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Re-establishing the ABCC

February 21, 2014 0 Comments

Building and Construction Industry ChangesLast year when the Coalition came to Government, a key policy promise was to re-establish the Australian Building and Construction Commission (ABCC). On November 14, 2013 they began the process with the introduction into Parliament of the Building and Construction Industry (Productivity) Bill 2013. It is important once again to understand what impact this has, not just on the Civil Construction Industry, but across the entire Building and Construction Industries.

The first thing to consider is that the Bill is unlikely to get passed straight away due to the fact that the Government will likely need to wait until July 2014 at which point the structure of the Senate will change.

The Bill, when it is passed in the middle of the year, will provide the ABCC Commissioner with additional tools and levels of authority in order to regulate the building and construction industry. It is not a complete return to the previous coalition legislation because some of these changes did not exist previously.

So What are Some of the Key Changes?

  • The Bill has an extended definition of “building work” which includes off-site prefabrication of made-to-order components for parts of buildings, structures or works, and the transporting or supplying of goods to be used in building work. The intention here is to ensure that large civil construction, infrastructure or resource projects are not indirectly disrupted by co-ordinated go-slows on the supply of materials.
  • The Bill will extend the ABCC’s reach to any resources platform in the exclusive economic zone, or in waters above the continental shelf, and to any vessel in these designated areas that is traveling to and from an Australian port. Essentially, this will provide the Australian Building and Construction Commission with powers to investigate any building work occurring offshore that was previously outside its area of control.
  • The most significant new provision in the Bill deals with unlawful action or picketing. Specifically the Bill defines an unlawful picket as action that: “has the purpose of preventing or restricting a person from accessing or leaving a building site or ancillary site; directly prevents or restricts a person accessing or leaving a building site or an ancillary site; or would reasonably be expected to intimidate a person from accessing or leaving a building site or an ancillary site; and that is motivated for the purposes of supporting or advancing claims in respect of the employment of employees or the industrial objectives of a union, or is otherwise unlawful.” This description has specific meaning and consequences and will no doubt be important as the legislation is tested.Importantly, a reverse onus of proof applies in relation to any alleged unlawful picketing. This means that if it is alleged that a person organised or engaged in an the unlawful action for a particular reason or intent, then it will be presumed that they did so for that reason unless the person proves otherwise.As under the previous Australian Building and Construction Commission legislation, unlawful industrial action is prohibited, as are coercion and discrimination. The Bill expressly provides an avenue for a person to apply for an injunction to stop either unlawful industrial action or unlawful picketing.

There are a number of other important changes that relate to Project Agreements, Penalties and Compensation, Legal Costs and Coercive Powers. Once the Bill is passed in its final form there will no doubt be further information provided to all sectors of the Civil and Commercial Construction Industries on all sides to ensure as much clarity as possible.

It is wise to seek independent legal counsel to ensure you are competent in the new regulations and how they will affect you and your organisation.

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