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Tuesday, 20 March 2012
Page: 2240

Senator BACK (Western Australia) (12:43): I hope to bring some common sense to this debate and to oppose the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012. Madam Acting Deputy President, my colleagues in the Senate and the public, I draw to your attention the wonderful publication Odgers, which is the bible by which we operate. If I may, I will read who it is dedicated to. It reads:



who by their votes established and have sustained constitutional government in the Commonwealth of Australia

and one group of their chosen agents and trustees


who hold a large portion of that trust

To bring this into perspective, I want to quote for a moment some of the functions of the Senate and the roles of those of us charged with that responsibility. They include:

To review legislative and other proposals initiated in the House of Representatives, and to ensure proper consideration of all legislation.

It is a shame that Senator Feeney, acting in the minister's chair, is bored and is yawning. Perhaps he should also read and take note. It continues:

To ensure that legislative measures are exposed to the considered views of the community and to provide opportunity for contentious legislation to be subject to electoral scrutiny. The Senate's committee system has established a formal channel of communication between the Senate and interested organisations and individuals, especially through developing procedures for references of bills to committees.

To provide protection against a government, with a disciplined majority in the House of Representatives, introducing extreme measures for which it does not have broad community support.

And, lastly:

To probe and check the administration of the laws, to keep itself and the public informed, and to insist on ministerial accountability for the government's administration.

These are not my words; these are out of the bible of the conduct of the Senate of Australia. It is high time people on the other side of this chamber took that responsibility and that role seriously.

One could reflect for some moments as to why it was necessary for the Cole royal commission to come into existence. As my colleague and Western Australian co-senator, Senator Cash, has alerted, it was the two states of Victoria and Western Australia where most of the problems were occurring in the building industry. These were unattended by the Labor government under Hawke and Keating and therefore had in some way to be brought under some degree of control. The terms under which the Cole royal commission was undertaken—and it is unfortunate that Senator Cameron has chosen to leave after challenging me for most of his speech, in which he had little to contribute—did not unfairly target unions, employers or employees. I will quote some of those terms of reference:

(a) the nature, extent and effect of any unlawful or otherwise inappropriate industrial or workplace practice or conduct, including, but not limited to:

(i) any practice or conduct relating to the Workplace Relations Act 1996, occupational health and safety laws, or other laws relating to workplace relations …

In answer to Senator Cameron's diatribe, I have not yet seen any reference specifically to unions or to anybody else.

Senator Cameron should not have come into this place and slurred construction workers. He should not have suggested that construction workers' rights were diminished and he should not have suggested that it was anything other than wrong for anybody in the industry to act contrary to the law. Nor, of course, should employers act contrary to the law—they should be treated equally, and have been. As a person who has been an employer and an employee for probably 40 years, I object strongly to the insinuation and the nonsense perpetrated by this man in this Senate. He ought to go back and read the obligations in Odgers for those of us acting in the Senate.

The terms and conditions of the Cole royal commission went on to address issues associated with:

… fraud, corruption, collusion or anti-competitive behaviour …

Have we yet seen any discrimination in favour of or against any particular party? No, we have not. It continued:

… coercion, violence, or inappropriate payments, receipts or benefits …

The terms of reference went on:

… dictating, limiting or interfering with decisions whether or not to employ or engage persons, or relating to the terms on which they be employed or engaged—


… failure to disclose or properly account for financial transactions undertaken by—

you wouldn't believe it, Senator Cameron—

employee or employer organisations or their representatives or associates …

Here is the next one—under (b)(ii) it lists 'inappropriate management'. I think that normally refers, Senator Ronaldson, to employers, doesn't it?

Senator Ronaldson: Yes.

Senator BACK: It goes on:

… inappropriate management, use or operation of industry funds for training, long service leave, redundancy or superannuation …

So that I can correct the record, I will not insult the next speaker by helping them with the preparation of their speeches, but what I will do, if I may, is indicate that under the ABCC the compulsory examination powers have been used 54 times on management and only 10 times on union officials. I sometimes wonder whether Senator Cameron and I are dealing with the same issues.

