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Thursday, 18 August 2005
Page: 53


Senator WONG (12:47 PM) —The Building and Construction Industry Improvement Bill 2005 and the Building and Construction Industry Improvement (Consequential and Transitional) Bill 2005 reintroduce in part the Building and Construction Industry Improvement Bill 2003, which was the subject of some lengthy debate in this chamber. It reintroduces that legislation with some significant modifications, which I will speak about later. Labor opposed the substantively similar legislation in 2003 and will also oppose this legislation. This is fundamentally flawed legislation. It will not assist in the satisfactory resolution of industrial issues in the building and construction industry. In fact, it will have the opposite effect.

As a general proposition, Labor are opposed to creating specific jurisdictions for specific industries. It is far better to have a sensible regulatory system across a number of industries. But the government’s blind zealotry in targeting the construction industry unions requires them to introduce this legislation, which specifically targets this union and these workers. More specifically, this bill also changes the rules retrospectively and provides substantial new penalties. As a matter of general principle, Labor are opposed to retrospective legislation unless there are very good grounds for demanding retrospectivity, and in our view those grounds are not the government’s political desire to target particular trade unions and particular workers in the building and construction industry. We are particularly opposed to the retrospective penalties which exist in this legislation.

The Building and Construction Industry Improvement Bill 2005 defines ‘construction industry’ so broadly that employers and employees never previously considered as part of this industry will now, should the bill be passed, be covered by the provisions of the legislation. It will expose both employers and employees in this industry to prosecution and penalties for participating in what is currently legal bargaining activity under the government’s Workplace Relations Act. The bill places further restrictions upon employees and their unions from exercising their right to strike, which brings Australia into further breach of the relevant International Labour Organisation convention. These are the reasons that Labor is opposed to this bill.

As I said at the outset, this legislation has a somewhat torrid past. The then minister for workplace relations introduced the bills which are currently before us into the House in March 2005 and announced that they would operate retrospectively from this date. The Building and Construction Industry Improvement Bill 2005 reintroduces in large part the government’s 2003 legislation. That bill was developed as part of the government’s legislative response to the Cole royal commission. The 2003 bill lapsed when the parliament was prorogued for the 2004 federal election. In essence, senators in this chamber will recall there was substantial debate in relation to the 2003 building and construction industry legislation, which also sought to establish an Australian building and construction commission. On that occasion, the Senate refused to pass that legislation and the government got around the will of the Senate by essentially introducing a similar body by administrative and executive means. It bypassed the Senate and set up the Building Industry Taskforce. However, it had the issue of what powers it would provide to the task force. That obviously was an issue that had to come before this chamber. We therefore saw what was then called the codifying contempt act, in which powers associated with the work of the Building Industry Taskforce were put in place. That was a fairly lengthy debate in this chamber.

Those powers were substantially ameliorated and mitigated by Labor and the Democrats in the Senate. They were very substantial coercive powers—powers that Labor still says are inappropriate. They certainly give very substantial rights to the task force, arguably rights far greater than police have, so you have the bizarre situation where building union officials and employees in the construction industry actually have fewer rights in relation to investigation by the task force than a criminal might have in relation to investigation by police. However, there were ameliorating provisions put in place by this chamber by Labor and the Democrats. What we have before us is a bill which simply does not include any of those ameliorative mechanisms or any of the protections that were put in place and insisted on by the Senate in relation to the previous legislation.

The Building and Construction Industry Improvement (Consequential and Transitional) Bill 2005 provides for machinery amendments relating to the Building and Construction Industry Improvement Bill 2005. On 8 August this year, government amendments in the other place reintroduced additional provisions from the 2003 bill. These amendments create the Australian Building and Construction Commissioner, the ABCC, and provide this body with coercive powers to gather information and prosecute people associated with a very broadly defined building industry.

As I said at the outset, there are a number of measures which are to be applied, should this legislation be passed retrospectively, from 9 March 2005. Firstly, there will be an increase in the maximum penalties, to $110,000 for a body corporate and $22,000 for an individual, where unlawful industrial action is taken. Secondly, the bill makes certain forms of industrial action unlawful and provides access to sanctions against unlawful industrial action in the form of injunctions, pecuniary penalties and compensation for loss. Thirdly, in particular the bill makes industrial action taken by unions prior to the nominal expiry date of certified agreements unprotected and unlawful. That is an extraordinary shift in terms of the provisions which apply to other unions and workers in other industries under the government’s own Workplace Relations Act.

