Wednesday, 4 March 2015
Building and Construction Industry (Improving Productivity) Bill 2013, Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013; Second Reading
I rise in continuation of my speech on this bill. I was describing the concerns that both the Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights had in relation to the problems with this bill about trampling civil and political rights.
Personal rights and liberties will be trampled by clause 72, which provides for authorised officers to enter premises without a warrant. It is a cornerstone of justice and civil rights that a warrant issued by a court should be the basis on which authorities can enter premises. The fact that the explanatory materials accompanying the bills do not contain a compelling explanation for a departure from this principle demonstrates in the clearest terms that the government can find no justification for it. There is the question of whether the provision in clause 86, that the rules of evidence and procedures for civil matters applying in relation to the civil remedy provisions is consistent with rights associated with a fair trial, particularly when the penalties available under the bill are at the criminal penalty end of the scale. In relation to the main bill, the Parliamentary Joint Committee on Human Rights noted:
In relation to the main bill, the statement of compatibility does not include information and data which is necessary for an assessment of the human rights compatibility of the bill. On various occasions, the statement of compatibility and the explanatory memorandum make assertions or statements of fact which are not demonstrated by reference to supporting data
The use of assertion, anecdote and allegation, as the government has done, without evidence, does not satisfy the requirement that the curtailment of human rights in Australia must be in pursuit of a legitimate objective.
These bills largely mirror the 2005 legislation that established the former Australian Building and Construction Commission. The supervisory committees of the ILO, the tripartite Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations found that the 2005 legislation breached Australia's international obligations in respect of provisions that rendered some industrial action unlawful, the imposition of penalties and sanctions on workers and unions that engaged in industrial action, the unenforceability of project agreements, the National Code of Practice for the Construction Industry and associated guidelines, the investigative and enforcement powers of the ABCC, the absence of proportionality with respect to offences prescribed under the act, and the focus of the ABCC on investigating and prosecuting workers and trade union officials.
These bills repeat the breaches of Australia's international obligations that were found in the 2005 legislation. The opposition firmly believes that no legitimate objective exists that would warrant the interference with human rights and Australia's international obligations on the scale contemplated by these bills. The committee notes that any human rights engaged by legislation must be proportionate to the objective and 'limitations on rights must go only as far as necessary to achieve a legitimate aim.' The analysis provided by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights demonstrate the disproportionality of the limitations to be placed on human rights by these bills. They provide ample evidence that the bills should be opposed in their entirety.
The government claims that the ABCC's earlier incarnation in the building and construction industry caused productivity growth in the industry of unprecedented proportions. The claims of enhanced productivity caused by the ABCC are based on reports prepared and endlessly recycled by Econtech and Independent Economics. They are not supported by the evidence. They are made on the basis of deeply flawed analysis that has not withstood scrutiny by academic and business economists and, recently, appraisal by the Productivity Commission in its draft report on public infrastructure. When you lose the Productivity Commission on this agenda, you have really lost the argument. They have been produced for the sole purpose of propping up the original flawed findings of the Cole royal commission and the case for the existence of the ABCC and its coercive powers. They do not provide a credible economic case for the re-establishment of the ABCC. The Productivity Commission concluded about the latest Independent Economics report:
… as it stands [it] should be given little weight.
The Productivity Commission has said that the arguments put forward by the government on this issue should be given little weight. The Productivity Commission considers the assumptions and the conclusions reached by Independent Economics and makes the following observations:
First, no judgment can be made about the effects of the FWBC from the data currently available. There is only one year of data and the conclusion ignores the fact that, even during the ABCC period, relative costs sometimes rose.
Second, over a longer period, the link between the IR regimes and productivity is not robust.
Third, even if the IE numbers were robust, concluding that IR is the exclusive factor explaining the trend fails to consider a range of rival explanations and considerations.
The Productivity Commission concludes its analysis by stating that Independent Economics results are:
… 'neither reliable nor convincing indicators of the impact of the BIT/ABCC', and cites the views of major business consultants who have also expressed doubts about the findings …
You are going to have government senator after government senator quote these findings, the findings that have been destroyed by the Productivity Commission, the findings that have been destroyed by independent economists. I again quote the Productivity Commission:
Major business consulting firms have expressed doubts as well ... For example, Allen Consulting argued in a report to the Business Council of Australia:
It is not feasible to link the size of the productivity shock to definitive evidence of recent performance. Events that have given rise to concerns about industrial relations unrest are too recent to appear in economic statistics.
Proponents of the ABCC have been unable to answer the detailed criticism of the assumptions and methodology adopted by Econtech and Independent Economics. Despite this, supporters of the ABCC, including the Prime Minister, the Minister for Employment and employer organisations, continue to use the reports as their fallback in support of these draconian laws.
As if to compound its errors, the government cites the domestic cottage construction industry as a model for efficiency and industrial relations practice in the commercial construction sector. However, recent reports from the Fair Work Ombudsman's audit program show the terms and conditions of people working in the domestic building industry are routinely and comprehensively undermined by employers. These contraventions include noncompliance with hourly rates of pay, allowances, record keeping and pay-slip obligations. The figures were particularly damning for apprentices employed in the domestic building industry. As the Fair Work Ombudsman notes:
Apprentices are usually young workers, in their first job and may be unaware of their rights.
