Bills Digest no. 100 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Jaan Murphy
Law and Bills Digest Section
16 March 2016
This Bills Digest revises an earlier
version dated 23 January 2014, to update the background to the Bills to reflect
developments since their previous introduction in 2013, including the
conclusion of the Royal Commission into Trade Union Governance and Corruption.
Contents
Purpose
of the Bill
Structure of the Bill
Background
Current committee consideration
Previous committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Appendix A
Appendix B
Appendix C
Appendix D
Date introduced: 2
February 2016
House: House of
Representatives
Portfolio: Employment
Commencement: Sections
1 and 2 of the main Bill commence on Royal Assent; all other provisions
commence on the day after Royal Assent. Sections 1 to 3 of the Transitional
Bill commence on Royal Assent; all other provisions are tied to the
commencement of the main Bill.
Links: The links to the Bills,
their Explanatory Memoranda and second reading speeches can be found on the
Bills’ home pages for the Building
and Construction Industry (Improving Productivity) Bill 2013 [No. 2] and
the Building
and Construction Industry (Consequential and Transitional Provisions) Bill 2013
[No. 2] or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
March 2016.
The purpose of the Building and Construction Industry
(Improving Productivity) Bill 2013 [No. 2] (the Bill) is to re-institute a
separate workplace relations framework for the building industry based largely
on the Building and Construction Industry Improvement Act 2005 (the BCII
Act). Among other things the Bill re-establishes the Australian Building
and Construction Commission (ABCC), reintroduces provisions dealing with
unlawful industrial action, coercion and the associated civil penalties
specific to the building industry, and broadens the application of those provisions
to include transporting and supplying of goods to be used in building work.
The purpose of the Building and Construction
Industry (Consequential and Transitional Provisions) Bill 2013 [No. 2]
(the Transitional Bill) is to wholly repeal the Fair Work (Building
Industry) Act 2012 (FWBI Act),[1]
to make necessary amendments to other Acts and to provide for
the transition to the new arrangements.
Identical versions of these Bills were
introduced into the Parliament on 14 November 2013.[2] As the Bills were negatived
at the second reading stage by the Senate on 17 August 2015, they are a double
dissolution trigger.[3]
The Bill contains nine chapters.
- Chapter 1 contains preliminary material, including
definitions which extend the scope of building and construction regulation
- Chapter 2 establishes the ABCC and the position of the
ABCC Commissioner (the Commissioner)[4]
- Chapter 3 provides the Minister with the power to issue a
Building Code
- Chapter 4 establishes the Federal Safety Commissioner
- Chapter 5 deals with unlawful action, including a new
offence of unlawful picketing
- Chapter 6 deals with coercion, discrimination and
unenforceable agreements
- Chapter 7 deals with powers of the Commissioner and other
authorised officers to obtain information
- Chapter 8 deals with enforcement and
- Chapter 9 contains miscellaneous provisions, including
provisions to do with handling of information, powers of the Commissioner, and
courts.
The Transitional Bill contains two Schedules. Schedule
1 contains consequential provisions and repeals the FWBI Act. Schedule
2 contains transitional provisions.
Readers are referred to pages 3 of
8 of Bills
Digest No. 34, 2013–14, which provides background to the Cole Royal
Commission, BCII Act, Wilcox Report, FWBI Act and Building Code.[5]
As this is a revised version of that Digest, it only examines the
recommendations made by the Royal Commission into Trade Union Governance and
Corruption (the RCTUGC) and the Productivity Commission’s Report on Australia’s
workplace relations framework (PC Report) that are relevant to the Bill, as
well as providing updated statistics in relation to industrial disputation and
workplace injuries and deaths.
The PC Report did not examine the need for a separate
industry-specific regulator for the building and construction industry.
However, the PC Report did note, in relation to secondary boycotts[6]:
... there are strong perceptions in sections of the business
community, particularly in the construction sector, that there is
inadequate enforcement of secondary boycott provisions.[7]
(emphasis added)
The PC Report also noted that complaints received by the
Australian Competition and Consumer Commission (ACCC) ‘about secondary boycotts
appear to centre largely on the construction industry’, but noted that even if
such complaints are ‘indicative of a localised (even if serious) problem, the
solution may not lie in a change across the full gamut of [workplace relations]
WR or competition law’. Instead the Productivity Commission suggested that the
following was a possible solution to the frequency of secondary boycott
complaints in the building and construction industry:
It is possible that the powers of Fair Work Building and
Construction (FWBC) to compel witnesses to provide evidence could be applied, by
giving FWBC shared jurisdiction with the ACCC to investigate secondary boycotts
within the construction industry. Having obtained evidence, the ACCC
would then be able to take action. A similar approach was also
recommended in submissions to the Royal Commission into Trade Union Governance
and Corruption, and was supported by several inquiry participants.
An advantage of this approach is that parties or activities
that are potentially in breach of the secondary boycott prohibitions can also
be the subject of other concurrent investigations by FWBC into potential
breaches of WR laws. It would leave intact the general responsibility of
dealing with secondary boycotts via the appropriate mechanism, but address the
core issue — obtaining evidence — via another mechanism.[8]
(emphasis added, footnotes omitted)
Ultimately the PC Report recommended:
The Australian Government should grant Fair Work Building and
Construction shared jurisdiction with the Australian Competition and Consumer
Commission to investigate and enforce the secondary boycott prohibitions of the
Competition and Consumer Act 2010 (Cth) in the building and construction
industry.[9]
The Bill, as currently drafted, does not propose
amendments reflecting the above recommendation. Whether the Government will
seek to move amendments to give effect to the above recommendation during the
passage of the Bill through the Parliament remains to be seen.
Whilst the Competition Policy Review Report (the Harper
Review) did not examine the conduct of the building and construction industry
in detail, it did note that:
Some industry organisations, especially in building,
construction and mining, believe that public enforcement of the secondary
boycott provisions is inadequate, a point emphasised in the Interim Report of
the Royal Commission into Trade Union Governance and Corruption. Timely and
effective public enforcement serves as a deterrent to boycott activity and
needs to exist both in regulatory culture and capability. The Panel believes
that the ACCC should pursue secondary boycott cases with increased vigour,
comparable to that which it applies in pursuing other contraventions of the
competition law.[10]
The Harper Review noted that some submissions had argued
that due to the degree of concerns in the construction industry, and the perceived
complexity of the issues surrounding enforcing existing secondary boycott laws,
a shared jurisdiction in relation to secondary boycotts between the ACCC and
any Australian Building and Construction Commission-type body (should one be
re-established) was warranted.[11]
The Harper Review recommended that the maximum penalty
level for secondary boycotts should be increased from its current level of
$750,000 to the same as that applying to other breaches of the competition law
($10 million) and that ‘the ACCC should pursue secondary boycott cases with
increased vigour, comparable to that which it applies in pursuing other contraventions
of the competition law’.[12]
Whilst the Bill does not directly deal with the issues of
secondary boycotts, it does contain a provision that could arguably be used to
combat some type of secondary boycotts. This issue is examined below under the
heading ‘Expanded coverage of the Bill’.
In February 2014, the then Prime Minister, Tony Abbott,
announced that he would be:
... recommending to the Governor-General, Her Excellency Ms
Quentin Bryce AC CVO, the establishment of a Royal Commission to inquire into
alleged financial irregularities associated with the affairs of trade unions.[13]
In March 2014, the Governor-General issued Letters Patent
to establish the RCTUGC with the terms of reference outlined by the then Prime
Minister in February 2014, and appointed Dyson Heydon as Royal Commissioner.[14]
Relevantly to the Bill, the terms of reference included examining the:
... activities relating to the establishment and operation of...
the Australian Workers Union... the Construction, Forestry Mining and Energy
Union... the Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia...[15]
As a result of that (and other) aspects of the terms of
reference, the RCTUGC was authorised to closely examine conduct of key building
and construction industry participants. As a result of those inquiries, the
RCTUGC made a number of recommendations in relation to the regulation of the
building and construction industry.[16]
The table in Appendix C outlines the relevant recommendations made by
the RCTUGC and whether the Bill, as drafted, would fulfil those
recommendations. They are also examined below in the ‘Key issues and provisions’ section of this digest.
Days lost to industrial disputes per 1,000 workers in the
construction industry are shown in Figure 1. Interpreting the picture is not
simple.
First, there was no dramatic decline from the time when
the Building Industry Task Force, which had many of the functions of the ABCC,
began operations in 2002. Second, there have been many more days lost to
industrial disputes in the last few years, since the former Labor Government
began the changes to regulation. However, the peaks in the data appear to
correspond to serious disputes in Victoria, which were a result of a
tightening, not a loosening, of regulation. In addition, a significant
reduction in days lost to industrial disputes per 1,000 workers in the
construction industry is evident from late 2012 onwards. Indeed, the rate of
disputation appears to now be approaching a similar rate to that recorded in
2006–2008 (broadly reflecting when the ABCC operated). Moreover, whilst higher
overall, the overall trends in the figures for industrial disputes in the
construction industry are nonetheless roughly similar to those for the economy
as a whole.
Figure 1: Comparison of working days lost per 1,000
employees, construction and other industries
Source: Australian Bureau of Statistics (ABS), Industrial
disputes, Australia, various issues, cat. no. 6321.0.55.001.
It has been claimed that the ABCC resulted in an increase
in the number of injuries and deaths in the construction industry. For example,
David Noonan of the CFMEU said:
The biggest issue facing construction workers is poor
workplace safety. The ABCC of course does not regulate safety, but those state
and federal bodies that do are underresourced compared to the ABCC. The last
time we saw the ABCC in place, safety suffered—it went downhill and fatalities
increased in the construction industry.[17]
Professor David Peetz wrote:
There were 36 fatalities in the construction
industry in 2007–08, twice as many as in 2004–05, immediately before the ABCC
commenced operations in late 2005. Under the ABCC, construction became the
industry with the highest number of deaths. As observance with occupational
safety tends to be lower where unions are weaker, this trend is not surprising.[18]
There does seem to have been an increase
in the rate of deaths in the years of the ABCC, and a reduction in recent
years:
Table 1: Fatality rate, construction and all industries,
Australia
|
Fatality rate
(deaths per 100,000 workers)
|
|
Industry of employer
|
2003
|
2004
|
2005
|
2006
|
2007
|
2008
|
2009
|
2010
|
2011
|
2012
|
2013
|
2014
|
|
Construction
|
5.8
|
4.4
|
3.6
|
4.8
|
4.8
|
3.9
|
3.7
|
4.1
|
4.0
|
3.1
|
2.2
|
3.0
|
|
All industries
|
2.8
|
3.0
|
2.6
|
2.8
|
3.0
|
2.6
|
2.4
|
2.1
|
2.0
|
2.0
|
1.7
|
1.6
|
Source: Safe Work Australia, Work
related traumatic injury fatalities, Australia, 2014, Figure 5.[19]
The Bills have been referred to the Senate Education and
Employment Legislation Committee for inquiry and report by 15 March 2016.
Details of the inquiry are at the
inquiry web page.[20]
The Senate Standing Committee for the Scrutiny of Bills
considered the Bills in Alert Digest No. 2 of 2016.[21]
The Committee restated its comments about the Bills made in 2013 (discussed
below).
As identical versions of the Bills were introduced into the
Parliament in 2013, previous consideration by various Committees is noted
below.
