THE legislation that will change how the building and construction industry is regulated passed through the House of Representatives on 16 February, complete with an amendment tabled by Workplace Relations Minister Bill Shorten.

If it is passed through the upper house as expected, the Building & Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011 will:

• Introduce the ability for an independent assessor to ‘switch off’ the compulsory interview powers currently under s52 of the Building & Construction Industry Improvement Act and soon to be under s45 of the current bill if it passes;

• Require greater authority and oversight for the director of the Fair Work Building Industry Inspectorate (which will replace the Australian Building & Construction Commission) to exercise the compulsory interview powers, including requiring approval for a notice to conduct a compulsory examination from a presidential member of the Administrative Appeals Tribunal;
• Sunset the compulsory examination powers so they will be repealed three years after the legislation takes effect, with a review into their operation to be held before that time to determine if the sunset period should extend;
• Reduce the maximum fines to the same as those for breaching the Fair Work Act 2009, with fines for breaches by individuals dropping from $22,000 to $6,600 per breach and fines for corporations dropping from $110,000 to $33,000 per breach; and
• Narrow the circumstances under which industrial action by building industry participants is considered unprotected by aligning it with the Fair Work Act as it applies to all other industries.

The bill was referred to a Senate inquiry in November 2011, which was due to report in late February. AREEA made a submission to the inquiry opposing the bill in its current form. In particular, AREEA’s submission argued that existing maximum penalties for unlawful behaviour should be maintained as they had acted as a significant deterrent, and that the compulsory information gathering powers should be retained in their entirety and not be sunsetted.

Minister Shorten tables amendment

Minister Shorten on February 16 tabled an amendment to the bill which will stop the new Fair Work Building Industry Inspectorate from being able to prosecute building workers if the other parties to the breach have settled or discontinued matters. This means that if an employer and union or employees reach a settlement in relation to unprotected industrial action, for instance, the industry regulator will not be able to bring separate legal proceedings over that matter.

AREEA maintains there could be all sorts of commercial pressures placed on employers to cause them to settle disputes with unions and employees, but this should have no bearing on whether the industry regulator can pursue a prosecution over the same course of action.

AREEA maintains that the proposed amendment is open to abuse because a union could, for example, exert industrial pressure on an employer to drop legal action in return for the union not making the employer’s industrial situation unbearable. Where the law has been broken, it should be able to take its full course and not be cut short because some of the parties involved have come to a private arrangement.

If the bill passes with the amendment, as it looks set to do, the building industry watchdog will not be able to commence new prosecutions or continue existing prosecutions once the other parties have reached a settlement in relation to a particular course of conduct.

Meanwhile, in a Senate Estimates hearing on 15 February, ABC Commissioner Leigh Johns confirmed the ABCC had pushed ahead with its prosecution of 1,300 workers who took part in unlawful strike action on the Pluto project in January 2010, despite the contractors onsite abandoning their prosecution of workers.

For information about the proposed amendment to the bill, click here.

For more information about the bill, click here.

For more information about the Senate inquiry into the bill, click here.

To view AREEA’s and other submissions to the Senate inquiry, click here.

To view the Senate Estimates transcript, click here.