The audit of 164 employers in Victoria showed that only 6.1 per cent of employers were compliant with regard to the pay, terms and conditions of their apprentices. Figures from the Tasmanian domestic building industry audit show similar noncompliance across the sector, again in relation to the most vulnerable employees: apprentices. The audit showed that there is a culture of noncompliance in the domestic housing sector in relation to the proper payment of awards and conditions of apprentices. The Victorian figures are startling in that 93.9 per cent of employers are acting outside the law in the domestic building industry. I note that the Fair Work Ombudsman revealed at budget estimates that they will be conducting two significant national compliance audits this year.
The opposition will be looking very carefully at the outcome of those audits in the building industry, on which the future of the commercial building and construction sector, according to the coalition, should be modelled. Unlike the existing act, the bill does not require the ABC commissioner to apply to the Administrative Appeals Tribunal for an examination notice. However, the ABC commissioner must still provide a report, videorecording and transcript of the examination to the Commonwealth Ombudsman, who must then review the examination and provide annual reports to parliament. Effective oversight of the former ABCC and the FWBC and the proposed re-establishment of the building commission is essential.
The former ABCC was subject to no oversight. It had unprecedented coercive powers to conduct compulsory examinations and we found, only through budget estimates, that it botched every single compulsory examination notice under the stewardship of the then director, Mr Lloyd. Every one of the 203 compulsory examination notices issued by the ABCC under Mr Lloyd, from its establishment to November 2010, were invalid. There can be little confidence that without adequate oversight the ABCC's extraordinary powers will not be misapplied if not misused.
In his review of the former ABCC, former Federal Court judge Murray Wilcox strongly recommended oversight of the ABCC's coercive powers. Mr Wilcox recommended that the compulsory interrogation powers should be retained but with necessary safeguards. Those safeguards are in place now. The government wants to get rid of them. The bill's provisions are a significant watering down of the safeguards that currently exist. The proposition that the Ombudsman will provide adequate oversight will be largely ineffective.
In his submissions to the committee inquiries into the establishment of the ABCC, the Commonwealth Ombudsman made it clear that his ability to effectively oversee the use of the ABCC's coercive powers would be minimal. The ombudsman anticipates an increased workload if these bills are passed. He said in his submission to the Education and Employment Committee that this would not be an appropriate position, because the power to issue notice and conduct examinations is exercised properly. To ensure that we can— (Time expired)
Across Australia today, thousands of Australians took to the streets to protest the government's attack on their wages and conditions. They are standing up for their rights at work, and the Greens are proud to stand with them. The Building and Construction Industry (Improving Productivity) Bill 2013 is part of the government's war on workers. It seeks to single out a section of the workforce—building and construction workers—and remove some of their fundamental rights. The government says it is interested in productivity and alleged unlawful activity on building sites. But their real agenda is clear. It is to weaken one of the most strongly unionised sections of the workforce.
This legislation is intended to bring back the draconian Australian building and construction commission. The government's arguments for the ABCC are based on flawed modelling of productivity in the industry. Its proposed powers are extreme, unnecessary, undemocratic and they attack civil liberties. This legislation ignores what is already in place, the Fair Work Building and Construction agency, which was put in place by Labor, despite the opposition of unions and the Greens. Labor's Fair Work Building and Construction agency, which replaced the former ABCC, already has very strong powers to deal with any unlawful behaviour in the industry. Further powers are not needed.
The real agenda here is to attack and weaken unions so that the government can bring back Work Choices. The Prime Minister has been waging an ideological war on workers for some time. Just this week we have seen the attempts to strangle unions in red tape and attacks on seafarers and mature workers. But the Prime Minister has form that goes back a long way when it comes to attacks on the building and construction industry. It was the Prime Minister—then the Minister for Employment and Workplace Relations—who, in 2001, called for the Cole royal commission into supposed criminality, fraud and corruption within the building and construction industry. But after 18 months and $66 million of taxpayers' money, the Prime Minister's expensive political stunt failed to produce one single criminal conviction. Investigation of crime, let alone organised crime, is a matter for the police, not for the ABCC. However, we had the Prime Minister and his ultraconservative backers continuing their failed crusade 15 years later.
The Australian building and construction commission's proposed powers include unfettered coercive powers, the power to conduct secretive interviews and the power to impose imprisonment on those who do not cooperate. These bills will arm the ABCC with powers to deny people the right to be represented by a lawyer of their choice. The ABCC will have powers to interview people in secret and to deny them the right to silence. In fact, previously when the ABCC was in operation it even prohibited people from disclosing that they had been interviewed by the commission, even when they had done nothing wrong. I do not know about you, but that sounds like something that I would expect in Russia or China not Australia. Nicola McGarrity and Professor George Williams from the Faculty of Law at the University of New South Wales have said:
… the ABC Commissioner's investigatory powers have the potential to severely restrict basic democratic rights such as freedom of speech, freedom of association, the privilege against self-incrimination and the right to silence.
Not only does this bill revive the ABCC but it is extends its scope. It extends it beyond its former reach into picketing, offshore construction and the transport and supply of goods to building sites. The government did not come clean on this before the last election.
The government's argument for the ABCC is based on flawed modelling and evidence. It relies on a series of reports from Econtech, trading as Independent Economics, that were first commissioned by the ABCC at public expense and were later recommissioned by the Master Builders Australia as a political tool to push for the reinstatement of the ABCC. On 28 August 2013, the Fairfax federal politics fact checker found the Prime Minister's claim of $6 billion a year in savings in productivity and consumer costs in commercial construction to be mostly false. Previous Econtech reports have been dismissed by economists and academics for their mathematical errors and flawed methodology. They were totally disregarded as evidence by Justice Murray Wilcox in the ABCC inquiry. They were even removed from the ABCC's own website. Econtech's main argument is that costs are higher in the commercial building sector than in housing because of the higher number of union members in commercial building. As the CFMEU has said:
These geniuses have no understanding that building a single villa is a completely different undertaking from a multi-storey office tower.