The 2013 Bills were
referred to the Senate Education and Economics Legislation Committee
(Legislation Committee) for inquiry and report by 2 December 2013. Details
of the inquiry are at the inquiry
web page.[22]
The Legislation Committee’s report recommended that the Bills be passed.[23]
In its concluding remarks it stated:
The building and construction industry is an important sector
of the Australian economy. Throughout this inquiry the committee has been
presented with evidence of increased illegality and disregard for the rule of
law in the building and construction industry. It is of the utmost importance
that this sector is able to flourish and is not hampered by illegality and a
culture of intimidation as evidenced in the inquiry. The committee is also
persuaded by evidence that productivity in the sector has declined since the
ABCC was abolished by the former government. An independent, empowered,
and properly resourced regulator is necessary.[24]
In a dissenting report, Labor Senators strongly recommended
that the Bills not be passed:
The urgency to re-enact the Australian Building and
Construction Committee [sic] is not based on genuine requirement for urgent
workplace reform, but on political motivation following the change of
government. Labor senators feel strongly that the Bills are being rushed
unnecessarily through the Parliament.[25]
In a further dissenting report, Australian Greens Senators
also recommended that the Bills not be passed:
The ABCC was biased in its work as it was driven by an ideological
attack on construction workers and unions. Further, in recent years Australia’s
construction industry laws have been condemned by the International Labour
Organisation six times. For these reasons the Australian Greens reject the Bills
in their entirety.[26]
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny
Committee) raised a large number of concerns about the 2013 Bills.[27]
The Minister responded to those concerns in January 2014.[28]
The Scrutiny Committee noted that the effect of item 2 of
Schedule 1 of the Transitional Bill is that decisions made under the Building
and Construction Industry (Improving Productivity) Act 2013 will be
excluded from the application of the Administrative Decisions (Judicial
Review) Act 1977 (ADJR Act). While this is similar to provisions in
the FWBI Act and the Fair Work Act 2009 (FWA), the Scrutiny
Committee notes that the Administrative Review Council concluded that the
current exemption of ABCC decisions from the application of the ADJR Act
should be removed.[29]
After reviewing the Minister’s response, the Scrutiny Committee noted that it
remained ‘concerned about the exclusion of review under the ADJR Act’
but left the ‘question of whether the proposed approach is appropriate to the
Senate as a whole’.[30]
The Scrutiny Committee expressed concern about the number of
instances of the delegation of legislative power in the Bill.[31]
Clause 120 of the Bill allows the Minister to make rules
by legislative instrument. Clause 5 of the Bill includes a definition of
‘authorised applicant’, which is a person who is entitled to seek an order
relating to a contravention of a civil remedy provision. The definition allows
the rules to determine that someone is an authorised applicant, and the Scrutiny
Committee commented that it was not clear why this should be left to
regulation—or indeed why persons other than the Commissioner or persons
affected would need to be authorised. Similarly, the Commissioner has a broad
power of delegation to ‘a person...prescribed by the rules’ (paragraph
19(1)(d)) and the Federal Safety Commissioner has a similar power under paragraph
40(1)(c). After reviewing the Minister’s response, the Scrutiny Committee
requested that the key information provided by the Minister be included in the Explanatory
Memorandum, but noted that it left the ‘question of whether the proposed
approach is appropriate to the Senate as a whole’.[32]
The Scrutiny Committee questioned the provision in subclause
6(4) that allows the rules to prescribe what is ‘building work’, given that
this could extend the coverage of the Bill. Subclause 11(2) would
similarly allow the rules to extend the application of the Act in relation to
the exclusive economic zone and waters above the continental shelf. After
reviewing the Minister’s response, the Scrutiny Committee requested that the
key information provided by the Minister be included in the Explanatory Memorandum,
but noted that it left the ‘question of whether the proposed approach is
appropriate to the Senate as a whole’.[33]
Clause 43 provides that a Work Health and Safety
Accreditation Scheme may be established under the rules. The Scrutiny Committee
stated that too little detail was set out in the Bill, and the Explanatory Memorandum
did not explain why it is appropriate for the Scheme to be established in this
way.[34]
After reviewing the Minister’s response, the Scrutiny Committee requested that
the key information provided by the Minister be included in the Explanatory Memorandum,
but noted that it left the ‘question of whether the proposed approach is
appropriate to the Senate as a whole’.[35]
Paragraph 70(1)(c) provides that the purposes for
which an inspector may exercise compliance powers include ‘purposes of a provision
of the rules that confer functions or powers on inspectors’. The Scrutiny Committee
considered that the scope of application of the coercive powers should be
specified within the primary legislation.[36]
After reviewing the Minister’s response, the Scrutiny Committee requested that
the key information provided by the Minister be included in the Explanatory Memorandum,
but noted that it left the ‘question of whether the proposed approach is
appropriate to the Senate as a whole’.[37]
The Scrutiny Committee raised a number of concerns about
trespass on personal rights and liberties. First, there are several instances
of the imposition of a reverse onus of proof in the Bill. For example, action
taken by an employee based on health and safety concerns may not be regarded as
‘industrial action’, but the burden of proof is on the employee to prove that
the action was based on the employee’s reasonable concern about an imminent
risk to his or her health and safety and that he or she did not unreasonably
fail to perform other available work (paragraph 7(2)(c) and subclause 7(4)).
The Scrutiny Committee noted that equivalent provision in the FWA which
excludes certain action taken for health and safety reasons from the definition
of industrial action (paragraph 19(2)(c) of the FWA) does not reverse
the onus of proof.[38]
In civil proceedings under clause 57 to do with unlawful picketing,
the person has to establish that their actions were not unlawful.[39]
Similarly, if a person wishes to rely on an exception or excuse in civil
proceedings, under clause 93 they bear the burden of proof.[40]
In relation to paragraph 7(2)(c), subclause 7(4), and clause
57 the Scrutiny Committee requested that the key information provided by
the Minister be included in the Explanatory Memorandum, but noted that it left
the ‘question of whether the proposed approach is appropriate to the Senate as
a whole’.[41]
In relation to clause 93, the Scrutiny Committee thanked the
Minister for his response, indicating that its concerns had been addressed.[42]
The Scrutiny Committee’s other concerns about personal
rights and liberties included that clause 72 provides for authorised
officers to enter premises (including residential premises in some cases)
without a warrant.[43]
The Scrutiny Committee noted that in general entry should be by consent or
under a warrant, and that the explanatory materials did not contain a
compelling explanation for a departure from this principle.[44]
After reviewing the Minister’s response, the Scrutiny Committee noted that it:
... retains its concern about these entry powers. The Minister
emphasises the importance of the efficient and effective resolution of
investigations and claims to justify entry without consent or warrant. It is
not clear to the committee why these concerns are of greater relevance in the
industrial relations context than other regulatory contexts in which these
powers are not available. As such, the committee is not persuaded that a
compelling justification has been established for the proposed powers.[45]
The Scrutiny Committee requested further advice from the
Minister ‘as to whether consideration has been given, or can be given, to
establishing a requirement for reporting to Parliament on the exercise of these
powers’.[46]
After considering the Minister’s further response, the Scrutiny Committee noted
that whilst the provisions are ‘primarily based on existing and previous
provisions’:
...this does not, of itself, address the committee's scrutiny
concerns. The committee does not consider that the requirements of
investigative efficiency or the resource implications of obtaining warrants
provide sufficiently compelling justification for the use of such coercive
powers.[47]
The Scrutiny Committee noted that it left the ‘question of
whether the proposed approach is appropriate to the Senate as a whole’.[48]
The Scrutiny Committee noted that subclauses 76(4), 77(4)
and 99(8) provide that civil penalties for failure to comply with
requests for information do not apply if the person has a reasonable excuse,
but that there is no guidance as to what is a reasonable excuse.[49]
The Scrutiny Committee noted that the examination powers (clause 61) may
trespass on the right to privacy, but that there is a justification for, and
some safeguards around, the use of the power.[50]
After reviewing the Minister’s responses in relation to the above, the Scrutiny
Committee requested that the key information provided by the Minister be
included in the Explanatory Memorandum, but noted that it left the ‘question of
whether the proposed approach is appropriate to the Senate as a whole’.[51]
The Scrutiny Committee observed that subclause 120(3)
would enable certain rules (made for the purposes of subclauses 6(4), 6(5)
or 10(2)) to take effect from the commencement of the subsection if the
rules were made within 120 days. This would mean that the rules could operate
retrospectively.[52]
After reviewing the Minister’s responses in relation to the above, the Scrutiny
Committee requested that the key information provided by the Minister be
included in the Explanatory Memorandum, but noted that it left the ‘question of
whether the proposed approach is appropriate to the Senate as a whole’.[53]The
Scrutiny Committee raised the question of whether the provision in clause 86
that the rules of evidence and procedure for civil matters (and not those for
criminal matters) apply in relation to the civil remedy provisions is
consistent with rights associated with a fair trial, but stated that it would
wait for any views that may be expressed by the Parliamentary Joint Committee
on Human Rights (PJCHR). The PJCHR views on that issue are examined below.[54]
The Scrutiny Committee noted that the Bills confer broad
powers which in some cases are not sufficiently defined. These include the
power of the Minister to appoint a Commissioner who has ‘suitable
qualifications or experience’ and is of ‘good character’ (subclause 21(3));
the power of the Commissioner to appoint as an Australian Building and
Construction Inspector a ‘consultant’ (paragraph 66(1)(c)) who has
‘suitable qualifications and experience’ to be a consultant (clause 32);
and the similar power of the Federal Safety Commissioner (subclause 68(1)(c)).
The Scrutiny Committee also noted that clause 28 does not require the
Minister to provide reasons when terminating the appointment of a Commissioner.[55]
In relation to the appointment of the Commissioner (subclause
21(3)) the Scrutiny Committee noted the Minister’s response that ‘the
appointment of a person as ABC Commissioner is subject to the Australian
Government Merit and Transparency Policy administered by the Australian Public
Service Commission’.[56]
In relation to paragraphs 66(1)(c) and 68(1)(c) (appointing
consultants as ABC Inspectors and Federal Safety Officers respectively) and clause
28 (merits review of reasons for terminating the appointment of a
Commissioner), the Scrutiny Committee requested that the key information
provided by the Minister be included in the Explanatory Memorandum, but noted
that it left the ‘question of whether the proposed approach is appropriate to
the Senate as a whole’.[57]
The Scrutiny Committee raised concerns about the level of
penalties in clause 49 and clause 81, noting in particular the
great differences between them and similar penalties in other Commonwealth
legislation, including the FWA.[58]
After reviewing the Minister’s response, the Scrutiny Committee requested that
the key information provided by the Minister be included in the Explanatory Memorandum,
but noted that it left the ‘question of whether the proposed approach is
appropriate to the Senate as a whole’.[59]
Finally, the Scrutiny Committee noted that the original Explanatory
Memorandum was ‘regrettably brief and uninformative’.[60]
The Scrutiny Committee’s recommendations for additional material to be included
in the Explanatory Memorandum have not been acted upon, as the Explanatory
Memorandum for the current Bills is in the same terms as the original
Explanatory Memorandum.
On 4 December 2013 the Senate referred the
Government’s approach to re-establishing the ABCC to the Senate Education and Economics References Committee (References
Committee) for inquiry and report by 27 March 2014. Details of the inquiry and
the Reference Committee’s report are available at the inquiry web page.[61]
The References Committee’s report recommended that the Bills not
be passed.[62]
It concluded that:
... in view of the failure of the government and
proponents of the re-establishment of the ABCC to:
• Establish an economic or productivity case
for the ABCC;
• Address the very serious incursions on human
rights in the bills;
• Establish the uniqueness of the building and
construction industry sufficient to warrant draconian powers and penalties;
• Establish that the coercive powers proposed
for the ABCC are subject to sufficient oversight and safeguards;
• Establish that the ABCC would improve
occupational health and safety in the building and construction industry;
the Senate not support the re-establishment of
the Australian Building and Construction Commission and accordingly, not pass
the Building and Construction Industry (Improving Productivity) Bill 2013 and
related bill.[63]
In a dissenting report, Coalition Senators strongly criticised
the Reference Committee’s Inquiry into the Bills, stating that it was:
...at best been an abuse of process and at worst a meaningless
exercise, given that the same witnesses did or could have appeared at the
Legislation Committee inquiry.[64]
The dissenting Coalition Senators noted that they stood ‘by
the Legislation Committee’s report and recommendations of December 2013’, and
therefore recommend that the Bills be passed.[65]
The Opposition, in the Second Reading Debate in the House
of Representatives when the Bills were first introduced in 2013, opposed the
legislation.[66]
During that debate, the Shadow Minister for Employment and Workplace Relations,
Mr Brendan O’Connor argued that the performance of Fair Work Building and
Construction (FWBC) had in fact been superior to the ABCC’s in terms of
productivity and industrial disputation.[67]
During the recent Second Reading Debate in the House of
Representatives that followed the reintroduction of the Bills, Mr O’Connor
described the proposed powers of the ABCC as ‘extreme,
unnecessary and undemocratic’ and claimed that they compromise civil liberties.[68] He also noted the
Government’s reliance on the Cole Commission, which was initiated on
allegations of lawlessness but did not lead to ‘one single criminal
prosecution, let alone any finding of guilt’.[69]
The Australian Greens, in the dissenting report on the
Senate Education and Economics Committee inquiry, as noted above, recommended
that the Bills not be passed. Mr Adam Bandt of the Greens has said of the Bills:
This is the curtain-raiser to the
government’s return to Work Choices. They want to wind up on the unions and
then they will come after the people’s rights at work. We won’t be part of it.[70]
In the recent Second Reading Debate in the House of
Representatives, Mr Bandt opposed the Bill and instead advocated for the
establishment of a broad-based ‘national anticorruption watchdog’.[71]
Senator Xenophon voted for the second reading stage of the original
Bills in the Senate in 2015, but reserved his ‘position on the third reading’.[72]
During his contribution, Senator Xenophon noted:
- there
is a need for ‘tougher laws in place when it comes to workplace safety’ and that
‘insofar as unions require a right of entry for the purpose of safety issues,
then I think that is quite fundamental and ought not to be derogated from’
- that
the concerns raised through the RCTUGC and the Boral court case could
not be ignored[73]
and
- that
he had ‘supported, unambiguously, the need to give the fair work building
inspectorate the coercive powers to call in witnesses just as the ACCC, ASIC
and other key regulators have’ as ‘without those powers, you will not get in my
view some witnesses coming forward’.[74]
However, Senator Xenophon also posed the question: ‘are
the measures in these Bills fair and proportionate to the issues that they are
trying to address?’ and suggested that as there may be ‘legitimate concerns in
other sectors’, there could be potential ‘benefit from the oversight provisions
in these Bills’ being extended more broadly.[75]
Ultimately, Senator Xenophon concluded that:
At the end of the day—and I emphasise this—I want there to be
a strong building and construction industry in this country. Building and
construction can provide a real antidote to the job losses we are expecting in
manufacturing. Having people working in a safe, working environment on good
incomes is absolutely fundamental. My concern is that there needs to be some
reform to help facilitate that. The issue is: to what extent do you go in this
legislation? I think it is worth having this Bill go into committee for further
negotiations in respect of this.[76]
Senator Jacqui Lambie opposed the original Bill, stating
that ‘the intent of this Bill is to target and punish unions and organised
labour groups, while neglecting to impose the same set of rules and standards
on corporate Australia.’[77]
Senator Lambie, like a number of other independents and the Greens, also
referred to the idea of establishing a broad-based anticorruption ‘watchdog’:
I believe that an equitable solution to corruption in the
workplace and broader Australian society is the establishment of a permanent
corruption watchdog whose star chamber powers will apply to bankers and union
members equally. They must be applied equally. Combine that body with reformed
world's best whistleblower or public interest disclosure laws that protect,
encourage and reward genuine whistleblowers to come forward and then corruption
in the workplace, corruption in government departments, corruption in the board
rooms and corruption in political parties will be properly addressed.[78]
Senator Lambie concluded that she would oppose the Bill
because:
In the rush to achieve a quick outcome or get an easy
conviction through bypassing the existing system of law and order, Australia
runs the risk of damaging fundamental human and civil rights—building blocks of
our nation.[79]
It is not immediately apparent if Senator Lambie’s
position described above has changed since the Bill was last debated, however
the Senator voted in favour of Construction Industry Amendment (Protecting
Witnesses) Bill 2015, which amended the FWBI Act to extend the period of
time during which the Director of the FWBI could use its coercive investigatory
powers (which were subject to a ‘sunset’ clause) by two years, until 1 June
2017, possibly indicating support for some of the measures contained in the
Bill.[80]
Senator Madigan opposed the original Bill, stating ‘I oppose
this Bill today because I believe in equality before the law’.[81]
Senator Madigan also indicated support for establishing a broad-based
anticorruption ‘watchdog’, stating:
I want a body which deals with corruption, but not one which
discriminates and only targets workers in one industry. Singling out the
construction industry in this case reeks of political opportunism and does not
address the issues we are facing more broadly... If the measures introduced in
this Bill are necessary then they should be introduced across the board. Not
just unions, but all corporations, government bodies and individuals should
face the same level of scrutiny as this Bill would place on the construction
industry. I would support that 100 per cent.[82]
However, the Senator also expressed the view that ‘the
measures proposed in this bill are draconian and would not be accepted if
applied universally’.[83]
The above would suggest that the Senator is unlikely to support the Bill.
