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Education, Employment and Workplace Relations Legislation Committee
03/02/2012

NOONAN, Mr Dave, National Secretary, CFMEU Construction and General Division

THOMPSON, Mr Glenn, Assistant National Secretary, Australian Manufacturing Workers Union

TIGHE, Mr Peter, National Secretary, Communications, Electrical and Plumbing Union

[09:43]

CHAIR: I welcome witnesses from the Combined Construction Unions. Thank you for your submission. Mr Noonan, the secretary advises me that you have some additions or alterations to make.

Mr Noonan : I simply have a number of comments to make in introduction; I have no alterations.

CHAIR: Okay. That is a normal process anyway. I invite you to make some opening remarks to the committee.

Mr Noonan : The submission that is before the Senate committee is on behalf of the Combined Construction Unions, which are the Australian Manufacturing Workers Union, the Australian Workers Union, the Communications, Electrical and Plumbing Union and the Construction, Forestry, Mining and Energy Union. These unions constitute the major industry players in terms of trade unions in the building and construction industry in Australia and represent tens of thousands of workers in the construction industry. We welcome the opportunity to make this submission to the Senate and to appear here today to speak to the submission. Let me say first of all that the entire trade union movement supports the abolition of the ABCC and supports the construction unions, as is also laid out by the fact that the ACTU had made a separate submission from the building and construction unions.

The Building and Construction Industry Improvement Act currently regulates industrial relations in the building and construction industry in conjunction with the Fair Work Act. The legislation represents the last vestiges of the discredited Work Choices era. A number of recommendations for legislative change made by Commissioner Cole, in addition to being identical to the Liberal Party policy as set out at that time—that is, the bits they told us about before Work Choices, not the bits they implemented without a mandate after the 2004 election—were included in the first building industry bill, which was not passed by the Senate in 2004. Those provisions were subsequently included in the Work Choices legislation.

It is instructive that the Master Builders Association, who advocate the retention of the Building and Construction Industry Improvement Act, were among the leading and most fulsome supporters of Work Choices and that, when they made a submission to this committee in support of Work Choices in 2005 at the Senate inquiry, that legislation stressed the close interaction and complementary nature of the Building and Construction Industry Improvement Act and Work Choices. I raise this point to make it absolutely clear that the Building and Construction Industry Improvement Act is on foot with Work Choices; it is not a piece of legislation which has a separate purpose, a separate identity or a separate ideology and history from Work Choices. It is, in fact, the last bit of Work Choices. It cannot be said that Work Choices is dead, buried and cremated below the Building and Construction Industry Improvement Act remains and it is clear that those who advocate the retention of the Building and Construction Industry Improvement Act are in fact still supporting the last vestiges of Work Choices.

The Australian Labor Party has gone to the last two elections with an explicit policy to abolish the ABCC. There can be no doubt that the government has a mandate to abolish the ABCC. Those who argue for the retention of the ABCC and the current legislation unamended ignore this mandate and are, in effect, demanding that the government broke its promise. The current legislation has been found to breach conventions of the International Labour Organisation on no less than eight occasions. The ILO Committee of Experts and the Committee on Freedom of Association have repeatedly requested Australia to take steps to ensure that legislation relating to the building and construction industry is brought into conformity with these conventions. When Australia ratifies conventions of the ILO, we as a nation undertake to give effect to those conventions in our domestic laws. Those who argue for the retention of the current legislation are in fact proposing that Australia should ignore these obligations and these undertakings.

The ABCC has acted in a biased and one-sided manner since its inception. This is demonstrated by its lopsided record in relation to the prosecution of workers and unionists for alleged breaches of the law while it has ignored blatant and widespread unlawful behaviour by employers. The construction unions have never argued that there should be no regulator in industrial relations but we submit that for a regulator to be effective it must enjoy a measure of support and respect from all industry participants.

