Construction Industry Portable Paid Long Service Leave Amendment Bill 2025

Extract from Hansard

Second reading

13th August 2025

Resumed from the 12th August

Hon Dr Steve Thomas (3:04 pm): Thank you, Acting President, although I have to say I almost got a bit excited there that there might be a second budget speech. I thought the Deputy Leader of the House was going to give me a second run at it and another hour to talk about the problems in the budget, the energy system of Western Australia. I must say, I am a little disappointed that I have missed out on that opportunity. I should have jumped up and sought the call. I do not know whether the clerks would have let me get away with it, but it was probably worth a try. Sometimes it is what you get away with, not necessarily what the rules are, that count.

That being said, I guess we will have to go back to the Construction Industry Portable Paid Long Service Leave Amendment Bill 2025. I think I made a short contribution last night on some of the basics, so I do not need to go over the history of long service leave again. We know that it is a throwback to our colonial past. We do not need to talk about the countries that have it and the majority that do not. I think we might get to the more substantive parts of the bill.

I want to break this down into a number of sections. The first I want to deal with is the application of portable long service leave for construction workers who work offshore, which is probably the most significant part of the bill, and I would suggest an impetus for the bill to be before the house today.

I know that members were probably all listening very carefully last night, but just as a gentle reminder, the original legislation, the Construction Industry Portable Paid Long Service Leave Act 1985, was applied to offshore workers in construction until it was challenged in a court case in 2016, which was called, I repeat, Thomson v Construction Industry Long Service Leave Payments Board. In that 2016 ruling it was ruled that offshore construction workers were no longer entitled to accrue long service leave. What happened at the time was companies then reassessed how they would deal with this. Some companies continued to make voluntary payments towards long service leave, other companies did not, and some companies actually asked for their original contributions to be returned, which I am sure was a fairly painful exercise. Of course,bear in mind that we need to remember that those payments were not made to the individual workers but were made to the Construction Industry Long Service Leave Payments Board, which oversees that process. The way this system works is construction industry people pay into the generalised board. It is quite unique to the construction industry.

I asked the minister yesterday to address in her second reading reply why we are dealing with only the construction industry, and why everybody else misses out. I am sure that the minister will answer that. I am still trying to potentially avoid the need to go into the committee stage of the bill with a few fulsome answers, although other members might have a greater enthusiasm to question long service leave entitlements.

I found this when I was doing a bit of additional research into this bill, and I thought it was interesting. The Housing Industry Association commented on this scheme. Rather than necessarily the degree of difficulty of the work, it took the view on the portable long service leave components of the construction sector that:

The transient nature of the construction sector means workers generally don't work for the one employer. The portable long service leave … scheme ensures they qualify for paid long service leave.

It might be that government members come back and say it is perhaps the tenuous nature of employment in the construction sector. To be honest, I am not entirely convinced that is a universal thing. I think there are plenty of workers within the construction sector who stay with a single employer for a longer period, although admittedly my experience is largely in the South West where there are smaller employer groups, and they probably tend to keep employees for a longer period. A little bit of defined definition, perhaps with some guidance from advisers on that, might be useful. Obviously it would appear that the Housing Industry Association supports the granting of portable long service leave in the construction sector. From my research amongst various lobby groups, I must admit a number of them are reasonably comfortable with this. I expected, as is often the case for the particularly economically based lobby groups, that perhaps they would have some issues with this, but the feedback that I received was consistently that they had no particular problems with this bill. That is one of the reasons I am not here pontificating against it or advocating that we vote against it.

Hon Jackie Jarvis: Thank God you're not pontificating!

Hon Dr Steve Thomas: As long as I am not pontificating?

Hon Jackie Jarvis: I said thank God you're not!

Hon Dr Steve Thomas: That is right. I had plenty of opportunity for that yesterday and I will have a bit more opportunity going forward. The joy is very hard to stop!

This 2016 ruling said that offshore construction workers had no entitlement to accrued long service leave in the same way that other parts of the construction sector did— onshore in particular. Much of the bill is given to the definition of an offshore vessel and who particularly this applies to because it is supposed to apply specifically to construction and not necessarily the general work on offshore vessels. The minister might also be able to give us a bit of a run-down on the definition as determined in the legislation of what an offshore vessel particularly is and where it is targeted. I make the assumption that there is a real focus on what is called the construction of floating production storage and offloading platforms or FPSOs—you always have to learn the acronyms as you go through. In this case, construction of ships obviously occurs onshore, funnily enough. Presumably, we are focused on offshore platforms for which construction is occurring rather than the general operations. A bit of a definition, if the minister would, of precisely how that looks and which groups are being targeted would be useful to continue the job. Members will probably find themselves getting stuck with the definitions of propelled and self-propelled versions of this. It is going to get a bit complicated but say, for example, an offshore platform is embedded, I assume the construction of that would be covered; an offshore platform that is in fact a ship, as has been proposed in the gas industry in WA, that is mobile, even though it might be anchored and tethered, obviously has its own mobility. Does that then impact on who can apply for portable long service leave and who cannot? It would be worth a few minutes in the minister's reply just to give us a little bit of definition around that.

