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Wednesday, 15 February 2017
Page: 1049

Senator CASH (Western AustraliaMinister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (18:05): Senator Cameron, the answer to your question is no. In relation to what you are implying, you seem to fail to understand certain things. In the first instance, compliance with the Building Code is voluntary. It is an opt-in scheme. If companies do not want to undertake Commonwealth funded government work they do not have to opt in to the scheme. There are also, as you know, many, many companies that have held out since they were given the advance release of the Building Code, many of them small and medium businesses, and they are ready, willing and able to negotiate with the CFMEU, should the CFMEU wish to negotiate with them.

In relation to those who have a non-compliant agreement, if they do not tender for and are not awarded government work, again, the provisions of this code do not become relevant for them until they do that. For those companies which currently have a non-compliant agreement, they do not have to renegotiate their entire agreement, Senator Cameron. That is wrong. All they have to do is vary the clauses that will offend the provisions of the Building Code. For example, if a company has an agreement that has one clause in it that offends the Building Code and the company wishes to tender for a future project, that company merely has to vary that one particular clause—that is it—to become compliant under the Building Code.

Again, for the record, certain companies—for example, Lendlease—have already negotiated with the CFMEU. This agreement I have here is an agreement that was made in 2016, which specifically, at clause 7.3, provides—for the benefit of those listening to this debate I will read it—as follows:

7.3 Compliance for government funded building work

(a) It is recognised by the Parties that whilst this Agreement is in operation, Commonwealth, State or Territory Governments—

Not just the Commonwealth government—

may impose particular requirements on the content of enterprise agreements in order for the Company to be eligible for future government funded building work. It is essential that the Agreement is compliant with any such requirements in order for the Company to remain eligible to tender for future government funded building work. If any new requirements are promulgated during the life of this Agreement, which impact on the content of this Agreement, this clause will be applied.

The clause goes on, so clearly the parties had a very clear intent that in the event that the Building Code, in this case, was to change, they would enable the following:

(b) In this event, the Parties—

Lendlease and the CFMEU; they are the parties to this agreement—


It is already agreed between Lendlease and the CFMEU; that is not in dispute—

to apply to the FWC to terminate this Agreement in accordance with the Fair Work Act (within 7 days of any such requirement being promulgated) and the Company and Employees will commit to negotiating a replacement Agreement which is compliant with any such requirements.

But they go on further to state: 'The company will seek to ensure that no employees are financially disadvantaged as a result of the termination of the agreement'. So, Senator Cameron, what you have there is a clear acknowledgement—by, in this case, Lendlease and the Construction, Forestry, Mining and Energy Union, or the CFMEU, New South Wales, Australian Capital Territory, Victoria and Tasmania—that in the event that the laws change, the union and the company have agreed to do what they need to do—application within seven days—to ensure the agreement complies with the relevant law.