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

Thuggery, lawlessness and illegal behaviour are all being legislatively embraced in this Greens-ALP alliance bill euphemistically called the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012. The spin machine of the Greens-ALP alliance call this bill 'an improvement'. For whom is it an improvement? It is only an improvement for those who want to engage in lawlessness, thuggery and illegalities. It is a sorry state of affairs, but regrettably typical of this Greens-ALP alliance, when government succumbs to promoting legislation which encourages lawlessness and allows and indeed actively promotes and encourages pay-offs and dirty deals for people to avoid prosecution.

In the past we have had royal commissions into people buying their way out of prosecutions—in fact called 'corruption'. This legislation, championed as it is by the Greens-ALP alliance, will actually make legal that which we in our society once labelled 'corruption'. That is why the coalition opposes the bill, but let us recount some history. Because of the culture of unlawfulness within the Australian building and construction sector, a number of us, including me, called for a royal commission to ascertain how widespread it was and the what types of unlawfulness were being engaged in. As a result, the Cole royal commission was established. In its 23-volume report, the Cole royal commission meticulously painted the 'horror-scope' that represented the culture on our construction sites. It was an ugly picture—big business and big unions using individual workers, contractors, developers and the public purse as their own personal playthings at the expense of the national interest. The Cole royal commission recommended the establishment of the Australian Building and Construction Commissioner, which the Howard government put into place despite the objection of the ALP and the Greens—who, incidentally, are substantial beneficiaries of largesse from the CFMEU for their election coffers. Just in the past few years, they and related organisations have received well over $1 million. In short, the Australian Building and Construction Commissioner was established and commenced the difficult, dangerous and deliberate task of cleaning up the sector. The commission has made huge and genuine improvements and inroads into the culture of intimidation and lawlessness that was the construction sector.

Despite the good work, pockets of lawlessness remain. There is an ongoing role—indeed, need—for a tough cop on the beat. So important is the need for a tough cop on the beat that even Labor promised to maintain an authority with sufficient powers to stamp out lawlessness. Labor's own hand-picked reviewer of the commission, Mr Wilcox—who established his credentials for the review, by the way, by being an outspoken critic of the Howard government—came to the conclusion that there was a need to keep a tough cop on the beat.

Today, parking inspectors and traffic police will be clothed with greater powers than what will become, under this bill, the pathetic but aptly named building inspectorate. Inspecting will be their forte. They will not be able to do anything about what they find, but they will be inspecting. I am sure they will be very good at inspecting. I am sure they will become proficient at inspecting. But mere inspecting will not deal with the issues and stamp out lawlessness. An authority with genuine grunt is what is needed.

So important was this need to have an authority with genuine grunt that none other than Ms Gillard, the then workplace relations spokesman for the ALP, promised:

We want to make sure that no one is engaged in improper conduct in the building industry, whether employer, union or employee.

Ms Gillard went on to say:

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

She said:

… there should be absolutely vigorous, hard-edged compliance and no tolerance … for unlawfulness.

Again, she said:

Each and every breach of the law is wrong and each and every breach of the law should be acted upon.

They are all great words, a great set of principles, but all just as worthless as Ms Gillard's promise that there will be no carbon tax. They are simply empty, hollow words to get herself and the ALP through an election and then, afterwards, those promises are not matched with the reality of Labor in power.

The Australian people have now come to realise that, as it is with the carbon tax, with private health insurance and with the definition of marriage, just to mention three, so it is with the Australian Building and Construction Commissioner. Rather than having a tough cop on the beat, we will have not even a toothless tiger but a toothless mouse. As three state attorneys-general and the Law Council of Australia have observed, this legislation is so bad that it will actually undermine longstanding principles enshrined in our legal system. The Law Council of Australia, in an unprecedentedly strong statement, has condemned this legislation.

Might I add that part of this legislation was rushed into the House of Representatives during the House of Representatives debate as an amendment. After the Senate committee had finished its investigations into the bill, the Greens-Labor alliance sneakily put through this far-reaching amendment, of which the Law Council have said this. I quote from their media release of 8 March:

The Law Council of Australia has raised serious concerns …

They said it will:

… significantly impact the ability of the independent regulator to enforce compliance with the relevant legislation in the building and construction industry.

They said:

… the … Commissioner will be unable to either institute or continue civil penalty litigation for breaches under Commonwealth law because there has been a commercial settlement between the contravenor and persons affected by the offending conduct …

They condemned it because it 'will give precedence to the interests of private litigants over the application and enforcement of Australian law'. They said it will 'significantly erode the regulator's independent regulatory role'. They went on to say:

There is potential for significant waste of tax-payers money if the regulator is forced to discontinue litigation or an investigation …

They also said:

… undue pressure is placed on parties to settle out of court to preclude the regulator from pursuing … penalties …

The Law Council urges reconsideration of this legislation …

On the back of this very strongly worded media release, the coalition sought to refer that aspect of the bill that had never been before a Senate committee before to a Senate committee. Those great champions of the parliamentary process, those great champions of transparency, the Greens-ALP majority in this place, voted down further scrutiny, despite what the Law Council of Australia said in its unprecedentedly strong statement. They also voted down this potential inquiry despite the fact that three state attorneys-general came out backing the view of the Law Council of Australia.

What necessitated this last-minute amendment to the legislation? We will never know, because this bill has been guillotined, debate on this has been gagged and the Greens-ALP majority alliance in this place has deliberately ensured that we cannot investigate further.

In case people do not necessarily comprehend what this last-minute amendment will do, allow me to give a very brief analogy. If somebody drives through a red light and collides with another motor vehicle, causing damage and injury, under normal circumstances, the person driving through the red light would have to settle with the person whose property they had damaged and would have to compensate them for any private injury. Irrespective of that payment and private settlement, one would expect the police to bring a charge for driving through the red light. That is the normal way our legal system operates. It is a proper way for our legal system to operate. It has always been thus; it should always be thus.

But today, courtesy of the Greens-ALP majority in this place ruthlessly abusing their numbers, they will force through, onto the statute books of our country, the capacity for those with the money to buy themselves out of trouble. In the analogy I have just provided, if the person who ran the red light had sufficient money to pay off the person whose vehicle they had damaged and to compensate that person for any injury—sufficient for that person to say, 'I am now happy because he slung me an extra few thousand dollars'—the police would be denied the capacity to bring a charge for running a red light. The same could apply in the case of a drink-driving offence. Under this legislation, the Labor Party and the Australian Greens are saying that it is good social policy to allow private interests to subvert the national interest and society's interests.

This is a shameful amendment. No wonder it was snuck in very late in the debate in the House of Representatives. No wonder the Greens-ALP majority alliance in this place did not want it scrutinised by a Senate committee. This legislates—puts on the statute books—the capacity for those with the money to buy themselves out of prosecution, something which royal commissions in this country over the years have condemned. Who are the people who are going to have the money to buy themselves out of a prosecution? It is pretty simple: it will be big business and the unions. The individual worker, the small contractor, will not have the money; they will not have the capacity.

But why is this so necessary? Let us have a look at a certain construction site in the state of Victoria where the CFMEU were engaged in illegal conduct. They finally came to a private settlement with John Holland. We do not know the full extent of it, but the Office of the Australian Building and Construction Commissioner, the ABCC, nevertheless brought proceedings for that illegal behaviour. Interestingly enough, the CFMEU in effect pleaded guilty to the charge and consented to a fine of $1.35 million. Under the brave new world of the Greens-ALP majority in this place, the CFMEU will have the capacity to escape such fines in the future—because there has been a private settlement, the building inspector will not be allowed to bring the prosecution. This is wrong in principle. It should never find its way onto the statute books. But the ALP and the Greens are willing to use their majority to ensure that this subversion of the rule of law finds its way onto the statute books.

That is not the only thing wrong with this piece of legislation; it also has a provision which is called 'switch-off powers', a provision which allows for coercive powers to be switched off. Why would you want to do that? Justice Wilcox, in his inquiry, did not make that recommendation. Did the unions make such a recommendation? Surprise, surprise—they did not. Did the employers make such a recommendation? No, they did not. We heard from the department at the Senate committee hearing—and what we heard shows us why Senate committee hearings are so vitally important. Labor and the Greens seek to escape them and do so by ruthlessly using their majority in this place on a daily basis. The Senate committee hearing into this aspect of the bill exposed—the departmental officials acknowledged—that no-one in the consultations surrounding this legislation recommended the switch-off powers. We know the unions did not want them, we know the employers did not want them and we know that no-one in the consultations wanted them. So where did this provision come from? We are still awaiting that answer because that question was taken on notice. No doubt it was dreamt up in the minister's office. But what is the justification for it? We still do not know and we will never know—similar to that outrageous part of the legislation making the inspectorate a toothless mouse.

In the time left, it would be very worthwhile for the Senate to consider what has occurred with the ABCC over the past few years. Because of its existence, we have seen a seismic shift in culture on Australian construction and building sites. The consumer price index is 1.2 per cent lower than it otherwise would have been. There is a good reason for getting rid of the ABCC, surely! If that does not satisfy you, the Greens-ALP alliance have other reasons: GDP is 1.5 per cent higher than it otherwise would have been; the price of housing fell by 2.2 per cent; and consumers are better off by $5.9 billion on an annual basis. These are all good things the ABCC has been able to deliver across the board for the Australian people, for the Australian economy, for our common wellbeing. That is the reason the Australian Labor Party, with their Greens alliance partners, want to abolish the Australian building and construction commission.

What else will this legislation do? Employers, especially in the resources sector, have said key decision makers, as part of their due diligence, will consider what the likely industrial relations environment will be for their project and, in the absence of strong laws, it is likely that the concern about industrial environment matters will increase and impact upon investment decisions. The Labor Party are trying to kill the resource sector, which is the goose that is laying the golden egg for Australia, on a daily basis. They tried with a carbon tax but just in case the carbon tax did not do the job they had a mining tax as a double whammy and in case those two things did not do it together, they would have the triple whammy of abolishing the Australian building and construction commission just to make sure the resource sector is killed stone cold motherless dead.

