Division Description Changes — Private Members' Business — Motion for Disallowance — 29th Mar 2017

Change	Division
representatives vote 2017-03-29#1 Edited by mackay staff on 2017-04-14 19:24:04	Title ~~Private Members' Business — Motion for Disallowance~~ Private Members' Business - Motion for Disallowance - Code for the Tendering and Performance of Building Work 2016 Description ~~<p class="speaker">Brendan O'Connor</p>~~ ~~<p>I move:</p>~~ <p class="italic">That sections 11(3)(a) and (c) of the Code for the Tendering and Performance of Building Work 2016, made under section 34 of the <i>Building and Construction Industry (Improving Productivity) Act 2016</i> on 2 December 2016 and presented to the House on 7 February 2017, be disallowed.</p> The majority voted against a [motion](http://www.openaustralia.org.au/debates/?id=2017-03-29.8.2) to disallow [sections 11(3)(a) and (c)](https://www.legislation.gov.au/Details/F2016L01859/Html/Text#_Toc468364781) of the Code for the Tendering and Performance of Building Work 2016. In other words, the majority of MPs supported those sections and wanted them to remain unchanged. The motion was introduced by Labor Party MP [Brendan O'Connor](https://theyvoteforyou.org.au/people/representatives/gorton/brendan_o'connor). ### What are the sections? [Mr O'Connor MP explained](http://www.openaustralia.org.au/debates/?id=2017-03-29.8.2) that he introduced this motion because sections 11(3)(a) and (c) of the Code for the Tendering and Performance of Building Work 2016: > den[y] the right to limit or constrain in any way temporary work visas for work in workplaces in the building industry. It is the only industry that is not in a position to negotiate enterprise agreements with provisions that regulate the workplace in such a way as to, for example, limit the use of [457 visas](https://en.wikipedia.org/wiki/457_visa) or limit the use of holiday-maker visas and student visas—which are becoming increasingly prevalent in the building industry at the expense of unemployed tradespeople and labourers who live in this country and need work. ### Section text > 11 Content of agreements and prohibited conduct, arrangements and practices > (3) Without limiting the generality of subsection (1), clauses are not permitted to be included in enterprise agreements that: *>> (a) prescribe the nu*mber of employees or subcontractors that may be employed or engaged on a particular site, in a particular work area, or at a particular time; >>> Note: this does not prevent the inclusion of clauses in an enterprise agreement that encourage the employment of apprentices. *>> (c) require, or result in,** discrimination between classes of employees because of the basis on which they are lawfully entitled to work in Australia;* <p>After 20 minutes of us furiously agreeing to bring this matter on, the reason I tabled this motion in this place was to ensure that we can constrain some of the worst aspects of the building code that was supported by the government. It is clear that Labor did not support the bill that was enacted by the parliament and we did not support it for good reason. We had concerns about civil rights; we had concerns about safety issues; we did not agree with the proposition that productivity would improve—in fact, we think it will decline as a result of the reinstitution of the ABCC; and we had problems with the bill.</p> <p>But this is not about the bill. Whether I like it or not, the fact is that the parliament enacted that bill and, whilst we stand by our position, this motion is about dealing with the code. The secondary arguments we made were just as important insofar as the effects of this code. The problem with this code is that it sets up a set of laws for employers and workers in the building industry that does not exist in any other industry. In fact, it goes broader than the building industry because the reach of the code and the reach of the bill have gone beyond the building industry itself. What that really means is that the code, as it stands, denies employers to put in agreements ratios of apprentices to workers. This is the only industry in which that is denied.</p> <p>This code denies the right to limit or constrain in any way temporary work visas for work in workplaces in the building industry. It is the only industry that is not in a position to negotiate enterprise agreements with provisions that regulate the workplace in such a way as to, for example, limit the use of 457 visas or limit the use of holiday-maker visas and student visas—which are becoming increasingly prevalent in the building industry at the expense of unemployed tradespeople and labourers who live in this country and need work.</p> <p>There are other concerns we have with the code, but we have chosen to focus on these two matters. We believe that two sections of the code which are particularly egregious because they undermine Australian apprenticeships and Australian jobs. They are sections 11(3)(a) and 11(3) (c), as I indicated. Section 11(3)(a) prohibits enterprise agreements from having clauses to prescribe the number of employees or subcontractors that may be employed or engaged on a particular site, in a particular work area or at a particular time. Section11(3)(c) precisely prohibits enterprise agreements from having clauses that require or result in discrimination between classes of employees because of the basis on which they are lawfully entitled to work in Australia.</p> <p>Labor warned that passing the ABCC legislation and the code would prevent enterprise agreements from containing clauses which mandate a ratio of apprentices to tradespeople and which require consultation on the use of temporary overseas workers. If only members of parliament who like to talk big about protecting Australian jobs in their electorates voted to protect Australian jobs in the parliament. I call upon government members to consider this: the bill will not be changed, and that is a shame, but that is not what is before us. The code itself can be limited to ensure that employers, unions and workers are able to have provisions in place so that we put workers in this country first—we put Australian workers first. We have very high numbers of unemployed Australians in the building industry who cannot find consistent work or enough work and in some cases they cannot find any work.