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The Australian Industrial Relations Commission is a federal organisation, and the Commission exercises a range of powers under the Workplace Relations Act 1996 (WR Act), including:
- preventing and settling industrial disputes;
- facilitating agreement making between employers and employees;
- hearing unfair dismissal applications; and,
- dealing with matters concerning industrial organisations.
The Commissioner of the ABCC has a right to intervene in any AIRC case that involves either a building industry participant or building work under the Building and Construction Industry Improvement Act (BCII Act).
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An award is an enforceable document that sets out minimum wages and other conditions of employment for specified employees.
Federal awards are currently undergoing an award modernisation process by the AIRC.
Modern awards will operate in conjunction with the new Australian workplace relations system from January 2010.
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The BCII Act, the Act that came as a result of the findings from the Cole Royal Commission, provides an improved workplace relations framework for the building and construction industry.
The Act was designed to ensure that all building work is carried out fairly, efficiently and productively by:
- Encouraging genuine bargaining at the workplace level;
- Ensuring that building industry participants are accountable for their unlawful conduct;
- Providing effective means for investigation and enforcement of relevant laws;
- Improving occupational health and safety (OHS); and,
- Ensuring respect for the rights of building industry participants.
The Building and Construction Industry Improvement Act (Transition to Fair Work) Bill was introduced into the Australian Parliament on 18 June 2009. If the Bill is passed in current form, the BCII Act will be replaced by the Fair Work (Building Industry) Act 2009.
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A building industry participant can mean a building employee, a building employer, a building contractor, a subcontractor, a building association, or an officer, delegate or other representative of a building association.
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Building work can be defined as all activities relating to the erection, renovation, alteration or removal of a new or existing structure.
The ABCC has jurisdiction over a very broad range of building work throughout Australia, with the exception of mining and drilling activity and single-dwelling homes. The ABCC’s main focus is on commercial building projects and significant residential building sites.
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Commercial construction can be defined as building work that, once the structure is completed, may be used for commercial purposes. This may include shops, offices, public buildings and factories.
The ABCC has jurisdiction over commercial construction sites and some residential building sites.
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Powers contained under Section 52 of the BCII Act enables the ABCC to compel a person to provide information, documents and/or give evidence under oath or by way of affirmation. As a protection against self-incrimination, information provided under Section 52 cannot be used against the individual providing it.
They are designed to ensure ABCC investigations into unlawful conduct are not jeopardised by individuals who would otherwise refuse to cooperate voluntarily – Eg. out of fear of reprisal.
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Enterprise bargaining agreement (EBA) is another name for a collective workplace agreement between an employer and specified employees which is formally approved by the Workplace Authority.
An EBA covers rates of pay and other conditions of employment and takes precedence over an award.
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An employer association is a body which represents the interests of employers in one industry. The Master Builders Association of Western Australia is an example of an employer association representing the interests of Victorian building and construction employers.
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The Fair Work Act is the Federal Governments new Industrial Relations legislation. The Fair Work Act sets out Minimum Employment Standards, changes to the unfair dismissal laws and right of entry provisions.
The Fair Work Act has now been passed in the Australian Senate and replaces the WR Act. Part of the Act comes into effect on 1 July 2009, with the Act taking full effect from 1 January 2010.
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Freedom of association refers to the principle that everyone in Australia is free to choose whether to join a union or an employer organisation. The right to freedom of association is explicit in the Australian Constitution, and breaches of this right were a major focus in the Cole Royal Commission.
Under the WR Act, the Fair Work Act and the BCII Act, it is against the law to pressure or force someone to join (or not join) a union or an employer association.
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The Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry (the Guidelines) provide further detail on Code compliance requirements.
Parties wishing to ensure compliance with the Code should use the Guidelines as their first point of reference as they provide a practical guide to following the Code.
Compliance with the Code and Guidelines is compulsory on all directly funded projects, and indirectly projects where the Australian Government’s contribution is at least $5 million and represents at least 50 per cent of total construction, or where the contribution is $10 million or more.
