HANSARD EXTRACT
|
Building and Construction Industry Improvement Bill 2005:
Second Reading |
| 10 August 2005 |
Mr HAYES
(Werriwa) (6.25 p.m.)—I
am staggered by the content of the
Building and Construction Industry Improvement
Bill 2005 and the
Building and Construction Industry Improvement
(Consequential and Transitional) Bill 2005 and I am
staggered by the government’s attempt to take considered and
deliberate action aimed at nothing more than destroying a union.
This legislation is not aimed at improving the productivity of the
construction industry; it is not aimed at strengthening such a vital
part of our economy. This legislation is aimed at destroying the
basic rights of a particular group of Australian workers.
The construction industry is an important
sector in our economy. In 2002-03, the ABS reported that the
construction industry contributed 6.3 per cent to
Australia’s gross domestic product. In addition, statistics released
in May this year reported that, over the four quarters ending in
March this year, the value of construction work done was estimated
at nearly $80 billion. Analysis provided by the Greater Western
Sydney Economic Development Board reported that, in 2003, the
construction industry contributed 7.7 per cent to the gross regional
product. This made the industry the fifth largest in its
contribution to the economy of Greater Western Sydney. The
construction industry is also a significant employer. In 2003-04,
its average annual employment was almost 770,000. This includes some
60,000 workers in Greater Western Sydney, with nearly 5,000 living
in my own electorate and two of them being my sons.
This is an industry that keeps growing.
Recently, noted economic forecaster BIS Shrapnel released its
expectation for the Australian building industry. While expecting a
downturn in the residential sector—no doubt a reflection of people’s
concerns over the impact of the government’s industrial relations
agenda on their financial future—it expected that it would be offset
by an increase in commercial construction. BIS Shrapnel forecasts
that infrastructure investment by state governments will push the
value of non-residential building commencements to almost $18
billion.
There is no doubt that this is an important and
significant industry, and it is important that all our industries
improve their productivity over time. However, there is little doubt
about the means this government intends to employ to achieve this
so-called productivity improvement. This government is determined to
tear apart the building and construction industries as we know them.
The provisions of this legislation are divisive and destructive. I
am not about to stand before this House and say that everything is
fine in the building industry. I am certainly not going to stand
before the House and defend all actions of a small minority that may
at times take the law into their own hands. However, I do wish to
present some evidence that the members opposite may not have been
privy to when they put their support behind this bill.
People in this industry are deeply concerned
about the provisions of this legislation. They are deeply concerned
because, once this legislation becomes law, they will become
second-class citizens. People in the construction industry will
become second-class citizens to the rest of the Australian work
force. However, it is not only those in this industry and their
families who are concerned. When people outside of this industry
hear of what is going on, they too will be deeply concerned. Why?
Because they will fear they could be the next industry to be
targeted by this government.
The aim of the government in terms of the
building industry is the same as it was on the waterfront. The only
difference is that the media imagery is not of balaclavas and attack
dogs. The government learned from their mistake in that regard. This
time the government has replaced balaclavas with courtrooms and
replaced the attack dogs with lawyers. The government spent $60
million of taxpayers’ money on a politically motivated royal
commission to embarrass the Labor Party and attack the union
movement, but it did not work. As the editorial in the Age
reported on
28 March 2003 after the release of the commission report:
Stripped of politics, the building industry inquiry might have been
more productive.
It went on to say:
The royal commission found 392 instances of unlawful conduct
committed by individuals, employers and unions, including illegal
strikes, breaches of the Trade Practices Act, misuse of health and
safety laws, and intimidatory behaviour ... but a root-and-branch
reorganisation of the industry was not proposed by
Mr
Cole.
The editorial also noted that evidence of the most serious forms of
malfeasance, such as bribery and corruption, did not feature
prominently in its hearings. So despite the Cole royal commission
not being as definitive in its findings as the government may have
hoped, we are debating a bill aimed at introducing, in the words of
the minister, ‘all that is necessary to reform the building and
construction industry’.