Senator Bob Day supported the original Bill, noting that ‘we
are having this debate about reinstating the Australian Building and
Construction Commission... because the ABCC is the only body capable of keeping
the CFMEU in check on commercial building sites.’[84]
Senator Day noted:
The previous Labor government deliberately removed any notion
that it was necessary to constrain criminal behaviour by certain unions. They
were prepared to tolerate criminal behaviour—a failure. The police have failed
to uphold the law in favour of so-called keeping the peace. They will tolerate
criminal behaviour if it means keeping the peace...[85]
Senator Day concluded that ‘whilst I am not generally in
favour of expanding government power, the situation in the commercial
construction industry has become so bad that we need to restore the ABCC. I
support the Bill’.[86]
Whilst it does not appear that Senator David Leyonhjelm has
publically spoken on the Bill, he voted in favour of the original Bill in 2015.[87]
In addition, he also moved an amendment to the Bill that would have subjected
the entire Bill to an eight-year ‘sunset’ clause.[88]
Ms Cathy McGowan, whilst not speaking to the Bill, voted in
favour of the original Bill in December 2013 and also on the current Bills.[89]
Whilst it does not appear that Senator Ricky Muir has publically spoken on the
Bill, he voted against it in 2015.[90]
During the recent Second Reading Debate in the House of Representatives, Mr
Katter referred to both the importance of trade unions generally (in relation
to workplace health and safety) and the undesirability of the Bill’s proposals
to remove the right to silence and compel people to give evidence:
You can sit and spit upon trade unions as much as you like.
But we could be still out there and dying. Don't think it would not be
happening... The minister spoke about the rule of law. That is rather
interesting. There are three great pillars of the rule of law, and one of them
is your right to silence... Well, you do not have it in the building industry!
You get put in jail if you remain silent. So do not come in here and preach
about the rule of law, because you are spitting upon the rule of law in this
legislation. If you want to fix up bad things, you make the effort of going in
there and weed out the grafters who have pulled stunts when the concrete is
being poured, and getting paid, personally—in their own pockets, not in the
pockets of the union—and you track them down and put them in jail. Do not take
away, from a whole branch of industry in Australia the right to work safely... So,
your right to remain silent is a very important law. This legislation takes
away your right to remain silent. And not only does it take away your right to
remain silent; it also says that you have to give evidence. If you are asked to
give evidence, you are compelled to give that evidence.[91]
Mr Katter opposes the Bill and voted against it in the
recent House of Representatives debate.[92]
Major employer groups including the Master Builders
Association (MBA), the Housing Industry Association (HIA), the Australian
Chamber of Commerce and Industry (ACCI), and the Australian Industry Group
(AiG) welcomed the original Bill, saying that it would restore the rule of law
in the building and construction industry. They particularly endorsed the
extension of the Act to unlawful picketing.[93]
AiG expressed reservations about the extension of the
scope of the Act to the supply of materials because it may be a vehicle for
extending construction industry terms and conditions of employment and the
influence of the CFMEU.[94]
However, HIA welcomed the extension, saying that offsite disputes are as
disruptive as onsite action.[95]
Trade unions oppose the Bill. The Australian Council of
Trade Unions (ACTU) opposes any special laws for the building and construction
industry. It notes that the assertion that the Bill deals with criminal
activity in the industry is incorrect, as the Bill deals with civil actions and
penalties. It contests the Government’s assertions about the increase in
productivity attributable to the ABCC. It notes that the BCII Act was
several times found to be in breach of International Labour Organisation
conventions which Australia has ratified. Like the AiG, it is concerned that
the extension of the scope of the Bill may bring parts of the transport,
warehousing and manufacturing industries into the scope of the ABCC. It opposes
the coercive information gathering powers in the Bill, and particularly the
removal of safeguards on their exercise. It opposes giving the ABCC the right
to intervene in proceedings under the FWA or the Independent
Contractors Act 2006, or to re-open matters that have been settled. It opposes the transition provision which allows
the ABCC to use its new powers in investigations of matters that happened
before the Act takes effect, and particularly the provision that the ABCC can
pursue matters which were settled before the Act takes effect.[96]
The CFMEU submission endorsed the ACTU’s. It also discussed
the ABCC’s far greater focus on illegal activity by unions than by employers.[97]
The Government previously committed an additional $35
million over four years to the re-established ABCC.[98]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. Noting that
the Bills engage the rights to freedom of association, to just and favourable
conditions of work, to a fair trial, to peaceful assembly, to freedom of
expression, and to privacy and reputation, the Government considers that the
Bills are compatible, because to the extent that they may limit human rights,
those limitations are reasonable, necessary and proportionate.[99]
Parliamentary
Joint Committee on Human Rights
The PJCHR has commented on the current Bills by referring
to its comments on the 2013 Bills in its second report for the 44th Parliament.[100]
In that report, the PJCHR summarised its concerns as follows:
The committee seeks further information on various aspects of
these Bills to determine their compatibility with the right to equality and
non-discrimination, the right to freedom of association and to engage in
collective bargaining, the right to freedom of assembly, the right to freedom
of expression, the right to privacy, the right to a fair hearing, and the
prohibition against self-incrimination.[101]
After considering additional information provided by the
Minister in relation to the above, the PJCHR concluded:
- clause
59 (project agreements) is likely to be incompatible with the right to
organise and bargain collectively[102]
- the
proposed coercive evidence-gathering powers ‘are likely to be incompatible with
the right against self-incrimination’[103]
- the
prohibition on picketing and further restrictions on industrial action are
‘incompatible with the right to freedom of association and the right to form
and join trade unions’[104]
- the
prohibition on picketing is also ‘likely to be incompatible with the right to
freedom of assembly and the right to freedom of expression’[105]
and
- subclause
61(7) and clause 105 (that deal with the disclosure of information
obtained by the ABCC) are incompatible with the right to privacy.[106]
The Bill re-establishes the ABCC, with some new (but
significant) differences. As such, the Bill is consistent with recommendation
61 of the RCTUGC (that a building and construction industry regulator should
exist, and be separate from the office of the Fair Work Ombudsman).[107]
However, given the similarities between the Bill and the Building and
Construction Industry Improvement Bill 2003 and the BCII Act, this Bills
Digest focuses on the differences and key areas that may attract controversy.
It is strongly recommended that readers refer to the following publications,
which are cited earlier in this Digest, for additional analysis:
- A
Holmes and J Murphy, Building
and Construction Industry (Improving Productivity) Bill 2013 [and] Building and
Construction Industry (Consequential and Transitional Provisions) Bill 2013,
Bills Digest, 34, 2013–14, Parliamentary Library, Canberra, 2014
- S
O’Neill and MA Neilsen, Building
and Construction Industry Improvement Amendment (Transition to Fair Work) Bill
2011, Bills Digest, 80, 2011–12, Parliamentary Library, Canberra, 2011
- S
O’Neill and MA Neilsen, Building
and Construction Industry Improvement Amendment (Transition to Fair Work) Bill
2009, Bills Digest, 16, 2009–10, Parliamentary Library, Canberra, 2009
- P
Prince, Building
and Construction Industry Improvement Bill 2005 [and] Building and
Construction Industry Improvement (Consequential and Transitional) Bill 2005, Bills Digest, 139–140, 2004–05, Parliamentary
Library, Canberra, 2005 and
- P
Prince and J Varghese, Building
and Construction Industry Improvement Bill 2003, Bills Digest,
129,
2003–2004, Parliamentary Library, Canberra, 2004.
The main issues raised by the Bill, where they differ
substantially from the BCII Act, are discussed below.
A number of provisions seek to expand the application of the
Bill.
Clauses 5, 10, 11 and 12 extend the geographical
application of the Act to:
- Australia's
exclusive economic zone (EEZ) and waters above the continental shelf (including
resources platforms and ships in the EEZ or those waters) and
- Christmas
Island and Cocos (Keeling) Islands.[108]
Clause 6 contains the definition of building
work, a key term that underpins the operation of the Act. The Bill defines building
work as encompassing a broad range of activities including: construction,
restoration, repair and demolition, any operation that is ‘part of or
preparatory to’ such activities, and ‘pre fabrication of made-to-order
components’ whether carried out on-site or off-site.
Paragraph 6(1)(e) expands the definition of building
work to include the supply and transport of building goods directly to
building sites (including resource platforms) for subsequent use in building
work. The Explanatory Memorandum states that the expanded definition of building
work is ‘not intended to pick up the manufacture of those goods’.[109]
The Bill retains the exclusions for small-scale
residential construction projects and mineral exploration activities, contained
in the BCII Act and the FWBI Act.[110]
Clause 9 defines ancillary sites. Relevantly,
this includes sites from which goods are transported or supplied directly to a
building site or sites where building industry participants do work relating to
building work. This concept was not included in the BCII Act or
the FWBI Act.
The effect of the above provisions is to effectively extend
the operation of the Bill to the transport, supply and resources sectors both
within Australia and also to operations conducted in Australia’s EEZ or in waters
above the continental shelf, provided there is a relevant connection to
building work as defined in the Bill.[111]
As a result, arguably the Bill could therefore be used to target secondary
boycotts (an issue raised by the PC Report and Harper Review), at least in
relation to coercing a person or third party to engage (or not engage) a particular
independent contractor or building contractor.[112]
The
table in Appendix D provides a summary of the differences between the
current coercive powers under the FWBI Act and those proposed by the
Bill. A detailed analysis follows below.
The FWBC retained the powers originally provided by the BCII
Act to the then ABCC to require a person to give information, produce
documents and attend an interview to answer questions. However, the FWBI Act
introduced a number of safeguards on the use of the coercive powers.
