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Building and Construction Industry Improvement Bill 2003

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2002-2003

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT BILL 2003

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and

Workplace Relations, the Honourable Kevin Andrews MP)

 

 



BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT BILL 2003

 

 

OUTLINE

 

The Building and Construction Industry Improvement Bill (the Bill) is the Government’s legislative response to the workplace relations recommendations of the Royal Commission into the Building and Construction Industry.  The Royal Commission’s report was tabled in the Parliament on 26 and 27 March 2003.

 

The legislation will:

 

·            establish the Australian Building and Construction Commissioner (ABC Commissioner) and the Federal Safety Commissioner;

·            improve the bargaining framework by focussing on genuine bargaining at the enterprise level, restricting pattern bargaining and providing for mandatory ‘cooling off’ periods during which protected industrial action is not permitted;

·            make unlawful all industrial action within constitutional limits, other than protected industrial action, with industry participants able to recover any losses they suffer due to unlawful action;

·            strengthen freedom of association provisions so that a wider range of inappropriate behaviour identified by the Royal Commission is effectively dealt with;

·            enhance the right of entry system to clearly spell out parties’ rights and responsibilities, and limit scope for State law to be used to circumvent Federal requirements;

·            ensure that registered organisations are accountable for the actions of their officials and employees; and

·            improve the compliance regime, by increasing penalties and enhancing access to damages for unlawful conduct.

The Bill is made up of 13 Chapters. 

 

Chapter 1 contains the objects of the Act. The main object of the Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole. The Chapter also contains definitions and machinery provisions.

 

Chapter 2 is the Government’s response to the Royal Commission’s recommendation to establish a regulatory body for the building and construction industry. The body is to be headed by the ABC Commissioner and will have wide ranging powers to monitor, investigate and enforce Federal workplace relations law and the Building Code, and refer other matters to the appropriate Federal, State or Territory agency.

 

Chapter 3 allows the Minister to issue a Building Code.   This goes towards implementing the Royal Commission’s recommendations that the Commonwealth use its purchasing powers as a building client to foster cultural change in the building and construction industry. The Chapter also sets out obligations to report on Building Code compliance.

 

Chapter 4 is the Government’s response to the Royal Commission’s recommendations concerning Occupational Health and Safety (OHS).  The Chapter establishes the Federal Safety Commissioner, and provides for the establishment of an OHS accreditation scheme to be administered by the Federal Safety Commissioner.  The accreditation scheme will ensure that any person wishing to contract with the Commonwealth for building work must meet certain OHS standards.  Chapter 4 also contains provisions dealing with the process to be followed in cases where employees stop work due to OHS concerns.  The new provisions will ensure that employees who abide by the proper processes will be entitled to be paid while addressing the Royal Commission’s concern about misuse of OHS for industrial purposes.

 

Chapter 5 contains provisions relating to awards and certified agreements in the building industry as well as other provisions about employment conditions.  This Chapter is the Government’s response to recommendations of the Royal Commission to simplify awards and impose some additional requirements for making certified agreements in the building and construction industry.  In addition to the Royal Commission proposals, the Bill also provides for the further simplification of awards, in line with the Government’s broader award simplification agenda.  Due to the complexity of awards in this industry, further award simplification is a vital and urgent area of reform.

 

The Chapter also implements Royal Commission recommendations in relation to pattern bargaining by:

 

·            making it clear that pattern bargaining is not genuine bargaining;

·            providing that the ABC Commissioner or any other person can seek an injunction to stop pattern bargaining conduct;

·            providing an opportunity for employees to vote on whether they wish to be represented by a union in agreement negotiations;

·            rendering project agreements not certified under the Workplace Relations Act (WR Act) unenforceable.

 

Chapter 6 is the Government’s response to the Royal Commission’s recommendations in relation to industrial action.  It makes certain forms of industrial action unlawful and provides improved access to sanctions against unlawful industrial action in the form of injunctions, pecuniary penalties and compensation for loss.

 

Employers will be required to notify the ABC Commissioner of threatened or actual industrial action and of the cessation of unlawful industrial action.  It provides additional requirements for accessing protected industrial action for single business agreements including:

 

·            mandatory cooling-off periods after 14 days of industrial action; and

·            a requirement for a secret ballot of employees to approve industrial action.

 

Consistent with the Royal Commission’s recommendation that a new “statutory norm” of industrial action be established to bring greater clarity to the regulation of industrial action, these provisions, subject to constitutional limitations, apply broadly within the building and construction industry.

 

Chapter 7 is the Government’s response to the Royal Commission’s recommendations to improve freedom of association in the building and construction industry. The Royal Commission found that the objects of Part XA of the WR Act are being thwarted in the building and construction industry and that the principles of freedom of association are being undermined. The Chapter enhances the freedom of association legislative regime in the building and construction industry by:

 

·            providing a number of general prohibitions that apply to all building industry participants to deal with what the Royal Commission found to be the most common forms of inappropriate conduct;

·            making improvements to various existing freedom of association provisions, particularly in relation to enhanced protection for independent contractors and their employees; and

·            providing greater penalties for contravention of the freedom of association provisions.

 

Consistent with the Royal Commission’s recommendations, the freedom of association provisions, subject to constitutional limitations, apply broadly within the building and construction industry.

 

Chapter 8 is consistent with recommendations of the Royal Commission designed to eliminate coercion and discrimination in the industry.  It prohibits the coercion of persons in relation to the engagement of subcontractors and employees and coercion or undue pressure in relation to certified agreements or choice of superannuation fund.  Discrimination on the basis of the type of, or parties to, an industrial instrument covering a person’s employees is also prohibited.

 

Chapter 9 is the Government’s response to the recommendations of the Royal Commission relating to right of entry. The Royal Commission considered improving compliance with right of entry provisions to be a key reform priority. This Chapter:

 

·            strengthens the provisions for dealing with the issue, suspension and revocation of right of entry permits;

·            imposes a “fit and proper person” requirement for union officials seeking a right of entry permit;

·            more clearly sets out the rights and obligations of union officials, employers and occupiers of premises;

·            empowers the Australian Industrial Relations Commission (AIRC) to deal with abuses of the right of entry system; and 

·            imposes greater penalties for contravention of the right of entry provisions.

 

Consistent with the Royal Commission’s recommendations, the right of entry provisions, subject to constitutional limitations, apply broadly within the building and construction industry. However, the new right of entry regime does not impinge upon any right of entry provided for under occupational health and safety legislation.

 

Chapter 10 is the Government’s response to the Royal Commission’s recommendation to further enhance the accountability of registered building organisations. The measures provided for in the Chapter include: 

 

·            the availability of court orders to deal with transactions entered into by organisations, where the effect is, or might be, to put income or assets beyond the reach of creditors;

·            improved financial accountability of organisations, including disclosing particulars of specified donations and complying with enhanced financial reporting requirements;

·            providing for the deregistration of an organisation for failure to pay a judgment debt; and

·            the disqualification of organisation officials in specified circumstances.  

 

Chapter 11 is consistent with the Royal Commission’s recommendations in relation to demarcation disputes. The measures provided for in the Chapter include:

 

·            extending the right to apply for representation orders to the ABC Commissioner and any person who may be adversely affected by a demarcation dispute; and

·            providing that persons who suffer loss by reason of a contravention of a representation order are entitled to bring proceedings to recover a civil penalty.

 

Chapter 12 is divided into 2 parts. This Chapter is the Government’s response to the Royal Commission’s recommendations to enhance compliance with relevant laws in the building and construction industry, including by providing an appropriate investigatory and enforcement regime.

 

Part 1 sets out penalties for contravention of civil penalty provisions, orders that a court may make, and who may apply for these orders.

 

The measures in Part 1 include:

 

·            giving the ABC Commissioner standing to bring proceedings for contraventions of civil penalty provisions; and

·            introducing a two-tier civil penalty regime - the first tier which deals with more serious contraventions provides for a maximum penalty of 1000 penalty units for a body corporate (200 penalty units in other cases); the second tier, which deals with less serious contraventions provides for a maximum penalty of 100 penalty units for a body corporate (20 penalty units in other cases).

 

Part 2 sets out the compliance powers of the ABC Commissioner, Australian Building and Construction Inspectors (ABC Inspectors) and Federal Safety Officers.

 

Chapter 13 deals with miscellaneous matters, including the following matters recommended by the Royal Commission:

 

·            making organisations responsible for the conduct of their officials, employees and members, unless they take reasonable steps to prevent such conduct;

·            the protection and dissemination to other agencies of confidential information;

·            the power of the ABC Commissioner to intervene in court and Commission proceedings;

·            jurisdiction of courts, particularly in relation to unlawful industrial action; and

·            protection against liability of officials for conduct in good faith.

 

FINANCIAL IMPACT STATEMENT

 

Australian Building and Construction Commissioner and Federal Safety Commissioner

 

The Commonwealth will incur costs in establishing the agency to be headed by the Australian Building and Construction Commissioner and support for the role of the Federal Safety Commissioner. 

 

Proper and adequate funding will be provided for these functions.  An appropriation of $5 million has been made to cover initial establishment costs.

 

Secret Ballots

 

The requirement for protected action to be preceded by a secret ballot will involve costs for the Commonwealth.  The Commonwealth will be liable for 80 per cent of the reasonable costs incurred in holding such ballots.

 

Other

 

The Bill will confer additional jurisdiction on federal courts, the Australian Industrial Relations Commission and The Australian Industrial Registry. 

 



REGULATION IMPACT STATEMENT

 

 BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT BILL 2003

Overview

This Bill marks the final phase of the Government’s response to the workplace relations recommendations from the Royal Commission into the Building and Construction Industry (the Royal Commission).  The Royal Commission’s recommendations have formed the basis of the Government’s proposed reforms. During the second phase, the Government has consulted with industry participants - unions, peak employer associations, contractors, employees and small business as well as the general public and State and Territory governments to seek their views on the proposed reforms.  The third phase has been the development of the Building and Construction Industry Improvement Bill 2003 (the BCIIB) which addresses 120 of the Royal Commission’s 212 recommendations. The Government is taking steps to address separately the other recommendations concerning tax evasion, phoenix companies and non-payment of workers’ entitlements. In some cases the Australian Government has already introduced legislation that addresses these matters.

Current Situation

1.       Participants in the building and construction industry are currently regulated in the same manner and to the same extent as all other industries covered by the Workplace Relations Act 1996 (the WR Act).  Employees and employers are subject to a range of obligations imposed by the WR Act and by awards and agreements made under it.  The WR Act has been amended on a number of occasions since 1996 to improve its operation.

2.       This regulation impact statement outlines measures included in the BCIIB.  The BCIIB measures described below, in conjunction with other recommended measures, will effect structural and cultural change in the building and construction industry.

Problem

3.       The Royal Commission was established to conduct inquiries into the unlawful or otherwise inappropriate practice and conduct in the building and construction industry. 

4.       The Royal Commission’s inquiry was focussed on the commercial building and construction industry which includes non-residential building and engineering construction sectors and is worth $40 billion. The Royal Commission found an industry characterised by a widespread disregard for the law and an unacceptable record in terms of compliance with occupational health and safety (OHS) regulation.  The Royal Commission also identified significant weakness in current structures for enforcing the law in this industry.

5.       The final report of the Royal Commission provides compelling evidence of the need for reform in this industry.  It catalogues over 100 types of unlawful and inappropriate conduct.  The findings demonstrate “an industry which departs from the standards of commercial and industrial conduct exhibited in the rest of the Australian economy.  They mark the industry as singular.  The findings indicate an urgent need for structural and cultural reform.”  (Vol 3 P5.11). 

6.       The industry’s lawlessness is manifested as criminal conduct, unlawful conduct, including breaches of the WR Act and OHS legislation, and a disregard for revenue statutes.  The report concludes that at the root of this lawlessness is a reality that “those engaging in unlawful conduct will not be held to account by criminal proceedings, proceedings for penalties or for loss occasioned to others by unlawful conduct.” (Vol 3 P5.12).  The Royal Commission portrayed an environment where the behaviours and conduct of the parties maintain a culture that tolerates lawlessness.

7.       Existing regulatory bodies have insufficient powers and resources to enforce the law in this industry.  The Royal Commission found that currently there is no Australian Government agency that provides complete and effective regulatory coverage of the building and construction industry: some existing Australian Government authorities, such as the OEA, lack the resources and powers to sufficiently enforce regulation in the industry; whereas, some organisations such as the police forces consider ‘industrial matters’ to be outside the scope of their responsibility.  Further, current penalties are insufficient to discourage unlawful behaviour.

8.       The Interim Building Industry Taskforce (the Taskforce) was established following a recommendation in the first report of the Royal Commission to reinforce the Government’s zero tolerance of industrial law breaking throughout the industry.  Since it commenced operations on 1 October 2002, the Taskforce has received, as at 9 October 2003, almost 1040 complaints, has visited sites in all States and Territories (1222 sites visits in total) and in addition to the matters arising from the Royal Commission that are being assessed, the Taskforce currently has 56 active investigations underway and 8 matters before the court.  However, the Taskforce also lacks the resources and powers to police unlawful and inappropriate conduct in the industry.

9.       The current workplace relations system places the onus on the parties to comply and to a large extent, enforce the law against each other.  However, the different focus of the building and construction industry participants, combined with ineffective regulatory bodies, has resulted in a culture of lawlessness that permeates the industry.

10.     Inappropriate conduct is defined by the Royal Commissioner as behaviour that infringes the WR Act, a person’s right of choice and other conduct which departs from recognised norms of civility and behaviour. The Royal Commission concluded that there is a conflict between the short-term project profitability focus of building contractors and clients on the one hand, and the long-term aspirations of the union movement to control and regulate the industry for the benefits of its members. The short-term focus driven by profitability means that quick-fix commercial expediency can supplant insistence on legal rights, adherence to ethical and legal norms and the pursuit of legal remedies. This inequality of bargaining power is sometimes exploited, resulting in high levels of unlawful or inappropriate conduct. 

11.     The industry has a pivotal role in underpinning a modern and competitive economy.  The pervading lawlessness of the industry results in serious inefficiencies and costs. The building and construction sector contributes around 5 per cent to GDP annually. A Tasman Economics report to the Royal Commission found if productivity in the building industry matched market sector productivity growth, the accumulated gain to real GDP for the period 2003 to 2010 would be in the order of $12 billion. 

12.     All industries will benefit from an efficient commercial building industry.  Econtech found the Australian economy could gain significantly if workplace practice in the construction sector could match the standards in the domestic housing building sector - the Consumer Price Index would be 1 per cent lower, there would be an annual gain in economic welfare of $2.3 billion and real GDP would be 1.1 per cent higher. 

13.     Small businesses are an essential element of the industry, representing almost 99 per cent of the entire industry and are the most exposed to the impact of lawlessness.

Objective

14.     In considering its response to the findings and recommendations of the Royal Commission, the Government’s primary aim is to restore the rule of law in the building and construction industry.  The Government is also seeking to improve the productivity of the industry.

Options

  1) Maintaining the status quo

15.     This approach would allow participants within a significant Australian industry to continue to disregard the current regulatory framework and OHS performance would remain unacceptable. This would be compounded by the absence of any entity with sufficient legislative powers to enforce the law within the industry.

2) The Government’s reform proposal

16.     The reform proposal will strengthen elements of the WR Act which have been shown by the Royal Commission to be ineffective in the building and construction industry while maintaining the relevance of the WR Act for the overall regulation of the industry. The BCIIB focuses attention on the areas that were identified by the Royal Commission as requiring reform, and highlights to the industry the significance of the changes being made. 

17.     The BCIIB will give effect to the Royal Commission’s recommendations by:

(a)                establishing an independent enforcement body;

(b)                establishing a body to encourage improvement in OHS performance;

(c)                improving the bargaining framework by focussing on genuine bargaining at the enterprise level, restricting pattern bargaining and providing for mandatory ‘cooling off’ periods during which protected industrial action is not permitted;

(d)               further simplifying awards;

(e)                making unlawful industrial action, other than protected industrial action, with industry participants able to recover any losses they suffer due to unlawful action;

(f)                 strengthening freedom of association (FoA) so that the wider range of inappropriate behaviour identified by the Royal Commission will be effectively dealt with;

(g)                enhancing the right of entry (RoE) system to clearly spell out parties’ rights and responsibilities, and limiting scope for State law to be used to circumvent federal requirements;

(h)                improving the accountability of registered organisations, including for the actions of their officials and employees; and

(i)                  improving the compliance regime, by increasing penalties and enhancing access to damages for unlawful conduct.

Impact Analysis

General impact of the reform proposal

1.       In general terms, there is only limited additional regulatory burden imposed by the reform proposal.  The scope of the BCIIB reflects the need to capture the full range of unlawful and inappropriate conduct identified by the Royal Commission. The provisions of the BCIIB will apply to employees, contractors, employers, employer organisations and unions in the commercial sector of the building and construction industry. Although the scope and definitions of the BCIIB have been developed to cover the commercial sector, there will be businesses whose operations are not limited to the commercial construction sector that will in some cases also be covered by aspects of the new laws. This will ensure that all inappropriate conduct is caught.

2.       There are additional reporting requirements for industry participants, including sanctions and penalties imposed through enhanced enforcement machinery for those who break the law by not meeting those reporting requirements.

3.       Additional regulatory burden for industry participants operating within the law is focussed on the areas of improved bargaining frameworks; simplified awards; a strengthened FoA regime; and an enhanced RoE system.  Those wishing to contract for Commonwealth construction work will need to meet the requirements of an OHS accreditation scheme. 

4.       The impact of these proposals is discussed below in more detail.

Economy wide impacts

5.       The impact of the Government’s reform proposal on the economy as a whole is likely to be significant.  In general terms the reform proposals may allow the full potential of the building and construction industry to be realised by curbing unlawful behaviour and addressing inappropriate conduct and practices.  According to Access Economics, activity in all sectors of the building and construction industry, including engineering and non-residential building, is forecast to increase by over 16 per cent during the period to 2006. 

6.       Economic modelling undertaken by Tasman Economics for the Royal Commission shows that if productivity growth in the building and construction sector matched the average for the market sector by 2010, the accumulated gain in real GDP would be about $12 billion.  All industries would benefit from an increase in output as a result of the reduction in costs to the building and construction industry.

7.       A review of the Tasman work concluded that “… an increase in labour productivity has a substantial and beneficial impact on the international competitiveness of, and incentives to invest in, most sectors of the economy…An increase in labour costs, without a commensurate increase in productivity, raises capital costs and therefore reduces future investment in Australia relative to the rest of the world.” (Vol 3 P52.8)  These benefits are likely to flow on to consumers more broadly.

8.       The likely gains experienced within the economy overall will also be experienced by the small business participants in the industry.  Small business, in the form of sub-contractors, comprises, in raw number terms, approximately 99 per cent of firms in this industry.  Given the composition of the industry, the Royal Commission noted that small business are the most exposed to the impact of lawlessness and pressure from the unions (Vol1 P12.30) so are likely to benefit disproportionately from the reforms.  However, it is difficult to accurately quantify the impact likely to be experienced by small business against each of the specific proposals outlined below.     

Impact analysis of specific proposals to be implemented under the BCIIB

Proposal:

Australian Building and Construction Commissioner (ABC Commissioner)

9.       The Royal Commission recommended, and the Government has agreed, to the establishment of a new independent body with a range of functions and powers, broadly covering investigation, enforcement and prosecution in the building and construction industry. 

10.     The ABC Commissioner will head a new agency, responsible for enforcing federal workplace relations laws on building sites.  It will operate as a ‘one-stop shop’ for the building and construction industry by either dealing with matters itself or referring them to relevant agencies for action. 

11.     The main benefits of the ABC Commissioner will be to ensure structural and cultural reform in the industry, principally by taking action to address unlawful conduct in the industry. The ABC Commissioner will work with industry participants to ensure they understand their rights and obligations under the law, the consequences of breaching the law and the benefits of abiding by the law.

12.     The ABC Commissioner will improve current arrangements by being able to act promptly on unlawful industrial action and strategically intervene on behalf of parties to provide cost effective relief when the federal workplace relations laws have been breached.

13.     The ABC Commissioner will operate across the country in urban, rural and remote areas. The structural environment that the ABC Commissioner will operate in includes accessing over 400 Commonwealth construction sites, nearly 200 CBD sites and several hundred regional sites. The ABC Commissioner may direct ABC Inspectors to target construction sites that are at the greatest risk of industrial action by increasing the number of visits to such sites during the life of a project.

14.     The ABC Commissioner will initially have offices in Melbourne, Sydney, Perth and Brisbane. These key offices will also service the Northern Territory, South Australia, Tasmania and the Australian Capital Territory and may include a presence on large regional projects.

15.     The ABC Commissioner’s functions and powers will be regulated by the BCIIB to provide complete and effective regulatory coverage of workplace relations issues in the building and construction industry.  The BCIIB provides specific statutory powers for the ABC Commissioner, appropriate investigatory, compliance and enforcement powers, including the appointment of ABC Inspectors.  The ABC Inspectors’ powers are similar to those currently provided to inspectors under the WR Act.

16.     Parties taking unlawful industrial action will be accountable for their actions and the ABC Commissioner will be able to assist those affected, to obtain appropriate remedies. To assist n performing this role, the BCIIB requires the ABC Commissioner to be:

·          notified by an employer within 72 hours where employees engage in or threaten to engage in industrial action, or OHS action;

·          notified by an employer within 72 hours of claims for strike pay or payments made in relation to OHS action; 

·          notified by an employer within 14 days after becoming aware that unlawful industrial action taken by the employees has ceased;

·          provided (on request) with statements and supporting documentation about the quantum of loss or damage incurred or likely to be incurred as a result of industrial action; 

·          notified of any demand for a donation to a registered organisation exceeding $500 within 30 days of the request being made.

·          (as per the regulations) served with applications to any court under the Bill.

