Your guide to the Australian Building & Construction Commission

Australians will return to the polls on 2 July 2016 after the Senate again refused to pass the bill to re-establish the Australian Building & Construction Commission (ABCC), with the Turnbull Government calling a double dissolution to try and force the issue.

In this article we examine the proposed legislation to re-establish the ABCC and what it means for building industry participants.

What is the ABCC?

The ABCC was originally established by the Howard Government in 2005 as the building industry watchdog, on the recommendation of the Cole Royal Commission which found that unlawfulness on building sites across Australia was hurting the economy.

The agency was abolished in 2012 by the Rudd/Gillard Government, backed by the powerful Construction, Forestry, Mining and Energy Union, and a significantly scaled-back model was introduced under the auspices of Fair Work Building and Construction.

Why the importance of the ABCC?

The ABCC has been centre stage of Australian politics since late 2013 when the (then) Abbott Government sought to re-establish the agency through the introduction of the Building and Construction Industry (Improving Productivity) Bill 2013, and related legislation.

The Government’s stated intention with the Bill is to create a strong watchdog, maintain the rule of law and improve productivity on building sites. The Bill is a central theme in the Coalition’s industrial relations platform, with the Government emphasising the link between the rule of law, productivity and economic growth.

That failed to convince the Senate cross-bench, however, who held the crucial votes needed to pass the Bill (with both Labor and the Greens opposing).

The Turnbull Government ultimately decided to use the Senate’s refusal to pass the bill as a double-dissolution trigger for an election on 2 July 2016, thus linking its political fortunes to the fate of the ABCC.

What are the key features of the new legislation?

The key focus of the Bill is on re-establishing the ABCC and providing the agency with greater powers to address unlawful conduct by building industry participants.

The types of conduct prohibited by the Bill, if passed, will include:

• Unlawful industrial action;
• Unlawful picketing
• Coercion and discrimination.

Many of these offences already exist under the Fair Work Act 2009. The main differences will be that:

• A new statutory offence of “unlawful picketing” will be created. This will cover conduct that has the purpose of preventing or restricting access to or from a building site, or ancillary site, where that conduct is for the purpose of advancing industrial claims, motivated by advancing industrial objectives of the relevant union, or is otherwise unlawful.
• The courts will have an express power to order injunctions to stop unlawful pickets.
• The offences relating to coercion will be expanded to cover superannuation and to make it explicit that action intended to force an employer to enter into an enterprise agreement is unlawful.
• Project specific agreements will be prohibited where the intent is to provide standard terms and conditions to workers across multiple employers outside of the Fair Work Act.
• The ABCC will have powers to compulsory examine people that may have been involved in a contravention, or who could otherwise assist the ABCC in its investigations.
• Significantly higher civil penalties will be introduced for unlawful conduct, ranging from $3,600–$36,000 for an individual, and $36,000–$180,000 for body corporates.

What does the ABCC mean for business?

If the ABCC is re-established, building industry participants can expect greater scrutiny from the ABCC.

The two areas that will have the most impact on businesses in the building industry will be:

• The introduction of an enhanced Building Code, the fate of which is tied to the ABCC. Compliance with the new Building Code will be critical for businesses wishing to tender for Commonwealth-funded building work.
• The new offence of unlawful picketing, which is designed to capture conduct that disrupts the supply of goods, services and labour to building sites. This will apply not only to trade unions, but any person who organises or engages in such conduct and would cover things such as secondary boycotts by suppliers.

To ABCC, or not to ABCC…

The fate of the ABCC ultimately rests with the outcome of the election.

Should the Turnbull Government be returned, we can expect a joint sitting of Parliament to be called relatively quickly, where the Coalition is likely to have the numbers to force the Bill through Parliament.

Until then, we are left to wait until 2 July 2016 to find out whether the ABCC will, or will not, come to life again.

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• Enterprise agreements made on or after 18 May to be assessed for Building Code compliance by FWBC