Importantly these include that:
- the
FWBC must apply for an examination notice to a Presidential Member of the
Administrative Appeals Tribunal (AAT)[113]
who
- must
be satisfied that a case has been made out for its use.[114]
The FWBI Act also provides that the Commonwealth
Ombudsman must be notified whenever an examination notice is issued.[115]
Further, the FWBC must provide a report on, and video recording and transcript
of, the examination to the Commonwealth Ombudsman, who must then review the
examination and provide annual reports to Parliament.[116]
The Bill re-instates the previous coercive investigatory
powers of the Commissioner under the BCII Act, and hence reflects
recommendation 62 of the RCTUGC.[117]
Where the Commissioner reasonably believes that a person has information or
documents relevant to an investigation or is capable of giving evidence
relevant to an investigation, Chapter 7, Part 2 of the Bill provides
that the Commissioner can require a person to:
-
give information or produce documents to the Commissioner[118]
-
attend an examination before the Commissioner[119]
and
-
answer questions or provide information under oath or
affirmation.[120]
In addition, where (amongst other reasons) an inspector
reasonably believes that the Act, a designated building law[121]
or the Building Code is being breached they can:
-
enter a premises without force[122]
-
require a person to provide their name and address[123]
-
inspect any work, process or object
-
interview any person
-
require a person to produce a record or document
-
inspect and make copies of records or documents or
-
take samples of any goods or substances.[124]
In addition, outside of the powers related to authorised
officers power to enter premises, authorised officers can also issue a notice
requiring a person to produce documents or records.[125]
In contrast, Federal Safety Officers may only exercise such powers for the
purpose of ascertaining if relevant bodies meet and comply with the
accreditation requirements, or have complied with the conditions of
accreditation in respect of building work.[126]
Once information is obtained clause 105 allow the
Commissioner to disclose that information (other than ‘protected information’) in
certain circumstances to other persons or bodies, including, for example,
where:
... that the disclosure is likely to assist in the
administration or enforcement of a law of the Commonwealth, a State or a
Territory.[127]
The PJCHR concluded that the information sharing powers
proposed by clause 105 are incompatible with the right to privacy.[128]
Unlike the existing Act, the Bill does not require the
Commissioner to apply to the AAT for an examination notice.[129]
However, the Commissioner must still provide a report on and video recording
and transcript of, the examination to the Commonwealth Ombudsman, who must then
review the examination and provide annual reports to Parliament.[130]
As drafted, the Bills are consistent with recommendation 63 of the RCTUGC.[131]
Clause 102 removes the privilege against
self-incrimination by providing that a person is not excused from providing
information to the Commissioner because to do so would contravene another law
or might tend to incriminate or otherwise expose the person to a penalty or
other liability.
Subclause 102(2) provides both use and derivative
use immunity by prohibiting the use of any information, answer given or
document produced in proceedings other than those related to clause 62
(failing to comply with an examination notice) or proceedings under the Criminal
Code Act 1995 related to giving false or misleading statements or documents
or obstructing Commonwealth officials.[132]
As such, clause 102 effectively replicates
section 53 of both the FWBI Act and BCII Act.
In relation to the availability of both use and derivate
use immunity, the RCTUGC noted:
Cognate provisions in relation to the compulsory powers of
ASIC and the ACCC limit the immunity conferred so that they apply only to the
answers given or information provided in response to notices. The immunity
under these provisions does not extend to documents and there is no
derivative use restriction.[133]
(emphasis added)
The RCTUGC then recommended:
Consideration be given to redrafting the use/derivative use
immunity provisions in clauses 102 and 104 of the Building and Construction
Industry (Improving Productivity) Bill 2013 (Cth) to provide protections
equivalent to those available in relation to the powers exercised by the
Australian Securities and Investments Commission.[134]
(emphasis added).
In summary, the RCTUGC recommended that the above
provisions, in relation to use immunity, be narrowed as to only apply to the
recipient of the individual notice, and only to answers or information given
under compulsion, not to documents obtained or created when the recipient of
notice was under no compulsion.[135]
In relation to derivative use immunity, the RCTUGC recommended that subclauses
102(2) and clause 104 be amended to remove derivate use entirely as
‘valuable evidence may be acquired by obtaining documents and answers in
compulsory examinations’.[136]
However, in contrast to the view of the RCTUGC, the PJCHR concluded that the
proposed coercive evidence-gathering powers, even with use and derivative use
immunity available in some circumstance were ‘likely to be incompatible with
the right against self-incrimination’.[137]
Clause 103 extends additional protection to persons
who comply with an examination notice by providing that any information, documents
or answers to questions cannot be used in any proceedings for contravening any
other law because of complying with the examination notice. It also provides
that they are not liable in any civil proceedings for any loss, damage or
injury of any kind suffered as a result of complying with the examination
notice. As such, clause 103 effectively replicates
section 54 of both the FWBI Act and BCII Act.
Item 2 of Schedule 2 of the Transitional
Bill provides that the powers related to obtaining information apply in
relation to any contravention or alleged contravention of either the BCII
Act or the existing FWBI Act that occurred or is alleged to have
occurred before the transition time.
The Bill contains a number of criminal offences similar to
those contained in section 52 of the FWBI Act. Under clause 62,
it is an offence punishable by six months imprisonment not to comply with an
examination notice to:
-
provide information
- produce a document
-
attend an examination to answer questions
-
take an oath or affirmation or
-
answer questions during the examination.[138]
The penalties proposed in clause 62 are consistent
with recommendation 62 of the RCTUGC and the legislation cited in support of that
recommendation.[139]
Clause 106 makes it an offence punishable by 12
months imprisonment for an entrusted person to make a record or disclose
protected information, except in specific circumstances. It effectively
replicates section 65 of both the FWBI Act and BCII Act.
The FWBI Act removed the specific penalties for
participants in the building industry, making them subject to the ordinary
penalties under the FWA.[140]
Like the BCII Act, the Bill would restore specific building industry
penalties.
The Bill, like the BCII Act, creates two categories
of civil penalties:
-
Grade A (maximum penalty of 1,000 penalty units for a body
corporate and 200 for a natural person) and
- Grade B (maximum penalty of 100 penalty units for a body corporate
and 20 for a natural person).[141]
The civil penalty offences created by the Bill are listed
in the table in Appendix A. The offences largely replicate the offences
contained in the BCII Act (for example, coercion and discrimination)
with the exception of the new unlawful picketing civil penalty offence,
discussed elsewhere in this Bills Digest.
In this respect, the Bill differs substantially from what
the RCTUGC recommended. The RCTUGC recommended that the FWA be amended
to increase the maximum penalties for coercion and prohibited industrial
action. It also recommended that the FWA be amended so that picketing by
employees or employee associations is ‘industrial action’, and to ‘deal
specifically with consequences of industrially motivated pickets’.[142]
The Bill (which preceded the RCTUGC) does not seek to
amend the FWA in the manner noted above. Instead, it introduces
increased penalties for coercion and prohibited industrial action and
introduces a picketing offence—but only applies those to the building and construction
industry (and associated sectors, as discussed under the heading ‘Expanded coverage of the Bill’ above). As such, whilst civil penalty provisions
are consistent with the intent of the recommendations of the RCTUGC, they are
applied more narrowly than recommended and hence would only partially fulfil
those recommendations.
The Bill, at clause 7, contains its own definition of
industrial action. It largely replicates the definition contained in
section 19 of the FWA, with one notable difference. Subclause 7(4) provides
that where a person claims their action was based on a reasonable concern about
an imminent risk to their health or safety, they bear the burden of proving
their concern and its reasonableness. However, as noted in the Explanatory
Memorandum it ‘does not require the employee to prove that there is in fact an
imminent risk’.[143]
Subclause 7(4) of the Bill replicates subsection 36(2) of the BCII Act.
For ease of comparison, the definitions of industrial
action contained in the BCII Act, the Bill and FWA are set
out in Appendix B. Of note, the Bill does not reinstate the BCII Act
requirement of industrial action needing to be ‘industrially motivated’
before being unlawful.[144]
Clause 8 narrows the scope of protected industrial
action in comparison to the definition provided by the FWA. The
clause introduces the concept of protected persons, which are:
-
an employee organisation or officer of the organisation (within
the meaning of the FWA), that is a bargaining representative for a
proposed enterprise agreement
-
members of the employee organisation employed by the employer
(and who will be covered by the proposed enterprise agreement) or
-
an employee who is a bargaining representative for the proposed
enterprise agreement.[145]
For the purposes of the Bill, action will not be protected
industrial action if it is engaged in in concert with one or more
non-protected persons.[146]
In addition, action will not be protected industrial action if the
organisers include one or more non-protected persons.[147]
In effect, industrial action will not be protected
under the Bill where it is supported by persons other than those directly
involved in the bargaining for the relevant enterprise agreement. This largely
replicates subsections 40(1) and (2) of the BCII Act.
In New South Wales v Commonwealth (Work Choices
case),[148]
the constitutional validity of the Workplace Relations Act 1996 (Cth)
(as amended by the Workplace Relations Amendment (Work Choices) Act 2005
(Cth)) was challenged. The High Court held that the legislation was a
legitimate exercise of the Commonwealth’s corporations power, and as a result,
the corporations power is now used as the primary constitutional basis for
industrial relations legislation. Since the decision in the Work Choices case,
all states other than Western Australia have referred their private sector
industrial relations powers to the Commonwealth.[149]
Clause 45 provides that the prohibitions against unlawful
industrial action and unlawful picketing must relate to a constitutionally
covered entity. The interconnected definitions in clause 5
define a constitutionally covered entity as:
-
a corporation to which paragraph 51(xx) (the corporations power)
of the Constitution applies
-
the Commonwealth or a Commonwealth authority within the meaning
given by the Commonwealth Authorities and Companies Act 1997
-
a body corporate incorporated in a territory or
-
an organisation within the meaning given by the Fair Work
(Registered Organisations) Act 2009.
The definition in clause 45 and reference to
the corporations power is necessary to ensure the prohibitions against unlawful
industrial action and unlawful picketing apply as broadly as
possible, within Constitutional limits. Without it, there would be a
possibility of parts of the legislation being ruled invalid on the basis of
overstepping the Commonwealth’s law making powers.
Despite this, it is likely, however, that not all workers
and businesses in the building and construction industry will be covered. It is
unclear, for example, whether employees of an unincorporated sub-contractor
(which fall outside the corporations power of the Commonwealth to regulate) on
a building site would be covered by the Bill,
especially if any action they take is only in relation to their own employer.[150]
Clause 5 provides that action is unlawful
industrial action if:
-
it is industrial action and
-
is not protected industrial action.
As noted previously, the Bill does not reinstate the BCII
Act requirement of industrial action needing to be ‘industrially
motivated’ before being unlawful.[151]
The new interconnected definitions of industrial
action, protected industrial action and unlawful industrial action
exclude any industrial action that is not:
- engaged
in and organised solely by protected persons (that is, persons directly
involved as bargaining representatives in negotiations for, or who will be
covered by, a proposed enterprise agreement) and
- authorised
through the required protected action ballot process contained in the FWA.
Such action will be unlawful industrial action and,
under clause 46 of the Bill, attract a Grade A civil penalty ($34,000
for individual, $170,000 for body corporates). The PJCHR noted that further
restrictions on industrial action proposed by the Bill are ‘incompatible with
the right to freedom of association and the right to form and join trade
unions’.[152]
Under previous and existing legislation there are no
prohibitions on picketing.
The Bill creates the new offence of engaging in or
organising an unlawful picket, punishable by a Grade A civil penalty
($34,000 for individual, $170,000 for body corporates).[153]
To be unlawful, a picket must meet the two limbs provided in paragraphs
47(2)(a) and (b) respectively.
The first limb, in paragraph 47(2)(a), relates to the
purpose and impact of the picket. For a picket to be unlawful it must:
- have
the purpose of preventing or restricting a person from accessing or leaving a
building site or ancillary site or
- directly
prevent or restrict a person from accessing or leaving a building site or
ancillary site or
- reasonably
be expected to intimidate a person accessing or leaving a building site or
ancillary site.
However, even if one of the above elements of the first limb
is satisfied, a picket will not be unlawful unless it also satisfies one
of the four elements contained in the second limb in subclause 47(2).
Those elements relate to the motivation or lawfulness of the picket.
The first two elements of the second limb relate to the motivation
of the picket. They provide that (if the first limb is satisfied) a picket will
be unlawful where it:
- is
motivated for the purpose of supporting or advancing claims against a building
industry participant in respect of the employment of employees or
- is
motivated for the purpose of supporting or advancing claims against a building
industry participant in respect of the engagement of contractors by the
building industry participant.[154]
As drafted, a court is required to consider the mental state
(motivation) of the participants or organisers of the picket. Due to clause
56, a picket will satisfy either of the above two elements if the reason
(or a reason, if there is more than one) it was organised or engaged in
was to support one of the specified types of claims against a building industry
participant.
As drafted, subparagraph 47(2)(b)(i) is highly
unlikely to apply to building industry participants other than building
employees, contractors and employee orientated building associations and their
officers.
The other two elements of the second limb have a broader
scope of application. Relevantly a picket will be unlawful where it:
-
is motivated for the purposes of advancing industrial objectives
of a building association[155]
or
-
is unlawful (apart from the operation of clause 47 of the
Bill).[156]
In relation to pickets motivated for the purposes of
‘advancing the objectives of a building association’, this would appear to have
a broader application than the two elements of the second limb contained in paragraph 47(2)(b)(i)
as it can potentially apply to pickets organised or engaged in by persons
in support of employer or contractor building associations, and not just to
employee building associations.
