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ABCC..if only it were as easy as 1, 2, 3

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4 May 2016

Sharni Cutajar, 4/5/2016

In the lead up to an election, most people will agree politics is an unpredictable job to be in. However, I think it’s safe to say it was Malcolm Turnbull who caught us all by surprise in March by recalling Parliament to debate the reintroduction of the ABCC and has left a lot of West Perth inner circles feeling a little nervous. So what’s with all the acronyms and why does Malcolm Turnbull want us to return to the polling booths on July 2?

The Office of the Australian Building Construction Commissioner (ABCC) was a construction industry watchdog established in 2005 to “monitor and promote appropriate standards of conduct throughout the building and construction industry” (ABC) and to quash union corruption and boost production in the construction industry. In 2004, the number of days lost to industrial disputes per 1000 workers annually was 224 and after the introduction of the ABCC this number dropped to 24 in 2006. In 2012, the Gillard government replaced the ABCC with the Fair Work Building and Construction (FWBC ) agency and since then the number of working days lost has again risen and consequently production has been affected. It is the bureaucracy and union system that strip away the right to work and costs the construction industry productivity.  At the time, John Lloyd, Director of the Institute of Public Affairs’ Work Reform and Productivity Unit said “this move will prove harmful for the building and construction industry, and the Australian economy” (IPA).

In 2013, the Abbott Government sought to re-introduce the ABCC through the Building and Construction Industry (Improving Productivity) Bill 2013, however the bill was struck down by the Senate on August 17th 2015. In the second reading speech given by Christpher Pyne of the Building and Construction Industry (Improving Productivity) Bill 2013 [No.2], the bill sought to:

“re-establish the Australian Building and Construction Commission to ensure the rule of law is enforced in the building and construction industry. The Australian Building and Construction Commission will be led by its commissioner, who will have the critical task of monitoring, promoting and enforcing appropriate standards of conduct by building industry participants and referring matters to other relevant agencies and bodies as required.”

For a bill that seeks to end the lawlessness and corruption that costs the Australian economy billions and ensure greater productivity and competition, the ABCC Bill has been met with great hostility within the Labor camp and the Construction, Forestry, Mining and Energy Union (CFMEU) at a number of turns.  So why the controversy?

Recently, Shadow Minister for Employment and Workplace Relations, Brendan O’Connor, made a bold statement that workers in the construction industry will have fewer rights than a criminal suspect of dealing the drug,‘ice’ under the proposed ABCC. Quite a bold statement indeed, although completely misconceived. Any person examined by the ABCC will be providing information as a witness in a civil investigation, and under the proposed ABCC legislation is refused their “right to silence” according to Labor and the unions. The ABCC examines individuals to “gather information from witnesses in relation to construction workplace activities” (ABC) relating to a civil investigation, whereas an interview with a criminal suspect is concerned with collecting evidence when interviewed by police.  If a drug dealer were examined by the Australian Crime Commission and refused to give information, they too would commit an offence. Likewise, if a building worker were suspected of committing a criminal offence, they would be entitled to their “right to silence” just as an ice dealer would. As part of the ABC’s Fact Check segment, Professor Andrew Goldsmith of Flinders University Law School calls O’Connor’s remarks a flawed comparison and states civil and criminal law are “two different processes with distinct purposes.” The unions are caught up in arguing a false point of law out of fear that the ABCC, with the power to enforce appropriate standards of conduct within the construction industry, will control the power of unions.

As a policy of the Australian Construction Industry Forum (ACIF), the ABCC seeks to investigate and prosecute breaches in workplace laws including unlawful industrial action. The Heydon Royal Commission found instances of unlawful behaviour in the construction industry and now more than 100 officials face 1000 charges for breaking industrial law. Under section 60 of the ABCC notes a person may be required “to give information, produce documents or answer questions in relation to an investigation or a suspected contravention or (building laws) by a building industry part.” Workers called to give information will be given 14 days examination notice, can be represented by a lawyer of their choice and will have all relevant expenses paid for. The purpose of the ABCC is to investigate unlawful industrial action and workers are still protected under the Act. Under section 102 of the Act, any information provided by the witness cannot be used against them in subsequent hearings, nor under section 103 will they face civil or criminal liability, as a result of giving information.

Whether or not you think Malcolm Turnbull wanted the ABCC Bill to be shut down by the Senate from the very start and only needed an excuse to call the double dissolution election under the new Senate voting system, one cannot deny it wasn’t a skilful lesson in constitutional law that has certainly put the spotlight on the corruption in the construction industry and on the Senate crossbenchers, with their vote needed to pass the Bill. Not surprising the ABCC Bill was struck down on April 18, 2016 with the Senate voting against – 36 votes to 34, with Senators Lambie, Lazarus, Muir and Madigan voting against. This now allows Malcolm Turnbull to call on the Governor-General to dissolve both houses of Parliament by? July 2. It is hoped with a double dissolution election, the ABCC Bill will be passed.

One Response to “ABCC..if only it were as easy as 1, 2, 3”

  1. Ryan Scarth says:

    Great article Sharni; interesting, informative and a great summary of the issue.