Minority Report
The Australian Greens
The Building and
Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009
is an attempt to find balance where there is none to be found. The BCII Act is
an affront to our democracy, demonising building workers and treating them as
criminals in an industrial relations context.
The Australian Greens have
placed on record a number of our times our complete opposition to the BCII Act
and in particular its provisions providing separate offences of unlawful
industrial action and coercion with harsher penalties for building workers and
the coercive powers of investigation afforded to the ABCC.
We remain committed to the
principle that there should be one law for all workers and that building and
construction workers should not be singled out for more punitive treatment.
Supporters of the BCII Act
and the retention of the coercive powers in the Bill point to the need for
cultural change in the building and construction industry and cite examples of
unacceptable behaviour to back their claims.[1]
The Australian Greens do not condone any criminal activities or bullying or
coercive behaviour whether in the workplace or not. However, we do not believe
the BCII Act or the activities of the ABCC are a necessary or sufficient means
of addressing such behaviour when it occurs.
The cultural change that is
need in the building and construction industry is much broader and requires
more than merely a concerted attack on the legitimate role of building unions.
The introduction to the Majority Report comments on the nature of the building
and construction industry and the broader problems identified within the
industry including the use of phoenix companies, non- payment of workers
entitlements, and disregard for occupational health and safety. The Australian
Greens endorse the comments made concerning the limitations of the ABCC and the
need to address a broader range of issues within the industry.
One of the key limitations of
the approach embodied by the BCII Act and the ABCC is the almost exclusive
focus on the actions of workers and their unions with employers seemingly
targeted only due to their relations with unions. There is little focus on the
problems engendered by management. It is quite clear that the ABCC has no
interest in fulfilling its function in respect of investigating breaches by
employers of their obligations to employees. By its own admission to ABCC does
not investigate claims of underpayments or breaches of awards or agreement
conditions.[2]
The Committee was reminded of
the importance of good management practices in the evidence given by Mr Quinn.
His evidence was a reminder that there remains a role for good management in
changing the culture of the industry and that a collaborative approach is
preferable and often more effective.[3]
In our view, the ABCC has not operated to enhance working relationships in the
building and construction industry but has been an ideological experiment in
vilifying workers and their representatives.
The Amendment Bill
As the Majority Report
indicates, the background and issues raised by the BCII Act have been well
covered in previous reports of the Committee including the 2004 Senate
Committee Inquiry into the future of the construction industry and the report
last year into the Australian Greens' Private Senator's Bill to repeal the BCII
Act.
The Majority Report also
provides a comprehensive summary of the key elements of the Bill. The
Australian Greens generally agree with the comments of the Majority Report and
endorse recommendations 1-6 made by the Government Senators.
We diverge in our views in
relation to the need for the continued existence of a separate compliance
agency for the building and construction industry and the retention of the
coercive powers.
Removal of industry specific offences relating to industrial action and
coercion
The Australian Greens support
the removal of 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. We remain unconvinced by arguments made by industry
representatives the BCII Act prohibitions and penalties are necessary. No other
workers in Australia are subject to such harsh individual civil penalties for
exercising their fundamental to right withdraw their labour.
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.
We agree with the ACTU that if there is to be a particular focus on the
building and construction industry it should be in the form of a specialist
division within the Office of the Fair Work Ombudsman. In particular we agree
with the comments of the ACTU regarding the importance of the culture of an
enforcement agency to its success and their comment that:
an inspectorate that is an administrative unit within the
Fair Work Ombudsman is more likely to develop a successful culture........In
contrast, we fear a separate inspectorate will struggle to develop an impartial
enforcement culture, and that the deep distrust of the ABCC felt by many
workers is likely to carry over to the new Fair Work Building Industry
Inspectorate.[4]
An impartial enforcement culture
is crucial to the success of the new Inspectorate, particularly if it is to
carry out its functions in regard to ensuring compliance by employers of their
obligations.
Coercive powers
The Australian Greens remain
utterly opposed to the existence of the coercive powers in relation to
investigating breaches of industrial law. We appreciate the safeguards the
Government is seeking to introduce through this Bill, including 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.
We understand the intention
behind the "switching off" mechanism and the role of the Independent
Assessor and we are sympathetic to the union calls for the coercive powers to
be "switched on" rather than apply to all until "switched
off" at a particular project.
