Speech on Bill – Building and Construction Industry Bill (ABCC Bill)

August 18, 2015

I rise today to talk about the Building and Construction Industry (Improving Productivity) Bill 2013 and related bills. It is a subject that I know a little bit about because I have worked in the building and construction industry for nearly 40 years. However, a definite split has developed over the years between the commercial construction industry on the one hand and the housing construction industry on the other. The glaring difference between these two construction environments is that you do not get the kind of criminal conduct on housing construction sites that you do on commercial construction sites. So what is the difference? Why do we not have the criminal behaviour, or anything like it, at home-building sites in the housing industry? The answer is: we do not see the CFMEU and its members on housing construction sites. We are having this debate about reinstating the Australian Building and Construction Commission. It is because the ABCC is the only body capable of keeping the CFMEU in check on commercial building sites.

Those who have been listening carefully to my questions to various ministers in this place will know that I have been advocating for unemployed people to be able to work on terms and conditions which suit them. The unemployed are presently trapped in a workplace regulation prison. They cannot escape because there are so many patronising organisations that say, ‘We have to lock you up in this workplace regulation prison for your own good, because you might be exploited if we let you out.’ Yet, as I have mentioned in examples before, nobody stops young people from travelling to some of the most dangerous places on earth where they could be taken hostage or harmed. Yes, the department of foreign affairs issues travel warnings about some countries, but it ultimately respects the rights of people to go wherever they like in the world and take whatever risks they like. There is no travel prison regulating where people can travel. For some reason, we respect an Australian citizen’s inalienable right to travel and expose themselves to potentially life-threatening risk, but if they want to go and work somewhere then they are captive to over 2,000 pages of workplace regulations. In some circumstances, these regulations have made it illegal for workers to negotiate terms and conditions which suit them. We hear the term ‘paternalism’ used in this place and throughout history, but the epitome of paternalism is the workplace regulation prison.

I challenge one person arguing in favour of workplace regulation to say that they have never taken the cheapest quote to have a job done. Whether it is something you need fixed at home, the servicing of your car or which hairdresser you go to, it is human nature to shop around or to change service providers because you have found a better deal. This is not considered criminal behaviour when you choose the cheapest quote, yet somehow when it comes to labour in other contexts there are regulations to say that the minimum price, for example, for working on a weekend is $40 an hour. But please spare a thought for the thousands of unemployed who are struggling on $5 an hour. These people are ready, willing and able to work for $20 an hour but it is against the law. The law says, ‘No, cafe owners and others must pay $40 an hour’. But the cafe owners and others cannot afford $40 an hour, so they do not open their doors. Everyone loses: the unemployed person stays on the dole, the cafe owner cannot open and the customers cannot buy what they want. It is immoral to deny people the right to work and support their families. The contrary view on workplace regulation is this view that you simply must lock up the unemployed in this prison to protect themselves from exploitation. It is the very reason that these powerful organisations are a law unto themselves—but I digress.

Returning to the dire state of the commercial construction industry, what we are seeing here is leadership failure at every level. At the last count there were something like 80 different definitions of leadership. My favourite definition of leadership is: that which you will not tolerate. What is it that you will not tolerate? That determines what kind of a leader you are. What we are seeing in the commercial construction industry is a total failure of leadership. Let us look at some of them. The previous Labor government deliberately removed any notion that it was necessary to constrain criminal behaviour by certain unions. They were prepared to tolerate criminal behaviour—a failure. The police have failed to uphold the law in favour of so-called keeping the peace. They will tolerate criminal behaviour if it means keeping the peace—another failure of leadership. The courts have failed to uphold justice. In some cases those who have suffered unlawful behaviour wait years and years for justice. As we know, justice delayed is justice denied, and now we see in this bill the government’s desire to increase penalties out of frustration at the relatively low penalties and, therefore, the low economic incentive to promote lawful behaviour. The judicial system: another failure of leadership.

When you have these growing power bases developing on construction sites, you get ridiculous situations such as those this bill seeks to rectify, including: contractors being forced to employ a non-working shop steward; situations where, if one worker is offered overtime, all workers have to be offered overtime, even if there is not enough work; and trade contractors being required to provide certain conditions to their workers even if they already have lawful arrangements with them. This bill would hope to address these and other allegations of standover tactics, intimidation and violence.

