Division Description Changes — Regulations and Determinations — Code for the Tendering and Performance of Building Work 2016; Disallowance — 9th Aug 2017

Change	Division
senate vote 2017-08-09#10 Edited by mackay staff on 2023-11-17 10:22:43	Title ~~Regulations and Determinations — Code for the Tendering and Performance of Building Work 2016; Disallowance~~ Regulations and Determinations - Code for the Tendering and Performance of Building Work 201 - Disallowance Description ~~<p class="speaker">Doug Cameron</p>~~ ~~<p>I move:</p>~~ The majority voted against a [motion](https://www.openaustralia.org.au/senate/?id=2017-08-09.228.2): > That the [Code for the Tendering and Performance of Building Work 2016](https://www.legislation.gov.au/Details/F2016L01859/Explanatory%20Statement/Text), made under the Building and Construction Industry (Improving Productivity) Act 2016, be disallowed. Since this vote was unsuccessful, this Code will continue to be law. <p class="italic">That the Code for the Tendering and Performance of Building Work 2016, made under the <i>Building and Construction Industry (Improving Productivity) Act 2016</i>, be disallowed.</p> <p>This morning we heard Minister Cash, in one of her diatribes, say that workplaces should be cooperative, productive and fair. Let me tell you that the building and construction code does not lead to cooperative workplaces. It does not lead to productive workplaces and it does not lead to fair workplaces. I notice that the minister never mentioned having safe workplaces, but let me add that to the list that Minister Cash outlined. Let me indicate that the Australian Building and Construction Commission does nothing for safety in relation to building and construction workers in this country.</p> <p>Minister Cash also said this morning that small and medium workplaces need to be able to compete. Really, that is code—not the Building Code—but it's a code for letting the cowboys loose in the building and construction industry. The cowboys are in there, with no concern for health and safety. And what we see is what happened to two young Irish backpackers in East Perth, who were employed by Jackson Construction. They were Gerry Bradley and Joe McDermott, young Irish construction workers killed on the job, even after the CFMEU had notified WorkSafe in Western Australia that there was a problem and after they had tried to enter the Jackson site to deal with health and safety issues. And what happened to them? They were obstructed by the ABCC. You let cowboy companies on the job, and what do you get? You get young workers killed. You get a 27-year-old German backpacker working 13 floors up, falling to her death. That's the type of situation you get when you have the ABCC and this Building Code in place.</p> <p>We need to get back to a situation in the industry where the tripartite groups—the government, the building unions and the employers in the industry—can come together and sit down to discuss the issues that will improve productivity and that will improve health and safety on the site, not this ideological nonsense that Minister Cash proposes every time she's on her feet, which is about diminishing workers' rights in the building and construction industry and diminishing health and safety. It's an ideology which has no concern for proper training and skills in the industry, letting exploitation take its way in the industry—where the small businesses and big businesses can exploit workers without any fear of any government regulation or government legislation that will deal with it.</p> <p>We see overseas labour flooding into these building and construction sites, many of them young backpackers with no experience in the industry, being killed and being maimed in the building and construction industry—a very dangerous industry. We see apprentices being exploited in the industry. Does the Building Code fix that? No, it doesn't. Does the ABCC deal with that? No, they don't. This is just an ideological group set up by this government to diminish workers' rights and access to the unions in the industry. It's about allowing a dog-eat-dog undercutting of the rates of pay properly negotiated by the unions and the building industry by providing protections for these fly-by-nighters, the cowboys in the industry, coming in to undercut decent wages in the industry. It's one of the reasons we have wage stagnation in this country. It's one of the reasons the Reserve Bank Governor has come out and said, 'Make more demands for wages,' because wages under this minister are stagnating. Profitability is going up and wages are going down, and that's because of these ideologically driven pieces of legislation that provide for the ABCC and the Building Code.</p> <p>I have to say to you—and I've said this on many occasions—I have never seen a more incompetent servant of the Australian public than Nigel Hadgkiss, the building commissioner, who established their approach under the direction of the former minister, Senator Eric Abetz, and continued on with the ideology that drives Senator Cash to attack working people and their unions, to determine that the core business of the ABCC will not allow them to deal with workers' exploitation. They won't deal with phoenixing and sham contracting. They won't deal with health and safety. And it was only after legislation to re-establish the ABCC came to this Senate—last year, I think, now—that we actually got changes to the legislation to try to widen the issues that the ABCC dealt with. I know Senator Xenophon made comments about the conduct of Mr Nigel Hadgkiss, the commissioner for the ABCC, who has responsibility to oversight this code—a code that is simply about diminishing workers' rights in the building and construction industry. And Senator Xenophon agreed with me that there were significant problems with the operation of the ABCC. How such an incompetent, ideologically driven public servant could ever be given the responsibility to implement legislation in the building and construction industry beggars belief. I just don't understand it. He is absolutely incompetent and absolutely ideologically driven.