Impact:

17.     The impact of the ABC Commissioner on all industry participants will be significant, as it will be a body which will have the power to deal with the lawlessness which was found by the Royal Commission to be endemic in the industry.

18.     The ABC Commissioner will be able to act even-handedly to protect the public interest in situations in which, at the present, limited or no attempt is made to enforce the compliance with the law. This may involve legal action but the effect of the Commissioner’s educative role and the presence of ABC Inspectors on building sites in addressing the current cultural and structural deficiencies will be important.

19.     Employers will benefit from the establishment of a ‘one-stop shop’ for the building and construction industry.  It will make it easier, for small business in particular, to access information and to find the appropriate regulatory body to handle matters, regardless of location or jurisdiction issues. 

20.     Employers will also benefit from the ABC Commissioner being sufficiently resourced to provide effective regulatory coverage, as current regulatory bodies such as the OEA, lack the resources and powers to sufficiently police the industry.

21.     All industry participants will benefit from the ABC Commissioner’s role in providing information in respect of the BCIIB, the WR Act, the National Code and other issues affecting the industry.  Benefits will flow to unions, employees, subcontractors and head contractors as their understanding of their rights and obligations under the law, the consequences of breaching the law and the benefits of abiding the law, are explained and promoted by the ABC Commissioner.

22.     Employers, particularly small business, will benefit from the introduction of effective sanctions and an enforcement body with the powers and resources to act, as combined it should reduce, and eliminate illegal and inappropriate behaviour by all industry participants.

23.     In order to ensure compliance with relevant laws - the ABC Commissioner needs to be informed about potentially unlawful conduct. Despite the administrative burden associated with notification of matters to the ABC Commissioner, those affected by unlawful industrial action will benefit through improved access to damages to which they are entitled.

24.     The Australian Government will ensure that the ABC Commissioner is appropriately resourced and funding for it will be determined in the next federal budget.

Proposal:

Federal Safety Commissioner (FSC)

25.     The Royal Commission found that the OHS performance of the building and construction industry is unacceptable.  The construction industry ranks in the top four of all industries for the number of fatalities in the workplace as well as ranking in the top five for incidence of workplace injuries. Average workers compensation premium rates for the construction industry at 4.9 per cent of payroll are the second highest for all industry classifications and well above the national average for all industries in 2001/02 of 2.5 per cent.

26.     To address this, and taking into account the Commonwealth’s limited jurisdiction on OHS matters, the Royal Commission recommended, and the Government has accepted, that the Commonwealth foster a new paradigm where work must be performed safely as well as on budget and on time and use its influence as a client and provider of capital in acting as a ‘model client’.

27.     To achieve this, the Royal Commission recommended that the Commonwealth establish an independent Office of the Commissioner for Occupational Health and Safety in the Building and Construction Industry - to be known as the Federal Safety Commissioner (FSC).

28.     The FSC will promote and enhance OHS in the industry, primarily by promoting better OHS performance on Commonwealth funded construction projects through:

(a)           an OHS accreditation scheme for persons wishing to contract with the Australian Government to perform building work (OHS accreditation scheme); persons tendering that meet the OHS standards of the accreditation scheme will be able to be selected for work on Australian Government projects;

(b)          the FSC will also monitor compliance with the OHS aspects of the National Code; and

(c)                                                     promoting the use of safer design. 

46.     It is understood that most, if not all States and Territories have prequalification schemes and that they are not harmonised. In developing the Commonwealth scheme, regard will be had to existing State and Territory prequalification requirements relevant to OHS, noting the separate and distinct emphasis on OHS under the proposed Commonwealth arrangements. There may be scope for mutual recognition, recognising the intention to lift OHS performance standards over time, an objective common to some other jurisdictions.

Impact:

47.     Poor OHS is a significant problem in the industry and the Australian Government intends to act as a model client, including in relation to OHS on its projects, to improve performance. Businesses with experience of prequalification schemes are likely to be well equipped to address the requirements of the Commonwealth scheme.

48.     The accreditation scheme is an additional administrative and regulatory burden on contractors and sub-contractors tendering for Australian Government work. However:

·                          those with experience of State accreditation systems will be well equipped to address the requirements of the Commonwealth scheme;

·                          accreditation is voluntary;

·                          contractors are already obliged to meet significant obligations in respect of OHS management systems that currently exists in State/Territory legislation, the schemes will focus on complimentary management; and

·                          it will result in improved OHS and safe design.

49.     The Productivity Commission in its 1995 Report found that the average cost of a workplace incident was $27 000. The community overall will benefit from the proposal through improved occupational safety in the industry and the potentially reduced costs as a consequence.  Employees will benefit through improved OHS and the resulting reduction in work related injury and death rates. Construction employers will also benefit from reduced worker’s compensation premiums through improved OHS performance.

Proposal:

Bargaining, agreement making and protected industrial action

50.     The BCIIB will encourage genuine bargaining at the enterprise level.  Agreements will generally no longer be permitted to include retrospective pay rises. 

51.     The Royal Commission found that there is widespread use of pattern bargaining - broadly defined as the seeking of identical agreements across an industry - in the building and construction industry. As of 30 June 2003, 66 per cent of all registered construction agreements with wage provisions were identified as pattern or 'mirror' agreements, covering over 48 800 employees . ( Agreement making under the Workplace Relations Act 1996, 2000 and 2001 ). 

52.     Pattern agreements result in some enterprises paying wage increases for minimal, if any, improvement in productivity.  The Housing Industry Association estimates that under pattern agreements the cost of employees can be 30 per cent or more higher than that of employees being paid under Award rates (Vol 12, p.119).  Pattern bargaining entrenches the existing culture by reinforcing a mandated uniform approach, which does not allow for innovation and change, and does not enable the industry to realise its productivity potential.  Under the BCIIB, access to pattern bargaining will be severely limited.  The ABC Commissioner, or any other person, will be able to seek an injunction to stop pattern bargaining.

53.     The Royal Commission found that over the last six years, the level of industrial disputation in the building and construction industry has been at least twice and sometimes five times the national average.  The effect of lost time has a significant impact on continuity of work and thus the productivity on the affected project.  The indirect effects are likely to be the most significant.  Industrial action can affect the reputation of a particular State or of Australia as a good place to invest.  The existing legal framework does not adequately address the problem, with employers finding the remedies available to be cumbersome, slow and costly to pursue.  Unions understand the practical delays any employer faces in seeking to challenge their actions in tribunals or courts and know that by adopting tactics such as short strikes they can damage the employer commercially without risking legal repercussions.  The BCIIB seeks to address these issues.   

54.     Currently, workers are rarely consulted at the enterprise level before protected industrial action is taken.  This is despite industrial action causing them to lose wages and other benefits.  The BCIIB will give workers the opportunity to vote on whether or not to take protected action, with a majority vote in favour of such action being a precondition to industrial action being protected.  Industrial action would be authorised by a ballot if at least 40 per cent of eligible voters participated in the ballot and if more than 50 per cent of the votes cast are in favour of the proposed industrial action. 

Impact:

55.     The restriction on retrospective pay rises in certified agreements is being implemented as part of a package to prohibit pattern bargaining as recommended by the Royal Commission and its impact cannot be assessed in isolation of other pattern bargaining measures in the BCIIB.  Generally it is considered that the restriction should reduce administrative costs for employers as reaching agreement should be quicker and pay increases cannot be backdated. The proposal is likely to discourage unions from causing unreasonable delays in bargaining processes.

56.     Given the prevalence of pattern bargaining in the construction industry employers and employees will be the likely beneficiaries of the restrictions on pattern bargaining as agreement making will be focussed at the enterprise level and agreements will be tailored to meet specific business and individual needs of employees. Allowing agreements to be made as part of an industry wide campaign can restrict the productivity improvements that can flow from such discussions. Such campaigns have been shown to increase widespread industrial action, which has adverse economic impacts on the economy as a whole and the productivity of individual enterprises. 

57.     The proposal requiring a secret ballot for protected industrial action will benefit employees as they will be able to exercise a choice regarding the taking of protected industrial action. This may result in less industrial action. A reduction in industrial action would increase productivity and is likely to have flow on benefits for allied industries. 

58.     The secret ballot provision will result in a greater administrative burden for unions or any employee who is a negotiating party to the proposed agreement, or a group of such employees acting jointly. However, up to 80 per cent of the cost will be provided by the Australian Government to offset the costs of holding a ballot, providing the applicant follows certain steps.

Proposal:

Award Simplification

59.     The Royal Commission found that the National Building and Construction Industry Award 2000 currently contains 41 special rates and 21 allowances and contains complicated provisions in relation to rostered days off, overtime and special time, shift work and weekend work which is confusing for both employers and employees.

60.     The main features of the award simplification provisions in the BCIIB are:

·                the Australian Industrial Relations Commission (AIRC) to consider the desirability of reducing and simplifying the number of allowances when conducting the review of allowances provisions of building awards;

·                the scope of some existing allowable matters will be tightened;

·                the Royal Commission’s recommendation that excessive overtime be able to be addressed in awards is provided for in the BCIIB, by allowing the AIRC to include in an award the maximum number of hours per week that an employee can be required to work. The Royal Commission commented that excessive working hours has implications for productivity, quality of life and most importantly long hours can be an occupational health and safety hazard. This provision does not allow for the setting of an absolute maximum number of hours that an employee can work, retaining the flexibility to choose to work beyond these hours if need be;

·                the AIRC’s power to make an award dealing with superannuation matters does not include the power to specify a particular superannuation fund or scheme to be provided for; and

·                the times or days when work counts as ordinary time or overtime, or when rostered days off may be taken is specified as a non-allowable award matter.

Impact:

61.     The provisions contained in awards exist to provide a safety net for the low paid who are unable to reach workplace agreements. Therefore this proposal is likely to have a limited impact given the wide coverage of certified agreements in the industry.  However in general terms, this proposal may benefit employers and employees as:

·                the arrangements will be less prescriptive, with relevant enterprise level needs being addressed in agreements;

·                choice of superannuation funds will not be limited by awards;

·                administrative costs will be reduced through the streamlining of allowances;

·                employees will have a better understanding of their entitlements; and

·                fewer allowances and special rates would reduce the confusions and disagreement between employers and employees about the precise amounts payable to workers and allegations of underpayment or non-payment.

Proposal:

Freedom of Association (FoA)

62.     The BCIIB will create an industry-specific FoA regime that enhances current arrangements.  State regimes will continue to operate concurrently. 

63.     The FoA provisions in the BCIIB are designed to protect the rights of individual workers to make a free choice as to whether to join or not to join a union. The BCIIB will enhance FoA protection in the building industry by introducing a series of general prohibitions dealing with the most common forms of inappropriate conduct and addressing specific gaps in the current provisions identified by the Royal Commission. The Royal Commission found that other interests are prevailing over compliance with the WR Act, for example, individuals being pressured into joining the union or discriminated against or victimised if they are non members, to ensure head contractors can progress their projects on time, on budget and without unreasonable industrial action.  The ABC Commissioner will play a key role in enforcing the new FoA regime and ensuring that industry participants are free to join or not join an industrial association without fear of discrimination or victimisation. 

64.     The general prohibitions will deal with coercion in relation to joining and resigning from unions and employer organisations, industrial action because of a person’s membership status and the making of false statements about requirements to join a union or employer organisation.

65.     A range of measures will ensure that contractors operating in the building industry are better protected. The BCIIB prohibits discrimination and coercion in relations to whether or not a person has a particular form of workplace agreement with their employees.

66.    Failure to comply with freedom of association provisions of the BCIIB will be subject to a civil penalty.

Impact:

66.     Employees and employers will benefit from the new provision, protecting their right to make a free choice about whether or not to join an industrial association. Unions will also benefit from such provisions because the provisions provide stronger protections for union members against discrimination or victimisation on the basis of their status as union members.

Proposal:

Right of Entry (RoE)

67.     The RoE provisions of the BCIIB will ‘cover the field’ to the exclusion of any federal or State industrial laws or industrial instrument for union entry to premises within the scope of the BCIIB’s coverage. Any entry rights granted under occupational health and safety legislation will not be affected.

68.     Consistent with the recommendations of the Royal Commission, the RoE provisions provide a framework which balances the right of unions to represent their members in the workplace, hold discussion with potential members and investigate suspected breaches of industrial laws and instruments and the right of employers and occupiers of premises to conduct their business without undue interference or harassment. The ABC Commissioner will play a key role in enforcing the new RoE regime.

69.     The rights and responsibilities associated with right of permits will be more clearly spelt out.  The BCIIB strengthens the requirements for obtaining a right of entry permit and significantly expands the grounds for suspension and revocation of permits.

70.     The BCIIB requires the Industrial Registrar, before issuing a permit, to consider whether the applicant is ‘a fit and proper person’ to be exercise the rights conferred by a permit and expressly empowers the Registrar to impose conditions on the use of a permit.

71.     It expands the grounds for suspension and revocation or permits and requires the Industrial Registrar to suspend or revoke a permit in certain circumstances, including where the permit holder’s right of entry under State law has been cancelled or suspended.  The AIRC will also be explicitly empowered to make orders to address abuse of the right of entry system.  The AIRC will be able to make orders revoking, suspending or imposing conditions some or all of the permits held by union or banning or limiting the issuing of permits to that union.



Impact:

72.     The RoE provisions in the BCIIB will limit the right of union officials to access non-union members’ records. However the Bill empowers the AIRC to make orders allowing union officials to access non-member records where it is satisfied that this is necessary to investigate a suspected breach affecting members of the permit holder’s organisation.

73.     The provisions will benefit employers by protecting them from unnecessary and costly disruptions due to entry into their workplace. There will be a significant administrative burden on unions by requiring union officials to go through a more administrative process to gain a permit. However the BCIIB also ensures that permit holders are not hindered or obstructed in relation to legitimate exercises of right of entry.

Consultation

74.     The Department of Employment and Workplace Relations has undertaken extensive consultation with industry participants and interested parties since the Royal Commission tabled its final report in March 2003. 

75.     On 18 September 2003, an exposure draft of the BCIIB was released and a consultation period of four weeks was established for public comments to be sent to the Department either electronically through the website or in hard copy. Over 20 submissions were received from employee industrial associations, employer organisations, major contractors and subcontractors.

76.     Employer organisations, including the Master Builders Association (MBA), Australian Chamber of Commerce and Industry, Australian Industry Group (Ai Group) and the National Electrical and Communications Association have all made submissions to the Department. Each of the submissions was generally supportive of the main objective of the BCIIB and the intent of its provisions.

77.     The MBA comment in their submission ( Submission by the MBA, p.4 ) that:

“The Bill will introduce a stronger regulatory regime in building and construction industry workplace relations.  Its provisions will facilitate a return to the rule of law for an industry where the Cole Report found there to be a culture where industrial agreements were not honoured and measures not implemented when made.  The standards of industrial and commercial conduct exhibited in the building and construction industry must reflect the standards that apply in the rest of the Australian economy.  These measures will assist with the process of making that change.  This is also the underlying rationale for the separate rules for the industry that will apply in the future.”

78.     Ai Group has argued strongly that:

“a body should be established to monitor conduct in the building and construction industry, to take action to stop unlawful conduct and to pursue prosecutions when the law is breached. The taskforces which operated in the industry in New South Wales and Western Australia were successful in improving compliance with the law and improving workplace relations in the industry. Such taskforces addressed the significant problem of employers being reluctant to enforce their legal rights due to retaliation and victimisation by construction industry unions.” ( The Australian Industry Group’s position on the exposure draft, p.7 )

79.     All the submissions have contained comments on specific provisions and possible amendments. Officers from the Department have considered these comments and as a result several technical amendments have been made to the BCIIB.

80.     The Australian Council of Trade Unions (ACTU), the Construction Forestry, Mining and Energy Union and the Electrical Trades Union of Victoria have each made submissions to the Department. These submissions oppose the introduction of the BCIIB into Parliament and have argued that there is not a need for industry-specific legislation. These submissions were considered and as a result several technical amendments have been made to the BCIIB.

81.     Several sub-contractors responded during the four week period that the BCIIB was open form public comment. Comments received from subcontractors focussed on the need for the establishment of a new a regulatory body as well as the implementation of an enforcement and penalties process in the industry in order to stamp out unlawful behaviour.

 

Conclusion and recommended option

82.     Option two, the Australian Government’s reform proposal as set out in the BCII Bill is the recommended option. The main object of the reforms contained in the BCIIB is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole. The provisions of the Bill are directed at addressing both the entrenched culture of lawlessness identified by the Royal Commission and the other inappropriate practices in the industry that act against choice, productivity and safety.

Implementation and review

83.     The Department has in a place a sufficient system for monitoring the framework of workplace relations and it will continue to monitor the effectiveness of the legislative changes on the building and construction industry.

84.     The BCCIB requires the ABC Commissioner to prepare and give to the Minister an annual report on the operations of the ABC Commissioner during that year. The report must include:

a.              details of the number, and type, of matters that were investigated by the ABC Commissioner during the financial year;

b.             details of assistance provided to building employees and building contractors in connection with the recovery of unpaid entitlements; and

c.              details of the assessments of damages resulting from unlawful industrial action.

86.     The FSC must also prepare and present an annual report for the Minister detailing the number and type of matters that were investigated during the financial year.

87.     The resourcing and effectiveness of the ABC Commissioner and the FSC, including the benefits for small business will be monitored on an ongoing basis.

 



GENERAL NOTE ON CIVIL PENALTY PROVISIONS

 

Part 1 of Chapter 12 of the Bill deals with contraventions of civil penalty provisions. 

 

Clause 227 of the Bill will allow an action to be brought in relation to contravention of a civil penalty provision.  An application may be brought in an “appropriate court” - generally the Federal Court - by an “eligible person” (the ABC Commissioner, a person affected by the contravention and any person prescribed by the regulations).

 

The Court may order a pecuniary penalty.  The maximum pecuniary penalty that may be ordered depends upon whether the relevant provision is a Grade A or a Grade B civil penalty provision.

·            The maximum penalty for a Grade A civil penalty provision is 1000 penalty units in the case of a body corporate, or 200 penalty units in other cases.

·            The maximum penalty for a Grade B civil penalty provision is 100 penalty units in the case of a body corporate, or 20 penalty units in other cases.

·            By operation of section 4AA of the Crimes Act 1914 , the value of a penalty unit is currently $110.

 

The Court may also order:

·            damages payable to a specified person;

·            any other order the court thinks appropriate (including an injunction or an order for the sequestration of assets).

Subclause 226(2) provides that a person involved in a contravention of a civil penalty provision is taken to have contravened the provision.  A person is taken to have been involved in a contravention if they have:

·            aided, abetted, counselled, procured or induced the contravention, whether by threats or promises or otherwise; or

·            been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention.

Clause 247 provides that conduct of members of a building association (where it is authorised by the rules of the association, the committee of management of the association or an officer or agent of the association acting in that capacity) is taken to be conduct of the building association.

 

 

 



NOTES ON CLAUSES

 

Clause 1 - Short title

1.1 Clause 1 is a formal provision specifying the short title of the Act.

 

Clause 2 - Commencement

1.2 Clause 2 sets out a table specifying when the various provisions of the Act are to commence. 

 

1.3 Clauses 1 and 2 and any provision of the Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.

 

1.4 Clauses 3 to 255 and Schedule 1 will commence on a day or days fixed by Proclamation.  However, if any of the provisions do not commence within six months of the Act receiving the Royal Assent, they will commence on the first day following that six month period.

 

Clause 3 - Main object of Act

1.5 The main object of the Act is to improve the workplace relations framework for the building and construction industry to ensure that building industry participants and the Australian economy benefit from the fair, efficient and productive performance of building work (subclause (1)).  The Act’s means of achieving that object are set out in subclause (2) and include:

·          improving the bargaining framework so as to further encourage genuine bargaining at the workplace level;

·          promoting respect for the rule of law;

·          ensuring respect for the rights of all building industry participants;

·          ensuring all building industry participants are held accountable for their unlawful conduct;

·          providing effective means for investigation and enforcement of relevant laws;

·          improving occupational health and safety;

·          encouraging the pursuit of high employment in the industry; and

·          providing assistance and advice to building industry participants in connection with their rights and obligations under relevant industrial laws.

 

Clause 4 - Definitions

1.6 Clause 4 defines the terms used in the Bill.  The definitions appear in alphabetical order in the Bill.  However, for the purposes of the Explanatory Memorandum, definitions have been grouped together to aid interpretation.  Only key definitions are explained here.

 

1.7 Bargaining services is defined to mean services provided by or on behalf of a building association (that is, an industrial association of building employers, building employees or building contractors ) in relation to the negotiation, making, certification, operation, extension, variation or termination of an agreement under Part VIB of the WR Act.  This definition does not apply to Chapter 7, where a broader definition of the term applies.

 

1.8 Bargaining services fee is defined to mean a fee, however described, payable to a building association or to someone else in lieu of a building association wholly or partly for the provision, or purported provision of bargaining services.  This definition ensures that relevant provisions of the Bill would apply in cases where a building association purports to, but has not in fact, provided bargaining services in respect of which it is claiming a fee.  Membership dues are specifically exempted from the definition.  This definition does not apply to Chapter 7, where a broader definition of the term applies.

 

1.9 Building agreement , building award and building certified agreement are defined respectively to mean any agreement, award or certified agreement that has application to building work, regardless of whether that agreement, award or certified agreement also applies to any other kind of work.  For example, an agreement whose provisions apply to both commercial construction and other work will be a building agreement.  The terms award and certified agreement have the same meanings that they have in section 4 of the WR Act.

 

1.10 Building association is defined to mean any industrial association (which is defined to have the same meaning that it has in Part XA of the WR Act) whose eligibility rules (rules that relate to the conditions of eligibility for membership) allow membership by at least one of the following groups:

·         building employers;

·         building employees;

·         building contractors.