All these measures, however,
do not solve our fundamental objection, that is, that these coercive powers
have no place in the regulation of industrial relations matters. As Professor
Williams and Ms McGarrity conclude 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
non-discriminatory manner to all employers and employees across all industries.[5]
We further note that as
confirmed by the Commissioner in evidence to the Committee[6],
the coercive powers are not directed at the wrongdoers but at people who are
not suspected of doing anything unlawful. Furthermore, as Mr Noonan commented
in evidence, these laws are not directed at the types of behaviour that are
used to justify their application:
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..........unknown4unknown1and
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.[7]
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 that:
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.[8]
We believe if these powers
are to remain, the penalty of imprisonment must be removed.
The Australian Greens also do
not accept the argument that the BCII Act is justified on the ground of
perceived economic benefit. We are persuaded by the submission of Professor
Peetz that much of the argument for the ABCC contributing to productivity gains
is unsubstantiated and are concerned by his conclusion that '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.'[9]
In any event, we do not believe that economic gains can justify the assault on
fundamental human rights that the BCII Act perpetrates.
We also do not accept the
Government's continued rhetoric about a tough 'cop on the beat' for the
building industry as justifying the continued singling out of building and
construction workers for special treatment. Universal industrial, civil and
criminal laws should be complied with and enforced on building sites as in any
other workplaces.
The Australian Greens agree
with the conclusion of Professor Williams and Ms McGarrity that:
even with these safeguards the coercive powers provided for
in the primary Act are not justified. The safeguards do not, for example,
overcome the fact that the coercive powers can be used in an overly-broad set
of circumstances, such as regard to non-suspects and children in the
investigation of minor or petty breaches of industrial law and industrial
instruments. The coercive powers are not justified in this industrial setting.
The preferable course would be to remove the powers entirely and to have a
strong and effective enforcement and investigation regime that applies across
all industries.[10]
It was to this end that the
Australia Greens introduced our Private Senators' Bill to repeal the BCII Act
in its entirety. We do not resile from this position.
International Obligations
The BCII Act has been
considered by the ILO on a number of occasions to breach fundamental rights.
The Australian Greens note the evidence given by the ACTU that in their view
the Act as amended by the Bill will continue to be in breach of ILO
conventions, in particular the Labour Inspection and the Freedom of Association
and Right to Organise conventions.[11]
Australia is a signatory to both these conventions which signal that we as a
nation accept the principles found in those documents. ILO conventions are
important as representing the framework for fair and balanced industrial
relations. If we are in breach of the conventions we are falling outside what
is acceptable international practice. The Australian Greens believe the
Government should endeavour to ensure we live up to international standards not
ignore them.
Occupational Health and Safety
The affect of the ABCC and
its operations on occupational health and safety on building sites has been on
ongoing concern of the Australian Greens. We referred to the potential of the
ABCC having a detrimental effect on OHS when opposing the BCII Act back in 2005
and are afraid our concerns have been realised.
We note that under the
amendments building workers can stop work if they have reasonable concern for
their safety pursuant to provisions in the Fair Work Act. However, the prospect
of investigation using the coercive powers and the heavy penalties for a worker
making the wrong judgement places a disincentive on workers to be active in
identifying unsafe work practices. It is unacceptable in an industry as
dangerous as the building and construction industry for legislation to act
counter to achieving the highest standards of health and safety practice.
As Mr Noonan commented in
evidence, the only person facing imprisonment under the BCII Act at present is
a worker who went to a safety meeting.[12]
It is through this type of intimidation that the activities of the ABCC or its
replacement body can have a detrimental impact on OH&S. The building and
construction industry stills has an unacceptable number of fatalities and
serious injuries. We note the comments of Professor Peetz on the number of
fatalities exceeding the growth in employment in construction and that there is
considerable research showing that unions have an important role in ensuring
observance with occupational safety requirements.[13]
The new Inspectorate must ensure its activities do not operate to the detriment
of strong occupational health and safety practices including the legitimate
role of union delegates and workers' representatives.
Conclusion
We reiterate that the BCII
Act is an affront to our democracy and that in our view the amendments do not
ultimately change that position. This Parliament has a duty 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.
Recommendation 1
The Government withdraw the
Bill and reintroduce a Bill to repeal the BCII Act, abolish the ABCC while
maintaining the role of the Federal Safety Commissioner.
Recommendation 2
If Recommendation 1 is not
acted upon, remove the penalty of imprisonment from clause 52 and replace it
with a maximum penalty of 30 penalty units.
Senator Rachel Siewert
Navigation: Previous Page | Contents | Next Page