House of Representatives Speech- Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009

The Liberal Party are still the party of Work Choices. This is the only conclusion that the Australian people can draw from the Liberal Party’s opposition to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009. The Liberal Party have demonstrated their continuing commitment to Work Choices by their speeches in this House and indeed by their disallowance in the Senate of the government’s direction to the Office of the Australian Building and Construction Commissioner.

The Liberal Party are still the party of Work Choices. This is the only conclusion that the Australian people can draw from the Liberal Party’s opposition to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009. The Liberal Party have demonstrated their continuing commitment to Work Choices by their speeches in this House and indeed by their disallowance in the Senate of the government’s direction to the Office of the Australian Building and Construction Commissioner.

The Independent senators and the Greens recognised the mandate that this government received at the last election to abolish Work Choices. That is why they supported the Fair Work Bill when it passed through this parliament on 20 March this year. The government has an equally strong mandate for this bill because the Labor Party took a firm and clear commitment to the Australian people, which was to abolish the Office of the Australian Building and Construction Commissioner and to transfer its responsibilities to a specialist fair work inspectorate from 1 February 2010, and that is what this bill does.

The bill of course contains a set of provisions which will put in place a procedurally fair and appropriate form of regulation for the Australian building and construction industry, one which fits within the framework of the Fair Work Act. It has been extraordinary to listen to the speeches that have been made in this House for—I think it is fair to say—the hysterical tone which has been adopted by those opposite in respect of this industry.

The aspect of the bill that I want to speak to particularly is the preservation, for the time being, of coercive powers. As the minister explained in her second reading speech, the reason why coercive powers have been retained in the framework of legislation that is here being put forward is that former Justice Wilcox in his report, which was a very considered report following a process of a discussion paper, wide consultation throughout the Australian community and written submissions from all interested parties, concluded that there was still a need for coercive powers in a limited form to be retained in the framework of regulation that is going to go forward for the building and construction industry.

Justice Wilcox commented that the continuation of coercive powers is not, as has been suggested by a number of people commenting, entirely outside the framework of the Australian legal system—far from it. Coercive powers are to be found in a range of different acts of this parliament. One could point to coercive powers that are given, for example, to the Australian Consumer and Competition Commission or indeed the coercive power that is exercised every day by courts in this country, which is the sending of a subpoena to witnesses. The particular coercive powers that are in question here are ones which, Mr Wilcox expressed the opinion, were needed for some further time.

What this bill recognises, by two provisions, is that the government and the Labor Party envisage that a time will come when coercive powers will be no longer needed in the Australian building and construction industry. The way in which this bill recognises that end result, if you like, is by first of all imposing a sunset provision which sunsets the coercive powers at the end of five years from 1 February 2010. The second way in which this bill recognises that coercive powers may fade away and be no longer part of the industrial relations scene and no longer applicable to the building and construction industry is that the powers will be able to be switched off for particular projects.

It is recognised in this bill that starting on 1 February 2010, which is when the new regime will apply and when this legislation is passed through this parliament, while projects that have been commenced before 1 February 2010 will continue to be covered by coercive powers, it will be possible for particular projects to have the powers switched off. That is something that an independent assessor will look at. I would expect that over time it will become commonplace for these coercive powers to be recognised as not necessary for particular projects. I would expect that, in entire regions of Australia, quite quickly we will get to a position where it is simply a matter of course that the coercive powers will be able to be switched off and that there will be no special regime applying for those projects or in those areas because it will be accepted that they are not needed.

In both of those respects, this bill recognises that coercive powers are not going to be with us forever. It recognises the unusual nature of these coercive powers and reflects appropriately the reluctance that this parliament should always have to impose this kind of regime on any part of the Australian economy, any particular industry or any group of Australians. They are extraordinary powers. They need to be recognised as extraordinary powers and it should be recognised that they should only be introduced in circumstances where they are absolutely required. This is something that Justice Wilcox has given very long and earnest consideration to. The government, in legislating in the way that it has in this bill, is accepting that long and earnest consideration given to the subject by Mr Wilcox.

It should also be pointed out that there is an extensive set of safeguards that are to accompany the coercive powers which are to continue to be employed in the Australian building and construction industry. They include:

  • use of the powers is dependent on a presidential member of the Administrative Appeals Tribunal being satisfied a case has been made for their use,—

The next point is perhaps the most important of all of these safeguards in the exercise of these coercive powers:

  • persons required to attend an interview may be represented by a lawyer of their choice and their right to claim legal privilege and public interest immunity will be recognised,
  • persons required to attend an interview will be reimbursed for their reasonable expenses,
  • all interviews are to be videotaped and undertaken by the director or their deputy,
  • the Commonwealth Ombudsman will monitor and review all interviews and provide reports to the parliament on the exercise of this power, and—

as I have mentioned—

  • the powers will be subject to a five-year sunset clause.