</p> <p>Government members have an opportunity in supporting this motion for disallowance to limit the effects of the code so that, if an employer chooses to say that he wants to limit the use of 457 visas, he can do so by having an enterprise agreement approved by the Fair Work Commission. If unions on behalf of workers want to negotiate with employers to do just that, they can do so. It is quite extraordinary that the government has set up a code that does not allow for the ratio of apprentices to be set inside an enterprise agreement and yet in every other industry it can happen.</p> <p>Labor's warnings have proven to be well founded. The ABCC has issued a list of clauses from enterprise agreements that have been submitted for assessment to the ABCC. An advice about whether the clauses meet the requirements of section 11 of the building code 2016 or whether they are non-compliant. The following clause in the existing agreement has been deemed by the ABCC to be non-compliant with section 11(3)(a). This is a provision that, up until the code took effect, was allowable at workplaces in the building industry across Australia, and it says:</p> <p class="italic">Apprentices are the future of our industry, and the parties reaffirm our commitment to the training of apprentices. Further, they shall make every endeavour to make full-time apprenticeships available with the company. The employer will employ at least one apprentice for every eight tradespeople employed.</p> <p>This was a provision of an existing agreement that was entered into in good faith between employers, their workers and the unions, and that will no longer be allowed as a result of this code. In fact, that is no longer allowed as a result of this code. But, if we support the motion before us, we can ensure that that type of revision, either in the existing or a future agreement, can be enforceable and can be agreed to by employers, workers and unions.</p> ~~<p>The following clause in an existing agreement has been deemed by the ABCC to be non-compliant with section 11(3)(c):</p>~~ ~~<p class="italic">2.1 The Employer endorses the following principles:</p>~~ <p class="italic">2.2 Temporary foreign workers are intended to supplement the Australian workforce, and will only be recruited and employed where there are insufficient Australian workers available to do the work, including through training.</p> ~~<p class="italic">2.3 Workers who are Australian residents will have preference in … training opportunities relative to temporary foreign workers, to the maximum extent permitted by law.</p>~~ ~~<p class="italic">2.4 While it may be agreed that recruitment of temporary foreign labour is necessary—</p>~~ ~~<p>from time to time—</p>~~ ~~<p class="italic">the intention is that reliance on temporary foreign labour will be reduced over time during the life of the Agreement.</p>~~ <p>That clause was allowable until this code took effect. The clause was regulating the workplace and really allowing the employer to say, 'We want to put Australian workers first in order to ensure that the growing number of unemployed building workers in this country get the first opportunity; we do not want a situation where the first port of call for an employer is to employ people on temporary work visas'—not only those on 457s where there is at least some limitation because of labour market testing, and I might add that that is a test that the now government and then opposition totally opposed, but also regulating what are at least 500,000 temporary work visas that are covered under two visa categories: the holiday-maker visa and the student visa. The 500,000 workers in this country on temporary work visas are here for legitimate purposes in many respects, but the idea that those visa holders will get opportunities before unemployed Australian workers is unfair. That is why the employers in this industry, as in other industries, have reached agreement with their workforce to say, 'We value your work, we are concerned about unemployed residents in this country and we're going to give you preference.' As a result of the code the preference is no longer happening, but if you support this motion that will allow employers to negotiate ratios of apprentices, like they do in every other industry, you will enable the regulation of the use of temporary workers to ensure that workplaces can look to local employment—look local first—before having to look overseas.</p> <p>It is important to remember that all of those companies who negotiated with unions and their workforce in good faith and entered into legal enterprise agreements over the last three years acted prudently and reasonably. It would be wrong if companies who have enterprise agreements with clauses like the two the ABCC have ruled to be non-compliant—clauses which are about supporting Australian jobs—are banned from undertaking Commonwealth construction work.</p> <p>The government has sought to say they have concerns about the use of temporary work visas in this country. In fact, during question time and on other occasions the minister now at the table, the Minister for Immigration and Border Protection, has said he has concerns. He can reflect the sincerity of those concerns by voting on this matter and supporting Labor. If he genuinely has concerns—indeed, if the government has genuine concerns—about the way in which we give preference to local workers before having to use overseas workers then he would support this proposition. In fact, to vote down this amendment to the code will mean that you do not support the right of not only unions and workers but also employers wanting to regulate their workplace to give preference to Australian workers. If you vote down this restriction on the code, it is signalling to not only the 750,000 unemployed Australians across all industries but also the 1.1 million underemployed Australians is that you are not concerned for them and you do not want employers in industries to be able to sit down with their workforce and restrict the use of temporary workers in this country by negotiation.