Building and Construction Industry (Improving Productivity) Amendment Bill 2017

15 February 2017

The backflip we have seen from the crossbench on this building and construction industry legislation is extraordinary. Their position on what was already bad legislation, which they sought to temper somewhat and where things had been previously negotiated and agreed, is going to make this bad legislation even worse.

It was bad legislation when we saw it in the 44th Parliament in 2013; it was bad legislation when it was defeated in the Senate in August 2015; it was bad legislation when it was introduced again in February 2016 and defeated in April 2016; and it was bad legislation when the government went to a double dissolution election over it—so bad, in fact, that you did not even talk about it during the election campaign. You did not talk about it at all. It was a double dissolution trigger, and here we are in yet another attack on workers, because that is what this is. It was bad legislation when we debated it in this place in November last year, when, sadly, it eventually passed. The reintroduced ABCC bill passed the parliament with the agreement of many of the crossbench despite many concerns that we raised on this side and the concerns of the community, unions and workers.

These concerns have not gone away and, in fact, they are being exacerbated today, because it is bad legislation that is about to get much worse. The government has, apparently, already changed its mind on the commitments that were made in this place in 2016, after the crossbench came running to them. Senator Hinch has changed his mind. Here we are again, after this place sat late into the night to pass this legislation. The legislation only commenced operation from 1 December last year and, even before it has had a chance to take effect, you already want to change it. It turns out that the bad, draconian legislation you put before us was just not draconian enough. What will also have to change as a result of this amendment bill is the building code that the minister issued, which only took effect on 2 December last year. What we have here is a government that keeps changing the goalposts on Australian workers. Australian workers are suffering because of the shambolic and chaotic government we have in this nation.

It is disappointing to me that members of the crossbench who gave commitments to the Australian people are now cosying up to the government and reneging on those commitments. To me it makes one thing incredibly clear: a vote for One Nation is a vote for the Liberals. It is an anti-worker vote and, as my good colleague highlighted, it is anti-battler. A vote for Senator Hinch in this case is also a vote for the Liberals, with huge consequences for Australian workers. For workers in the construction industry—as if they were not concerned enough about the re-establishment of the ABCC—the government is changing the rules to a game they have already started playing, and it is disgraceful.

These amendments wind back the exemption period for non-code-compliant companies from two years to nine months—that is, to 1 September 2017. This is a recipe for industrial chaos. It limits the exemption so that companies that are not code compliant may tender for but not be awarded any Commonwealth building work within the nine-month exemption period, and this is extraordinary. It means that companies that have had signed workplace agreements approved by the Fair Work Commission—and these are agreements that commenced before the original legislation passed—will need to either renegotiate these agreements in a very short time or not tender for Commonwealth building work at all. This completely undermines workers' wages and conditions, because it undermines their negotiating position. You are therefore inviting very tense negotiating periods within the renegotiation of these EBAs, and I do not think that is the kind of thing we want to see in our workplaces.

Reports suggest that 3,300 agreements will need to be renegotiated in just the next six months. These are, rightfully, unionised, law-abiding, reasonable companies and their workers with negotiated EBAs under the laws of the day. We in this place are not supposed to like retrospective legislation, which is why the crossbench agreed to the delay in the implementation of this legislation, so that it had an exemption period. You negotiated that, and I did not think it was good legislation, but you did that, noting that this would be a problem in our workplaces. And you have reneged on that. Companies have negotiated on the understanding that they would be locked into an agreement for a specific period of time, and that is how negotiating is supposed to work. Enterprise agreements should give companies and workers the certainty of conditions over a set period of time. That is the whole point. But this will no longer be the case, and these agreements will need to be renegotiated—and they will need to be renegotiated under these draconian laws—because, despite the fact that they were negotiated in good faith and entered into legal enterprise agreements, they will now need to comply with a code that was brought in after those agreements were finalised. This is an extraordinary thing to do to the conditions of workers in these industries.

The ACTU said in its submission to the Education and Employment Committee that the impact of this bill will be immediate and significant market disruption. Is that really what you want to invite into the construction industry? While Labor has made it clear time and time again that we do not support the existence or the substance of the code, it is completely unreasonable for the government to expect these companies and their workers to renegotiate agreements that have already been negotiated in good faith and agreed to by their employees. Here we have a code that is designed to make it more difficult for workers and their unions to negotiate workplace agreements. It makes it harder for workers to exercise their rights as union members and delegates, and you are now seeking to do that sooner rather than later by disrupting the current EBAs.

What we have here in the new code and the act are significant changes for workplace agreements. For example, section 11 of the code now prohibits any clause that could put limits on the right of an employer to manage its business or improve productivity. Now, let's have a look at some of these types of clauses. They are quite reasonable clauses where you are trying to balance business and productivity, but with other outcomes that are also important, and they are outcomes like training, like occupational health and safety. The CFMEU in its submission warned that this will mean clauses designed to rein in the casualisation of the industry, mandate apprentice numbers, limit excessive overtime on health and safety grounds or restrict the use of foreign visa holders in favour of local labour.

These are some of the kinds of clauses that will be seen to be in breach of the code. Now, if people do not think it is legitimate for people in their workplace to work together and say, 'Look, we want to maximise local employment, we want to maximise jobs for the young people in our local community, we want to make sure that when we are relying on each other on-site to do dangerous and difficult jobs that people have had the appropriate rest periods and are not working too long a shift''—when workers work together to say, 'We want to work with the company to work out what is in the best interests of our site and our industry'—for that to be seen in breach of section 11 I find absolutely extraordinary.

Essentially, any clause that protects the rights and interests of workers can be ruled as non-compliant and could need to be changed. Thousands of workers will be impacted by these changes over the next six months. Thousands of workers will have conditions that they negotiated in good faith with their employers stripped away. At the very least, the government should exempt these companies from the operation of the code until their existing enterprise agreements expire. That would be the reasonable and fair thing for you to do. Those companies should also be allowed to bid for Commonwealth contracts. In fact, it would be reasonable and fair to repeal this legislation and the code in its entirety. What we have before us is not legislation that is fair, nor do we have a government that is fair. The government is not fair to workers and especially not fair to unions—because they do not believe in unions—and it is clear that this government does not believe in the rights of Australian workers. They do not want workers in this country to have their freedom to bargain for their own interests in the workplace. These are very important traditions in this country which uphold or underpin the living standards which most Australians enjoy. All this is off the back of organised labour in this country, and this is why, relative to other countries, we enjoy much higher living standards. It is something that the government does not give unions credit for.

The government does not believe that workers should be entitled to representation and support in their workplace. We have seen that time and time again as the government brings legislation before this chamber to undermine that representation. What they especially do not like is the collective power that comes with collective bargaining and unionism. It seems also that the government does not like productivity, because if there is one thing we know it is that the ABCC has never and will never improve productivity. When the ABCC was last in place, worker fatalities went up while productivity went down.

In conclusion, the bill to amend the BC legislation can be seen to be part of a pattern of ongoing dysfunction and incompetence on the part of this government. It demonstrates to the people of Australia that Prime Minister Malcolm Turnbull has his hands in the pockets of big business and that he is not here to represent everyday Australians. This bill makes bad legislation worse and it should not be passed.