The ABCC has abused the draconian coercive powers granted to it by the current legislation. Following the failure of the prosecution of construction worker Art Tribe, the ABCC has been forced to admit that every one of the 203 coercive notices issued by it up until the end of 2010 were invalidly issued. That means that 203 hardworking Australians were brought before the secret, coercive interrogations by officers of the ABCC at which, at the inception of the interrogation, they were threatened with imprisonment and, unless they answered questions and gave away their right to silence in relation to union or workplace matters, they could be imprisoned. That was done under false pretences and unlawfully. Those who argued for the retention of the status quo often couched their arguments in highly colourful and emotional arguments about the need to deal with issues such as alleged violence, intimidation, thuggery and corruption. These matters are subject to criminal law. If and when criminal offences are alleged, they should and must be investigated and prosecuted under the criminal law in the construction industry and in every industry, but as a matter of legal fact the ABCC and the Building and Construction Industry Improvement Act deal only with industrial law. They have no jurisdiction whatsoever to investigate or to prosecute criminal offences. There has been a deliberate and calculated attempt by the ABCC and its supporters to blur this distinction, to mislead and to confuse the public. This is a resort to the politics of moral panic and demonstrates a lack of factual arguments to support such discriminatory and repressive legislation. We see this all the time and we see it again in the submission that the Master Builders Association have made to this committee where they deliberately inflate and conflate the issues of industrial and criminal law in an attempt to mislead and confuse this committee and the public in relation to the issues relating to industrial and criminal law.

I would just say at this point that a person accused of murder under the criminal law of this country has a right to silence. A person accused of a serious violent crime such as assault in this country has a right to silence under the law. A person accused of theft, corruption or a range of criminal offences has a right to silence under this law. Those who do not have a right to silence under this law are construction workers, who can be interrogated about their workplace and union activities.

The ABCC has had a negative effect on occupational health and safety in the industry. I do not wish to be disrespectful to Mr Harnisch and Mr Calver, my colleagues in the industry, but the reality is that the next building site they visit will probably be one of their first. I have worked in the building and construction industry, as have most of my colleagues, for 25 years or more. We are involved in occupational health and safety and we have fought for occupational health and safety for decades. Every major advance in occupational health and safety in the building and construction industry has resulted from workers and their unions fighting for better safety on the job. The example we used, and it is a real one, in our submission to this committee is the campaign to eradicate asbestos from our industry. Under current laws, if we were fighting a campaign to eradicate asbestos, to direct members not to work with asbestos, to get rid of asbestos from the building and construction industry, the union would be fined and the workers would be fined for taking the action. It is just a fact of life. People want to talk about abuse of occupational health and safety. It is us, our members, workers who die on building sites, who died from the results of asbestos. We object to the proposition that the union movement somehow is not serious and manipulates occupational health and safety issues.

We have heard a lot about the Econtech report. I think it is widely understood that there is no credible evidence whatsoever that the ABCC has had any positive impact on productivity in the industry. The only source for the proposition is a series of reports produced by Econtech—I understand from Master Builders that they have a new name, 'you can believe us.com' or something like that—and all of those reports have been paid for either by the ABCC or the Master Builders Association. There is a submission which has been put to this committee by Professor Peetz. As well as that, there is other material which has been put by Professor Mitchell in relation to critiquing the Econtech report.

Let me say, the Econtech report proceeds from the basis that they take a range of statistics from the Rawlinsons Construction Cost Guide. Rawlinsons is a cost guide which is used for the pricing of work in the building and construction industry. The Rawlinsons report measures the total cost of a range of tasks in regional sectors across Australia in relation to both commercial building and other sectors of the industry. The entire Econtech report proceeds from the proposition that the only difference between cost on a domestic building site—in other words, a one-storey villa house—and a commercial building site such as a large multi-storey building, is the influence of whether unions are there or not. In the Econtech world there is no such thing as a difference between a one-storey villa house and a 50-storey commercial building site. There are no constraints in lifting materials, there are no differences in technologies, there are no differences in the materials or the production methods used.

Senators, only an imbecile or an economist could accept that as a proposition which is then fed into an econometric model and results produced. Frankly, the results which are produced are produced to order for the argument that a particular client wishes to make. Econtech have been forced to concede serious mathematical errors in addition to what I have already raised. I should just add that I do not agree with Justice Wilcox about everything, but he did advocate that the Econtech report was so unreliable as to be totally dismissed from any serious consideration. I think that they have all the credibility of the late Iraqi spokesperson, Ali.