 

1.11 A n industrial association will be a building association if its eligibility rules allow membership by any of the above groups, regardless of whether the rules also allow membership by any other persons.  For example, an industrial association representing a range of businesses including building employers would be a building association.

 

1.12 Building contractor is defined to mean a person who has entered into, or offered to enter into, a contract for services under which the person carries out building work, or arranges for building work to be carried out.  The term encompasses both independent contractors as well as contractors and subcontractors who engage employees or other contractors to perform building work.

 

1.13 Building employee is defined to mean both a person whose employment consists of, or includes, building work and a person who accepts an offer of engagement as an employee for work that consists of, or includes, building work.  An employee that performs some building work and also performs other work will be a building employee for the purposes of this Bill.  Employee has the same meaning as in section 4 of the WR Act and does not include a person who is undertaking a vocational placement.

 

1.14 Building employer is defined to mean an employer who employs, or offers to employ, building employees.  Employer has the same meaning as in section 4 of the WR Act and includes a person who is usually an employer and an unincorporated club.

 

1.15 Building industry participant is a broad term encompassing persons and entities engaged in or involved with the building industry.  Each of the following is a building industry participant:

·          a buil d ing employee;

·          a building employer;

·          a building contractor;

·          a person who enters into a contract with a building contractor under which the building contractor agrees to carry out building work or to arrange for building work to be carried out (that is, a client of a building contractor);

·          a building association;

·          an officer, delegate or other representative of a building association; or

·          an employee of a building association.

 

1.16 Commonwealth building employee organisation is defined to mean an organisation of employees (being an organisation registered under Schedule 1B to the WR Act) whose eligibility rules allow membership by building employees regardless of whether or not those rules also allow other persons to be members.

 

1.17 Commonwealth building employer organisation is defined to mean an organisation of employers (being an organisation registered under Schedule 1B to the WR Act) whose eligibility rules allow membership by building employers regardless of whether or not those rules also allow other persons to be members.

 

1.18 Eligible condition means a condition that relates to:

·          the times or days when work is to be performed;

·          inclement weather procedures;

·          any other matter prescribed by the regulations for the purposes of the paragraph.

 

1.19 This definition is relevant to provisions of the Bill relating to pattern bargaining and discrimination in respect of industrial instruments by providing minor exceptions to those provisions.  It allows for matters to be prescribed by regulations to enable other kinds of conditions to be designated eligible conditions, where appropriate.

 

1.20 Industrial dispute has the meaning given by section 4 of the WR Act, including the additional matters in subsection 4(3) of that Act.  This definition does not apply to Chapter 7, where a broader definition of the term applies.

 

1.21 Unlawful action damages means an amount of compensation ordered by a Court under paragraph 227(1)(b) of this Bill to compensate a person for damage suffered as a result of a contravention of clause 74.  Clause 74 prohibits unlawful industrial action.

 

Clause 5 - Definition of building work

1.22 This definition is integral to the understanding and application of the Bill.  It determines the scope of the Bill by forming the basis of terms such as building employee and building agreement , and hence terms such as building employer and building association .  The coverage of all provisions of the Bill is ultimately determined by reference to the definition of building work .

 

1.23 In order to ensure appropriate coverage for the legislation the definition of building work is broad.  It is defined to mean any of the activities listed in paragraphs (1)(a) to (d). 

 

1.24 Paragraph (a) covers building activities:

·          construction, alteration, extension, restoration, re pair, demolition, 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.   

 

1.25 To avoid doubt, paragraph (b) lists the same activities in relation to railways and docks but makes it clear that such activities in relation to railway rolling stock are excluded. 

 

1.26 Paragraph (c) covers building activities that relate to the fit-out of buildings such as the installation in any building , structure or work of fittings including: heating; lighting ; air- conditioning; venti l ation; power supply; drainage; sanitation; water supply; fire protection; security; and communication systems.

 

1.27 1.27          Paragraph (d) covers all a ct i vities that are necessarily preparatory to or for the purpose of rendering complete any of the activities listed in paragraphs (a) to (c).  Specific examples are provided, but the coverage of paragraph (d) is not limited to those examples.

 

1.28 Paragraphs (e), (f) and (g) set out exceptions to the definition of building work. 

 

1.29 Paragraphs (e) and (f) exclude extraction and mining activities. 

 

1.30 Paragraph (g) excludes activities associated with domestic building.  The Bill intends, as far as possible, to exclude the domestic housing sector from the coverage of the Bill.  Any work that is part of a project for the construction, repair or restoration of a single-dwelling house or a building, structure or work associated with a single-dwelling house is excluded from the definition of building work (subparagraphs (1)(g)(i) and(ii)).

 

1.31 Alteration and extension activities will also be excluded from the definition of building work, where those activities are performed on a single-dwelling house and the resulting structure remains a single-dwelling house (subparagraph (1)(g)(iii)). 

 

1.32 Dismantling and demolition activities will also be excluded from the definition of building work, where they are part of a project for the construction or repair etc. of a single-dwelling house.

 

1.33 The domestic building s ector exception does not apply where the activities are performed as part of a project that is part of a multi-dwelling development consisting of, or including the construction of, at least 5 single-dwelling houses (subclause (2)).

 

1.34 Regulations may be made to supplement the definition. 

 

1.35 Subclause (3) allows regulations to be made to include additional activities.  Subclause (4) allows activities to be excluded from the definition.  It is intended that regulations will be made where it is not clear whether or not a particular activity falls within the definition.

 

Clause 6 - Definition of office

1.36 This clause defines the term office in relation to an association

·          In this context, the term “association” includes both an organisation registered under Schedule 1B to the WR Act and an i ndustrial association (as defined in Part XA of the WR Act), as well as a branch of such an organisation or association (subclause (2)).

 

1.37      The term office is defined in similar terms to the definition of office in Schedule 1B to the WR Act, and covers:

·          certain designated positions in organisations and associations or their branches (paragraph (1)(a));

·          other positions, the holders of which have direct responsibilities relating to the management, policy de t ermination or rule-making and rule-enforcement functions of organisations, associations and their branches (paragraphs (1)(b), (c), (d) and (e)). 

 

1.38      The definition excludes persons who carry out functions of the kind mentioned above, but only under direction to implement existing policy or decisions (paragraph (1)(c)). 

 

1.39      The concept of office is relevant to clause 217, which establishes rules in relation to disqualification from holding office.

 

Clause 7 - Definition of objectionable provision

1.40      Objectionable provision is defined to mean any provision in a document that:

·          requires or permits conduct that would contravene Chapter 7 (Freedom of association) or, disregarding the constitutional limitations in Part 2 of Chapter 7, would contravene Chapter 7 (paragraph (1)(a));

·          directly or indirectly requires a person to encourage another person to become or remain a member of a building association (subparagraph (1)(b)(i));

·          directly or indirectly requires a person to discourage another person from becoming or remaining a member of a building association (subparagraph (1)(b)(ii));

·          indicates support for persons being members of a building association (paragraph (c));

·          indicates opposition to persons being members of a building association (paragraph (d));

·          requires or permits payment of a bargaining services fee to a building association (paragraph (e)); or

·          requires or permits an officer or employee of a Commonwealth or State union to exercise rights of a kind covered by Chapter 9 (Union right of entry) (paragraph (f)).

 

1.41      A provision will be objectionable regardless of whether it is void because of clause 69 of this Bill - which renders provisions in building certified agreements and building awards void to the extent that they are objectionable provisions (subclause (2)).

 

1.42      Subclause (3) clarifies the scope of the terms “permits” and “requires” for the purposes of this clause.  For example, a provision of a document will be an objectionable provision where it purports to permit or require conduct that would contravene the freedom of association provisions, even if it would not in fact have that effect.

 

Clause 8 - Definition of pattern bargaining

1.43      Pattern bargaining is defined to mean a course of conduct or bargaining, or the making of claims that involves seeking common wages or other common conditions of employment and extends beyond a single business (subclause (1)).

 

1.44      A person would not be engaging in pattern bargaining where:

·          the conduct involves seeking common wages or other common conditions of employment in an award or State award (paragraph (1)(a));

·          the person is genuinely trying to reach agreement on the matters that are the subject of the conduct (subclause (2));

·          the person is a party to a proposed agreement and is seeking the inclusion in the agreement of terms and conditions that give effect to a decision of the Full Bench of the AIRC establishing national standards (subclause (3));

·          the person engages in the conduct solely to encourage a second person to include particular eligible conditions in an enterprise agreement covering the second person’s employees and the person proposes to enter into a construction contract with the second person (subclause (4)).

 

1.45      When determining whether a person is “genuinely trying to reach agreement”, subclause (5) directs the court or AIRC (as applicable) to the same phrase in section 170MW of the WR Act, as supplemented by the list of indicators provided in clause 62 of this Bill. 

 

1.46      As the Bill regulates pattern bargaining occurring outside the Federal jurisdiction, subclause (6) makes it clear that references to “negotiating party” in clause 62 of the Bill are to be read as references to a “proposed party to a proposed agreement”.

 

1.47      Giving advice or recommending particular approaches to persons trying to reach agreements will not amount to pattern bargaining.  However, if the conduct goes beyond the provision of advice or the making of recommendations and amounts to a campaign to achieve a consistent outcome across a number of businesses, it may amount to pattern bargaining, providing that all elements of the definition are met.

 

1.48      A course of conduct in pursuit of a project agreement may amount to pattern bargaining if there is a failure to genuinely try to reach agreement.

 

Clause 9 - Extension to Christmas Island

1.49      This clause provides that, as with all Commonwealth legislation, the Bill extends to Christmas Island (subclause (1)). 

 

1.50      The Bill applies with such modifications as are prescribed by regulations (subclause (2)).  This reflects the WR Act.

 

Clause 10 - Act to bind Crown

1.51      This clause provides that the Bill applies to the Crown in right of the Commonwealth and each of the States and Territories, but that this does not mean that the Commonwealth or a State or Territory can be prosecuted for an offence under the Bill.



CHAPTER 2 - AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

1.52 Chapter 2 will establish new statutory offices of ABC Commissioner and Deputy ABC Commissioner. The office of the ABC Commissioner will be subject to the Freedom of Information Act 1982 and the Ombudsman Act 1976.

 

Part 1 Australian Building and Construction Commissioner

Clause 11 - ABC Commissioner and Deputy ABC Commissioners

1.53 Clause 11 provides for the statutory office of the ABC Commissioner.  The ABC Commissioner is to be assisted by such number of Deputy ABC Commissioners as may be appointed. 

 

1.54 Clause 17 provides for the ABC Commissioner and Deputy ABC Commissioners to be appointed by the Minister for Employment and Workplace Relations.

 

Clause 12 - Functions of the ABC Commissioner

1.55 Clause 12 sets out the ABC Commissioner’s broad functions.  These are to:

·          monitor, and promote compliance with, this Act, the WR Act  and the Building Code;

·          refer matters to other relevant agencies and bodies;

·          investigate suspected contraventions of this Act, the WR Act, instruments or orders made under that Act, and the Building Code;

·          institute, or intervene in, proceedings in accordance with this Act;

·          provide information, advice and assistance to building industry participants about their rights and obligations under this Act and the WR Act;

·          provide representation to a building industry participant in proceedings under this Act or the WR Act, where he or she considers that this would promote enforcement; and

·          disseminate information relevant to building industry participants.

 

1.56 The function of ‘monitoring and promoting’ compliance with this Act, the WR Act and the Building Code is further supplemented by specific provisions in this Bill, in particular clause 230 which relates to the power of the ABC Commissioner to obtain information.

 

1.57 In addition to the broad functions in clause 12, the ABC Commissioner will also have other functions under the Act, including:

·          nominating an ABC Inspector to assess the maximum amount of damages resulting from unlawful industrial action that could be ordered by a court and issue a certificate in relation to the assessment  (clause 77);

·          applying to the Industrial Registrar for:

-          revocation or suspension of the right of entry permit of a permit holder (clause 184);

-          the issue of a deregistration certificate where a Commonwealth building organisation has failed to pay court-ordered unlawful action damages (clause 215); and

·          (in certain circumstances), applying to the Federal Court for an order disqualifying a person from holding office in a Commonwealth building organisation (clause 217).

 

1.58 To enable the ABC Commissioner to perform his or her functions, the ABC Commissioner will appoint Australian Building and Construction Inspectors (ABC Inspectors) (clause 235). As noted above, the ABC Commissioner will also have investigative powers, and will be able to require people to provide information relevant to an investigation (clause 230).

 

1.59 The central role of the ABC Commissioner is to monitor the industry and enforce this Act, the WR Act and the Building Code.  This role is enshrined throughout the Bill.  For example:

·          employers will be required to notify the ABC Commissioner of certain industrial matters, including the taking of industrial action (clause 135), and claims for strike pay (clause 137),

·          potential donors will be required to notify the ABC Commissioner of any request that a donation exceeding $500 be made to a Commonwealth building organisation (clause 213);

·          the ABC Commissioner will have a particular role in monitoring compliance with the new right of entry requirements:

-          a permit holder seeking entry will be required to provide a copy of the entry notice to the ABC Commissioner prior to exercising right of entry (clauses 190 and 200);

-          the ABC Commissioner will have a right to be heard in right of entry permit matters before the Industrial Registrar (clause 208);

·          the Industrial Registrar will be required to provide the ABC Commissioner with at least seven days notice of hearings relating to the certification of an agreement and copies of all documents lodged in support of the application for certification (clause 53).  It must also notify the ABC Commissioner of: all applications lodged with the AIRC or Australian Industrial Registry (AIR) under this Act and the WR Act as affected by this Act; and the outcome of each such application (clause 251).

 

Clause 13 -  Minister’s directions to ABC Commissioner

1.60 Clause 13 allows the Minister to give directions to the ABC Commissioner.  Directions are to be given by notice published in the Commonwealth Gazette and therefore will be available for public scrutiny. Details of all directions given during the year must also be included in the ABC Commissioner’s annual report (clause 16).

 

1.61 Clause 13 only permits the Minister to give general directions.  The Minister must not give a direction in relation to a particular case (subclause (2)).

 

1.62 Directions by the Minister are disallowable instruments under the Acts Interpretation Act 1901 (subclause (4)). 

 

Clause 14 - Minister may require reports

1.63 Clause 14 allows the Minister to direct the ABC Commissioner to provide specified reports relating to the ABC Commissioner’s functions.

 

Clause 15 - Delegation by ABC Commissioner

1.64 Clause 15 allows the ABC Commissioner to delegate his or her powers and functions. 

 

1.65 The ABC Commissioner’s powers to obtain information under clause 230 can only be delegated to a Deputy ABC Commissioner.

 

1.66 All other powers and functions can be delegated to a Deputy ABC Commissioner, an ABC Inspector, a Senior Executive Service (SES) employee, or acting SES employee in the Australian Public Service, or a person prescribed by the regulations.

 

1.67 In exercising delegated powers or functions the delegate must comply with any directions given by the ABC Commissioner (subclause (3)).

 

1.68 Details of delegations made under this clause are to be published (for example on the Internet) “as soon as practicable” after the delegation occurs (subclause (4)).

 

Clause 16 - Annual report

1.69 Clause 16 requires the ABC Commissioner to provide an annual report for each financial year.  The report must be prepared “as soon as practicable” after the end of the financial year (subclause (1)).  

 

1.70 The report must contain details of any directions given to the ABC Commissioner by the Minister during the year, details of any delegations by the ABC Commissioner during the year and details of any investigations undertaken by the ABC Commissioner ( s ubclauses (2) and (3)).

 

1.71 Subclause (4) requires the Minister to cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of receiving it.

 

Part 2—Administrative provisions

Clause 17 - Appointment

1.72 Clause 17 provides for the Minister to appoint the ABC Commissioner and Deputy ABC Commissioners by written instrument. 

 

1.73 Subclause (2) provides that the ABC Commissioner is appointed on a full-time basis and that Deputy ABC Commissioners can be appointed on either a full-time or part-time basis.

 

1.74 Before appointing a person as a Commissioner, the Minister must be satisfied that the person has suitable qualifications or experience, and is of good character (subclause (3)).

 

1.75 The length of an appointment is to be specified in the instrument of appointment, but cannot be longer than 5 years (subclause (4)).  However, a Commissioner can be reappointed for a further term or terms.

 

Clause 18 - Acting ABC Commissioner

1.76 This clause provides for the appointment by the Minister of an Acting ABC Commissioner when necessary, including on a recurring basis.

 

Clause 19 - Remuneration

1.77 Clause 19 provides for the Remuneration Tribunal to determine the remuneration of Commissioners or, in the absence of a determination, the regulations can set the remuneration.  In addition, Commissioners are to be paid any allowances prescribed by regulation.

 

1.78 Subclause (3) provides that this clause has effect subject to the Remuneration Tribunal Act 1973 .  This will ensure that general provisions of the Remuneration Tribunal Act are not displaced by this clause.

 

Clause 20 - Leave

1.79 The Remuneration Tribunal is to determine the recreation leave entitlements for full-time Commissioners (subclause (1)). 

 

1.80 Subclause (2) allows the Minister to grant a full-time ABC Commissioner leave of absence, other than recreation leave, on such terms and conditions as he or she determines.

 

1.81 Subclause (3) allows the Minister to grant a part-time ABC Commissioner leave of absence, including recreation leave, on such terms and conditions as he or she determines.

 

Clause 21 - Engaging in other paid employment etc.

1.82 Clause 21 requires a full-time Commissioner to obtain approval from the Minister before engaging in other paid employment.  A part-time Commissioner must not engage in other paid employment that could result in a conflict with his or her duties as a Commissioner.

 

1.83 These arrangements are complemented by clause 24 which allows the Minister to terminate a Commissioner’s appointment if the requirements of clause 21 are contravened, without a reasonable excuse.

 

Clause 22 - Disclosure of interests

1.84 Clause 22 requires Commissioners to give the Minister notice of all financial or other interests that could conflict with the Commissioners duties.

 

1.85 This requirement is complemented by clause 24 which allows the Minister to terminate a Commissioner’s appointment if the requirements of clause 22 are contravened, without a reasonable excuse.

 

Clause 23 - Resignation

1.86 Clause 23 provides that a Commissioner may resign by written notice given to the Minister.

 

Clause 24 - Termination of appointment

1.87 Subclause (1) allows the Minister to terminate the appointment of a Commissioner if the Commissioner:

·          becomes bankrupt or takes specified steps related to insolvency;

·          contravenes, without reasonable excuse, the requirements relating to engagement in other paid employment (clause 21);

·          contravenes, without reasonable excuse, the requirement to disclose to the Minister any interest that could conflict with the Commissioner’s functions (clause 22); or

·          in the case of a full-time Commissioner, is absent from duty (except on authorised leave) for 14 consecutive days or for 28 days in any 12 month period.

 

1.88 Subclause (2) allows the Minister to terminate a Commissioner’s appointment for misbehaviour or on the ground of physical or mental incapacity.  Termination on the grounds of physical or mental incapacity may be subject to certain limitations imposed by superannuation legislation (subclauses (3) and (4)). 

 

Clause 25 - Staff and consultants

1.89 Staff to assist the ABC Commissioner in the performance of his or her functions are to be engaged under the Public Service Act 1999 (subclause (1)). 

 

1.90 The ABC Commissioner and the Australian Public Service employees assisting the ABC Commissioner will constitute a Statutory Agency for the purposes of the Public Service Act 1999 (subclause (2)).

 

1.91 Subclause (3) provides that the ABC Commissioner may engage consultants with suitable qualifications and experience on behalf of the Commonwealth.  The terms and conditions of engagement of consultants are to be determined in writing by the ABC Commissioner.

 



CHAPTER 3 - THE BUILDING CODE

Clause 26 - Minister to issue Building Code

1.92 Clause 26 authorises the Minister to issue one or more documents that together comprise the Building Code.

 

1.93 Subclause (2) specifically authorises the Minister to issue one or more documents under subclause (1) that relate to occupational health and safety matters in respect of building work. The Minister must take into account any recommendations of the Federal Safety Commissioner in relation to occupational health and safety matters (subclause (4)) - the Federal Safety Commissioner is a new office established in Chapter 4 of the Bill.

 

1.94 Subclause (3) lists the persons who may be required to comply with the Building Code.  The Code will set out who is required to comply.

 

1.95 The Minister must make the Building Code publicly available (subclause (5)).

 

Clause 27 - ABC Commissioner to report on compliance with the Building Code

1.96 Clause 27 requires the ABC Commissioner to report to the Minister at least annually in relation to compliance with the Building Code. 

 

1.97 The Minister may notify the ABC Commissioner of occupational health and safety issues that need not be addressed in the report (subclause (2)).  This provision reflects the fact that clause 29 requires the Federal Safety Commissioner to separately report on occupational health and safety aspects of the Building Code.

 

1.98 The Minister must table the ABC Commissioner’s report in each House of Parliament within 15 sittings days of receiving it (subclause (3)).

 

Clause 28 - ABC Commissioner to publicise non-compliance with the Building Code

1.99 Clause 28 authorises the ABC Commissioner to publish details of non-compliance with the Building Code, if he or she considers that it is in the public interest to do so.

 

Clause 29 - Federal Safety Commissioner to report on compliance with the Building Code

1.100 Clause 29 requires the Federal Safety Commissioner to report to the Minister at least annually in relation to compliance with the occupational health and safety elements of the Building Code. 

 

1.101 The Minister must table the Federal Safety Commissioner’s report in each House of Parliament within 15 sittings days of receiving it (subclause (2)).

 

Clause 30 - Building industry participants to report on compliance with Building Code

1.102 The ABC Commissioner may direct a person required to comply with the Building Code in respect of particular building work to provide a written report about the extent to which he or she has complied with the Building Code in respect of that building work (subclauses (1) and (2)). 

 

1.103 The ABC Commissioner’s direction must be in writing, and specify when the report is to be provided - at least 14 days notice must be provided (subclause (2)).

