AREEA is working with the Australian Government to ensure the extension of the ABCC to offshore oil and gas construction activities strikes the right balance and is clear in its application and definitions. AREEA’s policy manager Julie Copley provides this update for our members.

ONE of AREEA’s key lobbying priorities has been ensuring the restoration of the ABCC will extend to offshore oil and gas construction activities. We are very pleased to see the recently introduced Building and Construction Industry (Improving Productivity) Bill 2013 (Cth), intends to do just that.

AREEA believes this is a critically important move given around $170 billion of Australia’s resource industry value lies in offshore hydrocarbons projects – projects which are highly exposed to any unlawful union activities in the supply chain or on a construction site.

However, we are currently working hard to get our members’ feedback and to explore all the legal implications to ensure that the proposed legislation will provide an improved workplace relations framework for offshore construction.

The proposed legislation has been introduced into the Federal Parliament and is being examined by the Senate Education and Employment Legislation Committee.
Relevant information about the proposed legislation for all of our members, but particularly those in the offshore sector, is as follows.

Extended Application of the Act to EEZ and Waters Above Continental Shelf

Under s.11(1), the proposed legislation extends to:

1. any resources platform in the EEZ or in the waters above the continental shelf; and
2. any ship in the EEZ or the waters above the continental shelf, that is travelling to or from (or both to and from) an Australian port.

Section 11(2) provides for the application of the proposed legislation in international waters to be extended, but not limited, by way of regulation (see s.120). That is, the proposed legislation doesn’t include provisions equivalent to s.33(3) and (4) of the Fair Work Act 2009 (Cth) (Modifications relating to extended application).

The proposed legislation does not define ship, but it does define “resources platform” as:

An artificial island, installation or structure attached to the seabed for the purpose of exploration for, or exploitation of, resources or for other economic purposes.

Meaning of Building Work
The meaning of ‘building work’ is given under s.6 (1) of the proposed legislation. To the extent relevant to offshore construction, ‘building work’ means the following:

1. construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form part of land, whether temporary or permanent;
2. construction, etc of docks;
3. installation in any building, structure or works of fittings, including heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communication systems;
4. any operation part of, preparatory to, or to complete work in (a) to (c) above; and
5. transporting or supplying goods, to be used in work covered by paragraph (a), (b), (c) or (d), directly to building sites (including any resources platform) where that work is being or may be performed.

However, ‘building work’ does not include:

1. the drilling for, or extraction of, oil or natural gas; or
2. the extraction (whether by underground or surface working) of minerals, including tunnelling or boring, or constructing underground works, for that purpose.

Section 6(2) of the proposed legislation makes it clear that paragraphs (1)(f) and (g) do not prevent the legislation from applying to building work that is performed on land in which there is an interest relating to the mining of oil, gas, or minerals.

Other important sections under ‘meaning of building work’ include:

s. 6(4) Building work includes any activity prescribed by the rules.
s. 6(5) Building work does not include any activity prescribed by the rules.
s. 6(6) In the proposed legislation, land includes land beneath water.

How AREEA is working with our members and the government

On behalf of our membership base and the entire resource industry, AREEA will work closely with the government to ensure that:

• The proposed legislation strikes the right balance;
• It is sufficiently clear in its application to offshore resource activities;
• There are no unintended consequences arising out of the proposed legislation;
• Any amendments necessary to the proposed extended geographical application are made. These may include the application to FLNG, delivery to FPSOs, construction vessels, drill ships or CPS, application in the Joint Petroleum Development Area and to foreign-flagged ships with foreign crews;
• Our members are comfortable with the definition of “building work” and no further amendments are required (considerations may include “transporting or supplying goods” and “directly to building sites [including any resources platform]”); and
• Whether sections allowing for regulatory changes to geographical application and what building work are included/excluded are appropriate and/or adequate.

AREEA will provide our members with more information from the government when it comes to hand, however in the meantime will continue to work towards ensuring the needs of our members are met with this proposed legislation and that clarity is provided on all areas sought.

For more information of to provide your feedback on the offshore application of the ABCC through the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth), contact [email protected]