It’s not just the money cost of Senator Hinch’s amateurish meddling with legislation like the Australian Building and Construction Commission, or the consequences of the uncertainty created in the minds of people like farmers trying to make a living by his flitting from one broken undertaking (on the backpackers’ tax) to another. What is most damaging is his evident lack of awareness of the consequences of his parliamentary actions; his disruptive headline-seeking exercise with the ABCC legislation hopefully did not have the deliberate intention of delivering an unwarranted benefit to the recidivist law-breaking bully-boys of the CFMEU, and that it was only an ‘unintended consequence’ of his self-important interventions.
With the consequential sacking of his anti-coalition activist ‘eminence grise’ John Clements, Hinch faces the prospect of partial redemption next March, when the regulations under the ABCC Act’s contentious Building Code 2014 that determines the criteria required for eligibility to tender for about $55 billion of government contracts a year, will be capable of being disallowed by an unpredictable Senate. This was where Hinch made his most damaging intervention, initially insisting on delaying the requirement to comply with the tougher eligibility rules that are a key element of Minister Cash’s aim of ‘increasing productivity and decreasing costs in the commercial construction sector’, until existing Enterprise Agreements ran out. Recently negotiated four-year agreements would mean pain-free non-compliance with the Code while retaining the capacity to get Commonwealth contracts until 2020.
Hinch’s absurd proposition was that it would offend against the principle of retrospectivity for the statutory imposition in 2016 of rules promulgated in 2013 to become operative from 2014 but whose defeat in the Senate led to the double dissolution and their ultimate becoming law last month. Hinch’s ‘retrospectivity’ concern for those builders that had deliberately flouted the Governments ABCC restoration bill with its operative date from 2014 was not shared by the industry – but was strongly encouraged by the CFMEU, which had pressured builders to enter EAs benefitting the union. Savvy organisations like Lend Lease inserted into their non-compliant EA a clause requiring its renegotiation if legislation rendered the company ineligible to undertake government contracts. Prime Minister Turnbull’s ‘success’ in getting Hinch to ‘compromise’ from 2020 to 2018 left a grossly excessive period of two years before the government’s reforms would be fully effective. Hinch’s pro-union sabotage was despite admitting he knew Lend Lease-type EAs needed only a few months for renegotiation and the industry was expecting a nine month maximum.
Whether governments should state commencement dates for legislation that has not yet passed the parliament may be moot, but in this case it did not render illegal what was legal at the time. Not only is it a matter for government to determine the criteria for whoever it will seek to do business, but the Lend Lease escape clause removes any disadvantage. The only ones to suffer are those builders, like Kane Constructions, which stood by the government’s instruction and refused to enter into a non-compliant EA and as a result has been hung out to dry as ‘collateral damage’ from Hinch’s success as the vindictive CFMEU commenced rolling strikes the day after the ABCC became operative in retaliation for Kane supporting the coalition’s ‘ideological war against workers’. But all this focus on the Building Code misses the main issue – the ABCC’s restoration of the rule of law to the lawless construction industry. The political reality that 80 per cent of something is better than 100 per cent of nothing cuts no ice with those who complain that the concessions that had to be made to get enough Senate cross-benchers on side ‘completely undermine any benefits’ and make it ‘a mere shadow of its former self’ and little different from its Fair Work predecessor. Despite pages of watering down amendments from heroes like Hinch and Xenophon (and an overtly protectionist ALP amendment that is in potential conflict with Australia’s international trade obligations), the new ABCC is still effective enough for Australian business universally to welcome it, the union movement to deplore it and Labor, obediently, to promise to repeal it.
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