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Transition to Fair Work Bill


Second Reading - Senator SIEWERT (Western Australia) (1.25 pm)—The Australian Greens have been consistent in our opposition to the Building and Construction Industry Improvement Act and the operations of the Australian Building and Construction Commission. We do not accept that it is necessary to have workplace relations laws that take away the right to silence, deny people their choice of lawyer, provide powers to compel evidence with the penalty of jail for noncompliance and impose strict restrictions on the rights of workers to organise and bargain collectively. We have been utterly consistent in that stance. We remain committed to these principles and to the principles that there should be one workplace relations law and that building and construction workers should not be singled out for more punitive treatment. People who work in the building industry are not so different from workers in other industries that they should be singled out by laws based on the presumption of criminality and the need for a tough cop on the beat.

Building workers have a strong sense of acting collectively. They have needed to. They work in one of our most dangerous industries, with a high rate of fatalities and serious injuries. Building workers rely on each other and have fought hard for and won rights to safer work places. The BCII Act, including the act as amended by the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009, is a direct attack on the rights of building workers to act together for their collective interests.

At the core of this act and this bill lies an assumption that individual workers in the building industry are inherently bad, cannot be trusted, have no integrity and en masse deserve to be considered criminals for sticking up for their mates. This is a belief that the ALP government and the opposition apparently share. This is the belief that justifies in their minds the use of coercive powers in relation to civil workplace relation matters. It is not a belief shared by the Australian Greens. Our position always had been and continues to be that the ABCC should be abolished immediately and that coercive powers of the nature contained in the BCII Act and in this bill have no place in our workplace laws. In line with our position, I introduced a private senator’s bill to repeal the BCII Act last year.

We do not accept that the government’s continued rhetoric about a tough cop on the beat for the building industry justifies the continuation of coercive powers. Universal industrial, civil and criminal laws should be complied with and enforced on building sites as in any other workplace. Unlawful industrial action should be dealt with under our workplace relation laws with an emphasis on resolving disputes, not criminalising workers for their collective actions. As the commissioner reminded us in the committee hearings on this bill late last year, the coercive powers at the heart of this bill are not directed at wrongdoers but at people who are not suspected of doing anything unlawful. This is an important point. The BCII Act and this bill provide for persons to be imprisoned for not complying with directions to attend interviews or produce documents in relation to suspected breaches of industrial laws committed by someone else.

We note the comments of Dave Noonan of the CFMEU that these laws are not directed at the types of behaviour that are used to justify their application. He said:

The argument that is made in favour of these laws constantly reverts back to often unsubstantiated and hysterical allegations about criminality, violence, corruption and so on ... yet these laws have absolutely nothing to do with any of those matters and are incapable of being used to prosecute any of those matters, and my view is that those who are the proponents of these laws continue to refer to those matters because they are unable to articulate an argument as to why industrial laws should require the removal of the right to silence and the imprisonment of working people for six months for attending a union meeting. If people could justify that, they would not be continually returning to matters which are unconnected, unrelated and incapable of being prosecuted under this law.

These laws are about bullying, harassing and intimidating building workers and damaging and eventually destroying the building unions. Such an aim has no place in a democratic nation that recognises the fundamental right of freedom of association.

But more than that, the act and the ABCC targets the unions through their members— ordinary Australian workers. Back in November 2005 I moved a motion to disallow the Building and Construction Industry Improvement Regulations. In the course of that debate I outlined some of the ways in the ABCC was using its powers to intimidate workers and their families, for example, inspectors who appear to have waited until a worker has set off to work to serve his wife or partner with a notice, putting out in a heavy-handed manner that they are liable to a large fine or a jail term if they do not fully cooperate. I have heard stories of apprentices of migrant workers for whom English is a second language, being picked on, intimidated and tricked into answering questions without being informed of their legal rights. I have heard about workers being invited to have an informal conversation by an ABCC inspector only to learn that the discussion has been recorded without their knowledge or consent.

Such behaviour in this country is unacceptable. Workers have been and are being denied the basic democratic rights to procedural fairness and natural justice that all of us take for granted. These workers, who have not been charged with anything and may only be suspected of knowing about a criminal offence by somebody else, are being treated with fewer rights than someone who has committed a very serious criminal offence. While we appreciate the safeguards that the government is seeking to introduce to this bill in an attempt to ensure greater probity in the use of the coercive powers— such as the need for a presidential member of the AAT to approve the use of coercive powers, the oversight of the Ombudsman, the specific provisions allowing people a lawyer of their choice, and the addition of legal professional privilege and public interest immunity—and while we understand the intention behind the ‘switching off’ mechanism and the role of the independent assessor, all these measures do not solve our fundamental objection that these coercive powers have no place in the regulation of industrial relations matters. As Professor Williams and Ms McGarrity concluded in their article on the investigatory powers of the ABCC:

It is wrong as a matter of legal policy to confer a draconian, overbroad and inadequately checked investigatory power on a body whose principal function is to investigate civil breaches of federal industrial law in a single industry ....Given such fundamental concerns, our view is that the ABCC should be abolished. We further believe that it is inappropriate to create any other body to deal only with the building and construction industry. Contraventions of industrial law by participants in that sector should be investigated by a single body with a brief to apply its powers in a nondiscriminatory manner to all employers and employees across all industries.

