Wednesday, 15 May 2013
Regulations and Determinations
Building Code 2013; Disallowance
That the Building Code 2013 be disallowed.
The Building Code the government has sought to implement needs to be rejected. Firstly, the code was signed off by the minister without any consultation with industry stakeholders. I make that point again—it was without any consultation with industry stakeholders. One has to ask the question: why would a minister for workplace relations do such a thing without consultation? It is because he is acting at the behest of his union masters.
Secondly, the code was announced under cover of Ms Gillard's bizarre election date announcement. In other words, it was announced at a time when it was designed to get as little publicity as possible. Thirdly, the Building Code was designed to deliberately override state codes, such as in Victoria, and did so without consulting the states either.
Fourthly, the Building Code came into effect 48 hours after its announcement. Fifthly, the Building Code does not even have transitional arrangements, which all other previous codes actually had. So why weren't there any transitional arrangements in this code? Sixthly, there is now costly uncertainty as to the applicability of this code to existing projects. Seventhly, despite being a far-reaching regulation, no regulatory impact statement was prepared. Why not? I will come to that again later.
Eighthly, the code mandates compulsory arbitration, something that the Fair Work Act specifically does not mandate. Indeed, compulsory arbitration was specifically ruled out by Ms Gillard as the workplace relations spokesperson before the 2007 election. We will now, as a result, have some enterprise agreements approved and made under Labor's Fair Work Act by the Fair Work Commission which will not be code compliant.
Ninthly, there is uncertainty and confusion in the building sector because builders are now either Victorian state code compliant or Commonwealth code compliant; it is impossible to be compliant with both codes. Therefore, they are only able to tender either for state work or for Commonwealth work. But, as we all know, there are such things as jointly funded projects. So how does that work? Nobody knows because of the indecent haste with which this was rushed through.
Tenthly, the code allows for even wider right-of-entry provisions than the Fair Work Act does. This is on the back of a promise made by Ms Gillard before the 2007 election that there would be no change to the right-of-entry laws. We know that the Fair Work Act expanded the right-of-entry laws in direct breach of that promise made by Ms Gillard. If that were not enough, this Building Code now expands those right-of-entry provisions even further. So strong was Ms Gillard in her stance before the 2007 election that there would be no change to the right-of-entry laws that she said at the National Press Club that she was willing to write it in blood and even that they could take her mother hostage. So much for her mother and what she thinks of her! But the simple fact is that, despite all those protestations by Ms Gillard, she broke that promise to the Australian people. Of course, having broken that promise, it was so very easy then to also make the 'no carbon tax' promise and break it and so many other promises. That has now become the distinguishing feature of this government—namely, broken promises.
Eleventhly, there was no regulatory impact statement because the Office of Best Practice Regulation deemed none was necessary. That is a pretty good out for the government, you would have thought, but for one simple fact: when the Office of Best Practice Regulation was queried about why they came to this determination, they said, 'That is how we were advised by the government—that it was going to have hardly any impact at all and therefore it was not necessary.' So this wonderful Office of Best Practice Regulation simply relies on what the government says to it. For what it is worth, I have written to the Office of Best Practice Regulation setting out all the significant changes, uncertainty and confusion. For them to put their name to a document saying, 'There's not much of a change here, so there is no need for a regulatory impact statement,' unfortunately has embarrassed them by any objective standard. The government cannot hide behind the statement of the Office of Best Practice Regulation because it would be like relying on what they themselves have said. There was not a genuine independent assessment by the OBPR.
Twelfthly, to round out a dozen very good reasons as to why this regulation should be disallowed, the need for an effective code was spelt out by the Cole royal commission, which exposed illegality, thuggery, intimidation and lawlessness in the building and construction sector. It heard from many, many people—workers and contractors—about the illegality, thuggery and intimidation.
And I say to those opposite: you did not have to rely on the Cole royal commission to understand that that happens; all you had to do in recent times was take yourself to the centre of Melbourne and see the Grocon dispute at the Myer Emporium building site, where thugs were not only bashing policemen but also bashing police horses, in circumstances in which the workers—who were CFMEU members—were reduced to taking out an advertisement in the Herald Sun newspaper to plead with their union bosses to stop intimidating them, because they had no problem with their employer. They were satisfied with Grocon; they thought they were being looked after appropriately by Grocon. They had no problems with Grocon. Yet the CFMEU set up a picket and used thugs to intimidate their own members. So you do not need a Cole royal commission to inform you that there is thuggery and intimidation going on.
