economy because productivity increases.

We completely reject this. The guidelines have simply been revised and simplified to reflect the obligations set out in the government's Fair Work Act. The guidelines:

… support the creation of quality jobs and the growth of the sector by ensuring Government procurement is consistent with these instruments and easier for business.

The Guidelines also clarify the responsibilities of employers in the sector, including in relation to sham contracting and the engagement of non citizens/non residents.

"Employers found to have engaged in the practice of sham contracting will be considered to have committed a fundamental breach of the guidelines. Furthermore, employers must ensure that those engaged in the performance of construction work are lawfully entitled to work under Australian law.

I do not know why Senator Fisher has a problem with any of those things. The guidelines are not a document that can be compared with the Bible—I am holding them up now; they are 18 pages long. Senator Fisher should have gone to the trouble of having read them instead of talking about the bill, talking about enterprise bargaining and anything but the concerns that we may have.

Let me just assure the Senate—and I will not keep the Senate any longer on this—this is normal procedure. It happened under the Howard government. It has happened previously under a Labor government. It will continue to happen. It happens under the legislation that was legislated by the Howard government. There is no conspiracy theory. There is not a red hiding under every bed. There is not a union official lurking around every corner. This is a natural development of bringing the guidelines in line with the obligations of the Fair Work Act, ensuring that the government procurement guidelines are incorporated into these guidelines and that we do all that we can to rid the industry of sham contracting. The government for very logical and practical reasons rejects the referral to the committee.

6:12 pm

Photo of Christopher BackChristopher Back (WA, Liberal Party) Share this | | Hansard source

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.

6:24 pm

Photo of Bridget McKenzieBridget McKenzie (Victoria, National Party) Share this | | Hansard source

I to rise to support the motion from Senator Fisher to refer the changes to the Australian government implementation guidelines for the National Code of Practice for the Construction Industry, May 2012, to the Senate Education, Employment and Workplace Relations References Committee. These guidelines have been changed in parallel almost with the bill passed through the Senate just recently, which go to permitting unregistered agreements. Previous speakers have outlined, obviously, many of the issues with the guidelines especially in the context of the legislation that went through the Senate recently.

My own state, the great state of Victoria, has expressed concern that the guidelines are being developed without consultation, particularly with regard to the guidelines being able to override the state's own guidelines around these issues in the context of jointly-funded projects. I refer to the finance minister, Robert Clark's comments made recently when Mr Shorten, 'snuck out the new Commonwealth guidelines which substantially weaken previous Common­wealth guidelines with minimal explanation'. Mr Clark went on to say that, however, on an initial reading, there was no reason why most, if not all of the Victorian guidelines, could not operate in conjunction with the Commonwealth's weakened guidelines—in other words, why tenderers could not comply with both Commonwealth and Victorian guidelines.

Why are we surprised by this government? Why are we at all surprised with this government wanting to ride roughshod over the states? I can only think of the legislation that we are debating currently in the Senate, the Minerals Resource Rent Tax, the classic example. Senator Marshall talks about the Labor Party only wanting good outcomes for employees and employers to increase productivity. Senator Marshall, it is not actually working and there are numerous issues around productivity in our nation currently and this probably will not actually assist it. I am buoyed by the fact that value for money is one of the criteria, a change from the lived experience of the budget currently under this government. We can look at the BER, the Green Loans Scheme, indeed, even water buybacks by the Murray-Darling Basin Authority, where this government spent millions buying water that did not really exist.

I have heard somewhere that the best disinfectant is sunlight. I cannot quite remember who said that but I am sure that it was someone close to us all. Why not have a look at it? Let us refer this legislation to the Senate committee for closer examination of its impact. What do we have to be concerned about? Let the senators who have a particular area of interest in this issue get to the bottom of the guidelines and have a good look at them. I seek leave to continue my remarks at a later date.

6:28 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

Can I indicate—in less than a minute or so—that I will be supporting this motion, for these reasons. I believe the amendments moved by the government in the other place were significant and that those amendments ought to be the subject of scrutiny by the committee. Not to do so would, I think, be abdicating due process in relation to this. I do not think we need a long inquiry, but I think it would be important to look at that to build on the work of the legislation committee and the thorough way that it examined this legislation. So in the circumstances I support the motion, but that does not mean that I support the coalition's position in relation to this bill. But I do sup­port appropriate processes being followed.

Photo of Mary FisherMary Fisher (SA, Liberal Party) Share this | | Hansard source

For clarification, given that Senator Xenophon rose after Senator McKenzie, I am advised that your contribution, Senator Xenophon, effectively negates Senator McKenzie's seeking leave to continue her remarks.

Photo of John HoggJohn Hogg (President) Share this | | Hansard source

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