New Guidelines were released on 9 July 2009. From 1 August 2009, all new projects that are funded by the Australian Government will be required to adhere to the new Guidelines.
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Under both the WR Act, the Fair Work Act and the BCII Act, it is against the law to pressure or force someone to join (or not join) a union or an employer association.
An action based on a genuine concern over an imminent risk to health and safety is not considered to be ‘industrial action’, provided that the employee did not unreasonably fail to comply with a direction of his/her employer to perform other safe available work.
The WR Act and the Fair Work Act allows parties negotiating a workplace agreement limited rights to take industrial action. If industrial action satisfies the requirements of the Act, it is treated as “protected”. That means that the party taking the action enjoys limited protection from legal liability.
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The National Code has been part of Australian Government funded construction activity since 1997. The Code is read in conjunction with the Australian Government’s Implementation Guidelines. Together the Code and Guidelines set out the principles that direct the way business is conducted on these projects, including:
- Compliance with all applicable formal workplace agreements and/or awards;
- Compliance with the law regarding freedom of association, right of entry and strike pay;
- Maintaining high standards in occupational health, safety and rehabilitation;
- Acting honestly and fairly in contractual relationships;
- Taking a positive approach toward improving productivity through flexible workplace practices and working arrangements; and
- Compliance with Australian Government industrial relations policy in the building industry.
Compliance with the Code and Guidelines is compulsory on all directly funded projects, and indirectly projects where the Australian Government’s contribution is at least $5 million and represents at least 50 per cent of total construction, or where the contribution is $10 million or more.
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Pattern bargaining is the process where a trade union bargains for favourable pay and employment conditions with one employer and then uses this agreement to influence or coerce other employers to match or better the offer.
Under the WR Act and the Fair Work Act, protected industrial action cannot be taken in pursuit of pattern bargaining.
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Union officials do not have an automatic right of entry onto a building site. To exercise a right of entry, a union official must hold a permit issued under the WR Act and / or the Fair Work Act from 1 July 2009.
If entering for industrial purposes, the permit holder must provide an entry notice to the occupier of the site at least 24 hours (but less than 14 days) prior to entry. The entry notice provided by the permit holder must specify the section of the WR Act and / or the Fair Work Act authorising entry, the particulars of any suspected breach where applicable, and the date of entry.
Right of entry in regards to OHS issues is regulated by the applicable state OHS law. In Victoria, it is the Victorian Occupational Health and Safety Act 2004. Union officials seeking to exercise a right of entry under OHS reasons must fully comply with all requirements under the state OHS law – and in addition, hold a permit under the WR Act or the Fair Work Act, exercise their right of entry during working hours and comply with any reasonable request from the occupier to comply with OHS requirements applying to the premises.
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Strike pay is the payment of workers engaged in industrial action. Strike pay is unlawful.
Under both the WR Act, the Fair Work Act and BCII Act, making strike payments is illegal as is being in receipt of such payments.
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A subcontractor is a specialist building entity. A head contractor allocates responsibility for a particular part of building work to be done to a specialist supplier of construction services, such as a concreter or a plumber.
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A trade union is an organisation of employees which are limited to persons engaged in one industry or trade. The construction chapter of the CFMEU is an example of a trade union that represents construction employee’s interests.
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The BCII Act prohibits unlawful industrial action. Persons or organisations that engage in unlawful industrial action are liable to prosecution and substantial fines.
Under the BCII Act, industrial action on commercial building sites that is ‘industrially motivated’ (for example, action that is aimed at disrupting the performance of work), ‘constitutionally connected’ and not ‘excluded action’ (for example, protected industrial action under the WR Act) is unlawful.
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The Federal WR Act is the primary Commonwealth legislation governing the Federal industrial relations system. The Act includes provisions regarding certified agreements, freedom of association, industrial action, right of entry, termination of employment and various other areas related to industrial relations.
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