 

1.104 Contravention of the requirement to provide a report to the ABC Commissioner in accordance with a direction is subject to a Grade B civil penalty (subclause (3)).

 

1.105 Given their shared responsibility for the Building Code, the ABC Commissioner must provide the Federal Safety Commissioner with a copy of any report (subclause (4)) 

 



CHAPTER 4 - OCCUPATIONAL HEALTH AND SAFETY

Part 1 - Federal Safety Commissioner

1.106 Part 1 of this Chapter will establish the new statutory office of Federal Safety Commissioner. The office of the Federal Safety Commissioner will be subject to the Freedom of Information Act 1982 and the Ombudsman Act 1976.

 

Division 1 - Functions etc. of the Federal Safety Commissioner

Clause 31 - Federal Safety Commissioner

1.107 Clause 31 creates the new statutory office of the Federal Safety Commissioner. 

 

1.108 Clause 37 provides for the Federal Safety Commissioner to be appointed by the Minister.

 

Clause 32 - Functions of the Federal Safety Commissioner.

1.109 Clause 32 sets out the Federal Safety Commissioner’s functions.  These are to:

·          promote:

-          OHS in relation to building work;

-          the benefits of the accreditation scheme (established by clause 50); and

-           compliance with the OHS aspects of the Building Code;

·          disseminate information about the accreditation scheme and the OHS aspects of the Building Code;

·          monitor compliance with the occupational health and safety aspects of the Building Code;

·          perform functions as the accrediting authority for the accreditation scheme; and

·          refer matters to other relevant agencies or bodies.

 

1.110 Other functions can also be conferred on the Federal Safety Commissioner by this or any other Act, or by the regulations.

 

Clause 33 - Minister’s directions to the Federal Safety Commissioner

1.111 Clause 33 allows the Minister to give directions to the Federal Safety Commissioner.  Directions are to be given by notice published in the Commonwealth of Australia Gazette so they will be available for public scrutiny.  Details of all directions given during the year must also be included in the Federal Safety Commissioner’s annual report (clause 36).

 

1.112 Clause 33 only permits the Minister to give general directions.  The Minister must not give a direction in relation to a particular case (subclause 2).

 

1.113 Directions by the Minister are disallowable instruments under the Acts Interpretation Act 1901 (subclause (4)).

 

Clause 34 - Minister may require reports

1.114 Clause 34 allows the Minister to direct the Federal Safety Commissioner to provide specified reports relating to the Federal Safety Commissioner’s functions.

 

Clause 35 - Delegation by Federal Safety Commissioner

1.115 Clause 35 allows the Federal Safety Commissioner to delegate his or her powers and functions to a Federal Safety Officer, a Senior Executive Service (SES) employee or acting SES employee in the Australian Public Service, or a person prescribed by the regulations.

 

1.116 In exercising delegated powers or functions the delegate must comply with any directions given by the Federal Safety Commissioner.

 

1.117 Details of delegations made under this clause are to be published (for example on the Internet) “as soon as practicable” after the delegation occurs (subclause (3)).

 

Clause 36 - Annual report

1.118 Clause 36 requires the Federal Safety Commissioner to provide an annual report for each financial year.  The report must be prepared “as soon as practicable” after the end of the financial year (subclause (1)).  

 

1.119 The report must contain details of any directions given to the Federal Safety Commissioner by the Minister during the year, details of any delegations by the Federal Safety Commissioner during the year and details of any investigations undertaken by the Federal Safety Commissioner (subclauses (2) and (3)).

 

1.120 Subclause (4) requires the Minister to cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of receiving it.

 

Division 2 - Administrative provisions relating to appointment etc.

of Federal Safety Commissioner

Clause 37 - Appointment

1.121 Clause 37 provides for the Minister to appoint the Federal Safety Commissioner by written instrument. 

 

4.17     The Federal Safety Commissioner is to be appointed on a full-time basis (subclause (1)).

 

1.122 Before appointing a person as a Commissioner, the Minister must be satisfied that the person has suitable qualifications or experience, and is of good character (subclause (2))

 

1.123 The length of an appointment is to be specified in the instrument of appointment, but cannot be longer than five years (subclause (3)).  However, a Commissioner can be reappointed for a second or subsequent term.

 

Clause 38 - Acting Federal Safety Commissioner

1.124 This clause provides for the appointment of an Acting Federal Safety Commissioner when necessary, including on a recurring basis.

 

Clause 39 - Remuneration

1.125 Clause 39 provides for the Remuneration Tribunal to determine the Federal Safety Commissioner’s remuneration or, in the absence of a determination, the regulations can set the remuneration.  In addition, the Federal Safety Commissioner is to be paid any allowances prescribed by regulation.

 

1.126 Subclause (3) provides that this subsection has effect subject to the RT Act.  This will ensure that general provisions of the RT Act are not displaced by this clause.

 

Clause 40 - Leave

1.127 Clause 40 provides that the Remuneration Tribunal is to determine the recreation leave entitlements. 

 

1.128 The Remuneration Tribunal is to determine the recreation leave entitlements of the Federal Safety Commissioner (subclause (1)). 

 

1.129 Subclause (2) allows the Minister to grant the Federal Safety Commissioner leave of absence, other than recreation leave, on such terms and conditions as he or she determines.

 

Clause 41 - Engaging in other paid employment etc

1.130 Clause 41 requires the Federal Safety Commissioner to obtain approval from the Minister before engaging in other paid employment.

 

1.131 These arrangements are complemented by paragraph 44(1)(b) which allows the Minister to terminate the Commissioner’s appointment if the requirements of clause 41 are contravened  without a reasonable excuse.

 

Clause 42 - Disclosure of interests

1.132 Clause 42 requires the Federal Safety Commissioner to give the Minister notice of all financial or other interests that could conflict with the Commissioner’s duties.

 

1.133 This requirement is complemented by paragraph 44(1)(b), which allows the Minister to terminate the Commissioner’s appointment if the requirements of clause 42 are contravened without a reasonable excuse.

 

Clause 43 - Resignation

 

1.134 Clause 43 provides that the Federal Safety Commissioner may resign by giving written notice to the Minister.

 

Clause 44 - Termination of Employment

1.135 Subclause 44(1) provides that the Minister may terminate the Federal Safety Commissioner’s appointment if the Federal Safety Commissioner:

·          becomes bankrupt or takes specified steps related to insolvency;

·          contravenes, without reasonable excuse, the requirements relating to engagement in other paid employment (clause 41);

·          contravenes, without reasonable excuse, the requirement to disclose to the Minister any interest that could conflict with the Commissioner’s functions (clause 42); or

·          is absent from duty (except on authorised leave) for 14 consecutive days or for 28 days in any 12 month period.

 

1.136 Subclause (2) allows the Minister to terminate a Commissioner’s appointment for misbehaviour or on the ground of physical or mental incapacity.  Termination on the grounds of physical or mental incapacity may be subject to certain limitations imposed by superannuation legislation (subclauses (3) and (4)). 

 

Clause 45 - Staff and consultants

1.137 Clause 45 provides that the staff to assist the Federal Safety Commissioner in the performance of his or her functions are to be engaged under the Public Service Act 1999 , and made available by the Secretary of the Department of Employment and Workplace Relations (subclause (1)).

  

1.138 Subclause (2) provides that the Federal Safety Commissioner may engage consultants with suitable qualifications and experience on behalf of the Commonwealth.  The terms and conditions of engagement of consultants are determined in writing by the Federal Safety Commissioner.

Part 2 - OHS action

Clause 46 - Definition of building OHS action

1.139 Clause 46 defines building OHS action .  This term is relevant to the operation of clauses 47-49.

 

1.140 Building OHS action is defined as an employee’s failure or refusal to attend for building work or to perform any work at all if they attend for building work, where the failure or refusal is based on a reasonable concern about an imminent risk to the employee’s health or safety.  The reasonable concern must be held by the employee and must arise from conditions at the employee’s workplace.

 

1.141 For constitutional reasons, this definition of building OHS action only applies where the employer is a constitutional corporation or the Commonwealth, or the refusal or failure by the employee occurs in a Territory or a Commonwealth place.

 

Clause 47 - Entitlement to be paid for periods of building OHS action

1.142 Clause 47 applies to employees who engage in building OHS action (subclause (1)). 

 

1.143 Subclauses (3) and (4) impose penalties on employers who make payments to such employees in relation to a pre-referral non-entitlement period , and on employees who accept such payments.

 

1.144 A period during which an employee engaged in building OHS action is a pre-referral non-entitlement period if:

·          the period does not occur after the situation giving rise to building OHS action was referred to a relevant authority under an OHS law as prescribed by regulations; and

·          the employee fails to comply with the relevant dispute resolution procedure that applies to the situation giving rise to the building OHS action (subclause (2)).

 

1.145 Subclauses (5) and (6) impose civil penalties on employers who make payments to employees, and employees who accept such payments, where employees engage in building OHS action after the situation giving rise to the building OHS action has been referred to a relevant authority under an OHS law.  Paragraphs (5)(c) and (d) provide exceptions to where such a payment may be made.  These exceptions are:

·          where a prohibition notice has been issued in respect of the situation giving rise to the building OHS action and the employee has complied with the relevant dispute resolution procedure at all times from the time of the referral to the time the prohibition notice was issued;

·          where the building OHS action ceased before the relevant authority began an inspection of the situation and the employee complied with the relevant dispute resolution procedure at all times from the time of the referral to the time the building OHS action ceased.

 

1.146 Subclause (7) provides employees who don’t comply with a relevant dispute resolution procedure with a defence where their non-compliance is due to circumstances outside their control.

 

Clause 48 - Requirement to notify building OHS action

1.147 Clause 48 requires employers to give written notification to the ABC Commissioner of any threatened or actual building OHS action within 72 hours after the employer becomes aware of the action or threat. 

 

1.148 This clause is a Grade B civil penalty provision.

 

Clause 49 - Requirement to notify payments for period of building OHS action

1.149 Clause 49 requires employers to give written notification to the ABC Commissioner of a payment they have made to an employee in respect of a period during which the employee was engaged in building OHS action, within 72 hours of making that payment.

 

1.150 This clause is a Grade B civil penalty provision.

 

Part 3 - Accreditation scheme for Commonwealth building contracts

Clause 50 - Accreditation scheme

1.151 Clause 50 provides for an accreditation scheme and provides that the details of this scheme will be contained in the regulations. 

 

1.152 The regulations will provide for an accreditation scheme for persons who wish to enter into Commonwealth building contracts with the Commonwealth or Commonwealth authorities (subclause (1)).

 

1.153 The Commonwealth, or a Commonwealth authority must not enter into a building contract with a person who is not accredited at the time of entering into the contract.  The regulations may provide exceptions to this rule (subclause (4)).

 

1.154 The prohibition in subclause (4) overrides past, current and future Commonwealth provisions (subclause (5)) and a contravention of subclause (4) in respect of a contract does not affect the validity of the contract (subclause (6)).

 

1.155 Fees may be imposed for applications under the accreditation scheme (subclause (3)). 

 

1.156 The Federal Safety Commissioner will be the accrediting authority under the scheme (subclause (2)).

 

1.157 Subclause (7) sets out relevant definitions.

 

 



CHAPTER 5 - AWARDS, CERTIFIED AGREEMENTS AND OTHER PROVISIONS ABOUT EMPLOYMENT CONDITIONS

Part 1 - Awards

1.158 This Part contains provisions to further simplify building awards and to ensure that exceptional matters orders in relation to building industrial disputes are made only by a Full Bench of the AIRC.

 

Clause 51 - Scope of industrial disputes

1.159 Clause 51 sets out the scope of building industrial disputes where the AIRC is performing the following functions under the WR Act:

·          dealing with an industrial dispute by arbitration;

·          preventing or settling an industrial dispute by making an award or order;

·          maintaining the settlement of an industrial dispute by varying an award or order.

 

1.160 5.3           Building industrial dispute is defined in clause 4 of the Bill as any industrial dispute that relates to building employees whether or not the dispute also relates to other employees.  The definition is broad to ensure that the provisions of the Bill dealing with industrial disputes have appropriate and effective coverage.

 

1.161 Subclause (2) lists the allowable award matters in relation to which the AIRC can exercise arbitration powers in respect of building industrial disputes.  Subclause (2) is different in a number of respects to subsection 89A(2) of the WR Act, which it replaces in relation to building industrial disputes.

·          Paragraph (2)(a) does not refer to “skill-based career paths” because these matters are more appropriately dealt with at the enterprise or workplace level and, if regulation by industrial instrument is necessary, by a certified agreement or an Australian Workplace Agreement (AWA).

·          Paragraph (2)(d) does not refer to “bonuses” because such matters are more appropriately dealt with at the enterprise or workplace level and, if regulation by industrial instrument is necessary, by a certified agreement or an AWA.  Paragraph (2)(s) is included to ensure that “bonuses for outworkers” remains an allowable award matter.

·          There is no reference to “long service leave” as minimum standards of long service leave are set in State and Territory legislation.

·          Paragraph (2)(f) (the equivalent of paragraph 89A(g) of the WR Act) does not refer to “cultural leave and other like forms of leave.”  The capacity to include certain forms of cultural leave in an award provision is provided for in paragraph 2(g) which ensures that leave for Aboriginal and Torres Strait Islander people to meet ceremonial obligations and leave for other cultural or religious obligations of a similar nature continue to be allowable award matters for building awards.

·          Paragraph (2)(i) will preclude the AIRC from including in awards provisions that treat particular days as public holidays in addition to those declared by State and Territory governments to be observed generally in the relevant community as public holidays.  A building award could not include as public holidays additional days which may be or may have been treated as “extra” public holidays in the building and construction industry.  This change is not intended to preclude a building award from providing for the substitution of different days to be observed as public holidays or from providing for arrangements to be made at the workplace or enterprise level for the substitution of different days to be observed as public holidays.

·          Paragraph (2)(j) provides that the kinds of provisions that may be included in a building award in relation to allowances are those that relate to monetary allowances payable to employees for:

-          expenses incurred in the course of their employment;

-          particular responsibilities or skills that are not taken into account in an employee’s rate of pay; and

-          disabilities associated with the performance of particular tasks (for example, handling hazardous materials, or work in particular conditions or locations such as remote locations).

·          Paragraph (2)(k) is a provision that will allow the AIRC to include in building awards provisions that set the maximum number of hours per week that an employee can be required to work overtime.  It does not allow the AIRC to set an industry-wide cap on hours that may be worked in the industry.  This is intended to address the productivity and OHS issues of excessive work hours and overtime in the building and construction industry. This retains flexibility while being designed to operate in a manner akin to the existing right of employees to refuse unreasonable overtime.

·          Paragraph (2)(n) clarifies the circumstances in which a building award may provide for redundancy pay.  An award may only provide redundancy pay in circumstances where an employee’s employment has been terminated at the initiative of the employer on the grounds of operational requirements.  Nothing in clause 51 operates to allow the inclusion in building awards of provisions which affect the capacity of an employer to determine the number or identity of persons whose employment is to be terminated for operational requirements.

·          There is no reference to “notice of termination” (paragraph 89A(2)(n) of the WR Act) because minimum requirements as to notice are set out in Part VIA of the WR Act.

·          There is no reference to “jury service” (paragraph 89A(2)(q) of the WR Act) as such payments are appropriately dealt with by State and Territory governments. 

 

1.162 Subclause (3) makes clear that the AIRC’s power to make or vary an award dealing with the matters in subclause (2) is limited to making minimum rates awards that provide for basic minimum entitlements.  This reinforces the objects of ensuring that awards act as a safety net of basic minimum wages and conditions of employment, help address the needs of the low paid, do not provide for wages and conditions of employment above the safety net and do not operate as a disincentive to agreement making.

 

1.163 Subclause (4) limits the scope of the allowable award matters listed in subclause (2) by expressly providing that certain matters are not within the scope of the allowable matters.  The range of non-allowable matters is not confined to the matters listed in subclause (4).  This list is simply intended to provide greater certainty as to the status of the matters listed in that provision. 

Key non-allowable matters are set out below.

·          Transfers between work locations are not within the scope of the allowable award matters (paragraph (4)(a)).  This provision is intended to remove from the scope of building awards provisions such as those setting out conditions applicable to transfers or selection for transfers from one work location to another.  It is not intended to prevent the inclusion in awards of provisions that permit the transfer of employees where the employer is not able to usefully employ them because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.

·          Paragraph 4(b) excludes training or education matters except in relation to leave and allowances for apprentices.  Rates of pay underpinning training arrangements may still be set by the AIRC under paragraph 2(c).  This will not prevent the description of training programmes in awards, where those training programmes are part of the establishment of wages and conditions.

·          Matters relating to the times or days when work counts as ordinary time or overtime, or when rostered days off may be taken, are not allowable award matters (paragraph (4)(d)).  The inclusion of such matters in awards greatly reduces the flexibility of both employers and employees to achieve improvements in productivity and meet competing work, family and social obligations.  The term “rostered day off” refers to any similar allocated day off work to limit the total number of hours worked in a week, regardless of how that day may be described in an award.

·          Paragraph (4)(f) would exclude dispute settling procedures that provide an automatic role for an organisation of employers or employees.  This provision expressly provides that it does not exclude organisations from involvement in dispute settling procedures, where this is the choice of the employer or employee concerned.

·          Paragraph (4)(g) precludes clauses that provide for transfers from one type of employment (eg, full time employment, casual employment or shift work) to another type of employment.  This would not preclude the inclusion in an award of provisions that permit the transfer of employees to different duties where the employer is not able to usefully employ them to perform their usual duties because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.

·          Paragraph (4)(i) would exclude from the scope of allowable award matters prohibitions (whether direct or indirect) on an employer employing persons in a particular type of employment or classification.  This limitation is not intended to preclude a building award from including provisions that stipulate that particular competencies, qualifications or licences must be held in order to perform certain duties.

 

1.164 Subclause (5) limits the AIRC’s power when making an award dealing with superannuation matters.  The AIRC is precluded from specifying in an award a particular superannuation fund or scheme.  This will ensure that awards do not prevent employees in the building and construction industry from exercising choice between complying superannuation funds into which their employer is able to make contributions on their behalf.  (See also clause 175 of the Bill, which prohibits coercion in relation to superannuation.)

 

1.165 Subclauses (6), (7) and (8) set out other provisions that the AIRC may include in an award. 

 

1.166 Subclause (6) makes clear that a building award may contain provisions:

·          setting minimum consecutive hours for regular part time employees;

·          facilitating a regular pattern of hours for regular part time employees.

 

1.167 Subclause (7) limits the scope of “incidental” provisions that may be included in an award to those provisions that are essential for the purpose of making particular clauses relating to allowable matters operate in a practical way.  This provision would allow the AIRC to include in awards provisions that are required to ensure the practical operation of clauses dealing with allowable award matters, but would also ensure the notion of “practical operation” is not expanded, thereby recognising that awards should act as a safety net of basic minimum wages and conditions of employment.

 

1.168 Subclause (8) clarifies that the limits on allowable award matters in subclause (2) do not preclude awards from including machinery provisions such as “definitions”, “arrangement”, “commencement date” or “terms and parties bound”.

 

1.169 Further, exceptional matters may be included in an award, provided that the AIRC is satisfied of all the factors listed at paragraphs (9)(a) to (9)(e).

 

1.170 Subclause (10) modifies the definition of “exceptional matters” in section 4 of the WR Act for the purpose of the application of the WR Act to building industrial disputes.  It makes clear that, when dealing with building industrial disputes, the reference to subsection 89A(7) in the definition of “exceptional matters” is to be read as a reference to subclause 51(9) of this Bill.

 

1.171 Only a Full Bench of the AIRC may make an exceptional matters order under section 120A of the WR Act in relation to a building industrial dispute (subclause (11)).  At present, a single Commissioner may make an exceptional matters order that relates to a single business.

 

1.172 Subclauses (12), (13) and (14) allow the AIRC to include in or with a building award: a model discrimination clause, an enterprise flexibility provision and the statutory freedom of association statement (set out in Schedule 1 to the Bill).

 

Clause 52 - Minimising number of allowances

1.173 This clause requires the AIRC to have regard, when performing its functions under Part VI of the WR Act, to the significant task of minimising the number and complexity of allowances in building awards.  Building awards currently contain a large number of detailed and intricate special rates and allowances.  Clause 52 is intended to ensure that parties to building awards obtain the benefit of assistance from the AIRC to simplify these provisions.



 

Part 2 - Certified agreements

Division 1 - Certification

1.174 This Division contains a number of provisions that impose additional preconditions for the certification of building agreements under Part VIB of the WR Act.

 

Clause 53 - Hearing required before certification

1.175 The Bill proposes that the AIRC be satisfied of a number of matters prior to certifying a building agreement.  In order to ensure that the necessary information is placed before the AIRC, it is proposed that the AIRC be required to hold a hearing prior to certifying any building agreement (subclause (1)).

 

1.176 The Industrial Registrar will be required to provide the ABC Commissioner with documents lodged in relation to each application for certification of a building agreement at least seven days prior to the hearing (subclause (2)).  This will enable the ABC Commissioner to determine whether to intervene in the proceedings under clause 250 of the Bill. 

 

Clause 54 - Extraneous matters

1.177 The AIRC will be prohibited from certifying building agreements that contain matters that do not pertain to the relationship between the employer and those employees of the employer whose employment is subject to the agreement (subclause (1))

 

1.178 However, despite the prohibition in subclause (1), subclause (2) allows the AIRC to certify a building agreement that contains matters incidental to matters pertaining to the employment relationship that are essential for the purpose of making a particular provision of the agreement operate in a practical way.  This would allow the AIRC to certify agreements that contain provisions that are required to ensure the practical operation of matters that do pertain to the employment relationship. 

 

1.179 Subclause (3) makes it clear that the inclusion of the statutory freedom of information statement in a building agreement, in accordance with clause 58, does not prevent the AIRC from certifying the agreement.

