Building and Construction Industry (Improving Productivity) Bill 2013

In my first speech in this place I said, 'History shows us that if work is to be dignified workers need advocates, because workers' rights did not fall from the sky.' History shows that, without unions, workers were broken in what William Blake called dark satanic mills. He understood that change would not come without a fight, and the best weapon in the fight for workers' rights is the trade union. This is why I am proud that the Labor Party was born in the fires of the union movement and fashioned on its anvils. It is something we should never seek to hide and something we should be proud of. Since I left high school, unions have protected me at work.

In that first speech, I also made a promise. I said that I would never forget what the unions have done for this country and that as long as I am here I will staunchly defend their right to defend their members. In rising today to speak against this legislation—the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 —I am honouring that promise. The bill seeks to re-establish the Australian Building and Construction Commission. The ABCC was created in 2005 to investigate breaches of and to enforce federal industrial law in the building and construction industry. Labor opposes this legislation, which forces a return to the draconian ABCC, which is based on flawed modelling and whose proposed powers are extreme and unnecessary and compromise civil liberties. The bill means that the ABCC, if re-established, will have coercive powers that will compel ordinary workers to be subject to secret interviews, to be denied legal representation and to be threatened with imprisonment if the person subject to such coercive powers refuses to cooperate. The powers are excessive, undemocratic and unwarranted. As many of my colleague have pointed out before me, they are Orwellian, and not what Australians expect of our government in our democratic, 21st century society.

The bill extends the reach of the ABCC into picketing, offshore construction and the transport and supply of goods to building sites. The new powers aimed at stopping pickets include a 'reverse onus', requiring individuals to prove they were not motivated by industrial objectives to escape the maximum $34,000 penalty. The bill will extend the ABCC's jurisdiction offshore, to as far as Australia's exclusive economic zone or waters above the continental shelf. More significantly, it will encompass the transport or supply of goods to building sites, including resource platforms.

Prior to the election, those opposite promised that if they were elected they would not go back to the extreme measures of the Howard-era Work Choices industrial relations policies. They made this promise because they had to; they knew that the Australian people simply would not vote for them otherwise. They knew that the Australian people remembered that it was the now Prime Minister who in 2001, as Minister for Workplace Relations, called for the Cole royal commission into supposed criminality, fraud and corruption within the building and construction industry. However, after 18 months and $66 million of taxpayers' money, the commission failed to produce one single criminal conviction—because, as Labor asserted at the time and has continued to assert, the investigation of crime is a matter for the police.

Yet here we are, still in early days of 44th Parliament, and already those opposite are trying to strip away the rights of Australian workers, are trying to introduce Work Choices in a poor guise. And, to be fair, these bills are not exactly like Work Choices; no, the coalition has learnt something from its past. It has learnt that Australians are smart and will not stand for the deprivation of workers' rights. So the coalition is taking a different approach. Unlike Work Choices, which deprived workers of their rights across every industry, the coalition is now stripping away workers' rights one industry at a time, starting with the construction industry. Perhaps they think that if they remove workers' rights one industry at a time the Australian people will not notice—but they are wrong.

The rationale of those opposite for singling out one industry with special laws is flimsy at best. The ABCC's proposed powers are extreme and unnecessary and compromise civil liberties. If passed, this bill will mean that there will be restrictions on freedom to gather. It will allow self-incrimination and a reverse onus of proof. There will be no presumption of innocence; there will be intervention by government— by this government, the very government that has spent much of its first 100 days talking about the need to get government out of business and to cut government regulation and red tape.

And what of our international obligations? Now, I know those opposite have a great disdain for multilateralism, and they are not afraid to show it. But this is just going too far. As my colleagues have pointed out, the former Building and Construction Industry Improvement Act 2005 was founded by the United Nations International Labour Organisation to breach Australia's international obligations. It was in breach of our obligations as a member state and as a signatory to the Freedom of Association and Protection of the Right to Organise Convention of 1947, the Right to Organise and Collective Bargaining Convention of 1949, and the Labour Inspection Convention of 1947. That act was found by the ILO supervisory bodies to breach Australia's international obligations in that it exposed building industry employees to penalties for taking industrial action in a wider range of circumstances than other employees, virtually rendering all forms of industrial action in the building and construction sector unlawful. There was an imposition of penalties and sanctions upon workers and unions that engaged in unlawful industrial action that was significantly higher than imposed on workers in other sectors. There were provisions in the act–

Mr Nikolic: I propose an intervention under standing order 66(a) to ask the member for Canberra to respond to the question: does the sort of thuggery we saw at the Grollo building site justify a stronger government response?

The DEPUTY SPEAKER: Member for Canberra, do you accept the intervention?