I can stand up here and quote, as others can, but I am not going to stand up here and insult or be derogatory to those parties in this country who are charged with the respon¬≠sibility of providing us with the necessary information we need to discharge our responsibilities as senators in this place. We have heard a spray this morning from Senator Cameron regarding Econtech and KPMG. It is a shame he did not discuss with or learn from his own leadership before he challenged and desecrated the credibility of KPMG, Econtech—or Independent Economics. Should he have availed himself of the opportunity of learning from his own current Labor government leaders, he would have found that this government has recently commissioned KPMG and Econtech to conduct the report titled Measuring the impact of the productivity agenda. This vilified group—these organisations, KPMG and Econtech, upon whose reports cannot be relied and who have to be castigated and criticised in Senator Cameron's usual fashion—are the very organisations this government has engaged to conduct that report. Senator Cameron and the Labor government cannot have it both ways. I suggest that the leadership of the Labor government knows very well the credibility of these statistics. I am going to quote from the Australian Bureau of Statistics; I do not know if doing so opens them up to getting a spray from this Senator Cameron. But these are the statistics: in the year 2004, according to ABS in their reporting of industrial chaos—and I will believe them—there were 48.6 days lost to industrial activity per 1,000 workers. It went down by 2008, according to the ABS, to 1.7. I repeat that: from 48.6 days lost per 1,000 workers, it was reduced in 2008 to 1.7. And where has it gone by 2011? Back up to 45 days. You see, one of the interesting things about the efflux of time is that we cannot escape from the actual facts. We know from these statistics what the days lost due to industrial activity were prior to the ABCC, we know what they were when the ABCC was doing its job and we will be able to measure into the future what the trend will be if and as this tough regulator is removed.

Productivity gains, again, in the residential building sector increased between 2004 and 2009 by 7.3 per cent. This is an interesting statistic. Labour productivity in the construction industry went up 10 per cent in that time, but more to the point is that it went up higher than the predictions that historically would otherwise have been the case. When we learn about this slavery and this working 24 hours a day, seven days a week, it is an awful shame that Senator Cameron did not actually go back and read the reports which he so blithely criticises, because if he had read them then he would have seen that he would be insulting the very unions who negotiated the contracts with the employers, because the terms and conditions for those employees were very, very generous by construction or other industry standards at that time. There was no suggestion of people working 24-hour days seven days a week, but what did happen in that time between 2004 and 2007 was that weekly wages in the construction sector went up 25.5 per cent, against an increase of 15.5 per cent for all industries. In other words, as a result of these changes coming into existence, construction workers ended up getting increases of 10 percentage points over and above other industries.

As a past employer, I have an incredible keenness for occupational health, safety and welfare. It has always been my experience that, the more is invested by the employer in occupational health, safety and welfare, the better is the reward, particularly when the occasion and the workplace environment are such that the employer can have direct negotiations with his or her employees in achieving those outcomes. I have the pleasure of having been able to give you those examples in industries which I have managed or overseen, including the tourism industry, the emergency services industry, fuel retailing, fuel distribution and the larger oil and gas industries. I am committed to occupational health and safety and I will not listen to what is proposed by the likes of Senator Cameron when he says that all of this—the introduction of the ABCC—drove down safety in workplaces. It did not. If the Australian Bureau of Statistics can be believed, the incidence of workplace injury per 1,000 workers in 2003-04 was 27.7. Nobody will agree more than me and Senator Cameron—and, I hope, others on all sides of this chamber—that every person who goes to work has an entitlement to come home safely. Nobody would dispute that, and I would take deep exception to anybody who points to this side of the chamber and suggests anything other than that. There were 27.7 incidents per 1,000 workers in 2003-04; about the same in 2004-05, with 26; and about the same in 2005-06, with 24. But by 2006-07, contrary to the expectations that one would have believed if one were listening to the other side, the actual incidence in 2006-07 and 2007-08 per 1,000 workers went down to 22. The best figure would be zero—we all know that—but we cannot sit here and believe the sort of diatribe that is put to us in relation to the outcomes of the ABCC.