 

Clause 55 - Non-standard period or retrospective payments

1.180 It is proposed that, as a general rule, the AIRC only be able to certify agreements that have a nominal expiry date of three years after the starting date of the agreement (the maximum permitted under the WR Act) (subclause (1)).  This is designed to prevent the facilitation of pattern bargaining through the fixing of common nominal expiry dates across a large number of building agreements.

 

1.181 The only exception to the general rule is where the AIRC is satisfied that an earlier expiry date is justified by special circumstances (subclause (2)).  Special circumstances could include a short-term agreement designed to assist an employer through a period of financial difficulty or an agreement designed to meet the requirements of a specific and limited project.

 

1.182 Subclause (3) prohibits the AIRC from certifying an agreement that imposes retrospective obligations on the employer to pay any wages, allowances, contributions or any other monetary benefits to, or on behalf of employees, unless the AIRC is satisfied that the employer unreasonably delayed the making of the agreement (subclause (4)).  This is designed to encourage the parties to reach a new agreement prior to the nominal expiry date of any existing agreement.

 

Clause 56 - Pattern bargaining

1.183 Clause 56 requires the AIRC to refuse to certify an agreement unless it is satisfied that the agreement is not an agreement that resulted from pattern bargaining (a “pattern agreement”). 

 

1.184 The definition of pattern bargaining is contained in clause 8.  For an agreement to be a pattern agreement, it is not necessary for the entire agreement to have resulted from the seeking of common wages or common conditions of employment.  An agreement may be a pattern agreement if only part of the agreement has resulted from pattern bargaining.

 

1.185 The definition of pattern bargaining does not prevent a person from engaging in conduct that involves seeking common conditions of employment beyond a single business, so long as the person genuinely tries to reach agreement in relation to those conditions of employment.

 

1.186 In determining whether a person has “genuinely tried to reach agreement”, the AIRC is referred to the same phrase as it is used in section 170MW of the WR Act and expounded by the factors listed in clause 62 of this Bill.

 

1.187 A number of factors might indicate the presence of pattern bargaining such as: the extent of commonality of the agreement with other agreements in the building industry; the incorporation of other documents into agreements; and evidence of pattern bargaining campaigns in the industry.

 

1.188 However, an agreement will not be a pattern agreement merely because it resulted from a person seeking the inclusion in the proposed agreement of terms and conditions which give effect to a decision of a Full Bench of the AIRC establishing national standards.

 

1.189 Where the AIRC is in doubt as to whether the agreement is a pattern agreement, it must refuse to certify the agreement.

 

Clause 57 - Objectionable provisions

5.33     Clause 57 prohibits the AIRC from certifying a building agreement where it is satisfied that the agreement contains an objectionable provision. 

 

1.190 The definition of objectionable provision is contained in clause 7.

 

Clause 58 - Freedom of association statement

1.191 Clause 58 prohibits the AIRC from certifying a building agreement unless it contains the statutory freedom of association statement. 

 

1.192 The statutory freedom of association statement is set out in Schedule 1 to the Bill.  The inclusion of this statement in certified agreements will ensure that the fundamental principles of freedom of association are clear to anyone reading the agreement. 

 

Clause 59 - Initiation of bargaining period

1.193 Clause 59 prohibits the AIRC from certifying a building agreement unless a notice initiating a bargaining period in respect of that agreement is issued under section 170MI of the WR Act. 

 

1.194 A legislative note to this provision refers to clause 64.  Clause 64 sets out additional requirements for the valid initiation of a bargaining period in certain circumstances. 

 

1.195 The initiation of a bargaining period in respect of an agreement is an important step in the negotiation process as it places the bargaining parties on notice and defines the matters at issue between them.

 

1.196 The initiation of a bargaining period in relation to a proposed agreement does not prevent the initiation of further bargaining periods in relation to the matters that the proposed agreement is intended to cover, as long as the requirements in clause 64 are met wherever applicable.  The mere fact that an employee organisation initiates a bargaining period does not prevent the employer or the employees from taking an active role in determining the appropriate agreement for their workplace.

 

Clause 60 - Agreements that incorporate other documents

1.197 Clause 60 encourages the AIRC, when certifying agreements, to take into account the content of other agreements or documents incorporated by reference into the building agreement. 

 

1.198 Some agreements or documents incorporated into building agreements may not meet the requirements for certification and consequently, agreements into which such documents are incorporated may not meet the requirements for certification. 

 

1.199 This provision is designed to ensure that the AIRC reviews agreements as a whole (including any incorporated documents), in order to ascertain whether the entire agreement meets the requirements for certification.

 

Clause 61 - Appeal against certification

1.200 Clauses 54-59 set out grounds on which the AIRC must refuse to certify an agreement.  Clause 61 modifies the operation of paragraph 45(1)(eaa) of the WR Act - which provides a limited right of appeal against a decision to certify an agreement. 

 

1.201 Clause 61 extends the right of appeal to cover a decision of a member of the AIRC to certify an agreement on the ground that the member should have refused to certify the agreement under any of clauses 54-59.

 

Division 2 - Miscellaneous

1.202 This Division contains miscellaneous provisions to ensure that certified agreements in the building and construction industry are genuinely reached, taking into account the views of interested parties.

 

Clause 62 - Indicators of genuinely trying to reach agreement

1.203 Section 170MW of the WR Act gives the AIRC power to suspend or terminate a bargaining period in certain circumstances.  Paragraphs 170MW(2)(a) and (b) provide that two of the circumstances for the suspension or termination of a bargaining period are that:

·          a negotiating party organising or taking industrial action did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or

·          is not genuinely trying to reach agreement with the other negotiating parties.

 

1.204 Clause 62 lists a number of indicators of “genuinely trying to reach agreement”, which the AIRC may consider when determining whether a negotiating party is genuinely trying to reach agreement.  “Negotiating party” is defined in clause 4 as having the same meaning of “negotiating party” found in subsection 170MI(3) of the WR Act. 

 

1.205 The indicators describe a range of appropriate bargaining behaviours, designed to enhance the quality and efficacy of the bargaining process.   The list of indicators is non-exhaustive - other behaviours and approaches may indicate that a party is genuinely trying to reach agreement.  Similarly, the mere presence or absence of a factor does not, of itself, indicate that a party is or is not genuinely trying to reach agreement.

 

1.206 Nothing in this clause limits or modifies Justice Munro’s consideration of the issue of whether or not a negotiating party is genuinely trying to reach agreement in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union as referred to in a legislative note to subsection 170MW(2).

 

Clause 63 - Employee representations

1.207 Clause 63 ensures that where an employer makes a building agreement under the WR Act with an organisation of employees, all employees, whether they are members of the organisation or not, have an opportunity to make representations to the employer about the proposed agreement.

 

1.208 The means by which an employer could meet its obligations under this clause are not set out in the legislation, but could include, for example: meeting and conferring with employees; meeting with employee representatives; or holding a mass meeting of employees.

 

1.209 Relevant organisations of employees already have a similar right under subsections 170LK(4) and (5) of the WR Act in relation to agreements made directly with employees.

 

Clause 64 - Representation ballot for initiation of bargaining period

1.210 Clause 64 will ensure that employees have an opportunity to vote on who should represent them in negotiations for a proposed agreement.  Employees will be able to determine whether they should represent themselves or whether they are represented by a relevant organisation of employees.  Employees choosing to represent themselves may also appoint an agent to initiate a bargaining period (see clause 65).

 

1.211 A union, or an employer seeking to reach an agreement with a union, cannot issue a notice initiating a bargaining period unless, in the 21 day period before the notice is issued, all employees whose employment will be subject to the agreement have been given an opportunity to vote on whether they wish to be represented by the union in the negotiations (subclause (1)).

 

1.212 Subclause (2) sets out the requirements with which the vote must comply. 

·          The vote must be conducted by secret ballot where there are at least 10 employees whose employment will be covered by the agreement entitled to vote (paragraph (2)(a)). 

·          The voting process must be fair (paragraph (2)(b)). 

·          All affected employees must be notified of the vote, what the vote is about and the timing and the method of the vote (paragraph (2)(c)).

·          Any additional requirements prescribed by regulations (paragraph (2)(d)).

 

Clause 65 - Initiating party who is employee may appoint agent

1.213 Clause 65 will allow an employee or group of employees who wish to initiate a bargaining period under section 170MI of the WR Act, or who wish to give an employer notice of their intention to take industrial action under section 170MO of the WR Act, to appoint an agent to initiate the bargaining period or issue the notice on their behalf.  This will give the employee or employees the option of remaining anonymous to their employer. 

 

1.214 This provision is consistent with subclause 87(6), which would allow an employee or employees to appoint an agent to represent them in relation to applications for a protected action ballot.

 

1.215 Clause 65 specifies that where an agent has been appointed to initiate a bargaining period under section 170MI, the written notice that would be required to be given to the AIRC under subsection 170MI(2) must include the names of the employee or employees who appointed the agent (subclause (2)).

 

1.216 Subclause (3) provides for regulations to be made about the qualifications and appointment of any agents appointed under this clause.

 

Clause 66 - Identity of person who has appointed agent not to be disclosed

1.217 Clause 66 further protects the identity of employees who appoint agents under clause 65 by prohibiting the AIRC from disclosing information that would identify persons who have appointed an agent. 

 

1.218 However, the AIRC will be able to disclose information that would identify persons who have appointed an agent if the disclosure is permitted by an Act or by regulations made under an Act, or if the disclosure has been authorised in writing by the person whose identity would otherwise be protected (subclause (2)).

 

1.219 It would be an offence for any person to disclose information that would identify persons who have appointed a bargaining agent under clause 65.  The maximum penalty for this offence is 12 months imprisonment (subclause (3)).

 

1.220 Exceptions to the prohibition on disclosure are where the disclosure:

·          is required or permitted by any Act or by regulations made under an Act;

·          has been authorised by the person whose identity would otherwise be protected; or

·          is by a Registry official or authorised ballot agent (or a person acting on their behalf) in the course of performing their functions or duties (subclause (4)).

 

1.221 For the purposes of determining the burden of proof in proceedings relating to offences under subclause (3), the exceptions set out in subclause (4) would be part of the description of the offence.  This addresses the requirements of the Criminal Code Act 1995 (the Criminal Code).

 

1.222 Subclause (5) provides definitions of the terms “protected information” and “Registry official” for the purposes of clause 66.

 

Part 3 - Other provisions about employment conditions

1.223 This Part contains provisions to promote the making of genuine agreements in the building and construction industry and to prevent the inclusion and operation of objectionable provisions in industrial instruments.

 

Clause 67 - Injunction against pattern bargaining

1.224 Clause 67 provides the Federal Court with power to issue an injunction, in whatever terms it considers appropriate, to restrain a person from engaging in pattern bargaining in respect of building employees.

 

1.225 The ABC Commissioner or any other person may apply to the Federal Court for an injunction.

 

1.226 The Federal Court may grant an injunction against a person or industrial association, if it is satisfied that the person or industrial association is engaging, has engaged or is proposing to engage in pattern bargaining.  Reference is made to “industrial associations” to capture unincorporated associations, as they would not fall within the meaning of “person”.

 

1.227 Pattern bargaining is defined in clause 8 as a course of conduct or bargaining, or the making of claims by a person that involves seeking common wages or other common conditions of employment and extends beyond a single business.   A person seeking common wages or other common conditions of employment beyond a single business will not be engaging in pattern bargaining if the person is:

·          genuinely trying to reach agreement on the matters that are the subject of the conduct; or

·          seeking the inclusion of matters in a Federal or State award; or

·          seeking the inclusion in a proposed agreement of terms and conditions which give effect to a decision of a Full Bench of the AIRC establishing national standards; or

·          proposing to enter into a construction contract with the second person and is engaging in the conduct solely to encourage a second person to include particular eligible conditions (as defined in clause 4) in an enterprise agreement covering the second person’s employees.

 

1.228 In all other circumstances, where a person seeks common wages or other common conditions of employment beyond a single business, an injunction may be obtained to restrain that person from engaging in pattern bargaining, regardless of whether the conduct occurs in relation to a proposed Federal agreement, a proposed State agreement or a proposed unregistered or informal agreement.

 

1.229 Subclause (2) provides the Federal Court with power to grant an interim injunction pending the determination of an application for an injunction.

 

1.230 Subclause (3) sets out the constitutional prerequisites for the Federal Court’s exercise of power to grant an injunction.  Paragraph 3(c) allows the Federal Court to grant an injunction or interim injunction where some or all of the employees, in respect of whom the pattern bargaining conduct is engaged in, are employees or prospective employees of a constitutional corporation.  Reference is made to “prospective employees” in order to regulate pattern bargaining conduct in greenfields situations, where an employer is yet to engage any employees in its business.

 

1.231 The Federal Court may grant an injunction regardless of whether it appears to the Court that the defendant intends to engage again, continue to engage or has previously engaged in pattern bargaining conduct and regardless of whether there is an imminent danger of substantial damage to any person if the defendant engages in pattern bargaining conduct (subclause (4)).

 

1.232 Subclause (5) makes it clear that an injunction may be granted and enforced to restrain pattern bargaining conduct even if it otherwise meets the requirements for protected action.

 

Clause 68 - Project agreements not enforceable

1.233 Clause 68 makes it clear that project agreements in any form are unenforceable unless certified under the WR Act (subclause (1)).  This provision affects agreements only and does not apply to awards, whether made by consent or otherwise.  Section 170LC of the WR Act specifies the conditions under which a “multiple business agreement” may be certified.

 

1.234 Project agreements usually provide standard employment conditions for employees employed in a number of different businesses on a particular building site or sites and provide a means for securing “pattern” outcomes.  This is contrary to the WR Act’s focus on bargaining at the enterprise or workplace level. 

 

1.235 Clause 68 is not intended to render unenforceable an agreement securing standard employment conditions for the employees of a single employer working across a number of building sites (paragraph (1)(b)).

 

1.236 Paragraph 68(1)(c) describes the kinds of agreements that are rendered unenforceable by this clause.  Any project agreement will be unenforceable to the extent to which it relates to building employees if at least some of the employees to which the agreement applies are:

·          members of an organisation that is party to the agreement; or

·          employees of a constitutional corporation that is party to the agreement.

 

1.237 Section 170LB of the WR Act is to be disregarded when determining whether employees are employed by the same employer (subclause (2)).  This is to ensure that the situations set out in section 170LB(2) where two or more employers are taken to be one employer do not apply for the purposes of this clause.

 

1.238 A legislative note appended to this section refers to clauses 56 and 67.  These provisions will operate to prevent the implementation of common agreements on project sites through pattern bargaining.

·          Clause 56 prohibits the AIRC from certifying an agreement unless satisfied that it is not a pattern agreement. 

·          Clause 67 gives the Federal Court power to issue an injunction to restrain pattern bargaining conduct. 

 

1.239 Also relevant is clause 174 which prohibits a person from discriminating against another person on the ground that the industrial instrument covering or proposed to cover that person’s employees is of a particular kind or made with a particular person. 

 

Clause 69 - Objectionable provisions etc. in industrial instruments etc

1.240 Subclause 69(1) renders void any provision of a building certified agreement or building award to the extent that it is an objectionable provision.  The definition of objectionable provision is set out in clause 7 of the Bill.

 

1.241 Subclause 69(2) renders void any provision of any agreement, arrangement or award that would require or permit, or have the effect of requiring or permitting any conduct that would contravene Chapter 7 of the Bill, which deals with freedom of association.

 

Clause 70 - Removal of objectionable provisions from awards and certified agreements

1.242 The AIRC, where it is satisfied that a building award contains objectionable provisions, must remove those provisions from the award upon application by any of the persons listed in subclause (2) (subclause (1)).

 

1.243 The AIRC, where it is satisfied that a building agreement contains objectionable provisions, must remove those provisions from the agreement upon application by any of the persons listed in subclause (4) (subclause (3)).

 

Clause 71 - Enforcement of building awards, agreements and orders

1.244 This clause provides that the compliance arrangements set out in Part VIII of the WR Act apply in relation to building awards, building certified agreements and building orders - i.e. an order of the AIRC under this Act or an order of the AIRC under the WR Act that is binding on a building employer or building employee, with the following modifications:

·          references to a magistrates court are to be read to include the Federal Magistrates Court;

·          references to penalty amounts in subsections178(4) and (4A) are to be converted into penalty units as follows:

-          $1,000 to become 100 penalty units;

-          $2,000 to become 200 penalty units;

-          $5,000 to become 500 penalty units; and

-          $10,000 to become 1,000 penalty units.

 

1.245 The maximum amount that the court can award in a small claims procedure is also to be increased.  The reference in paragraph 179D(2)(a) of the WR Act to $5,000 is to be read as $25,000.             



 

CHAPTER 6 - INDUSTRIAL ACTION ETC.

1.246 This Chapter sets out rules relating to industrial action for the building and construction industry.  The Chapter:

·          renders certain kinds of industrial action unlawful;

·          modifies what may be protected action for the purposes of the WR Act;

·          requires the ABC Commissioner to be notified of certain matters in relation to industrial action; and

·          sets out a scheme for secret ballots to approve the taking of protected industrial action.

 

Part 1 - Preliminary

1.247 This Part contains relevant industrial action definitions for Chapter 6.

 

Clause 72 - Definitions

building industrial action

1.248 Building industrial action is defined broadly to encompass conduct by employers and employees that adversely affects the performance of building work.  Paragraphs (e), (f) and (g) describe exceptions to the definition of building industrial action. 

 

1.249 Paragraph (e) excludes action by employees that has been authorised or agreed to in advance and in writing by the employer of those employees.  Paragraph (f) excludes action by an employer that has been authorised or agreed to in advance and in writing by or on behalf of the employees of that employer.  The requirement for the action to be authorised or agreed to in advance and in writing is intended to prevent the application of pressure on parties to authorise industrial action retrospectively.

 

1.250 Paragraph (g) excludes action by an employee where that action is based on a reasonable concern by the employee about an imminent risk to his or her own health and safety and the employee did not unreasonably fail to comply with any direction of his or her employer to perform other available work that was safe for the employee to perform.  The employer may direct the employee to perform available work at the same or any other workplace.

 

constitutionally-connected action

1.251 A definition of constitutionally-connected action is required in order to constitutionally limit the broad operation of building industrial action in circumstances where it is necessary to do so.  Only one of the conditions needs to be met in order to provide a constitutional basis for regulating the industrial action.

 

1.252 Paragraph (a) refers to building industrial action being taken by an organisation.  Clause 247 of the Bill makes it clear that action taken by a group of members of an organisation is action taken by the organisation where it has been authorised by the rules of the organisation, the committee of management or an officer or agent of the organisation acting in that capacity.

 

Excluded action

1.253 The term “excluded action” is used to designate the kinds of industrial action that will not be unlawful industrial action under this Bill.  Only protected action under the WR Act as modified by this Bill and AWA industrial action will be excluded action. 

 

1.254 In accordance with the recommendations of the Royal Commissioner, action protected under State and Territory legislation will not be excluded action for the purposes of this Bill.

 

industrially-motivated

1.255 This term is used to distinguish conduct that is generally recognised as industrial action from conduct that, while technically falling into the broad definition of building industrial action, would not be considered to be industrial action as that term is commonly understood.  For example, a mere failure to attend for work may occur for a number of reasons and will not necessarily be considered to be industrial action unless the failure to attend is for one of the reasons, or for reasons including one of the reasons, listed in this definition.

 

1.256 In order for action to be industrially-motivated, it is not necessary that it be taken solely for one of the reasons listed in the definition, nor must a reason listed in the definition be the dominant purpose for the action.  It must merely be one of the purposes for which the action is taken.  Where, for example, the purpose is to disrupt the performance of work in order to attain a particular goal, the action will be industrially-motivated.

 

1.257 For action to be industrially-motivated, it is not necessary for the action to be taken to support or advance claims against the employer of the employees taking the action.  Action by employees to support or advance claims by a separate group of employees against a different employer will also be considered industrially-motivated.

 

1.258 If a person seeks to argue that they have not engaged in industrial action on the grounds that the action falls within the exception for action based on an imminent risk to health and safety, the onus is on that person to prove that the action was based on a reasonable concern about an imminent risk to health and safety (subclause (2)).  This provision has been included to prevent persons engaging in industrial action from avoiding responsibility for their actions by relying on spurious health and safety risks.

 

1.259 Subclause 72(3) is modelled on subsection 4(9) of the WR Act.  Paragraph (3)(a) makes it clear that action, such as the implementation of work bans, by either an employee or employer will still be building industrial action, even if it relates to only part of the duties that an employee is required to perform in the course of employment.  Paragraph (3)(b) makes it clear that industrial action may include a course of conduct.

 

Part 2 - Unlawful industrial action

1.260 This Part contains provisions to prevent the occurrence of unlawful industrial action.

 

Clause 73 - Definition of unlawful industrial action

1.261 Unlawful industrial action is defined as all constitutionally-connected, industrially-motivated building industrial action that is not excluded action (as defined in clause 72).  For example, where the reason, or one of the reasons for the industrial action is a demarcation dispute between unions, such action will be unlawful industrial action.

 

Clause 74 - Unlawful industrial action prohibited

1.262 Clause 74 prohibits a person from engaging in unlawful industrial action.  This is a Grade A civil penalty provision.

 

1.263 In addition to the general rules applying to civil penalty provisions, outlined at the beginning of the explanatory memorandum, clause 227 of the Bill will allow an action in relation to unlawful industrial action to also be brought by any eligible person in the Federal Magistrates Court or any Supreme, District or County Court of a State or Territory. 

 

1.264 Subclause 227(4) provides an appropriate court with power, in respect of a contravention of this clause, to grant an injunction regardless of whether it appears to the court that the defendant intends to engage again, continue to engage or has previously engaged in unlawful industrial action and regardless of whether there is an imminent danger of substantial damage to any person if the defendant engages in unlawful industrial action.