Econtech's 2007 report, which purported to demonstrate that the ABCC had been effective in bringing about significant reform and improvement in the building and construction industry, was analysed in the report written by David Peetz, Cameron Allan and Andrew Dungan. Their report was appropriately titled 'Anomalies', damned 'anomalies' and statistics: construction industry productivity in Australia. The report concluded:
The great gains for construction industry arising, it was said, from the near equalisation of costs in the commercial and domestic residential sectors that was attributed to the ABCC have disappeared, like a mirage on the horizon.
Their analysis went on to say:
This close analysis of the Econtech data raises serious questions about the nature of regulation in the building and construction industry. Alleged economic benefits, used to justify denial of basic rights to employees in the industry—rights which everybody else is, at least at present, entitled to enjoy—are based on discredited cost data. In short, there do not appear to be any significant economic benefits that warrant the loss of rights involved in recent arrangements.
It is clear that the Abbott government has no facts to backup its claim that a revived ABCC will improve productivity and, even if it did, the question remains: at what cost, to the lives and working conditions of workers in an industry that faces many challenges in terms of safety?
We know that during WorkChoices and the ABCC under Prime Minister John Howard, fatalities for construction workers doubled to almost five deaths for every 100,000 workers. We have clawed the rate back since then, but the government seems to want to undo all this good work. Fatigue and stress are major contributors to workplace accidents and deaths. Safe conditions and good working conditions save lives. Fatality rates on major constructions are four times higher than on general construction projects. One construction worker dies at work every 10 days in Australia and 37 construction workers are seriously injured at work every day. We are talking the lives and the wellbeing of Australian workers, but the government seems hell-bent on waging this ideological attack.
Another aspect of this bill puts in place a building code, a draft of which has been released by the government.
Let us be very clear: in 8,465 words of prescriptive red tape, the government's proposed new building code strikes at the heart of the Australian way of life, undermining the fair go and basic human rights. The code's impact on working hours, job security, incomes and living standards, injuries and fatalities, opportunities for apprentices and older workers will devastate family life and our communities. It prohibits clauses in the construction Electrical Trades Union agreement that, among other things, guarantees a day off for Christmas and Easter, discourage discrimination against older workers, and ensure the rights of workers to have a safe workplace. The code represents the most extreme intervention into the conduct of private business ever seen in Australia and threatens crippling penalties on lawfully operating companies.
Much of the justification for the building code is based on the claim that there is a productivity problem in the construction industry. Yet a recent report by the Australia Institute reveals that productivity has never been higher in the industry and that there has been a large shift in incomes towards profits and away from workers. In reality, the code is an ideological attack on more than one million hard-working Australians that will undermine productivity.
The Greens will oppose this bill and we will oppose the government amendments. We urge the Senate to reject the bill.
I rise to support the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013.
The government is committed, as it said leading into the 2013 election, to doing all that is necessary to reform the building and construction industry and to reinstate the rule of law in this critically important sector to our country. The government wholeheartedly believes that workers deserve the right to go to work each day without fear of being harassed, intimidated or being the subject of violence. The former Labor government, led by the now Leader of the Opposition, Mr Shorten, undermines confidence in the building and construction industry, particularly in the states of Victoria and my home state of Western Australia. Abolishing the ABCC saw a return to the lawlessness, which I intend to point out in my contribution, and an increase in the number of days where work is simply not being done in the industry to the loss of workers, employers, productivity and, of course, taxpayers, who largely fund most of the major construction projects.
We just cannot afford to have a building and construction industry that is inefficient and that is unstable. We must have the restoration of the ABCC and its code to support the work that is critical for reform in this country. The contents of the bill reflect this commitment. I make the point that with the massive investment in infrastructure now underway and into the future, which is going to completely transform this country in its cities, in its regions and in its rural and remote areas, there has never has been a more important time for this to take place. The industry represents some eight per cent of GDP, equivalent almost to the mining industry in our country. The industry can be an incredibly important source of sustainable high-paying jobs with skills development and long-term employment prospects.
When the ABCC first existed, the building and construction productivity increased 10 per cent, the economy gained $5½ billion a year, we saw inflation reduced and we saw GDP go up. All of those stats are critically important to everybody in our community. As you know and as we all know, when projects are delivered on time and on budget there is more money for more projects. There is greater confidence in the industry, there is greater pride and there is greater investment from both Australian and, of course, international companies. Everybody benefits, but, more importantly, the Australian taxpayer, the economy and the consumer all benefit. Conversely, when there are undue delays, budget blow-outs, time overruns and cost overruns, we all know what the impact of that is: confidence goes, future prospects of projects decrease and nobody is the winner.
The bill of course re-establishes the ABCC so that we will have a genuinely strong watchdog to maintain the rule of law, to protect workers, to protect construction contractors and to improve productivity even further. The point needs to made that, whilst the focus of previous speakers has been on employees and workers, the ABCC will be equally directed towards rogue employers in the industry. We recognise of course that we want to be rid of them, as we do other rogue participants. We want to encourage further investment. We want to provide more jobs. We want to make sure there is prosperity for workers and for the economy. All of us as taxpayers in this country should surely want to see that we get the best value for the taxpayers' money.
