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Wednesday, 3 December 2003
Page: 23609


Dr EMERSON (1:41 PM) —The legislation before this parliament today—the Building and Construction Industry Improvement Bill 2003 and the Building and Construction Industry Improvement (Consequential and Transitional) Bill 2003—essentially is designed to weaken the bargaining power of those workers in the building and construction industry who choose to be represented by trade unions. That is what it comes down to in the end. There is a very complex set of provisions in this legislation, but they are all designed to make it harder for workers who choose to be represented by trade unions to achieve their aspirations for secure pay, working conditions and safety.

The legislation before us establishes two new regulatory bodies: the first is the Australian Building and Construction Commissioner and the second is the Federal Safety Commissioner. The legislation severely restricts legally protected industrial action, therefore making most industrial action unlawful. The legislation limits the right of trade unions to enter work sites and it imposes severe penalties for unions and officials who contravene any of these or related provisions. Finally, the legislation enhances access to damages for unlawful conduct. The bills taken together propose a highly regulated approach to an industry—a one-size-fits-all approach—when, in fact, the industry varies a great deal in different states and territories. Curiously, this government is fond of its deregulatory rhetoric, saying that the best outcome for the economy and society tends to be a deregulated system, yet this bill is chock-full of regulation and restrictions.

We know that, if these bills were passed, the government would seek their extension to other industries. How do we know that? The former Minister for Employment and Workplace Relations, now the Minister for Health and Ageing, let the cat out of the bag. I found it really quite difficult to track down transcripts of the statement that he made when he introduced an exposure draft of this bill for discussion in the parliament earlier on. But I do recall that, in response to a question as to whether, if this particular bill passed, it might be extended to other industries, the minister said he would be stupid not to consider doing that.

In letting the cat out of the bag, the minister has revealed that the government's agenda is to use this legislation as a stalking horse to allow these sorts of provisions to prevail on the statute books and then gradually widen them to other industries. That is the caper, that is what the minister is up to, and he did let the cat out of the bag. For that very reason, I say to all workers around Australia, whether they are construction workers or workers in confectionery factories or workers in just about any industry in this country, that they have an interest in this legislation. The government's agenda is plain and clear: it wants to use this legislation as a stalking horse to extend the provisions to other industries.

If we need any further evidence of that, we need only look at the second wave of industrial relations legislation in 1999, which failed because the Senate—in its wisdom, in this case—decided that there had not been sufficient time for the first wave of industrial relations legislation to be fully tested in workplaces around Australia and that this second wave crashing in so quickly behind the first wave was unacceptable and would flood over the top of the remaining rights of working Australians to bargain collectively and to get a fair go in their negotiations with employers.

In respect of the full second wave of industrial relations legislation, the Senate said, `No, we will not pass that, because it is crashing to shore too closely behind the first wave.' The government came to appreciate that it had no hope of getting this second wave of legislation through in the one large bill, so it decided to break the one large bill up into smaller bills so that each bill would `lap to the shores' and perhaps the Senate would not notice them or would not consider each bill too offensive. But, of course, if they were recombined into one bill they would be found unacceptable.

This has been the government's tactic ever since. That is why I have said in this place before that the government has a total of a dozen bills sloshing around in the parliament—the small components of the second wave of industrial relations legislation—and each is designed to weaken the bargaining power of working Australians and to strip away the hard-won and long-held working conditions and wages of working families in this country. So that is what the government did. The government broke it up into 12 bills—the `dirty dozen' bills—and this legislation is the 13th bill. It is specific to one industry, the building and construction industry, but it contains the same provisions that were brought into the parliament in 1999 for the whole second wave of industrial relations legislation.

So, in addition to the 12 bills sloshing around the parliament, which apply to all industries, the government has brought in a 13th bill that applies to this industry, and that is why it is a stalking horse. The government is trying to do it two ways; it is trying to convince the Senate on two grounds. Firstly, with the 12 bills, it is saying that if we pass each and every bill in succession, perhaps no-one will notice that, combined, they constitute that large second wave. On a different stream, in relation to this legislation, the government will seek to apply all the important provisions of the second wave to one industry in the hope that the Senate will say: `This isn't too bad. It just applies to one industry, the building and construction industry, and there've been a few problems in that industry, so maybe if we apply it just to that industry there won't be any great harm in it.' That is the government's aspiration but, fortunately, all indications are that the Senate has wised-up to that caper and is not going to allow that happen. Certainly, I can say on behalf of the Australian Labor Party that we will oppose this legislation in its entirety.

The government sought to use as a pretext for this legislation—as an excuse for it and to gather some power behind it—a royal commission. The royal commission, under Commissioner Terence Cole, was established by the government way back in August 2001 and it reported on 24 February 2003. As I indicated, an exposure draft on the principal bill was released on 18 September 2003. The government provided four weeks for interested parties to lodge submissions relating to the draft but on the day the minister spoke in relation to the bill, in a tabling statement, he revealed that, yes, this bill would effectively be a stalking horse for other industries.

What is contained in this legislation? Certainly it applies beyond construction sites. In establishing a case that this government is seeking to expand the operation of this legislation beyond the building and construction industry, I think it is very important to note that the legislation's very broad definition of `building work' includes parts of the manufacturing sector, particularly those industries that manufacture made-to-order components used in the building industry. I know that the Australian Industry Group has expressed concerns in the past about the broadening of the coverage of this legislation into the manufacturing sector and beyond what would ordinarily be regarded as the building industry.