What is interesting is that, from the time the Rudd-Gillard government came into existence through to December 2008, in fact they made no changes to industrial laws in this country to any extent. The fact that this incoming Labor government preserved the industrial climate of the Howard government is illustrated in these figures: in the middle of the global financial crisis, in December 2008, employment went down by only 0.1 per cent—in other words, employment stayed static—but the hours worked went down by 2.3 per cent. Why did that happen? In my view it happened because there was a good workplace relationship in which employers and employees were able to work together and say, 'We want to keep everybody employed but, because of the downturn in commercial and industrial activity, it will be necessary for people to work fewer hours.' Those are the statistics to which I refer.

There has been some comment with regard to Mr Justice Wilcox. I have not met the gentleman and I do not intend to comment upon him, but since it is the flavour of the day to refer to and quote from Justice Wilcox I too will do the same thing with these four lines from his report:

… the ABCC’s work is not yet done. Although I accept there has been a big improvement in building industry behaviour during recent years, some problems remain. It would be unfortunate if the inclusion of the ABCC in the—

Office of the Fair Work Ombudsman—

led to a reversal of the progress that has been made.

Those, I believe, are very telling comments.

We come then to the amendments before us. It was the then Minister for Employment and Workplace Relations, now Prime Minister, Ms Gillard, who made these statements prior to the 2007 election, and I think these words resonate:

We want to make sure that no one is engaged in improper conduct in the building industry, whether employer, union or employee.

She went on to say:

Anyone who breaks a law will feel the full force of the … law.

S he was also exceeding ly disappointed that there were still some ' pockets of industry where people think they are above the law ' and where people engage d in intimidation and violence. She concluded by saying:

… there should be absolutely vigorous, hard-edged compliance and no tolerance at all for unlawfulness.

In the few moments allowed to me I go to one of the amendments in this legislation, the switch-off powers. As we know, these propose that there be a switching-off clause under the new investigative powers, which means that in this case if a union—and I do not think it applies to employers but I will defer to the previous speaker if it does—or a party does not misbehave in a certain time frame it is no longer the subject of investigation by the regulator or the investigator. This is most amazing; it is unique and apparently has no precedent in British justice. What it basically says is that, to use an analogy, if any one of us has never murdered anybody, there will be a switching-off clause so we will no longer be subject to that legislation. In other words, it is the circumstance which says, if you have behaved yourself for a period of time, there will be no further investigation of you under that circumstance.

In a Senate committee hearing in Melbourne earlier this year, at which I think my colleague Senator Thistlethwaite was a participant, we asked the gentlemen from the union, 'Did you request the switching-off clause?' They said, 'No, we didn't.' So we said to the department, 'Did you request the switching-off clause?' No, they did not. I do not think employers would have requested the switching-off clause. We then said, 'Who in fact did request the switching-off powers?' Of course, it was none other than the then minister, Ms Gillard. I ask the question philosophically because there will be plenty of people out there very interested to know—

Senator Marshall: You can't ask philosophical questions.

Senator BACK: I will ask a direct question. It is lucky that the chair of the committee, Senator Marshall, is here, because he might be able to answer this question: is the Labor government now contemplating the introduction of switching-off powers by the ATO, by ASIC, by the ACCC or by the Prudential Regulatory Authority? Are we going to see even more interpretations of the law? The switching-off clause was not even requested by the participants; it was introduced into the agenda by the minister.

We have for some days been faced with the embarrassment of the committee chaired by Senator Marshall, and of which I am the deputy chair, considering matters associated with these amendments. I do not know whether or not Senator Marshall knew that Mr Bandt in the other place was going to bring in the last amendment. I hope he did not know, because I see it as a deep insult to this place, particularly, given the objectives under Odgers,as this amendment was brought in after this committee had concluded its work. Of course, this is the pay-off money. This is the money that allows two parties to settle behind the scenes in a manner which otherwise would have been seen as illegal should it be the subject of the regulator. This legislation must be terminated. (Time expired)