The combined construction unions support the passing of the bill with appropriate amendments. In particular we say that the bill should be amended to ensure that coercive powers are not available to any body which replaces the ABCC. In addition, any replacement body should not be a separate body but should come under the ambit of the Fair Work Ombudsman in accordance with the commitments contained in Labor's policy, Forward with Fairness, which made the point that Labor does not support separate bodies for separate industries.

Senator BACK: Gentlemen, thanks for your submission and your presentation. Mr Noonan, I think that the recent June quarter, the Australian Bureau of Statistics figures, compared days lost per 1,000 employees in 2004, and 2008 and 2011. There were 48.6 days lost per 1,000 employees in 2004, down from 48 to 1.7 in 2008, and we have already seen them increase again to 44.7 days lost per 1,000 employees for 2011. How would you account for that significant change from 49 to 1½, back to 44½?

Mr Noonan : There could be a range of matters, and I am not an expert on statistics. I am aware that the way that the ABS gather their statistics in relation to the building and construction industry is via asking industry associations how many days have been lost in the industry, and I think that the information gathering of industry associations on that may be problematic. In terms of days lost, I think it is likely that there will be variations in terms of days lost for industrial matters between different years in the industry. It is common that there are years when there is a large number of agreements being reviewed in the building and construction industry. In those particular years that means that there is likely to be a higher level of disputation as workers take protective action, and there is no distinction in these ABS figures between protected, legal and unprotected industrial action, in other words, action which is lawful and unlawful. So the figures that you have given are aggregate figures, I believe. That is how the ABS does it.

Senator BACK: It is pretty significant change—48 days down and then back up to 45 again.

Mr Noonan : Yes, it is significant, but if you take the figures over a 20-year period prior to the ABCC, you will see that there are sharp variations as well. I do not have all the figures here but I am sure they are available to the Senate. The point I make is that it is likely that a large number of those figures are in fact lawful industrial action which is contemplated in a collective bargaining system where workers have access to protected industrial action and of course employers—and I assume these are contained in there too—have access to industrial action by way of lockouts.

Mr Tighe : To give a practical explanation of that, over the last 12 months both my plumbing and electrical branches in this state have been in a process of renewing their enterprise bargaining agreements. Those agreements run for three years. In the lead-up to the expiry of the last agreement there is likely to be a dispute between the employer and the employee about the quantum and conditions of the agreement. So you will have a cyclical position, as Mr Noonan has indicated, where there will be large blocks of industrial activity and then a period of calm because the agreements are in place and anything taken during the period of the agreement is obviously unlawful. But during the periods of lawful industrial action there are lockouts, there are stoppages, there are bans, each of which designate disputation as far as ABS figures are concerned. I do not think you can specifically take a snapshot of one period and compare it with another period without understanding the underpinning volatility in the industry at that time with.

Senator BACK: But you would agree with me that the resultant days lost is an indicator of a failure. Disputation is obviously one thing, disagreement is another thing, and bargaining is another—everyone goes through that process—but days lost benefit nobody. They do not benefit to the employee, the employee or the economy. Again I take your point, Mr Tighe, that perhaps another set of figures I would ask you to comment on is days lost annually from 2004 to 2008 in the construction industry. There were 550,000 days lost in 2004 down to 240 in 2005, 188 in 2006, 88 in 2007 doubling to 165. I can accept the comment you are making about different activities, different times, but days lost represent failure in the overall process.

Mr Noonan : First of all, let me say that our position as a union and I think the position of all the construction unions is to negotiate collective agreements to cover our workers. In the vast maturity of circumstances those agreements are negotiated without recourse to industrial action and that is not widely understood about the industry because it has been an industry which has had a lot of controversy and a lot of political focus over the last two years. In respect of days lost, within that figure there may well be and probably are some days where there is unprotected industrial action—I do not know what amount. In respect of protected industrial action, while it is a last resort under the legal framework of the Fair Were Act, we have moved in this country—and this is not widely understood—from a system of compulsory arbitration where the political system and the industrial and legal framework was that all matters in contention had to be arbitrated and that there should never be recourse to industrial action.

