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Monday, 11 May 2015
Page: 2674

Senator McKENZIE (Victoria) (10:37): It gives me great pleasure to rise to speak in support of the Construction Industry Amendment (Protecting Witnesses) Bill 2015. This is important and urgent legislation to preserve the existing investigative powers of Fair Work Building and Construction. This stopgap bill will allow more time for senators to consider the broader problems with the current regulation of the building and construction industry—problems that can only be rectified through re-establishing effective legislation and re-establishing the Australian Building and Construction Commission. The pressing issue today, however, is that the compulsory powers of the current regulator are due to expire on 31 May 2015.

The Labor Party would have been happy to do away with these compulsory powers when it abolished the ABCC in 2012 but its own review of the construction industry recommended against this course. In the Labor inquiry into the ABCC in 2009 former Federal Court judge Murray Wilcox QC said that he could not recommend getting rid of the compulsory powers because to get rid of them—and it is a pity that Senator Cameron has left the chamber and cannot hear the words of Justice Wilcox—'would not be a responsible course'. He went on to say, 'The reality is that, without such a power, some types of contravention would be almost impossible to prove.'

So Labor were in a sticky place. They wanted to abolish the powers to appease the ETU and the CFMEU but only by flying in the face of the evidence in their own report and ignoring its recommendations. It is very quiet on the other side. This is why Labor retained the ABCC powers. Let us be very clear—the powers we want to extend today are the very powers Labor introduced in their legislation. Even though Labor kept the former ABCC's powers, they included a sunset date of 31 May 2015. Labor also watered down the industry regulator's authority, cut the maximum penalty for wrongdoing by two-thirds, removed a third of the regulator's staff and cut a third of its funding.

Any independent observer will agree that the level of respect for the law in the industry has not improved since Justice Wilcox made his recommendations to Labor. There remains an unacceptable level of unlawfulness and disregard for the rule of law exhibited by some in the building industry. The reality is that the present legislation is simply not enough to deter certain elements from repeatedly breaking the law as and when it suits them. For this reason the coalition government is committed to re-establishing an effective regulator in the ABCC. But while senators take the necessary time to consider the ABCC legislation we cannot afford to lose the compulsory powers that are necessary for the FWBC to carry out its role. This is what the protecting witnesses bill will do.

Whilst this stopgap measure is important, we must not lose focus on the underlying problem—a problem that the former ABCC was starting to address before it was abolished in 2012. Labor experimented with a weaker replacement framework and regulator after it abolished the ABCC but that experiment has not been successful in bringing the rule of law back to the industry. Labor gave the construction unions an opportunity to improve their conduct. It was quite literally only weeks after Labor abolished the ABCC in 2012 that the CFMEU, supported by the ETU and other construction unions, shut down part of the Melbourne CBD for days in the infamous Grocon dispute. We have all seen the footage of the violence and thuggery unleashed on the streets of Melbourne by the CFMEU and ETU as part of the CFMEU's attack on Grocon and its workers.

What made this worse was that the blockade occurred in defiance of court orders—court orders, mind you, that the then newly weakened regulator did not seek. Indeed, the CFMEU has been before the courts 87 separate times since 1999. Just this year we heard from the Director of the FWBC that at that one time 72 CFMEU officials, including almost all of the union's state secretaries, were before the courts or industrial tribunals in a number of cases.

The courts have repeatedly made reference to the CFMEU's blatant disregard for the law. The Heydon royal commission found in its interim report that 'a culture of wilful defiance of the law appears to lie at the core of the CFMEU'. In a decision delivered by the Federal Court only the week before last the Federal Court found:

Mr Latham asked what the ramifications would be if—

the company—

did not enter into an enterprise agreement with the CFMEU. Mr Edwards—

the then CFMEU Victorian President—

answered that the CFMEU was going to 'f*** you over'.

My apologies to Hansard. The court also said:

This is but one of many examples of the CFMEU's sense of entitlement to pursue its objectives by any means, lawfully or unlawfully.

This is yet further evidence of the failure of Labor's watered-down legislation.