What is it that motivates this government? Last night they were celebrating the introduction of a new tax as some great achievement. Tonight, using the ruthlessness of the guillotine, they will be celebrating the abolition of the Australian building and construction commission. This is bad legislation. It will give statutory legitimacy to blackmail, payoffs and sweetheart deals. It is the first time private interests will legislatively override the national interest. On re-election, we will restore the commission. (Time expired)

Mark Furner (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I am delighted to contribute, as a former union official, to the debate on the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012. Fairness in industrial relations is a matter close to my heart—and 'fairness' is a word Senator Abetz failed to mention during his speech on the bill. That is where the Labor Party and those opposite are divided. The Australian Labor Party believes in fairness and in ensuring everyone has the same rights and opportunities no matter their background. We believe that workers deserve to be treated with respect, have access to their entitlements and have access to fair representation in their work place. This bill will ensure that these principles are returned to the construction industry

This bill seeks to abolish the Office of the Australian Building and Construction Commissioner, which was established under the Howard government following Work Choices. Through this legislation, the government will replace the ABCC with a new body to provide a balanced framework for cooperative and productive workplace relations in the building and construction industry. We believe the Office of the Fair Work Building Industry Inspectorate would be a more appropriate regulatory body as it would be part of the Fair Work system. It will provide information, advice and assistance to all building industry participants regarding their rights and obligations under the law, as well as seek to improve the standard of occupational health and safety in the building and construction industry.

The ABCC has met with criticism from the community, especially with respect to its powers to interrogate people. Section 2.49 of the report of the Senate Education, Employment and Workplace Relations Legislation Committee states:

The Building and Construction Industry Improvement Act 2005 (BCII Act) provides the ABC Commissioner with the power to compel a person to provide information or produce documents if the ABC Commissioner believes on reasonable grounds that the person has information or documents relevant to an investigation and is capable of giving evidence.

On 3 February 2012, the Construction, Forestry, Mining and Energy Union Construction and General Division National Secretary Dave Noonan told the committee that coerced interrogation was unfair. He stated:

I would just say at this point that a person accused of murder under the criminal law of this country has a right to silence. A person accused of a serious violent crime such as assault in this country has a right to silence under the law. A person accused of theft, corruption or a range of criminal offences has a right to silence under this law. Those who do not have a right to silence under this law are construction workers, who can be interrogated about their workplace and union activities.

Nicola McGarrity and Professor George Williams from the Gilbert+Tobin Centre of Public Law stated in their submission:

The breadth of these requirements means that any person, including a child or a mere bystander, may be required to give information (including personal information, such as their political views) if it is relevant to an investigation of minor breaches of industrial law and industrial instruments.

The government will not be removing the coercive interrogation powers under this bill; however, instead, we will be introducing safeguards to allow proper representation and monitoring of interviews. These safeguards are reported in the committee report as follows:

Each use of the powers is dependent upon a presidential member of the Administrative Appeals Tribunal (AAT) being satisfied a case has been made for their use;

The person being examined will be entitled to be represented at the examination by a lawyer of the person's choice and their rights to refuse to disclose information on the grounds of legal professional privilege and public interest immunity will be recognised;

People required to attend an interview will be reimbursed for their reasonable expenses such as travel and accommodation as well as legal expenses;

All examinations will be videotaped and undertaken by the director or an officer from the senior executive service;

The Commonwealth Ombudsman will monitor and review all examinations and provide reports to the Parliament on the exercise of this power; and

The powers are subject to a three year sunset clause and it is intended that before the end of that period, the government would undertake a review to determine whether these powers continue to be required.

This will be reviewed in three years time. The Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012 will also remove higher existing penalties for building industry participants for breaches of industrial law. At the moment the maximum penalty for unions is $110,000. This will be lowered to $33,000. The penalty for individuals will be reduced from $22,000 to $6,000.

The news of the abolition of the ABCC has been met with praise from the building industry, including the Builders Labourers Federation Queensland. In a recent message to members, secretary David Hanna said:

The ABCC days are numbered! The bill to rid them from our industry goes before Federal Parliament in February and it’s a long time over due. We’ve been working under these draconian laws for 6 years - 2 of those under Howard … Gillard has made some changes to the Code that allowed us to have stronger union EBAs.We are working hard to secure more changes to the Code and are very confident that we will succeed.

He further said:

Once again the union lives on while the dogs come and go. It is going to take time to repair the damage that they leave behind. The upside is many workers no longer take for granted what the union has delivered over the years and the members know that they are worth fighting for.

CFMEU's Dave Noonan has also welcomed the abolition of the ABCC. He said:

The ABCC was set up by the Howard Government as part of an ideological attack on unions. It has been a $135 million waste of money, serving only to try and intimidate union members who stand up for decent wages and safety.

The amendment also provides a provision to establish an independent assessor. The committee report states, 'The independent assessor would be appointed by the Governor-General, provided the minister is satisfied the person has suitable qualifications and is of good character.'

The government have consulted widely with the industry on this piece of legislation and the report Transition to Fair Work Australia for the Building and Construction Industry by the Hon. Murray Wilcox QC covered extensive consultation with stakeholders. The coalition have tried to claim that the abolition of the ABCC is only beneficial to the ALP and the Australian Greens. In their dissenting report, coalition senators stated, 'There are genuine concerns that this bill is simply an effort to appease the union bosses and guarantee electoral funding.'

With claims by the BLF that more than 150 people have been interrogated and that these people have fewer rights than someone who has committed a crime, it is time to make changes and allow workers the proper representation that they deserve. This is not about appeasing union bosses; this is about having a fair and effective regulator—something the ABCC is not. The ALP is a supporter of workers' rights; the coalition are not.

The labour movement has fought hard for annual leave entitlements, reasonable work hours, sick days, paid public holidays, fairer pay and well deserved pay increases. With just two words, the coalition stripped away workers' rights, put people on individual contracts, took away leave loading, took away overtime and took away basic entitlements—and they say this amendment is just about appeasing the unions. This is where the divide is between those opposite and us. We have made a correction here today. It is a historical correction and is a correction of industrial relations. It is always the case that when Labor governments follow coalition governments, we need to correct the record and correct legislation on industrial relations. Today is that opportunity to fix the industrial relations mess that coalition governments create throughout this country when they are in parliament.

In closing, I commend the bill to the Senate and look forward to its passage through this chamber.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I rise to speak against the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012. In addressing this legislation, let us be clear about one thing. The future of the Office of the Australian Building and Construction Commissioner, the ABCC, under the former Rudd government and the current Gillard government is about one thing: it represents Labor politics in its true form and those politics are traditional payback to Labor's union mates. The future of the ABCC has nothing to do with a genuine attempt on behalf of the former Rudd government and the current Gillard government to address what are actually recognised as issues within the building and construction sector within Australia.

This legislation represents the current Gillard Labor government delivering on a commitment the former Rudd Labor government made to their union mates prior to the 2007 election. In fact, it is rather ironic that the one commitment that the Labor Party actually decide to deliver on, the one promise that those on the other side are very proud to say they are delivering on—and forget the 'no carbon tax' promise, forget all the other promises that the Labor Party made to the people of Australia that they are quite willing to break with no shame at all—is the promise they made prior to the 2007 election and prior to the 2010 election to their mates in the militant union. That is absolutely appalling.

This legislation is the vehicle by which the Labor government will deliver its commitment to the militant union movement that it will abolish the ABCC—that was the promise made prior to the 2007 election and the promise made prior to the 2010 election—with the result, unfortunately, that Australia, which has actually come a long way under the ABCC, will return to what was known rather ironically as the good old days which represented the chaos of the 1980s when the construction industry was held to ransom by union officials.

Let us be clear about what this legislation is intended to achieve. Far from what is stated in its title—the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill—the fact is that the details of this legislation reveal that the ABCC's replacement is nothing more and nothing less than a toothless tiger. Quite frankly, why even bother to have one? You need only look at the legislation and what the new body is actually empowered to do to see that it is effectively powerless.

As a senator for Western Australia, I have particular concerns with this bill and the abolition of the ABCC, for very good reason. Anybody in the Australian public who has read the Cole royal commission report will understand the havoc that the construction union movement has wreaked over the Western Australian building and construction industry for years, and why a strong enforcement body is required. To put my concerns into context, on 26 May 2007, prior to the election of the then Rudd Labor government, the Australian newspaper ran the banner headline, 'Union boss awaits return of ALP glory days.' The article stated:

Most mornings, militant unionist Kevin Reynolds meanders on to the balcony of his stunning riverside apartment, built by his loyal disciples, to take breakfast and read the morning papers. He can look across the Swan River to the cranes that pepper Perth's exploding CBD knowing that should Labor win the next federal election his nemesis—the only authority in 20 years to rein in his hardline and volatile union—will be destroyed. And Reynolds, along with his colourful deputy Joe McDonald, will again have total control over almost every major construction site in the booming West Australian capital. It is a daunting scenario for a construction industry enjoying a relatively strike-free environment since the Australian Building and Construction Commission, which Labor has vowed to abolish, came to town in late 2005.

The article continued:

Reynolds and McDonald have already started boasting about what will happen when Kevin Rudd becomes prime minister and carries out his promise to dismantle the ABCC headed by John Lloyd.

'I live for the day when (the ABCC staff) are all working at Hungry Jacks or Fast Eddy's or Kentucky Fried Chicken,' McDonald told the Australian recently. 'That is what's waiting for them. They're all ex-policemen and they can go and do whatever ex-coppers do. I suggest that John Lloyd and his mates will be unemployed before I will be.'

And he is right. He is right, because Mr Lloyd, the voice of reason within the construction industry in Australia, has well and truly gone, long before Mr McDonald has.