The bill will prohibit unlawful industrial action, unlawful picketing and coercion and discrimination. Penalties that are high enough to provide an effective deterrent will apply. I will address those in a few moments, because we have seen breaches of the provisions at will at the moment, by some of the rogue operators and unions. An active regulator will be established to have a range of effective remedies to counter unlawful behaviour through the courts. We are not talking about the normally operating industrial climate. We are not talking about the normal commercial relationships between project managers, project controllers and their workforces. We are talking about coercion. We are talking about failure of the rule of law. The Cole royal commission examined it in 2003 and noted that the construction industry was characterised by unlawful conduct. Commissioner Cole concluded:
These findings demonstrate an industry which departs from the standards of commercial and industrial conduct exhibited in the rest of the Australian economy. They mark the industry as singular.
Furthermore, he concluded:
… the rule of law has little or no currency in the building and construction industry in Western Australia.
The building and construction industry in Western Australia is marred by unlawful and inappropriate conduct. Fear, intimidation and coercion are commonplace.
I heard the previous contributor, Senator Rice, speak about criminal charges as a result of the royal commission. It was never in the terms of reference of the royal commission to prefer criminal charges. So why do we have this trotted out so often about a commission whose role was to examine, to determine and to come up with recommendations? It was not there to come up with criminal charges.
Even the Labor Party in government acknowledged the need for a special regulator. The problem was that, having come into government, having been at the beck and call of the militant union the CFMEU, it still took them from 2007 to 2012, around five years, to eventually get rid of the ABCC—because they knew very well that it was necessary and important. So indeed did Justice Murray Wilcox. He stated very clearly the need for regulation in this industry over and above other industries in the Australian economy. What we saw the then Labor government do was to replace the ABCC with a toothless pussycat—not even a toothless tiger. It was without teeth and had temporary powers that were drafted—and this is interesting, because the Senate needs to address itself to this—to automatically sunset at the end of May this year. That is in less than three months time. So the Senate has got to make a decision.
And it was only recently that the Heydon royal commission commented about:
… the culture of wilful defiance of the law which appears to lie at the core of the CFMEU.
That was from a recently retired eminent High Court Justice of Australia.
Mention was made by the previous contributor of Econtech. I am not going to quote from Econtech. I am going to quote from the Australian Bureau of Statistics, which I think most of us in this chamber would recognise as being an independent assessor and judge of data. I am going to quote from the ABS statistics for the June quarter and the September quarter of 2014. We will not, until 20 March this year, have the figures for the December quarter, but these are the figures we have. In all industries in the June quarter, there were just under two days lost per 1,000 employees in all industries—1.9. But for the construction sector—Senator Rice will be interested to know, as she says there is no significant difference between different industries—the figure for the June quarter was 6.1 days lost. These are ABS statistics—not Econtech, not CJ Back but ABS statistics. Let me go to the September quarter. In all industries in the September quarter, the last one for which we have figures, the figure was 2.4 days lost per 1,000 employees. In the construction sector, the figure was 18 days lost per 1,000 employees. I reckon that is a pretty significant difference—6.1 days lost in the June quarter, trebling in the September quarter to 18 days lost. The construction sector accounted for some 56 per cent of the total working days lost in that quarter, and the number of days lost was 750 per cent higher than all industries. I reckon there really is an issue that has got to be addressed.
There is one table that says it all, and it is one that we all need to focus on. If we were to give all industries a baseline of 100 per cent, I will then explain to you again Australian Bureau of Statistics data. In the pre-ABCC days, between September 1999 and December 2000, if all industries' baseline was 100 per cent, that for the construction sector was 480, 4.8 times higher. This is the interesting statistic that I would suggest people focus on. We then go to the years of the ABCC, January 2006 to June 2012. If the figure for all industries is again 100 per cent, do you know what it was for the construction sector, Mr Acting Deputy President? It was 1.3 times that—130. So we have dropped from 480 to 130. And guess what happened under the Fair Work Building and Construction agency, from July 2012 to September 2014. Remember, the original figure was 4.8 times and it went down to 1.3. Put your money on it, Mr Acting Deputy President: she is back up to 420 again. Those are the ABS stats—through you to Senator Rice, Mr Acting Deputy President. Those are Australian Bureau of Statistics figures.
In the home state of some of our senators, Victoria, I refer to the work of the CFMEU in September, I think, of 2012, not long after the abolition of the ABCC. We saw the militancy and violence demonstrated by that union, but what is interesting here for me, as a person who has been an employer for many years and has been an employee in both the government sector and the private sector, is that the workers on the Grocon Myer Emporium construction site themselves, being blockaded, put an advertisement in the Herald Sun newspaper with an open letter. Who was it to? Grocon? Myer? The Australian government? No. Do you know who it was to? It was to their own union bosses, asking them to stop the blockades and give them access to their own workplaces. This was within months of the ABCC ceasing to exist and the toothless pussycat replacing it. It was not the employer—it was not Grocon. It was not the construction contractors. It was not the wider community. It was not taxpayers. It was not the police, whose horses were kicked. It was not they who put the ad in; it was the workers themselves who asked their own union bosses whether they could please go back to work. And in this place we hear the sort of commentary from those who are opposed to the reinstitution of an organisation that will stop that happening.