Fourthly, if a union takes industrial action in support of its negotiations, it may be exposed retrospectively to fines of up to $110,000 and uncapped damages. Individuals may face fines of up to $22,000. This is intended to severely limit the ability to negotiate bargaining outcomes. Finally, the bill also shifts the onus onto employees to prove that a reasonable concern exists where action is taken based on an imminent occupational health and safety risk. This is a significant safety issue, given the particularly hazardous nature of building and construction work. Over the last 10 years, there have been an average of 50 workplace fatalities each year. This bill potentially puts the health and safety of employees in this industry at risk by imposing financial penalties upon employees who cease to work in what they regard as an unsafe environment.

I turn now to the coercive powers which the government is proposing to provide to the ABCC. Provisions introduced into the House in August of this year provide this body with coercive powers to gather information and prosecute people associated with the building industry. As I said at the outset, the role of the proposed commissioner is currently undertaken by the Building Industry Taskforce, with powers provided under the Workplace Relations Amendment (Codifying Contempt Offences) Act 2004. Once this bill has been passed, the task force will convert to the ABCC and the provisions of the codifying contempt act referring to the Building Industry Taskforce will no longer be effective.

As I said previously, Labor, with the minor parties, amended the codifying contempt act to mitigate the worst elements of the coercive powers provided to the Building Industry Taskforce. It is interesting to note that all of these amendments have not been included in the government’s bill. Essentially, the government is proposing to provide the new building commission with all the coercive powers proposed and not previously passed under the codifying contempt bill and without any of the associated checks and balances that Labor and the Democrats inserted into that legislation.

In essence, the bill empowers the commission to demand answers to such questions as: ‘Are you or have you at any time been a member of a trade union or a political party?’ To be subjected to such questioning, a building industry employee need have done nothing wrong nor have been suspected of doing anything wrong. The investigator can also demand the production of phone records, bank account records and any other document. An employee who fails to cooperate fully will have committed a criminal offence, and the punishment will automatically be a prison term. Our amendments to the previous legislation ensured that there was an alternative financial penalty available to the courts rather than a mandatory prison sentence for employees in this situation. Whilst we clearly deplore any criminal behaviour, whether it is in the building industry or elsewhere, we do not support the denial of civil liberties to innocent Australians simply because they work in the building industry and simply because this government wants to target these workers.

This bill will enable the ABCC to use coercive powers in investigating any breach of the Workplace Relations Act, award or agreement, including investigating ordinary industrial activities of unions, such as meetings with members, not just investigating alleged criminal activity. Labor are committed to removing any criminality that may exist in any workplace, including in the building industry, but we do not believe that the task force or the ABCC is the right body to investigate such matters. Criminal matters ought to be investigated by the police. We are also substantially concerned about giving this body coercive powers in respect of an almost unlimited range of industrial relations matters.

 Previously, Labor also moved an amendment that required the approval of a Federal Court judge to use coercive powers. This inserted a truly independent element into this process. Federal Court judges routinely deal with industrial relations matters and are well placed to determine whether coercive powers are appropriate or necessary in any particular case. Requiring a warrant from the Federal Court also went a long way to ensuring that building workers do not have lesser civil liberties than those people being questioned by ASIO about terrorism. Senators will recall the ASIO legislation that was previously debated in this chamber. There was much discussion about the importance of ensuring that there was some judicial oversight of the additional powers to be granted to our security organisations to question persons who may have some knowledge of terrorist activities. Labor’s amendment to the previous building and construction industry legislation, which is not reflected in the current legislation, was to ensure that there was some independent oversight of the coercive powers to be initiated and utilised by the ABCC.

A third amendment that Labor moved to the codifying contempt bill was to amend the mandatory jail term in order to give the court the capacity to either fine or imprison an individual who does not comply with a warrant. Clearly, it makes sense to give a court the capacity to impose a monetary penalty instead of jail time if a judge thinks this is appropriate in the circumstances. In fact, imprisonment has the potential to make a martyr of the person who defies a warrant. It may be that in some cases a high financial penalty is more of a burden on an individual than simply a short term of imprisonment.

A fourth amendment that Labor previously moved to that similar legislation, and which indicates our position on this legislation, deleted the requirement that a person provide information when this might be contrary to another law or might incriminate that person. In our system of justice, the protection against self-incrimination is one of the most fundamental principles of natural justice—a point highlighted in a number of High Court cases, most notably by Justice Lionel Murphy in the case of Pyneboard Pty Ltd v Trade Practices Commission.

It is also worth noting that the Democrats amended the previous legislation to place a limit on investigations so as to ensure they were not minor or petty. Notwithstanding our concerns that the definition of that might be in the eye of the beholder, we note that this provision has not been retained in the bill that is currently before this chamber. Accordingly, the concern correctly identified by the Democrats that these coercive powers could be utilised for minor or petty offences and therefore would not be appropriate has not been picked up in this legislation. Coercive powers would be able to be used under this act, if passed, to investigate trivial offences.

