Notifications to the Australian Building and Construction Commission

By Frazer Moss and Saul Harben.

Key Points:
Building industry participants must notify the Australian Building and Construction Commission when they become involved in certain types of court proceedings touching on unlawful industrial action and breaches of the Act.

Federal workplace relations laws have undergone significant reforms over the last few years. One notable development for the construction industry has been the commencement of the Building and Construction Industry Improvement Act 2005.

Although the Act has been in operation since 12 September 2005, the building industry is still becoming acquainted with it.

In particular, few are aware of, or comply with, section 78 which requires building industry participants to notify the Australian Building and Construction Commission ("ABCC") when they become involved in certain types of court proceedings touching on unlawful industrial action. Failure to comply with this requirement can attract monetary penalties.

The purpose of the notice is, amongst other things, to allow the ABCC to intervene in the public interest in proceedings made under the Act, the Workplace Relations Act or section 34 of the Independent Contractors Act 2006. In exercising this power, the ABCC will be taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.

What proceedings must be notified?

A building industry participant must notify the ABCC, as soon as practicable, of proceedings which concern building work that are commenced in a court under the Act, under the Workplace Relations Act, or in relation to section 34 of the Independent Contractors Act. The relevant types of proceedings are those which relate to:

• engaging in behaviour which is coercion, duress or false and misleading representations about joining a union;
• engaging in behaviour which is coercion, duress, false and misleading representations about entering into an opt-in agreements which enable parties to contract out of certain laws;
• coercing someone to enter, change, end, or prolong a workplace agreement;
• coercing someone to engage or not to engage a particular building contractor;
• coercing someone to employ, or not employ a person as a building employee;
• coercing someone to allocate, or not allocate, particular responsibilities to a building employee or building contractor;
• coercing a building employee to nominate, or a building employer to contribute to a particular superannuation fund;
• discriminating against a contractor because the contractor’s employees are covered or not covered by a particular kind of workplace agreement;
• discrimination between unionists and non-unionist.

Who is a building industry participant?

Building industry participants are defined very broadly. They include building employees; building employers; building contractors; a person who enters a contract with a building contractor to carry out building work or arrange for building work to be carried out; building associations; an officer, delegate or other representative of a building association; and employees of a building association.

What is building work?

The Act contains a broad definition of "building work", including:

• any construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works whether or not they are permanent. This includes any work that is part of, preparatory to, or is for rendering complete this work
• the construction, alteration, extension, restoration, repair, demolition or dismantling of railways (not including rolling stock) or docks. This includes any work that is part of, preparatory to, or is for rendering complete this work
• the installation in any building, structure or works of fittings forming, or to form, part of land, including heating, lighting, air conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems. This includes any work that is part of, preparatory to, or is for rendering complete this work:
• site clearance, earth moving, excavation, tunnelling and boring
• the laying of foundations
• the erection, maintenance or dismantling of scaffolding
• the prefabrication of made-to-order components to form part of any building, structure or works, whether carried out onsite or offsite
• site restoration, landscaping and the provision of roadways and other access works; or
• any work that consists of, or includes, the construction of a multi-dwelling development (at least five single-dwelling houses).

Mining work and most domestic building work are excluded.

What information must be given to the ABCC in the notice?

There is no standard form of notice. A notice must however include the parties to the action, contact details for each of the parties, the relevant legislation and provision pursuant to which an application has been made, and the jurisdiction in which the application has been made.

At the end of the proceedings it is compulsory to notify the ABCC of the outcome.

For further information, please contact Frazer Moss and Saul Harben.