 

Clause 75 - Injunction against threatened etc. unlawful industrial action

1.265 This clause allows the ABC Commissioner, or any other person who becomes aware of threatened, impending or probable unlawful industrial action, to make application to an appropriate court for an injunction to prevent the occurrence of the unlawful industrial action.

 

1.266 An appropriate court will be able to grant an interim injunction, pending its determination of the application for the injunction (subclause (2)).

 

1.267 An appropriate court will be able to grant an injunction regardless of whether it appears to the court that the defendant intends to engage again, continue to engage or has previously engaged in unlawful industrial action and regardless of whether there is an imminent danger of substantial damage to any person if the defendant engages in unlawful industrial action (subclause (3)).

 

1.268 The term appropriate court is defined in subclause (4) for the purposes of this clause as being the Federal Court, the Federal Magistrates Court, the Supreme Court of a State or Territory or any  District or County Court of a State.

 

Clause 76 - Obligation to notify cessation of unlawful industrial action

1.269 Clause 76 requires an employer whose employees have engaged in unlawful industrial action to notify the ABC Commissioner, in writing, within 14 days of becoming aware that the industrial action has ended. 

 

1.270 This is a Grade B civil penalty provision. 

 

1.271 There will be a form prescribed by the regulations for the purposes of notifying the ABC Commissioner under this clause.  Employers will be required to provide the particulars indicated in the form (subclause (2)).

 

1.272 In some cases, the ABC Commissioner may require further information from the employer and will issue a written notice to the employer to provide additional information about the damage suffered as a result of the unlawful industrial action (subclause (3)). 

 

1.273 If issued with a notice under subclause 76(3), the employer must provide the information within the time period specified in the notice (subclause 76(4)). 

 

1.274 This is a Grade B civil penalty provision. 

 

1.275 False and misleading statements are covered by the Criminal Code.

 

1.276 An obligation to notify the ABC Commissioner of the commencement of industrial action, whether unlawful or not, is in clause 135.

 

Clause 77 - Assessment of damage resulting from unlawful industrial action

1.277 Under paragraph 227(1)(b), an appropriate court may make an order requiring a person who has contravened a civil penalty provision to pay compensation for damage suffered by another person as a result of the contravention.

 

1.278 Where a person has suffered loss as a result of alleged unlawful industrial action, clause 77 will allow the ABC Commissioner to nominate, in writing, an ABC Inspector to assess the amount of damage.  The amount is to be assessed by reference to the amount a court could order the person to be paid as compensation for the damage suffered.  The alleged contravention, in respect of which the assessment is being conducted, must be specified in the document nominating an ABC inspector to carry out the assessment (subclause (1)).

·          Paragraph 237(1)(d) provides an ABC Inspector with power to enter premises for the purpose of making an assessment under this clause.

·          ABC Inspectors conducting loss assessments will be appropriately qualified.  Clause 25(3) enables the ABC Commissioner to engage persons having suitable qualifications and experience as consultants to the ABC Commissioner.  Such consultants may be appointed as ABC Inspectors under paragraph 235(1)(c) of the Bill.

 

1.279 After performing the assessment, the ABC Inspector may issue a certificate.  The certificate must specify the assessment figure, the person who suffered the damage and the alleged contravention (subclause (2)).

 

1.280 Where more than one person suffers damage as a result of the alleged contravention, the ABC Inspector may issue more than one certificate in respect of the contravention.  Each certificate must specify the amount that the person named in the certificate could be paid in compensation.

 

1.281 Where a court finds that the specified unlawful industrial action occurred (in contravention of clause 74), the certificate is prima facie evidence of the loss suffered by a person as a result of the specified contravention (subclause (3)).  This does not prevent any party to the proceedings from challenging the certificate.

 

1.282 Subclause (4) enables persons to rely on the validity of documents that purport to be certificates issued under this clause unless the document is proven not to be such a certificate.

 

Part 3 - Protected action

1.283 This Part contains exceptions to the rules governing protected action under the WR Act, and new requirements for secret ballots authorising protected action.

 

Division 1 - Exceptions to protected action

1.284 This Division outlines circumstances in which building industrial action will not be protected action for the purposes of the WR Act.  These circumstances are in addition to the requirements for protected action under the WR Act.

 

Clause 78 - Action in support of extraneous claims

1.285 Under clause 54, a building agreement may only be about matters that pertain to the relationship between the employer and the employees who will be subject to the agreement. 

 

1.286 Clause 78 makes it clear that any building industrial action in support of claims that cannot be included in a building certified agreement is not protected action for the purposes of the WR Act.  Where building industrial action is taken for the purpose of supporting or advancing a number of claims, the action will not be protected action if any of the claims for which the action is taken does not pertain to the relationship between the employer and the employees who will be subject to the agreement.

 

1.287 Building industrial action in support of a claim that is incidental to a matter pertaining to the employment relationship and is essential for the purpose of making a particular provision of the agreement operate in a practical way will still be protected action, provided that it meets all other requirements for protected action.

 

Clause 79 - Action involving extraneous participants

1.288 Clause 79 makes it clear that any building industrial action which is engaged in in concert with unprotected persons, or organised by persons including unprotected persons, will itself be unprotected.  An unprotected person is anyone other than:

·          a negotiating party to the proposed agreement; 

·          a member of an organisation that is a negotiating party to the proposed agreement and whose employment will be subject to the agreement; or

·          an officer or employee of an organisation that is a negotiating party and who is acting in that capacity.

 

Clause 80 - Action before nominal expiry date

1.289 Clause 80 makes it clear that where the employment of employees is subject, in any respect, to a building certified agreement or agreements, building industrial action taken prior to the nominal expiry date of any one of those agreements will not be protected action.

 

1.290 This provision is largely modelled on section 170MN of the WR Act.  However, the reference to “in any respect” in subclause (1) is designed to address an apparent anomaly in the WR Act identified by the Federal Court in Emwest v Automotive, Food, Metals, Engineering, 6.45     Printing and Kindred Industries Union (2003) FCAFC 183.  In that case, the court held that section 170MN of the WR Act did not prevent employees taking protected industrial action in respect of issues not covered by a certified agreement.  This is contrary to the intent of the provision. 

 

Clause 81 - Action during “cooling off” period

1.291 Clause 81 imposes mandatory cooling-off periods on parties taking building industrial action.  The purpose of these cooling-off periods is to limit the serious economic harm caused by industrial action and to encourage parties to continue negotiations in a less heated environment.

 

1.292 Subclause (1) imposes a mandatory 21 day cooling-off period that applies 14 days after industrial action has been notified to commence, regardless of whether industrial action has been taken on each or any of those 14 days.  The cooling-off period is imposed by providing that building industrial action taken during the cooling-off period is not protected action.

 

1.293 After the 21 day cooling-off period, further protected building industrial action may be taken (provided it meets all other requirements for protected action) if the AIRC issues a certificate to cover the building industrial action (subclause (2)).

 

1.294 A certificate to cover the building industrial action may be issued on application by the person who notified the initial industrial action.  In considering whether to issue the certificate, the AIRC must have regard to all of the matters listed at paragraphs (a) to (g) (subclause (3)). 

 

1.295 The certificate issued by the AIRC can authorise no more than 14 days further industrial action (subclause (4)) and can only sanction industrial action authorised by the original secret ballot approving the industrial action. 

 

1.296 After those 14 days have elapsed, a further mandatory cooling-off period of 21 days is imposed before an application may be made to the AIRC for further approval to take industrial action (subclause (5)).  In considering whether to issue a further certificate, the AIRC must again have regard to all of the matters listed at paragraphs (a) to (g) of subclause (3).

 

1.297 Paragraph (5)(c) makes it clear that no application may be made to the AIRC for a certificate authorising industrial action while the bargaining period is suspended under section 170MW of the WR Act.

 

1.298 Subclause (6) provides that notification of intent to take industrial action under section 170MO of the WR Act is not required where the industrial action has been authorised by a certificate issued by the AIRC.  This is because affected parties would have sufficient warning of impending industrial action as a result of the procedure involved with the issue of the certificate by the AIRC.

 

Clause 82 - Action not authorised by secret ballot

1.299 Under clause 82, building industrial action for the purpose of supporting or advancing claims against an employer can only be protected action if it is authorised in advance by a ballot held in accordance with the requirements of Division 2 of Part 3 of Chapter 6.

 

1.300 Building industrial action in response to a lockout by the employer of the employees, whose employment will be subject to the agreement, is not required to be authorised in advance by a secret ballot.

 

Clause 83 - Negotiations must precede building industrial action

1.301 Clause 83 provides that subsections 170MP(1) and (2) of the WR Act do not apply to building industrial action.  Subsections 170MP(1) and (2) provide that industrial action is not protected unless the organisation or employees taking action have genuinely tried to reach agreement. 

 

1.302 This requirement will no longer be necessary as the issue of whether a union or employees proposing to take industrial action have been genuinely trying to reach agreement will be considered by the AIRC when it is determining an application for a protected action ballot under clause 97.

 

1.303 Subclauses (2) and (3) provide that a negotiating party is not engaging in protected industrial action unless it has complied with any order or direction made by the AIRC in relation to the negotiations.

 

Clause 84 - Organising industrial action

1.304 Clause 84 makes it clear that where a person organises building industrial action, the act of organising the industrial action will not be protected action if the action being organised would not be protected action under any of the additional rules regulating access to protected action imposed by Division 1 of Part 3 of Chapter 6. 

 

Division 2 - Requirements for secret ballots

1.305 This Division contains the requirements that must be met by a secret ballot, in order for that ballot to authorise protected action.

 

Subdivision A - General

1.306 This Subdivision contains the object and an overview of the Division along with the definitions applicable to this Division.

 

Clause 85 - Object of Division and overview of Division

1.307 Clause 85 establishes the object of this Division: to provide employees with access to a process of free and democratic secret ballots to determine whether protected building industrial action should be taken.  The provisions are designed to be facilitative (i.e. to provide the means for accessing protected action) not prohibitive (i.e. to outline the circumstances in which such action is not available). This clause also makes clear, in a legislative note, that a protected action ballot would not be required in the case of action taken in response to a lockout by the employer.

 

Clause 86 - Definitions

1.308 Clause 86 defines the terms used in this Division.

 

Subdivision B - Application for order for protected action ballot to be held

1.309 This Subdivision sets out who may apply for a protected action ballot order and the manner in which such an application must be made.

 

Clause 87 - Who may apply for a ballot order etc.

1.310 Under clause 87, an application for a protected action ballot could only be made once a bargaining period has commenced.  However, if there is an existing agreement applying to relevant employees (“relevant employee” is a defined term - see clause 86) then the application cannot be made more than 30 days before the nominal expiry date of the agreement or, if there is more than one agreement, the latest nominal expiry date of those agreements.  This reflects the fact that protected action may not be taken before the nominal expiry date of an agreement (see clause 80) and that a secret ballot can only authorise industrial action that commences within a 30 day period from the declaration of the ballot or the nominal expiry date of an existing agreement (whichever is later) (see clause 114).

 

1.311 Who can make the application depends on who initiated the bargaining period under section 170MI of the WR Act.  Under subclause 87(4), if a union initiated the bargaining period, then that union could apply to the AIRC for a ballot order.  If an employee or employees seeking a non-union agreement initiated the bargaining period, then any employee who would be subject to the proposed agreement, or such employees acting jointly, could apply to the AIRC for a ballot order.

 

1.312 To ensure that a sufficient level of employee support exists to justify the holding of a ballot in relation to employees seeking a non-union agreement, subclause (5) will provide that an employee or employees acting jointly are unable to make an application to the AIRC for a ballot order unless the application has the support of a prescribed number of employees who would be subject to the proposed agreement.  (The equivalent requirement in the case of ballot applications by a union, is that the union is to be required to provide evidence that the application has been authorised by or through the union’s committee of management - see subclause 89(2)).

 

1.313 6.68        The term “prescribed number” is defined in subclause 86.  The “prescribed number” varies depending on the size of the workplace: 

·          if there are less than 80 employees who would be subject to the proposed agreement, then at least two of the employees would be required to support the ballot application.

·          if there are between 80 and 5000 employees who would be subject to the proposed agreement, at least 5 per cent of the employees would be required to support the ballot application. 

·          if there are more than 5000 employees who would be subject to the proposed agreement, then at least 250 of the employees would be required to support the ballot application.

 

1.314 Subclause (6) provides that where an employee or employees have initiated a bargaining period for a non-union agreement and building industrial action is proposed, an employee or employees acting jointly may appoint an agent to represent them in making the ballot application and for all purposes connected with the ballot application.  This is intended to enable employees making an application to remain anonymous.

 

Clause 88 - Contents of application

1.315 Clause 88 proposes mandatory requirements for a ballot application under clause 87.  Applications would be required to include the following information:

·          the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed building industrial action; and

·          details of the types of employees who are to be balloted.

 

1.316 Regulations may be made under this clause in respect of any matter to be included in an application.

 

1.317 Subclause 88(2) allows the ballot order applicant to nominate a person to conduct the ballot (although the question of who is to conduct the ballot is ultimately determined by the AIRC - paragraph 99(1)(e) and clause 116).

 

Clause 89 - Material to accompany application

1.318 Clause 89 would require the applicant to provide certain material to the AIRC with the ballot application, including:

·          a copy of the notice initiating the bargaining period and the particulars accompanying that notice;

·          a declaration by the applicant that the industrial action to which the application relates is not for the purpose of advancing or supporting claims to include an “objectionable provision” (as defined in clause 7 of the Bill);

·          if the applicant is an organisation of employees, a written notice showing that the application has been duly authorised in accordance with the organisation’s rules; and

·          if the applicant is represented by an agent, a document containing the name of the employee applicant or applicants.

 

1.319 False and misleading statements are covered by the Criminal Code.

 

Clause 90 - Notice of application

1.320 Clause 90 would require the applicant to give a copy of the application to the relevant employer and any person nominated in the application to conduct the ballot within 24 hours of the application being lodged with the AIRC.  However, the applicant would not be required to give these parties copies of the supporting material that must be given to the AIRC with the application under clause 89, such as the document containing the names of applicant employees where the applicants are represented by an agent. 

 

1.321 The Industrial Registrar would be required to inform the ABC Commissioner of the application pursuant to clause 251 of the Bill.

 

Clause 91 - Joint applications

1.322 Clause 91 provides that where an employee seeking a non-union agreement initiated a bargaining period for the proposed agreement, two or more employees who would be subject to the proposed agreement could make a ballot application jointly (subclause (1)).

 

1.323 If a joint application was made, another employee could, with the consent of the other applicants, add their name to the application, and an applicant could withdraw their name from the application.  Either adding or withdrawing names may be done at any time before the application is determined (subclauses (2) and (3)).

 

1.324 Regulations may be made specifying how the provisions of the Bill relating to ballot orders apply to joint applicants (subclause (4)).

 

Subdivision C - Determination of application and order for ballot to be held

1.325 This Subdivision contains substantive and procedural provisions about the determination of the application for a ballot order and specifies the contents of the ballot order and procedural provisions in relation to the ballot order.

 

Clause 92 - AIRC may notify parties etc. of procedure

1.326 This clause would allow the AIRC, after an application for a ballot order is lodged, to notify all parties of the procedure for dealing with the application if the AIRC considers that this will not delay, and may expedite, the determination of the application.

 

Clause 93 - AIRC to act quickly in relation to application etc.

1.327 In exercising its powers under this Division, the AIRC must act as quickly as practicable and would be required, as far as is reasonably possible, to determine an application for a ballot order within two working days of the application being made (subclause (1)).  A legislative note makes it clear that, in exercising its powers under this Division, the general procedural obligations on the AIRC (such as the requirements to act according to equity, good conscience and the substantial merits of the case) are applicable.

 

1.328 In spite of the timeframe foreshadowed by this clause, the AIRC must not deal with an application for a ballot order unless it is satisfied that the notice requirements in clause 90 have been complied with and those with a relevant interest have had a reasonable opportunity to make submissions in relation to the application.  (The indicative timeframe for dealing with applications would be a factor in determining what was reasonable in the circumstances.)

 

1.329 Paragraph 111(1)(g) of the WR Act does not apply to ballot proceedings under this Division (subclause (3)).  Paragraph 111(1)(g) allows the Commission to dismiss or to refrain from hearing or determining a dispute on various grounds, including that: the dispute is trivial; the dispute is being dealt with by a State industrial authority; or a party to the dispute is engaging in conduct that is hindering the settlement of the dispute, or has breached an award, agreement or order of the AIRC, etc.  Under subclause 94(4), however, the AIRC would still be able to refrain from considering a submission if it was satisfied that the submission was vexatious, frivolous, misconceived or lacking in substance.

 

Clause 94 - Parties and relevant employees may make submissions and apply for directions

1.330 A party or a relevant employee (both terms are defined in clause 86), will be entitled to make submissions to, or to apply for directions from the AIRC about the application, or about any aspect of the conduct of the protected action ballot (subclause (1)).  A legislative note reminds readers of the ability of the AIRC to summon witnesses to help in the determination of an application for a ballot order or related directions.

 

1.331 Subclause (2) would allow a person who has been nominated in an application to conduct a ballot to make submissions and apply for directions relating to the application.

 

1.332 Subclause (3) would allow an authorised ballot agent to make submissions, and apply for directions, relating to any aspect of a protected action ballot.

 

1.333 Subclause (4) would allow the AIRC to refuse to consider a submission if the AIRC was satisfied that the submission was vexatious, frivolous, misconceived or lacking in substance.

 

Clause 95 - AIRC may give directions

1.334 Clause 95 would enable the AIRC to make directions regarding an application for a ballot order or about any aspect of the conduct of a protected action ballot.  Any such directions would be orders of the AIRC.

 

1.335 Subclause (2) would expressly authorise the AIRC to issue directions to ensure that ballots are conducted expeditiously.

 

1.336 Subclause (3) would require the AIRC, in considering whether to issue such directions, to have regard to the desirability of the ballot results being available to the parties within 10 days of a ballot order being made.

 

Clause 96 - AIRC procedure regarding multiple applications

1.337 Clause 96 seeks to ensure that any disruption that may be caused to an employer’s operations by the conduct of more than one protected action ballot proposed to be held within a short space of time can be minimised (especially eg attendance ballots).

 

1.338 The AIRC would be specifically empowered to hear and determine at the same time applications that concerned the same employer or that concerned the same place of work where different employers were involved (this will be particularly relevant in the case of a construction site). 

 

1.339 For example, if an order had been made concerning a particular employer or place of work and a further application was made concerning that employer or place of work, the AIRC would be able to determine that the later ballot be held at the same time as the first ordered ballot, or it could vary the order for the first ordered ballot to require both ballots to be held at the same time.  However, the AIRC may only determine the applications at the same time, or order that ballots be conducted at the same time, if it considers that doing so will not unreasonably delay the determination of any application (paragraph (1)(c)) or the conduct of either ballot (paragraph (2)(d))

 

Clause 97 - Application not to be granted unless certain conditions are met

1.340 Clause 97 provides that the AIRC must grant an application for a ballot order if it is satisfied that the applicant has, during the bargaining period, genuinely tried to reach agreement with the employer and is continuing to do so.  Conversely, the AIRC must not grant an application for a ballot order unless it is satisfied of these conditions.

 

1.341 Subclause (2) provides the AIRC with discretion to refuse an application even if satisfied that the prerequisites for a ballot have been met, in circumstances where the applicant, or an employee or union member who would be eligible to vote in the proposed ballot, has at any time contravened a provision of this Division or an order or direction made by the AIRC under this Division.  A legislative note sets out the provisions under which orders can be made under this Division.

 

Clause 98 - Grant of application - order for ballot to be held

1.342 Clause 98 would provide that if the AIRC grants an application for a ballot order, the AIRC must order the applicant to hold a ballot in accordance with this Division.

 

Clause 99 - Matters to be included in order

1.343 Clause 99 sets out the information that would be required to be contained in a ballot order made by the AIRC.

 

1.344 Subclause (1) requires a ballot order to specify:

·          the name of the applicant or the applicant’s agent;

·          the type of employees to be balloted;

·          the voting method;

·          the timetable for the ballot;

·          the name of the person authorised by the AIRC to conduct the ballot and the independent adviser for the ballot (if one is required - see subclauses 116(3) and (4) for when an independent adviser is necessary); and

·          the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed action.

 

1.345 Subclause (2) requires the order to specify a postal ballot as the voting method unless the AIRC is satisfied that another voting method proposed in the application is more efficient and expeditious than a postal ballot.

 

1.346 Subclause (3) provides that if the order specifies a postal ballot as the voting method, it must specify that the voting take place by way of declaration voting .  The subclause then sets out what is meant by declaration voting, including that the ballot paper must be placed in a declaration envelope.  Declaration envelope is defined in clause 86 to mean an envelope in the form prescribed by the regulations on which a voter is required to make a declaration containing the prescribed information.  This approach will assist an authorised ballot agent to ensure that only the votes of those entitled to vote are counted while still maintaining the secrecy of the ballot.

 

1.347 If a ballot is to be conducted by an attendance vote, the ballot order would be required to specify that voting is to take place during breaks or otherwise outside work hours (subclause (4)).

 

1.348 Paragraph 114(1)(b) requires a prescribed percentage (normally 40 per cent) of those eligible to vote to cast a valid vote in order for industrial action to be authorised by the protected action ballot.  Subclause (5) allows the AIRC to specify a lesser percentage if satisfied that this is justified by special circumstances.

 

1.349 Subclause (6) would allow the AIRC, if it is satisfied that there are exceptional circumstances to justify it, to extend the period of written notice of intention to take industrial action that is required from three days (paragraph 170MO(2)(b) of the WR Act) to up to seven days.