I found it interesting—I love a bit of union disharmony as a part of the process—so I was particularly pleased to see a bit of that going on. As a result of the 2016 court case and a few other issues we have this thing called the Offshore Alliance. The Offshore Alliance defines itself as a partnership between the Australian Workers' Union (AWU) and the Maritime Union of Australia (MUA). We did have a very vocal representative of the Maritime Union of Australia in the previous Parliament. I am not sure whether there are any left or whether they have been culled. That is an interesting prospect. I know there are a multitude of representatives of the Australian Workers' Union, the good old AWU, in the chairs opposite. Perhaps they could speak up or, if they are feeling particularly brave, try to speak on behalf of the MUA, which I think would be fun and interesting. Please, let us have a little bit of contribution from those members.

Hon Kate Doust: How about a bit of substance coming from you?

Hon Dr Steve Thomas: There is plenty of substance coming from—which union are you in, Hon Kate Doust? It is not the MUA. The AWU? No.

Hon Jackie Jarvis: She's a member of the Labor Party; that's all that matters!

Hon Dr Steve Thomas: It is all one big happy family is it, minister? Oh my goodness.

There was a bit of kerfuffle about who was leading the battle here. We have the Offshore Alliance, the MUA and the AWU, but we also have a couple of other unions involved with this. There is the Australian Manufacturing Workers' Union (AMWU). I do not quite know how people do not get the AMWU and the AWU confused a bit more often, but they are completely different groups. Obviously what was then the Construction, Forestry, Mining and Energy Union has changed its name. It had a couple of incarnations. It is a little bit difficult to refer to them, so let us just call them the old BLF and move forward. We have the BLF and the AMWU and on the other side the AWU and the MUA. I understand that they all manage and I am not sure—

Hon Dan Caddy interjected.

Hon Dr Steve Thomas: Sorry? It is not quite one big happy family.

Hon Dan Caddy: No, I said I don't understand all the acronyms.

Hon Dr Steve Thomas: No. You would be very brave to comment on that side, I suspect.

Hon Dan Caddy interjected.

Hon Dr Steve Thomas: It would be a very brave act, Sir Humphrey would say, for the parliamentary secretary to pass comment on that. There was a bit of a fuss over this and I understand that they both made contributions to the independent review of the Construction Industry Portable Paid Long Service Leave Act, which was conducted by KPMG. The minister might like to make a note of the 2023 KPMG review. I presume that is an open review that is part of the debate going forward. If possible, in the minister's second reading response, it would be nice if she were able to table that review, if it is not too big. From memory, I do not think it was done in secret. The government has become more secretive in more recent years, but I think that one is on there. There was a bit of a fuss and I imagine that once this legislation passes through, all those unions will be more than happy to take credit themselves and push forward. The amendments in the bill will allow for construction on offshore vessels. Like I say, if we can just get a bit of a definition of which vessels are included, which vessels are not and just make sure that it is applying specifically to construction.

The second part of the bill I want to mention is fairly simple. It is to allow construction workers to be recorded as employed and in service when they are stood down or on workers compensation. I think the definition of "stood down" in the minister's second reading reply might be looked at. I am presuming that they are stood down or stood aside but still employed. I think the definition deserves a little bit of discussion. If need be, we will go to clause 1 of the committee stage and ask for a more defined outcome. What are the circumstances in which a stood-down worker is effectively deemed to still be an employee? That is what we are talking about. We are talking about people accumulating long service leave entitlements if they are an employee. A worker that is stood down rather than laid off could still be an employee, but the circumstances might be interesting.

Hon Kate Doust: Member, you know that that's not a new concept; that's a concept that came about in 1958.

Hon Dr Steve Thomas: Yes. I am not proposing that it is an issue; I just think, in terms of the reply, it would be useful to get some more formal definitions on the record. Hon Kate Doust made a good point. I do not think that is a particularly onerous part of this bill. My understanding is that the best example of this—the minister's advisers will probably go through this—is the application of JobKeeper. With JobKeeper, people were still employed, although the government was paying some or all of their wage, depending on the deal. I suspect that in the construction industry, it was probably a proportion. They were stood down. They were not at work but they were still employed, and that might be the example that the advisers will use for a circumstance along those lines. I am just interested to see whether other circumstances would qualify as someone being employed but not actually working. Those on unusual rosters and working different swings might perhaps have an implication for this as well. I think some response on that would be quite useful.