This legislation is Labor finally making good on its promise to deliver back to the union heavies construction sites across Australia. When this legislation passes, as it will, the standover merchants in the militant unions will be back in business. There is a reason the Labor Party has to make good on its promise, and it is because in Western Australia, in particular, it had a small issue. Union heavyweight Kevin Reynolds made it very clear in November 2009 that he was very disappointed with the then Rudd Labor government. It had at the time not scrapped the ABCC. In an article in the West Australian newspaper on 24 November 2009, he was quoted saying:

The national CFMEU would not contribute to the ALP while the ABCC stayed in place, creating an annual $3 million hole in the federal ALP's finances.

As Mr Reynolds said:

The Labor Party makes all sorts of promises to the union to get their money but at least on this promise they're actually delivering.

In relation to this legislation, it is pretty obvious from the comments of the WA union heavies that this legislation has nothing to do with good public policy. It has nothing to do with taking action that is in the national interest, but it has everything to do with the Labor Party doing what it does best—that is, playing second fiddle to the union movement. Putting aside the fact that this legislation is merely a vehicle by which the Labor Party will deliver on a promise it made to the union movement, as a legislator, in determining whether or not this legislation is warranted, one must ask the question: have the circumstances that led to the creation of the ABCC in 2003 changed sufficiently to justify its abolition and the replacement of the industry watchdog with a toothless tiger?

To answer that question you need to put the legislation in context. It should not be forgotten that the ABCC was established only after an independent royal commission. A royal commission is the highest form of inquiry in the great nation of Australia. That royal commission made certain findings, which were: evidence of extensive lawlessness, intimidation and thuggery in the construction sector. That is not the coalition saying that. That is a royal commission that conducted an inquiry into the construction sector.

In relation to my home state of Western Australia, the construction industry in Western Australia was described by the royal commission as being 'marred by unlawful and inappropriate conduct' with 'a culture of fear, intimidation, coercion and industrial unrest'.

The royal commission made 230 findings of unlawful conduct in Western Australia alone, the majority of which were against CFMEU officials and organisers, with Kevin Reynolds and Joe McDonald being cited as repeat offenders for intimidation and threats of violence, breaches of freedom of association, secondary boycott and right of entry provisions, trespass and interference. Mr Murray Wilcox QC, the person chosen by the Labor government to conduct a review into the creation of a specialist division for the building and construction work within Fair Work Australia, actually agrees with the findings of the royal commission—this is the Labor Party's appointed investigator. At page 7, point 9 of his Transition to Fair Work Australia for the building and construction industry report, this is what Mr Wilcox stated:

… there can be no doubt that the Royal Commissioner was correct in pointing to a culture of lawlessness, by some union officers and employees and supineness by some employers, during the years immediately preceding his report. The evidence summarised in the report is too powerful to permit any other view.

The unlawful practices so clearly identified by the Cole royal commission to be rife in the building and construction industry came at a very high economic cost to Australia and Australians. It resulted in higher infrastructure costs, delayed projects—some of which were stalled by months because of strike action—and the development of a culture of fear and intimidation. Because of this, the Cole royal commission recommended structural change that would gradually transform the hostile culture of the building and construction industry. Many years later, the type of conduct found to exist by the royal commission has been reduced. There is no doubt about that. It is also very clear that the culture of intimidation in the building and construction industry has not changed sufficiently to warrant a reduction in the powers of the building watchdog, the ABCC. Again, Mr Wilcox—the Labor Party's appointed investigator—said at page 14 of his report that there is still work to be done to change behaviour in the industry.

The social and economic importance to Australians of the building and construction industry functioning properly cannot be underestimated. The benefits brought by the ABCC whilst it was in operation cannot be underestimated. The ABCC has upheld construction-specific laws, which in turn has seen major economic benefits flow through to all Australians.

The 2012 Independent Economics report explained that higher construction productivity—amazingly—leads to lower construction prices, which flows through to savings in production costs across the economy. The report highlighted the benefits of earlier reforms to the national economy. The report noted that the consumer price index is 1.2 per cent lower than it otherwise would be—again, that is hardly a reason to justify the abolition of the building watchdog; GDP is 1.5 per cent higher than it otherwise would be; consumers are better off by $5.9 billion on an annual basis in 2011¬12 terms; and there has been a significant reduction in days lost through industrial action. To quote Heather Ridout's evidence to the initial Senate inquiry, 'If you look at working days lost in the sector, they have dropped like stones.'

Prior to the ABCC, in September 1996, more than 263 working days were lost per 1,000 employees due to IR disputes, and costs relating to IR disputes exceeded $270 million per year. Enter the ABCC, and what do we see? By March 2007, only 1.5 working days were lost per 1,000 employees due to IR disputes. That is actually a record low. Costs relating to IR disputes plummeted by over 85 per cent. So in September 1996, before the ABCC was enacted, there were 263 working days lost per 1,000 employees due to IR disputes, but by March 2007 that figure had dropped to 1.5 days. That evidence alone should signal to anybody interested in the building and construction industry sector that, with the introduction of legislation that created the building industry watchdog, law and order was slowly but surely returned to construction sites in Australia. It is a travesty for the Australian people and for the building and construction sector that, because of a crass promise made by the Labor Party to its union mates—the one promise the Labor Party has not broken, that it intends going through with—it is going to throw away the economic benefits outlined in reports, which cannot be denied, so that its union mates can be satisfied.

The achievements of the ABCC are without a doubt under threat from this legislation. That is because those on the other side believe that the minority interest groups and militant unions and their money are more important than maintaining law and order in the building and construction industry, ensuring and encouraging productivity and protecting Australian jobs. Based on the figures that we have seen in relation to productivity gains and the decrease in the number of days lost to industrial action, if this legislation is passed in its present form, it will no doubt have an impact on Australians' jobs. That is on top of the carbon tax and the mining tax. On top of everything else, the watchdog in the building and construction industry, which was actually bringing back lawfulness to the sector, is being destroyed by the Labor Party.

One of the other issues that I think goes to the fact that this is nothing more and nothing less than delivering on a promise to Labor's union mates is the narrowing of the definition of building work to exclude off-site prefabrication. Precast concrete panelling is an example of work performed off-site which is excluded under the proposed legislation. You have to ask why. Why would you exclude precast concrete panelling? What could possibly be the reason for that? It is building work, so why is it not included under the legislation we have before us?

The only logical answer is that, yet again, the Labor Party have succumbed to pressure from the AMWU and other manufacturing unions to restrict the effectiveness of the toothless tiger that they are leaving the building and construction industry with, and they are doing so without any regard to industry that is external but essential to the building and construction sector in Australia.

As a Senator for Western Australia and as someone whose state is directly affected by the militant and disruptive tactics of the CFMEU, it distresses me to see that so many Western Australians will have to sit back and, today, watch Labor simply hand back the control of the efficiently functioning building and construction sector to the militant unions and so see it returned to the bad old days of thuggery, intimidation, spiralling project costs and endless strike action. The building and construction industry is far too important to the national economy for us to see this happen. Building and construction workers deserve to work in an industry that is free from thuggery, intimidation and standover tactics. This legislation does not achieve that aim and will put workers in a perilous position, to be used as pawns by the militant union bosses who are the undoubtedly ugly face of the radical union movement in Australia.

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

I am very happy to participate in this second reading debate on the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012, which is in relation to the abolition of the so-called building and construction watchdog. The ABCC was established by the Howard government to do one thing, and that was to attack and bust trade unionism in the building and contraction industry—simple. It was a flawed institution at its inception. You cannot point to any other country in the world with similar legislation to the building and construction legislation introduced by the Howard government that is against its citizens. You have to remember that it was part of the legislative package of the Howard government. It was part of Work Choices and the building industry and the ABCC. They were two huge attacks on the rights of workers in this country.

The ABCC is a flawed institution, and its flaws will be its downfall. It has been heavily biased against workers and their unions. I listened intently to the contribution of Senator Michaelia Cash and I did not hear one criticism of the conduct of employers in the building and construction industry—not one. I am not surprised, because the coalition stand up for the bosses and they always have a go at the workers. That is the coalition's position. The ABCC turned a blind eye to unlawful conduct on the part of employers. John Lloyd, the then ABCC commissioner, told me at estimates hearings that there was no sham contracting or corporate phoenixing in the industry. Well, what load of nonsense. When it was looked at seriously, it did not take very long to find that sham contracting was going on.

The ABCC has engaged in spin and deception to justify its own existence. It has shown a disregard for its obligations to be a model litigant, and there has been judicial criticism piled upon judicial criticism of the ABCC. Apart from this criticism standing on its own with respect to individual cases, you need to look at it in the context of the ABCC's obligation to be a model litigant under the Commonwealth Legal Services Directions made under the Judiciary Act 1903. The Legal Services Directions mandate the conduct of Commonwealth government agencies and departments in legal proceedings. In essence, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the Commonwealth and its agencies will act as a model litigant has been recognised by the courts. Lawyers engaged in litigation on behalf of the Common­wealth—whether the Australian Government Solicitor, in-house or private—need to act in accordance with this obligation and to assist their client agencies to do so.

There is a body of judicial criticism of the ABCC's conduct in litigation which indicates that the ABCC has been guilty of serious lapses in carrying out its obligation to be a model litigant. I have some examples of judicial criticism of this flawed, politically-driven body. In the case of Steven Lovewell v Bradley O'Carroll & others, where Lovewell was an ABCC inspector, the ABCC commenced proceedings in December 2007 against Bradley O'Carroll and the Queensland branch of the CEPU, alleging that O'Carroll had attempted to coerce a head contractor not to engage a subcontractor on the Southport Central project on the Gold Coast. After hearing the evidence, Justice Spender did not feel constrained to make some adverse comments about the merits of the case brought by the ABCC. He observed:

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 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.

