Background to the Inquiry
On 4 December 2013 the Senate referred the Government’s
approach to re-establishing the Australian Building and Construction Commission
for inquiry and report by the last sitting day in March 2014 (27 March 2014).
The committee agreed that submissions should be received by 10 February 2014.
The terms of reference for the inquiry are:
Government's approach to re-establishing the Australian Building and
Construction Commission through the Building and Construction Industry
(Improving Productivity) Bill 2013 and related bills, with particular reference
- the potential impact of the re-establishment of the
Australian Building and Construction Commission on the building and
- the need or otherwise for a specialist industrial
regulator in the building and construction industry;
- the potential impact of the bills on productivity in
the building and construction industry;
- whether the bills are consistent with Australia's
obligations under international law;
- the potential impact of the bills on employees,
employers, employer bodies, trade and labour councils, unions and union
- the extreme and heavy-handed proposed powers of the
Australian Building and Construction Commission, including coercive powers,
conduct of compulsory interviews, and imprisonment for those who do not
- the provisions of the bills relating to requirements
to provide information to the Australian Building and Construction Commission
during interviews including provisions that interviewees have no right to
- the provisions of the bills that introduce the law of
conspiracy into the industrial regulation of the building and construction
whether the provisions of the
bills relating to occupational health and safety in the building and
construction industry are adequate to protect the health and safety of
employees and contractors in the industry; and
any other related matter.
The referral was immediately preceded by an inquiry by the Senate
Education and Employment Legislation Committee into the bill itself. In
its report tabled on 2 December 2013 that committee recommended that the
bill be passed.
Prior to the committee's inquiry into the Building and Construction Industry
(Improving Productivity) Bill 2013 the committee had considered much of the
subject matter through a number of inquiries and reports into various
legislative instruments concerning workplace regulation within the construction
The Building and Construction Industry (Improving Productivity) Bill
2013 currently under consideration would replace the Office of the Fair Work
Building Industry Inspectorate with the re-established Australian Building and
Construction Commission. The bill governs the appointments and functions of the
Commission as well as those of the Office of the Federal Safety Commissioner.
The Australian Building and Construction Commission was abolished in
2012 under the Building and Construction Industry Improvement Amendment
(Transition to Fair Work) Act 2012 (The current Act). The committee
considered that bill in its report of February 2012.
In 2003 the government introduced the Building and Construction Industry
Improvement Bill 2003. This bill lapsed in the Senate when Parliament was
prorogued in 2004. Nevertheless, the committee produced a report in June 2004
covering the 2003 bill and related matters.
In 2005 the Building and Construction Industry Improvement Bill 2005 was
introduced and passed. The committee inquired into the 2005 bill and tabled a
report in May of that year. Senator Siewert introduced the Building and
Construction Industry (Restoring Workplace Rights) Bill 2008. The committee
inquired into and reported on this bill in November 2008.
On 17 June 2009 the government introduced the Building and Construction
Industry Improvement Amendment (Transition to Fair Work) Bill 2009. The Senate
referred the provisions of the bill to the committee. The bill lapsed when
Parliament was prorogued on 19 July 2010. The committee inquired and presented
a report in September 2009.
Purpose of the Bill
The bill re-establishes the Australian Building and Construction
Industry Commission (ABCC) that was abolished under the 2012 Act and replaced
by the Office of Fair Work Building Industry Inspectorate (FWBII). The bill
proposes that the FWBII would continue in existence under the name of the ABCC.
Chapter 2 would also regulate the appointment and functions of the Australian
Building and Construction Industry Commissioner (ABC Commissioner).
The bill would provide powers to either the Minister or to the ABC
Commissioner and staff to:
issue a Building Code which includes providing the ABC
Commissioner with the power to require a person to report on his or her
compliance with the Code;
prohibit unlawful industrial action if the action has a
connection to a constitutionally-covered entity;
prohibit coercion of persons in relation to the engagement of
contractors and employees or choice of superannuation fund;
prohibit coercion or undue pressure on persons in relation to
Commonwealth industrial instruments; and
The bill also includes enforcement provisions and deals with
The Building Code
Chapter 3 of the bill would provide the Minister with the power to issue
a Building Code. The current Building Code was issued by Legislative Instrument
under the Fair Work (Building Industry) Act 2012 and commenced on 1
February 2013. While the Minister had the power to issue a Building Code under
the Building and Construction Industry Improvement Act 2005(Superseded)
this was never exercised.
This bill adds a provision that building industry participants may be
directed to report to the ABC Commissioner on their compliance with the Code.
Unlawful Industrial Action
Chapter 5 of the bill prohibits unlawful industrial action. Unlawful
industrial action includes bans on working, employees failing to attend work
and employers locking out employees.
This Chapter would apply only if the unlawful action or unlawful picket has a
connection to a constitutionally-covered entity. Any person would be able to
apply for an injunction to restrain a person from organising or engaging in
unlawful industrial action or an unlawful picket in relation to building work.
The bill also states that the provisions in Part 3-3 of the Fair Work
Act 2009 relating to strike pay would also apply in relation to unlawful
Coercion, discrimination and unenforceable agreements
Chapter 6 would prohibit action that:
intends to coerce a person to employ or engage individual
employees or independent contractors;
intends to coerce a person to assign particular duties or
responsibilities to people or contractors;
intends to make an employee or employer nominate a particular
In addition, the chapter proposes to ban actions that intend to coerce
or apply undue pressure to make, vary or terminate enterprise agreements.
Part 3 of Chapter 6 would make an agreement unenforceable if the agreement
is entered into with the intention to secure standard employment conditions for
building employees at a particular site and not all the employees are employed
in a single enterprise.
The powers to obtain information in relation to an investigation of a
suspected contravention of the bill or a designated building law are set out in
Chapter 7. The bill would give the ABC Commissioner the power to issue an
examination notice to a person directing them to provide documents or information
relevant to the investigation. The person would have 14 days to comply.
These powers were first introduced in the Building and Construction
Industry Improvement Bill 2005. The powers were retained in the Building and
Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012
but with a requirement to notify the Commonwealth Ombudsman of the issue of an
examination notice. This provision has been retained in the bill.
Compatibility with human rights
The explanatory memorandum states that the Building and Construction Industry
(Improving Productivity) Bill 2013 is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in the Human
Rights (Parliamentary Scrutiny) Act 2011.
A number of human rights are engaged by the bill, including: the right to
freedom of association, the right to just and favourable conditions of work, the
right to a fair trial, the right to peaceful assembly, the right to freedom of expression,
and the right to privacy and reputation. The explanatory memorandum submits that
the measures contained in the bill are reasonable and proportionate.
The Parliamentary Joint Committee on Human Rights (PJCHR) considered the
bill in its report of 10 December 2013. Analysis of the PJCHR's findings,
including consideration of the various rights engaged by the bills is discussed
in Chapter 3.
The committee thanks those individuals and organisations who contributed
to the inquiry by preparing written submissions and giving evidence at the
Notes on references
References in this report to the Hansard for the public hearing are to
the Proof Hansard. Please note that page numbers may vary between the proof and
the official transcripts.
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