One thing which has been widely agreed in the political system and even by the trade union movement—not universally but widely—is that we have had a move from awards and compulsory arbitration to a system of collective bargaining and the system of collective bargaining determines that, if you have a situation where the parties cannot reach agreement, the parties are entitled to take action to reinforce their position. That may be construed as a failure but it is in fact an inevitable consequence of a move from an arbitral system to collective bargaining system. The number of days may vary in a particular year. Is it the best way to reach agreements? Probably not but it is inherent in the system of collective bargaining that there is a recourse to industrial action in a circumstance where agreement cannot be reached.

Senator BACK: Concerning the switching-off provision, do you agree with me that that is an element of the proposed legislation which should be eliminated?

Mr Noonan : Yes but probably from a different basis in that the position of the Combined Construction Unions and the ACTU, and the entire union movement, is that coercive powers ought not be applied to one section of the community—in other words, the building and construction industries.

Senator BACK: But the very concept of a switch-off power is nonsense, is it not? 'I never murdered anyone from the last 61½ years. Therefore, I should not be the subject of investigation for murder.' You make the point elsewhere that equal treatment before the law is a bedrock principle. It is ridiculous.

Mr Noonan : We do not have equal treatment at the moment because of the current legislation.

Senator BACK: Specifically with regard to switch-off—

Mr Noonan : We have not asked for the switch-off powers.

Senator BACK: But you would agree that they just simply ought to be eliminated.

Mr Noonan : I frankly think that the switch-off powers—contrary to the panic situation that the Master Builders put—will be rarely used. I think they will be really applied for. They certainly were not asked for by the trade union movement and it is a bit of the legislation that was put there. We simply find it a bedrock principle that there should be one set of industrial laws for Australians.

Senator ABETZ: If the union movement did not ask for the switch-off powers, I am pretty sure the employers did not ask for them, so do you have any idea where that notion came from?

Mr Noonan : No, I do not. I have tried to find out but I do not.

Senator ABETZ: We will have to ask the department. It might have been their idea.

Mr Tighe : We have submitted that switch-off powers should be universally applied so they apply right across the industry.

Mr Noonan : I assume electricians would have an interest in switch-off powers!

Senator THISTLETHWAITE: Mr Noonan, can you elaborate on why your organisations believe that the coercive powers with criminal penalties do not belong in industrial legislation?

Mr Noonan : There do not exist anywhere else in the world in industrial legislation. We are well aware of the conclusions which Commissioner Cole reached in his inquiry. We have had some discussion this morning about this being the highest form of inquiry and there are a few lawyers here who probably know better than me that royal commissions are not yet independent of the executive. Royal commissions are a creature of the executive and like every inquiry I do not think any government calls an inquiry without knowing the outcome.

We had some comment before about Justice Wilcox and his political predilections. You only need to read the Cole royal commission or to have experienced the way in which Mr Cole conducted that commission to understand his political predilections. It should also be noted in relation to a number of the findings he made that not one resulted in the prosecution of any worker or unionist for any breach of industrial or criminal law, yet he recommended to the creation of coercive powers.

Let us look at the Art Tribe situation. What was the grave illegality there? The workers had a stop-work meeting which was construed to be unprotected action because their site was unsafe. Their site was found to be unsafe by the regulator who issued prohibition notices. That individual was directed to appear before a hearing at which he would have been expected to point the finger at his workmates about who complained about the safety, who took action about the safety, and he did not do so. It was the fact that he had the courage to make a stand on principle which unfolded the fact that the entire way the ABCC have operated under these coercive powers was itself unlawful. Let us be clear: this was not a mere technical slip. The ABCC officer who conducted the interrogation had no legal power to do so, which meant that you have a person who had no legal right or power sitting there—and over 200 occasions with workers—threatening workers with imprisonment if they did not answer his questions. I do not think that is a technicality; I think in a modern democratic society that is a disgrace.

Senator THISTLETHWAITE: Just on the Econtech productivity report and issues associated with it, I put to the Master Builders this morning the view that the advent of enterprise bargaining in Australia had much more to do with improvements in productivity in the industry than did the building and construction industry legislation. You have been around the industry for many years. What is your view on that assertion?

