Your Excellency

I am able to advise that all conditions for a double dissolution have been met with respect to two parcels of legislation: the
Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 ('ABCC Bills') and the Fair Work (Registered Organisations) Amendment Bill 2014 ('Registered Organisations Bill').

Should Your Excellency accept my advice to dissolve both Houses, I propose to make a public statement to this effect, announcing the date of the election. I ask for you consent to that course.
Yours sincerely

It was with this request that the current composition of the House of Representatives and the Senate were dissolved, and Australia headed to the polls after an 8 week campaign.

What was the Package That Dissolved the Houses of Parliament?

As noted in the Prime Minister's letter seeking consent from the Governor General to call a double dissolution election, the Bills which triggered the election where the:

  • Building and Construction Industry (Improving Productivity) Bill 2013;
  • Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013; and
  • Fair Work (Registered Organisations) Amendment Bill 2014.

What is the Purpose of Each Bill?

ABCC Bills

The ABCC Bills are designed to improve productivity in a crucial part of the economy and to reestablish the Australian Building and Construction Commission. Among other things the ABCC Bills:

  • establish a separate regime for punishment and enforcement of stop unlawful industrial action orders where they arise on building site where building work is carried out
  • dramatically change the Building Code to restrict the terms of enterprise agreements entered into after April 2014
  • prevent unlawful picketing
  • remove the ability to enter into common terms and conditions across a project
  • significantly increase the penalties payable for a proven breach of the Bill.

In seeking to enact the ABCC Bills, the Government is also seeking to, restore the rule of law to a sector which two Royal Commissions and many judicial decisions have found to be characterised by a culture of lawlessness which set it apart from the rest of the economy. [2]

Registered Organisations Bill

The Registered Organisations Bill is designed to ensure that unions and employer groups have rules of transparency and accountability similar to those that apply to corporations.

The Bill seeks to install an independent stand-alone regulator in the form of the Registered Organisations Commission. In doing so, the Government is seeking to enhance accountability of union and employer groups which the Royal Commission into Trade Union Governance and Corruptions overwhelmingly demonstrated the need for.

Where to for the Government now?

As Australia awaits the painstakingly slow process of the Australian Electoral Commission vote counting, the composition of the House of Representatives and Senate is shaping up to be a more formidable battleground for the Government than that which existed prior to the election.
In a snapshot:

  • the Government is striving to gain a majority in the House of Representatives, whereas prior to the election it held 90 seats, post-election it is likely to barely scrape the 76 seats necessary to form a majority
  • the Senate is shaping up to be a mishmash of Greens and Independent Senators which the Government will need to do strike deals with if it is to obtain the necessary numbers it needs to pass the ABCC Bills and the Registered Organisation Bill.

When Parliament resumes, and assuming the Government is still in power, there will be a need to re-pass the ABCC Bills and Registered Organisation Bill through the House of Representatives so it can be handed to the Senate.

Should the Senate reject the reform package again, the Prime Minister will be able to request that the Governor General call a joint sitting of Parliament. Should a joint sitting be called, the joint sitting votes on the reform package as last proposed by the House of Representatives and on any amendments made by one House and not agreed to by the other. To be passed, the reform package (as, and if, so amended) must be agreed to by an absolute majority (ie more than half of the total number of the members of both Houses). [3]

Given the likely composition of both the House of Representatives and the Senate, achieving the necessary numbers across both Houses will not be an easy task.

The alternative is to abandon the reform package (as there is no requirement to re-table the bills which triggered the election), engage in significant deal making or concessions to obtain the necessary numbers to pass the reform package or call another double dissolution election.

Many of the senators that will comprise the cross bench are already known. Jacqui Lambie, and the Greens were all passionately opposed to the package. Nick Xenophon is seeking significant other changes before supporting the package and how Pauline Hanson and Derryn Hinch may vote at this point is anyone's guess. This means that many predict the package, at least in its current form, is doomed.

Prior to the Election, What Else was on the Governments Industrial Relations Agenda?

The ABCC Bills and the Registered Organisation Bill were not the only pieces of legislation the Government had in mind when it came to industrial relations reform.

It will be recalled in 2015 that the Government passed a series of amendments to the Fair Work Act 2009 (Cth) (FW Act). The 2015 amendment bill included measures to put tighter controls around the granting of protected action ballot orders (by requiring that either bargaining commenced through the issuance of notice of representational rights by an employer or by the granting of a majority support determination by the Fair Work Commission to employees to compel bargaining with their employer). However, significant watering down of this bill occurred in order to see its passage through Parliament, which included dropping the protected action ballot order amendments.

Whether the Government will take up the opportunity to make further amendments to the FW Act now remains further in doubt as the Government's ability to control the agenda with respect to industrial relations dwindles. This being a consequence of the fact that the votes keep on counting in favour of a slimmer majority in the House of Representatives and, potentially, a more hostile Senate.

What Does This Mean for Employers?

Unfortunately, a period of uncertainty rests in the construction industry and in areas of the current industrial relations framework. Although this effectively means the current state of play is business as usual, the absence of the ABCC Bills, the Building Code 2014, Registered Organisations Bill and further amendments to the FW Act will mean that employers will need to grapple with the shortfalls of the current industrial relations framework until positive Parliamentary action occurs.