Justice Spender was referring here to the employer in the case, Underground, setting up its employees as independent subcontractors. His Honour said that this arrangement 'is and was a matter requiring thorough investigation'. Did the ABCC conduct an investigation on the employer? No, it did not. It was an investigation that the ABCC was never prepared to undertake. Its sole focus was prosecuting unions, blind to the unlawful behaviour of employers. Justice Spender went on to say:

The present arrangement in the present proceedings, on the material presently available to me, strongly suggests that the arrangement of the workers as 'independent subcontractors' was a sham, a bogus arrangement. It was an example of dishonest fraudulent financial engineering by Underground, whose intended purpose was to avoid payments made under the certified agreement which bound Underground at the time.

Justice Spender went on to say:

The present arrangement in the present proceedings, on the material presently available to me, strongly suggests that the arrangement of the workers as independent subcontractors was a sham, a bogus arrangement. It was an example of dishonest or fraudulent financial engineering by Underground, whose intended purpose was to avoid the payments made under the certified agreement which bound Underground at the time.

Justice Spender also remarked in the admissions made by the ABCC solicitors relating to the managing director of Underground. It was admitted by the ABCC and noted by His Honour that the managing director is a 'foul-mouthed cowboy'. Justice Spender said if the conduct of the managing director of Underground had been engaged in by a union official, it would be extraordinary if that were not the subject of serious investigation and likely prosecution. His Honour went on to say:

The promotion of industrial harmony and the ensuring of lawfulness of conduct of those engaged in the industry of building and construction is extremely important, but as one which requires an even-handed investigation and an even-handed view as to resort to civil or criminal proceedings, and that seems very much to be missing in this case.

In his concluding remarks, Justice Spender said:

The commercial arrangements that Underground entered into with its workers is a species of black economy, which, unfortunately, seems to exist in the building industry, and equally, that it is to be stamped out if at all possible in the payment to workers in such an ad hoc way as to avoid the obligations of the income tax legislation and the superannuation legislation. It is not to be ignored or a blind eye cast when it is engaged in by the employers.

So what Justice Spender has blown apart is this argument of some even-handed, white knight, building industry watchdog out there looking after the interests of the industry. It is clear that Justice Spender has belled the cat and that the ABCC was biased. It was a political operation. It was set up by the Howard government to attack the trade union movement and ignore the behaviour of employers. What could be clearer than a senior judge outlining these flaws and problems with the ABCC? There are a range of other legal cases—if I get time I will come back to them.

I want to turn to this argument that was promoted by Senator Abetz and Senator Cash that somehow the ABCC on its own is responsible for huge improvements in productivity and huge savings to the government purse. The ABCC and its cheer squad, as we have on the other side of the chamber, have consistently claimed that its coercive powers have resulted in large productivity improvements in the industry. The claims, particularly those made in the Econtech 2007 and 2008 reports, have been hotly contested. The coalition speakers on this bill will stand up and say there was an independent analysis. There has been no independent analysis. Econtech were paid and given the brief by the ABCC to tell the ABCC what a great job, supposedly, the ABCC has done in the building and construction industry. Senator Abetz and Senator Cash—and I am sure Senator Back—will repeat the nonsense that there was a $5.9 billion a year benefit through the establishment of the ABCC. It is absolute rubbish.

Murray Wilcox—again, a very highly respected judge—looked at the ABCC and deals with these issues at some length in his report at pages 40 to 60. I challenge Senator Back to go to what Justice Wilcox says and continue the nonsense and fabrications that the coalition are putting. Justice Wilcox asked this question in his October 2008 discussions paper:

The only possible justification of having specially restrictive rules for the building and construction industry must be that this is necessary to provide industrial peace and an acceptable level of productivity. Many people assert that the industry's present happy position, in these respects, is attributable to the BCII Act and the activities of the ABCC. Is there any hard evidence that supports that assertion?

After Justice Wilcox's inquiry, he could not find any. There was not an employer, nor was the ABCC able to justify the nonsensical claims that Senator Abetz has put forward about the so-called fantastic performance of the ABCC.

Like Anzac Day or Moomba, one of the rituals of life these days is the release by Econtech KPMG of its latest modelling report to demonstrate the miraculous effect on productivity that the Stasi-like powers of the ABCC have. The 2007 Econtech report estimated that, as a result of the BCII Act and the ABCC's activities, labour productivity in the building and construction industry had increased by 9.4 per cent—and we have heard these claims repeated constantly by the coalition—the CPI had been reduced by 1.2 percent and the gross domestic product had increased by 1.5 per cent. This had apparently all been achieved in the 15 months between the commencement of the ABCC's activities and the end of 2006.

On this, Justice Wilcox, in his report—on page 42, paragraph 5.33, for Senator Back's interest—notes that, according to a report by Allen Consulting, productivity in the industry had been rising far more steadily and over a longer period of time than is acknowledged by the ABCC. Justice Wilcox said:

Multi-factor productivity in the non-residential construction industry has displayed similar trends to those of labour productivity The multi-factor productivity index measures industry gross value added per unit of capital and labour input. Multi-factor productivity increased strongly through the 1990s and peaked just prior to the introduction of the GST. Following a short but sharp fall in productivity following the introduction of the GST multi-factor productivity rebounded quickly and has been increasing since 2001.

Others have had a look at the nonsense that you will hear from Senator Back about productivity. An analysis was done by Professor David Peetz, and his criticisms were particularly devastating because in his view Econtech had stuffed up badly. All the arguments you hear about how well they have done have been analysed by Justice Wilcox, independent companies and Professor David Peetz and none of them came to the same conclusion as the coalition or the ABCC.

What Professor Peetz showed is that Econtech had got its sums wrong. Rather than a 9.4 per cent reduction in the gap between housing and non-housing construc­tion costs the reduction had been 1.3 per cent. Peetz pointed out problems with Econtech's efforts to compare actual productivity in the sector with projected productivity based on the rest of the economy, including how, in spite of the absence of the ABCC and royal commissions, construction industry produc­tivity had surged far above predicted levels in the late 1990s.

Peetz found that the cost comparisons between the domestic house construction sector and the commercial construction sector were deliberately framed so as to create the misleading impression that costs in the housing sector are lower because of the absence of unions in that sector. Again, the ABCC and Econtech have concocted an absolute piece of nonsense in terms of productivity. Peetz concluded:

If ever there was an example of how economic modelling results are driven by assumptions and not data, this is it.

I have raised on a number of occasions in this place the assumptions that were put in. What some of the assumptions were was that on some of the big construction sites if there are no penalty rates paid, if you work 365 days a year and 24 hours a day, and if there are no public holidays and no annual leave, you can gain all these increases in productivity and reduce the costs in the industry. Sure, if workers become slaves it will be extremely cheap to build any construction in the building and construction industry. But we are not slaves in this country and, apart from Work Choices and the ABCC attempting to push workers' wages and conditions down, we have always had a view that if you go to work, you should be treated fairly, you should be treated well and you should get a decent pay for the effort you put in. That is the philosophy of the Labor Party. Unfortunately, it is not the philosophy of the ABCC or the coalition or the Work Choices warriors on the other side of this chamber.

A year later after these devastating analyses on the so-called economic modelling by Econtech, the ABCC released an updated report by Econtech. The report quietly fixed the howling error made the previous year but kept the claims about massive economic benefits. Despite its wholesale overturning of the cost comparisons data relied on in the 2007 report, it repeated the same fabricated assertions made in 2007 and you will hear Senator Back—because his speech is already written, the nonsense is already written in his speech—run the same line that the ABCC ran; namely, that the GDP is 1.5 per cent higher, the CPI is 1.2 per cent lower and the price of dwellings are 2.5 per cent lower.

The report defied logic. No-one who has looked at this in an independent manner believes these figures—except the coalition for the propaganda and their attacks on the trade union movement. That is the only group in the country: the coalition who love Work Choices, who love getting rid of penalty rates for workers, who love attacking the trade union movement and who in 40 minutes of speeches on this bill have never once criticised the employers in the industry who behave badly—not one criticism.

I challenge Senator Back, who is speaking after me, to deal with these criticisms of the economic modelling and nonsense that has been put up about the ABCC. I challenge Senator Back to deal with the judicial criticisms of the ABCC. Not only is the ABCC acting outside of what is regarded as good and proper legal procedures; it is fudging figures to try and justify its existence. The ABCC is a blight on democracy in this country. We are the only country in the world that provides penalties against building and construction workers, ordinary Australians, that are worse than penalties against terrorists. It is because the coalition are Work Choice warriors. Their position is clear: they do not want workers to be in unions and they do not want workers to have a fair go. This bill is a good deal. Get rid of the ABCC.

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

I hope to bring some common sense to this debate and to oppose the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012. Madam Acting Deputy President, my colleagues in the Senate and the public, I draw to your attention the wonderful publication Odgers, which is the bible by which we operate. If I may, I will read who it is dedicated to. It reads:

TO

THE ELECTORS OF AUSTRALIA

who by their votes established and have sustained constitutional government in the Commonwealth of Australia

and one group of their chosen agents and trustees

THE SENATORS

who hold a large portion of that trust

To bring this into perspective, I want to quote for a moment some of the functions of the Senate and the roles of those of us charged with that responsibility. They include:

To review legislative and other proposals initiated in the House of Representatives, and to ensure proper consideration of all legislation.

It is a shame that Senator Feeney, acting in the minister's chair, is bored and is yawning. Perhaps he should also read and take note. It continues:

To ensure that legislative measures are exposed to the considered views of the community and to provide opportunity for contentious legislation to be subject to electoral scrutiny. The Senate's committee system has established a formal channel of communication between the Senate and interested organisations and individuals, especially through developing procedures for references of bills to committees.

To provide protection against a government, with a disciplined majority in the House of Representatives, introducing extreme measures for which it does not have broad community support.

And, lastly:

To probe and check the administration of the laws, to keep itself and the public informed, and to insist on ministerial accountability for the government's administration.