Mr Noonan : I have worked in the industry since 1985 as a construction worker and as a union official. I do not think workers work harder because they are in fear of being charged by bodies like the ABCC. By the way, the proposition that before Cole construction managers spent 75 per cent of their time dealing with industrial issues is just garbage. Anyone who has worked in the building industry knows that that is wrong. It is a ridiculous proposition. Our view would be that the drivers of productivity—and I think this is well established through academic studies and pure commonsense—are a high skilled workforce, a motivated workforce, a workforce which has access to decent levels of training and also employers investing in technology. In fact, the Australian construction industry has one of the best and highest levels of technological investment of any industry in the world. If we want to drive investment in our industry, we need more apprentices. At the moment, we have not got enough apprentices. We have companies which are doing very large government projects, which are benefiting handsomely from taxpayer funded infrastructure and building projects but which do not employ one apprentice—and they should.

The other thing that is important is more cooperative relationships. They are important and they can be achieved, but they cannot be achieved by an adversarial and punitive regime legislated in a highly ideological way such as the ABCC. We are fair, square ready to talk to employers, clients and developers—and we are doing so about issues of productivity and efficiency but we do not think they are driven by going back to the darkest days of Work Choices, which is what this legislation does.

Senator ABETZ: I have lots of questions but let us get to the point of the notion that there should be one standard applying equally to all citizens in paragraph 1.11. You would be aware that there are separate legislative provisions even in the Fair Work Act dealing with the textile, clothing and footwear sector. In fact, there were special provisions for that sector even under Work Choices. Are you now saying that the one rule should apply to every single sector, because that would have ramifications for our consideration of the textile, clothing and footwear bill, which I think this committee examined just yesterday.

Mr Noonan : I am not an expert on the textile, clothing and footwear bill but I am aware that there are provisions within the Fair Work Act in relation to that. The important thing is that they are within the Fair Work Act. Within a body of legislation, it is appropriate, obviously, to understand that there are different provisions for different industries and different callings. There are different awards and agreements reached under the Fair Work Act. But what we have not done—

Senator ABETZ: Sorry, I have to interrupt you on that.

Mr Noonan : I would like to finish my answer, with respect, Senator.

Senator ABETZ: Time is very short. You made an exceptionally long opening speech, I am sorry. If you accept that proposition and if we were then to just incorporate the ABCC but as a separate regulator under the Fair Work Act, would you then have any objection to the ABCC?

Mr Noonan : We would have an objection to any scheme which provided undemocratic, draconian and discriminatory treatment for our members. We would have an objection to that, yes. However, say the situation was that the Fair Work Act did treat people essentially equally at law but made some distinction as awards do. Our members, for instance, are daily hired under our award; eight hours notice either way. That is not common; most people get a week or more either way. There are things like that that are just common sense, but what we do not do is support a separate and discriminatory piece of legislation.

Senator ABETZ: What about, say, freights, as in the Transport Workers Union? They are seeking a separate regulator—

Senator FISHER: The Road Safety Remuneration Tribunal.

CHAIR: Senator Fisher, there is no need for you to interrupt.

Senator ABETZ: Albeit, it is helpful for Hansard to get the correct name. I was struggling with that, so thank you, Senator Fisher. That regulator is being pursued by the trade union movement—separate piece of legislation, separate regulator—for a particular effect to increase wages and payments. As outlined in this submission, as a matter of principle you would oppose that as well, would you?

Mr Noonan : First of all, the Transport Workers Union do a very good job of advocating on behalf of their members.

Senator ABETZ: Thank you for that.

Mr Noonan : I think that they are trying to deal with an extremely serious issue, of exploitation, of fatigue, of danger within the transport industry.

Senator ABETZ: We understand all that. Can you answer the question?

Mr Noonan : What they are not seeking is a regressive and discriminatory scheme which would treat their members as having less rights than accused criminals, which is what you support for our industry.

Senator ABETZ: In that case can you explain to me the trade union support for the harmonised occupational health and safety legislation, which just passed the parliament with the full backing of the trade union movement, which denies the right to silence?

Mr Tighe : Senator, can I answer that question, given that I sit on Safe Work Australia, the body responsible for putting that legislation in place. To say that it is fully supported by the trade union movement is a misconception.

Senator ABETZ: Was the provision to not allow you to have the right to remain silent supported by the trade union movement or not? Let us not talk about all the other provisions.

