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Monday, 11 May 2015
Page: 2672


Senator RICE (Victoria) (10:28): I rise to speak on the Construction Industry Amendment (Protecting Witnesses) Bill 2015. This bill arises from a desperate attempt of the government to retain the draconian powers that arose out of the establishment of the Australian Building and Construction Commission, which was subsequently abolished by the parliament and which the government has sought to re-establish. Because it was clear that the Senate would not support the reinstatement of the ABCC, the government has done a deal to retain the remaining coercive powers continued after the ABCC was abolished by extending the sunset clause in the act.

I want to make it crystal clear that, unlike others in this place, the Australian Greens will not participate in an attack on workers' rights. There is no justification for the coercive powers that cover the building industry to be extended for another two years. The powers and the criminal sanctions which attach to it are excessive, unnecessary and inconsistent with internationally recognised labour standards and the industrial norms of a modern democracy.

We will be opposing the bill. The current powers of inspectors operating under the Fair Work Act 2009 are adequate to allow for satisfactory investigations. These inspectors are able to enforce industrial laws. The Fair Work Ombudsman as an industrial regulator has the necessary powers to be an effective body for the industry.

Under current federal legislation there are two separate and separately funded statutory agencies enforcing one set of industrial laws. The Fair Work Ombudsman was established under the Fair Work Act, and the Office of the Fair Work Building Industry Inspectorate was created by that act. Although the Office of the Fair Work Building Industry Inspectorate is confined in its role to laws applying to building workers, its statutory mandate is virtually identical to that of the Fair Work Ombudsman.

Since the introduction of the Fair Work Amendment Act 2012 there is no difference in the laws that the Fair Work Ombudsman and the Office of the Fair Work Building Industry Inspectorate enforce or the penalties which apply to any contravention of these laws. In particular, it is important to note that neither the Fair Work Ombudsman nor the Office of the Fair Work Building Industry Inspectorate has any role in enforcing criminal laws covering such things as intimidation, blackmail or offences under the Corporations Act. These are matters that are being discussed as justification for this bill's passage.

It is really important to realise that, if this bill is rejected, the Office of the Fair Work Building Industry Inspectorate inspectors will have the same powers in respect of building matters as those available to inspectors of the Fair Work Ombudsman under the Fair Work Act. There has never been any suggestion that these powers are ineffective or inadequate for an industrial inspectorate. To the contrary, the Fair Work Ombudsman has proved an effective regulator and has used all of its available powers to investigate and prosecute industrial matters in an uncontroversial and apolitical way.

Further, the Office of the Fair Work Building Industry Inspectorate's own records show that there has been very limited recent use of these powers at all. The most recently published report of the FWBII shows that its coercive notices were relied on only four times in 2013-14 and only twice in 2012 and 2013. The fact is the Office of the Fair Work Building Industry Inspectorate has not used these notices to cover for large numbers of witnesses, as it is claimed, who would not come forward without them.

The Greens are opposed to the use of coercive powers in the industrial context. These powers and the associated criminal sanctions have no place in a democratic society. There is no justification for introducing this measure which allows certain workers to be secretly interrogated. These measures are inconsistent with international labour standards. The civil penalty supporting the power to require production of documents and records is an adequate deterrent.

The powers and the criminal sanctions behind them represent a serious incursion into the civil liberties of Australian citizens which is unwarranted in a workplace context. They are plainly not critical to the investigation and enforcement processes of the FWBII. The powers conferred by the Fair Work Act are adequate and proportionate to the purpose of industrial investigations.

Workers in the construction industry should come under the same laws as all other workers. If this bill is passed, it will mean that workers could be subject to arbitrary interrogations. This is a form of harassment and intimidation that runs counter to the norms of a fair society. It is relevant to consider where support for this legislation is coming from. Vigorous support is coming from those who profit enormously in the construction industry. As many construction company owners mistakenly equate union activity with reduced profitability, they have in turn supported coercive powers, executed by a publicly funded prosecutor of unions and workers.

The regulation of the construction industry should come under the same regime as that which covers all workers and their employers. The Combined Construction Unions noted in their submission that the Wilcox inquiry did not support the extension of coercive powers beyond 2015. They stated:

… Wilcox was satisfied that the Parliament, in introducing the Fair Work Act, had recently considered what the federal labour inspectorate should look like and what the necessary and appropriate powers of such a body would be. His view was that whilst there might be some temporary short term focus on the construction industry, this should be through administrative arrangements only and could be carried out through the FWO. There should be no ongoing statutory agency like the FWBII and no ongoing need for coercive powers of the kind provided for by this Bill.

There is no good reason to extend these coercive powers for a further two years. The existing powers of inspectors under the Fair Work Act are more than adequate to allow for effective investigation and enforcement of industrial laws. The idea that there should be coercive powers above and beyond those enjoyed by the Fair Work Ombudsman, especially when these are focused on employee and union conduct, offends against the most basic principle of equality before the law.

The proper objective should be to do away with these extraordinary powers and return the regulation of the construction industry to the same regime as applies to all other Australian employees and employers. There should be no separate agency and no separate powers in the form outlined in this legislation; therefore, the Australian Greens will absolutely be opposing this bill.