In this article we address the amendments to the building and construction industry for employers. This includes the abolishment of the Australian Building and Construction Commission, the creation of the National Construction Industry Forum and the carve out for employers in relation to enterprise bargaining.
(Secure Jobs, Better Pay Bill) 2022 – Amendments to the Building & Construction Industry
This article is the second part in our series on the Secure Jobs, Better Pay Bill 2022 (‘the Bill’) and focuses on the amendments to the building and construction industry and addresses the considerations for employers in this industry.
Our review of the changes on workplace laws following the Bill have been covered in a series of 3 articles:
- Article 1: What Does it mean for Employers?
- Article 2: Amendments to the building and construction industry
- Article 3: Bargaining and Enterprise Agreements
Australian Building and Construction Commission
The Australian Building and Construction Commission has now been abolished following the introduction of the Bill. The Fair Work Ombudsman will now become the regulator responsible for enforcing the Act in the building and construction industry. All existing proceedings in the Australian Building and Construction Commission will be transferred to the Fair Work Ombudsman.
The Code for the Tendering and Performance of Building Work 2016 has been repealed and will be amended either by proclamation or on 6 February 2023. The repealed provisions relate to the penalties for building industry participants and matters such as unlawful industrial action, coercion, adverse action, freedom of association and discrimination will now be dealt with under the Fair Work Act.
Key Takeaway: The move to be governed by the Fair Work Act is of benefit for employers to ensure consistency and minimise potential disputes with disparity between the different legislation. It is recommended that companies should review their industrial relations policies now following the abolishment of the Australian Building and Construction Commission and ensure their familiarity with the requirements of the Fair Work Act in terms of right of entry, unlawful industrial action, coercion, adverse action, and discrimination.
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National Construction Industry Forum
The National Construction Industry Forum will be established to provide advice to the Federal Government relating to work in the building and construction industry. This has been included to alleviate potential concerns of the abolishment of the Australian Building and Construction Commission and ensure greater accountability.
The Forum will comprise of the Minister for Employment and Workplace Relations, the Minister for Industry and Science, the Minister for Infrastructure, Transport, Regional Development and Local Government and members appointed by the Minister for Employment and Workplace Relations.
The Forum must meet twice per year and will advise on matters relating to workplace relations, skills and training, safety, productivity, diversity, gender equity, diversity and culture. The Forum will be established on 1 July 2023.
Building and Construction Carve-Out
The building and construction industry will now no longer be subject to the multi-employer bargaining provisions of the Fair Work Act.
The carve out applies to all building and construction work (as defined in paragraph 4.3 of the Building and Construction General On-site Award 2020) which states that building and construction means:
- the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;
- site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within the proceeding clause; and
- the installation in any building, structure or works of fittings and services;
The carve out does not include work that is civil construction, metal and engineering construction, manufacturing and associated industries and occupations, joinery and building, electrical services, plumbing or fire sprinkler fitting, black coal mining, mining, quarrying, concrete products, premixed concrete and lift, escalator, air-conditioning or ventilation installation, major modernisation, serving, repair or maintenance.
Key Takeaway: The impact of the carve out is that employers and employees cannot bargain together and will be required to negotiate individually rather than collectively. Employers in the building and construction industry should also be aware of the changes to the implementation and use of fixed term contracts, equal pay, sexual harassment laws, flexible working arrangements and small claims jurisdiction as examined in our first article of the series.
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Roberts Crosbie Mortensen works with Builders and construction companies to assess risk and resolve disputes.
If you have employees, it is important to ensure that you comply with the terms of the Fair Work Act, which include the amendments discussed in this article. Roberts Crosbie Mortensen offer a free 30-minute consultation for employers to discuss management of potential issues and ensure that your company is best placed to avoid any potential disputes with employees or contractors.
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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.
