In brief

Three significant new developments in relation to the future regulation of the building and construction industry occurred last week:

  • A new Australian Building and Construction Commissioner has been appointed. Mr Leigh Johns will take up this position from 11 October 2010.
  • The re-elected Federal Government has confirmed it will reintroduce its 2009 legislation to replace the Australian Building and Construction Commission (ABCC).
  • The Greens party has introduced legislation to the Senate to abolish the ABCC.  

Appointment of new Australian Building and Construction Commissioner

On 28 September the Government announced the appointment of Mr Leigh Johns1 as the new Australian Building and Construction Commissioner.

Mr Johns will replace John Lloyd, who was appointed to the position in 2005 and whose term expired on 28 September 2010.

Mr Johns is currently Chief Counsel in the Office of the Fair Work Ombudsman and is a former Deputy Australian Building and Construction Commissioner. He has many years of experience in the area of workplace regulation in both government bodies and private practice.

Under the Government’s proposed legislation the office held by Mr Johns will be abolished and replaced with a new Office of the Fair Work Building Industry Inspectorate. At this stage it is not clear whether a new individual will be appointed to this position.

Government commits to reintroducing legislation to replace the ABCC

The re-elected Gillard Government has confirmed that it will reintroduce legislation to replace the ABCC with a new Building Industry Inspectorate. This legislation, previously titled the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 was introduced to Parliament in 2009 but was not passed by the Senate.

The Bill reflected many (but not all) of the recommendations of the Willcox Review. Its main features were considered in a previous newsletter2 and included:

  • replacing the ABCC with a new agency, the Office of the Fair Work Building Industry Inspectorate
  • retention of the so-called ‘coercive powers’ to compel persons to give evidence in relation to investigations, subject to new restrictions
  • the ability for a new ‘independent assessor’ to ‘switch off’ the coercive powers on ‘peaceful’ building projects, and
  • a reduction in monetary penalties under the amended act to a level consistent with penalties under the Fair Work Act.

The Government has yet to confirm whether the new Bill will be in the same form as the 2009 Bill.

At this stage, it is uncertain whether the Bill is likely to be passed. Its passage by the House of Representatives is not assured and would require the support of up to four Green or independent members. The Opposition, on the other hand, will only require two additional votes from independent members to block the legislation.

If the Bill does pass the House of Representatives, it is highly unlikely that it will pass the Senate prior to 1 July 2011, when senators elected at the 2010 election take up their seats. Both the Opposition and Senator Fielding have indicated they will oppose the Bill, which will be sufficient to ensure it is blocked.

From 1 July 2011 the balance of power in the Senate will be held by the Greens party, which opposes any industry-specific legislation for the building industry (see below). It is unclear whether the Greens will support any Bill which retains any form of industry-specific regulator or ‘coercive powers’.

Greens introduce legislation to abolish the ABCC

Last week the Greens party introduced their own alternative building industry legislation. The Building and Construction Industry (Restoring Workplace Rights) Bill 20103 was introduced to the Senate as a private member’s bill on 29 September 2010.

The Bill would completely repeal the Building and Construction Industry Improvement Act 2005 and all associated legislation and regulations. This is consistent with Greens party policy that there be no separate form of workplace laws for the building and construction industry.

While this Bill will not be passed, as both the Government and Opposition support the retention of some form of specific regulation in the industry, it illustrates the position of the Greens party, which has campaigned strongly against any building industry regulator and has not yet indicated the approach it will take in relation to the Government’s proposed legislation.