</p> <p>Let's look at what this minister has delivered with this code. This is a code that is supposedly improving productivity but, when you look at it, it's only about driving down wages and conditions and trying to ensure that the building and construction unions have little opportunity to increase rights in the building industry.</p> <p>One of the clauses in that building code stops unions negotiating with companies to increase the opportunities for young Australians getting apprenticeships in the industry. I was a union official for 27 years, and one of my jobs whenever I was bargaining was to get young kids a job—give young kids an opportunity to get an apprenticeship. But that is directly illegal under this building code. That's despite the ABS estimating that, in 2015, approximately 27,400 young people applied for apprenticeships in the industry, but were unsuccessful in obtaining one. This is something that has been allowed for decades in this country, because this government determines that you are not going to be allowed to bargain with your employer to increase apprenticeships. What a nonsense!</p> <p>The other aspect of this building code is about increasing casualisation. That's what it's about. It's about stopping workers getting permanent jobs in the industry. Clauses requiring casual conversion to permanent work after six weeks is not code compliant. I don't know anywhere in this country, never mind overseas, where you can't bargain for those issues. I don't know anywhere else in the world, in advanced economies, where unions can't bargain on behalf of the workers to get a conversion to permanent work after six weeks. This government—the ideologues and rabble of a government that they are—and this minister have determined that this doesn't fit with their view of the world and it doesn't fit with the employers who pour money into their election campaigns every year. That's despite that one in four workers in the industry are casual—23.9 per cent casual. That is significantly higher than the national average across all industries.</p> <p>This code makes vulnerable temporary overseas workers even more vulnerable. Clauses and agreements which require the parties to confer to ensure that all parties are satisfied—that all laws in relation to sponsorship, engagement and employment of a person who is not an Australian citizen are complied with—are banned by the code. The unions—the workers on the job—cannot get a clause in an agreement that says, 'Migrant workers or workers who are coming here on a temporary basis are employed under Australian law.' This is despite the fact that, while there are approximately two million temporary workers in Australia—including over 1.4 million with work rights—the overseas workers team at the Fair Work Ombudsman consists of 17 full-time inspectors to investigate cases of exploitation. That's 80,000 visa holders per inspector. But does this code contemplate any of those issues? Does this code assist working people and ensure that foreign workers are coming in on the correct basis? It doesn't.</p> <p>The code also bans clauses in enterprise agreements which ensure Australian residents will have preference in recruitment, employment and training opportunities relative to temporary foreign workers. What could be more crazy than that? This is a government who wants to reduce wages and conditions in the building and construction industry through this code and make it easy for companies to bring in temporary foreign workers at the expense of jobs for Australian workers. It makes it illegal to consult with the workers' union prior to the initial mobilisation of foreign labour. It makes it illegal for a union and workers on the job to ensure that, in the event of redundancies, temporary foreign workers will be made redundant first, given that temporary foreign workers are intended to supplement the Australian workforce. So this is what is in this code. It's not about productivity. It's not about ensuring that workers get rights. We so often hear from Senator Cash that the coalition are somehow standing up for workers' rights. I just can't stop laughing when I hear that from this rabble of a disjointed, divided government in here. They almost sound like Senator Roberts—completely out of touch with reality.</p> <p>The last point: although confirmed as non-compliant with the ABCC guidance note, it is in direct contradiction to the promise that the minister made in the debate on the building and construction amendment bill on 14 February. So this is a minister that can't even keep her word. Her ideology just dominates her capacity to keep her word. And they have even banned a union flying charity flags from cranes. The code doesn't allow the flying of union flags or the Good Friday Appeal flag. The Turnbull government's building code has been used on Victoria's sky rail and Tullamarine upgrade to block efforts by the CFMEU to raise money for the Royal Children's Hospital Good Friday Appeal. We hear so much from this minister, this ideologue across the chamber, coming after unions for stopping the job at a children's hospital because workers were dying on the job. But when workers were raising $800,000 last year for charity, this code stopped them raising that money. It's just crazy!