Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2], Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [No. 2]
3 February 2016
There is a central tenet here in this debate, and that is that workers in the building and construction industry should be subject to the same laws that apply to other workers. That is consistent with the principle of equality before the law—a principle with which the now Prime Minister would have strongly espoused during his time as a lawyer and possibly even as recently as last year. The principles underpinning the Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2] potentially jeopardise those goals of equality and the principles of natural justice.
It is important that we get out of the way one of the canards in this debate. The government continually suggests that this bill will in some way deal with alleged criminal conduct, but the Australian Building and Construction Commission as proposed would govern civil behaviour, not criminal behaviour. As shadow minister O'Connor said on Lateline last night: if you are going to fight crime, empower crime-fighting agencies. We have the Australian Crime Commission, flowing out of a recommendation of the Costigan royal commission, which is targeted at dealing with criminal behaviour. It does not matter how often the government refers to criminal behaviour in the same sentence as it talks about its attempts to revive the construction watchdog; that does not change the fact that this is a civil regulator.
The creation of the ABCC in 2005 was the first time in Australian history that an industry-specific inspectorate had been legislated. It did not pursue or investigate breaches such as the underpayment of wages; instead, it operated in an aggressive, biased and coercive manner. It flowed out of the Cole royal commission. How history has a habit of repeating itself. The Cole royal commission—the royal commission in 2003—reported 392 supposed findings of unlawful conduct against employee organisations and individuals; not one led to a criminal conviction. The alleged breaches were technical breaches that had occurred up to seven years beforehand, yet that was used by the former Howard government, once they won control of the Senate, to justify their extreme industrial relations agenda.
Professor George Williams has been one of the most outspoken critics of the coercive powers that are proposed to be given to the ABC Commissioner, in particular section 62, which reads:
A person commits an offence if:
(a) the person has been given an examination notice; and
(b) the person fails:
(i) to give information or produce a document in accordance with the notice; or
(ii) to attend to answer questions in accordance with the notice; or
(iii) to take an oath or make an affirmation, when required to do so under subsection 61(5); or
(iv) to answer questions relevant to the investigation while attending as required by the examination notice.
That power, Professor Williams points out, could be used to require a person, for example, to reveal: all their phone and email records whether of a business or personal nature; report not only on their own activities but those of fellow workers; reveal their membership of an organisation, such as a union; report on discussions in private union meetings or other meetings or workers. It could be applied not only to a person suspected of breaching the law but also to innocent bystanders—families, children of any age, other workers in the industry, journalists, academics. Indeed, a priest could be required to reveal what had been said to them in the confessional. A breach of section 62 is subject to a penalty—imprisonment for six months. As I said earlier, this bill does not tackle criminal misconduct; indeed, the only criminal misconduct dealt with in this bill is the failure to give evidence and somebody remaining silent, as would be allowed in so many other parts of the law.
The protection against self-incrimination is absolutely vital. It has been described as a 'cardinal principle of our system of justice' and a 'bulwark of liberty'. As noted in the Australian Journal of Labour Law in 2008, in Environment Protection Authority v Caltex Refining Co Pty Ltd, Justice McHugh noted:
… that the privilege is important in preventing abuses of power by the executive in the exercise of its coercive powers. The privilege also assists by protecting the quality of evidence and by maintaining an accusatorial system of justice in which the burden of proof rests on the prosecution.
As Justice Murphy said in Pyneboard Pty Ltd v Trade Practices Commission, quoted in the same journal:
… the privilege 'protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality'.
Professor Williams points out that safeguards are absent. There is no requirement for warrants, not even from a judicial officer as is common in other areas such as phone tapping or from the Attorney-General, as per ASIO powers. There is no review under the Administrative Decision (Judicial Review) Act despite this even applying to decisions to ban terrorist organisations under the federal Criminal Code. The grounds of review excluded for ABCC decisions include: a breach of the rules of natural justice; procedures required by law not observed; making the decision an improper exercise of power; fraud has taken place; and power exercised in bad faith or an abuse of powers.
The ABCC powers lack the backstop of a bill or a charter of rights because Australia lacks precisely those protections, so removing such natural justice in this context is particularly concerning. It has been said that the ABCC bill copies powers found elsewhere, and there are indeed similarities given to bodies such as the Australian Competition and Consumer Commission and the Australian Securities and Investments Commission. But the context is important. It might be inappropriate to give to a body dealing with industrial disputes a power appropriately given to ASIC to catch corporate criminals. Indeed, as Professor Williams has pointed out, other regimes do not apply in a discriminatory manner. We do not give ASIC special powers to investigate the automotive industry. Other regimes do not suffer from the same problem of overly wide definitions and a low threshold for the use of power. The ABCC law applies a criminal investigatory model to a non-criminal industrial context. Indeed, while evidence garnered in an ASIC civil prosecution cannot be used in a criminal prosecution, that is not the case for evidence which is gathered by the ABCC. So evidence could be gathered through the ABCC and somebody could be required to self-incriminate and then could be charged with a criminal offence. This is entirely at odds with what occurs in other parts of the law.
