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Monday, 12 October 2015
Page: 7252


Senator JOHNSTON (Western Australia) (11:59): This is a very important bill. It delivers on key aspects of the coalition's election policy but I emphasise does go no further. Indeed, on union workplace access, individual flexibility arrangements and the removal of the ability to strike first and talk later we are delivering on specific, known and identified policies which were also, in many respects, adopted by the Labor Party prior to the 2007 election but which were not followed through upon.

Through our Fair Work Amendment Bill 2014 we are giving effect to a number of commitments in our policy and further restoring balance to the system. We will do this by improving the process for the negotiation of greenfield agreements to ensure that unions can no longer frustrate bargaining for these agreements through unsustainable claims and delays which can threaten investment and delay the commencement of major new projects that are crucial to our prosperity, particularly in my home state of Western Australia.

The bill will also restore union workplace access rules, reflecting those in place prior to Labor's unbalanced amendments, dealing with excessive right-of-entry visits by union officials. This morning I want to emphasise what is happening with union rights of entry to the workplace. The bill will also improve workplace productivity and flexibility by enhancing the scope for employees to make individual flexibility arrangements that meet their genuine needs as determined by those employees. We are closing the 'strike first, talk later' loophole in good faith bargaining rules which Labor has consistently refused to address. We will also maintain the value of unclaimed wages recovered from workers by the Commonwealth.

Let's talk about one of the most important aspects of this particular bill—that is, union workplace access. The Fair Work Amendment Bill will address the current imbalance in union workplace access rules. The government's changes will fairly and sensibly balance the right of employees to be represented in the workplace if they wish to be with the right of employers to go about their business without unnecessary disruptions. The government see right of entry as a specific statutory privilege to which conditions ought to apply. Regrettably, some union bosses do not agree with this very balanced approach.

In 2007 the Labor Party promised on numerous occasions that there would be no changes to the union right-of-entry laws. In a press conference on 28 August 2007 then deputy opposition leader Julia Gillard said, 'We will make sure the current right-of-entry provisions stay. We understand that entering on premises of an employer needs to happen in an orderly way. We will keep the right-of-entry provisions.' This specific promise was deliberately broken, in a calculated way. Unions were given much easier and wider access to workplaces under the Fair Work Act provisions which were then clearly anticipated and badly exploited by unions, particularly the CFMEU. This has meant that many businesses have faced excessive workplace visits from unions, even when their employees are not union members and have not asked for a union presence. The problem has been exacerbated in some workplaces by unions competing to represent employees at that workplace. There have been demarcation disputes and running battles on workplaces throughout Australia by unions seeking to acquire union dues.

The problem was highlighted by the former government's fair work review panel. It noted that the Pluto LNG project received over 200 right-of-entry visits in only three months. Two hundred visits by union officials giving notice of their attendance on particular days at particular times in only three months meant that day-to-day work scheduling was almost impossible. BHP Billiton's Worsley Alumina plant faced 676 right-of-entry visits in a single year. There were 676 notices issued to attend at a time and a place at the employer's workplace in a single year. Our changes will reduce the capacity for unions to deliberately harass and disrupt businesses in this way.

A recent case featuring CFMEU national president Joe McDonald has underlined the urgent need for these reforms. In a recent case Mr McDonald and the CFMEU were fined a sum of $193,600. In this case Mr McDonald ignored consultant requests to leave a site owned by CITIC Pacific's Sino iron ore project in Western Australia. When asked to leave the site because he did not have a right-of-entry permit—that is, he was on the site without a permit—Mr McDonald replied, 'I haven't had one for seven years and it hasn't effing stopped me.' Mr McDonald's attitude regrettably reflects the dark underbelly of the union movement that should have no place in modern and fair workplace industrial relations. In this place, most reasonable senators would agree that this sort of conduct is unacceptable. However, the Labor Party seem to want to defend this type of conduct again and again.

To be clear, the amendments in this bill will enact Labor's publicly stated promise prior to 2007, a promise that was not honoured. Given that the Labor Party in opposition, with the strong support of the union movement, supported the 2007 policy platform, we expected these amendments would not be contentious. But of course we now know that, in accordance with the requirements of their union masters, Labor senators in this place will be doing the bidding particularly of the CFMEU.