</p> <p>They even got to the stage where they cancelled Christmas in the building and construction industry. Clauses which provide that in the construction sector Christmas shutdowns shall be observed as per the industry calendar are non-compliant. It is something that's happened in the building and construction industry for decades. But it doesn't fit with the ideology or the cost cutting that business want in that industry. There's no say for unions in fatigue management. Clauses in enterprise agreements that require union consultation for overtime in excess of 58 hours a week to be worked are banned. No wonder workers are getting killed in the building and construction industry directly because of this code. There is more fatigue and more pushing for long hours in a very dangerous industry. You can't deal with it in your agreement between you and the employer.</p> <p>The code says that any disputed or delayed payment has to be reported to the ABC commissioner and the relevant funding entity. The ABCC has defined a payment has 'disputed' when it's referred to adjudication, and it's delayed when the amount payable is in accordance with a determination of an adjudicator. This doesn't help contractors and their reluctance to report that they're not being paid in the first place. This is an abomination of a code. It inhibits union officials' access to their workplace. The bulk of the disputes in the building and construction industry are when union officials are trying to get onto the site to protect their members' wages and conditions, protect their health and safety, and deal with workers who are being maimed and killed in the building and construction industry. Twenty five have been killed in recent times. It's absolutely unacceptable. This Senate should not allow this code to continue.</p> <p>Senator Xenophon needs to address these issues and why workers in this country are being denied the rights that are allowed in every other advanced country in the world. It provides a fig leaf to legitimate problems in the industry by paying lip-service to being concerned about health and safety, wage theft, worker exploitation, contractor underpayments, the exploitation of foreign labour and non-conforming building products that are killing people all over the world.</p> <p>John Holland have seven convictions for serious breaches of the Commonwealth Occupational Health and Safety Act—four of those involving fatalities—but they haven't been banned from construction building work. So you can kill workers on a building site but you can't fly a union flag. How ridiculous is that? How much more does this mob need to do to demonstrate how stupid they are in relation to this building code? Only two companies have lost accreditation for work on Commonwealth safety provided by the Federal Safety Commission in the 12 years that this has been established. But there has been fatality after fatality. There have been 424 fatalities in the construction industry in the last 12 years, as of 2 August. But do you hear any concerns about that from this rabble of a government? No; it's about stopping workers accessing a decent union and stopping them accessing decent rights. <i>(Time expired)</i></p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Doug Cameron~~
~~I move:~~
The majority voted against a [motion](https://www.openaustralia.org.au/senate/?id=2017-08-09.228.2):
> *That the [Code for the Tendering and Performance of Building Work 2016](https://www.legislation.gov.au/Details/F2016L01859/Explanatory%20Statement/Text), made under the Building and Construction Industry (Improving Productivity) Act 2016, be disallowed.*
Since this vote was unsuccessful, this Code will continue to be law.
That the Code for the Tendering and Performance of Building Work 2016, made under the Building and Construction Industry (Improving Productivity) Act 2016, be disallowed.
This morning we heard Minister Cash, in one of her diatribes, say that workplaces should be cooperative, productive and fair. Let me tell you that the building and construction code does not lead to cooperative workplaces. It does not lead to productive workplaces and it does not lead to fair workplaces. I notice that the minister never mentioned having safe workplaces, but let me add that to the list that Minister Cash outlined. Let me indicate that the Australian Building and Construction Commission does nothing for safety in relation to building and construction workers in this country.
Minister Cash also said this morning that small and medium workplaces need to be able to compete. Really, that is code—not the Building Code—but it's a code for letting the cowboys loose in the building and construction industry. The cowboys are in there, with no concern for health and safety. And what we see is what happened to two young Irish backpackers in East Perth, who were employed by Jackson Construction. They were Gerry Bradley and Joe McDermott, young Irish construction workers killed on the job, even after the CFMEU had notified WorkSafe in Western Australia that there was a problem and after they had tried to enter the Jackson site to deal with health and safety issues. And what happened to them? They were obstructed by the ABCC. You let cowboy companies on the job, and what do you get? You get young workers killed. You get a 27-year-old German backpacker working 13 floors up, falling to her death. That's the type of situation you get when you have the ABCC and this Building Code in place.
