Australia: Building and Construction Industry (Improving Productivity) Bill 2013

by DLA Piper
Contact

The Building and Construction Industry (Improving Productivity) Bill 2013 (the Bill) was introduced into Parliament on 14 November 2013.

The stated aim of the Bill is to substantially replicate the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act).

In light of recent press regarding alleged corruption and links between construction unions and organised crime and the royal commission into union activities, we thought it would be useful to set out the general intent of the Bill. This update also provide further detail regarding key requirements applicable to Commonwealth funded construction and infrastructure projects.

Background to the Bill

The BCII Act responded to the workplace relations recommendations of the Cole Royal Commission, which reported in 2003, and was aligned with the workplace relations regime under the Workplace Relations Act 1996 (Cth). Among other things, the BCII Act established the Australian Building and Construction Commission (ABCC) to regulate the building and construction industry.

Following the change of government in 2007 and the replacement of the Workplace Relations Act 1996 (Cth) with the Fair Work Act 2009 (Cth), the BCII Act was replaced with the Fair Work (Building Industry) Act 2012 (Cth) (FW(BI) Act). The FW(BI) Act replaced the ABCC with the Office of the Fair Work Building Inspectorate, removed certain of the regulator's powers and also removed the building industry specific laws which provided high penalties for breaches of industrial laws.

What the Bill does

The Bill:

  • replaces the Office of the Fair Work Building Inspectorate with the ABCC;
  • provides the ABCC with the powers that, according to the Explanatory Memorandum, 'proved strong and effective under the BCII Act'; and
  • includes building industry specific provisions relating to unlawful action and coercion and restores higher penalties for contraventions of those provisions (the maximum penalty amount for breach by corporations under the Bill is $170,000, compared with $51,000 under the Fair Work Act).

The introduction of the Bill is part of the Government's agenda to deal with what has been described as union militancy in the construction sector.

The Bill also deals with two key requirements, each of which applies to building work funded, whether directly or indirectly, by the Commonwealth or a Commonwealth authority, namely:

  • OHS Accreditation Scheme; and
  • Building Code 2013.

OHS Accreditation Scheme

The OHS Accreditation Scheme (Scheme) is established under the FW(BI) Act.

Apart from a change in terminology (from occupational health and safety to work health and safety) there are no material changes to the Scheme under the Bill. The transitional arrangements expressly preserve the Scheme.

Building Code 2013

Under the FW(BI) Act, the Minister may issue a code of practice that is to be complied with by persons in respect of building work. The Building Code 2013 (the Code) was issued in January 2013 and commenced on 1 February 2013.

The Minister's power to issue a code of practice under the Bill is largely unchanged. However, there is a new provision in the Bill which permits the ABCC to direct persons required to comply with the Code to provide information detailing the extent of compliance.

Unlike the Scheme, there is no express preservation of the Code under the transitional arrangements. This is consistent with the Government's previous statements that it intends to re-write the Code to align it with the equivalent codes issued by Victoria, Queensland and New South Wales.

In his Second Reading speech, Minister Pyne explained that a new statutory code is being developed that was intended to commence at the same time as the re-established ABCC on 1 January 2014. For the reasons set out below, that date has not been met.

Extended application of the Bill

The Bill also amends the definition of 'building work'. This is significant, as the Scheme and Code each apply to 'building work' as defined. Under the Bill 'building work' is amended to:

  • expressly include off-site prefabrication of made-to-order components which form part of any building structure or work. Under the FW(BI) Act, only on-site pre-fabrication is specified as an example of preparatory work; and
  • include the transport or supply of goods, to be used in building work, directly to building sites where that work is being or may be performed. The Explanatory Memorandum states that this is not intended to cover the manufacture of such goods.

These changes would significantly expand the application of the Code and, to a lesser extent, the Scheme. This is because while the Scheme applies to head contractors only, the Code applies to head contractors and all subcontractors at any point in the contracting chain. The rationale behind these changes, as explained in the Second Reading speech, is to ensure that large resource construction projects cannot be indirectly disrupted through co-ordinated 'go-slows' on the supply of materials.

Finally, the Bill provides that it applies to any resources platform and certain ships in Australia's exclusive economic zone or in waters above the continental shelf. This new provision aligns the application of the Bill with the Fair Work Act 2009 (Cth).

What to expect next

Labor and the Greens oppose the Bill and are expected to prevent the legislation from passing the Senate before the make-up of the Upper House changes on 1 July 2014. On this basis, none of the FW(BI) Act, the Code or the Scheme are expected to change before mid-2014.

To counteract this opposition, the Government is said to be considering the extent to which it can implement change without parliamentary approval. In late 2013, the Minister appointed Nigel Hadgkiss (formerly Deputy Commissioner of the ABCC) as Director of the Fair Work Building Inspectorate and the Hon. John Loyd (formerly Commissioner of the ABCC) as Chair of the Fair Work Building Inspectorate's Advisory Board.

Mr Hadgkiss has been reported as saying that he will go back to the future and take a hard line approach to the building industry. Building industry participants will no doubt be watching closely the approach taken by Mr Hadgkiss and the Fair Work Building Inspectorate, as it operates within the FW(BI) Act, at least for now.

We will continue to monitor developments relevant to the Bill and provide you with future updates.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper
Contact
more
less

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.