The final element of the second limb is that the picket is
unlawful (apart from the operation of clause 47 of the Bill). The effect
of the final element is where persons engage in a picket that:
-
is not protected industrial action under the Bill
or
-
was protected industrial action under the FWA but
subsequently the FWC made an order under section 418 of the FWA to stop
the action
the action is unlawful for the purposes of subparagraph
47(2)(b)(iii) and hence the picket is unlawful. In addition, the final
element of the second limb would also be engaged where the picket breaches
relevant state or territory:
-
legislation governing protests or
-
criminal legislation (for example, trespass).
As a result, a picket will attract the penalty proposed by
the Bill where it meets the first limb and is otherwise unlawful or where it
was organised to advance various industrial claims. The Explanatory Memorandum
notes that clause 47 will not capture pickets that are lawful and
organised for non-industrial purposes such as drawing attention to various
social, environmental or community issues.[157]
In addition to prohibiting unlawful pickets, clause 48
allows a person to apply to a relevant court for an injunction to prevent an
unlawful picket from occurring or to stop an unlawful picket already underway.
As picketing offences will only apply to the building and
construction industry (and associated sectors, as discussed under the heading ‘Expanded coverage of the Bill’ above), the provisions discussed above only
partially fulfil recommendation 66 of the RCTUGC. That is because the RCTUGC
recommended that the FWA be amended (and hence would apply to all
industries and sectors covered by that Act) so that picketing by employees or
employee associations falls under the definition of ‘industrial action’, and to
also deal with the consequences of industrially motivated pickets.[158]
In contrast, the PJCHR stated that the prohibition on
picketing proposed by the Bill is ‘likely to be incompatible with the right to
freedom of assembly and the right to freedom of expression’.[159]
Section 73 of the FWBI Act prevents the Commissioner
from continuing or instituting proceedings in relation to matters that have
been settled by the parties. This Bill does not include a similar clause to
prevent such action.
In the second reading speech to the Bill when it was first
introduced, the then Minister for Education and Leader of the House stated
that:
The inspectorate was hampered by quite novel restrictions on
its ability to initiate or continue with proceedings if matters the subject of
litigation had been settled by the parties. These amendments were introduced
without any prior notice or forewarning by the Leader of the Opposition when he
was the responsible minister. They are equivalent to a person running a red
light and causing an accident and then police being unable to charge that
person with any offences, including running the red light, if that person has
settled with the other person involved in the accident.[160]
Hence it appears that the Commissioner will be able to
pursue civil or criminal charges in circumstances where civil liability has
been settled.
Clause 20 of Schedule 2 of the Transitional
Bill provides that the Commissioner may participate in a proceeding, or
institute a proceeding, under the FWBI Act even if the proceeding relates
to a matter that was settled before the new Act commences. This is in effect a
retrospective provision. It is possible that parties have reached an agreement
in good faith on the assumption that that would be the end of the matter, only
to have it reopened under a law that was not in force at the time.[161]
The Bill, as drafted, is consistent with recommendation 65 of the RCTUGC.[162]
Clause 57 of the Bill reverses the onus of proof (in
relation to reasons for actions) from the Commissioner to the defendant in
proceedings related to contraventions of the Bill’s civil penalty provisions.
As a result, in relation to contraventions of the civil
penalty provisions (including unlawful picketing), in any proceedings it must
be assumed that the relevant action that would constitute a contravention was
(or is) being taken by the defendant for the relevant reason or with the
relevant intent, unless the defendant proves otherwise. The Explanatory
Memorandum refers to section 361 of the FWA, which provides that where a
person brings an application for adverse action under Part 3-1, it must be
presumed that the action was taken for the alleged prohibited reason.[163]
This presumption can, of course, be displaced by evidence led by the respondent
(for example, in a general protections case, of the employee’s unsatisfactory
performance).
The presumption arises where the applicant establishes facts
that provide the basis for the alleged prohibited conduct by the respondent.[164]
Such clauses are not uncommon, and are usually imposed where evidence relevant
to the complaint is likely to be held by the defendant and the complaint would
be difficult, if not impossible, to establish in the absence of that evidence.
As noted by one academic (in relation to proving discrimination claims):
a reverse onus provision offers a clear advantage over
purs[u]ing a complaint under anti-discrimination legislation because it
requires the employer to articulate the reason for the impugned conduct. The
actual motivation for acting in a particular way is something known, by and
large, only to that employer. Under anti-discrimination law it is usually
up to the complainant, in establishing direct discrimination, to prove the
[causal] link by adducing evidence to substantiate an alleged reason or to
establish the facts from which an inference can be drawn. The reserve onus
mandates greater input by the employer in this process, and will assist
individuals in making out a workplace age discrimination complaint.[165]
(emphasis added).
It has also been noted that, from the majority of cases
dealing with discrimination, a reverse onus of proof is not a panacea for
allegations.[166]
It appears that similar reasoning is behind the imposition of the reverse onus
of proof imposed by the Bill, as the Government has justified it on the basis
that:
...in the absence of such a clause, it would be extremely
difficult, if not impossible, for a complainant to establish that a person
acted for an unlawful reason.[167]
Subclause 59(1) provides that an agreement is
unenforceable to the extent that it relates to building employees if:
- the
agreement is entered into with the intention of securing standard employment
conditions for building employees in respect of building work that they carry
out at a particular building site or sites
- not
all the employees are employed in a single enterprise
- the
agreement is not a Commonwealth industrial instrument (for example, an
enterprise agreement or modern award) and
- a
party to the agreement is a constitutional corporation.
The effect of subclause 59(1) and the definition of a single
enterprise in subclause 59(2), is to prohibit agreements that seek
to secure standard employment conditions on a particular building site (or
sites) where there are employees employed by a number of different enterprises
(for example, employed by subcontractors or joint venture partners). Item 2
of Schedule 2 of the Transitional Bill provides that clause 59 of
the Bill applies to agreements entered into after the transition time. The
PJCHR stated that clause 59 is ‘likely to be incompatible with the right
to organise and bargain collectively’.[168]
Clause 34 enables the Minister to issue a Building
Code, in similar terms to section 27 of the FWBI Act. As under that Act,
the Code is to be a legislative instrument. It may deal with work health and
safety matters relating to building work. However, the Bill omits the
requirement for the Minister to take into account relevant recommendations of
the Federal Safety Commissioner. The existing FWBI Act and the previous BCII
Act (at section 27) both included this requirement.
Clause 35 restores a provision that was in the BCII
Act (but not the FWBI Act) which allows the Minister to require a
written report as to the extent of compliance with the Building Code for
particular building work.[169]
Clause 38 lists the functions of the Federal Safety
Commissioner. As is currently the case under section 30 of the FWBI Act,
they include the promotion of work health and safety and the promotion of the
WHS Accreditation Scheme. In contrast to the current Act and the previous BCII
Act they do not include functions of monitoring compliance with, and
disseminating information about, health and safety provisions of the Building
Code.
Clause 40 deals with delegations and directions to
delegates by the Federal Safety Commissioner. It includes a new requirement
that such directions that are of a general application are to be legislative
instruments (subclause 40(5)).
Schedule 1 of the Transitional Bill repeals the FWBI
Act, and makes consequential amendments to the Administrative
Decisions (Judicial Review) Act 1977, the Fair Work (Registered
Organisations) Act 2009, and the Jurisdiction of Courts (Cross-Vesting)
Act 1987. Item 6 of Schedule 1 will amend the reference to
the Privacy Act 1988 in the Building and Construction Industry
(Improving Productivity) Act 2013 (the new Act) to reflect the
commencement of the new Privacy Principles.
Schedule 2 contains the transitional provisions. Items
2(3) to 2(5) extend the powers to obtain information in the Building
and Construction Industry (Improving Productivity) Act (the new Act)
to alleged contraventions of the previous BCII Act and the existing FWBI
Act before the commencement of the new Act, even if an
investigation was begun under those Acts. Item 2(6) allows the
Commissioner to intervene in court proceedings, or make submissions in FWC
proceedings, that began before the commencement of the new Act. Neither
the Explanatory Memorandum nor the Scrutiny of Bills Committee Alert Digest
comments on the retrospective aspect of these provisions. However, the Senate
Committee dissenting report by the Labor Senators was critical, arguing that
any such powers, if they are to be introduced, should operate prospectively,
and not allow the ABCC to initiate or pursue matters (including instigating
court proceedings) in respect of matters that were settled prior to the new
Act taking effect. The report states ‘it is a fundamental principle of
fairness and a basic precept of the rule of law that laws are applied
prospectively. Parties should be entitled to rely upon the law as it exists and
applies at the time’.[170]
Items 3 and 4, items 6 to 13,
items 15 to 19, and items 21 to 24 provide for
continuity of functions.
Item 5 terminates the
appointments of members of the Fair Work Building Industry Inspectorate
Advisory Board and of the Independent Assessor (though they can be appointed
under the new Act).
Item 14 provides for continuation of payments of
expenses for attending examinations that were ordered under the old Act, except
for legal allowances, which are currently provided for in the FWBI Act
and Regulation 7.13 of the Fair Work (Building Industry) Regulations 2005.[171]
(Payments for legal expenses will not be made for new proceedings.)
As discussed above, item 20 allows the Commissioner
to participate in, or institute, a proceeding under the FWBI Act even if
the proceeding relates to a matter that was settled before the new Act commences.
Item 26 provides for the making of rules by the
Minister.
The Bill not only repeals the FWBI Act and
re-establishes the ABCC, it enlarges both its jurisdictional and industry
sector application. It also provides new coercive powers (with retrospective
operation), re-introduces a number of criminal and civil penalty offences
previously contained in the BCII Act, and introduces a new civil penalty
offence of unlawful picketing. It provides for penalties for building industry
participants which are considerably higher than those available under the FWA.
In effect, the Bill creates (in relation to industrial
action and picketing) a new and different set of industrial relations rules
that apply only to persons associated with the building and construction
industry.
Table 2: Civil penalty offences
|
Offence
|
Provision
|
Grade
|
|
Engaging in or organising unlawful industrial action
|
46
|
A
|
|
Engaging in or organising an unlawful picket
|
47(1)
|
A
|
|
Coercion relating to allocations of duties etc.
|
52
|
A
|
|
Coercion relating to superannuation
|
53
|
A
|
|
Coercion in relation to making, varying, terminating etc.
enterprise agreements
|
54
|
A
|
|
Taking action against a building employer due to coverage
by particular instruments
|
55
|
A
|
|
Hindering or obstructing authorised officers
|
78
|
A
|
|
Failure to provide Building Code compliance report within
specified period
|
35(2)
|
B
|
|
Failure to provide name and address of authorised officer
|
76(3)
|
B
|
|
Failure to provide records or documents as required by an
authorised officer’s notice
|
77(3)
|
B
|
|
Failure to comply with compliance notice
|
99(7)
|
B
|
|
Making certain payments relating to periods of industrial
action
|
49
|
N/A[172]
|
|
Inspector or Federal Safety Officer failing to carry
identification card
|
67
|
N/A[173]
|
Source: Building and Construction Industry (Improving
Productivity) Bill 2013 [No. 2].
Table 3: definitions of industrial action
|
Building and Construction Industry Improvement Act
2005 (as enacted)
|
Building and Construction Industry (Improving
Productivity) Bill 2013
|
Fair Work Act 2009
|
|
36 Definitions
(1) In this Chapter, unless the contrary intention
appears:
building industrial action means:
(a) the performance of building work in a manner different
from that in which it is customarily performed, or the adoption of a practice
in relation to building work, the result of which is a restriction or
limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed,
wholly or partly, by an industrial instrument or an order of an industrial
body; or
(ii) the work is performed, or the practice is adopted, in
connection with an industrial dispute (within the meaning of subsection (4));
or
(b) a ban, limitation or restriction on the performance of
building work, or on acceptance of or offering for building work, in
accordance with the terms and conditions prescribed by an industrial
instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of
building work, or on acceptance of or offering for building work, that is
adopted in connection with an industrial dispute (within the meaning of
subsection (4)); or
(d) a failure or refusal by persons to attend for building
work or a failure or refusal to perform any work at all by persons who attend
for building work;
but does not include:
(e) action by employees that is authorised or agreed to,
in advance and in writing, by the employer of the employees; or
(f) action by an employer that is authorised or agreed to,
in advance and in writing, by or on behalf of employees of the employer; or
(g) action by an employee if:
(i) the action was based on a reasonable concern by the
employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with
a direction of his or her employer to perform other available work, whether
at the same or another workplace, that was safe for the employee to perform.
Note: See also subsection (2), which deals with the burden
of proof of the exception in paragraph (g) of this definition.
...
excluded action means building industrial
action that is protected action for the purposes of the Workplace Relations
Act (as affected by Part 3 of this Chapter).
industrially-motivated means motivated by
one or more of the following purposes, or by purposes that include one or
more of the following purposes:
(a) supporting or advancing claims against an employer in
respect of the employment of employees of that employer;
(b) supporting or advancing claims by an employer in
respect of the employment of employees of that employer;
(c) advancing industrial objectives of an industrial
association;
(d) disrupting the performance of work.
...