And, might I add, this picket, this thuggish behaviour, was occurring in circumstances in which the Supreme Court of Victoria had already placed an injunction on the CFMEU ordering them to desist from the picket. So, it was an illegal picket to boot—a breach of the law, lawlessness. Yet what does the Labor Party do in the face of all this evidence? First of all it abolishes the Australian Building and Construction Commission and replaces it with this absolutely lame and weak building inspectorate. But Ms Gillard promised that we would have a tough cop on the beat nonetheless, despite the fact that its powers were diminished and the penalties were reduced. Then last night we had a situation in which this weak and lame building inspectorate had a further $24 million ripped out of it. So Ms Gillard, who says, 'No change to right of entry,' who promises, 'We will not have compulsory arbitration,' who promises that there will be a tough cop on the beat, simply breaks promise after promise. No wonder she could say with such a straight face to the Australian people, 'Oh, I didn't lie about the no-carbon-tax promise.'
Well, the Australian people are waking up to this Prime Minister and this government. Her words and their words mean nothing. They are willing to say and do anything, and this government is only being kept in power because of the likes of the member for New England, Tony Windsor, and the likes of Mr Oakeshott, the member for Lyne, who represent electorates that would be horrified to learn that they are supporters of a government that has gutted the Australian Building and Construction Commission, that has reduced by $24 million the funding to the now weak and lame building inspectorate. But it is Mr Windsor and Mr Oakeshott, along with the Greens, who are keeping this government in power—this government that breaks promise after promise without any compunction whatsoever.
In the past there was a party called the Australian Democrats represented in this place. They had a motto, courtesy of their founding leader—the former Senator Don Chipp—to 'keep the bastards honest'. Well, the Greens and Mr Windsor and Mr Oakeshott are keeping them dishonest. They are allowing the Labor Party to get away with this dishonesty. So let us have no pretence that this Mr Windsor and this Mr Oakeshott come to the political debates and the policy debates in this place with clean hands. They know that, each and every day, they are voting to sustain this dishonest government, this government that is giving succour and comfort to the extreme leadership of the CFMEU, in the state of Victoria, which breaches Supreme Court injunctions, has illegal pickets and is intimidating its own membership—intimidating workers who want to get to worksites—because of its industrial agendas.
But what else would you expect from a Labor government that has as its Minister for Employment and Workplace Relations a man who cannot bring himself above and beyond the task he used to have—namely, that of being a trade union boss. I have said before and I will say it again: we all have our backgrounds that we bring into this place, but when one accepts a commission from Her Majesty to be a minister of the Crown you have to rise above it, you have to act in the national interest. There is no doubt that Mr Shorten is unable to do so. That is why we have this litany of lies that underpins this new building code. But of course this is the man who spent literally 10 hours in the air to make a 45-minute address to the Maritime Union of Australia conference in Western Australia, which was celebrating 140 years of militancy. The warm-up speaker to Mr Shorten told the assembly that you have to break the law to achieve industrial objectives. And the minister could not bring himself to say, 'I'm sorry but, as a minister of the Crown, I can't condone those words. I dissociate myself from those statements.' He was completely and utterly unable to do so. Why? Because he is still a trade union boss first, and the national interest can come second. That is the legacy of this minister. A minister who is the most partisan workplace relations minister this country has had since Eddie Ward, who was a former Labor minister in this particular area.
This is a building code that is designed to give succour and comfort to the CFMEU. This is a union that has secretly bankrolled all sorts of organisations, including GetUp!. Were union members ever consulted about that? No. This same union, and Victoria Trades Hall, has said to Mr Shorten and the Labor government, 'You bring in compulsory arbitration before the election or we'll consider not bankrolling the marginal seats campaign for the Labor Party.' It is quite clear that, in those circumstances, Mr Shorten and this government always give in to the demands of the trade union bosses rather than doing what is in the national interest.
When Labor established their inspectorate they promised that it would be strong, that it would enforce the rule of law. Well, where was it at the Grocon site, the Myer Emporium site? Where was it at the Queensland Children's Hospital dispute, where for eight weeks no work was done on a site publicly funded to look after the health needs of the children of Queensland? Mr Shorten could not bring himself to say anything about that dispute, or visit. He could take himself up to Queensland to condemn the Newman government, but he could not bring himself to visit that site and condemn what was occurring.
What about the Little Creatures dispute or the City West Water, Melbourne dispute? The list goes on. In an environment where we have an ever-increasing number of days lost due to industrial action in this sector we see the government demolishing the Australian Building and Construction Commission and putting in this lame, limp inspectorate, then ripping out a code and trying to replace it with something that is basically a bill of rights for trade union officials. And then last night, this lame, limp inspectorate lost $24 million of funding to ensure that, just in case there was any life left in this toothless mouse, the building inspectorate, it would be squashed out of it. Roughly 20 per cent—18 per cent, to be exact—of its funding was cut in last night's budget.