 

Clause 100 - Guidelines for ballot timetables

1.350 To assist the AIRC in speedily determining applications, the President of the AIRC would be given the power to develop guidelines concerning timetables for the conduct of ballots under this Division.  The President may consult with the Australian Electoral Commission or any other person in developing the guidelines under this clause.

 

Clause 101 - Power of AIRC to require information relevant to roll of voters

1.351 The only employees who would be eligible to vote in protected action ballots are those who would be subject to the proposed agreement and, in the case of union initiated ballots, are members of the union that is the applicant for the order.  To determine whether a particular person is eligible to vote in a ballot would frequently require the AIRC (or the authorised ballot agent) to obtain information from the employer and the applicant. 

 

1.352 To address this, subclause (1) would allow the AIRC to order the applicant or the employer of the employees (or both) to provide the AIRC with a list of employees who might be eligible to vote in a proposed ballot, and any other information that the AIRC reasonably requires to assist in compiling the roll of voters for the proposed ballot.

 

1.353 The AIRC would be able to require the list or other information to be provided either to the AIRC or to the authorised ballot agent and could require it be provided in whatever form the AIRC thinks is appropriate (subclauses (2) and (3)).

 

Clause 102 - Roll to be compiled by AIRC or ballot agent

1.354 Clause 102 would provide for the compilation of the roll of voters by the AIRC, which must provide the roll to the authorised ballot agent or, alternatively, the AIRC may order that the authorised ballot agent compile the roll.

 

Clause 103 - Eligibility to be included on the roll

1.355 Subclause 103(1) would establish that a person is only eligible to vote in a protected action ballot if the person:

·          was employed by the relevant employer on the day the ballot order was made; and

·          would be subject to the proposed agreement in respect of which the relevant bargaining period was initiated.

 

1.356 Additionally, if the applicant for the ballot order was an organisation of employees, the person would be required to have been a member of the organisation on the day the ballot order was made by the AIRC.

 

1.357 Further, under subclause 103(2), a person whose employment is subject to an AWA that had not passed its nominal expiry date, would not be eligible to vote in a ballot, even if the person meets the other requirements for eligibility in subclause (1).  This is because the AWA, if it remains in place, would operate to the exclusion of the proposed certified agreement.

 

Clause 104 - Adding or removing names from the roll

1.358 The ballot agent would be required to add a person’s name to the roll of voters for a ballot at any time before voting in the ballot is finished, if the person requests that their name be added to the roll, and the ballot agent is satisfied that the person is eligible to be included on the roll of voters (subclause (1)).

 

1.359 In addition, a person is to be able to apply to the AIRC for a declaration that they are eligible to be included on the roll of voters for a ballot.  If the AIRC is satisfied that the person is eligible to be included on the roll of voters and voting in the ballot has not finished, the AIRC would be required to make the declaration sought and direct the ballot agent to include the person’s name on the roll of voters for the ballot (subclause (2)).

 

1.360 A party to a ballot order, a person whose name is on the roll of voters for the ballot or the authorised ballot agent, is to be able to apply to the AIRC for a declaration that a person whose name is on the roll of voters is not eligible to be included on the roll.  If, in the case of a postal ballot, voting had not yet finished, or in the case of any other type of ballot, voting had not yet started, and the AIRC was satisfied that the person was not eligible to be included on the roll of voters, the AIRC would be required to make the declaration sought and direct the ballot agent to remove the person’s name from the roll of voters (subclause (3)).

 

1.361 If a person’s name was removed from the roll as outlined above and a postal ballot had already commenced and the person had cast a vote, the ballot agent would be required to take all reasonable steps to ensure that the person’s vote was not counted (subclause (4)).

 

Clause 105 - Variation of order

1.362 Subclause 105(1) would allow an applicant for a ballot order to apply to the AIRC, at any time before the expiry of the ballot order, to have the ballot order varied; for example to deal with unanticipated circumstances.

 

1.363 Subclause 105(2) would allow the authorised ballot agent under a ballot order to apply to the AIRC, at any time before voting under the ballot has finished, to have the voting method or timetable for the ballot specified in the ballot order varied.  This would enable the ballot agent to request an alteration in the timetable if, for example, it encounters difficulties in compiling the roll of voters that would prevent it from completing the ballot within the ordered timeframe.

 

Clause 106 - Expiry and revocation of order

1.364 Clause 106 provides that a ballot order expires at the end of the period specified in the order if the ballot has not been held.  It would be open for an applicant for a ballot order to apply to the AIRC to have the order revoked at any time before the order expires; for example, if the matters at issue are resolved before the ballot is conducted.  If such an application were made, the AIRC would be required to revoke the order.

 

Clause 107 - Compliance with orders and directions

1.365 Clause 107 makes clear that a person or organisation of employees must comply with an order or direction under this Division that applies to them.  (A ballot order would only apply to the applicant, although separate orders and directions could be made which would apply to other parties.)

 

1.366 This is a Grade A civil penalty provision.

 

Clause 108 - AIRC to notify parties and authorised ballot agent

1.367 Clause 108 would require the AIRC to ensure that a copy of that order is given to each party to the application and the authorised ballot agent, as soon as practicable after it makes a ballot order.

 

Subdivision D - Conduct and results of protected action ballot

1.368 This Subdivision contains provisions relating to the conduct and effect of a protected action ballot.

 

Clause 109 - Conduct of ballot

1.369 Clause 109 would provide that a ballot will not be a protected action ballot unless it is conducted by the authorised ballot agent (this term is defined in clause 86).

 

1.370 The effect of this clause is that a ballot must be conducted by the ballot agent authorised by the AIRC in the ballot order for it to comply with the requirements of this Division.  If anyone other than the authorised ballot agent conducts the ballot then any industrial action taken following the ballot would not be protected action for the purposes of clause 82 of the Bill.

 

Clause 110 - Form of ballot paper

1.371 Clause 110 sets out the information that must be included on a ballot paper for a protected action ballot:

·          the name of the applicant or applicant’s agent (as the case requires);

·          the types of employees who are to be balloted (for example their occupations, work groups and locations - similarly required in paragraph 170MJ(b) of the WR Act);

·          the name of the ballot agent authorised to conduct the ballot;

·          the question or questions to be put to the voters, including the nature of the proposed action;

·          a statement that the voter’s vote is secret and that the voter is free to choose whether or not to support the proposed industrial action; and

·          instructions to the voter on how to complete the ballot paper.

 

Clause 111 - Who can vote

1.372 Clause 111 would provide that a person cannot vote in a ballot unless the person’s name is on the roll of voters for the ballot (established under clause 102).

 

Clause 112 - Declaration of ballot results

1.373 Clause 112 would require the authorised ballot agent to make a declaration of the results of the ballot and inform the applicant, the affected employer and the Industrial Registrar of the results as soon as practicable after the end of voting.  Both the declaration and the notice informing the parties must be in writing.

 

Clause 113 - Ballot reports

1.374 Clause 113 would require the authorised ballot agent and authorised independent adviser (if one has been appointed), to provide a written report to the Industrial Registrar about the conduct of the ballot as soon as practicable after the end of voting (subclauses (1) and (4)).  Subclauses (1) and (4) are Grade B civil penalty provisions.

 

1.375 The reports must set out the details of any complaints made to the authorised ballot agent or authorised independent adviser about the conduct of the ballot or any irregularities in the conduct of the ballot that have come to their attention (subclauses (2) and (5)).  Subclause (7) defines what is meant by “conduct” and “irregularity” in this clause.  However, these requirements do not limit what may be included in the report, nor does the absence of these factors mean a report is not necessary.

 

1.376 The report could be relevant in any future consideration by the AIRC as to whether someone is a fit and proper person to be an authorised ballot agent or independent ballot adviser.

 

Clause 114 - Effect of ballot

1.377 Subclause 114(1) provides that industrial action will only be authorised by a protected action ballot if:

·          the action was the subject of a ballot conducted in accordance with the provisions of this Division;

·          at least 40 per cent of persons on the roll of voters for the ballot established under clause 102 voted in the ballot or a lesser percentage specified by the AIRC (for when this may occur see subclause 99(5));

·          more than 50 per cent of the votes cast in the ballot approved the industrial action; and

·          the action commences within a 30 day period after the later of the date of the declaration of the results of the ballot or the nominal expiry date of the existing agreement (or the last occurring nominal expiry date if there is more than one existing agreement).  The AIRC can extend this 30-day period by up to 30 days if both the employer and applicant for the ballot order jointly apply for such an extension.  There may only be one such extension (see subclauses (3) and (4)).

 

1.378 The action is not authorised if it occurs after the end of the bargaining period that gave rise to the application for a ballot (section 170MV of the WR Act sets out when a bargaining period ends) (subclause (2)). 

 

1.379 Subclause (6) ensures that the phrase “existing agreement” includes an old IR agreement (that is, an agreement certified under the Act as it stood before 31 December 1996).

 

Clause 115 - Registrar to record questions put in ballot, and to publish results of ballot

1.380 Clause 115 would require the Industrial Registrar to keep, for each ballot held under this Division, a record of questions put to the voters and the results of the ballot.  The Registrar would be required to publish the results of a ballot as soon as practicable after being notified of the results by the authorised ballot agent.

 

Subdivision E - Authorised ballot agents and authorised independent advisers

1.381 This Subdivision contains provisions setting out minimum standards for authorised ballot agents and authorised independent advisers.

 

Clause 116 - Who may be an authorised ballot agent?

1.382 6.136      Clause 116 sets out whom the AIRC may name as an authorised ballot agent.

 

1.383 The AIRC may name either the Australian Electoral Commission or another person (subclause (1)).

 

1.384 The AIRC must not name a person other than the Australian Electoral Commission unless the AIRC is satisfied that the person:

·          is capable of ensuring the security and secrecy of votes cast in the ballot and that the ballot will be fair and democratic;

·          will conduct the ballot expeditiously; and

·          is otherwise a fit and proper person to conduct the ballot (subclause (2).  Subclause (5) allows regulations to be made to prescribe the conditions a person must meet, and factors the AIRC must take into account, for the AIRC to be satisfied that a person is a fit and proper person to conduct a ballot.

 

1.385 Subclause (3) provides that an applicant may apply to be the authorised ballot agent, although, in this case, the applicant must nominate another person to be the authorised independent adviser for the ballot and the AIRC must name that person as the authorised independent adviser (clause 117 sets out who may be authorised by the AIRC to be the independent adviser).  This additional requirement is designed to allow applicants to run their own ballots, provided that the applicants are properly advised by independent advisers (see clause 117).

 

1.386 Subclause (4) provides that an authorised independent adviser must be nominated and appointed if the AIRC is satisfied that a person nominated as the authorised ballot agent is not sufficiently independent of the applicant.

 

Clause 117 - Who may be an authorised independent adviser

1.387 Subclause 117(1) sets out who may be appointed as an authorised independent adviser - the appointment of an authorised independent adviser may be required by subclauses 116(3) or (4). 

 

1.388 The AIRC must not name a person as the authorised independent adviser unless it is satisfied that the person is sufficiently independent of the applicant and is capable of providing advice and recommendations to the authorised ballot agent that are directed towards ensuring that the ballot will be fair and democratic (subclause (2)). 

 

1.389 Regulations can be made to prescribe factors that the AIRC must take into account when determining if a person is capable of providing such advice and recommendations to the authorised ballot agent (subclause (3)).

 

Subdivision F - Funding of ballots

1.390 This Subdivision contains provisions regarding liability for the cost of a ballot and provides for the Commonwealth partially to fund ballots under this Division.

 

Clause 118 - Liability for cost of ballot

1.391 The applicant for a ballot order is liable for the cost of holding the ballot.  Where a ballot application was made jointly, each applicant is jointly and severally liable for the cost of holding the ballot. 

 

1.392 This clause operates subject to the Commonwealth being partially liable for the reasonable costs of the ballot if certain conditions are met (clause 119).

 

Clause 119 - Commonwealth has partial liability for cost of ballot

1.393 6.147      This clause provides that the Commonwealth will be liable for 80 per cent of the reasonable ballot costs (subclauses (2) and (6)).

 

1.394 Where the authorised ballot agent is not the Australian Electoral Commission, the Industrial Registrar is required to determine the reasonable ballot cost, on application by the applicant within a reasonable time after the completion of the ballot (subclause (1)).

 

1.395 Subclause (2) provides that where subclause (1) applies, the Commonwealth is liable to pay to the authorised ballot agent 80 per cent of the amount determined under that subclause.  To the extent that the Commonwealth becomes liable for the ballot costs, the liability of the applicant is discharged (subclause (3)).

 

1.396 Subclause (4) enables regulations to be made prescribing matters that are to be taken into account by the Industrial Registrar in determining whether ballot costs are reasonably and genuinely incurred for the purposes of subclause (1).

 

1.397 Where the authorised ballot agent is the Australian Electoral Commission, the Australian Electoral Commission must certify, within a reasonable time after the completion of the ballot, the amount of the reasonable costs charged by the Australian Electoral Commission to the applicant in relation to holding the ballot (subclause (5)).  The liability of the applicant is then reduced by 80 per cent of the amount certified under subclause (5).

 

Subdivision G - Miscellaneous

Clause 120 - Identity of certain persons not to be disclosed by AIRC

1.398 Clause 120 prohibits the AIRC from disclosing information that would identify a person as:

·          an applicant for a ballot order, where the applicant is represented by an agent;

·          an employee who supports an application for a ballot order, for the purposes of subclause 87(5);

·          a person whose name appears on the roll of voters for a ballot; or

·          a person who is party to an AWA (subclause (1)).

 

1.399 Exceptions to this rule are: if the disclosure was required or permitted by an Act or by regulations made under an Act, or if the disclosure has been authorised in writing by the person whose identity would otherwise be protected (subclause (2)).

 

Clause 121 - Identity of certain persons not to be disclosed by individuals

 

1.400 A similar prohibition on revealing information would apply to persons generally under clause 121. 

 

1.401 Under this clause, it would be an offence to disclose the information listed in clause 120 where it has been acquired in the course of performing functions or duties as a Registry official or from such a person or in the course of performing functions or duties as or on behalf of an authorised ballot agent or from such a person.  The proposed maximum penalty for this offence is 12 months imprisonment (subclause (1)).

 

1.402 Proposed exceptions to the offence are set out in subclause (2): a person may disclose protected information if the disclosure was made by a Registry official, authorised ballot agent or authorised independent adviser in the course of performing their functions or duties, if the disclosure was required or permitted by any Act or by regulations made under an Act, or if the disclosure had been authorised in writing by the person whose identity would otherwise be protected.  These exceptions reflect subsection 170WHB(2) of the WR Act.

 

1.403 For the purposes of determining the burden of proof in proceedings relating to offences under subclause (1), the exceptions set out in subclause (2) are part of the description of the offence (subclause (3)).  This subclause addresses the requirements of the Criminal Code.

 

1.404 Definitions of the terms “protected information” and “Registry official”, which are used in subclause 121, are set out in subclause (4).

 

Clause 122 - Immunity if person acted in good faith on ballot results

1.405 Clause 122 proposes that where the results of a protected action ballot, as declared by the authorised ballot agent, purport to authorise particular industrial action, and an organisation or person organises or participates in industrial action acting in good faith on the results of the ballot, no legal action can be taken against that organisation or that person if it turns out that the action was not in fact authorised by the ballot. 

 

1.406 This immunity would not apply in cases where the industrial action resulted in personal injury, wilful or reckless damage to property or the unlawful taking or keeping of property.  Also, subclause (2) provides that there would be no immunity against legal action for defamation in the course of industrial action.  (These exceptions are in line with the exceptions to the immunity provided by section 170MT of the WR Act).

 

Clause 123 - Limits on challenges etc. to ballot orders

Clause 124 - Limits on challenges etc. to ballots

1.407 Clauses 123 and 124 are designed to protect the integrity of the conduct of ballots and ballot results, by limiting the circumstances in which ballot orders, the conduct of ballots and ballot results may be challenged.

 

1.408 Under clause 123, a ballot order, or a decision or order relating to a ballot order, can only be challenged where:

·          it is being alleged that another party has contravened (other than in a technical manner) the secret ballots provisions or an AIRC order relating to secret ballots; or misled the AIRC in proceedings to which the order or decision relates; and

·          the relevant court considers that there is a reasonable basis for the allegation.

 

1.409 Clause 124 protects ballot results and the conduct of ballots from challenge where the ballot has been conducted or has purportedly been conducted unless:

·          it is being alleged that another party has: contravened (other than in a technical manner) the secret ballots provisions or an AIRC order relating to secret ballots; acted fraudulently in relation to the conduct or declaration; or acted in such a way as to cause an irregularity that affected, or could have affected the outcome of the ballot; and

·          the relevant court is satisfied that there is a reasonable basis for the allegation.

 

1.410 Subclause 124(3) defines conduct and irregularity, and makes it clear that the conduct of a ballot extends to the compilation of the roll of voters.

 

1.411 The limitations in clauses 123 and 124 do not prevent a penalty being imposed upon a person for a contravention of either the WR Act or this Bill.  Criminal and civil sanctions that would otherwise be relevant to the conduct in relation to a protected action ballot remain applicable (for example, the criminal sanctions contained in section 317 of the WR Act).

 

Clause 125 - Preservation of ballot papers

1.412 Under clause 125 an authorised ballot agent who conducts a ballot under this Division would be required to keep the roll of voters, all ballot papers, envelopes and other records relevant to the ballot for one year after completion of the ballot.  A maximum penalty of 60 penalty units applies to this provision.

 

Clause 126 - Conferral of function on AEC

1.413 Clause 126 would ensure that if the Australian Electoral Commission (AEC) is the authorised ballot agent for a ballot under this Division, it is a function of the AEC to conduct the ballot.  That is, if the AIRC authorises the AEC to conduct a ballot in a ballot order, the AEC would be required to conduct the ballot.  The AEC would be unable to make a submission or application to the AIRC to avoid being nominated or appointed as an authorised ballot agent.  The AEC would, however, be notified under clause 90 of an application for a ballot order where it was the person nominated in the application to conduct the ballot and could make submissions under clause 94 regarding, for example, the timing of the ballot.

 

Clause 127 - Inspection powers of AIRC etc.

1.414 Clause 127 would amend the definition of “prescribed premises” in subsection 134(5) of the WR Act in relation to building industrial disputes.  It would replace a reference to section 136 of the WR Act (which will have greatly limited operation as a result of clause 128 of this Bill) with a reference to this Division of the Bill, which contains provisions relating to protected action ballots in the building industry.

 

Clause 128 - AIRC’s power to order secret ballots under the Workplace Relations Act

1.415 Clause 128 makes a series of amendments that are consequential to the new secret ballot requirements introduced by this Division.

 

1.416 The AIRC would be prevented from ordering a secret ballot of members of a Commonwealth building employee organisation under subsection 135(1) of the WR Act where there is a current bargaining period initiated by the organisation under section 170MI of the WR Act for an agreement (subclause (1)).  This would ensure that a decision of employees or a union to apply for a protected action ballot could not be pre-empted by the AIRC.

 

1.417 Likewise, subsection 135(2) of the WR Act, under which the AIRC may order a secret ballot of members of an organisation does not apply to members of a Commonwealth building employee organisation (subclause (2)).  The power to order such ballots will no longer be appropriate following the introduction of requirements for protected action ballots by this Bill. 

 

1.418 For the same reason, subsection 135(2B), under which the AIRC may order a secret ballot to determine whether employees support taking industrial action where it appears that industrial action is being taken or is threatened, impending or probable, does not apply in relation to building industrial action (subclause (3)).

 

1.419 Subsections 136(1)-(7) of the WR Act would also not apply in relation to building industrial action (subclause (3)).  These subsections permit members of an organisation, who have been requested or directed by the organisation to engage in industrial action, to apply to the AIRC to order a secret ballot to find out whether or not the members support the proposed industrial action.  These provisions would no longer be required in relation to building industrial action, as it is proposed that protected action could not take place before a protected action ballot of members is conducted under this Division. 

 

1.420 Building industrial action taken without the authorisation of such a ballot would not be protected and it would be inappropriate for the AIRC to be involved in ordering a ballot in such circumstances; rather the various compliance measures in the Bill and elsewhere are available in relation to participants in such action.

 

1.421 Section 170MQ of the WR Act (which specifies that certain action is not protected action where the AIRC orders a ballot) will not apply in relation to building industrial action (subsection (4)).  This provision is not required as the AIRC will no longer have the power to order ballots under subsections 135(2) or (2B) of the WR Act in relation to building industrial action.

 

Clause 129 - Notice of intention to take building industrial action

1.422 Subclause 129(1) modifies the operation of section 170MO of the WR Act in relation to building industrial action to take into account the operation of subclause 99(6) of the Bill, which would allow the AIRC, if satisfied that there are exceptional circumstances that justify it, to extend the period of written notice required following a protected action ballot from the usual three working days to up to seven working days.

 

1.423 Subsection 170MO(6) of the WR Act, which allows written notice or other notification of industrial action to be given before the start of a bargaining period does not apply in relation to notification of an intention to take building industrial action (subclause (3)).  As a result of the proposed protected action ballot arrangements, it will no longer be possible for notice of such action to be given until the action has been authorised by a ballot.

 

1.424 A protected action ballot would not be required for an employer to undertake a protected action lockout of employees, nor would a ballot be required for a union and employees to respond to such a lockout.  In either of these situations, notice by an employer or by a union or employees could be given once the bargaining period has commenced (subclause (2)).

 

Clause 130 - Breaching AIRC orders under Division 2 of Part 3

1.425 Clause 130 makes it clear that orders of the AIRC under this Division are to be enforced under the civil penalty provisions of this Bill and not under subsection 178(1) of the WR Act (which provides for penalties for breach of AIRC awards and orders).