(4) In the definition of building industrial action in
subsection (1):
industrial dispute means:
(a) an industrial dispute (including a threatened,
impending or probable industrial dispute) that is about matters pertaining to
the relationship between employers and employees; or
(b) a situation that is likely to give rise to an
industrial dispute of the kind referred to in paragraph (a); or
(c) a dispute arising between 2 or more industrial
associations, or within an industrial association, as to the rights, status
or functions of members of the associations or association in relation to the
employment of those members; or
(d) a dispute arising between employers and employees, or
between members of different industrial associations, as to the demarcation
of functions of employees or classes of employees; or
(e) a dispute about the representation under an industrial
law of the industrial interests of employees by an industrial association of
employees.
|
7 Meaning of industrial action
(1) Industrial action is action of any of
the following kinds:
(a) the performance of building work by an employee in a
manner different from that in which it is customarily performed, or the
adoption of a practice in relation to building work by an employee, the
result of which is a restriction or limitation on, or a delay in, the
performance of the work;
(b) a ban, limitation or restriction on the performance of
building work by an employee or on the acceptance of or offering for building
work by an employee;
(c) a failure or refusal:
(i) by employees to attend work, where that work is
building work; or
(ii) to perform any building work at all by employees who
attend work, where that work is building work;
(d) the lockout of employees from their work by their
employer, where that work is building work.
Note: In Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union v The Age Company Limited,
PR946290, the Full Bench of the Australian Industrial Relations Commission
considered the nature of industrial action and noted that action will not be
industrial in character if it stands completely outside the area of
disputation and bargaining.
(2) However, industrial action does not include the
following:
(a) action by employees that is authorised or agreed to,
in advance and in writing, by the employer of the employees;
(b) action by an employer that is authorised or agreed to,
in advance and in writing, by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee
about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with
a direction of his or her employer to perform other available work, whether
at the same or another workplace, that was safe and appropriate for the
employee to perform.
When there is a lockout
(3) There is a lockout of employees from their work by an
employer if the employer prevents the employees from performing work under
their contracts of employment without terminating those contracts.
(4) Whenever a person seeks to rely on paragraph (2)(c),
the person has the burden of proving the paragraph applies.
|
19 Meaning of industrial action
(1) Industrial action means action of any of
the following kinds:
(a) the performance of work by an employee in a manner
different from that in which it is customarily performed, or the adoption of
a practice in relation to work by an employee, the result of which is a
restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of
work by an employee or on the acceptance of or offering for work by an
employee;
(c) a failure or refusal by employees to attend for work
or a failure or refusal to perform any work at all by employees who attend
for work;
(d) the lockout of employees from their employment by the
employer of the employees.
Note: In Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union v The Age Company Limited,
PR946290, the Full Bench of the Australian Industrial Relations Commission
considered the nature of industrial action and noted that action will not be
industrial in character if it stands completely outside the area of
disputation and bargaining.
(2) However, industrial action does not include the
following:
(a) action by employees that is authorised or agreed to by
the employer of the employees;
(b) action by an employer that is authorised or agreed to
by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the
employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with
a direction of his or her employer to perform other available work, whether
at the same or another workplace, that was safe and appropriate for the
employee to perform.
(3) An employer locks out employees from their employment
if the employer prevents the employees from performing work under their
contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their
ordinary meanings (see section 11).
|
Source: Building and
Construction Industry Improvement Act 2005 (as made), Building and
Construction Industry (Improving Productivity) Bill 2013 and the Fair Work
Act 2009.
Table 4: Royal Commission into Trade Union Governance and
Corruption recommendations relevant to the Bill
|
Recommendation
|
Does the Bill, as drafted, fulfil the recommendation?
|
|
Recommendation 61:
There should continue to be a building and construction
industry regulator, separate from the Office of the Fair Work Ombudsman, with
the role of investigating and enforcing the Fair Work Act 2009 (Cth)
and other relevant industrial laws in connection with building industry
participants.
|
- The
recommendation is fulfilled.
- Under
clause 15(1) there is to be an Australian Building and Construction
Commissioner.
- Clause
29 proposes to establish the ‘Australian Building and Construction
Commission’ the new name for the Office of the Fair Work Building Industry
Inspectorate (established by section 26J of the FWBI Act).
- The
Commissioner’s functions (outlined in clause 16) include the
enforcement of ‘designated building laws’, which includes the FWA.
|
|
Recommendation 62:
Legislation be enacted conferring the building and
construction industry regulator with compulsory investigatory and information
gathering powers equivalent to those possessed by other civil regulators. The
powers set out in the Building and Construction Industry (Improving
Productivity) Bill 2013 (Cth) appear appropriate in this regard.
|
- The
recommendation is fulfilled.
- The
proposed coercive investigatory powers are set out in proposed Chapter 7
of the Bill.
- The
powers are comparable to other civil regulators, for example:
- under clause
61, the Commissioner can give ‘examination notices’ requiring a person to
give information, produce documents, or answer questions. Information may be
required to be on oath and
- clause 62
provides that the maximum penalty for failing to comply with an examination
notice is imprisonment for six months.
|
|
Recommendation 63:
There should be oversight by the Commonwealth Ombudsman of
the powers exercised by the building and construction regulator in the manner
provided for in the Building and Construction Industry (Improving
Productivity) Bill 2013 (Cth).
|
The recommendation is fulfilled, as the
recommendation directly refers to the Bill as originally introduced, which is
identical to the current Bill.
|
|
Recommendation 64:
Consideration be given to redrafting the use/derivative
use immunity provisions in clauses 102 and 104 of the Building and
Construction Industry (Improving Productivity) Bill 2013 (Cth) to provide
protections equivalent to those available in relation to the powers exercised
by ASIC.
|
- The
recommendation is not fulfilled.
- The
RCTUGC suggested that immunity should apply only to the recipient of the
individual notice, and only to answers or information given under compulsion,
not to documents obtained or created when the recipient of notice was under
no compulsion.[174]
- As
discussed in this digest, subclause 102(2) provides both
use/derivative use immunity to (a) information, answers and documents produced,
and (b) any information obtained as direct or indirect consequence of giving the
information, answer, or document produced under an examination notice.
- A
person does not have to first claim privilege.
- Under
clause 104, information, documents or things obtained as direct or
indirect consequence of inspecting or copying documents in a person’s
possession during an inspection by an authorised officer (under subclause
74(1)) are not admissible in evidence in criminal proceedings.
- Section
68 of the Australian
Securities and Investments Commission Act 2001 provides that use
immunity is limited to the provision of the information, signing a record and
claiming the privilege. No derivate use immunity is available.
|
|
Recommendation 65:
The building and construction industry regulator continue
to investigate and enforce the Fair Work Act 2009 (Cth) and other
existing designated building laws. The power of the building and construction
industry regulator to commence and maintain enforcement proceedings should
not be constrained according to whether any other proceedings in respect of
the same conduct have been settled. Accordingly, ss 73 and 73A of the Fair
Work (Building Industry) Act 2012 (Cth) should be repealed.
|
- The
Bill fulfils this recommendation.
- Currently,
under sections 73-73A of the FWBI Act, the Director is precluded from
commencing or continuing proceedings where the parties to the proceedings
(ordinarily, employees and employers or organisations) have settled their
claims in the proceedings.
- The
Bill contains no provisions akin to subsections 73-73A relating to
commencement or continuing of proceedings where parties have settled their
claims, or discontinued proceedings.
|
|
Recommendation 66:
The Fair Work Act 2009 (Cth) be amended:
(a) to increase the maximum penalties for contraventions
of ss 343(1), 348 and 355 (coercion) and ss 417(1) and 421(1) (prohibited
industrial action) to 1,000 penalty units for a contravention by a body
corporate and 200 penalty units otherwise; and
(b) to provide that picketing by employees or employee
associations is ‘industrial action’, and to deal specifically with the
consequences of industrially motivated pickets.
|
- The
Bill partially fulfils these recommendations, as it:
- applies the
proposed changes to the building and construction industry, but
- not
other sectors of the economy (as it does not amend the FWA).
- The
Bill provides that civil remedy provisions are classified as either ‘Grade A’
or ‘Grade B’.[175]
- The
maximum penalty for a ‘Grade A’ contravention is 1,000 penalty units for a
body corporate, and otherwise 200 penalty units.
- The
maximum penalty for a ‘Grade B’ contravention is 100 penalty units for a body
corporate, and otherwise 20 penalty units.
Coercion
- The
clauses of the Bill that deal with coercion are all specified
as ‘Grade A’ civil penalty remedy provisions, and thus give effect to the
recommendation (at least in relation to the building and construction
industry).[176]
Prohibited Industrial Action
- Clause
46 of the Bill prohibits ‘unlawful industrial action’ and is
specified as a ‘Grade A’ civil penalty provision, thus giving effect to the
recommendation (at least in relation to the building and construction
industry).
Picketing
- Clause
47 of the Bill prohibits ‘unlawful picketing’ and is specified as
a ‘Grade A’ civil penalty provision.
- As
result, the Bill gives effect to the recommendation (at least in relation to
the building and construction industry), as the FWA does not cover
picketing and the Bill does not seek to amend the FWA in the manner
recommended.
|
Source: As per footnotes in the table.
Table 5: summary of existing and proposed coercive powers
|
Power
|
FWBI Act / FWA
|
Bill
|
Differences
|
Oversight mechanisms
|
Issuing examination notice requiring a person to:
- give
information
- produce
documents, or
- attend
an interview to answer questions.
|
FWBI Act: sections 45-52.
Failure to comply punishable by six months imprisonment:
section 52.
|
Clause 61
Failure to comply punishable by six months imprisonment: clause
62.
|
Under FWBI Act:
- the
Director must apply to a nominated AAT member to issue an examination notice.
- An
examination notice is only issued by the AAT if the matters in ss 47(1) are
satisfied (including that other methods of obtaining the information or
evidence have been attempted and failed or are not appropriate: para
47(1)(d).
- Removes
the privilege against self-incrimination, but provides both use and
derivative use immunity: sections 53, 54.
Under the Bill:
- No
pre-ante oversight of the issuing of examination notices by the AAT (ABC
Commissioner can issue them: clause 61).
- No
requirement that other methods of obtaining the information or evidence have
been attempted and failed prior to issuing examination notice.[177]
- Removes
the privilege against self-incrimination, but provides both use and
derivative use immunity: proposed sections 102-104.
|
Under the FWBI Act:
- AAT
has oversight (as detailed previously).
- Commonwealth
Ombudsman must be notified each time an examination notice is issued: section
49.
- Commonwealth
Ombudsman must be provided with a video of the examination, a transcript and
a report for the Ombudsman’s review: section 54A.
- Commonwealth
Ombudsman to prepare annual reports for the Parliament: subsection 54A(6).
- Commonwealth
Ombudsman can also prepare any other reports it considers appropriate:
subsection 54A(7).
Under the Bill:
- Commonwealth
Ombudsman must be notified each time an examination notice is issued: clause
64.
- Commonwealth
Ombudsman must be provided with a video of the examination, a transcript and
a report for the Ombudsman’s review: clause 65.
- Commonwealth
Ombudsman to prepare annual reports for the Parliament: subclause 65(6).
- Commonwealth
Ombudsman can also prepare any other reports it considers appropriate: subclause
65(7).
|
|
FWBI Inspectors
|
|
Monitor compliance with the Building Code.
|
FWBI Act, section 59E
|
Clause 70
|
No substantive difference.
|
Under the FWBI Act and FWA:
- Powers
can only be exercised during:
- working hours,
or
- at other
times if the inspector ‘reasonably believes’ it is ‘necessary to do so’ for
compliance purposes.[178]
- Compliance
notices can be challenged in the federal court.[179]
Under the Bill:
- Powers
can only be exercised during:
- working hours,
or
- at other
times if the inspector ‘reasonably believes’ it is ‘necessary to do so’ for
compliance purposes: clause 71.
- Compliance
notices can be challenged in a federal, state or territory court: clause
100.
In relation to providing information or documents to an
inspector under the powers listed above, the privilege against
self-incrimination is removed, but provides both use and derivative use
immunity: FWA, sections 713, 713A, and clauses 102-104.
|
|
Can enter premises (without force)
|
FWA, section 708
|
Clause 72
|
The powers proposed by the Bill are broader than those
currently provided by the FWA.
The current section allows an authorised officer to enter
a range of premises where the officer reasonably believes that building work
is (or has been) performed on the premises or records or documents relevant
to a compliance purpose are on a business premises, or accessible from it. Current
subsection 708(2) prevents entry to residential premises unless the officer
reasonably believes that building work is being performed on the premises.