Most union officials will find these changes will not impact on their sensible approach to their right-of-entry activities. There has been no greater advocate than me for union right of entry, particularly in sweatshops in the clothing and manufacturing industry in Australia, when there have been clear requirements for a strong union presence to expose the exploitation of workers. But in the events I am about to put to the Senate you will see that there is clearly, unequivocally a gross abuse of the right of entry into workplaces happening, particularly in my home state of Western Australia. Currently, right of entry for discussion purposes can occur when the relevant union is entitled to represent the industrial interests of the employees in the workplace. This means unions can enter and hold discussions even if they have no actual members at the workplace and no-one has sought their presence. I go back to the fact that Worsley aluminium plant in Western Australia faced 676 rights of entry visits in just one year.

This bill will amend the provisions so that the ability for unions to enter a workplace is either tied to a union's recognised representative role of the workplace or employees at the workplace have requested the union's presence. I would have thought this was common sense. A union will only be entitled to enter a workplace for discussion purposes, if they are covered by an enterprise agreement or they have been invited by a member or employee they are entitled to represent. If the employee who would like the union to come to their workplace wishes to remain anonymous, a union will be able to apply to the Fair Work Commission for an invitation certificate. The Fair Work Commission must issue a certificate, if it is satisfied that a worker who performs work on the premises and whom the union is entitled to represent has invited the union to the workplace to hold the discussion. The certificate will not identify the employee who has made the request for the union's presence. This will restore the balance in the right of entry regime so that it is similar to prior to the commencement of the Fair Work Act consistent with the bipartisan consensus prior to the 2007 election.

The bill will also provide an effective mechanism for the Fair Work Commission to deal with disputes about excessive right of entry visits for discussion purposes. The previous government's amendments to the Fair Work Act in this area were drafted in a way which renders them largely ineffective and only able to be used in extreme circumstances where there has been an unreasonable diversion of the occupier's critical resources. These amendments will remove the restriction to ensure the commission has the power to properly deal with excessive right of entry visits—again, I say that 676 right of entry visits in one year did not come within the provisions—for example, by suspending, revoking or imposing conditions on an entry permit. Additionally, the amendments provide that the Fair Work Commission can take into account the combined impact of visits by all unions to the workplace reflecting that, in some circumstances, an employer will be subject to visits by multiple unions.

The bill will also repeal the previous government's amendments made in 2013 that expanded the union right of entry rights even further by allowing for uninvited lunch room invasions and requiring employers to pay for the cost of union boss joy rides to remote work sites. Those amendments gave unions the right to insist on addressing workers in their lunch room even when the workers have not requested their presence and are not union members. This was simply a bizarre blank cheque given by the former Rudd-Gillard-Rudd government to militant unions, particularly the CFMEU. This is unfair to the 87 per cent of private sector workers who are not union members and for all workers who just want to eat their lunch in peace—and I can certainly relate to that.

This bill will restore the sensible arrangements that were previously in place whereby union officials must comply with a reasonable request by the employer to hold discussions in a particular room. Employers will continue to be prevented from nominating locations with the intention of intimidating, discouraging or hindering employees from participating in discussions—a very fair provision.

The former Rudd-Gillard-Rudd government also introduced obligations on employers at remote work sites to provide union officials with transport and accommodation to enable them to access those sites. We will repeal this costly and onerous piece of regulation and, instead, reinstate the previous approach where unions and employers can reach their own arrangements in these circumstances.

I want to talk about a few cases that highlight the necessity for these particular types of amendments. I want to deal firstly with a Mr Perkovic, who is a CFMEU official who abused his right of entry permit and was suspended from the use of that permit for some 19 months. He was banned, as I say, for 19 months after a very foul-mouthed session of abuse of a government inspector which just happened to be caught on video. In this case, he was seen and found by the Fair Work Building and Construction commission to deliberately refuse to meet his basic obligations as a permit holder when asked to do so but also he proceeded unprovoked to use abusive language and physically menace in an attempt to intimidate, bully and belittle a Fair Work Building and Construction inspector going about his lawful duties.

What did Mr Perkovic actually do? He called a government employee on video 'an effing piece of shit' and was so close to him as to be intimidated. The Victorian official John Perkovic allegedly abused the investigator at the Ibis Hotel project site in Adelaide after he and other union officials illegally entered the site. Perkovic is one of 10 CFMEU officials who allegedly breached right of entry laws in a spate of illegal entries to Adelaide construction sites earlier this year. Fair Work Building and Construction commission has subsequently launched four cases against CFMEU—and I have already indicated what the outcome of those cases were. The official was suspended for 19 months.