Ms BRODTMANN: No. The provisions of the code of practice contained restrictions on freedom of association and collective bargaining, and there were draconian monitoring and investigatory and enforcement powers for the ABCC, including the powers to enter premises, take possession of documents for as long as necessary and compulsorily interview any person for compliance purposes. These things were all found to be breaches of Australia's international obligations.

As I have mentioned, the great irony is that the proposed ABCC would mean more regulation, more red tape, more government intervention—

Mr Nikolic: I propose another intervention under standing order 66(a) to ask whether the sort of thuggery we saw at the Grollo building site breaches Australian domestic law.

The DEPUTY SPEAKER: Does the member for Canberra take the intervention?

Ms BRODTMANN: No. This would mean more government intervention from this government whose favourite catchcry is that they want to cut red tape. They are now introducing special regulation for one industry alone, without justification. Australia's industrial laws should be enforced in the building and construction industry in the same way as in any other industry. As Justice Wilcox said in his review of the previous ABCC laws:

There is no justification for selecting a different maximum penalty, for the same contravention, simply because the offender is in a particular industry.

As we know, Fair Work Australia and the Fair Work Ombudsman already have the capacity to deploy specialist investigators to deal with unlawful industrial action in this sector. If those opposite do not think the capacity of Fair Work Australia is sufficient, perhaps they should consider increasing its resources.

The fact is that Fair Work Building and Construction, established by Labor after we removed the previous incarnation of the draconian ABCC, has been a great success. The Australian Bureau of Statistics data shows that industrial disputes in the building and construction industry are on average one-fifth of the rates seen under the Howard government. Labour productivity has increased over the last 10 quarters and on average is almost three times higher under Fair Work than under Work Choices. Fair Work Building and Construction has continued, and will continue, to outperform its predecessor, the ABCC. Fair Work Building and Construction already has sufficient powers to deal with unlawful behaviour in the industry. Fair Work Building and Construction is undertaking more investigations, concluding investigations, getting matters to court faster and recovering more money for underpaid workers in the industry, securing over $2 million in unpaid wages and entitlements for more than 1,500 workers.

Under the Howard government's ABCC, workplace fatalities in construction peaked at 48 deaths in 2006 and 51 deaths in 2007, making them the worst two years for deaths in construction in the last decade. Following the abolition of the ABCC in 2012, some 30 deaths were reported, the lowest number of deaths in the past 10 years. Over the same period, the incidence rate of serious injury claims in the construction industry fell by 17 per cent from 23.0 serious claims per 1,000 employees in 2005-06 to 19.1 in 2009-10.

The title of these bills would have you believe this was an exercise in productivity, but this is also not the case. These bills serve one purpose alone, and that is to return to the coercive powers used to intimidate workers and attack unions at the cost of workers' safety and legal entitlements. Tony Abbott has claimed the former ABCC led to some $6 billion per year in productivity savings and cost reductions for consumers in the commercial construction sector. The figure comes from one of a series of reports compiled by Econtech—now Independent Economics —into whether the ABCC and its predecessor body, the Building Industry Taskforce, boosted productivity. The reports were initially commissioned by the ABCC at public expense and were later regularly recommissioned by Master Builders Australia as a tool to push for the reinstatement of the ABCC. The latest report commissioned by the MBA has the productivity savings figure at $7.5 billion.

The research has been widely discredited as being based on faulty or misleading premises. On 28 August 2013, the Fairfax federal politics fact checker found Abbott's claims to be mostly false. The ABS provides three widely accepted measures of productivity: labour productivity, which is the ratio of volume of output produced to the volume of labour employed; capital productivity; and multifactor productivity. However, the method used in the Econtech report was to compare the costs of completing standard tasks in the largely non-unionised housing sector against the more unionised commercial construction sector, as though union density is the only feature that distinguishes the two sectors. Unsurprisingly, the report's systematic finding is that there are significantly larger costs of completing specified tasks in the commercial construction sector than in the housing sector, which they attribute to unionisation.

There is an old saying: 'If it ain't broke, don't fix it,' and the coalition would do well to heed this advice. Fair Work Building and Construction has proven year after year that not only can it successfully deal with unlawful behaviour in the industry but also it supports a safer workplace and a safer industry. The fact that those opposite are ignoring this evidence demonstrates that their motives in trying to re-establish the ABCC are purely political. This is not about improving productivity, this is not about creating safer workplaces, this is not about preventing illegal industrial action, this is about the coalition's anti-union agenda. This is about demonising the construction industry, demonising unions and demonising their members. It is about stripping away workers' rights in any way they can, and Labor will not stand for it.

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