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Monday, 11 May 2015
Page: 2678


Senator BERNARDI (South Australia) (10:54): It gives me great pleasure to follow Senator Xenophon on one of those occasions when we are both supporting the same bill. I think the conclusion that we come to is that the construction industry is too important to be overrun by those that simply choose to ignore the rules as and when it suits them and then target those that dare to stand up and speak out. The FWBC compliance powers that exist to protect witnesses must be preserved until they can be provided to a re-established ABCC. These are the same compulsory powers of the former ABCC that were then retained by the Gillard Labor government and given to the FWBC. Because these powers, as has been explained, will sunset before the Senate can deal with the ABCC legislation in the coming weeks, we need to pass this protecting witnesses bill so that any current investigations are not prejudiced.

In researching these powers, I had occasion to watch a video that the CFMEU has put out on the compliance powers of the ABCC. To say it was rife with dishonesty would be an understatement. It was filled with dishonesty and false assertions. It was a work of fiction and, may I say, it was not a very good one at that. During my speech, I want to touch on the most egregious falsehoods in the video. Firstly, the dramatised clip shows three people literally standing over a witness and aggressively asking questions. This is completely dishonest. This indeed may reflect or disclose how the CFMEU conducts itself and its interviews but it is certainly not the case with the public officials at the FWBC and the ABCC. The irony of the CFMEU complaining about intimidation would be laughable if it were not that the consequences for victims of the CFMEU's intimidation and thuggery were not so devastating.

The video falsely claims that the ABCC powers would subject construction workers to laws which no-one else is subject to in Australia. This is nonsense. It is a complete fabrication. Firstly, let me be very clear: the ABCC powers are the same powers Labor gave the FWBC. Secondly, these powers are not new nor are they unique to the construction industry. The power to compel people to attend interviews and answer questions exists in ACCC, ASIC and APRA amongst others. These agencies have had those powers for longer than either the ABCC or the FWBC. So to suggest that these powers are unique to the construction industry is a deliberate falsehood.

The CFMEU also fails to disclose the important safeguards that apply to the FWBC and ABCC powers; the most significant being that any information given by a witness cannot be used against them in legal proceedings. Let me say that again: any evidence given by a witness cannot be used against them in legal proceedings. They are given an automatic immunity. This is why no-one who is suspected of breaking the law is ever examined. Even if a witness incriminates themselves by answering a question that information cannot be used against them. We should not forget that any witness can have a lawyer attend with them and that most FWBC and ABCC examinations are conducted by members of the independent bar. The CFMEU video also fails to mention that the FWBC pays witnesses their reasonable expenses, including the cost of their lawyer, their travel and any lost wages. Each interview is also tape and video recorded and witnesses are given a copy of the transcript to review and check.

I would also like to address an outrageous CFMEU falsehood I have heard; namely, that the ABCC or FWBC can come, and I quote, 'Take people off the street.' It is utter nonsense. This is nothing more than a desperate CFMEU ploy to scare and mislead people. If they have got nothing to hide why do they have to make stuff up?

But the worst and most dishonest aspect of the video is that it tries to piggyback off the important issue of workplace safety to oppose the powers. The video ends saying, 'Standing up for a safer workplace should never be a crime.' That is an absurd statement in that context. Of course it should not be a crime, and it is not a crime. It was not a crime under the former ABCC, it is not a crime under Labor's FWBC, and it will not be a crime under a re-established ABCC. This is just another terrible example of the unions misusing safety to promote a self-interested and purely industrial agenda. The CFMEU video ends by saying that those that stand up for safety should not be treated as criminals. Let me tell you they are not. For too long the unions have falsely cried safety as a lazy defence for their unlawful and unethical industrial conduct. They have cried wolf so often that they can no longer be believed.

Just so there can be no misunderstanding, I want to get a few facts onto the record. The former ABCC, Labor's Fair Work Act 2009, Labor's FWBC and the proposed ABCC all use the same standard when it comes to safety. If an employee has a reasonable concern about an imminent risk to his or her health or safety, it is not industrial action for that worker to stop work. This is the same rule that applied to construction workers under the former ABCC, that currently applies under Labor's current legislation and that will apply under a re-established ABCC.

In misusing safety for industrial purposes, unions only do their members a great disservice. On the broader need to re-establish an effective framework, I noted with interest that the Victorian State Secretary of the CFMEU, Mr John Setka, has sought to justify and excuse his unlawful conduct with a rather pathetic statement, 'I'm no choirboy,' as though this somehow justifies his intimidation and threatening conduct.

