21 Nov 2013

Something old, something new: Coalition Government to introduce a reinvigorated ABCC

by Saul Harben, Matthew Kelleher

The Coalition Government's revived Australian Building and Construction Commission will have more powers than the first version.

The Federal Coalition Government has delivered on one of its key pre-election promises by introducing the Building and Construction Industry (Improving Productivity) Bill 2013 into Parliament to re-establish the Australian Building and Construction Commission (ABCC) on 14 November 2013.

It is likely, however, that construction companies will have to wait a while yet until they are afforded the added protections provided by the Bill, as it is unlikely to be passed until the Coalition obtains a majority in the Senate on 1 July 2014.

The Bill provides the ABCC Commissioner with additional mechanisms and powers to regulate the building and construction industry, some of which have not existed in legislation previously. Some of the key changes are:

Extended definition of "building work"

The Bill's extended definition of "building work" includes off-site prefabrication of made-to-order components for parts of buildings, structures or works, and the transporting or supplying of goods to be used in building work.

This change is intended to ensure that large resource projects are not indirectly disrupted by co-ordinated go-slows on the supply of materials.

Unlawful action

The most significant new provision in the Bill deals with unlawful picketing. The Bill defines an unlawful picket as action that:

  • has the purpose of preventing or restricting a person from accessing or leaving a building site or ancillary site;
  • directly prevents or restricts a person accessing or leaving a building site or an ancillary site; or
  • would reasonably be expected to intimidate a person from accessing or leaving a building site or an ancillary site; and

that is motivated for the purposes of supporting or advancing claims in respect of the employment of employees or the industrial objectives of a union, or is otherwise unlawful.

Importantly, a reverse onus of proof applies in relation to any alleged unlawful picketing. This means that if it is alleged that a person organised or engaged in an the unlawful action for a particular reason or intent, then it will be presumed that they did so for that reason unless the person proves otherwise.

As under the previous ABCC legislation, unlawful industrial action is prohibited, as are coercion and discrimination.

The Bill expressly provides an avenue for a person to apply for an injunction to stop either unlawful industrial action or unlawful picketing.

Project agreements will be unenforceable under the Bill where the intention is to secure standard employment conditions relating to a particular site covering employees from different enterprises.

Penalties and compensation

The pecuniary penalties for engaging in unlawful action have been increased from those that applied under the ABCC's previous legislation. The maximum penalties for a body corporate (including unions) will be $170,000, and for an individual $34,000.

Under the Bill, as well as seeking penalties and injunctions, the ABCC will also be able to pursue uncapped compensation for damage suffered by a person affected by a contravention.

The Bill reintroduces the legal costs regime which does not apply under the Fair Work Act unless certain criteria are satisfied. The reversion to a costs jurisdiction will enable the ABCC and building industry participants who are successful in bringing proceedings under the new Act to recover their legal costs of doing so.

Offshore construction

The Bill will extend the ABCC's reach to any resources platform in the exclusive economic zone, or in waters above the continental shelf, and to any ship in these areas that is traveling to and from an Australian port.

Importantly, this provides the ABCC with powers to investigate a building work occurring offshore that was previously outside its remit.

Coercive powers

The Bill will reinstate the ABCC's coercive powers and will give it the power to give a person written notice compelling that person to attend examinations or produce documents if the ABCC believes they have information or documents relevant to an investigation, or are capable of giving evidence relevant to such an investigation.

The Government has stated that this power is necessary to ensure that the ABCC is able to carry out its investigations thoroughly and breakdown the "historical and unacceptable 'culture of silence' in the sector."

Further information

Construction company personnel should speak to their key Clayton Utz Workplace Relations, Employment and Safety contact if they have queries about the operation of the Bill and its likely impact on your project.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.