</p> <p>This is an untenable position. You cannot on one hand say that you have concern about the use of temporary workers in this country and yet vote against Labor's proposition today. You cannot argue you have concern for the lack of apprentices and the lack of opportunity for young people to get a trade in this country when we have seen a cut of 133,000 apprentices since this government was elected. You cannot say that you are concerned about the difficulties young people are having in acquiring the skills that they need in the fastest changing labour market in human history if you are not going to support the right of employers in this industry, or for that matter any industry, to sit down with their workforce and say: 'We're happy to give a ratio of apprentices to trades people. We want to do that.' It is not outlawing the ability just for unions to negotiate this—it is not even allowing employers to do it.</p> <p>Say, for example, an employer chose to have an agreement without unions. That is not my preferred option, but an employer is not even allowed to enshrine their position in a registered instrument to say they want the number of apprentices to be set as a ratio to tradespeople. Clearly that is not acceptable—the government's absolute enmity towards unions has blinded their commonsense. In their attempt to destroy the capacity of unions to bargain they have thrown under the bus apprentices and permanent workers who deserve to get opportunities before temporary workers in this country. That is what has happened.</p> <p>We are not trying to have a further debate or go back to a debate on the issues that go to the bill. Even though we have strong reservations about the bill, we have lost that battle, at least at this point, but we still hold the same position. What we have instead chosen to do today is, rather than have the whole debate about that matter, confine this debate to two issues: the opportunity for young people to get apprenticeships in the building industry and the need for there to be an opportunity for all workers in this country before temporary work visas are used and for employers in this industry to be allowed to regulate that.</p> <p>I think that is reasonable. I find it very difficult to understand, given the rhetoric of the government—in particular, the Minister for Immigration and Border Protection—why the government cannot support this proposition. They like to talk about conspiracy theories to do with unions and the like—but, in the end, this comes down to whether you support apprentices and whether you support permanent workers in this country.</p> ~~<p class="speaker">Rob Mitchell</p>~~ ~~<p>Is the motion for disallowance seconded?</p>~~ ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Brendan O'Connor~~
~~I move:~~
That sections 11(3)(a) and (c) of the Code for the Tendering and Performance of Building Work 2016, made under section 34 of the Building and Construction Industry (Improving Productivity) Act 2016 on 2 December 2016 and presented to the House on 7 February 2017, be disallowed.
The majority voted against a [motion](http://www.openaustralia.org.au/debates/?id=2017-03-29.8.2) to disallow [sections 11(3)(a) and (c)](https://www.legislation.gov.au/Details/F2016L01859/Html/Text#_Toc468364781) of the Code for the Tendering and Performance of Building Work 2016. In other words, the majority of MPs supported those sections and wanted them to remain unchanged.
The motion was introduced by Labor Party MP [Brendan O'Connor](https://theyvoteforyou.org.au/people/representatives/gorton/brendan_o'connor).
### What are the sections?
[Mr O'Connor MP explained](http://www.openaustralia.org.au/debates/?id=2017-03-29.8.2) that he introduced this motion because sections 11(3)(a) and (c) of the Code for the Tendering and Performance of Building Work 2016:
> *den[y] the right to limit or constrain in any way temporary work visas for work in workplaces in the building industry. It is the only industry that is not in a position to negotiate enterprise agreements with provisions that regulate the workplace in such a way as to, for example, limit the use of [457 visas](https://en.wikipedia.org/wiki/457_visa) or limit the use of holiday-maker visas and student visas—which are becoming increasingly prevalent in the building industry at the expense of unemployed tradespeople and labourers who live in this country and need work.*
### Section text
> **11 Content of agreements and prohibited conduct, arrangements and practices**
> *(3) Without limiting the generality of subsection (1), clauses are not permitted to be included in enterprise agreements that:*
>> *(a) prescribe the number of employees or subcontractors that may be employed or engaged on a particular site, in a particular work area, or at a particular time;*
>>> *Note: this does not prevent the inclusion of clauses in an enterprise agreement that encourage the employment of apprentices.*
>> *(c) require, or result in, discrimination between classes of employees because of the basis on which they are lawfully entitled to work in Australia;*
After 20 minutes of us furiously agreeing to bring this matter on, the reason I tabled this motion in this place was to ensure that we can constrain some of the worst aspects of the building code that was supported by the government. It is clear that Labor did not support the bill that was enacted by the parliament and we did not support it for good reason. We had concerns about civil rights; we had concerns about safety issues; we did not agree with the proposition that productivity would improve—in fact, we think it will decline as a result of the reinstitution of the ABCC; and we had problems with the bill.