I would like to examine for a moment some of this conduct. Someone stands over others, intimidates and coerces them and then threatens them with reprisal if they speak out but then seeks to deprecate their behaviour with the words, 'I'm no choirboy,' as if that makes it okay. In 2003 it was reported that Setka, acting as a CFMEU official, threatened to 'fix up' two construction managers who were witnesses in an industrial relations case—but hang on: under Mr Setka's logic, he is no choirboy and we accept that, so it must be okay. Setka was charged with two counts of threatening the two Grocon employees as well as two counts of conduct 'calculated to improperly influence' the two witnesses to the commission case. Mr Setka was reported to have said to a manager: 'You effing watch, I'll get you. I've got a 12-year-old son and I swear on his effing life. You watch; I'll fix you up.' But don't worry about it; it's okay to make such threats because Mr Setka wants us to accept, as he accepts, that he's no choirboy! Thankfully, the court saw Mr Setka's threatening of witnesses for what it was and, choirboy or no choirboy, he was found guilty. Let's not forget this was conduct by the now State Secretary of the CFMEU targeted towards people who were going to stand up and speak out as witnesses in a commission case.

But I cannot pretend it is just one individual. It is not just John Setka. This is not a case of one rogue individual; it is a case of an endemic culture pervading this union and its officials. The royal commission interim report found in respect of senior CFMEU official Shaun Reardon:

In the weeks following the accident Mr Shaun Reardon (the Assistant State Secretary of the CFMEU) attended the site, shook the fence and yelled obscenities and threatening comments.

A witness statement further elaborates on Mr Reardon's behaviour and states, 'Shaun Reardon, who was an organiser, would regularly attend the Pentridge Village site and taunt, by shaking the fence and yelling, "We're going to get you and your family!" to a subcontractor and other staff on site.' In New South Wales we heard of the on-site conduct of CFMEU official Luke Collier—conduct aimed at sexually harassing and intimidating female FWBC inspectors on site. This is the same individual who failed to disclose serious criminal convictions in his application for a right-of-entry permit despite signing a statement acknowledging that he did not have any prior convictions.

We remember footage coming out of the royal commission of a South Australian CFMEU organiser physically assaulting an FWBC inspector on a construction site in Adelaide, verbally abusing and intimidating the independent public official. We recall the history of Craig Johnston, the former AMWU official who was jailed for a violent and destructive 'run through' of an employer's premises during an industrial dispute—a run through which left a pregnant worker cowering under her desk during the violent incident. After prison the CFMEU welcomed him with open arms to join the ranks of its officials.

And, back in Victoria, Setka's heir apparent at the CFMEU, Shaun Reardon—let's consider him again for a moment. Let me remind the Senate and ask people to recall the CFMEU dispute with Grocon. We remember—or we should—seeing images of workers on the news having to be bussed into the site through a back entrance because the CFMEU did not let them through.    And who was waiting for the workers at the back entrance as the police escorted their bus? None other than Mr Shaun Reardon. And what was he doing? He was using his phone to take video recordings of the faces of those workers that were coming off the bus and going to work.

I wonder why Mr Reardon and the CFMEU were so interested in identifying who the workers were that were going to work despite the CFMEU's blockade. Why was it necessary for the union's second in command to take video identifying who wanted to work? One would hope it would have absolutely nothing to do with creating scab sheets and organising retribution. Regrettably, that appears to be precisely what has happened. There was a poster—and I will not use it as a prop, but I will refer to it here—named 'Grocon's scabs named and shamed', in which photos of construction workers were put on a sheet of paper, and it says:

Get rid of these scabs out of our industry. They will never be forgotten.

That sort of shameful outing of people who just want to go to work, get on with it and not be part of the CFMEU's scandalous and outrageous conduct is a shameful thing. The same thing happened in Queensland, where it says:

Grocon flew these grubs to Queensland to cross a picket line and is paying them to do its dirty work in Victoria. Get rid of these scabs out of our industry. They will never be forgotten.

I can only presume that the photos and names appearing on this were taken from Mr Reardon's mobile phone footage.

It is a shame on the CFMEU to pursue this sort of activity in this country. It is a shameful confirmation of the mentality of the industry: that you do what the union tells you and, if you stand up or you speak out or, God forbid, you just want to go to work to put some food on the table for your family, you are going to be targeted. Who can deny, with the overwhelming amount of evidence that is available, that there is a culture of intimidation, threats, fear and reprisal for speaking out against injustice in the CFMEU?

That is why the compulsory powers are so necessary to protect witnesses. As a first step, we have to pass this stopgap protecting witnesses bill. As a necessary second step, we must re-establish the ABCC and return the rule of law to this industry. I will be supporting this bill.