The Independent Contractors Association of Australia asserts in its submission to the Victorian CCCU inquiry that independent contractors working on the Westgate Bridge upgrade in 2009-10 were taunted regularly with ‘It’s a long way to fall, mate’ because they were not members of the CFMEU. This is outrageous. Never in 40 years of working on housing construction sites have I heard someone saying to a fellow construction worker, ‘It’s a long way to fall, mate.’ The ICA has posted footage of the violence and foul verbal abuse that workers were subjected to entering a worksite. The ICA went on to assert that, when the ABCC was in operation before 2010, the ABCC ‘in large measure curtailed a good deal of the abuse and harassment in the Victorian construction industry, although’—sadly—’it did not eliminate it’.

The Greens talk at times about a ‘social licence to operate’. In my opinion, the CFMEU does not even have a social licence to exist, let alone operate. Senator Lambie has called for the CFMEU to be deregistered. In his book Blink, Malcolm Gladwell talked about ‘thin slicing’. Blink is the book and I recommend it. Weighing up situations in the blink of an eye. Looking for the shibboleths, the dead giveaways. For those who are not familiar with the Old Testament, ‘shibboleth’ is Hebrew for stream. Jephthah and Gilead fought Ephraimites and captured the Jordan crossing. To distinguish who was friend or foe, they had everyone say the word ‘shibboleth’. If they could not pronounce is correctly, they knew they were the enemy. Hence ‘shibboleth’ became an identifier or a dead giveaway. It would be like hearing someone say, ‘Where did I put my jandals?’ Straightaway you would know they are a New Zealander. It is a shibboleth. Gladwell calls it ‘thin slicing’. He says you can take a big salami and, no matter how thinly you slice that salami, everything you want to know about the whole salami is in that thin slice.

I note the CFMEU gave over $100,000 to the Greens before the last election. How morally bankrupt can you get when you oppose this legislation and you have received money from the CFMEU. The Greens, the party that pretends to be a party of ethics and morality, gladly takes money from the CFMEU. There’s your ‘blink’ moment, your ‘thin slice’ of the Greens. The Greens shibboleth. Everything you want to know about them is right there.

By contrast, look at the Shop, Distributive and Allied Employees Association. I have never once heard allegations that they have engaged in criminal behaviour or provided funding to the Greens. The Shoppies have more in common with Family First than the Greens. The Independent Contractors Association says in the submission I mentioned earlier that the previous federal construction code changed the dynamic of reducing the violence, harassment and intimidation on construction sites. It did so because:

… any construction business that was involved in or permitted anti-competitive industrial relations activity (including violence and intimidation) found itself excluded from government work. This changed the commercial ‘reward’ system because the financial benefits from violence and intimidation were largely removed. Unfortunately this was undone with the closing down of the ABCC.

This bill creates the capacity for a new building code. I have heard about the huge cost blow-outs, enabled by the existing code. In my home state of South Australia the state Labor government is building a brand-new hospital, recently built a health and medical research institute, made a major expansion of the grandstands at Adelaide Oval and is, with the help of the Commonwealth, about to commence major and long-overdue roadworks. We have had to fight hard to get Commonwealth funding to support those projects and yet where will a significant percentage of that federal taxpayer money go? It will go into supporting the inefficiencies provided by the current building code.

Look at the stadium construction project my Western Australian colleagues have happening in their capital and at the new footbridge they think will be better than Adelaide’s new footbridge. Indeed, just on Thursday TheFinancial Reviewreported that 76 workers at the new children’s hospital project in Perth were found, by the Federal Court, to have engaged in unlawful industrial action—on a children’s hospital project! I see Senator Smith nodding. This happened in his home state. If taxpayers in the states that we senators here represent want value for state and federal taxpayer money we ought to demand that building codes support efficient civil construction projects—and that is not to mention private projects like the Olympic Dam expansion and other mining opportunities. When you have major inefficiencies, such as major work stoppages on questionable grounds, it is proper for the government to look at how we can ensure that those trying to create jobs and improve our economic situation can get on with the job to deliver projects on time and on budget. Let me quote from a report by Deloitte Access Economics, of last year, submitted to the Productivity Commission:

It is also worth highlighting that the rate of engineering construction cost increase has been notably higher for public sector projects … than private sector projects. Given the significant demand seen for resources investment, and the combination of a rising $A and high import component for resources projects … costs of imported materials … one might have thought this would be the other way around.

A loss of competitiveness in delivering infrastructure projects creates difficulties for the Australian economy …

I have heard allegations being made in this place about behaviour on construction sites and towards Fair Work Building and Construction officials which make one’s hair curl. They are appalling allegations. I was willing to support the continuation of the powers needed by Fair Work Building and Construction during a previous session of the parliament when they were about to expire, because I believed there were legitimate concerns that needed investigation. For those same reasons and the factors I have outlined, whilst I am not generally in favour of expanding government power, the situation in the commercial construction industry has become so bad that we need to restore the ABCC. I support the bill.