But this is not about the bill. Whether I like it or not, the fact is that the parliament enacted that bill and, whilst we stand by our position, this motion is about dealing with the code. The secondary arguments we made were just as important insofar as the effects of this code. The problem with this code is that it sets up a set of laws for employers and workers in the building industry that does not exist in any other industry. In fact, it goes broader than the building industry because the reach of the code and the reach of the bill have gone beyond the building industry itself. What that really means is that the code, as it stands, denies employers to put in agreements ratios of apprentices to workers. This is the only industry in which that is denied.
This code denies the right to limit or constrain in any way temporary work visas for work in workplaces in the building industry. It is the only industry that is not in a position to negotiate enterprise agreements with provisions that regulate the workplace in such a way as to, for example, limit the use of 457 visas or limit the use of holiday-maker visas and student visas—which are becoming increasingly prevalent in the building industry at the expense of unemployed tradespeople and labourers who live in this country and need work.
There are other concerns we have with the code, but we have chosen to focus on these two matters. We believe that two sections of the code which are particularly egregious because they undermine Australian apprenticeships and Australian jobs. They are sections 11(3)(a) and 11(3) (c), as I indicated. Section 11(3)(a) prohibits enterprise agreements from having clauses to prescribe the number of employees or subcontractors that may be employed or engaged on a particular site, in a particular work area or at a particular time. Section11(3)(c) precisely prohibits enterprise agreements from having clauses that require or result in discrimination between classes of employees because of the basis on which they are lawfully entitled to work in Australia.
Labor warned that passing the ABCC legislation and the code would prevent enterprise agreements from containing clauses which mandate a ratio of apprentices to tradespeople and which require consultation on the use of temporary overseas workers. If only members of parliament who like to talk big about protecting Australian jobs in their electorates voted to protect Australian jobs in the parliament. I call upon government members to consider this: the bill will not be changed, and that is a shame, but that is not what is before us. The code itself can be limited to ensure that employers, unions and workers are able to have provisions in place so that we put workers in this country first—we put Australian workers first. We have very high numbers of unemployed Australians in the building industry who cannot find consistent work or enough work and in some cases they cannot find any work.
Government members have an opportunity in supporting this motion for disallowance to limit the effects of the code so that, if an employer chooses to say that he wants to limit the use of 457 visas, he can do so by having an enterprise agreement approved by the Fair Work Commission. If unions on behalf of workers want to negotiate with employers to do just that, they can do so. It is quite extraordinary that the government has set up a code that does not allow for the ratio of apprentices to be set inside an enterprise agreement and yet in every other industry it can happen.
Labor's warnings have proven to be well founded. The ABCC has issued a list of clauses from enterprise agreements that have been submitted for assessment to the ABCC. An advice about whether the clauses meet the requirements of section 11 of the building code 2016 or whether they are non-compliant. The following clause in the existing agreement has been deemed by the ABCC to be non-compliant with section 11(3)(a). This is a provision that, up until the code took effect, was allowable at workplaces in the building industry across Australia, and it says:
Apprentices are the future of our industry, and the parties reaffirm our commitment to the training of apprentices. Further, they shall make every endeavour to make full-time apprenticeships available with the company. The employer will employ at least one apprentice for every eight tradespeople employed.
This was a provision of an existing agreement that was entered into in good faith between employers, their workers and the unions, and that will no longer be allowed as a result of this code. In fact, that is no longer allowed as a result of this code. But, if we support the motion before us, we can ensure that that type of revision, either in the existing or a future agreement, can be enforceable and can be agreed to by employers, workers and unions.
~~The following clause in an existing agreement has been deemed by the ABCC to be non-compliant with section 11(3)(c):~~
~~2.1 The Employer endorses the following principles:~~
2.2 Temporary foreign workers are intended to supplement the Australian workforce, and will only be recruited and employed where there are insufficient Australian workers available to do the work, including through training.
