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Monday, 11 May 2015
Page: 2686


Senator ABETZ (TasmaniaLeader of the Government in the Senate, Minister Assisting the Prime Minister for the Public Service and Minister for Employment) (11:33): I thank honourable senators for their contributions, especially Senator Muir—except, I think for the last line of his speech; I would have liked him to have absolutely committed himself to support of the ABCC legislation of which in fact this bill is part and parcel.

As the Senate continues its consideration of the ABCC legislation, it has become necessary to address the expiry of the Fair Work Building and Construction's compulsory powers later this month—namely, on 31 May. It is crucial the Senate passes this stopgap bill so current and ongoing investigations are not compromised.

The compulsory powers of the FWBC and ABCC are essential to piercing the sinister veil of silence from witnesses and victims because they fear retribution and reprisal for speaking out against the intimidation that we so often see in this industry, most commonly on the part of the CFMEU. These powers are essential to give witnesses the protection of saying to union thugs and unscrupulous figures who threaten them not to cooperate with authorities that they were compelled and did not have a choice.

We heard, in the royal commission, Assistant Commissioner of Police Fontana give evidence that the Victoria Police were unable to continue numerous investigations because, even though witnesses were happy to tell police their story, the witnesses were too scared to sign their name to the statements. One wonders why they were too scared. The answer of course is: they would be targeted if they spoke out, and this is regrettably indicative of the state of the industry.

This same sentiment was expressed by FWBC Director Hadgkiss when he gave evidence in Senate estimates recently—and I note that Senator Cameron, true to form, once again attacked Mr Hadgkiss under parliamentary privilege, and doing so to a statutory office holder indicates the depths to which Mr Shorten will sink in asking his frontbench to come in and make those sorts of comments. What Mr Hadgkiss told Senate estimates is this:

We certainly have people in mind who have told us things off the record, but who are not prepared to go that one step further to provide a statement or to give an affidavit. But they have indicated that were we to exercise a compulsory examination that, obviously, they would come in and tell us what they saw and what they witnessed.

I simply say that these powers that we are seeking to extend are nothing new. Indeed, compulsory powers of a very similar, if not identical, nature—which includes failure to comply having a consequent term of imprisonment—are not rare. That sort of power exists with other regulators such as ASIC, APRA and the ACCC. Where is the cry of human rights when we impose that sort of legislative framework on company directors? There is no problem there according to Labor and the Greens. But yet when you want a similar situation for the construction union of this country and employers engaged in that sector—and it is a sword that cuts both ways that is both for the trade union movement and employers—there is this squeal of human rights.

What none of the Labor contributors said today, nor will they ever admit publicly, is that Labor's very own Fair Work Act, which they all campaigned for and voted for in the late 2000s, provides terms of imprisonment if a person fails to attend the Fair Work Commission or refuses to answer questions. Where is the outrage there? No problem there. It nearly seems as though the construction union, the CFMEU, should be sacred territory on which the law that applies to virtually every other citizen should not apply to them. I simply ask, rhetorically: where is the confected outrage from Labor and the Greens or the unions in relation to these compulsory powers that exist in the Fair Work Act? It is legislation they championed through this place.

Unlike the Fair Work Commission, the FWBC and ABCC compliance powers have significant safeguards. Key amongst them is that any evidence they give in an ABCC compulsory interview cannot be used against the witness. The other safeguards under the FWBC and ABCC compulsory powers are that witnesses are provided with at least 14 days written notice, entitled to have a lawyer present and reasonable expenses, including legal fees and travel, are covered. They receive conduct money to cover wages. The hearings are taped and video recorded. And a witness gets a copy of the transcript and an opportunity to correct it to their satisfaction. All of this is overseen by the Commonwealth Ombudsman. Not all of those provisions apply in relation to the other compulsory powers that I have just referred to.

There are many other aspects of the FWBC framework that we must also fix. Labor's weak regulator experiment of abolishing the former ABCC and replacing it with a weak imitation has been a monumental failure. Since the abolition of the ABCC, respect for the rule of law in the industry has become worse. One of the reasons is that the penalties clearly have not worked to deter people from breaking the law, and repeatedly so. The courts have said time and time again that the CFMEU continues to ignore the law despite the imposition of penalties. The maximum penalties are not acting as a deterrent and that must be addressed.

We must also establish an effective building code to ensure that those contractors that want to do taxpayer funded work pay their employees correctly, strictly comply with safety laws and do not violate migration laws. We must make an emphatic statement to everyone in the industry that cutting corners on any legal obligations is no longer an option. We must also ensure that those contractors do not engage in antiquated practices that only delay and add costs to the taxpayer. An effective building code means more public infrastructure gets built for the taxpayer and more jobs for the industry. If projects are not delayed and cost blow-outs are avoided, everyone benefits.

The CFMEU and ETU falsehoods about the code, including fanciful assertions that it bans days off on Christmas or that it bans penalty rates and rostered days off, have been debunked for the desperate scare campaign that they are.