Mr Tighe : That provision was not put to the trade union movement. It was a provision that was put together by a drafting committee of the Commonwealth in concert with the states, a provision that they see as necessary. Are you saying that is a provision that we sponsored for that legislation?

Senator ABETZ: Did the trade union movement support that provision in the bill?

Mr Tighe : There are a number of provisions in the bill that we do not support and I think we have ventilated all those.

Senator ABETZ: I am asking you about that specific provision: the right to remain silent being taken away from people.

Mr Tighe : My recollection is that debate has not taken place at the ACTU, at our health and safety committee or at the ACTU executive, so I do not think we actually have a position on it.

Senator ABETZ: So if that provision were to be removed, the trade union movement would not have any problems with it.

Mr Tighe : I thought I just said that we had not considered it. Are you saying that if we have not considered it then we are opposed to it?

Senator ABETZ: The trade union movement fully supported the occupational health and safety legislation going through as is. That is what we were told, but let us move on—

Mr Noonan : I am not sure that is right.

Senator ABETZ: because we are clearly showing up huge discrepancies in the logic that is being put to us. Let us move to another area: to coercive powers having no place in industrial laws in a democracy. Do coercive powers have any role in laws in a democracy? That is a general question.

Mr Noonan : I think that would be better put to someone who has expertise in those other areas of law such as trade practices and the ATO. Let me make this comment: every other aspect of coercive laws under those general provisions applies to everybody in the community equally. They have not taken one section of the community and said, 'We will apply coercive powers to you and you alone.' If that was done because of people's political convictions, because of their religious convictions, because of their racial background or for any other reason, I think there would rightly be an outcry about that. What we say is that if these sorts of provisions are required under the law, they are very serious, they are not trivial, and there ought to be a proper, informed community debate about the need for them and about the efficacy for them.

Senator ABETZ: We did, because we had a royal commission into it, but ASIC deals with anybody involved in a company.

Mr Noonan : We had a kangaroo court, Senator.

Senator ABETZ: That is your view, not my view.

Mr Noonan : It is the view of tens of thousands of construction workers.

Senator ABETZ: And not millions of other Australians. But ASIC only deals with people that deal in companies, right?

Mr Noonan : I think the powers are available more broadly than to company directors—

Senator ABETZ: No, no. If I run, for example, a one-man-band business as opposed to a company, I do not fall within the remit, or, if I am an individual who does not pay any tax at all, the coercive powers of the tax office of course would not fall upon me. But if you are a taxpayer, if you fall into that category coercive powers apply to you. If you are engaged in companies, the ASIC coercive powers apply to you. If you are involved in the building industry, the coercive powers apply to you irrespective of whether you are an employer or an employee. Can you tell me what the material difference is between the ASIC coercive powers, ATO coercive powers, or the building coercive powers?

Mr Noonan : You have the advantage of me in that I believe you are a legal practitioner, Senator. But are you saying to me that the ATO powers would not, for example, allow an employee of a corporation to be examined? I do not know the answer to that. You are asking me to comment on something that I—

Senator ABETZ: You are here to answer my questions, not the other way round. But undoubtedly, like other union officials, we will see you in the Senate in due course—sorry about that; that was a terrible comment to make.

Mr Noonan : You will not see me in the Senate, Senator, I can guarantee you that.

Senator ABETZ: Good on you. I will ask about the compulsory notices that have been issued between 1 October 2005 to 30 April 2011. There were 54 put onto management and only 10 onto union officials.

Mr Noonan : I believe that is right, yes.

Senator ABETZ: That suggests that these so-called coercive powers are used in an equitable way against both management and union officials and, in those circumstances, isn't that equal treatment before the law? If you only had laws, for example, that said that we can use coercive powers against trade union officials but not managers, I would happen to agree with you. But these are coercive powers that apply across the board including to government witnesses and independent witnesses and to people involved in the building sector that might be able to provide evidence. So it is not one that only targets trade union officials or, for that matter, management personnel.

Mr Noonan : Senator, our submission also mentions—but you have not mentioned it in your opening so the Hansard will not show it—the first figure, which is 138 employees who were the subject of coercive notices.