We need to get back to a situation in the industry where the tripartite groups—the government, the building unions and the employers in the industry—can come together and sit down to discuss the issues that will improve productivity and that will improve health and safety on the site, not this ideological nonsense that Minister Cash proposes every time she's on her feet, which is about diminishing workers' rights in the building and construction industry and diminishing health and safety. It's an ideology which has no concern for proper training and skills in the industry, letting exploitation take its way in the industry—where the small businesses and big businesses can exploit workers without any fear of any government regulation or government legislation that will deal with it.
We see overseas labour flooding into these building and construction sites, many of them young backpackers with no experience in the industry, being killed and being maimed in the building and construction industry—a very dangerous industry. We see apprentices being exploited in the industry. Does the Building Code fix that? No, it doesn't. Does the ABCC deal with that? No, they don't. This is just an ideological group set up by this government to diminish workers' rights and access to the unions in the industry. It's about allowing a dog-eat-dog undercutting of the rates of pay properly negotiated by the unions and the building industry by providing protections for these fly-by-nighters, the cowboys in the industry, coming in to undercut decent wages in the industry. It's one of the reasons we have wage stagnation in this country. It's one of the reasons the Reserve Bank Governor has come out and said, 'Make more demands for wages,' because wages under this minister are stagnating. Profitability is going up and wages are going down, and that's because of these ideologically driven pieces of legislation that provide for the ABCC and the Building Code.
I have to say to you—and I've said this on many occasions—I have never seen a more incompetent servant of the Australian public than Nigel Hadgkiss, the building commissioner, who established their approach under the direction of the former minister, Senator Eric Abetz, and continued on with the ideology that drives Senator Cash to attack working people and their unions, to determine that the core business of the ABCC will not allow them to deal with workers' exploitation. They won't deal with phoenixing and sham contracting. They won't deal with health and safety. And it was only after legislation to re-establish the ABCC came to this Senate—last year, I think, now—that we actually got changes to the legislation to try to widen the issues that the ABCC dealt with. I know Senator Xenophon made comments about the conduct of Mr Nigel Hadgkiss, the commissioner for the ABCC, who has responsibility to oversight this code—a code that is simply about diminishing workers' rights in the building and construction industry. And Senator Xenophon agreed with me that there were significant problems with the operation of the ABCC. How such an incompetent, ideologically driven public servant could ever be given the responsibility to implement legislation in the building and construction industry beggars belief. I just don't understand it. He is absolutely incompetent and absolutely ideologically driven.
Let's look at what this minister has delivered with this code. This is a code that is supposedly improving productivity but, when you look at it, it's only about driving down wages and conditions and trying to ensure that the building and construction unions have little opportunity to increase rights in the building industry.
One of the clauses in that building code stops unions negotiating with companies to increase the opportunities for young Australians getting apprenticeships in the industry. I was a union official for 27 years, and one of my jobs whenever I was bargaining was to get young kids a job—give young kids an opportunity to get an apprenticeship. But that is directly illegal under this building code. That's despite the ABS estimating that, in 2015, approximately 27,400 young people applied for apprenticeships in the industry, but were unsuccessful in obtaining one. This is something that has been allowed for decades in this country, because this government determines that you are not going to be allowed to bargain with your employer to increase apprenticeships. What a nonsense!
The other aspect of this building code is about increasing casualisation. That's what it's about. It's about stopping workers getting permanent jobs in the industry. Clauses requiring casual conversion to permanent work after six weeks is not code compliant. I don't know anywhere in this country, never mind overseas, where you can't bargain for those issues. I don't know anywhere else in the world, in advanced economies, where unions can't bargain on behalf of the workers to get a conversion to permanent work after six weeks. This government—the ideologues and rabble of a government that they are—and this minister have determined that this doesn't fit with their view of the world and it doesn't fit with the employers who pour money into their election campaigns every year. That's despite that one in four workers in the industry are casual—23.9 per cent casual. That is significantly higher than the national average across all industries.
This code makes vulnerable temporary overseas workers even more vulnerable. Clauses and agreements which require the parties to confer to ensure that all parties are satisfied—that all laws in relation to sponsorship, engagement and employment of a person who is not an Australian citizen are complied with—are banned by the code. The unions—the workers on the job—cannot get a clause in an agreement that says, 'Migrant workers or workers who are coming here on a temporary basis are employed under Australian law.' This is despite the fact that, while there are approximately two million temporary workers in Australia—including over 1.4 million with work rights—the overseas workers team at the Fair Work Ombudsman consists of 17 full-time inspectors to investigate cases of exploitation. That's 80,000 visa holders per inspector. But does this code contemplate any of those issues? Does this code assist working people and ensure that foreign workers are coming in on the correct basis? It doesn't.