Another problem with the current legislation is the completely absurd and unprecedented limitation imposed on the FWBC and its ability to enforce the law. The FWBC currently has no power to commence proceedings when someone who breaks the law reaches a 'private settlement' of legal proceedings with a person affected by the breach—that is, private parties can prevent the independent regulator from starting legal proceedings or, if it has commenced proceedings, from continuing them. These changes create the perverse outcome where wrongdoers have an incentive to also pressure their victims into so-called settlements to stop FWBC from holding them to account for breaking the law. It is the equivalent of an employer underpaying an employee, then pressuring that employee to settle for a nominal $5 payment and the regulator being unable to pursue the employer for a breach of workplace laws, or of a motorist running a red light and crashing into another car, settling with the other driver to pay for the damage and then the police losing the power to prosecute the driver for running the red light because of the private settlement. No other government regulator has the same limit on its powers. Why would you impose such a limit on the powers of the FWBC? An answer has never been given by the Australian Labor Party or the Australian Greens, who forced that through the Senate in the death throes of the previous government.

These amendments were introduced and then rushed through the House of Representatives in one day. The absurd limitation was condemned at the time, including by the Law Council of Australia, and this must also be addressed through the re-establishment of the ABCC.

We should not be surprised that Labor introduced this ridiculous amendment limiting the powers of the FWBC. After all, we heard a few weeks ago in the royal commission evidence from a senior former ETU official, Dean Mighell, when he disclosed that Labor traded policy positions for loans and donations from the CFMEU and ETU. Mr Mighell was quite open when he gave evidence that:

Given that the Federal ALP is desperate for funds, surely we can say that we will help them if and only if, they abolish the ABCC.

Out of a trade union official's mouth, under oath, is the evidence for all to see. I continue the quote:

I can tell you for a fact that unions are donating to Federal Labor for outcomes not promises.

And here they are—and undoubtedly later today they will vote according to the ETU and CFMEU wishes, courtesy of the money that has been paid over.

And, just in case you think that might be fanciful, let me join Senator Cameron's contribution earlier—and let him say that all those donations should be returned to the union. He spoke of a figure of $400,000. Let me give some context—and I call on Labor to return donations it has received from its key backers in the CFMEU and ETU. In 2010-11 the unions donated $11 million to the ALP, including $1.72 million from the CFMEU, $1.73 million from the ETU and $932,000 from the CEPU. Indeed, in recent times we have heard how the ETU made loans available to the then secretary of the ALP in New South Wales, now Senator Dastyari, who projects himself as the man for all financial rectitude. The loan was dealt with by a post-it note and not even recorded in the official minutes. The $500,000 and the other hundreds of thousands of dollars that he was able to get from the various trade unions were so desperately needed for the Labor Party to stay afloat, but of course $350,000 of that money went to pay for legal fees for one Craig Thomson so that the Gillard government could remain in power. This is the power of money talking and that is why, regrettably, the ALP and the Greens are going to vote the way that they will, I am assuming, later on today.

Can I simply say that Senator Cameron and Labor have lost all credibility in relation to this issue. We have seen, regrettably, Senator Cameron, on behalf of Mr Shorten, going into Senate estimates and running a defence for Luke Collier—for his despicable actions at a New South Wales site where all sorts of inappropriate, sexist and foul language was directed at a female public servant. Labor does not seem to want to condemn that but ran arguments about privacy when it was discovered that this particular person, who was an official of the CFMEU, had not disclosed prior convictions in his application for a right-of-entry ticket.

Those are the sorts of issues that we are dealing with in the construction sector. The construction sector is a vital sector. It is important. It is jobs-rich. And that is why it should not be subjected to the sort of blackmail that we have now seen over the years. Indeed, the Labor Party had its own inquiry under Justice Wilcox as to whether or not it was necessary for these coercive powers to continue. I confess I was one of those who assumed that it would be a foregone conclusion what Mr Wilcox would determine. But he himself was mugged by the overwhelming evidence, and he said that the coercive powers need to be retained.

So the question then is: having made that determination, what has occurred since Justice Wilcox's findings and Labor's own legislation that would lead you to a conclusion that these coercive powers are no longer necessary? Indeed, all the evidence is that things are getting worse, courtesy of Labor pulling the teeth of this very important watchdog that the Howard government had implemented to protect workers, to protect businesses and to protect those union officials who actually wanted to do the right thing by their workers and not engage in the sort of funny-money games that Dean Mighell and others have now exposed.

Can I say briefly in response to Senator Lines: of course we all support workers; of course we all support safety; and of course we all acknowledge the trade unions have a place. But if this legislation is, as she tried to say, 'Tea Party, right-wing ideology', can I simply remind her that her party introduced this legislation and voted for it only a matter of a few years ago. So does she say that she and her party were Tea Party propagandists only a few years ago? Of course not. The evidence is there. It is clear and it is regrettable. In my ideal world there would be no need for such a body. But the evidence is overwhelming and, given the overwhelming evidence, I encourage all honourable senators to support this stopgap measure, which simply extends the current powers of the Fair Work Building and Construction body to be able to protect witnesses when they give their evidence for another period of two years, during which time we will, hopefully, see the reintroduction of the full Australian Building and Construction Commission.

Mr Acting Deputy President, I notice Senator Lambie coming into the chamber. In the event that she would seek to make her contribution now, I can indicate we would give leave.

The ACTING DEPUTY PRESIDENT ( Senator Whish-Wilson ): Thank you for pre-empting that, Senator Abetz. Senator Lambie did approach the chair and ask to speak, so, with permission of the chamber, Senator Lambie, please go ahead and speak.