Legislative Council, Wednesday 4 June 2025

Ms FORREST (Murchison) - Mr President, I wish to speak briefly on adjournment, as I advised you.

It is to do with a matter related to TasBuild. The reason I want to read this letter from constituents of mine into Hansard is because this is not the first time I have had similar concerns raised. I will read the letter. It is very self-explanatory and I think it is very concerning. I have the company's permission to use their name - it is Blackley Pipelines & Irrigation - in this contribution:

TasBuild Limited (TasBuild) was created to manage the portable long service fund for eligible workers in the Tasmanian construction industry. The role of TasBuild is to ensure that the fund operates according to the fund rules and the Construction Industry (Long Service) Act 1997.

Blackley Pipes and Irrigation Pty Ltd (Blackley) and other local irrigation supply businesses are not engaged in construction. We do, however, assemble pivot and linear irrigators in the field in much the same way as agricultural machinery dealers assemble tedders and other machinery on site. These companies are not subject to the act, we are only engaged in on farm infrastructure. However, TasBuild claimed that we are obliged to contribute to their fund based on their rules, not the legislation, because of a reference to irrigation in the ANZSIC Code.

Section 3 of the act defines construction industry as 'any industry involved in any construction described in Division C or Division E of the Standard Industrial Classification'. 'Standard Industrial Classification' is defined as meaning the Australian and New Zealand Standard Industrial Classification issued by the Australian Bureau of Statistics in 1993 (ABS catalogue number 1292.0)(ANZSIC).

In Blackley's case, we have always reported in our tax returns and elsewhere that we fall under Division A of the Australian New Zealand Standard Industry Classification (ANZSIC) and our industry code is 05290. Division A refers to 'other agricultural and fishing support services'.

Furthermore, the casual long service leave legislation was introduced to provide LSL benefits to employees who by the very nature of the construction industry, with its peaks and troughs, would rarely stay with one employer long enough to accrue LSL. The irrigation industry is not characterised by short term employment. Our staff turnover is relatively low and staff who do leave do so of their own volition and not due to a downturn in activity.

In our dispute with TasBuild, we ultimately had to acquiesce to their demands because we lack the financial capacity to fund the legal processes beyond appealing directly to the board of TasBuild. It should be noted that prior to our meeting with TasBuild board members, we were informed that they would come to the meeting with an open mind and that we had the opportunity to put our case and supply any and all evidence to the meeting.

Regrettably, one of the board members representing the union movement was not only aggressive in questioning and bordering on 'bullying', he clearly did not come with an open mind, willing to consider our evidence and views. His stated position was simply that Blackley is obliged to contribute, 'no discussion and end of story'. At the time it struck us that this is no way to represent TasBuild to the public.
Notwithstanding the fact that we took a commercial decision in this matter, we still hold the view that we are not subject to the Construction Industry (Long Service) Act 1997.

Now to other aspects of how TasBuild operates. An employee of ours commenced working with us in a senior capacity over three years ago and until recently, we were unaware his previous employer contributed to TasBuild. TasBuild wrote to our employee inquiring about his current employment. We responded on his behalf, advising TasBuild that we started to pay rates various times during his employment. We calculated that the long service liability for the period from when he commenced until the payment date was $5038.82, however, TasBuild invoiced us for $7596 with the only explanation that the calculation was made within their rules. Unfortunately, our employee will not get the benefit of the extra payment. It will simply be absorbed into consolidated funds.

More recently, we received a demand to register our employees with TasBuild for their purposes of billing us. As a result, we have been served with an invoice of $108,844.76 in respect of current and former employees. We accrued the actual liability for our field service staff for in our financials and that liability is only $65,664.41. In other words, TasBuild overcharged us $43,1801.35 -

There might be a typo here. It's roughly $43,000. I think they've got one extra number in there:

Another of our employees for whom we have contributed during the whole of his employment with us had accumulated so-called 10 years of service with TasBuild and claimed his entitlement. He was paid a benefit, however the benefit was calculated in part on his pay rate prevailing in earlier years and not wholly on his current pay rate. Had he accumulated his ten years in service entirely with Blackley we would have paid him out his LSL [long service leave] benefit in accordance with the law and calculated wholly on the current pay rate.

In our discussions with TasBuild, they informed us that should an employee for whom contributions were made, leaves the construction industry with for more than 3 years, they will lose their LSL entitlements, unless the employee chooses to make personal contributions to protect their entitlement.

Mr President, I will just digress briefly from this letter to say that is a terribly gendered disadvantage for women who leave to have a family, have a child, and take time out from the workplace. This legislation must be revisited if this is how it is being applied and how TasBuild are operating. It is unconscionable.

This seems grossly unfair to employers, who contribute in good faith and find that the employee does not get any benefit. Surely, TasBuild could refund at least part of the contributions in cases such as this to the employer. The practice of lost benefit after 3 years absence from the construction industry will impact far more on businesses such as ours than the genuine construction industry, mainly because our employees who do leave of their own volition will in most cases not seek employment in the construction industry and hence all benefits will be lost.

That is one of the known risks of this legislation, but it certainly disadvantages women far more than men.

TasBuild has made very little attempt to communicate with businesses in the irrigation industry until quite recently. In our meetings with TasBuild they claimed that the industry was a new industry and as such it was its reason for the lack of communication. In reality the industry has been around for at least 50 years or more, which is hardly new. When Blackley's commenced business it had no knowledge of TasBuild or any obligations under the Act to contribute on behalf of employees. Even after Blackley's withdrew its claim to recover funds from TasBuild (which he considers illegal) TasBuild has made no effort to contact Blackley or visit our premises. This lack of communication or enquiry about our business or explain who amongst our employees is liable, what our obligations are or any other matters pertaining to the legislation is in our opinion a dereliction of duty on their behalf.

In conclusion, we believe there is a serious misunderstanding of the obligations of which businesses are caught by the legislation. By and large the Irrigation Installation and Supply does not see itself as being in the construction industry and the Act itself is known as the Construction Industry (Long Service) Act 1997. It is not the Construction and other Industries Act. Furthermore, it is not the Act itself that TasBuild is relying on to 'rope in' the Irrigation Industry but the Rules of TasBuild. Clearly TasBuild is failing in its obligations to administer the Act in a fair and equitable matter.

1. It has used its authority in a capricious and dictatorial manner to extend its reach beyond what is within the law or reasonable. Most Tasmanian businesses do not have the financial capacity to pursue legal recourse. Certainly, we don't and for that reason we had to withdraw.

2. It has imposed excessive fees on business in the collection of contributions. In our case, charges were 50% greater than the actual liability we were asked to pay.

3. The benefit payable to the beneficiaries is, from our experience, inferior to what an employer would be entitled to under the Long Service Leave Act (1976)

4. Ministerial oversight should extend to a review of the matters raised above and excluding the irrigation industry to the extent of 'on farm infrastructure''

Mr President, I do appreciate your indulgence in that because I think it really points out some of the very real issues with how TasBuild are operating. The intention when we passed that legislation here was not to create a monster like this. It is not the first time I have had interaction for members of my community and other parts of the state who are facing similar challenges. I hope the government will take this forward and ensure that this is properly reviewed.