The bills establish the Australian Building and Construction Commissioner and the Federal Safety Commissioner. The ABCC is described as an industry watchdog. Its role is investigation, enforcement and prosecution designed to achieve `lasting cultural change'. It is starting to sound like George Orwell, isn't it? `Lasting cultural change' is straight out of the Ministry of Love and of course that other famous ministry, the Ministry of Truth. Inspectors from the ABCC will have broader powers than current inspectors have, including the right to summon witnesses for questioning. It certainly highlights the concern—indeed, the conviction—we have that this is not in fact to be an industry watchdog but an attack dog. The Federal Safety Commissioner is supposed to monitor and enforce health and safety on Commonwealth funded projects, but we express a concern that the Federal Safety Commissioner will reduce the capacity of both unions and occupational health and safety bodies in the states to regulate occupational health and safety on building sites.

The legislation severely restricts the taking of industrial action. These legislative aspects are really the second wave legislation that I spoke of applying to the whole of the Australian economy but in this case being applied to the building and construction industry. The provisions are really very restrictive. They establish so many technical hurdles that it would be almost impossible to take legally protected industrial action. Of course, if you legislate to the effect that working Australians represented by a union cannot take industrial action, then you take away just about all of their bargaining power. If you take away their bargaining power, that ultimately allows employers to have much stronger bargaining power than the employees, tilting the bargaining table very heavily in favour of employers, which has been this government's practice since it got into power in 1996. In particular, all industrial action would have to be preceded by a secret ballot to be lawful. A valid secret ballot would be extraordinarily difficult to achieve in this industry, given the 30 pages of attached requirements, including approval by the Australian Industrial Relations Commission. Separate ballots would have to be held for union members and non-union members participating in the action. The bills also provide for cooling-off periods of 21 days that would follow 14 days of industrial action, even if these 14 days are not consecutive.

The bills would also make pattern bargaining impossible. They would prohibit it, and injunctions could be made stopping such pattern bargaining. The Industrial Relations Commission would have greater power to suspend or terminate bargaining periods, thereby ending lawful industrial action. This is consistent with one of the bills that this government brought into parliament—the 14th bill in fact, so there is no shortage of them—which is the Workplace Relations Amendment (Better Bargaining) Bill 2003 and which this minister is personally sponsoring. That bill was introduced into parliament on the very same day that the Building and Construction Industry Improvement Bill 2003 was brought in, and it too would effectively remove the capacity of working Australians to take industrial action. Madam Deputy Speaker—I am sorry, I should have said Mr Deputy Speaker; Mr Deputy Speaker is horrified, as he should be—



Dr EMERSON —Mr Deputy Speaker, I am sure that the comment of the member for McMillan is not accurate.


The DEPUTY SPEAKER (Mr Jenkins)—The honourable member should ignore the comment from the honourable member for McMillan in this case.


Dr EMERSON —I am trying very hard to. The legislation increases penalties for unlawful action. It reflects the provisions of another one of the dirty dozen bills, the Workplace Relations Amendment (Improved Remedies for Unprotected Action) Bill 2002, which is currently before the Senate and is opposed by Labor. This bill applies increased penalties for unlawful industrial action, as yet another one of the dirty dozen bills does, the Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003, which is currently before the Senate and is also opposed by Labor. Industry participants are explicitly able, under this legislation, to recover any losses they suffer due to unlawful action and the usual 72-hour period that precedes an employer being allowed to commence a tort claim in respect of industrial action is removed. The existing prohibition on strike pay is strengthened. There are severe restrictions on the right of entry by unions; a range of new restrictions would be introduced. For example, to talk to workers a union official must have given notice to both the employer and the ABCC at least 24 hours prior to entry. The bill exempts decisions made under this legislation from the operation of the Administrative Decisions (Judicial Review) Act. There have been a number of changes since the exposure draft: some narrowing of aspects of the definition of building work, strengthening of freedom of association provisions, removing the minister's capacity to direct the ABCC and the FSC on individual cases and, finally, extending right of entry provisions to work sites covered by state industrial relations systems.

This legislation is unacceptable to Labor because it is in fact the second wave of industrial relations legislation that failed in the Senate but is applied in this case to a specific industry. The government thought that, if it could identify an industry where there have been some difficulties in the past—and we all acknowledge that—then the Senate, and parliament in general, might see merit in this legislation. We do not see any merit in the legislation, and for that reason we are not only opposing it but moving a second reading amendment which would condemn the government for bringing this legislation into parliament and for weakening, so systematically over such a long period of time, the bargaining capacity of working Australians to protect and enhance their pay and working conditions. So we say no to these particular bills and we say no to the government's dirty dozen bills. When I was first appointed to this portfolio, I said that if legislation on industrial relations were brought into this parliament it would almost certainly be against the interests of the working men and women of Australia, and on that basis we would oppose it. My prophesy has been fulfilled. There are now in this parliament 14 industrial relations bills all designed to weaken not only the bargaining capacity of working Australians but also their very right to be represented by a trade union in this country. This is a right that working Australians have had for more than 100 years, but this government does not like it and the Prime Minister of Australia, in a speech to the Business Council of Australia, recently boasted about his achievements in this regard. I will have a lot more to say about this when the debate resumes.


The SPEAKER —Order! As it is 2 p.m., under standing order 101A the debate is interrupted. The debate may be resumed at a later hour and the member for Rankin will have leave to continue speaking when the debate is resumed.