Senator ABETZ: And do you know whether they—

Mr Noonan : The inequity in this is shown by that. In a practical sense, we have had members who have been approached by ABCC inspectors and told that unless they make certain statements they will be called to coercive interviews, that they will make sure that they are during working hours, they will make sure that they lose pay, and they will make sure they are inconvenienced. That happens. That is how these coercive powers—

Senator ABETZ: Yes, but for the 138 employees, you do not even know whether they are trade union members, do you? No.

Mr Noonan : I know that some of them are, because they have told me. They have told me about their experiences—

Senator ABETZ: Chances are, and common sense would dictate, that some of them would be trade union members—

Mr Noonan : Quite a few of them, I suggest—

Senator ABETZ: but we cannot assert that all of them are. Nor can you assert that these employees are necessarily part of the construction workforce. They could in fact be employees related to the building company in a different role not necessarily on the construction site, for example, that may have been the recipient of a phone call in an office. Do you agree with the proposition?

Mr Noonan : I would have thought that it was more likely that they would come under management, but you could be right, Senator. The difficulty with this is that this is a secretive process under which there is no scrutiny and no proper analysis about what happens at all. We do not know, but I do know that I have spoken to a number of construction workers who have been interrogated. Of course, someone who is subject to these notices has also been issued with secrecy notices, where they are unable to discuss the fact that they have been brought to a hearing. They cannot even discuss it with their spouse, they cannot discuss it with a minister of religion and they cannot discuss it with a psychiatrist or a counsellor. There are no exemptions under this legislation. Senator, if you have time, you might want to have a look at the work that Professors Williams and McGarrity have done on that question.

Senator ABETZ: Is that Professor George Williams?

Mr Noonan : Yes, George Williams.

Senator ABETZ: The one who sought Labor Party endorsement. You just reminded me. Thanks a lot. I then return to the building task force—

Mr Noonan : The constitutional professor.

Senator ABETZ: yes—that found that 52 per cent of the complaints were withdrawn by the complainants for fear of reprisal. The ABCC has given evidence previously that many witnesses in fact request the use of the power for their personal protection against intimidation by unscrupulous employers or unscrupulous trade union officials who might seek to intimidate them into not giving evidence. This has been an important mechanism to break down the culture of thuggery, illegality and coercive behaviours that have been found not only by the Cole royal commission but, indeed, also by a number of court cases. And your union has been paying huge fines on your very own union's pleas of guilty because you did not want the evidence to come out in court as to the sorts of behaviours your union had been involved in. That is the fact, isn't it? And your desire—

Mr Noonan : That is a question?

Senator ABETZ: Yes.

CHAIR: There have been some long questions and some long answers, but we are well over time. I will give you an opportunity to respond and then we will need to finish.

Mr Noonan : The Cole royal commission did not result in the prosecution of one union official or worker coming out of the terms of reference of that commission for industrial or criminal matters. In terms of the coercive powers, in our experience they are not used in that way at all. You ask Ark Tribe; you ask someone who has been subject to it as to whether he asked for that sort of protection; or ask numerous other people who have come forward who have been intimidated, bullied and degraded by the process of the ABCC interrogations. On their own admission, Senator, that has happened unlawfully and without authority. I would have thought that, as someone who represents something called the Liberal Party, you might have concerns about those liberties, but apparently not.

Senator ABETZ: On a point of order: possibly, we should provide this transcript to the ABCC because, if I heard Mr Noonan correctly, the suggestion was that bullying had been undertaken by the ABCC and that they had agreed that that had occurred, and that—

Mr Noonan : That is not what I said. What I said was that they agreed that the notice—

Senator ABETZ: All right—if that is not what you said, that is good and I misunderstood.

Mr Noonan : the very notice they issued—and the very pretext upon which those workers were brought before the committee was unfounded and unlawful. They have agreed with that.

CHAIR: I am sure the ABCC would be interested in the Hansard of this hearing anyway.

Senator ABETZ: It is a pity they have not been called as witnesses, Chair.

CHAIR: They did not put in a submission either. I am sure they know how to get the Hansard of the committee hearing. I am sure that is not beyond them. We will suspend for a moment or two. Thank you for your submission.