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Tuesday, 28 February 2012
Page: 1059


Senator CHRIS EVANS (Western AustraliaMinister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:08): I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT AMENDMENT (TRANSITION TO FAIR WORK) BILL 2012

Today I introduce the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 201 2 .

The building and construction industry remains a critical sector of our economy, with immediate and direct impact on jobs, growth and productivity. This was particularly so during the global economic recession, during which the Government's Nation Building and Jobs Plan ensured that the Australian economy remained one of the strongest in the developed world.

The construction industry is imperative for Australia ' s future success. How we build our key national infrastructure, hospitals and schools . This Government understands and recognises the importance of the industry - and those who work within it.

The Government also committed to consult extensively with industry stakeholders to ensure the transition to the new arrangements would be orderly and effective.

On this basis, the former Minister appointed retired Federal Court Judge, the Hon. Murray Wilcox QC to consult and report on matters related to the creation of the building inspectorate. Mr Wilcox consulted widely with industry and delivered his report to the Government on 31 March 2009.

This Bill honours the Government's commitments and gives effect to the principal recommendations in Mr Wilcox's report.

Description of the Bill

The principal object of the Bill recognises the Government's intention to provide a balanced framework for cooperative and productive workplace relations for the building and construction industry.

A key objective of this Bill is compliance with workplace relations law by all building industry participants, including employers, employees and their respective associations.

This Bill aims to provide fairness in the industry by ensuring information, advice and assistance is available to all building industry participants in connection with their rights and responsibilities under relevant laws.

The Bill provides effective means for investigating and enforcing relevant workplace laws while balancing the rights of building industry participants through the provision of appropriate safeguards in relation to the use of the building inspectorate's enforcement powers.

The Bill contains an amendment - passed by the House of Representatives that will prevent the Director, or an inspector of the Fair Work Building Industry Inspectorate from commencing or continuing civil proceedings in a court where the matter of the subject of the hearings is reasonably and appropriately settled and discontinued by the parties, other than the inspectorate.

This will ensure that building industry participants are not subject to multiple proceedings in relation to matters that have already been the subject of discontinued litigation, and that the resources of the Fair Work Building Industry Inspectorate are appropriately targeted to matters which remain unresolved.

The Government notes that there are strong protections against coercion by parties in the Fair Work Act . Federal and State laws also provide important safeguards against interference with the administration of justice in matters before the courts.

ABCC to be replaced

The Government believes that the Australian Building and Construction Commission (ABCC) needs to be replaced with a new body that is part of the mainstream Fair Work system. This new regulator will operate in accordance with community expectations of a fair and just workplace relations system.

The Government understands that the industry contains unique challenges for both employers and employees, and as a result we have always supported a strong building industry regulator to ensure lawful conduct by all parties.

This Bill gives effect to the Government's election commitment to abolish the ABCC and transfer its responsibilities to a specialist Fair Work building inspectorate. The Bill provides that the new building inspectorate will ensure compliance with general workplace relations laws, as prescribed in the Fair Work Act 2009, by all building industry participants.

The Fair Work Building Industry Inspectorate

The Government made a commitment to the Australian people that it would replace the ABCC with a new body to provide a balanced framework for cooperative and productive workplace relations in the building and construction industry.

This new body will be the Fair Work Building Industry Inspectorate.

The new Fair Work Building Industry Inspectorate will be headed by an independent director appointed by the minister. The director will manage the operations of the Inspectorate and will not be subject to oversight or control by other statutory office holders.

This model gives best effect to Mr Wilcox's recommendation that the director have 'operational autonomy' and reflects various stakeholder consultations on this point.

Consistent with Mr Wilcox's recommendations, the Bill also creates an advisory board consisting of industry stakeholders to make recommendations to the director on the policies and priorities of the building inspectorate.

Scope and penalties

The building inspectorate will be charged with enforcing the building industry's compliance with the general law as prescribed in the Fair Work Act. In particular, and as recommended by Mr Wilcox, the Bill removes:

higher penalties for building industry participants for breaches of industrial law; and

the broader circumstances under which industrial action attracts penalties.

Consistent with Mr Wilcox's recommendations, the definition of 'building work' has also been amended to remove its coverage of off-site work; thereby focusing the scope of the inspectorate's operations to work on sites.

The retention of coercive examination powers

While building participants will be subject to the same penalties as other workers, Mr Wilcox recommended that the need to retain the existing coercive examination powers was proven .

The Bill retains coercive powers for 3 years, at which time the powers will sunset - subject to a review of their operation.

The significant safeguards associated with the use of the powers also included in the Bill are:

the use of the powers is dependent on a presidential member of the Administrative Appeals Tribunal being satisfied a case has been made for their use;

persons required to attend an interview may be represented by a lawyer of their choice and their right to claim legal privilege and public interest immunity will be recognised;

persons required to attend an interview will be reimbursed for their reasonable expenses;

all interviews are to be videotaped and undertaken by the director or an SES employee;

the Commonwealth Ombudsman will monitor and review all interviews and provide reports to the parliament on the exercise of this power; and

the powers will be subject to a three year sunset clause.

Relevantly, in his report Mr Wilcox says:

… I am confident the safeguards I have recommended, if implemented, will minimise the unnecessary use, and potential for misuse, of the power; without impeding, or significantly delaying, investigations …

The Government agrees with this assessment.

Independent Assessor

The Bill creates the office of the Independent Assessor—Special Building Industry Powers, who may, on application from stakeholders, make a determination that the coercive interrogation powers will not apply to a particular project or projects.

In determining whether to 'switch off' the coercive powers for particular projects, the Independent Assessor must be satisfied that it would:

be appropriate to make the determination, having regard to the objects of the act, and

not be contrary to the public interest to make such a determination.

In the event that a project where the coercive powers have been switched off experiences industrial unlawfulness the Independent Assessor may revoke his or her original decision; thereby switching the powers back on. Additionally, the director of the Fair Work Building Industry Inspectorate can request that the Independent Assessor reconsider their decision at any time based on changes in circumstances on a specific project.

These 'switch off' provisions ensure that the powers are focused where they are needed most. The Government is determined to encourage lawful behaviour and a change in the industry's culture. These arrangements provide the industry with the opportunity to demonstrate that the requisite lawful culture is in place and that the coercive examination powers are not required.

Conclusion

The Government's position on the ABCC has been clear for a long period of time.

Prior to the 2007 and 2010 elections, Labor made a commitment to the Australian people that it would replace the ABCC with a new body; to provide a balanced framework for cooperative and productive workplace relations in the building and construction industry - a body that is part of our Fair Work system . This Bill honours those commitments.

The Government has consistently stated that anyone who breaks a law should feel the full force of the law . The Government will not tolerate an environment in which people choose which laws to obey and which ones to ignore . This goes for all industry participants .

The Government understands that the industry contains unique challenges for both employers and employees, and as a result we have always supported a strong building industry regulator to ensure lawful conduct by all participants and a strong set of compliance arrangements for the building industry . This Bill honours those commitments.

The Government committed to a review of building industry regulation and we committed to introduce safeguards for the use of coercive examination powers to achieve the balance required to ensure compliance with the law and the fair treatment of individuals . This Bill honours that commitment.

I commend the Bill to the Senate.

Debate adjourned.