The Federal Government has recently introduced the Building and Construction Industry (Improving Productivity) Bill 2013 (Bill) to re-establish the Australian Building and Construction Commission (ABCC), the regulator for the building and construction industry.  The Bill proposes to provide an improved workplace relations framework for the benefit of building industry participants and the Australian economy.

Given that the new Senate will not commence until July 2014, and the balance of power will be held by the Australian Labor Party and the Greens until that time, it is likely that the Bill will not be passed and implemented until some time after 1 July 2014.

In this article, we provide an overview of the Bill and some of the key areas of difference between the current Fair Work (Building Industry) Act 2012 (FWBI Act) and the Bill.

Building work

Much like under the current FWBI Act, it is proposed that the regulator under the Bill will be able to exercise its powers in relation to a participant in the building industry.  The proposed legislation however expands the definition of building work to include transporting or supplying goods to be used in building work directly to building sites.

The Bill excludes the regulator from having powers in relation to the drilling for, or extraction of, oil or natural gas; or the extraction of minerals.  However, the regulator retains powers in relation to building work that is performed on land in which there is an interest relating to the mining of oil, gas or minerals.

Area where the laws apply

The Bill proposes to expand the operation of the regulator to cover:

  1. work performed in the Territory on Cocos (Keeling) Islands;
  2. resource platforms in the Australian exclusive economic zone or in the waters above the continental shelf; and
  3. any ship in the Australian exclusive economic zone or in the waters above the continental shelf, that is travelling to or from (or both to and from) an Australian port.

New offence of unlawful picketing

The Bill contains provisions to stop large-scale disruptive pickets in the building industry by proposing a new offence of engaging in an unlawful picket, being:

  1. action that has the purpose of, or does, prevent or restrict a person accessing or leaving; or
  2. would reasonably be expected to intimate a person accessing or leaving,

a building site, sites at which a building industry participant does work relating to the building work, or sites from which goods are transported or supplied directly to a building site provided that the action is engaged in for certain industrial purposes or objectives, or the action is otherwise unlawful.

The Bill also proposes to impose power on a Court to grant an injunction to stop an unlawful picket.

Unlawful industrial action

The Bill retains the current prohibitions on unlawful industrial action however, if an employee seeks to rely on a reasonable concern about an imminent risk to his or her health and safety (such that the action is not deemed to be industrial action), the employee will have to prove that their concern was legitimate and reasonable having regard to their own safety.

Increased penalties

The Bill propose to reintroduce more significant penalties for:

  1. engaging in unlawful industrial action;
  2. making payments in relation to periods of unlawful industrial action;
  3. coercion relating to the allocation of duties etc to a particular person;
  4. coercion in relation to superannuation funds;
  5. coercion of persons to make, vary, terminate an industrial instrument; and
  6. action taken because of coverage by particular industrial instruments.

The Bill proposes a maximum penalty of up to 1,000 penalty units ($170,000) for a body corporate, and in some instances, a maximum of up to 200 penalty units ($34,000) for an individual (as compared to 300 penalty units for a body corporate, and 60 penalty units for an individual, under the FWBI Act and the Fair Work Act 2009 (Cth)).

Alternatives to prosecutions

The Bill proposes that instead of commencing a prosecution for a breach of the Bill, the Australian Building and Construction Commissioner may accept a written undertaking in relation to the breach from a building industry participant, or give a building industry participant a compliance notice.

Failing to comply with a compliance notice could expose a building industry participant to a penalty of up to a maximum of 100 penalty units ($17,000) for a body corporate, and up to a maximum of 20 penalty units ($3,400) for an individual.

Unenforceable agreements

The Bill proposes to reintroduce provisions which were abolished when the FWBI Act started operation and which made certain agreements which were entered into by more than one employer, and which were not an industrial instrument but nevertheless sought to secure standard terms and conditions of employment in respect of building work, unenforceable.

Compulsory examinations

The Bill proposes to remove a number of the restrictions on the conduct of compulsory examinations which were imposed under the FWBI Act.  Specifically, it is proposed that:

  1. the Australian Building and Construction Commissioner will no longer have to obtain approval from the Administrative Appeals Tribunal to require an individual to attend a compulsory examination;
  2. a person subject to a compulsory examination will no longer be able to rely on the public interest to refuse to answer a question; and
  3. the Australian Building and Construction Commissioner will not have to personally conduct a compulsory examination.

However, the Bill retains an obligation on the Australian Building and Construction Commissioner to notify the Commonwealth Ombudsman of the conduct of the compulsory examination, and to provide a report and other materials relating to the compulsory examination.

Participation in settled proceedings

Unlike under the FWBI Act, if a building industry participant has settled a court matter (other than by a judgement) which would be an offence under the Bill (or related workplace laws), the Australian Building and Construction Commissioner will be able to continue the prosecution, or commence a further prosecution, despite the settlement reached.

WHS accreditation scheme

The Bill proposes to retain, but rename as the ‘Work Health and Safety Accreditation Scheme’, an accreditation scheme for building industry participants who wish to carry out building work funded by the Commonwealth or a Commonwealth Authority.

The details of the accreditation scheme have not yet been released.

Building Code

The Bill retains the ability for the Minister to issue one or more documents to constitute the Building Code (a code of practice to be complied with by persons in respect of building work).  The Australian Building and Construction Commissioner and inspectors appointed under the Bill will have responsibility for monitoring and promoting compliance with the Building Code.

What now?

The Bill is currently being considered by the Senate Education and Employment Committee.  Several submissions claim that the changes proposed by the Bill are not sufficient, others claim that there is no justification for the introduction of the Bill, and that the general laws should apply to building industry participants rather than industry specific laws.

While there is no doubt that the debate about the appropriateness of the Bill and its content will be ongoing, it would be prudent for employers in the building industry (including the broader building industry proposed under the Bill) to familiarise themselves with the Bill in their planning for current and future projects.