These are not my words; these are out of the bible of the conduct of the Senate of Australia. It is high time people on the other side of this chamber took that responsibility and that role seriously.

One could reflect for some moments as to why it was necessary for the Cole royal commission to come into existence. As my colleague and Western Australian co-senator, Senator Cash, has alerted, it was the two states of Victoria and Western Australia where most of the problems were occurring in the building industry. These were unattended by the Labor government under Hawke and Keating and therefore had in some way to be brought under some degree of control. The terms under which the Cole royal commission was undertaken—and it is unfortunate that Senator Cameron has chosen to leave after challenging me for most of his speech, in which he had little to contribute—did not unfairly target unions, employers or employees. I will quote some of those terms of reference:

(a) the nature, extent and effect of any unlawful or otherwise inappropriate industrial or workplace practice or conduct, including, but not limited to:

(i) any practice or conduct relating to the Workplace Relations Act 1996, occupational health and safety laws, or other laws relating to workplace relations …

In answer to Senator Cameron's diatribe, I have not yet seen any reference specifically to unions or to anybody else.

Senator Cameron should not have come into this place and slurred construction workers. He should not have suggested that construction workers' rights were diminished and he should not have suggested that it was anything other than wrong for anybody in the industry to act contrary to the law. Nor, of course, should employers act contrary to the law—they should be treated equally, and have been. As a person who has been an employer and an employee for probably 40 years, I object strongly to the insinuation and the nonsense perpetrated by this man in this Senate. He ought to go back and read the obligations in Odgers for those of us acting in the Senate.

The terms and conditions of the Cole royal commission went on to address issues associated with:

… fraud, corruption, collusion or anti-competitive behaviour …

Have we yet seen any discrimination in favour of or against any particular party? No, we have not. It continued:

… coercion, violence, or inappropriate payments, receipts or benefits …

The terms of reference went on:

… dictating, limiting or interfering with decisions whether or not to employ or engage persons, or relating to the terms on which they be employed or engaged—

and—

… failure to disclose or properly account for financial transactions undertaken by—

you wouldn't believe it, Senator Cameron—

employee or employer organisations or their representatives or associates …

Here is the next one—under (b)(ii) it lists 'inappropriate management'. I think that normally refers, Senator Ronaldson, to employers, doesn't it?

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Yes.

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

It goes on:

… inappropriate management, use or operation of industry funds for training, long service leave, redundancy or superannuation …

So that I can correct the record, I will not insult the next speaker by helping them with the preparation of their speeches, but what I will do, if I may, is indicate that under the ABCC the compulsory examination powers have been used 54 times on management and only 10 times on union officials. I sometimes wonder whether Senator Cameron and I are dealing with the same issues.

I can stand up here and quote, as others can, but I am not going to stand up here and insult or be derogatory to those parties in this country who are charged with the respon­sibility of providing us with the necessary information we need to discharge our responsibilities as senators in this place. We have heard a spray this morning from Senator Cameron regarding Econtech and KPMG. It is a shame he did not discuss with or learn from his own leadership before he challenged and desecrated the credibility of KPMG, Econtech—or Independent Economics. Should he have availed himself of the opportunity of learning from his own current Labor government leaders, he would have found that this government has recently commissioned KPMG and Econtech to conduct the report titled Measuring the impact of the productivity agenda. This vilified group—these organisations, KPMG and Econtech, upon whose reports cannot be relied and who have to be castigated and criticised in Senator Cameron's usual fashion—are the very organisations this government has engaged to conduct that report. Senator Cameron and the Labor government cannot have it both ways. I suggest that the leadership of the Labor government knows very well the credibility of these statistics. I am going to quote from the Australian Bureau of Statistics; I do not know if doing so opens them up to getting a spray from this Senator Cameron. But these are the statistics: in the year 2004, according to ABS in their reporting of industrial chaos—and I will believe them—there were 48.6 days lost to industrial activity per 1,000 workers. It went down by 2008, according to the ABS, to 1.7. I repeat that: from 48.6 days lost per 1,000 workers, it was reduced in 2008 to 1.7. And where has it gone by 2011? Back up to 45 days. You see, one of the interesting things about the efflux of time is that we cannot escape from the actual facts. We know from these statistics what the days lost due to industrial activity were prior to the ABCC, we know what they were when the ABCC was doing its job and we will be able to measure into the future what the trend will be if and as this tough regulator is removed.

Productivity gains, again, in the residential building sector increased between 2004 and 2009 by 7.3 per cent. This is an interesting statistic. Labour productivity in the construction industry went up 10 per cent in that time, but more to the point is that it went up higher than the predictions that historically would otherwise have been the case. When we learn about this slavery and this working 24 hours a day, seven days a week, it is an awful shame that Senator Cameron did not actually go back and read the reports which he so blithely criticises, because if he had read them then he would have seen that he would be insulting the very unions who negotiated the contracts with the employers, because the terms and conditions for those employees were very, very generous by construction or other industry standards at that time. There was no suggestion of people working 24-hour days seven days a week, but what did happen in that time between 2004 and 2007 was that weekly wages in the construction sector went up 25.5 per cent, against an increase of 15.5 per cent for all industries. In other words, as a result of these changes coming into existence, construction workers ended up getting increases of 10 percentage points over and above other industries.

As a past employer, I have an incredible keenness for occupational health, safety and welfare. It has always been my experience that, the more is invested by the employer in occupational health, safety and welfare, the better is the reward, particularly when the occasion and the workplace environment are such that the employer can have direct negotiations with his or her employees in achieving those outcomes. I have the pleasure of having been able to give you those examples in industries which I have managed or overseen, including the tourism industry, the emergency services industry, fuel retailing, fuel distribution and the larger oil and gas industries. I am committed to occupational health and safety and I will not listen to what is proposed by the likes of Senator Cameron when he says that all of this—the introduction of the ABCC—drove down safety in workplaces. It did not. If the Australian Bureau of Statistics can be believed, the incidence of workplace injury per 1,000 workers in 2003-04 was 27.7. Nobody will agree more than me and Senator Cameron—and, I hope, others on all sides of this chamber—that every person who goes to work has an entitlement to come home safely. Nobody would dispute that, and I would take deep exception to anybody who points to this side of the chamber and suggests anything other than that. There were 27.7 incidents per 1,000 workers in 2003-04; about the same in 2004-05, with 26; and about the same in 2005-06, with 24. But by 2006-07, contrary to the expectations that one would have believed if one were listening to the other side, the actual incidence in 2006-07 and 2007-08 per 1,000 workers went down to 22. The best figure would be zero—we all know that—but we cannot sit here and believe the sort of diatribe that is put to us in relation to the outcomes of the ABCC.

What is interesting is that, from the time the Rudd-Gillard government came into existence through to December 2008, in fact they made no changes to industrial laws in this country to any extent. The fact that this incoming Labor government preserved the industrial climate of the Howard government is illustrated in these figures: in the middle of the global financial crisis, in December 2008, employment went down by only 0.1 per cent—in other words, employment stayed static—but the hours worked went down by 2.3 per cent. Why did that happen? In my view it happened because there was a good workplace relationship in which employers and employees were able to work together and say, 'We want to keep everybody employed but, because of the downturn in commercial and industrial activity, it will be necessary for people to work fewer hours.' Those are the statistics to which I refer.

There has been some comment with regard to Mr Justice Wilcox. I have not met the gentleman and I do not intend to comment upon him, but since it is the flavour of the day to refer to and quote from Justice Wilcox I too will do the same thing with these four lines from his report:

… the ABCC’s work is not yet done. Although I accept there has been a big improvement in building industry behaviour during recent years, some problems remain. It would be unfortunate if the inclusion of the ABCC in the—

Office of the Fair Work Ombudsman—

led to a reversal of the progress that has been made.

Those, I believe, are very telling comments.

We come then to the amendments before us. It was the then Minister for Employment and Workplace Relations, now Prime Minister, Ms Gillard, who made these statements prior to the 2007 election, and I think these words resonate:

We want to make sure that no one is engaged in improper conduct in the building industry, whether employer, union or employee.

She went on to say:

Anyone who breaks a law will feel the full force of the … law.

S he was also exceeding ly disappointed that there were still some ' pockets of industry where people think they are above the law ' and where people engage d in intimidation and violence. She concluded by saying:

… there should be absolutely vigorous, hard-edged compliance and no tolerance at all for unlawfulness.

In the few moments allowed to me I go to one of the amendments in this legislation, the switch-off powers. As we know, these propose that there be a switching-off clause under the new investigative powers, which means that in this case if a union—and I do not think it applies to employers but I will defer to the previous speaker if it does—or a party does not misbehave in a certain time frame it is no longer the subject of investigation by the regulator or the investigator. This is most amazing; it is unique and apparently has no precedent in British justice. What it basically says is that, to use an analogy, if any one of us has never murdered anybody, there will be a switching-off clause so we will no longer be subject to that legislation. In other words, it is the circumstance which says, if you have behaved yourself for a period of time, there will be no further investigation of you under that circumstance.

In a Senate committee hearing in Melbourne earlier this year, at which I think my colleague Senator Thistlethwaite was a participant, we asked the gentlemen from the union, 'Did you request the switching-off clause?' They said, 'No, we didn't.' So we said to the department, 'Did you request the switching-off clause?' No, they did not. I do not think employers would have requested the switching-off clause. We then said, 'Who in fact did request the switching-off powers?' Of course, it was none other than the then minister, Ms Gillard. I ask the question philosophically because there will be plenty of people out there very interested to know—

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

You can't ask philosophical questions.

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

I will ask a direct question. It is lucky that the chair of the committee, Senator Marshall, is here, because he might be able to answer this question: is the Labor government now contemplating the introduction of switching-off powers by the ATO, by ASIC, by the ACCC or by the Prudential Regulatory Authority? Are we going to see even more interpretations of the law? The switching-off clause was not even requested by the participants; it was introduced into the agenda by the minister.