The FWBC is already weak. We cannot let it lose even more of its powers. So there is no misunderstanding I once again highlight that this stopgap bill simply extends powers which Labor retained from the former ABCC and which Labor gave to the FWBC. There is false outrage from those opposite—and Senator Cameron did quite a job. I love the fact that he regaled us with his interpretation of the Senate estimates process and his interactions with Nigel Hadgkiss. I encourage anyone who is interested in this issue to go to that transcript. It is fascinating reading. Despite the false outrage from those opposite, the Gillard government understood the need for the compulsory powers in this particular industry. Labor preserved and retained the ABCC compulsory powers. The coalition is now seeking to preserve these powers today until the ABCC is re-established.

The Senate Education and Employment Legislation Committee recently handed down its report on this bill. This is a committee that I chair. Labor members of the committee delivered a one-page dissenting report recommending that the bill not pass, which is somewhat extraordinary given, as I have said before, that we are dealing with the continuation of their own policy, of legislation introduced by Labor under the Gillard government. The Labor senators on the committee relied on two arguments to oppose the bill, both of which misstate and misunderstand the problem in the industry and history.

This is, frankly, a desperate and dishonest approach that has been taken by Labor senators, and it ought to be called out for what it is. Labor needs to write more than one page to explain why something that was good enough for Gillard Labor is not good enough for Shorten Labor. The two false arguments the Labor senators relied on were, firstly, that there is not a need for special powers in the construction industry. What an extraordinary position to take. I have spoken in this place a number of times, for anybody who has taken the time to listen, on what the CFMEU and other unions have been doing; their behaviour within the industry and external to the industry itself is unlawful. It seems these Labor senators have been absent for the last number of years and have missed the repeated instances of unlawful industrial conduct in this industry by construction unions, most of which is backed by intimidation, thuggery and the coercion of those too weak or too scared to stand up to the CFMEU and its thugs for fear of retribution.

It is incredible that Labor senators could ignore the mountain of evidence disclosing this enormous problem and this specific issue in the industry. It is a problem which Labor's own 2009 review highlighted and relied upon in recommending the retention of the ABCC powers. There was then and, regrettably, there still is now a culture of industrial unlawfulness in the construction industry. For many years it has been only too clear that the commercial building and construction sector provides the worst examples of industrial unlawfulness. No other industry comes close.

If Labor and its senators have not lost all credibility on this issue by suggesting there is nothing unique about the level and type of unlawfulness in the construction industry, one only needs to look at their second reason for not supporting the bill. The second, absurd, reason is that the government has not consulted enough. Seriously, what a joke! What an absolute joke. I cannot believe you could stand there with a straight face and make that accusation or assertion. The legislation to re-establish the ABCC, which retains the same compulsory powers we are talking about extending today, was introduced into the House of Representatives in the first sitting week of this coalition government. These compulsory powers have been a clear feature of the ABCC legislation from day one, and the powers have been discussed, explored and consulted upon. And, I might add—as the senator who chairs the committee responsible for this type of legislation and the deputy chair of the references committee which also examines this type of issue at the wont of Labor Party senators—they have been discussed in excruciating detail in both houses of parliament and numerous consultative forums. The bill that deals with these compulsory powers has been subject to not one, not two, but three separate Senate inquiries—two inquiries by the legislation committee and one by the Labor controlled references committee. These three Senate inquiries, each of which considered the compulsory powers, have received hundreds of pages of submissions from employer groups, employees, unions, industry and government. There have been numerous days of hearings in Canberra and elsewhere, and dozens and dozens of pages of reports have been published, yet Labor senators of the committee have the gall to say there has not been enough consultation and that is the reason they are opposing the bill. What a joke! What makes the Labor senators' dissenting report and the Labor position so intellectually dishonest is that these same Labor senators were part of the three other reviews.

The honourable thing for Labor senators to do today would be to vote for the extension of powers given to the FWBC by their own former Prime Minister—to stand by their own legacy. But I guess, when construction unions are the Labor Party's loan sharks, there has to be a payoff. You have to pay the piper, even if it results in witnesses and whistleblowers in the construction industry not having protection from reprisal by Labor's favourite union thugs for daring to speak out.