On 30 November 2016, the Senate passed the Building and Construction Industry (Improving Productivity) Bill 2016 (commonly referred to as the ABCC bill).
Amongst the most significant aspects of this bill is the reintroduction of the Australian Building and Construction Commission or ABCC. While the passage of the ABCC bill is steeped in controversy and has undergone many revisions, the public can now, and for the first time, get a clear picture of what the legislation that emerges from the ABCC bill will look like and will resolve once and for all some of the key questions about its purpose and operation. We look at some of those key questions below:
1. When does the legislation come into effect?
The ABCC bill received Royal assent and became law on 1 December 2016.
2. What are the main objectives of the legislation?
The legislation states that: The main object of this Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively, without distinction between interests of building industry participants, and for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
3. What sort of conduct does the legislation regulate?
The legislation seeks to (amongst other things):
- prohibit and impose penalties on those persons (including employee organisations such as unions) from organising certain kinds of unlawful industrial action and picketing;
- set out a regime by which businesses who suffer loss as a result of that unlawful industrial action and picketing can be compensated;
- prohibit and impose penalties on those persons (including employee organisations such as unions) from coercing employers or employees from entering into or altering certain industrial agreements (such as enterprise agreements) as well as those persons who discriminate against an employer or employee who does not enter such an industrial agreement; and
- empower the relevant Minister to prepare and issue a Building Code. The Building Code will set out a code of practice that certain persons must comply with in respect of building work. It has been reported that Prime minister Turnbull has agreed that companies with agreements have until late 2018 to become compliant with the Building Code.
4. What is the ABCC and what is its purpose?
The ABCC is, in essence, the government department established to promote and enforce most (but not all) of the legislation. Section 16 outlines the specific functions of the ABCC. In summary, those functions fall into 3 broad categories:
- First, educative. That is, the ABCC is responsible for (amongst other things), disseminating to building industry participants (such as construction companies and employee organisations) information regarding the legislation and the Building Code. The ABCC can also advice and assist building industry participants as to their rights and responsibilities
- Second, investigative. That is, the ABCC has the power to investigate alleged breaches of the legislation; and
- Third, prosecutorial. That is, the ABCC has the power to commence proceedings against individuals and organisations who breach the legislation.
5. What are the responsibilities of the ABCC?
Further to its functions, the ABCC has specific duties imposed on it by the legislation that it must perform. These duties include investigating, monitoring and promoting compliance with the Act, the Building Code and designated building laws. Designated building laws include workplace relations laws and industrial instruments under those laws.
6. What are the ABCC’s powers?
The ABCC’s powers include:
- The power to request examination notices from the Minister or the Australian Administrative Tribunal’s presidential member. An examination notice can compel a person to produce information or documents or attend before the ABC Commissioner and answer questions relevant to the investigation. The ABCC Commissioner may require that answers given by a person at examination be given under oath or affirmation. Failure to comply with an examination notice could result in prosecution with a monetary penalty or imprisonment for 6 months.
- The power to intervene in or institute court proceedings including FWC proceedings, where an application proceeding relates to a matter than invoices a building industry participant or building.
- The ability to publicise non-compliance with the Act, designated building laws and the Building Code.
7. Are there any other governments departments created by the ABCC bill? If so, what are their functions and powers?
In addition to the ABCC, the legislation establishes the Office of the Federal Safety Commissioner (“FSC”); and the Security of Payments Working Group (“SPWG”).
- The FSC, established in part as a response to criticism that safety deteriorated on constructions sites when the ABCC was last in operation between 2005 and 2007, is tasked with promoting occupational work health and safety in the building industry. The FSC will also participate in the Work Health and Safety Accreditation scheme, which determines the rules for accreditation of industry participants which is required carry out building work funded by the Commonwealth.
- The SPWG, introduced at the suggestion of independent Senators, is tasked with monitoring the activities of the Commission on the building industry in relation to security for payment laws within each jurisdiction in Australia, making recommendations to the ABCC to improve compliance with security for payment laws and making recommendations to the Minister, as required.