Senate Education and Employment Legislation Committee, , 3:44:32 to 3:53:38
Debate over whether the Building Cooperative Workplaces Bill creates a preference for union-endorsed enterprise agreements.
Topics: Workplace relations, Law reform
Speakers: Greg Manning, Senator Jane Hume, Sarah Godden, Senator Maria Kovacic, Simon Duggan
Um I just want to follow up. I know some questions have already been asked about the building cooperative workplaces bill. But I am concerned that on the 2nd of June in this committee, Ms. Goddom told the committee that a tender advantage for a union agreements was the quote that I've got here from you, Ms. Godden was really getting ahead of where we are, and when pressed on whether anyone at the desk knew what was on the table, um Mr. Manning, you said not at this stage, but then the next morning, the very next morning, the Minister introduced this building cooperative workplaces bill with part nine in it, which is specifically about those issues. So I suppose my question goes first to whether Mr. Manning or Ms. Goddamn were aware on the 2nd of June that a bill containing those provisions was going to be introduced the next day.
Senator, in relation to uh that evidence, um I think your question was as part of those consultations, will there be discussion as to whether a contractor receives potentially a higher tender score funding preference or pre-qualification advantage if it has a union enterprise agreement? Um I understood that question to be in the the um context of the potential construction standards, um which is where previous questions had gone to, and my answer was was referring to those construction standards.
To the construction standards. So can I just then be clear? Did you know that there was a bill that was being introduced the next day that was going to do that, even if it wasn't in the construction standards or it wasn't specific, my question was about the issue as opposed to the standards. Did you know that there was a bill coming?
Um I was aware of the contents of the bill, Senator, yes.
Well, it wasn't then really ahead of where we are, was it?
Well, Senator I mean we're not. It was right where we were. Today that there's no decisions have been made about the content of the construction standards, and the discussion paper was put out on the basis of no predetermined view about proceeding with it all or the content of it. So it's quite accurate to say in some months ago that there are no decisions. There's separate issues. So I I can't recall and don't have in front of me my my evidence that you're referring to there. Um I as I think the issue of uh officials' knowledge of the legislation was addressed at the last estimates hearing, um, and we confirmed that we knew what the content of that bill was, but that's a separate issue from knowing what the content of the construction standards are, in the sense that we we still don't know what the content of the construction standards, if any, will be because those decisions haven't been made.
So let me ask a question then about when Cabinet approved part nine of that bill,
I'm not sure we ever have visibility of when that final decision is made to introduce as part of the legislation approval process, Senator.
The question I asked you at last estimates was around whether a tender advantage for organizations that had union agreements was going to be part of policy.
And we we gave evidence earlier today that in consulting on the construction standards, uh various statements have been made that there wouldn't be a requirement and there wouldn't be a preference for a union endorsed uh EA and not a requirement for a union EA as well. So I'm not I'm not sure I'm following the question, Senator.
Well, the question was yes, there absolutely was a policy that was going to preference organisations with union agreements, even if it wasn't in the construction standards, it was clearly in a bill that you knew was going to be introduced the next day.
Now, perhaps it was you were but Senator Can I I do need to clarify that the bill has passed does not require a preference of the type you're discussing.
I'm sorry, the minister's second reading speech referred to preferencing agreements negotiated in good faith, but clearly in the bill, the new section 354-2A allows discrimination against an employer whose agreement does not cover an employee organisation. So there's a single law, there's a law that singles out non-union agreements. But that doesn't sound like good faith bargaining to me. So clearly what I was asking about at the last estimates. This pertained to that specifically. And you knew it was there.
Don't accept that to be true, Senator, in the sense that the legislation has passed permits certain outcomes to occur. It doesn't require them. It does certainly doesn't require them in relation to the construction standards, the contents of which haven't been settled and which the government or the ministers made statements about it not requiring an EA and not preferencing union EA.
Well, then why is part nine even necessary?
So Senator, we gave evidence earlier today that it removes a prohibition in that regard, but it doesn't provide a pro. Proactive necessity.
Why is that decision?
Because previously there had been a prohibition, and so in order to progress the work that has been done around the construction code and the work that's being done around the secure jobs framework, a necessary precondition of that work was to remove any prohibition.
Well then that suggests that the changes to the construction code are going to.
No, Senator, again, we provided evidence on this earlier today. The Minister's been very clear that there will be no requirement for the government.
You don't need it, it's just superfluous, it's decorative.
The hypothetical example I gave in the testimony earlier, Senator, was for example, should there be an area of public life the government wished to fund and it wished to have in place arrangements that were above the minimum standards provided for an award, then it could preference uh employees with an enterprise agreement as part of that. So there might be more beneficial terms and conditions. That couldn't have occurred before as a result of that change, that type of hypothetical could occur. So I think I'm speaking, I've I'm speaking fairly generally, but that's the type of example that's separate from saying it will definitely happen in relation to construction. So the construction standards can just repeat my evidence before my earlier evidence of today, but the government said that it won't be the case.
But it can happen. It can occur. You're saying they have the mechanism to allow it to happen. So it doesn't have to happen, but it can happen.
It's a facilitative provision, Senator.
Yes, so correct. So it can happen, but it doesn't necessarily happen. But if the minister is preference and enterprise agreement, that's right. So if the government chooses to um deploy that mechanism, then it will happen.
But it's not the government's policy to do that.
No, but I'm just saying it's not their current policy to do it, but if um circumstances change or they change their position tomorrow, then they can do it.
Forex.
Is that correct? Just so I understand. Is that correct?
Well, as we said earlier, the government hasn't decided uh if it proceeds with the construction code, how it will implement it. And so you're again you're asking us for a hyper.
It's not a hypothetical. If it chooses to utilise it, it currently you're telling me that currently it's not choosing to do so, but if they choose to do so, they can. Is that correct?
But though, with respect, it is a hypothetical to ask me to say what can happen in relation to a code that is not yet in place. So when the code is in place, a decision will be made about how to implement the code, should it proceed with it, and there are a range of mechanisms. So whether or not it could then the next day turn around and implement it differently will depend upon the mechanism by which it is implemented, and that and as we said numerous times now, decisions haven't been made on that. We on that. So I can't actually agree with the hypothetical because it will depend upon how the code is implemented.
Except that the government has been very clear on its policy, which is that it what it will not, as part of the code require a union agreed enterprise agreement.
But that is just a policy that's not legislative.
It's not even a policy system.
So it's not going to be any changes to CGT before the last election either. That was government policy too, and here we are.
But I keep coming back to the fact that decisions haven't been made on how to implement the code. So the hypothetical you're asking is to agree with will depend upon those decisions.
If this is so above board and nothing that you know, nothing to see here, why didn't you mention it at the last estimates? Why didn't you mention it that this part nine was going to be attached to a bill about something entirely different about helping the Fair Work Commission deal with its backlog? Why wasn't it mentioned if it doesn't mean anything?