This brings me to the issue at the heart of my
own concerns. Opposition senators on the Senate Employment,
Workplace Relations and Education Legislation Committee provided a
reasonable summary of those concerns. In their report on the
legislation, they concluded that:
Opposition senators regard this legislation as obsessively punitive
and opportunistic.
That is exactly what it is. While the bill does not reintroduce the
full legislative response to the
Cole
royal commission previously before the parliament, it nevertheless
goes a long way towards it. The provisions of this bill introduce
the broader definition for building work. It introduces new
definitions for unlawful action. It introduces onerous financial and
civil penalties. It grants employers of the Department of Employment
and Workplace Relations considerable new powers and strays into
state based industrial relations regimes. These are significant
changes with significant impacts, and significant changes that will
be introduced retrospectively.
I will return to the retrospectivity of this
bill a little later, but I would like to consider the consequences
of this bill and why the minister has made its passage one of the
highest priorities upon the resumption of this parliament. While of
course some might say it is a distraction for the opposition members
in their campaign against the minister’s industrial relations
proposals, I know it is not. I think the reason is pretty simple.
This bill has been introduced in a truncated form with one aim and
one aim only: to try to discourage the building industry employers
from signing the next round of wage agreements before the
government’s new industrial relations agenda is finalised. Sadly, it
has not worked and the government has resorted to its own form of
persuasion—changing the rules on government construction contracts.
I can only assume that the government sees no hypocrisy in using its
own economic strength to intimidate the building industry.
What lies at the heart of this bill that makes
it so dangerous? I have said before in this place that the devil is
in the detail and so it appears in many of the other legislative
solutions introduced by this government. This bill is no exception.
Considering the provisions of the bill in more detail, I would like
to state my objection to the clause that is causing the most concern
for my constituents. That is the introduction of considerable
financial penalties. This bill provides for penalties up to $110,000
for organisations but up to $22,000 for individuals. That is 1,000
per cent more than the financial penalties prescribed under the
Workplace Relations Act—1,000 per cent. The Australian Bureau of
Statistics reported in 2002-03 that the average wage and salary per
employee was around $40,000 per annum. Of course, wages and salaries
have increased since then, but the government is nevertheless
proposing to introduce penalties that are up to half the annual wage
of a construction worker. I know that is certainly making
construction workers in my electorate nervous. They are not nervous
because they have something to hide; they are nervous for the
financial security of their families.
Construction workers I have spoken to over the
past few weeks are regular hardworking Australians and they do not
expect, and certainly do not deserve, this kind of treatment. Nor do
the other hundreds of thousands of hardworking construction workers
throughout the country. My mind at this stage turns to one
particular case. An employee of a very well-known building company
in my area was recently asked to sign an AWA, an Australian
workplace agreement. When he refused he found that he was made
redundant. This employee had a job if he agreed to sign a contract
that was cutting his wages and conditions, but if he remained under
the award, as he wanted to, he did not have a job. So this fellow,
who had been with the company for 26 years and had a dependent
family, found himself sacked because he would not sign the agreement
that the employer wanted him to sign to continue his employment.
Given the injustice of this, it naturally led
to an industrial dispute and action that was actually taken on his
behalf by the CFMEU. As a result of a rather public campaign, some
weeks later this employee was reinstated. But, given the
retrospective application of various clauses of this bill, I have to
wonder whether or not this employee, his work colleagues who
supported him in defending his rights and indeed the union who
helped negotiate his reinstatement may all be subject to financial
penalties. Now that he has been reinstated, will this employee be
subject to the sanctions that apply in this bill?
But, of course, a massive increase in penalties
is not the end of it. Clause 227 provides that the court may order
compensation to be paid to any person who has suffered damage. Third
parties who are not directly involved in the dispute can seek
compensation through the courts and this compensation is uncapped.
The worst part of it is that, as a result of the retrospectivity of
the provisions of the bill, fines could be accumulating now and the
workers might not even know it.
Again, I have to wonder about the financial
position of the employee of the large building company that I
referred to earlier. Has this employee, through his legitimate
defence of his own position, now created a legal liability for
himself? Has he, by standing by his own principles and convictions,
opened himself up to third parties seeking to claim compensation
under clause 227? I wonder whether this poor chap and his family
even know that we are debating legislation tonight that may make his
financial position even more precarious than he first thought.