We have for some days been faced with the embarrassment of the committee chaired by Senator Marshall, and of which I am the deputy chair, considering matters associated with these amendments. I do not know whether or not Senator Marshall knew that Mr Bandt in the other place was going to bring in the last amendment. I hope he did not know, because I see it as a deep insult to this place, particularly, given the objectives under Odgers,as this amendment was brought in after this committee had concluded its work. Of course, this is the pay-off money. This is the money that allows two parties to settle behind the scenes in a manner which otherwise would have been seen as illegal should it be the subject of the regulator. This legislation must be terminated. (Time expired)

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

This has been a passionate debate. Debates in this place regarding the regulation of workplaces usually result in raised voices and furrowed brows but the fact which has been overlooked in this debate and which will inject some sense into this debate is that these bills deliver on an election commitment made by Labor prior to 2010. We committed to the Australian people that, if elected, we would place some of the powers of the Office of the Building and Construction Industry Commissioner into Fair Work Australia and create and Fair Work Australia Building Industry Inspectorate. It is part of a reform process that restores fairness, justice and equity to Australian workplaces. We are delivering on the commitment made to the Australian people prior to the 2007 and 2010 federal elections. That fact cannot be escaped by those opposite. We are delivering a reform agenda that provides fairness and equity in Australian workplaces.

The building and construction industry in Australia is a crucial sector of our economy. The jobs the industry generates have flow-on effects throughout our entire economy. A new building is not just about the bricks and mortar that go into its construction; a new building is about jobs, growth and productivity. The building and construction industry helped our nation through the worst of the global financial crisis. The hard work of the employees in the sector, coupled with this government's Nation Building and Jobs Plan, ensured that the Australian economy remained strong while the rest of the world faltered. Yes, employees in this sector are often union members but they are hardworking and dedicated. Unfortunately, as usual, when it comes to regulations providing fairness and equity in workplaces, those opposite oppose them because of their blind negativity and because they want to see the continued use of unjustified and unfair laws against construction workers—laws under which employees can be gaoled for simply attending a union meeting or for simply refusing to be interrogated by the Office of the Australian Building and Construction Commissioner without a lawyer present, laws under which employees lose rights which every other employee in our community takes for granted, rights which are a symbol of our democracy. They are simple rights that we all expect to be afforded to us when confronted with complicated legal issues—simple rights that were taken away by the Howard government in its relentless attack on the rights of workers and trade unions in this country. And those simple rights are always on the chopping block when the Liberal and National parties come to government and enforce their ideological bent against workers and their terms and conditions of employment.

On 31 March 2009, retired Federal Court Judge Murray Wilcox delivered his report to the government on matters relating to the building and construction industry and the inspectorate. This bill gives effect to the principal recommendations contained in the Wilcox report. The bill at its core is about putting balance back into the building and construction industry, to provide a framework for cooperative and constructive relations between employers and employees and at the same time provide fairness and justice for building workers in this sector. It is a framework that will allow employers, employees and unions to constructively engage in enterprise level negotiations and, as the title of the bill suggests, make a transition to a Fair Work system. The bill will ensure that information, advice and assistance are always available to everyone involved in the building industry, meaning that employers and employees know their rights and responsibilities and all aspects of relevant laws.

The current Office of the Australian Building and Construction Commissioner is a body that needs to be replaced with a new entity that is part of the Fair Work system. The bill will replace the ABCC with the Fair Work Building Industry Inspectorate. This inspectorate will provide the bedrock for constructive industrial relations in the building and construction industry. The bill provides effective means for investigating and enforcing relevant workplace laws whilst at the same time balancing the rights of building industry participants through the provision of appropriate safeguards in relation to the use of the building inspectorate's enforcement powers.

That means that the new inspectorate division will still have wide-ranging powers to investigate unlawful activity but, importantly, the people involved in the investigations will have reasonable legal protections whilst they are investigated and recourse if they are unfairly treated. This is a simple measure that will mean that people who work in any aspect of the building and construction industry can no longer be hauled down to the ABCC office and be forced into interrogation without the ability to request legal representation.

Australia is a democracy, a country that cherishes liberty, justice and fairness for all. Our workplace laws must reflect these principles no matter what industry a person chooses to work in. This bill contains those relevant protections and principles.

The bill also contains an amendment passed by the House of Representatives that will prevent the director or an inspector of the Fair Work Building Industry Inspectorate from commencing or continuing civil legal proceedings in a court where the matter of the subject of the hearings is reasonably and appropriately settled and discontinued by parties other than the inspectorate. This is consistent with civil practices under the civil law jurisdiction in this country. This provision means that those involved in the building industry are not subject to multiple proceedings in relation to matters that have already been discontinued and settled.

A critical test of this legislation is whether or not it strikes the right balance and whether or not it promotes growth and productivity in the building industry. But also the Senate needs to consider, in examining this legislation, whether or not workers engaged in the building industry will have fairness in their workplaces. It needs to consider whether the industrial umpire, Fair Work Australia, backed up by the building industry inspectorate will ensure that workers' rights and employers' rights are fairly and appropriately administered throughout the building sector. This bill does just that.

The new Fair Work Building Industry Inspectorate will be headed by an independent director appointed by the minister. The director will manage the operations of the inspectorate and will not be subject to oversight or control by other statutory office holders. Importantly, the bill also creates an advisory board to make recommendations to the director on the policies and priorities of the building industry inspectorate. The board will be made up of key industry stakeholders.

The building industry inspectorate will enforce the building industry's compliance with the general law as prescribed in the Fair Work Act. While building participants will be subject to the same penalties as other workers, Mr Wilcox recommended that the need to retain the existing coercive examination powers was proven, and the bill does just that. Those coercive powers will be maintained for a period of three years, at which time the powers will sunset, subject to a review of their operation.

The significant safeguards associated with the use of the powers also included in the bill are, firstly, that the use of the powers is dependent upon a presidential member of the Administrative Appeals Tribunal being satisfied that a case has been made for their use; and, secondly, that persons who are required to attend an interview may be represented by a lawyer of their choice, and their right to claim legal privilege and public interest immunity will be recognised. Those fundamental human rights that we cherish as a democracy will be restored to building workers in this country. Thirdly, persons required to attend an interview will be reimbursed for reasonable expenses and, fourthly, all interviews will be videotaped and undertaken by the director or an SES employee. Fifthly, the Commonwealth Ombudsman, importantly, will monitor and review all interviews and provide reports to the parliament on the exercise of this power. And sixthly, as I said earlier, the powers will be subject to an appropriate sunset period after three years. These protections that are built into the use of the coercive powers are fair and reasonable and ensure that those unfair practices that have occurred in the past will no longer occur in the Australian building and construction industry.

Not content with attacking workers' rights throughout the term of the Howard government, in this debate the coalition seems destined to repeat the mistakes of the past. Constant attacks on the Australian union movement and the hardworking men and women who choose to be trade unionists and members benefit no-one, and they certainly add nothing to the public debate.

This legislation restores fairness and equity to Australian building workers whilst at the same time promoting growth and productivity in a vitally important sector of our economy. On that basis, the legislation must pass the Senate, and I commend it to the chamber.

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

There was clearly a need to establish the Office of the Australian Building and Construction Commissioner, the ABCC. That need was clearly demonstrated by the Howard government established Cole Royal Commission into the Building and Construction Industry. It was necessary to stem continued lawlessness and thuggery on the country's building sites. It was necessary in order to protect, in particular, small businesses, small contrac­tors and construction industry workers.

Despite the protestations and shrill accusations of those opposite, one of the major objectives in the establishment of the ABCC was the protection of those very building and construction workers the Australian Labor Party would have the country believe they are going to protect by neutering the ABCC. The Labor Party claim they are about protecting those workers as opposed to their collective organisations, as opposed to the unions which supposedly represent and seek to protect and further the interests of those workers—rather than the interests of the union officials in charge of those unions.

Sadly, we are unlikely to hear the truth about the reality of lawlessness and thuggery on building sites and about the reality of that playing against the interests of workers—because most, if not all, of the members opposite have at some time been serving officers of one or another industrial organisation. They get it that, in order to feather their own nests in the past they needed—and in order to feather the nests of today's union officials they continue to need—to promote the supposed achieve­ments of those organisations. It is also very convenient to keep the members of those organisations from realising the truth about who is working for whom.

In that context, it is no surprise to hear from members opposite that they consider the ABCC to be nothing but a tough cop on the beat, acting against the interests of workers and against the interests of unions. What a lot of poppycock. Those of my colleagues who have spoken previously in this debate responded very clearly to Senator Cameron's concern that no-one on this side seemed to have stood up for the interests of employees. No-one on this side, according to Senator Cameron, seemed to have talked about employers doing wrong in this sector. Had members opposite cared to be honest about the findings of the building industry royal commission, they would know very well that a large raft of the commission's findings about misconduct and inappropriate behaviour on Australia's building sites went to the complicity of employers in that behaviour. As my colleague Senator Back rightly pointed out, the coercive powers of the building and construction cop were able to be used, and were legislatively specifically directed at being used, against employers and management. In fact, they have been so used on countless occasions. There has also been a long list of court cases in which the ABCC has included employers and management in its prosecutions. Of course we cannot expect to hear that sort of truth from members opposite.

With respect to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012, it was one thing to have the Senate committee consider a bill designed, in any event, to downgrade the cop on the beat to, as Senator Abetz said, a toothless tiger—reducing it to a building inspectorate within Fair Work Australia. That was one thing. But it is quite another thing to then have presented to this place an amendment cobbled together in the lower house by the Labor-Greens alliance—an amendment which has not been subject to any scrutiny by a Senate committee—which effectively says that, if an alleged perpetrator of illegal behaviour on a building site reaches agreement with another alleged perpetrator or with a victim of that illegal behaviour, the new building inspectorate is stopped dead in its tracks from either investigating or prosecuting the allegedly illegal behaviour. It is stopped from doing so even if it is part way through pursuing such an investigation or prosecution. That of course would have prevented any prosecution in respect of the West Gate Bridge in Victoria.

