The Building & Construction Industry (Improving Productivity) Bill 2013 is currently being debated in the Senate, with a raft of amendments proposed by Senate cross-benchers and other parties.

The Bill, first tabled 2.5 years ago, has passed through the House of Representatives and is currently before the Senate.

It seeks to reinstate the Australian Building & Construction Commission (ABCC) with its former powers, along with the former provisions of the Building & Construction Industry Improvement Act (BCII Act), with some extensions and modifications.

In particular, the Bill seeks to restore those parts of the BCII Act that provided for:

• higher penalties for unlawful conduct by building industry participants;
• stronger prosecutorial powers for the inspectorate and its director;
• a broader definition of building work;
• greater scope for injunctions to stop unlawful industrial action;
• stronger anti-coercion measures;
• more effective compulsory information gathering powers; and
• greater independence of the inspectorate.

Other provisions in the Bill that did not exist in previous legislation include:

• extension of the ABCC’s regulation to extend to some offshore construction projects, including resources platforms, and the transport of goods to building projects;
• strict rules around unlawful picketing;
• bolstered rules around taking industrial action that seek to hold unions more accountable for their members’ conduct; and
• a reverse onus of proof applied to some coercive and unlawful activities as well as to individuals seeking to stop work on alleged health and safety grounds.

Security of payments

Amendments that could be made to the Bill in order to assist its passage through the Senate include a Nick Xenophon Team amendment, worked on with Senator Derryn Hinch, that seeks to establish a “Security of Payments Working Group”.

Speaking to the Senate on the evening of 28 November 2016, Senator Nick Xenophon described his vision for the working group:

“It will be made up of employee, employer and contractor representatives. It will be required to meet at least four times a year, and it will monitor the impact that the ABCC has on the conduct and practices of building industry participants in relation to security-of-payments legislation.”

Examination notices

Senator Xenophon said it was also important that the current requirement for Administrative Appeals Tribunal (AAT) oversight of compulsory examination notices be retained.

“It is important that an Administrative Appeals Tribunal presidential member rather than the ABC commissioner will be required to issue the examination notice…,” he said.

Procurement

According to Xenophon, there was also a potential role in procurement for the Building & Construction Industry (Fair & Lawful Building Sites) Code, which would come into effect upon the commencement of the legislation:

“The Building Code can play a powerful role to ensure that procurement is carried out in a way that is fair; that is robust; that takes into account that materials used on building sites with Commonwealth funds comply with the Australian standard, are certified to comply with the Australian standard, are subject to an auditing process – and I suggest that the federal safety commissioner has an important role in respect of that – and that has a consideration and a weighting given in terms of the economic impacts of making a procurement decision in terms of the impact that it has on jobs, the economy and particular industries.”

Reverse onus of proof

An amendment put forward by cross-bench Senators Leyonhjelm, Hinch and Xenophon opposes the Bill’s reverse onus of proof on employees who allege they are taking industrial action based on a reasonable concern about an imminent risk to their health or safety.

Under the Bill as currently drafted, it would be up to employees to prove their motivation for taking the action.

It remains to be seen whether these cross-bench amendments or other proposed amendments to the Bill succeed, and whether the Bill will pass through the parliament in the current sitting.

AREEA’s position:

AREEA has consistently supported the importance of strong, dedicated enforcement of our workplace relations laws in the construction industry. AREEA supported the initial creation of the ABCC as recommended by the Cole Royal Commission, and its important work between 2005 and 2011 to change cultures and practices in Australian construction workplaces.

AREEA strongly opposed the calculated watering down of the ABCC by Labor in 2012, and has been at the forefront of pointing out the inadequacies and failures of the current Fair Work Building and Construction inspectorate, which lacks the powers and penalties to combat unlawful and unacceptable practices on Australian building sites. During this Parliament and the last, AREEA has consistently supported legislation to restore the ABCC.

If and when the Bill passes, AREEA will immediately notify members of its final provisions and schedule a webinar to inform members about the new framework.

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