Malcolm Turnbull

The Prime Minister’s attempt to dismiss the impact of a key compromise on the Australian Building and Construction Commission legislation doesn’t stand up to the most basic scrutiny.

On Tuesday night, Labor Senator Doug Cameron secured crossbench support for a major change relating to local employment in the construction industry, and the government, desperate to secure agreement to its ABCC bill, waved it through. Cameron’s amendment required that the Building Code that will form the basis of the government’s regulation of the construction sector (companies must comply with the code to secure government contracts) have detailed restrictions on hiring non-Australian workers:

“the Building Code must include provisions ensuring that no person is employed to undertake building work unless:
(a)  the position is first advertised in Australia; and
(b)  the advertising was targeted in such a way that a significant proportion of suitably qualified and experienced Australian citizens and Australian permanent residents (within the meaning of the Migration Act 1958 ) would be likely to be informed about the position; and
(c)  any skills or experience requirements set out in the advertising were appropriate to the position; and
(d)  the employer demonstrates that no Australian citizen or Australian permanent resident is suitable for the job.”

Yesterday, seeking to declare victory on the passage of the bill, the Prime Minister dismissed the impact. “Just on the market testing, this amendment covers largely the same requirements that are provided for in the Migration Act,” he said. “And obviously we believe it is important that businesses seek to employ Australians and ensure that they will seek to do so. That’s a fundamental part of the Migration Act, and it is reflected in this amendment.”

Wrong, in a key respect.

[Crossbenchers carve ABCC bill into the biggest protectionist turkey in decades]

The existing labour market testing requirements in the Migration Act relate only to 457 visas. But much of the rorting — or outright criminal conduct — in the construction industry involves the use of foreign workers on student visas, employed as sham “independent contractors” and significantly underpaid compared to Australian workers. Working holiday visa holders and skilled visa holders — brought in to do unskilled work — are also employed in construction industry rorts.

Cameron’s amendment will now block that, requiring any companies that want to comply with the new Building Code to market test for any position, regardless of the visa category of the foreign worker brought in to be employed locally. The testing requirements are also more stringent: employers will have to advertise in a way that will reach suitable workers and explain how the advertised skill requirements relate to the position. And the ABCC will now have the job of enforcing those requirements.

The CFMEU was successful in shaming the previous ABCC — under the less partisan leadership of Leigh Johns — into undertaking an inquiry into sham contracting. But the new ABCC will have as one of its permanent functions ensuring that the market testing requirements of the Building Code are adhered to. Expect the CFMEU to provide a steady stream of information on the employment of foreign workers by the industry — with the demand that it enforce the law.

Not quite what the IR hardliners in Liberal ranks and right-wing commentariat had in mind, perhaps.

Peter Fray

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