Yet the government pretend, 'We are firm on this; we want to see the law enforced.' Are they honestly saying to the Australian people that this inspectorate—weak, lame and limp as it was—can still do all that it is required to do with $24 million less? Of course not. I begs the question: why did you waste that $24 million in the first place if they never needed the money? Here we have the government in a dilemma of their own making, because their members speak out of both sides of their mouths. They speak with forked tongues on this issue. They cannot be trusted on this occasion, as on so many other occasions.
I have outlined 12 reasons as to why this disallowance motion should be supported. And, might I add, each one of the 12 reasons that I have stated, of itself, is sufficient to disallow these regulations.
Senator Abetz's purported 12 reasons are not at all convincing. But why would we let the facts get in the way of a good story? Some senators here, I am sure, will recall someone who was, without doubt, the most partisan workplace relations minister in Australia's parliamentary history: Peter Reith. Senator Abetz refers to lies and forked tongues. I would refer senators to the waterfront disputes and the dogs on wharves. I would also refer senators to the 'children overboard' affair and Minister Reith's role there, when in a different portfolio to workplace relations. He certainly had a pattern of bad behaviour and is, without doubt, the most partisan workplace relations minister we have ever seen.
But the opposition have suggested that there is a militancy problem. They have also suggested that there is a flexibility problem and a productivity problem, to justify taking the Australian people back to the Dark Ages on workplace relations, although most recently Mr Abbott has sought to conceal that that is the real agenda of the opposition.
We know that the first rule of Liberal politics is not to let the facts get in the way of a good story, and that is exactly the case here. So let's run through the facts of what has happened in this area under this government, to get some clearer context. Over 960,000 jobs have been created since Labor came to office—that is, 490 jobs a day for Australian workers. And we do not apologise for prioritising jobs for Australian workers whilst keeping the economy strong and growing.
Productivity growth is superior to what it was under Work Choices. Labour productivity grew by 2.9 per cent in the year 2011-12, significantly above the 2.2 historical average since 1994-95. Productivity growth under the Fair Work Act is around triple—I stress: triple—the rate experienced under the former coalition government's disastrous Work Choices legislation. Work Choices was an example of the kind of slash-and-burn, irresponsible approach that we would return to if the opposition were elected.
Let's look at another area where myths are perpetrated by this opposition: industrial disputation. ABS data shows industrial disputation is down under this government. The opportunistic, short-term comparisons, the cherry-picking, of the opposition has missed the big picture—that industrial disputes have been trending down strongly over time. Despite quarterly fluctuations in data, industrial disputation rates continue to trend downwards from the highs seen during the Howard years. They are now around one-third the rate on average we saw under the Howard government. Importantly, in the building and construction industry—the industry pertinent to this disallowance debate—the rate is on average less than one-fifth of the rate we saw under the Howard government.
Just as those opposite may be uncomfortable with the facts I have just referred to, they are likely to be uncomfortable with the facts about the building code. There is nothing at all new around Commonwealth funds attracting Commonwealth guidelines. Those opposite know that there is nothing new about the Commonwealth setting these rules. Those opposite know there is nothing wrong with the Commonwealth setting the rules about how its money is spent. Ever since the National Code of Practice for the Construction Industry and the implementation guidelines were issued back in 2005, the Commonwealth has set rules applying to Commonwealth funded building work. So what a crock for Senator Abetz to suggest that inconsistency with the Victorian code is something that we should be responsible for—what an absolute crock!
Let's look at the code itself. The code is simple. It sets out the Australian government's expected standards for all building contractors or building industry participants who have been or wish to be involved in construction projects that are directly or indirectly funded by the Australian government, subject to certain financial thresholds. The building code commenced on 1 February this year. It is based on the most recent versions of the Commonwealth's implementation guidelines, which were released in May 2012. This was not rushed. May 2012—that is quite a long time ago.
The introduction of the code presents for the first time a single set of arrangements for contractors and building industry participants that wish to undertake Commonwealth funded work. The capacity to make a legislative instrument like the building code has been included in building industry legislation since the Howard government's 2005 legislation. But, strangely, it had never been used—despite all the rhetoric and ideology you hear from the other side, despite a legislative code being recommended by Justice Murray Wilcox when he reviewed the Commonwealth's building industry regulatory framework and despite employer and employee groups agreeing in their submissions to the Wilcox inquiry that a statutory code was a good thing.