The third part I want to speak about, and this is probably the other large section that is worth looking into, is the pro-rataed payment of long service leave prior to when someone would normally qualify for it because of permanent or serious impairment, disability or terminal illness, and, presumably, all the way to death. I understand that under the current legislation, there is no pro-rataed long service leave in those circumstances. I think this is a pretty reasonable component of this bill, but it again comes back to the argument about how appropriate long service leave is. I said last night that the fact that it exists and has become an expected part of the employment profile and the employment system in this state means that any debate around its value or usefulness is rather moot. I think we just need to move on with the fact that it does exist. If it does exist, should it be pro-rataed out? In the construction industry, employers make payments to the fund along the way rather than simply waiting for an entitlement, as other industries potentially do. If an employee of a small business is entitled to long service leave—in theory, they will have reached 50% of their entitlement, so instead of 14 years, they have hit seven years—the business will have to find that long service leave in one way, shape or form. If it is cashed out, they must find the cash. If the person takes long service leave, they will find a temporary replacement staff member. I have done that before in businesses that I have run when I have had to deal with long service leave entitlements. It is not the easiest thing in the world if someone is trained for a particular job, as you have to try to fill that job. For example, you might be asking someone to do that job for three months and then lose that job again. It is not the easiest thing in the world, but most businesses manage to muddle through that process reasonably well.

Again, there is a special case for construction workers. The existing legislation provides that a worker has to complete or work a minimum of 1,540 days over at least seven years based on a minimum of 220 hours a year. That does not sound like a lot, to be honest—220 hours a year. That is averaged over the seven-year period to qualify for a long service leave entitlement. If someone was working 22 hours a week, they could reach 220 hours in 10 weeks. That is not a particularly high level, but that is in the legislation so it already exists. That is what happens now. The bill before the house proposes, for the construction industry only, a minimum of 55 days to qualify for a prorata payment of their long service leave. To be honest, I do not have a particular philosophical or moral objection to what the bill is proposing, because I think it involves fairly small numbers to be honest. After doing the calculation and consultation in the briefing, it looks like that someone who works 55 days to qualify for a pro-rataed long service leave entitlement is probably going to be entitled to only one day. A long service leave entitlement of one day is probably not overly useful to people. It is not as though they will suddenly hit 55 days and have accumulated three months of long service leave. One day of long service leave is a pretty small amount. I suspect the business community has not raised significant concerns about the legislation before us because it is an entitlement to a fairly modest reward ultimately. In that case, I think we go, "Why not?”

Again, the only argument becomes around why it will apply to the construction industry and not other industries. Is the government aware of any agenda to extend this? Probably the most important question I will ask the minister to respond to is: At what point will we know that this will not open a door or be the thin edge of a wedge going forward? When the construction sector gets this particular entitlement, will every other sector suddenly be clamouring for it as well and will there be a union push for everybody to get partial payments? That is a completely separate debate and we could argue that some sectors are more onerous than others, but is this the thin edge of the wedge? Is this the first step in a wider campaign? We never know—the Australian Manufacturing Workers' Union, the Australian Workers' Union and the Maritime Union of Australia might all get together. It might be like the Labor Party. The Construction, Forestry, Mining and Energy Union might get together with them and make this a wider campaign. What assurance can the government give us that this is not part of a wider campaign? Probably more importantly, if it starts to become a wider campaign, is the government likely to support or oppose it? The government admittedly might get a bit of kickback from some of the more robust members of the union movement, but is this the first step or not? I would love the government to go, "Look, this will be restricted to—

Hon Andrew O'Donnell: Wasn't the original legislation in the 80s?

Hon Dr Steve Thomas: From memory, it was 1985.

Hon Andrew O'Donnell: The thin edge was a while ago.

Hon Dr Steve Thomas: That is right. But is this the thin edge in terms of expanding it? Do not forget that the original 1985 legislation—

Hon Jackie Jarvis: It is 220 days, not hours. I kept thinking that that didn't sound right.

Hon Dr Steve Thomas: Sorry, did I say hours? Good; we have got that sorted! The year 1985 was a long time ago, but the legislation will be expanded to include a specific pro-rataed component that did not exist before. I think the most important question is:

How do we prevent that contagion from going elsewhere? There will be a conversation around that.

There are a couple of other components of the legislation that, in my view, are reasonably innocuous. The first concerns the operations of the board, which are the usual things—the government's gender-neutral titles agenda, a streamlining of the payment of fees et cetera and the way that meetings are chaired. I am quite comfortable with them. There are also some consequential amendments that are part of the debate and the argument. I have gone through those parts of the bill and there will be a few interesting questions to be asked around them.

As I said, in terms of the consultation that I went through, nobody raised a particularly opposing alternative view. The opposition is here to waive the legislation past as it goes. Other members might have a different view. If we can get some answers back, minister, we might be able to just forgo the committee stage and jump straight to the next bill, but I will give other members an opportunity to make a contribution. A few members from various unions might want to step up and take credit for some of this work and I would love to give them time to be able to do that. With those comments, we will see where the bill goes.