On 4 September 2012—this is the degree to which control had been lost, with much of the Melbourne CBD closed down—we had the senior CFMEU official Mr Christopher addressing a crowd of over 1,000 protesters on Lonsdale Street with a megaphone, with fewer than 100 officers present. This is what he said: 'There's 11,000 coppers in this country or in Victoria. There's 30,000 members of the CFMEU—greater amongst the other unions when we call on their support—so we're up round the 50,000 mark. So bring it on. We're ready to rumble.' That is what we are dealing with in an industry that contributes more than 10 per cent of the GDP of this country—one which is a tremendous employer, with ongoing work over many years because of the commitment of this Abbott government to infrastructure projects. That is what we are working with.
We have had, as I said, Commissioner Heydon making reference to wilful defiance. We saw the ACCC investigation of the CFMEU boycott against Boral, in which 'ACCC Chairman Sims was confronted by the culture of silence and fear of reprisal that is a feature of the building and construction industry'. That is not my statement. Mr Sims made the comment:
… the ACCC has only been able to progress the investigation by compelling people to give evidence… Compulsory powers are necessary to break this culture of silence and shine a light—
those are his words, not mine—
on the intimidation, thuggery and fear of reprisal that has darkened the industry.
There have been comments about the need and the power to compel people to give information. For the information of all of us, and maybe those who are listening to this, you have the ACCC, which has these compulsory powers. You have ASIC. You have the Australian Prudential Regulation Authority, APRA. You even have Medicare, which has compulsory powers similar to those proposed by the ABCC. And as we know, of course, we have in this new iteration of the ABCC the requirement for the Commonwealth Ombudsman to report in the event of there being recordings of interviews with people who are required to answer. It has been said this afternoon that the Ombudsman does not think he has the power. Again, the Ombudsman is a statutory officer who appears before Senate estimates and will be required by this place. I have no doubt that all 76 of us have the capacity to ensure that the Ombudsman is up to the task. I have no doubt at all about that.
As we know, when the then Labor government abolished the ABCC to appease the CFMEU, it also slashed the maximum penalties for breaking the law by two-thirds. Where is this strong cop on the beat that I heard about a few minutes ago? This, of course, just encouraged the CFMEU to continue defying the law. Then we had that wonderful little situation that, if two parties actually settled an issue before the regulator had an opportunity to deal with it, of course the matter had gone away. The analogy, of course, would be that someone runs a red light and causes serious damage to another person, but one sorts it out with the other one behind the scenes and, when the police go to prosecute, they say, 'Oh, no, we've sorted all that out, thanks very much; we've done a deal.' Come on. That is not the way that we engage in industrial relations in this country. That is not the way that we are going to continue to get the confidence of the whole sector, the taxpayers of this country and those who invest, be they Australians or others.
Senator Rice's comments to you and the chamber, Acting Deputy President, are interesting. We recently had the situation in her home state of Victoria with Boral, the CFMEU and the Regional Rail Link project. It is one I know she and her party would be tremendously interested in, and yet we saw—
Time is not going to permit me, tonight, to make any comments on the shameful and ridiculous and hopeless and horrific and cowardly attack on Mr Nigel Hadgkiss by Senator Rhiannon, in this place, last night. I do attend, in adjournment, to pick up on that particular case. In a sense, I thank Senator Rhiannon for drawing attention to herself. A more shameful, more disgusting or more cowardly attack on an official without the opportunity to respond—a person with incredible skill, capacity and background—I have not seen. It was shameful. I will leave that for another time.
I return to efforts by the CFMEU to block the company Boral out of the opportunity to participate in construction contracts. If ever there was a case where the ABCC, in its new iteration, needed to encompass transport and off-site activities, look no further than Boral and its evidence to the Hayden royal commission. (Time expired)
Thank you, Mr Acting Deputy President Bernardi, and thank you also for sitting in the chair longer than your roster for me. I rise tonight to put Labor's position on our opposition to the Building and Construction Industry (Improving Productivity) Bill 2013.
Before I go to the very stark and obvious wrongs of this bill, I want to talk about the ABS stats that were quoted by Senator Back. Senator Cameron said in his address that government senators would use the very discredited Econtech report, and we will wait to see if they do. The government certainly relied on it during the hearings we had on this bill. They also decided to use ABS stats. Never let truth get in the way of a good story. What they tried to prove, by using those ABS statistics, was that somehow the construction industry was out of control. They tried to leave the public with the impression that these were unauthorised lost days, but when questioned during the hearings that we had to explain the ABS statistics, what did we find? We found that they were almost 100 per cent due to protected industrial action.
For people who are listening or watching and do not really understand the Fair Work Act, when unions and employers are bargaining there is an ability for unions to conduct a ballot and ascertain—if the negotiations are not going very well—whether members would be prepared to take forms of industrial action. It is perfectly legal and absolutely permitted under the Fair Work Act. That is what those ABS stats represent. They represent protected industrial action. That, I believe, was in the evidence presented at the hearings by the department—when we went to explore and unpick those stats that the government tried to hide behind and give the impression of an industry that was out of control.
Labor senators do not see the merit in this bill and oppose it in its entirety without amendment. The government has completely failed to establish an economic or productivity case for the ABCC. The government has failed to address the very serious incursions on human rights in the bill. The government has failed to establish the uniqueness of the building and construction industry, sufficient to warrant such draconian powers and penalties. The government has failed to establish that the coercive powers proposed for this second incarnation of the ABCC are subject to sufficient oversights and safeguards, and the government has failed to establish that the ABCC would improve occupational health and safety in the building and construction industry.