The unions in the building and construction industry are past masters at settling court issues on the steps of the courthouse. That is their pattern of conduct. There will be no incentive for that to happen and little likelihood of public justice for illegal behaviour given that we now have legislative encouragement—not just legislative protection but legislative encouragement—to do dirty deals on the side. Even before the Cole royal commission, this sort of behaviour was happening. As Senator Abetz says, those with deep pockets, those with money, will be encouraged to do deals again. And those with muscle, industrial muscle, will exercise it. That occurred before the Cole royal commission but never, either before the Cole royal commission or during the life of the current Australian building and construction commission, has there been legislated encouragement for the reaching of deals to allow those involved in allegedly illegal behaviour to escape investigation and potentially prosecution. It is bad law; it is crazy law. Why is this government being, arguably, crazy brave in an environment where the unions in the construction industry are already emboldened by the Labor government's promise and continued legislative attempts to neuter the construction cop? What is this government thinking?

Senator Thistlethwaite attempted to place great store in the suggestion that for this bill this government have a mandate. That is pretty cute, because of course they have busted their mandate on the carbon tax, they have busted any myth that there might have been a mandate for the mining resources tax, but on this bill Senator Thistlethwaite seems to say that the Labor government have a mandate. How can you have a mandate for a bill that was amended at the eleventh hour with an amendment not spoken of by this government at any time prior to the bill's passage through the lower house? And it was not even discussed at that time. Indeed, so little spoken of is this dirty deal, this Labor-Greens inspired amendment, that thus far, following all the attempts by the coalition to expose the amendment to scrutiny, with all the opportunities that members opposite have had to speak in response to the coalition's concerns, with all the opportunities—limited as they are by the gag—that members opposite have had to speak on the debate on this bill, not one of them has attempted to defend the indefensible contained in the amendment snuck through the lower house at the eleventh hour. They know they cannot defend something that is indefensible. I challenge the remaining government speakers to open their mouths and defend the guts of an amendment that says that even if there is on Australian building sites a sniff of illegality, of thuggishness and of lawless behaviour—in an industrial sense, of course—and even if the neutered and watered-down building inspector goes and has a look, if the perpetrator and the victim reach a deal then that is to be the end of it. I challenge any of the remaining members opposite with the opportunity to speak to defend the guts of that dirty, dirty amendment.

Where is the government going to stop with this triumphing of essentially commercial interests, as the Law Society has said, over public interest by allowing an agency to investigate and then prosecute where it considers fit? Where is this government going to stop? This is not just about the building industry. If this bill, with that amendment in it, becomes law, it will not be just about the building industry—all of a sudden it will be about workplace relations. Does this government seriously say that if, for example, where the Fair Work Ombudsman is investigating an underpayment—perhaps a deliberate underpayment—by an employer of one or more of its workers, this novel principle they are establishing could then be extended to saying, 'Well, if that employer then pays off his or her employees then the Fair Work Ombudsman should be stopped from investigating and/or prosecuting'? I would love to hear Senator Marshall and Senator Cameron say yes to that. Does this government seriously suggest that the likes of the ACCC, the likes of ASIC and the likes of the Australia Taxation Office should be in this situation? It is not just about building industry workplace relations law; it is not just about workplace relations law—it is about the law that is the fabric of the country.

Senator Thistlethwaite, in attempting to justify the taking away of what are currently the construction industry cop's coercive powers, suggested that this bill brings those powers into line with the fabric of civil law around the country. If it is good enough to neuter the interrogative powers of the construction industry cop, why is the principle not good enough to apply to the rest of the provisions of the bill? Why is it acceptable as far as this government is concerned to have a provision that is unprecedented in law in this country; that has the Law Society saying it gives precedence to commercial interests over the public interest? This government has been conspicuous by the failure of any one of its members to attempt to justify the guts of the amendment.

Let me finish on this so-called mandate. Prior to the 2007 election Minister Gillard said:

We want to make sure that no one is engaged in improper conduct in the building industry, whether employer, union or employee.

As I have said before, that was a myth. This bill is not sticking to that promise—and the myth is busted. How is a bill which allows a side deal enabling parties to sidestep alleged illegality making sure that no-one is engaged in improper conduct in the building industry? When she said it in 2007 she might have meant it but it is clearly exposed now as a myth that is busted. In the Prime Minister's second reading speech, she said:

…a nyone who breaks a law will feel the full force of the law.

Not if you can reach a side agreement to settle. It is a myth and it is busted. But she was frank enough to say:

I am also disappointed; disappointed that there are still pockets of the industry where people think they are above the law, where people engage in intimidation and violence.

She knows that that continues to exist in the building and construction industry, as do members of the Senate Education, Employment and Workplace Relations Legislation Committee, who had their extremely brief inquiry, two hours, into this bill. The committee majority—that is, of course, the government members on the committee—offered:

… the committee majority accepts Mr Wilcox's assessment that despite progress, the culture of the building and construction industry is still transforming.

Even then they accept Mr Wilcox's report to that end. They went on to say:

The bill before the committee is aimed at driving cultural change in the industry through a carrot and stick approach: rewarding good behaviour and focusing compliance measures on areas where it is needed.

How can the members of the committee still say that? I suggest that they cannot because of course since writing that report Labor and the Greens agreed in the lower house to the amendment which will stop dead in its tracks any investigation and any potential prosecution by the now toothless tiger—or as Senator Abetz says, the toothless mouse—the so-called building inspectorate, because there has been a side deal to that effect.

As for that amendment, where is the support from industry? Of course, there is none. Where is the support from unions who will be even more emboldened if not encouraged to reach these deals? That support, I suggest, has been very muted—once again, try and defend the indefensible. But what Mr Noonan, secretary of the CFMEU, has said are words to the effect: 'It makes a bit of sense, because it could save taxpayers' money in there no longer being an investigation or prosecution.'

That stands totally at odds with the independent Law Society's assessment, 'Look at it the other way around. If an investigating authority has already started to investigate and is perhaps part way through prosecuting, it is a waste and a mockery of the spend of taxpayers' money to shut the door, to stop those investigations, to stop that prosecution dead just because the perpetrator, one or more of, or the perpetrator and a victim have reached a deal about the alleged illegal conduct.' It is indefensible and that is why members opposite are so silent about it.

The Prime Minister, in continuing to make her now broken election promises, also said:

… there should be absolutely vigorous, hard-edged compliance and no tolerance at all for unlawfulness—

on building and construction sites in Australia. That is what she said in her summing up speech about this bill. How is it allowing parties to agree to settle their differences when an investigation or a prosecution can be stopped dead in its tracks? How is that no tolerance at all for a breach of the law? She also said:

Each and every breach of the law is wrong and each and every breach of the law should be acted upon.

No—poppycock; it cannot be. It can be papered over by a side deal between the perpetrator, one or more of, or the perpetrator and one of the victims to a wrongdoing. This is not a mandate. This is not a bill underpinned by a mandate. This is a bill that exposes the Prime Minister's promises as myths and they are busted. A Prime Minister and a government that cannot keep their promises should not be able to keep government, and this bill should not go through this parliament.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am delighted to have the opportunity to make this speech in your presence, Acting Deputy President Cameron. I tend to be a fairly positive person. I am a glass half full person. I must admit I am finding it extremely depressing at the present time to be involved in the development of so many dissenting reports against the actions of this government—the alleged policy develop­ment of this government. I like to think that, how ever misguided, the Labor Party believe that it is acting in the national interest when it develops laws. I fail to see in any way how this law qualifies for that decision. If we look back at the reason for the establishment of the Australian building and construction commission, we are talking about the Cole royal commission, which was put together by the Howard government, admittedly. It produced a 23-volume report. It was a royal commission. It could call witnesses, force people to appear and subpoena. It had the same rights as any court in terms of protecting those witnesses.

This was not set up by the Howard-Costello government on a whim, although I suspect there may be some in your party, Acting Deputy President, who think it was a union witch-hunt that prompted the establishment of the Cole royal commission. It was set up because there was endemic corruption, violence and intimidation within the building and construction industry in Australia which was hurting workers in the industry and employers in the industry, and because of the effect it was having on productivity it was hurting the entire country. I know that some union bosses might have thought productivity meant doing a deal that says, 'I will not hold any stop-work meetings on your building site, if I suddenly discover that a holiday house is being constructed for me at Lorne.' That sort of activity actually went on. That might have been the union boss's idea of productivity but it was not the idea of the employers and it was not the idea of the workers, who in most cases were just as ignorant as everybody else of the corruption and the intimidation that was going on within the building and construction industry. That was not only harming workers but also driving up prices for construction in Australia. It was a situation that had to be dealt with and dealt with firmly. It had to leave everyone who was responsible for violence or intimidation of any sort, whether that be worker or employer, with the strong impression that the full force of the law would be used against them if they did not stop their illegal behaviour.

We had the 23-volume Cole royal commission report. We then had a change of government and Mr Murray Wilcox QC's 103-page report, with very few witnesses called—a general overview for which I suspect the last line already had been written before the inquiry even happened. Yet, even Mr Wilcox, whose riding instructions were clearly on behalf of the union-dominated Labor government to water down the powers of the Australian building and construction commission, could not bring himself to say that the industry was fixed and that all our problems within the building and construction industry had been solved. Mr Wilcox, the government's appointee, said in his report on page 14:

…the ABCC's work is not yet done. Although I accept there has been a big improvement in building industry behaviour during recent years, some problems remain. It would be unfortunate if the inclusion of the ABCC in the OFWO led to a reversal of the progress that has been made.