In contrast, clause 72 applies more broadly. In
addition to the grounds for entering premises noted above, it also provides
that an authorised officer may enter premises if they reasonably believe that
a breach by a building industry participant of the Bill, a designated
building law or the Building Code has occurred, is occurring or is likely to
occur. In addition, in relation to business premises, clause 72
provides that entry without force is also authorised where an authorised
officer reasonably believes that a person who ordinarily performs work or conducts
business at the premises has information relevant to compliance purposes. Like
the current section of the FWA, clause 72 also prevents entry
to residential premises. In addition, it also prevents entry to business
premises on the grounds that a person who ordinarily performs work or conducts
business at the premises has information relevant to compliance purposes
unless the authorised officer reasonably believes that the person concerned
is at those premises.
|
Specific powers[180]
- inspect
any work, process or object
- interview
any person
- require
a person to tell the inspector who has custody of, or access to, a record or
document
- require
a person who has the custody of, or access to, a record or document to produce
the record or document to the inspector either while the inspector is on the
premises, or within a specified period
- inspect,
and make copies of, any record or document that: (i) is kept on the premises;
or (ii) is accessible from a computer that is kept on the premises
- take
samples of any goods or substances in accordance with any procedures
prescribed by the regulations/ rules.
|
FWA, section 709
|
Clause 74
|
No substantive differences.
|
|
Require a person whom the inspector reasonably believes
has contravened a civil penalty provision to tell the inspector their name
and address.
|
FWA, section 711
|
Clause 76
|
No substantive difference.
|
|
Require a person, by notice, to produce a record or
document to the inspector.
|
FWA, section 712
|
Clause 77
|
No substantive difference.
|
|
Can keep a document or record produced
|
FWA, section 714
|
Clause 79
|
No substantive difference.
|
|
Issue compliance notice.
|
FWA, section 716
|
Clause 99
|
No substantive difference.
|
|
Accept enforceable undertakings
|
FWA, section 715
|
Clause 98
|
No substantive difference.
|
|
Federal Safety Officers (see important information in the
footnote)[181]
|
|
Monitor compliance with the Building Code and
accreditation scheme
|
FWBI Act, subsections 62(1), 63(1)
|
Clause 70
|
Under the Bill, Federal Safety Officers can only monitor
compliance with accreditation scheme only.
|
Under the FWBI Act and FWA:
- Powers
can only be exercised during:
- working hours,
or
- at other
times if the Officer ‘reasonably believes’ it is ‘necessary to do so’ for
compliance purposes: FWBI Act, subsections 62(2), 63(2).
Under the Bill:
- Powers
can only be exercised during:
- working hours,
or
- at other
times if the Officer ‘reasonably believes’ it is ‘necessary to do so’ for
compliance purposes: clause 71.
|
|
Enter premises (without force)
|
FWBI Act, subsections 62(3), 63(3)
|
Clause 72
|
No substantive difference, but can only be exercised in
relation to monitoring compliance with accreditation scheme (hence narrower
scope of application).
|
|
Specific powers:
- inspect
any work, process or object
- interview
any person
- require
a person who has the custody of, or access to, a record or document to
produce the record or document to the inspector either while the inspector is
on the premises, or within a specified period
- inspect,
and make copies of, any record or document that: (i) is kept on the premises;
or (ii) is accessible from a computer that is kept on the premises
- take
samples of any goods or substances in accordance with any procedures
prescribed by the regulations/ rules.
|
FWBI Act, subsections 62(5), 63(5)
|
Clause 74
|
No substantive differences in the powers, but they can be
exercised in relation to monitoring compliance with accreditation scheme
(hence narrower scope of application).
|
|
Require a person, by notice, to produce a record or
document to the inspector
|
FWBI Act, subsections 62(6), 63(6).
|
Clause 77
|
No substantive difference in the power, but can only be
exercised in relation to monitoring compliance with accreditation scheme
(hence narrower scope of application).
|
|
Can keep a document or record produced
|
FWBI Act, subsections 62(7), 63(7).
|
Clause 79
|
No substantive difference in the power, but can only be
exercised in relation to monitoring compliance with accreditation scheme
(hence narrower scope of application).
|
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Fair
Work (Building Industry) Act 2012.
[2]. Parliament
of Australia, ‘Building
and Construction Industry (Improving Productivity) Bill 2013 homepage’ and
‘Building
and Construction Industry (Consequential and Transitional Provisions) Bill 2013
homepage’, Australian Parliament website.
[3]. Constitution,
section 57; S Sen, The
double dissolution process: questions and references, Research note,
45, 2002–03, Department of the Parliamentary Library, Canberra, June 2003, p.
1–2.
[4]. Clause
29 establishes the ABCC, whilst clause 15 establishes the
Commissioner and Deputy Commissioner positions.
[5]. TRH
Cole QC, Royal
Commission into the Building and Construction Industry: first report, The
Commission, Canberra, 5 August 2002; TRH Cole QC, Final
report of the Royal Commission into the Building and Construction Industry,
The Commission, Canberra, February 2003, M Wilcox QC, Transition
to Fair Work Australia for the building and construction industry: report,
Workplace Authority, Canberra, March 2009, pp. 16 and 19. The role of the
Wilcox report in shaping the Building and Construction Industry Improvement
Amendment (Transition to Fair Work) Act 2012 is examined in S O’Neill and
MA Neilsen, Building
and Construction Industry Improvement Amendment (Transition to Fair Work) Bill
2009, Bills digest, 16, 2009–10, Parliamentary Library, Canberra, 2009;
S O’Neill and MA Neilsen, Building
and Construction Industry Improvement Amendment (Transition to Fair Work) Bill
2011, Bills digest, 80, 2011–12, Parliamentary Library, Canberra, 2011.
The Cole Royal Commission and the Government’s response to it are dealt with in
more detail in S O’Neill, Building
Industry Royal Commission: background, findings and recommendations,
Current issues brief, 30, 2002–2003, Department of the Parliamentary Library,
Canberra, 2003; P Prince and J Varghese, Building
and Construction Industry Improvement Bill 2003, Bills digest, 129,
2003–04, Parliamentary Library, Canberra, 2004; P Prince and J Varghese, Building
and Construction Industry Improvement (Consequential and Transitional) Bill
2003, Bills digest, 130, 2003–04, Parliamentary Library, Canberra,
2004, and in P Prince, Building
and Construction Industry Improvement Bill 2005 [and] Building and
Construction Industry (Consequential and Transitional) Bill 2005, Bills
digest, 139–140, 2004–05, Parliamentary Library, Canberra, 2005.
[6]. Macquarie
Dictionary website: ‘secondary boycott... a boycott placed by employees on
dealings between their employer and another person or firm, usually because the
employees of that person or firm are undertaking industrial action’.
[7]. Productivity
Commission (PC), Review
of Australia’s workplace relations framework, Inquiry report, vol. 2,
76, PC, Canberra, November 2015, p. 959.
[8]. Ibid.,
p. 960.
[9]. Ibid.,
p. 961, recommendation 31.1.
[10]. Prof
I Harper, P Anderson, S McCluskey and M O’Bryan QC (Harper Panel), Competition
policy review: final report, The Treasury, Canberra, March 2015,
p. 68.
[11]. Harper
Panel, Competition
policy review: final report, op. cit., p. 390.
[12]. Ibid.,
p. 391.
[13]. T
Abbott (Prime Minister), E Abetz (Minister for Employment) and G Brandis
(Attorney-General), Royal
Commission into trade union governance and corruption [and] terms of reference,
media release, 10 February 2014.
[14]. E
Abetz (Minister for Employment) and G Brandis (Attorney-General), Royal
Commission into Trade Union Governance and Corruption established, media
release, 14 March 2014.
[15]. Royal
Commission into Trade Union Governance and Corruption, Letters
Patent, 13 March 2014, p. 2.
[16]. J
Heydon AC QC, ‘Vol. 1, Appendix 1: law reform recommendations’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
The Commission, Canberra, 28 December 2015.
[17]. D
Noonan, Evidence
to Senate Education and Employment Legislation Committee, Inquiry into the
Building and Construction Industry (Improving Productivity) Bill 2013 Building
and Construction Industry (Consequential and Transitional Provisions) Bill 2013, 26 November 2013, p. 3.
[18]. D
Peetz, ‘Gillard’s other ABCC dilemma: making it work’, Crikey, 15 June 2009.
[19]. Safe
Work Australia, Work
related traumatic injury fatalities, Australia, 2014, Safe Work
Australia, Canberra, October 2015, p. 19.
[20]. Senate
Education and Employment Legislation Committee, ‘Building
and Construction Industry (Improving Productivity) Bill 2013 [No.2] and the
Building and Construction Industry (Consequential and Transitional Provisions)
Bill 2013 [No.2]’, Parliament of Australia website.
[21]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 2, 2016, 24 February 2016, pp. 13–60.
[22]. Senate
Education and Economics Legislation Committee, ‘Inquiry
into the Building and Construction Industry (Improving Productivity) Bill 2013
[Provisions] and Building and Construction Industry (Consequential and
Transitional Provisions) Bill 2013 [Provisions]’, Parliament
of Australia website, November 2013.
[23]. Senate
Education and Economics Legislation Committee, Building
and Construction Industry (Improving Productivity) Bill 2013 [Provisions] and
Building and Construction Industry (Consequential and Transitional Provisions)
Bill 2013 [Provisions], report, The Senate,
Canberra, 2 December 2013.
[24]. Ibid.,
p. 15.
[25]. Ibid.,
p. 17.
[26]. Ibid.,
p. 24.
[27]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, 11 December 2013, p. 1.
[28]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, 26 March 2014, pp. 89–126; Senate Standing Committee on
the Scrutiny of Bills, Sixth
report of 2014, 18 June 2014, pp. 258–263.
[29]. Administrative
Review Council (ARC), Federal
judicial review in Australia, report, 50, ARC, September 2012, pp.
204–205 and recommendation B4.
[30]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 92.
[31]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., pp. 6–9, 11–13 and 18.
[32]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 95.
[33]. Ibid.,
pp. 97 and 101.
[34]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., p. 8.
[35]. Ibid.,
p. 108.
[36]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., pp. 12–13.
[37]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 116.
[38]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., pp. 5–6; Fair Work Act 2009.
[39]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., p. 10.
[40]. Ibid.,
p. 16.
[41]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., pp. 100 and 113.
[42]. Ibid.,
p. 122.
[43]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., pp. 13–14.
[44]. Ibid.,
p. 13.
[45]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 119.
[46]. Ibid.
[47]. Senate
Standing Committee on the Scrutiny of Bills, Sixth
report of 2014, 18 June 2014, pp. 258–263.
[48]. Senate
Standing Committee on the Scrutiny of Bills, Sixth
report of 2014, op. cit., p. 263
[49]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., p. 15.
[50]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., p. 11.
[51]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 121.
[52]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., p. 18.
[53]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 126.
[54]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, 11 December 2013, p. 15.
[55]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., pp. 7–8, 11–12.
[56]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 105.
[57]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., pp. 106 and 114.
[58]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., p. 9.
[59]. Senate
Standing Committee on the Scrutiny of Bills, Fourth
report of 2014, op. cit., p. 111.
[60]. Senate
Standing Committee on the Scrutiny of Bills, Alert
digest, 9, 2013, op. cit., p. 18.
[61]. Senate
Education and Employment References Committee, Inquiry
into Government’s approach to re-establishing the
Australian Building and Construction Commission,
The Senate, Canberra, December 2013.
[62]. Senate
Education and Employment References Committee, Government’s
approach to re-establishing the Australian Building and Construction Commission, Report, The Senate, Canberra, 27 March 2014, recommendation 1
(p. 74).
[63]. Ibid.
[64]. Ibid.,
p. 75.
[65]. Ibid.
[66]. B
O’Connor, ‘Second
reading speech: Building and Construction Industry (Improving
Productivity) Bill 2013, Building and Construction Industry (Consequential and
Transitional Provisions) Bill 2013’, House
of Representatives, Debates, 2 December 2013, p. 1158.
[67]. Ibid.
[68]. B
O’Connor, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013 [No. 2], Building and Construction Industry (Consequential and
Transitional Provisions) Bill 2013 [No. 2]’, House of Representatives, Debates,
(proof), 3 February 2016, p. 5.
[69]. Ibid.,
pp. 6–7.
[70]. A
Bandt, Greens will fight attack on unions: Bandt, media
release, 14 November 2013.
[71]. A
Bandt, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013 [No. 2], Building and Construction Industry (Consequential and
Transitional Provisions) Bill 2013 [No. 2]’, House of Representatives, Debates,
(proof), 3 February 2016, p. 27.
[72]. N
Xenophon, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013, Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013’, Senate, Debates, 17 August 2015, p.
5375.
[73]. By
way of background, Chapter 8.2 of the Interim
report of the RCTUGC explored the interactions between Boral (a multinational
company listed on the Australian Stock Exchange) and the Construction,
Forestry, Mining and Energy Union (CFMEU), including the CFMEU’s imposition of
a ‘black ban’ on Boral. In February 2013, Boral commenced action against the
CFMEU in the Supreme Court of Victoria. In September 2015, the case was
settled, with the CFMEU agreeing not to interfere in Boral’s business for a
period of three years and to pay up to $9 million in legal expenses and
damages. It would appear that Senator Xenophon’s reference to the ‘Boral court
case’ is a reference to that litigation. See: J Heydon AC QC, ‘Chapter 8.2’, Interim
report: Royal Commission into Trade Union Governance and Corruption, The
Commission, Canberra, 19 December 2014 and cases referred to therein
involving Boral and the CFMEU. See also: Boral, CFMEU
black ban of Boral ends, ASX/ media release, 18 September 2015; E
Hannan, ‘CFMEU
agrees to leave Boral alone’, Australian Financial Review Weekend,
19 September 2015, p. 7.
[74]. N
Xenophon, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013, Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013’, Senate, Debates, op. cit., p. 5376.