On that last point, you would think the government really did not care about occupational health and safety in the building and construction industry. It is one of the industries in Australia that has the highest rates of death—an appalling statistic. It is a tough industry, by the definition of the ACT report into safety in the construction industry, and yet it is one where the Abbott government has been completely silent.
I must say that during Senate estimates I questioned the Federal Safety Commissioner and Safe Work Australia about the construction industry, and the very best they could tell me was that they put together a 10-year plan. When I put to them that we had some 28 deaths in the construction industry last year and that deaths were on the rise—by their own admission; by their own statistics—they told me that deaths had risen. I asked them whether, surely, it was time to revise a 10-year plan. They said that there were no plans to do that.
I find it absolutely incredible that here we have an industry that is crying out for regulation, but that regulation is about what is happening on building sites that cause so many workers to die. Imagine kissing your family goodbye in the morning and then dying at work. I cannot imagine the tragedy that families suffer when their loved one goes off to work, whether it be a son or a daughter or a husband or a wife. No Australian worker should be dying at work. And yet all we hear about from the Abbott government in relation to the construction industry is the demonising of the CFMEU and some of the officials of that union. We never hear about what a tough industry it is and what a high number of serious injuries and fatalities it incurs.
I am yet to hear the Prime Minister or Senator Abetz say anything constructive—anything at all—about their plan to reduce the number of fatalities that we have in the construction industry and to make it a safe workplace. We do not hear that at all.
Despite re-establishment of the ABCC seeming to be essential for this government when it took power, the coalition has certainly taken its time in bringing it back to the Senate. At the end of 2013 when we as senators encountered this unnecessary bill, the government attempted to push it through the Education and Employment Committee, of which I am the deputy chair. But it has taken another 15 months from that hearing to resurface on the radars of those opposite. When we as senators were first asked to vote on passing the bill in 2013, only a very small part of the parliament's scrutiny of the bills had been completed while, at the same time, the government and the supporters of the re-establishment of the ABCC were calling for this Senate effectively to abandon its role and simply pass the bills with minimal scrutiny.
The legislation committee was given a mere 18 days—18 days!—in which to consider the bills and produce its report. Submitters were given only eight days to make submissions on a wide range of very complex matters, and there was only one public hearing—just one public hearing—on 26 November 2013, which was of a duration of just 3½ hours. Just 3½ hours were available for the committee to receive evidence on increased penalties, increased powers and increased coercion—just 3½ hours. The government does not want this bill to have any real scrutiny—that was its plan at that time.
Since that time—in fact, a year ago now—the Senate Standing Committee for the Scrutiny of Bills has assessed the legislation and the Parliamentary Joint Committee on Human Rights has tabled their second report of this parliament, which raised very serious concerns that the bills to re-establish the ABCC involved the limitation, curtailment and extinguishment of a wide range of civil, human and political rights of people working in the building and construction industry. Yes—you heard that correctly—in Australia, that is what the Abbott government wants this parliament to do: to curtail absolutely the rights of a small section of our workforce, to treat them like third-class citizens and to take away their rights in Australia, which is a fair-go country.
Both of those committees wrote to the Minister for Employment seeking detailed evidence to support the government's assertion that the interference with human rights contained in the bill is necessary, reasonable and proportional. As far as I am aware, the government has yet to provide responses to the concerns of either of those committees.
I do hope that the senators of the Palmer United Party, Senator Lambie and other crossbench senators can hear what Labor senators have to say on this bill. I am aware that the Palmer United Party senator, Senator Wang, had a very constructive meeting in my home state with UnionsWA. I hope that meeting was enough to assure Senator Wang and his fellow Palmer United Party senator, Senator Lazarus, that the bill is a political ploy set up by an ultraconservative, anti-union government to take away the rights of thousands of workers.
Workers in the Australian building and construction industry are not thugs—and that statement is not even something that the government argues with. The government does not claim that all workers in the building and construction industry are thugs. In fact, the government does not even claim that half of them are. The government is putting up this legislation to go after a handful of union officials and delegates who it believes need to be reined in with such draconian legislation. They are not criminals and they are not different from other workers. This is simply an anti-union push from the coalition that sets up harsh and special rules for one type of worker just so they can attack the Labor Party, the ACTU and the CFMEU, and paint their members as criminals of some kind.
As we know, criminals will go where they think they can make a profit, including the security industry, the heavy-haulage industry, the liquor industry and the banking and financial services industry, to name just a few. Any argument that these laws will quell organised criminal activity in the industry is well and truly displaced. The ABCC has no power in relation to criminal matters, and the argument that it can address that issue is deliberately misleading and entirely a political ploy.
It is the Cole royal commission that proponents of the ABCC claim provides the legal, intellectual and policy rationale for the existence of the ABCC in its pre-2012 form and for its re-establishment. This is the very royal commission set up by the Howard government that spent $66 million—$66 million!—of taxpayers' money, had just one prosecution in the criminal jurisdiction and the findings of which were deeply flawed. It gave rise to a cottage industry of economic modelling and reporting from the supporters of the coalition, anti-union movement, almost entirely devoted to propping up the Cole royal commission's flawed productivity analysis.
If people are committing crimes—and let me make this clear; this has been said by Labor senators and MPs over and over again—and if there are allegations of serious crimes, we have a police force to deal with those and union rules that will expel them. Let those already charged with the responsibility for those who break the law get on with the job. We do not need further overlapping jurisdictions. The Fair Work Act 2009 already regulates rights and restrictions of protected industrial action. The rate of disputation has not increased since the ABCC was abolished, and again this is not Labor's data; this data is direct from the ABS. Any additional rules are unnecessary, unjustifiable and an attack on working Australians.