The code also bans clauses in enterprise agreements which ensure Australian residents will have preference in recruitment, employment and training opportunities relative to temporary foreign workers. What could be more crazy than that? This is a government who wants to reduce wages and conditions in the building and construction industry through this code and make it easy for companies to bring in temporary foreign workers at the expense of jobs for Australian workers. It makes it illegal to consult with the workers' union prior to the initial mobilisation of foreign labour. It makes it illegal for a union and workers on the job to ensure that, in the event of redundancies, temporary foreign workers will be made redundant first, given that temporary foreign workers are intended to supplement the Australian workforce. So this is what is in this code. It's not about productivity. It's not about ensuring that workers get rights. We so often hear from Senator Cash that the coalition are somehow standing up for workers' rights. I just can't stop laughing when I hear that from this rabble of a disjointed, divided government in here. They almost sound like Senator Roberts—completely out of touch with reality.
The last point: although confirmed as non-compliant with the ABCC guidance note, it is in direct contradiction to the promise that the minister made in the debate on the building and construction amendment bill on 14 February. So this is a minister that can't even keep her word. Her ideology just dominates her capacity to keep her word. And they have even banned a union flying charity flags from cranes. The code doesn't allow the flying of union flags or the Good Friday Appeal flag. The Turnbull government's building code has been used on Victoria's sky rail and Tullamarine upgrade to block efforts by the CFMEU to raise money for the Royal Children's Hospital Good Friday Appeal. We hear so much from this minister, this ideologue across the chamber, coming after unions for stopping the job at a children's hospital because workers were dying on the job. But when workers were raising $800,000 last year for charity, this code stopped them raising that money. It's just crazy!
They even got to the stage where they cancelled Christmas in the building and construction industry. Clauses which provide that in the construction sector Christmas shutdowns shall be observed as per the industry calendar are non-compliant. It is something that's happened in the building and construction industry for decades. But it doesn't fit with the ideology or the cost cutting that business want in that industry. There's no say for unions in fatigue management. Clauses in enterprise agreements that require union consultation for overtime in excess of 58 hours a week to be worked are banned. No wonder workers are getting killed in the building and construction industry directly because of this code. There is more fatigue and more pushing for long hours in a very dangerous industry. You can't deal with it in your agreement between you and the employer.
The code says that any disputed or delayed payment has to be reported to the ABC commissioner and the relevant funding entity. The ABCC has defined a payment has 'disputed' when it's referred to adjudication, and it's delayed when the amount payable is in accordance with a determination of an adjudicator. This doesn't help contractors and their reluctance to report that they're not being paid in the first place. This is an abomination of a code. It inhibits union officials' access to their workplace. The bulk of the disputes in the building and construction industry are when union officials are trying to get onto the site to protect their members' wages and conditions, protect their health and safety, and deal with workers who are being maimed and killed in the building and construction industry. Twenty five have been killed in recent times. It's absolutely unacceptable. This Senate should not allow this code to continue.
Senator Xenophon needs to address these issues and why workers in this country are being denied the rights that are allowed in every other advanced country in the world. It provides a fig leaf to legitimate problems in the industry by paying lip-service to being concerned about health and safety, wage theft, worker exploitation, contractor underpayments, the exploitation of foreign labour and non-conforming building products that are killing people all over the world.
John Holland have seven convictions for serious breaches of the Commonwealth Occupational Health and Safety Act—four of those involving fatalities—but they haven't been banned from construction building work. So you can kill workers on a building site but you can't fly a union flag. How ridiculous is that? How much more does this mob need to do to demonstrate how stupid they are in relation to this building code? Only two companies have lost accreditation for work on Commonwealth safety provided by the Federal Safety Commission in the 12 years that this has been established. But there has been fatality after fatality. There have been 424 fatalities in the construction industry in the last 12 years, as of 2 August. But do you hear any concerns about that from this rabble of a government? No; it's about stopping workers accessing a decent union and stopping them accessing decent rights. (Time expired)
~~Long debate text truncated.~~