Building and Construction Industry (Improving Productivity) Amendment Bill 2017 (Second Reading)


Mr STEPHEN JONES (Whitlam) (17:46): I note that there are no further government speakers who are willing to get up and defend the legislation that has been put forward in their name, and I can understand full well why. The innocuously named bill, the Building and Construction Industry (Improving Productivity) Amendment Bill 2017, is designed to induce or coerce employers to break an agreement that was made with them in good faith. I will say that again, because it is absolutely true and it is important that every member on the other side understands this. This is a bill designed to coerce or induce employers to break an agreement which has been made with their workforce in good faith. If an ordinary business, a union or a private individual did that, we would call it a crime or we would call it a tort. But when the government does it we call it lawmaking. It is no less a crime or a tort because it is brought forward in the name of the government.

Let us put this into context. This is a government that came back from a near-death experience in the August election with a grand plan to reshape the structure of Australia and to remodel the economy. We were promised great big new plans, but when we looked for the detail it amounted to nothing more than a $50 billion tax cut for the richest individuals in this country; a benefit cut for pensioners; a series of threatening show-cause and 'you are in debt' letters from the Minister for Human Services; and a proposition to amend the Australian building and construction industry bill. So there you have it: their great big bold plan for Australia.

This is a man who has strived his entire life—and I am talking about the member for Wentworth—to get to the position where he had the words 'Prime Minister of Australia' on his business card. He gets that opportunity, and his big plan for Australia is a tax cut for the richest, a benefit cut for pensioners and a bill to have a go at unions, just because he does not like them. It is not an agenda; it is farce. As I said, if this proposition was brought forward in the name of an ordinary individual, a business or a union, it would be called a crime, because, make no mistake, this bill is about inducing or coercing employers to break, breach or renege on agreement. That is its singular purpose.

The pillars of liberal philosophy, those talismans that thrust every one of those conservative members of parliament to stand for public office and come to this place revolve around a few things. There is the idea of freedom of contract, the idea that it is not the place of third parties and certainly not the place of governments to interfere in the rights of individuals to freely contract with each other and reach agreements and, once an agreement is struck, it should stick, and it should not be the role of other individuals to attempt to come in there and set that agreement aside. There is the idea that we remove government and unwanted third parties from the business affairs of employers, as between employers and employees and employers and unions; that we do not need third parties and we do not need governments getting in and tying them up in red tape and ensuring that they cannot get on with the work that they need to do to grow their profitability and to employ people. And, finally, there is the idea that, if government must legislate, it should not do so retrospectively. That is what ostensibly animates all those on the other side.

This bill which is before the House today offends each and every one of those propositions. Let me explain why. This bill attempts to put the Australian building and construction industry commissioner in a position where he can second-guess, vet and set aside—or certainly ensure that people who are employed under such an agreement never get a job on certain worksites in this country. Think about this for a moment. Two weeks ago the Leader of the Opposition gave a speech in the National Press Club of Australia.

Ms Butler: It was a good speech.

Mr STEPHEN JONES: It was a good speech, as the member for Griffith points out. He committed Labor to three core objectives. There were three things we were going to be advocating for over the course of the next 12 months, and those three things were jobs, jobs and jobs.

Deputy Speaker, I want you to think for a moment about the purpose of this bill, a bill which, if it does not achieve its first objective, which is to coerce employers to set aside an agreement, will certainly achieve its second objective. And that second objective is to prevent workers from getting jobs in certain places in Australia. I want you to contrast that proposition with a proposition of the Leader of the Opposition, and the Labor challenge for the year, and that is: to put our shoulder to the wheel, to create more jobs and to make it easier for workers to get jobs in this country. Contrast that with the single purpose of this bill, which is coercion and preventing workers from getting jobs on certain building sites in this country. Have you ever heard of this proposition—where a government, which talks about creating jobs, says: 'But we are going to create a piece of legislation whose purpose is to stop certain workers getting a job'? That is what it is about—to prevent certain workers who are employed by certain businesses, employed by certain agreements which the government takes offence to, from getting a job on a worksite.

Let us have a look at this. I want to take us through it, because the member for Gorton has gone through, in some detail, the provisions of the bill. For the benefit of those members from the government who have not read the bill that they are about to vote for, I want to take them through some of the provisions of the bill, in the hope that they will change their mind, because I have already explained how it offends against everything that they purport to stand for—every Liberal principle that they purport to stand for. But I also want to spell out why it offends against just good common sense.