~~2.3 Workers who are Australian residents will have preference in … training opportunities relative to temporary foreign workers, to the maximum extent permitted by law.~~
~~2.4 While it may be agreed that recruitment of temporary foreign labour is necessary—~~
~~from time to time—~~
~~the intention is that reliance on temporary foreign labour will be reduced over time during the life of the Agreement.~~
That clause was allowable until this code took effect. The clause was regulating the workplace and really allowing the employer to say, 'We want to put Australian workers first in order to ensure that the growing number of unemployed building workers in this country get the first opportunity; we do not want a situation where the first port of call for an employer is to employ people on temporary work visas'—not only those on 457s where there is at least some limitation because of labour market testing, and I might add that that is a test that the now government and then opposition totally opposed, but also regulating what are at least 500,000 temporary work visas that are covered under two visa categories: the holiday-maker visa and the student visa. The 500,000 workers in this country on temporary work visas are here for legitimate purposes in many respects, but the idea that those visa holders will get opportunities before unemployed Australian workers is unfair. That is why the employers in this industry, as in other industries, have reached agreement with their workforce to say, 'We value your work, we are concerned about unemployed residents in this country and we're going to give you preference.' As a result of the code the preference is no longer happening, but if you support this motion that will allow employers to negotiate ratios of apprentices, like they do in every other industry, you will enable the regulation of the use of temporary workers to ensure that workplaces can look to local employment—look local first—before having to look overseas.
It is important to remember that all of those companies who negotiated with unions and their workforce in good faith and entered into legal enterprise agreements over the last three years acted prudently and reasonably. It would be wrong if companies who have enterprise agreements with clauses like the two the ABCC have ruled to be non-compliant—clauses which are about supporting Australian jobs—are banned from undertaking Commonwealth construction work.
The government has sought to say they have concerns about the use of temporary work visas in this country. In fact, during question time and on other occasions the minister now at the table, the Minister for Immigration and Border Protection, has said he has concerns. He can reflect the sincerity of those concerns by voting on this matter and supporting Labor. If he genuinely has concerns—indeed, if the government has genuine concerns—about the way in which we give preference to local workers before having to use overseas workers then he would support this proposition. In fact, to vote down this amendment to the code will mean that you do not support the right of not only unions and workers but also employers wanting to regulate their workplace to give preference to Australian workers. If you vote down this restriction on the code, it is signalling to not only the 750,000 unemployed Australians across all industries but also the 1.1 million underemployed Australians is that you are not concerned for them and you do not want employers in industries to be able to sit down with their workforce and restrict the use of temporary workers in this country by negotiation.
This is an untenable position. You cannot on one hand say that you have concern about the use of temporary workers in this country and yet vote against Labor's proposition today. You cannot argue you have concern for the lack of apprentices and the lack of opportunity for young people to get a trade in this country when we have seen a cut of 133,000 apprentices since this government was elected. You cannot say that you are concerned about the difficulties young people are having in acquiring the skills that they need in the fastest changing labour market in human history if you are not going to support the right of employers in this industry, or for that matter any industry, to sit down with their workforce and say: 'We're happy to give a ratio of apprentices to trades people. We want to do that.' It is not outlawing the ability just for unions to negotiate this—it is not even allowing employers to do it.
Say, for example, an employer chose to have an agreement without unions. That is not my preferred option, but an employer is not even allowed to enshrine their position in a registered instrument to say they want the number of apprentices to be set as a ratio to tradespeople. Clearly that is not acceptable—the government's absolute enmity towards unions has blinded their commonsense. In their attempt to destroy the capacity of unions to bargain they have thrown under the bus apprentices and permanent workers who deserve to get opportunities before temporary workers in this country. That is what has happened.
We are not trying to have a further debate or go back to a debate on the issues that go to the bill. Even though we have strong reservations about the bill, we have lost that battle, at least at this point, but we still hold the same position. What we have instead chosen to do today is, rather than have the whole debate about that matter, confine this debate to two issues: the opportunity for young people to get apprenticeships in the building industry and the need for there to be an opportunity for all workers in this country before temporary work visas are used and for employers in this industry to be allowed to regulate that.
I think that is reasonable. I find it very difficult to understand, given the rhetoric of the government—in particular, the Minister for Immigration and Border Protection—why the government cannot support this proposition. They like to talk about conspiracy theories to do with unions and the like—but, in the end, this comes down to whether you support apprentices and whether you support permanent workers in this country.
~~Rob Mitchell~~
~~Is the motion for disallowance seconded?~~
~~Long debate text truncated.~~