I have yet to see the government launch a $20
million advertising blitz to inform the construction industry
workers of the retrospective changes included in this bill. The
creation of retrospective law, particularly when it comes to actions
that may be subject to criminal sanctions, is a dangerous approach
to law making. I am not aware of any forum, either in the Senate
Employment, Workplace Relations and Education Legislation Committee
hearings or in this place, in which the government has presented a
reasonable defence of the use of retrospectivity in this bill. There
is no reasonable argument that can be mounted for its use and that
is why its use should be vigorously opposed.
I also have deep concerns about the
government’s approach to the partial exclusion of state laws from
the national industrial relations regime. The use of the bill to
deem industrial action taken under some state and territory laws to
be illegal is likely to lead to serious problems, most of which will
be inflicted upon small businesses in the industry. As the NSW
government submission to the Senate committee inquiry pointed out,
this law breaches the International Labour Organisation’s
conventions regarding the right to organise, the right to collective
bargaining and the right to freedom of association.
Small businesses comprise the vast majority of
businesses in the construction industry and I doubt that they have
the time or the inclination to wade through the various laws to find
out whether a particular set of circumstances is covered by state or
federal law. The legal and financial situation that this may place
employers and their employees in is near impossible to imagine.
Placing hardworking Australians on a financial and legal precipice
is no way to promote industry reform. The creation of a climate of
fear is the least effective way to set about cultural change.
Setting about changing the rules and
introducing a compliance regime of increased penalties, uncapped
compensation and heavy-handed regulation of industrial action is
nothing more than union busting. The provisions of this bill are
clearly aimed at the construction unions and no-one else. If the
government were truly making an attempt to promote industrial reform
in the construction industry, this bill would include tougher
sanctions on rogue employers. This bill should include provisions to
crack down on employers who fail to provide adequate working
conditions and fully implement all the requirements of occupational
health and safety laws. The government should be cracking down on
employers who fail to provide for entitlements for their employees.
But, of course, this bill has nothing to do with the industry and
everything to do with the union movement.
Unfortunately we have to wait until further
legislation is introduced to see if the government is as concerned
about rogue employers as the minister claimed he was in March last
year in a speech in this place. It is easy for me to oppose this
bill because I have doubts about the basic assumptions on which the
government built their case. We have all read the findings of the
Cole
royal commission and the economic analysis of the sector, but
recently I read another document that casts some doubt on the
economic arguments. The Employment Studies Centre of the
Newcastle
Business School at the University of Newcastle has cast considerable
doubt upon the intra-industry, interstate and international
comparisons of productivity. The minister based much of his argument
on the potential for productivity improvement. However, reasonable
doubt has been cast on the potential for improvement to be realised.
The Employment Studies Centre reported:
On the basis of data from the Australian Bureau of Statistics and
research undertaken for the Cole Royal Commission Into the Building
and Construction Industry it is evident that productivity
performance of the Australian construction industry is at or close
to international best practice.
It went on to say:
Other research indicates that the most important factors in
promoting competitiveness in the construction industry relate to
lifting the level of consultation between management and labour;
improving OH&S; ensuring sufficient supply of skilled labour and
regular upgrading of these skills and improving the technical skills
of project management ...
It concluded with the following:
Unfortunately, these drivers of productivity have been largely
ignored under current policy settings.
I have never shied away from my own involvement in the trade union
movement and my own experience in the benefit of negotiation over
confrontation and I do not shy away from them now.
The 5,000 or so construction workers in my
electorate do not appreciate being treated like industrial
terrorists. If improvements in the building and construction
industry really are the goal of this legislation, let us get it
right. Let us get rid of the punitive measures being introduced
through the bill and start a constructive dialogue between employers
and employees. Let us get rid of the rogue elements in the industry
through reasonable means, not through a legislative agenda that is
so clearly stacked against Australian workers in the construction
industry. The government’s own senators when considering this bill
noted in their majority report:
Harassment and intimidation have no place in modern industrial
relations.
So let us get it right. Let us reject this bill and everything it
stands for.
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