Mr Wilcox is dead right. There are problems remaining; there is work that still needs to be done; there still needs to be further improvement in behaviour in the building industry. But what do we have here? The Labor government—which likes to somehow suggest that the coalition is wedded to the interests of millionaires and billionaires—is doing exactly the bidding of its union bosses to the detriment of everybody who works in the building and construction industry, to the detriment of every family that wants to put up a house, to the detriment of every small business person building an office or a shop or a factory. They will all be harmed by the attempts of this government to simply kowtow and slither along on its belly to please the union bosses who put it there.

Senator Fisher spoke earlier about some of the promises that Ms Gillard made in relation to the Australian building construction commission. Of course, that was back in the days when she was trying to pretend that she was not a left winger. I am not quite sure what she is trying to pretend she is not at the moment. She said:

We want to make sure that no-one is engaged in improper conduct in the building industry, whether employer, union or employee.

This is a statement that we on the side of the coalition would support 100 per cent. We also want to make sure that 'no-one is engaged in improper conduct in the building industry, whether employer, union or employee'. We agree with one of Ms Gillard's outings as Prime Minister when she said:

Anyone who breaks the law will feel the full force of the law. I am also disappointed that there are still pockets of the industry where people think they are above the law, where people engage in intimidation and violence.

Well, there are still people engaging in intimidation and violence in the construction and building industry. We do not have to look any further than the head of the CFMEU, Dave Noonan, to discover intimidation and violence. Under the ABCC there was illegality by the CFMEU at the West Gate Bridge construction site that was under the control of John Holland Group. That 'fracas' was settled between the CFMEU and John Holland and yet the Australian building and construction commission went ahead, prosecuted the matter and got a record $1.325 million fine for 52 separate breaches by CFMEU bosses and people they had under their control on the West Gate Bridge work site.

What on earth is there in this piece of legislation to stop the CFMEU from not just continuing that behaviour but also escalating it? There is nothing in here. As you have quite rightly pointed out, Mr Acting Deputy President Cameron, it is not just unionists that this legislation should be addressed to, and particularly workers are the last people who should suffer from this legislation, but also it is the union bosses and the employers who are, in many cases, as culpable by agreeing to illegal payouts, little side deals, corrupt and bribing behaviour to get peace in their industry. Certainly, that was one of the first issues that the Cole royal commission had to deal with: the intimidation of people who wanted to tell the truth to that commission and the secrecy that went on, with little deals that had been done between rich union bosses and rich building services. And the only people that were getting hurt were the workers and the poor consumers, who were in the end having to pay for that problem. We still need a strong cop on the beat. We must have a strong cop on the beat.

I would like to talk briefly about some of the comments made recently by the Leader of the Opposition in relation to this legislation—and this is the legislation before we got the little surprise amendment that the Labor Party and the Greens cooked up at the last minute. Mr Abbott, in speaking to a building industry function, said:

… I want to tell you, ladies and gentlemen, the Coalition will support the ABCC with every breath in our political bodies.

That is quite true. That is what we will do. We are not going to do that because we are anti union or anti worker or anti employer; we are going to do that because we think that is the best and safest course for the national interest.

An honest, transparent, accountable building and construction industry where workers, bosses and union representatives treat each other with respect and accept that they can negotiate solutions to problems is what this country needs. That is what we need. But a toothless mouse, as Senator Abetz suggested, will be produced by this government's legislation. I imagine we will lose the vote to stop this legislation going through, because I think the Greens might even be to the left of the Labor Party in terms of pixie-land views on economics and red rag views on employers. But as our leader, Mr Abbott, has said, we will restore the ABCC at the first available opportunity and we will do this to restore vigour to the commercial construction industry so that we do not have a lawless and poorly productive building and construction industry.

I was interested to note that in the same speech the Leader of the Opposition was moved to a little sarcasm. I do not know that sarcasm is something that I have associated with him before, but he was making the point that, if we are looking at Fair Work Australia—the ABCC in its new incarnation as an arm of Fair Work Australia—I do not think we can be entirely comfortable that there will be vigorous prosecution. We certainly cannot be comfortable, from their history, that there will be speedy investigation. Mr Abbott said that what will be replacing the ABCC:

… will be the Fair Work Australia culture and we have had some insights into the Fair Work Australia culture quite recently, as we have watched the investigation of the Health Services Union and my fear, if the ABCC is replaced with an arm of Fair Work Australia, is that illegalities in your industry will be pursued and extirpated with the same vigour, the same relentless, remorseless vigour that we have seen brought to the pursuit, an extirpation of rorts, rackets and rip-offs inside the Health Services Union and we know that the investigation of rorts, rackets and rip-offs by Fair Work Australia into the Health Services Union is now into its fourth year …

Once again we have a Labor record which gives you no encouragement whatsoever that fairness, good management, transparency or accountability will be used in pursuing the quite relevant needs for a stable working environment in the building and construction industry.

There are two provisions that were of interest to the coalition in the 30-second investigation—I am exaggerating, but not much—that was held by the government dominated Senate committee into this bill, which I would like to speak about briefly in the last few minutes I have. Firstly, the bill allows for the coercive powers of the ABCC—which of course it shares with a number of other organisations, such as the Crime Commission and ASIC—to be switched off. The coalition went looking for where the background, the rationale, the reasoning for doing this was. It certainly was not in the recommendations of Justice Wilcox, despite the fact that he had written the government organised report. During the inquiry of the Senate Education, Employment and Workplace Relations Committee into the bill, we asked the department where the requirement that the coercive powers of the ABCC could be switched off came from. Senator Abetz said, 'It was not Mr Wilcox who wanted it. The unions had not talked about it. The employers had not wanted it. Yet it is in the bill.' Senator Abetz then quite rightly asked, 'So who wanted it?' Poor old Mr Willing was obliged to say:

This issue was covered quite extensively in the last hearings. The department at that point advised that it was an issue which was raised with the department by government—by the minister's office at the time. Among the technicalities is that the minister's office raised the proposal in broad terms with the department. Between the minister's office and the department, the clause as it stands was developed and implemented.

So we have the now Prime Minister, the then minister for workplace relations, coming up with the bright idea that would stop the ABCC having coercive powers—when they are in the mood. No regulator, from the police in any state, from ASIC or from the Fair Work Ombudsman, should be stopped from taking proceedings to protect the national interest or society's interest just because the parties have come to a commercial settlement. The Labor-Greens inspired amendment on this basis simply allows pay-off money to flourish. This is the core of the Labor-Greens amendment, the shameful amendment that has been proposed for this legislation.

In Papua New Guinea, the use of payback, whereby one clan might collect funds to pay off another clan when they have injured one of its members, has a very long and very honourable tradition as a way for tribes, without the rule of law, to settle disputes between different groups. I would have thought in Australia, in 2012, that we would be past the need for payback systems that only happen when there is no truly established rule of law. But, of course, why would we be surprised to have that taking place when warring union tribes, driven by union bosses and subservient ministers, are involved in driving government policy, irrespective of the sense or intelligence of that policy? (Time expired)

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

I am pleased to add my voice in opposition to this atrocious piece of legislation that replaces a successful organisation that has brought peace, prosperity and progress to the building industry with an organisation which, on recent history, will have no ability to do that. Fair Work Australia is the most enormously misnamed group in Australia at the moment. Anything fair about that organisation I am still yet to see, and I must say that most Australians share my cynicism of that particular group. You have only to look at the way they have mishandled—and, one would think, almost institutionally covered up—the investigation into Labor member, Mr Craig Thomson, over alleged impropriety and use of union funds to realise that anything under the control of Fair Work Australia is not going to do much for peace, order and good governance of the building industry.

The Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012, which is before us, represents another capitulation to the union movement by this government. Indeed, this government is principally made up of union bosses and union heavies, with little experience in life and little understanding of what is good for Australia. Do not get me wrong, Mr Acting Deputy President, I have nothing against unionists; in fact, a number of my friends are unionists. A number of unionists are members of the Liberal Party and their numbers are increasing, I might say, even though the number of unionists throughout Australia continues to fall as people realise that the unions are only interested in union bosses and their jobs rather than what happens to the workers at ground level. You only have to look at those lowly paid workers in the Health Services Union to understand that their bosses are not interested in good conditions for lowly paid workers—they are interested in their own conditions in brothels and in attending flash dinners.

Mr Acting Deputy President, I do not want to put you at a disadvantage in the chair, so no names mentioned here, but when I say that union bosses and heavies are only interested in their own jobs, I am aware that an old mate of mine, former Senator George Campbell—a very good contributor to this Senate and to great debates here—was stabbed in the back by a mate of his and served for only six years in this parliament. One would wonder how that helped the interests of those workers in the union that former Senator George Campbell represen­ted. You can understand how it helped those who replaced Senator George Campbell. I do not know whether this is true, but I read in the paper that Senator George Campbell's replacement got a job as a director of one of these top-end-of-town superannuation companies. I do not know what the salary is for a director in one of these top-end-of-town superannuation companies, but—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Become a member and then you can ask.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

Sorry? Become a member? Do you mean I could apply for one of those top-end-of-town jobs. I am interested in asking the particular senator who was involved. Now that he is free to defend himself, I can name him—Senator Doug Cameron. I ask Senator Cameron what he received as a director of one of those superannuation companies.

Senator Cameron interjecting—

Senator Cameron says 'Absolutely nought'. I see there is a court case going on in Victoria, where a union delegate was on one of those boards. The union rules required that any fees that a unionist got on a board went not into the pockets of the particular unionist but back into the coffers of the union. That particular person was allegedly—I do not know the rights and wrongs of this; it is only what I read in the paper—pocketing the money and his union has sued him for its return. Senator Cameron tells me by way of gesture that he was not receiving anything, and I accept that. Perhaps he was getting something and giving it to the union. Whichever it is, one wonders about the interest that union bosses and leaders have in their members. Again, I can only refer senators to the Health Services Union, where nobody can tell me that the lowly paid workers who are members of that union got anything from their bosses.

Debate interrupted.