The government has suggested that it is merely reinstating the former ABCC. But that is not right either. This legislation extends the reach of the ABCC into picketing, offshore construction and the transport and supply of goods to building sites. Indeed, the minister has acknowledged as much, saying the definition of 'building work' also includes transporting or supplying goods to be used in building work. That means that the proposed ABCC would be an even greater encroachment upon the freedoms of Australians than was originally the case, applying not only to building workers but to drivers and anyone else involved in the transport sector.
By contrast, Labor is serious about cracking down on instances of worker exploitation. Last week the Leader of the Opposition, the shadow minister for employment and workplace relations and Lisa Chesters, the member for Bendigo and chair of Labor's Fair Work Taskforce, released Labor's plan to tackle serious cases of worker exploitation. These include Myer subcontractors employing cleaners on sham contracts, systematic exploitation in 7-Eleven stores, Pizza Hut delivery drivers being paid as little as $6 an hour and the widespread exploitation of workers by Baiada Group food processing factories, including workers being required to work dangerously long hours.
We have said that a Shorten government would crack down on the underpayment of workers, with significantly increased penalties for employers who deliberately and systematically avoid paying their employees properly. This would be done by ramping up protections for workers from sham contracting, strengthening legal protections for a worker's entitlements and increasing penalties. We would give the Fair Work Ombudsman more powers to pursue employers who liquidate their companies in order to avoid paying the money they owe their workers. And we would introduce reforms to ensure temporary overseas workers are not being exploited and underpaid and that there is a level playing field for all workers in Australia.
Our package of reforms builds on Labor's strong record of protecting wages and conditions and cracking down on worker exploitation, and that contrasts with the government's constant attack on the conditions of workers. At a time when the growth of wages is at an all-time low, we see the government trying to take away penalty rates for some of Australia's lowest-paid workers and failing to recognise that penalty rates protect the weekend. Penalty rates protect the civic fabric of Australia by recognising that those who are required to work on the weekend should be appropriately compensated.
Let us recognise this bill for what it is—an attack on unions. At a time when unions are under fire, it is vital to recognise the role trade union plays in dealing with inequality in Australia. Inequality in Australia is now at a 75-year high, and over the last generation the wages of the top tenth of workers have grown three times as fast as those of the bottom tenth. We have seen the top one per cent of earners' share of total wealth double and the top 0.1 per cent of earners' of total wealth share triple. And the richest three Australians now have more wealth than the poorest one million Australians.
In the face of this extraordinary rise in inequality, unions are the strongest social institution to fight against inequality. Work by Roger Wilkins and Jeff Borland has estimated that about a third of the rise in inequality in Australia is due to the decrease in the trade union membership rate. Unions mostly campaign for low-wage workers by arguing for dollar pay increases rather than percentage pay increases. Dollar pay increases benefits those at the bottom more than those at the top. Unions focus on instances of pay inequity across workplaces and across industries. Unions brought a critical case, a landmark case, for social and community sector workers who had been underpaid because their work was being done in female-dominated industries. That will see greater equality in the Australian workplace. The equal-pay cases of 1969 and 1972 were spearheaded by workers. Pay equality for Indigenous Australians was spearheaded by the union movement. The union movement worked hard to ensure a more equal Australia.
We know that a more equal Australia brings a range of benefits. Equality is good for mobility. Countries which have a smaller gap between the top and the bottom are countries where it is more likely that a kid born into poverty can make it to the middle class. One of the reasons why America is becoming an increasingly static society is that inequality has risen so markedly over recent years. By contrast, the more egalitarian Scandinavia is a more mobile part of the world. It is true, too, even if you look within the United States. Recent work by Raj Chetty and co-authors has shown that cities in the United States that are more unequal tend to be more immobile. So, even if you do not care about inequality, you should care about mobility, about the notion that the circumstances of a child's birth do not determine their life chances.
Inequality can corrode our policy. It can lead to excessive campaign contributions, skewing policy outcomes away from what the majority of Australians want. Inequality is fundamentally out of touch with the Australian fair go, which says that every Australian ought to have the same life chances and says that we are a country that does not much like tipping, does not have private areas on beaches and prefers calling each other 'mate' to calling each other 'sir'. Australians who believe in this egalitarian ideal should support the work of trade unions—organisations that have systematically fought for a more egalitarian Australia.