Had the Labor and Democrats amendments been retained, Labor would still be extremely concerned about giving the ABCC coercive powers to gather information. Frankly, the Building Industry Taskforce, which is the predecessor of the ABCC, has had an entirely anti-union focus since it was established in 2002. It has shown minimal interest in important issues in the industry, such as non-payment of employee entitlements, sham corporate structures and health and safety concerns. In light of this track record, Labor do not believe that the task force’s successor, the ABCC, should receive additional coercive powers. Our amendments to the codifying contempt act restricted the scope of these coercive powers to criminal offences and inserted some semblance of fair process by requiring the approval of Federal Court judges. As I said, these amendments are not included in the government’s bill.

Finally, as part of the amendments to the codifying contempt act, guidelines in the form of a disallowable instrument were enacted about the use of the Building Industry Taskforce’s coercive powers. This bill provides greater powers to the ABCC than those previously granted by the government and the parliament to the Building Industry Taskforce and unfortunately contains no guidelines to constrain their use.

I turn now to the issue of the Building Code. The bill provides some legislative basis for the current Building Code which requires employers to comply or else fail to win Commonwealth construction contracts, but otherwise the bill provides little detail. This effectively provides a blank cheque to the minister to impose conditions upon construction employers without requiring an appropriate level of transparency and exacerbates the current high level of uncertainty among employers about their compliance with the Commonwealth’s Building Code.

The legislation was referred to the relevant Senate legislative committee, which reported in May 2005. The Australian Industry Group made a submission supporting the bill but called for amendments to narrow the definition of ‘building work’ and thus the application of the bill. The New South Wales government opposed the bill because: it is industry specific; it adds unnecessary complexity; its provisions are punitive, heavy handed and unbalanced; and it promotes a litigious, adversarial and costly approach to industrial relations which would hinder rather than assist good faith bargaining. The New South Wales government also raised concerns about the retrospectivity of the legislation, which had no demonstrated justification.

The Australian Democrats have also argued against the need for specific industry legislation and noted with concern the confusing nature of the definition of ‘building and construction industry’ in the bill. I note that Senator Murray has circulated some amendments to deal with that issue. The Democrats also opposed the retrospectivity of the bill. While I will wait until the committee stage to indicate more clearly Labor’s view about the Democrats’ amendments, in general we are supportive of them as they do address some of our concerns. But they do not ameliorate the bill sufficiently for Labor to support the legislation.

The minister argues that the bill aims to promote respect for the rule of law in the building and construction industry, yet this bill, if enacted, will compound Australia’s ongoing disrespect for international labour law. Australia has repeatedly reaffirmed its obligations as a member of the International Labour Organisation and its commitment to ensure that its domestic laws provide for labour standards consistent with internationally recognised labour principles. The ILO Committee of Experts has repeatedly found that the government’s Workplace Relations Act 1996 contravenes fundamental International Labour Organisation conventions on freedom of association and the right to collectively bargain.

This bill selectively and unfairly targets building industry workers and excludes them from basic and universally applicable labour standards. All employees should have the rights and protections afforded by international labour law, irrespective of the industry in which they work. The building and construction industry should not be exempt from compliance with the fundamental rights to collective bargaining and freedom of association that are embodied in the relevant ILO conventions.

This is a poorly drafted, excessively punitive and unfair bill. It is divisive in its application and will not assist in the satisfactory resolution of industrial issues in the building and construction industry. Labor do not support unreasonable and unlawful conduct, but we also do not support the creation of laws which will effectively prohibit the taking of industrial action. This is a contravention of the fundamental rights to which I have referred.

The retrospectivity of this bill potentially and substantially penalises employees, unions and employers currently participating in making enterprise bargains in a legal and reasonable way. The bill also adds complexity to resolving occupational health and safety issues in the industry and thus potentially endangers employees. The definition of ‘the construction industry’ in this bill is so broad that employers and employees who have never considered themselves part of the industry are encompassed by the legislation. Consequently, they will be exposed to prosecution and penalties for participating in what is currently legal bargaining activity, and substantial litigation will be necessary to accurately understand exactly what is encompassed by the definition.

In the remaining minutes I have, I want to make a brief point about some of the activities of the Building Industry Taskforce to date, a body which the government essentially wants to reconstitute and give more powers to. This week a decision was handed down by the Australian Industrial Relations Commission in which the Building Industry Taskforce sought to revoke a right of entry of a particular organiser in the CFMEU. The task force request to revoke was not granted by the commission. The commission found that legitimate safety concerns were involved in the inspection that was the matter of dispute. The Deputy Industrial Registrar stated: ‘I am satisfied that this particular official has had a genuine and longstanding concern for and interest in maintaining appropriate occupational health and safety standards. He conducted himself with the consent of management and I am not satisfied that his conduct was unreasonable.’ That is what the predecessor to the ABCC has been doing to date. (Time expired)