Our building code requires compliance with the law. The code promotes the rule of law in the construction industry, and the minister is supporting the rule of law, despite some of the glib references made in Senator Abetz's contribution. The government is crystal clear on this fact—everyone should comply with the law. The code requires businesses who have tendered for work to which the code applies to comply with all relevant laws, including, for example, laws concerning right of entry, good-faith bargaining and freedom of association. In addition, the code requires contractors and building industry participants to comply with any decisions, directions or orders made by a court or tribunal which applies to them.
This builds on the work of our building industry regulator, Fair Work Building & Construction, an agency which, despite Senator Abetz's comments, is more effective than its highly politicised predecessor. Let me give you one example. The Liberals like to refer to the Grocon dispute—Senator Abetz certainly does. But Fair Work Building & Construction commenced civil proceedings under the government's fair work building laws within six weeks, and that was after thoroughly investigating that event. In comparison, it took the ABCC over six months to file a statement of claim in the Westgate dispute—a very stark comparison.
The government is committed to ensuring Fair Work Building & Construction is resourced to operate effectively, ensuring strong and appropriate regulation of this important industry. Our building code means simpler compliance for contractors. There will be less red tape for those contractors. Previously compliance with different iterations of the implementation guidelines was required. This meant that a contractor working on different projects commencing at different times would have been required to comply with different versions of the implementation guidelines that applied at the time of each project. Under the Building Code 2013, in relation to existing projects a contractor or participant who is compliant with an applicable past guideline will be treated as being compliant with the code. They do not have to take any further action in respect of their current arrangements. The code also cuts red tape by allowing building contractors and industry participants to more easily demonstrate compliance with a range of requirements, including the Fair Work Act and other legislation.
Building industry codes of practice instituted by Liberal state governments on ideological grounds following the Howard government example do not make life simpler for contractors in the building and construction industry. Instead they create confusion, complexity and legal uncertainty for industry participants. For example, the Victorian code implementation guidelines contain provisions that relate to matters already regulated by the code, by the Fair Work (Building Industry) Act and by the Fair Work Act. Whether the application of the Victorian government's guidelines and their implementation constitutes a breach of the Fair Work Act is currently the subject of two separate proceedings before the Federal Court. Those proceedings relate to important community projects such as the Bendigo Hospital redevelopment in Victoria. This does not provide simplicity or certainty for employers or contractors. It does not assist in progressing very important projects, nor does it ensure a strong building sector if key players are excluded for no other reason than this ideological vendetta that the Liberal Party continues, in the past at the federal level but now at the state level.
This motion and this debate show that the opposition will do anything and say anything on workplace relations matters. This is why I was interested to take it right back to the pattern of behaviour demonstrated by Peter Reith when he was the minister. As I said at the outset, they will never let the facts get in the way of a good story—never have, never will. They never let a good policy gets in the way of their ideology either. We saw it with Work Choices and we see it here and now. For these reasons, the government opposes this motion.
The Australian Greens have a straightforward, principled view when it comes to protecting people's rights at work. The Greens know that workers are under pressure, that many are working longer hours than they would like and that many work in dangerous workplaces. The Greens know that there are those who would seek to take away these rights and to say that someone should have less rights than an accused criminal simply because of the industry that they work in. So our principled view is this: the Greens will always protect people's rights at work, and we believe people should enjoy equal rights whatever industry they work in.
What is clear though is that the coalition's ideological vendetta against building workers continues. Last week, we heard that they will seek to reinstate the industrial secret police in the building industry, the Australian Building and Construction Commission, which will remove the right to silence and allow people to be subjected to secret interrogations—less rights than accused criminals. Today, we see another attempt to strip away minimum protections.
The code which the coalition seeks to disallow sets out some minimum standards for construction work in this country and they are standards that should be preserved. Of course, the coalition had its own code when it was in power. That was a code which effectively controlled what could and what could not be in workplace agreements. The coalition, which routinely argue for freedom of choice and letting the market decide, were actually the first ones to use their power to step in and dictate what workers and employers in construction could and could not bargain about. The current code provides at least some level of protection for those in the construction industry.
It is a great shame that we are a few weeks before the end of this parliament and Labor still has not yet seen fit to fully get rid of John Howard's workplace laws. The Greens would like to see the rule of law applied fully and fairly to all workers and the last vestiges of the coalition's laws repealed. You can trust the Greens to stand up for what is right and to protect people's rights at work. If the polls are right, we are heading for an Abbott government in September. Heaven help us if they control both houses of parliament. Today shows that the only way people can protect their rights at work is by having Greens in the Senate.