We consider that the potential for a penalty of imprisonment for a worker not complying with a request under the coercive powers remains objectionable. We agree with the ACTU, which said:

Our view is that, before imprisonment could become a penalty, you would have to be found to be in contempt of either a court or an institution. The problem with the regime, even with the safeguards that are proposed, is that the person is not heard until they are prosecuted for failure to appear, with a penalty of imprisonment hanging over their head. In industrial law, for all other workers in the country, there is no prospect of imprisonment unless you are in contempt of court. We think that the same regime should apply to construction workers and construction employers and that imprisonment should only be an available, as it is to all other citizens, if they are in contempt.

The problem with this regime is that you move to imprisonment without having an opportunity to be heard or having an opportunity to explain why you do not wish to comply with the orders.

We believe that if these powers are to remain, the penalty of imprisonment must be removed, and we will move an amendment to that effect.

The Australian Greens do not accept the argument that the BCII Act, and the retention of the coercive powers by the bill, is justified on the ground of perceived economic benefit. Professor David Peetz comprehensively demolished the argument that the operations of the ABCC contribute to productivity gains in his submission to the Senate inquiry into this bill. He concluded:

... if there are to be any economic effects from the operation of the ABCC, they are more likely to be increasing profits than increasing productivity.

Profits above people is not something the Greens can support. We do not believe that economic gains can justify the assault on fundamental human rights that the BCII Act perpetrates.

A key concern for me in the operation of the ABCC has been its impact on occupational, health and safety in the building and construction industry. This is an industry that suffers around 50 deaths a year—and many more serious injuries. The intimidating tactics of the ABCC have a detrimental effect on safety. Workers are less likely to report unsafe situations and they are less likely hold meetings to discuss safety issues or stop work in dangerous circumstances for fear of a heavy-handed visit from the ABCC. It is unacceptable in an industry as dangerous as the building and construction industry for legislation to act counter to achieving the highest possible standards of health and safety practice. The provisions of the bill before us do not satisfy my concerns about occupational health and safety. It is the presence of the coercive powers that cause this concern.

Having outlined our continued opposition to the very existence of the coercive powers, I do want to briefly mention why we will be supporting the bill at the second reading stage. The bill does introduce important safeguards on the use of the coercive powers, which we hope will go some way to ensuring the new inspectorate does not behave in a similar way to the ABCC. We welcome the explicit acknowledgement for the rights of people to be represented by a lawyer of their choice. We labelled the ABCC as a ‘star chamber’ from the beginning; the restoration of the basic rights of legal representation is long overdue.

Importantly, the bill removes chapters 5 and 6 of the BCII Act. These chapters provide specific and harsher prohibitions on industrial action and increased penalties for unlawful industrial action and coercive behaviour in the building industry. The removal of these provisions means that building and constructions workers are covered by the same prohibitions as all other workers and, importantly, the same penalties as other workers.

Building and construction workers will still face unnecessary restrictions on collective bargaining and freedom of association through the application of the Fair Work Act. The Australian Greens believe strongly that freedom of association is a fundamental right and that an integral part of that right is the right to take industrial action. With the Fair Work Act now containing the substantive rights and obligations for all workers, the logical step is for all breaches of those laws to be dealt with by the Fair Work Ombudsman, without a separate compliance agency for one section of the workforce. This would also go a long way to changing the culture of enforcement in the building industry.

It has become clear that the ABCC has not been impartial in exercising its responsibilities and in fact has been turning a ‘blind eye’ to unlawful employer actions. The Federal Court has found in a particular case that the ABCC turned a blind eye to dishonest employer behaviour and failed to act in an evenhanded way in its pursuit of the plumbers union. In fact, 66 per cent of its investigations have been targeted at unions while only 25 per cent have been targeted at employer actions—and many employers have been contacted by the ABCC because of their relationships with unions. An impartial enforcement culture is critical to the success of the new inspectorate, particularly if it is to carry out its functions with regard to ensuring compliance by employers with their obligations.

I also take this opportunity to note that the bill will still be in breach of Australia’s international obligations. There is little doubt that the retention of the coercive powers will breach the labour inspection and the freedom of association and right to organise conventions. Australia is a signatory to these conventions which signals that we as a nation accept the principles found in those documents. The ILO conventions are important as representing the framework for fair and balanced industrial relations. If we are in breach of these conventions we are falling outside what is acceptable international practice.

The Australian Greens believe that the government should endeavour to ensure we live up to the international standards that we have signed on to, not ignore them. The Greens will not shrink from defending the basic human rights of workers in the building and construction industry. The bill before us today is an inadequate compromise. We will continue to advocate to ensure that the building industry is regulated just like any other industry—in a fair and just manner that balances the needs of productivity and the economy with the health, safety and democratic rights of workers.

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