In all of those respects there is a recognition of the extraordinary nature of these coercive powers, there is a recognition that the time in which these powers are going to continue to be employed is going to be a limited one, and there is a recognition that because of the extraordinary nature of these powers it is entirely appropriate that they be accompanied by safeguards which will deliver procedural fairness and, in a very real sense, the rule of law in this area.

Having dealt with one of the more contentious areas of the bill, I again want to deal with another step that has been taken by those opposite which reflects just how clearly they are the party of Work Choices. It is something which was dealt with by the minister in her second reading speech: what is to occur in the interim before this legislation takes effect. In her speech introducing this legislation, the Deputy Prime Minister said that she was going to make a direction under the existing legislation to the Office of the Australian Building and Construction Commissioner. The Deputy Prime Minister did just that and made such a direction, which went to the manner in which the existing powers of the Building and Construction Commissioner were to be exercised.

The response of those opposite and the step taken by the Liberal Party in the Senate on 25 June to an entirely appropriate direction given by the minister as foreshadowed in her second reading speech was to move, regrettably successfully, for disallowance of that direction. That disallowance confirms that the Liberal Party is still the party of Work Choices.

As I said, that direction was made under the existing act. It relates to the manner of the exercise of powers until the ABCC is abolished with effect from 1 February next year. The direction is entirely consistent with the Wilcox recommendations on the coercive powers. The direction does not affect the investigative, compliance or prosecution powers of the ABCC and it does not take away any of the coercive powers that are presently vested in the ABCC. The direction does introduce a measure of procedural fairness and decency in the exercise of those coercive powers, and it is that measure of procedural fairness and decency which those opposite reject. They do not want fairness and decency in the industrial relations system of this country. They wish for a return to Work Choices; they make that clear every time they speak on this subject, they made that clear in the Senate by disallowing this ministerial direction and they continue to make it clear by their opposition to this bill.

It is worth pausing for a moment to look at what was rejected in this direction by those opposite. Again, to give it context, this is a direction to the Australian Building and Construction Commissioner about how in the interim before the commission is abolished on 1 February next year he is to go about exercising the coercive powers. The first of those was a very simple direction to permit a legal representative—no more than that—to sit and speak with someone who is being made the subject of these coercive powers, to permit a legal representative to speak on behalf of that person and—shock, horror!—to be given the time and privacy to consult and advise that person. Those opposite do not believe in legal representation, they believe that workers should be deprived of legal representation, and that is the effect of what they have done in disallowing this direction.

Because it is absolutely representative of the attitudes of those opposite I want to mention the other four elements of this very simple direction, which in no way cut across the continued use of these coercive powers but which do set appropriate conditions for the use of those powers. The next alarming direction that the Deputy Prime Minister gave to the Australian Building and Construction Commissioner was to comply with the Commonwealth’s obligation to act as a model litigant, and apparently that, too, is seen as some vast lessening of power and as interference with the regime of industrial relations that applies to the building industry.

The third requirement was to give those who are affected by the coercive powers a reasonable opportunity to raise an objection in an appropriate court or tribunal. Again, reflective of the fact that those opposite do not believe in the rule of law or any opportunity to test the lawfulness of the conduct of a Commonwealth official, that, too, has been rejected by them.

The final direction which has been rejected by those opposite was to introduce, as a means of ensuring that there is procedural fairness in the use of these coercive powers hereafter, the procedure where it would be necessary for the Australian Building and Construction Commissioner to provide to a presidential member of the AAT a report describing how he proposed to use the coercive powers against particular persons, describing what was sought to be achieved by the use of the coercive powers, the likely effect on the person of the use of the coercive powers and the time within which this was all going to be done, and the requirement specified—this was far too much fairness and appropriate procedure for those opposite—that the Australian Building and Construction Commissioner was to ‘consider any advice received’ from the nominated presidential member of the AAT before proceeding further to exercise those coercive powers.

Again we have it clearly stated, by the speeches in this House on this bill and the rejection and disallowance of the minister’s direction in the Senate, that the Liberal Party is the party of Work Choices and wishes to reinstate Work Choices in every sense and continue with the harsh regime of industrial relations that was introduced in 2005. It is a party which does not believe in checks and balances or procedural fairness. It is a party which does not believe that workers should have rights. I would call on those opposite to respect the decision made by the Australian people in November 2007 to replace the Howard government with a government committed to the repeal of Work Choices and the replacement of the Australian Building and Construction Commission with a new body, because—be in no doubt—the same clarity of commitment to repeal Work Choices was shown in the clarity of the commitment that the Australian Labor Party took to the people at the last election, which was to abolish the Australian Building and Construction Commission. We have honoured that first commitment to repeal Work Choices and replace it with a fairer industrial relations system, which is what we see in the Fair Work Act that has now come into force. Refusal to pass this bill will prevent the government from honouring the second major commitment made in the industrial relations area, which was to abolish the Australian Building and Construction Commission. Refusal to pass this bill condemns the opposition as what they are: the party of Work Choices.