[75]. Ibid.
[76]. Ibid.,
p. 5377.
[77]. J
Lambie, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013, Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013’, Senate, Debates, 5 March, p. 1315.
[78]. Ibid.
[79]. Ibid.,
p. 1318.
[80]. J
Lambie, ‘Second
reading speech: Construction Industry Amendment (Protecting Witnesses) Bill
2015’, Senate, Debates, 11 May 2015, p. 2690.
[81]. J
Madigan, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013, Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013’, Senate, Debates, 5 March 2015, p. 1301.
[82]. Ibid.
[83]. Ibid.
[84]. B
Day, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013, Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013’, Senate, Debates, 17 August 2015, p.
5363.
[85]. Ibid.
[86]. Ibid.,
p. 5365.
[87]. Australia,
Senate, Journals,
107, 2013–2015, 17 August 2016, p. 2956.
[88]. Building
and Construction Industry (Improving Productivity) Bill 2013, proposed
amendment [sheet
7687], item 1.
[89]. Australia,
House of Representatives, ‘Building
and Construction Industry (Improving Productivity) Bill’, Votes and proceedings,
15, 2012–2013, 12 December 2013, p. 253; Australia, House of Representatives, ‘Building
and Construction Industry (Improving Productivity) Bill [No. 2]’, Votes
and proceedings, 169, 2013–2014–2015–2016, 4 February 2016, pp. 1852–1853.
[90]. Australia,
Senate, Journals,
107, 2013–2015, op. cit., p. 2956.
[91]. B
Katter, ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013 [No. 2], Building and Construction Industry (Consequential and
Transitional Provisions) Bill 2013 [No. 2]’, House of Representatives, Debates,
(proof), 3 February 2016, p. 100; Australia, House of Representatives, ‘Building
and Construction Industry (Improving Productivity) Bill’, Votes and
proceedings, 15, 2012–2013, op. cit.; Australia, House of Representatives, ‘Building
and Construction Industry (Improving Productivity) Bill [No. 2]’, Votes
and proceedings, 169, 2013–2014–2015–2016, op. cit.
[92]. Australia,
House of Representatives, ‘Building
and Construction Industry (Improving Productivity) Bill 2013 [No. 2]’,
Votes and proceedings, 169, 2015–2016, 4 February 2016, p. 1851–52.
[93]. Submissions
to Senate Education and Employment Legislation Committee, Inquiry into the
Building and Construction Industry (Improving Productivity) Bill 2013 and the
Building and Construction Industry (Consequential and Transitional Provisions)
Bill 2013 (Senate Education and Employment Legislation
Committee Inquiry).
[94]. Australian
Industry Group, Submission
to Senate Education and Employment Legislation Committee Inquiry, pp. 4–5.
[95]. Housing
Industry Association, Submission
to Senate Education and Employment Legislation Committee Inquiry, p. 5.
[96]. Australian
Council of Trade Unions (ACTU), Submission
to Senate Education and Employment Legislation Committee Inquiry.
[97]. Construction,
Forestry, Mining and Energy Union (CFMEU), Submission
to Senate Education and Employment Legislation Committee Inquiry.
[98]. Explanatory
Memorandum, Building and Construction Industry (Improving Productivity) Bill
2013, p. 4.
[99]. The
Statements of Compatibility with Human Rights can be found at pages 50–65 of
the Explanatory Memorandum to the Improving Productivity Bill, op. cit., and at
pages 10–11 of the Explanatory
Memorandum to the Transitional Bill.
[100]. PJCHR,
Thirty-fourth
report of the 44th Parliament, 23 February 2016, p. 2.
[101]. PJCHR,
Second
report of the 44th Parliament, May 2014, paras 1.41–1.42, 1.49, 1.55,
1.61, 1.84, 1.101, 1.109, and 1.114; PJCHR, Tenth
report of the 44th Parliament, August 2014, p. 43 and PJCHR, Fourteenth
report of the 44th Parliament, October 2014.
[102]. PJCHR,
Tenth
report of the 44th Parliament, op. cit., para 1.200.
[103]. Ibid.,
para 1.231.
[104]. PJCHR,
Fourteenth
report of the 44th Parliament, op. cit., para 2.8.
[105]. Ibid.,
para 2.12.
[106]. Ibid.,
para 2.17.
[107]. Clauses
29 and 15; J Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
The Commission, Canberra, 28 December 2015, p. 436.
[108]. Christmas
Island is also covered by Fair Work Building Industry Act 2012 and was
also covered by the Building and Construction Industry Improvement Act 2005 and
Building and Construction Industry Improvement (Consequential and Transitional)
Act 2005.
[109]. Explanatory
Memorandum, Building and Construction Industry (Improving Productivity) Bill
2013, op. cit., p. 6.
[110]. Paragraphs
6(1)(f), (g) and (h) and subclauses 6(2), (3).
[111]. Explanatory
Memorandum, Building and Construction Industry (Improving Productivity) Bill
2013, op. cit., p. 6–7.; R Maharaj, ‘ABCC
Bill expands coverage and cracks down on picketing’, Workforce, no.
18935, 15 November 2013, p. 4; B Feltham and M Xu, ‘Australia:
the Federal Coalition's quick move to introduce IR changes’, Mondaq
website, 26 November 2013.
[112]. Paragraphs
52(b) and (c).
[113]. Fair
Work (Building Industry) Act 2012, section 45.
[114]. Ibid.,
section 47.
[115]. Ibid.,
section 49.
[116]. Ibid.,
section 54A.
[117]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., p. 459.
[118]. Paragraphs
61(2)(a), (b).
[119]. Paragraph
61(2)(c).
[120]. Subclause
61(5).
[121]. ‘Designated
building law’ is defined at clause 5 of the Bill as: the Independent Contractors
Act 1996, the Fair
Work Act 2009 or the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 or a Commonwealth
industrial instrument (which is separately defined in clause 5).
[122]. Subclauses
72(1), (2).
[123]. Clause
76.
[124]. Subclause
74(1).
[125]. Clause
77.
[126]. Subclause
72(2).
[127]. Paragraph
105(2)(b).
[128]. PJCHR,
Fourteenth
report of the 44th Parliament, op. cit., para 2.17.
[129]. Clause
61.
[130]. Clauses
64 and 65.
[131]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., p. 459.
[132]. ‘Use’
immunity is defined as where a person is required to answer questions which
would tend to incriminate or expose him or herself to a penalty, any
information or evidence given that would tend to incriminate the person may not
be used against him or her directly in court. In comparison, ‘derivative use’
immunity is where any information or evidence given that would tend to
incriminate the person may not be used to gather other evidence against that
person: Attorney-General’s Department (AGD), A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, AGD, Canberra, September 2011, pp. 97, 98.
[133]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., para 1.55 (p. 457).
[134]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., p. 459.
[135]. Ibid.,
p. 458
[136]. Ibid.,
p. 454.
[137]. PJCHR,
Tenth
report of the 44th Parliament, op. cit., para 1.231.
[138]. In
addition, intentionally providing false or misleading information or documents
would be an offence (punishable by 12 months imprisonment) under either section
137.1 or 137.2 of the Commonwealth Criminal Code Act 1995.
[139]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., paras 118–129 and p. 459.
[140]. O’Neill
and Neilsen, Bills Digest 2009–10, op. cit., p. 25.
[141]. Clause
5, subclause 81(2) of the Bill. See subsections 4(1) and 49(2) of the BCII
Act. Under section 4AA of the Crimes Act 1914,
a penalty unit is $180.
[142]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., recommendation 66, p. 478.
[143]. Explanatory
Memorandum, Building and Construction Industry (Improving Productivity) Bill
2013, op. cit., p. 8.
[144]. Building
and Construction Industry Improvement Act 2005, subsection 36(1) and
section 37(a).
[145]. Subclause
8(3).
[146]. Paragraph
8(2)(a).
[147]. Paragraph
8(2)(b).
[148]. New
South Wales v Commonwealth 81 ALJR 34, 231 ALR 1, [2006] HCA 52.
[149]. See
also: Industrial
Relations (Commonwealth Powers) Act 2009 (NSW); Fair
Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld); Fair
Work (Commonwealth Powers) Act 2009 (SA); Industrial
Relations (Commonwealth Powers) Act 2009 (Tas); Fair
Work (Commonwealth Powers) Act 2009 (Vic).
[150]. For
a detailed analysis of the constitutional coverage, see the discussion in fn 28
in P Prince and J Varghese, Building
and Construction Industry Improvement Bill 2003, Bills digest, 129,
2003–2004, Parliamentary Library, Canberra, 2004 and fn 15 in P Prince, Building
and Construction Industry Improvement Bill 2005 [and] Building and
Construction Industry Improvement (Consequential and Transitional) Bill 2005,
Bills digest, 139–140, 2004–2005, Parliamentary Library, Canberra, 2005.
[151]. Building
and Construction Industry Improvement Act 2005, subsection 36(1) and
paragraph 37(a).
[152]. PJCHR,
Fourteenth
report of the 44th Parliament, op. cit., para 2.8.
[153]. Subclause
47(1).
[154]. Subparagraph
47(2)(b)(i).
[155]. Subparagraph
47(2)(b)(ii).
[156]. Subparagraph
47(2)(b)(iii).
[157]. Explanatory
Memorandum, Building and Construction Industry (Improving Productivity) Bill
2013, op. cit., p. 59.
[158]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., recommendation 66, p. 478.
[159]. PJCHR,
Fourteenth
report of the 44th Parliament, op. cit., para 2.12.
[160]. C
Pyne (Minister for Education), ‘Second
reading speech: Building and Construction Industry (Improving Productivity)
Bill 2013’, op. cit., p. 15.
[161]. See
ACTU, Submission
to Senate Education and Employment Legislation Committee Inquiry, op. cit., p.
26.
[162]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., recommendation 65, p. 478.
[163]. Explanatory
Memorandum, Building and Construction Industry (Improving Productivity) Bill
2013, op. cit., p. 23.
[164]. Cauchi
v Metal Coat [2010]
FMCA 971.
[165]. T
MacDermott, ‘Challenging
age discrimination in Australian workplaces: from anti-discrimination
legislation to industrial regulation’, UNSW Law Journal 34(1), p.
204.
[166]. See
for example: T MacDermott, ‘Challenging
age discrimination in Australian workplaces: from anti-discrimination
legislation to industrial regulation’, op. cit., p. 204; Hammond v
Boutique Kitchens & Joinery Pty Ltd (2010)
198 IR 336, [2010]
FMCA 622 (16 August 2010); Liquor Hospitality and Miscellaneous Union v
Arnotts Biscuits Ltd (2010) 188 FCR 221, [2010]
FCA 770 (23 July 2010).
[167]. Explanatory
Memorandum, Building and Construction Industry (Improving Productivity) Bill
2013, op. cit., p. 23.
[168]. PJCHR,
Tenth
report of the 44th Parliament, op. cit., para 1.200.
[169]. Building
and Construction Industry Improvement Act 2005, section 28.
[170]. Senate
Education and Economics Legislation Committee, Building
and Construction Industry (Improving Productivity) Bill 2013 [Provisions] and
Building and Construction Industry (Consequential and Transitional Provisions)
Bill 2013 [Provisions], report, The Senate,
Canberra, 2 December 2013, p. 19.
[171]. Fair Work (Building
Industry) Regulations 2005.
[172]. Paragraph
49(c) provides that if specified provisions of the Fair Work Act 2009
are contravened by a body corporate, the maximum penalty is 1,000 penalty
units, compared to a maximum of 300 penalty units that would apply directly
under the Fair Work Act.
[173]. Subclauses
67(5) and 69(5) respectively provide that the penalty is one penalty
unit.
[174]. J
Heydon AC QC, ‘Vol. 5: law reform and policy’, Final
report of the Royal Commission into Trade Union Governance and Corruption,
op. cit., p. 458.
[175]. Clause
5.
[176]. Clauses
52–54.
[177]. However,
as noted by the Administrative Review Council, agencies generally ‘exercise
their coercive information-gathering powers only after careful assessment of
the need to do so, and this includes consideration of alternative ways of
obtaining the desired information’: Administrative Review Council, ‘The
coercive information-gathering powers of government agencies’, report, 48,
May 2008, p. 13. There is no legal requirement that the ABC Commissioner must adopt
the same approach.
[178]. Fair
Work Act 2009, section 707.
[179]. Fair Work Act 2009, section 717.
[180]. These
powers are provided by sections 59C and 59E of the Fair
Work (Building Industry) Act 2012, which refers to parts of the Fair
Work Act 2009.
[181]. Under
both the FWBI Act and the Bill, Federal Safety Officers effectively have
the same powers as FWBI Inspectors. However, under the Bill Federal Safety
Officers can only exercise those powers in relation to monitoring compliance
with the accreditation scheme (under the FWBI they could monitor compliance
with the Building Code). For completeness the table sets out the powers again.
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