Even the title of the bill is misleading and misleads Australians. They call it the 'improving productivity bill'. The bill will not improve productivity. The government when naming this bill relied on data from Independent Economics, formerly trading as Econtech, and it is inherently flawed. It was interesting that at the hearings we had in 2013 the government relied heavily on that information, which was absolutely discredited during those hearings. It has been proven incorrect—in fact I would say demolished—by the respected academic Professor David Peetz.
The claims of enhanced productivity caused by the ABCC based on reports prepared by Econtech and Independent Economics and recycled endlessly are not supported by the evidence. The alleged 9.4 per cent improvement in construction industry productivity attributed to the last incarnation of the ABCC is not even a finding of the 2013 Independent Economics report. This is a modelling assumption made up and only drawn from estimates of the preceding reports and not a finding. It was not a finding of the 2010 report tabled to the committee from the same company, nor the 2008 report coalition senators relied on to assume this improvement in productivity. Any representation that this is evidence demonstrating the success of the ABCC is neither accurate nor appropriate. As Senator Cameron said and I will repeat, it will be really interesting to see if the government relies on the absolutely discredited information, whether it is from the old or new names of Independent Economics or Econtech, again in this place.
Proponents of the ABCC have been unable to answer the detailed criticisms of the assumptions and methodologies adopted by Econtech and Independent Economics. Despite this, supporters of the ABCC, including the Prime Minister, the Minister for Employment and employer organisations, continue to use the flawed and discredited reports as a bedrock argument in support of this draconian bill.
The proposition that the bills would enhance productivity in the building and construction industry is highly objectionable given the evidence my Senate colleagues on the committee and I have heard. It is long past the time for the government to seriously address the health and safety issues in the construction industry. In fact, as I said earlier, the only points that the government raised in relation to health and safety are again to attack the unions. We have heard in this place, in the media and in the other place, that when the government speaks about this it claims that the CFMEU uses its rights to inspect safety as some kind of hoax to get onto sites. I do not know how that can be justified when we have an industry which has one of the highest workplace death rates in this country—that a government would stoop so low as to suggest that union officials and others use safety as some kind of mask to get on site. The independent statistics on workplace deaths in the construction industry speak for themselves, and it is long past due for government to look at what regulation is needed to ensure that people go to work in the morning and come home in the afternoon.
The ACT has conducted an inquiry into safety in the construction industry, and there were some 28 recommendations in the report that was produced. The ACT government has committed to introducing all of those recommendations. The report acknowledges that it is a tough industry and that there is a culture change that needs to go on, but we do not hear any of that from the Abbott government. We hear this continued demonisation of union officials under the guise of the parliament to name officials and to say whatever they like about them whether or not it is true, to make these character assassinations day in, day out, at Senate estimates, at any inquiry we have into the construction industry where parliamentary privilege applies. The government thinks it can just malign people.
It is well past time for the government to pay serious attention and look at the regulation that needs to go on to prevent workplace death. That is the issue in this sector. The issue is serious injury. The issue is workplaces which just would leave you wide-eyed if you saw the kind of danger that workers are confronted with every single day. In my home state of Western Australia we have had some truly shocking accidents in that industry.
Finally, I want to remind the chamber that Labor does not support this bill that has come up. We cannot justify its existence. I will leave it there. (Time expired)
It gives me great pleasure to rise and speak in support of the Building and Construction Industry (Improving Productivity) Bill 2013. It is indeed a topic my fellow members of the Senate Education and Employment Legislation Committee discussed at estimates last week, where we traversed these issues with the current director of the building and construction inspectorate in much detail. Senator Cameron was belligerent, almost, at times in his harassment of that public official. When we talk about safe workplaces—workplaces where people can flourish and grow and do their very best work—I would argue that treating public officials the way some of them have been treated, and particularly Mr Hadgkiss at that public estimates hearing, by the opposition is not exactly how we want to be conducting ourselves.
But this bill and the measures included in it—in terms of setting up our government's election commitment to re-establish the building and construction commission—is well canvassed. It is not a new issue. It is an election commitment we were very up-front about wanting to deliver. In fact, the education and employment committee has held numerous inquiries into this particular issue and we hear the same evidence time and time again. It does not matter whether it is the legislation committee taking evidence from unions and those involved in the building and construction industry at the coalface or employers and industry participants, it is the same evidence given. Yet the Labor Party refuses once again to respect the mandate of the Australian people, given at the last election, for a suite of election promises by the then Abbott opposition.
What we do know is that building construction is a significant industry, contributing an enormous amount to our GDP—eight per cent. That is a lot of jobs. It is a lot of apprentices. It is a lot of small businesses, when you look at small to medium self-contractors. And it underpins so many of our further productivity issues because it provides the infrastructure we need to do all the other things we need to get on with and do within our economy. We need to ensure that young apprentices, men and women, can go to work to a safe workplace—and I agree with you, Senator Lines; we absolutely want safe workplaces—and be free of harassment and bullying and intimidation. That was not the evidence we were given. It was not the evidence the Cole royal commission was given on these sites and it is not the evidence we hear time and time again in our committee. Whether it is at estimates, at a reference committee looking into the bill or at a legislation committee looking at the bill, time and time again we hear of these incidents of intimidation and bullying by union members.