The capacity of the bill to do its work arises from section 34 of the building and construction industry act. This is the provision of the act which enables the minister to make a code. And indeed, he has made such a code, and I have a copy of that code in my hand. It is this code which is enlivened and will be given further force by the bill before the House today. I want to take you to a couple of provisions within the code which I rather warrant that the overwhelming majority of members of the coalition have not even read. They will not have even read this, because if they had read it they certainly would not be voting for it. I will quote from clause 11 of the relevant code, headed 'Content of agreements and prohibited conduct, arrangements and practices'. Take note of the heading, Deputy Speaker, because that is what it is all about. It says:

A code covered entity must not be covered by an enterprise agreement in respect of building work which includes clauses that:

(a) impose or purport to impose limits on the right of the code covered entity—

that being a business—

to manage its business or to improve productivity …

Just think about that for a moment. This is what we are giving force to. I ask members opposite to consider this. They are prohibiting a clause within an enterprise agreement which imposes, or purports to impose, limits on the right of the code covered entity to manage its business or to improve productivity. Well, that could be just about anything—perhaps a provision which will be in every enterprise agreement in the country which says that ordinary hours of work shall be within a 12-hour bandwidth and they shall be between the hours of 7 am and 7 pm. Pick up just about any enterprise agreement in the country, and you will have a provision within it that has that—a provision which is imposing or purporting to impose a limit on the right of the employer to manage their business. That is exactly what it does. In fact, that is exactly what most enterprise agreements do—they seek to enshrine rights which provide benefits to employees, albeit benefits which may restrict the right of an employer to do absolutely everything that they would otherwise want to do or to manage the business in ways which best suit their interests, because that is what enterprise agreements do. That is what contracts do: they settle rights as between employers and employees in a way which restricts the abilities of both to do what they might otherwise want to do willy-nilly.

So you might say, 'Well, that can't be a sensible reading of the code or the act; that's not what is intended by the legislation.' But I put to you, Deputy Speaker: that is exactly what it says. So if that is not a sensible reading of it, surely there has to be some adjudication of this. I can only say to you: I wish I were still on the lawyering tools! I would be making a fortune out of this, because what this does is to put every building and construction agreement in the country into contest. And it will be the Australian Building and Construction Industry Commissioner who ultimately will be the arbiter, to see which of those common provisions which are in every single enterprise agreement in the country are offensive to the code and therefore are going to restrict or stop employees getting a job on a particular worksite. Have you ever seen a more ridiculous piece of legislation?

There are certain industrial activists on that side of the House who have been working their entire lives to see that sort of legislation entered onto the statute books. They are not in the majority, and I am absolutely certain that you, Mr Deputy Speaker Buchholz, are not within their number. But this is the provision which they will be voting to extend if this bill passes before this House.

We have heard a lot of talk over the last three or four months about the importance of creating jobs, particularly creating jobs for young people. I happen to believe it is the obligation of every member of this House to be doing everything within their power to be looking for opportunities to create skills, training and employment opportunities, for young Australians to get an apprenticeship, to get a start in life. It is quite common that unions, when they are advocating for agreements, whether they are industry, enterprise-wide or site agreements, to seek to strike up an arrangement with the employer that says that there shall be a certain number of apprentices or trainees that are employed on a worksite—a very sensible arrangement, and one which is in the interests of all Australians. Anybody who has ever tried to get a plumber out to their place on a weekend would understand the shortage we have of plumbers, and of sparkies, chippies and many other trades. The way we are going to fix that is not by importing them from overseas but by training up our young people to do that work.

I am absolutely certain that no member on that side, apart from the industrial activists, has read this provision, because otherwise they would not vote for it, because the provision within the code that they are voting to extend will prohibit agreements on building sites which attempt to put in place provisions which require ratios or agreements around trainee numbers, apprenticeship numbers and the types of employers on the worksite. I could list a whole range of other provisions which members of the government are voting to extend. I have just picked a few, to point out the absolute ludicrousness of the provisions contained within this bill and to ram home the point that it is unprecedented in this country that members would ignorantly walk into this House and stick their hand up to vote for a provision which is going to stop people getting a job. They may do that by accident, but they should never do it on purpose. The single purpose of this bill is to stop certain Australians—who, before the passage of the bill, would be quite entitled to get a job—getting a job on a certain building site in this country. As I said, members on that side should be informed about what they are going to vote for. This is certainly not in the interests of their constituents.