Mr Perkovic shouted at the investigator words to the effect:

You're just about having a heart attack. You're shitting yellow, you piece of shit. Go f—k ... brush your teeth next time, you piece of shit, alright?

This is in his face. This is on video. This is the sort of conduct that you see for CFMEU officials on workplaces right around Australia. Fair Work building commission alleges Perkovic pushed the investigator with his stomach, causing the investigator to lose his balance. Perkovic was one of several CFMEU officials who flew into Adelaide and caused problems at three Adelaide construction sites. Fair Work understands CFMEU officials flew in from the Northern Territory, Australian Capital Territory, New South Wales and Victoria. It is alleged right of entry breaches occurred at the Minda homes master plan stage 1 in Somerton Park, a development which will provide accommodation and services for people with intellectual disabilities. An aged-care development in Kensington Road, Leabrook and the Ibis Hotel development were also targeted. Fair Work successfully allege officials refused to show their right of entry permits and did not give 24 hours notice before entering the sites, which is compulsory under federal law. Officials also allegedly refused to wear safety glasses when asked. Two officials had to be escorted off the Minda Home site. When asked to show his permit at the Ibis Hotel, one official told the site manager to 'eff off' and 'grow some balls'. This is very mildly representative of the sort of conduct that employers and people going about their lawful workplace occupations—employees—have to put up with.

Another case that comes to my attention is where three CFMEU officials were recently penalised $38,500 for 'hindering, obstructing and acting in an improper manner' on a Brisbane construction site:

On 28 February 2014, Judge Burnett penalised the now Assistant Secretary Kane Pearson and official Joseph Myles $4,950 each and official Shane Treadaway $2,200 for their conduct at a $350 million city project on 11 February, 2010. The CFMEU was penalised $26,400. The officials entered the site to investigate alleged safety concerns. In a liability decision delivered on 20 December 2013, Burnett J said: “Plainly, these experienced industrial organisers were more interested in grandstanding by engaging in provocative behaviour in the presence of workers on the site, notwithstanding their presence onsite purportedly being in respect of safety issues. Undoubtedly their behaviour was directed more to recruitment and membership retention than any other object.”

The Court found that Mr Pearson acted in an improper manner by being rude and offensive, including by swearing at and insulting a site foreman: 'you’re a d***head, I’m not dealing with you I want to talk to the [project manager]' and by calling the site foreman a 'f***wit', 'deadbeat' or 'd***head'. Mr Pearson was also found to have intentionally hindered, obstructed and acted in an improper manner by causing the disruption to work schedule to take place at the site …

This is the tip of a very big iceberg.

The principal case, which I do not have time to talk about at length, is of course the Bechtel versus Construction, Forestry, Mining and Energy Union of Western Australia case. It was a Fair Work Commission decision where, on the Wheatstone project, CFMEU officials had an injunction extended for their conduct. Without going into considerable detail as to what in fact happened, the commissioner found that the injunction should continue because of the conduct of the officials involved. Here is a short but brief quote of some of the things that were said on a particular day by one of the officials to company employees. When he asked about why the workplace meeting that was scheduled was held in a particular place and was told, 'If you're not happy refer it to Fair Work Australia', a Mr Upton—who was a CFMEU official—said, 'That’s the AWU way, we don’t do things that way. We do things the effing CFMEU way.'

Things deteriorated from that point on. The industrial relations manager for Bechtel engaged this man in a very reasonable way, but Mr Upton then yelled at this person and said, 'I won’t accept you treating the boys like effing dogs. Eff off!' He then, in dealing with a particular person from Bechtel who was an American citizen, said, 'Is this shithole place acceptable to you?'—

The ACTING DEPUTY PRESIDENT ( Senator Sterle ): Senator Johnston, it has been brought to my attention that under the President's rulings on Senate practices of October 2014 clause 58, in quoting from a document there are certain words that should not be uttered even though you are quoting. I have allowed a free range of quotes, but the actual words themselves the Senate may not need to hear. Not bad from the truckie to the lawyer!

Senator JOHNSTON: Thank you, Mr Acting Deputy President. What we see is a categorical abuse of the Bechtel official not only from an industrial perspective but also because he is American. The abuse goes on for some long period of time in a most appalling and disgraceful way, using every single expletive one could possibly wish to imagine. Indeed, I accept your ruling, Mr Acting Deputy President, because it is really quite disgraceful that people in this place want to continue to defend this conduct by opposing what are the most reasonable of amendments to stop this sort of behaviour on industrial work sites. (Time expired)