We hear of right-of-entry permits being signed by unions where it is very clear that the person they have vouched for is not a fit and proper person. Yet the union organisation either supports somebody who has a criminal record getting a right-of-entry permit—they know about it and do not worry about it—or, equally an issue, does not do the due diligence required to ascertain if they are a fit and proper person. When we look at who we are letting into workplaces, onto sites, to meet with workers and move around very dangerous areas we want to make sure they are fit and proper people.
Effectively, right-of-entry permits are a permit to trespass. That is fine if we are looking into safety; that is not a problem. But we need to make sure they are fit and proper people. We need to ensure that oversight bodies such as the one we are proposing have the right powers to deal with this issue and get to the heart of it because we hear, time and time again, these stories of militant and threatening behaviour—and behaviour against female workers, which I find particularly disturbing. I would argue that, despite the best efforts of those around the industry, building and construction is a highly gendered workplace. We want to get more women into the workplace. We want to get them out onto construction sites becoming young apprentices and contributing to the building and construction industry as they do to so many industries. But they are not going to do it if it is a workplace full of intimidation and bullying—full of situations where people coming to check on a work site, from the existing workforce under Mr Hadgkiss, are being sworn at and having their personal details put on social media and the like.
That is the evidence we have heard. To stand there and say it is a campaign by the coalition against unions and union representation and law-abiding citizens misses the point; it misses all the evidence you have heard yourself and that our committee has heard time and time again. I am baffled as to why you continue to support that type of behaviour being acceptable in any workplace, because it simply is not. Clearly the measures we have in place right now are not adequate because it is still happening.
I want to look at why we need to return to the ABCC. What we are wanting to do is enhance the productivity of this engine room of our economy and support the industry to do what it does. We need to be looking at lost productivity through changes in industrial law and arrangements; we have seen more and more days lost onsite as a result of the Fair Work Building and Construction being set up as opposed to our original proposal and the proposal before the Senate today. For instance, there was a big spike in the number of days lost in the September 2014 quarter. In September 2014, we had 18 days lost per 1,000 employees. Across all industry, there were only 2.4 days lost per 1,000 employees. That means that small business owners who are contractors or building construction companies are losing significant manpower—let's face it, that is what it is—onsite which is significantly delaying construction and causing significant increases in costs not only for the private sector but, indeed, for government. Anybody from my home state of Victoria, like Senator Carr, will appreciate the days lost in the building and construction of the desalination plant down in south Gippsland, just out of Wonthaggi. We saw the CFMEU run rife there. To not be able to have a tough cop on the beat able to actually deal with that issue in a timely manner with real penalties is a problem.
The current industry-specific regulator advises that the unlawfulness in the industry that was a feature in Victoria and Western Australia has now spread to other states—Queensland and South Australia. So it is not just my home state. We know about the Myer Emporium dispute, where the violence spread out into Melbourne city streets. We know about the Little Creatures brewery site in Geelong, where we suffered violent disputes, where picketers were accused in court documents of making throat-cutting gestures et cetera. This behaviour is just unacceptable in the modern workforce. We should all be ensuring that nobody is subject to that sort of behaviour.
Yes, as Victorians, we are very aware—too aware, I would suggest—of the militant behaviour of the union movement, and the CFMEU in particular. We do not want the good citizens of Victoria, the good workers, actually subjected to that. Yet you will not help us put the shoulder to the wheel; essentially you are not supporting the fact that these types of unions and this type of behaviour undermines the legitimacy of unions more broadly in our social fabric and as part of our society.
Unions do have a role to play. We want to have safe workplaces and collaborative arrangements, flexible arrangements, so that all Australian workers across all industries can earn enough money to support their families, can have worthwhile and long-lasting careers and can actually participate in driving our economic development as a nation. There is a role for unions in that discussion. So, every time you have a CFMEU official arm in arm with a Comanchero, it undermines it. Every time you have a union official swearing at women, swearing at workers, bullying them on social media sites—and affecting their work practices it ensure they end up attending counsellors for their own mental health—you have to step back and ask: are we actually achieving our goals here as a conglomerate of the union movement for those opposite.
We know that when Labor abolished the previous ABCC it also slashed applicable penalties by two-thirds. You abolish it but then you also abolish the penalties for this type of behaviour. It only makes it cheaper for the CFMEU. They are happy to pay it. It is money for jam, because it helps in their spread of membership drives; it assists in the unlawful behaviour that we all know is going on and has gone on for millennia in building and construction. This particular industry, from BLF days, has been subject to this type of behaviour and does need an ABCC so that it can actually regulate and prosecute appropriately unlawful behaviour.
I have been personally interested in the Boral case in particular. The ACCC has not usually had to play a role in industrial matters. I met with Mr Sims about this at the time to ascertain why the secondary boycott behaviour that was going on, through the industrial action taken by that union, was not being examined by the ACCC as anticompetitive. He assured me that he was looking into the matter; however, the problem was that he was finding it very difficult for people to come forward and give the evidence that he required to act. That is not uncommon in these cases where bullying and intimidation occur. People do not want to have to put themselves at risk. The fact that this is occurring and undermining the good name of some unions and the union movement as a whole is very concerning.
I think what Rod Sims recently said is telling. He said that it was very difficult to get people to come forward to give evidence against John Setka and Shaun Reardon—who were both CFMEU officials and were leading the charge, if you like, against Boral. He said the ACCC had only been able to progress the investigation by compelling people to give evidence, giving them the protection they so desperately needed.