 

Clause 131 - Certain rights in relation to protected action ballots

1.426 Section 345 of Schedule 1B to the WR Act provides that financial members of an organisation have the right to participate in any vote of the members of the organisation.  Section 346 of the same Schedule provides that financial members of an organisation may request information regarding ballots from the returning officer to determine whether there has been an irregularity in relation to the ballot.  As the entitlement to vote in a protected action ballot will be regulated by the rules set out in this Division of the Bill, those sections do not apply to protected action ballots.

 

Clause 132 - Certain offences relating to protected action ballots

1.427 Subsection 317(2) of the WR Act lists various offences in relation to ballots.  Subsection 317(3) prohibits a person from engaging in activities that might prevent the taking of a ballot or influence the outcome of the ballot.  Subsection 317(4) prohibits certain activities that might impact on the secrecy of a ballot.  The penalty for a contravention of any of these provisions is $500 or imprisonment for six months or both.  Clause 132 makes it clear that these provisions also apply to protected action ballots under this Division.

 

Clause 133 - Regulations

1.428 Regulations may be made in relation to the following matters:

·          the qualifications and appointment of applicants’ agents;

·          procedures to be followed in conducting a ballot or class of ballot;

·          the qualifications, appointment, powers and duties of scrutineers;

·          the powers and duties of authorised independent advisers; and

·          the manner in which ballot results are to be published.

 

Part 4 - Miscellaneous

Clause 134 - AIRC orders to stop or prevent building industrial action

1.429 Clause 134 empowers the AIRC to make orders to stop or prevent building industrial action from occurring. 

 

1.430 In a similar fashion to section 127 of the WR Act, the AIRC may make an order where building industrial action is happening, or is threatened, impending or probable in relation to an industrial dispute, the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB of the WR Act or work that is regulated by an award or certified agreement (subclause (1)).

 

1.431 Subclause (2) provides that the AIRC may make such an order of its own motion or on the application of those persons listed in paragraphs (a) to (d).

 

1.432 Subclause (3) requires the AIRC to hear and determine an application for an order under subclause (1) within 48 hours.

 

1.433 Subclause (4) will expressly empower the AIRC to make an interim order to stop industrial action, or to prevent industrial action from occurring.  This power to make an interim order is in addition to the general power of the AIRC to make interim orders under subparagraph 111(1)(b)(ii) of the WR Act.  In Transfield Pty Ltd v Automotive, Food, Metals Engineering, Printing and Kindred Industries Union (Print 908202), Munro J of the AIRC noted the difficulty in producing an adequately reasoned decision in the limited time available and issued an interim order to cease industrial action.  The order applied until Munro J finally determined the matter.

 

1.434 Paragraph (4)(b) will provide that, prior to making an interim order the AIRC must either be satisfied that the building industrial action is not protected action or has not formed a view about whether or not the industrial action is protected action.  The AIRC can make an interim order with respect to industrial action which may subsequently be determined to be protected action.  However, the immunity in subclause (11) will apply where the industrial action is protected action.

 

1.435 Before the AIRC can make an interim order, it will have to be satisfied that:

·          it will be unable to hear and determine the application within 48 hours (subparagraph (4)(c)(i)); or

·          where the building industrial action has not commenced, but is likely to do so within 48 hours, it will be unable to determine the application prior to its commencement (subparagraph (4)(c)(ii)). 

 

1.436 The purpose of this proposal is to encourage the making of an interim order in time to prevent the building industrial action from commencing if the AIRC is satisfied that this is appropriate.

 

1.437 An interim order will cease to have effect if an application under clause 134 is determined (subclause (5)).  This will apply where the AIRC has not stipulated in an order the time at which the order will lapse.

 

1.438 Subclause (6) lists a number of factors that the AIRC must have regard to when exercising its discretion to issue an interim order.  The provision does not, in listing these factors, prevent the AIRC from taking into account other relevant factors when exercising its discretion. 

 

1.439 Listing these factors is designed to highlight circumstances that have previously been problematic in relation to the making of timely and effective orders under section 127 of the WR Act.  Some of the factors are similar to those identified by Munro J in Transfield Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Print 908287), including damage to business, the time needed to determine the application and whether or not the industrial action has escalated since the application was made.

 

1.440 Paragraph (6)(d) identifies that the occurrence of a sequence of related industrial action is a factor to be considered by the AIRC.  This acknowledges that a sequence of unprotected action, even where each instance lasts only 24 or 48 hours, can result in significant damage to an employer and previous conduct of this nature should be considered by the AIRC.

 

1.441 The factors also include lack of proper notice of industrial action (paragraph (6)(f)).  Where industrial action is not properly notified, it makes it more difficult for the AIRC to hear and determine applications in time to make an order preventing the industrial action from proceeding.  Also, for the purposes of conducting protected action, it is necessary, among other things, to provide at least 3 days notice of the proposed industrial action.  Accordingly, lack of appropriate notice is highly indicative of unlawful industrial action.

 

1.442 Proposed subclause (7) will set out matters that the AIRC must have regard to when considering whether to issue an order or interim order under clause 134, as follows.

·          A key indicator that unlawful industrial action is occurring is where a party engages in building industrial action even though the party is subject to a certified agreement that has not reached its nominal expiry date.  Building industrial action taken in such circumstances is prohibited by clause 80 of this Bill.  Paragraph (7)(a) addresses this issue.

·          There have been instances where the AIRC has exercised its discretion under subsection 127(1) of the WR Act to not make an order even though industrial action that was not protected action was occurring.  However, any industrial action that is not protected is unlawful under this Bill.  Accordingly, paragraph (7)(b) will require the AIRC to have regard to the undesirability of the occurrence of building industrial action that is not protected action when considering applications for orders and interim orders under clause 134.

 

1.443 Orders to stop or prevent industrial action under section 127 of the WR Act will still be available.  However, if an order can be made by the AIRC under this section in relation to building industrial action, then an order cannot be made by the AIRC in respect of the same building industrial action under section 127 of the WR Act (subclause (8)).

 

1.444 Subclause (9) makes it clear that the powers to make orders under subclause (1) and interim orders under subclause (4) is in addition to all other powers conferred on the AIRC.

 

1.445 Subclause (10) states expressly that a person to whom an order under subclause (1) or an interim order under subclause (4) is expressed to apply must comply with that order.

 

6.200   An order under subclause (1) or (4) does not apply to action that is protected action for the WR Act (as modified by this Bill) (subclause (11)).  This subclause ensures that the immunity that currently applies under section 170MT of the WR Act in relation to orders made under section 127 of that Act also applies to the similar orders made under clause 134 of this Act.

 

1.446 The Federal Court is empowered to grant an injunction or interim injunction where it is satisfied that a person or organisation has failed to comply or is proposing to fail to comply with an order or interim order of the AIRC under this clause.  Application for such an injunction may be made by the ABC Commissioner or a person or organisation affected by the order or interim order (subclauses (12) and (13)).

 

1.447 The ABC Commissioner may apply for a variation of the injunction or for the court to take action in respect of a breach of the injunction despite the fact that he or she was not involved in obtaining the injunction under subclauses (12) or (13) (subclause (14)).  The rights of the parties to the original injunction proceedings remain unaffected and the ABC Commissioner is required to notify those parties before making an application under subclause (14).

 

Clause 135 - Obligation to notify commencement etc. of building industrial action

1.448 Clause 135 requires an employer to notify the ABC Commissioner if an employee engages or threatens to engage in building industrial action that is both constitutionally-connected and industrially-motivated.    The notification must be in writing and made within 72 hours of the employer becoming aware of the action or threat.  It is important for the ABC Commissioner to be aware of the occurrence of industrial action in the industry in order to render assistance to affected parties and to identify unlawful industrial action where necessary.  This is a Grade B civil penalty provision.

 

1.449 False and misleading statements are covered by the Criminal Code.

 

Clause 136 - Payments in relation to periods of building industrial action

6.205   Clause 136 adopts, with modifications, Part VIIIA of the WR Act, which deals with “strike pay”.  The effect of this clause is to prohibit employers from making payments and employees from accepting payments in relation to any periods of building industrial action that are industrially-motivated and constitutionally-connected.

 

1.450 Clause 136 does not apply to stoppages of building work based on a reasonable concern by the employee about an imminent risk to health or safety.  Clauses 47 and 49 apply in those circumstances.

 

1.451 This is a civil penalty provision with a penalty of 1000 penalty units in the case of bodies corporate and 200 penalty units in all other cases. 

 

1.452 Applications in relation to contraventions may be made to the Federal Court by the Minister, a person who has an interest in the matter or any other person prescribed by the regulations.  Application may also be made by the employer in relation to contraventions of section 187AB of the WR Act, as modified by this Bill.

 

1.453 Paragraphs 187AD(c) and (d) of the WR Act allow the Federal Court, in respect of contraventions, to make injunctions (including interim injunctions) and any other orders considered necessary to stop the contravention or remedy its effects.

 

1.454 Subsection 187AD(2) of the WR Act makes it clear that the Court must not make an order requiring a person to pay an employer compensation for a contravention of section 187AB if the employer has itself contravened section 187AA by making a payment.

 

Clause 137 - Obligation to notify claims for strike pay

1.455 Clause 137 requires employers to notify the ABC Commissioner of any claim made to an employer for a payment that, if paid, would contravene section 187AA of the WR Act (which prohibits the making of payments in relation to periods of industrial action) as applied by clause 136 of this Bill.  The notification must be in writing and made within 72 hours of the claim being made.  This is a Grade A civil penalty provision.

 

1.456 False and misleading statements are covered by the Criminal Code.

 

Clause 138 - Notices under section 170MO of the Workplace Relations Act

1.457 Clause 138 limits both the employer and the employee party in relation to a proposed building agreement to only one notice of intention to take industrial action in respect of that proposed agreement.  This clause is required to give effect to clause 81, which prescribes mandatory cooling-off periods in relation to building industrial action in respect of a proposed agreement.

 

Clause 139 - No restriction on certain actions in tort

1.458 The effect of clause 139 is to allow a person to bring an action in tort in respect of conduct by a Commonwealth building employee organisation in contemplation or furtherance of claims that are the subject of a building industrial dispute without first seeking a certificate from the AIRC under section 166A of the WR Act.

 

1.459 Where the conduct is protected action under the WR Act (as modified by this Bill), the immunity under section 170MT of the WR Act will continue to apply.

 

Clause 140 - Federal Court not to restrain certain legal proceedings

1.460 Clause 140 prohibits the Federal Court from issuing interlocutory anti-suit injunctions in respect of proceedings brought under State or Territory law in respect of the same building industrial action.



CHAPTER 7 - FREEDOM OF ASSOCIATION

Part 1 - Preliminary

Clause 141 - Objects of Chapter

1.461 Clause 141 sets out the objects to Chapter 7 which are in addition to the principal objects set out in clause 3, particularly:

·          that building industry participants are free to join or not to join building associations of their choice;

·          that building industry participants are not discriminated against or victimised by virtue of that choice; and

·          ensuring there are effective remedies to address conduct which infringes the right to freedom of association.

 

Clause 142 - Definitions

1.462 This clause contains definitions relevant to the operation of Chapter 7.

 

1.463 For the purposes of Chapter 7, bargaining services is defined to mean services provided by or on behalf of a building association (that is, an industrial association of building employers, building employees or building contractors) in relation to:

(a)     the negotiation, making, certification, operation, extension, variation or termination of an agreement under Part VIB of the WR Act; or

(b)     a “State employment agreement”  or proposed State employment agreement (“State employment agreement” is defined in clause 5).

 

1.464 For the purposes of Chapter 7, bargaining services fee is defined to mean a fee, however described, payable to a building association or to someone else in lieu of a building association wholly or partly for the provision, or purported provision of bargaining services (as defined for the purposes of Chapter 7).

 

Part 2 - Conduct to which this Chapter applies

1.465 This Part sets out the constitutional basis for the provisions of Chapter 7. 

 

1.466 Chapter 7 is intended to apply broadly to employers, employees, contractors and industrial associations in the building and construction industry, irrespective of whether other employment issues are regulated by Federal or State legislation.  To this end, a range of constitutional powers are relied upon; these include: the conciliation and arbitration power, the corporations power, the Territories power and the Commonwealth places power.  Reliance is also placed on the 1996 referral of powers to the Commonwealth by the Victorian Parliament.

 

Part 3 - General prohibitions

1.467 The Royal Commission recommended that there should be a small number of general prohibitions dealing with the most common forms of inappropriate conduct that apply to all building industry participants.  Each of these general prohibitions is a Grade A civil penalty provision.

 

Clause 151 - Coercion

1.468 Clause 151 prohibits a building industry participant from organising or taking, or threatening to organise or take, action against another building industry participant with intent to coerce that building industry participant or another building industry participant to:

·          become, or not become, an officer or member of a building association; or

·          to remain or cease to be, an officer or member of a building association.

 

Clause 152 - False or misleading statements about membership

1.469 Clause 152 prohibits a building industry participant from making a false or misleading representation about another building industry participant’s obligation to:

·          be or not be, or to become or not become or to cease to be, an officer or member of a building association;

·          disclose whether they are, or have been, a member of a building association, or a particular association;

·          be, or not be, an officer or member of a building association, or a particular association, in order to obtain the benefit of an industrial instrument.

 

1.470 The clause also provides, by way of legislative note, examples of representations that could be false or misleading.

 

Clause 153 - Industrial action for reasons relating to membership

1.471 Clause 153 prohibits a building industry participant from organising or taking, or threatening to organise or take, industrial action against another building industry participant on the basis of whether or not they are, have been or propose to be a member or officer of a building association.

 

Part 4 - Conduct by building employers etc.

Clause 154 - Dismissal etc. of members of building associations etc.

1.472 Clause 154 prohibits an employer or other person from doing, or threatening to do, for a “prohibited reason”, or for reasons that include a prohibited reason, any of the actions set out in subclauses (1) and (2).  These are, broadly, actions which harm persons who are building employees in relation to their employment, or building contractors in relation to their provision of services.

 

1.473 The prohibited reasons are listed in clause 155.

 

1.474 A mistaken belief as to the existence of a prohibited reason is irrelevant as to whether an employer or other person contravenes this clause.

 

1.475 Clause 154 is a Grade A civil penalty provision.

 

Clause 155 - Prohibited reasons

1.476 Clause 155 contains a list of matters, each of which constitutes a “prohibited reason” in relation to the conduct referred to in subclauses 154(1) and 154(2). The list of prohibited reasons is substantially based on the prohibitions in section 298L of the WR Act.  The paragraphs detailing the prohibited reasons are disjunctive.

 

1.477 Subclause (2) deals with threats to engage in conduct referred to in subclauses 154(1) and 154(2). If the threat to engage in that conduct is intended to dissuade or prevent a person from doing something referred to in subclause (1) or to make the person do it, the threat is taken to have been made for that prohibited reason.  The term “threat” is defined in clause 142 as a threat of any kind, whether direct or indirect, express or implied.

 

Clause 156 - Inducements to cease membership etc. of building associations etc.

1.478 Clause 156 prohibits a building employer, or a person who has engaged a building contractor, from inducing a building employee or the building contractor to:

·          become, or not become, an officer or member of a building association; or

·          to remain or cease to be, an officer or member of a building association.

 

1.479 Clause 156 is a Grade A civil penalty provision.

 

Part 5 - Conduct by building employees etc.

1.480 This Part concerns conduct by building employees or building contractors against certain persons for proscribed reasons.

 

Clause 157 - Cessation of work

1.481 Clause 157 prohibits the cessation of work by a building employee or a building contractor for the reasons set out in the clause. Those reasons are based on the prohibited grounds in clause 155, to the extent that they are applicable in this context.

 

1.482 Clause 157 is a Grade A civil penalty provision.

 

Part 6 - Conduct by building associations etc.

1.483 This Part prohibits various types of conduct by building associations for proscribed reasons against building employers, building employees, members and building contractors.

 

Clause 158 - Building associations acting against building employers

1.484 Clause 158 is intended to safeguard a building employer from industrial or other action by a building association for various specified reasons. These include: the building employer’s involvement or non-involvement with a building association; encouraging the employer to take action which if taken would contravenes subclause 154(1); and encouraging a building employer to harm a building employee who has failed to abide by a direction from the association.

 

1.485 Clause 158 is a Grade A civil penalty provision.

 

Clause 159 - Building associations acting against building employees etc.

1.486 Subclause (1) is intended to protect the freedom of employees to choose whether or not they wish to take part in industrial action, and their right to seek a secret ballot under an industrial law. This is done by prohibiting a building association from taking, or threatening to take, action  which has the effect of prejudicing the person’s employment or prospective employment to force the person to join in industrial action or not to seek a secret ballot under an industrial law.

 

1.487 Subclause (2) prohibits a building association from taking, or threatening to take, action that has the effect of prejudicing a person in his or her employment or prospective employment, and from advising, encouraging or inciting another person to take such

action, if the reason for the action or conduct is that the person:

·          does not propose to, has not agreed to pay, or has not paid, a bargaining services fee;

·          is, has been, proposes to become or has at any time proposed to become an officer or member of a building association;

·          is not, or does not, propose to become a member of a building association;

·          has not paid, has not agreed to pay or does not propose to pay a fee (however described) to a building association;

·          has refused or failed to join in industrial action;

·          has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights under an industrial instrument.

 

1.488 Clause 1 59 is a Grade A civil penalty provision .

 

Clause 160 - Building associations acting against members

1.489 Clause 160 is similar to clause 159 in many respects, but it is intended to protect a member of a building association from adverse action by the building association, or by an officer or other member of the association.

 

1.490 Clause 160 is a Grade A civil penalty provision .

 

Clause 161 - Building associations acting against building contractors etc.

1.491 Clause 161 is intended to safeguard building contractors from victimisation on the basis of a number of prohibited reasons. 

 

1.492 This clause extends the equivalent provision in the WR Act (section 298S) by expanding the range of prohibited reasons to include:

·          discriminatory conduct engaged in because of membership as well as non-membership;

·          refusal or failure to comply with a direction given by a building association;

·          non payment of a fee (however described) to a building association;

·          an inquiry or complaint to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights under an industrial instrument.

 

1.493 The clause prohibits not only discriminatory conduct against building contractors, but also conduct against any person employed or engaged by the building contractor.

 

1.494 Subclause (3) makes it clear that the prohibitions in subclause (2) do not prevent a building association from entering into an agreement with another person for the supply of goods or services to members of the building association (eg. by offering discounted services to a member of the building association).

 

1.495 Subclause (4) prohibits the taking of discriminatory action for a “prohibited reason”. Subclause (5) provides that conduct is for “prohibited reason” if it concerns the non payment of a “bargaining services fee” as defined in clause 142.

 

1.496 Clause 161 is a Grade A civil penalty provision.

 

Clause 162 - Building associations acting against building contractors etc to encourage contraventions

 

1.497 Clause 162 is similar to subclause 158(3), except that it is intended to protect building contractors rather than building employers from action which, if taken, would contravene subclause 154 (2).

 

1.498 Clause 162 is a Grade A civil penalty provision.

 

Clause 163 - Building associations not to demand bargaining services fee

1.499 Subclause (1) prohibits a building association, or an officer or member of a building association, from demanding payment of a bargaining services fee from

a building industry participant.

 

1.500 Clause 163 is a Grade A civil penalty provision.

 

Clause 164 - Action to coerce person to pay bargaining services fee

1.501 Clause 164 prohibits a building association from taking, or threatening to take, action against a building industry participant with intent to coerce the participant, or another building industry participant, to pay a bargaining services fee. This clause captures third-party conduct where, for example, a building association of employees might take action against an employer to force an employee who is not a member of the association to pay the bargaining services fee.

 

1.502 Clause 164 is a Grade A civil penalty provision.

 

Clause 165 - Building associations not prevented from entering contracts

1.503 Clause 165 makes it clear that nothing in the freedom of association provisions prevents a building association from entering into a contract for the provision of bargaining services with a person who is not a member of the association.

 

Part 7 - False or misleading representations about bargaining services fees etc.

Clause 166 - False or misleading representations about bargaining services fees etc.

1.504 Clause 166 prohibits a building industry participant from making a false or misleading representation about another building industry participant’s:

·          liability to pay a bargaining services fee;

·          obligation to enter into an agreement to pay a bargaining services fee; or

·          obligation to become a member of a building association.

 

1.505 Clause 166 is a Grade A civil penalty provision.

 

Part 8 - Relationship between this Chapter and other laws

Clause 167 - Operation of State and Territory laws

1.506 Clause 167 is a savings provision.

 

1.507 Subject to the effect of clause 168, Chapter 7 is not intended to exclude or limit the concurrent operation of State and Territory laws, to the extent that the Chapter is given a wider application by clauses 147, 149 or 150.

 

Clause 168 - Remedies under this Act and State or Territory law

1.508 Clause 168 applies where conduct in contravention of this Chapter involves a constitutional corporation , occurs in a Territory, Commonwealth place or in Victoria and the conduct is in contravention of an industrial law of a State or Territory concerning discrimination or preference in employment. The clause is intended to avoid a person from being liable to civil penalties or other orders under both Federal and State laws in relation to the same conduct.

 

1.509 Subclause (2) precludes the making of an application against a person or building association under an industrial law of a State or Territory where an application has been made under Chapter 12 Part 1 of the Bill in relation to the conduct intended to be the subject of the State or Territory order. Conversely, subclause (4) precludes the making of an application under Chapter 12 Part 1 where an application has been made under a State or Territory law.

 

1.510 Subclause (3) does not prevent a person or building association being prosecuted in the case where the conduct is an offence under the industrial law of a State or Territory. Conversely, subclause (5) allows the making of an order under Chapter 12 Part 1 where any orders made under State or Territory industrial law are made in connection with the prosecution of the person or building association for an offence.

 

Clause 169 - Relationship between this Chapter and Workplace Relations Act

1.511 Clause 169 provides that where any person is entitled to make an application under Chapter 12 Part 1 in respect of conduct that contravenes this Chapter, then no person is entitled to make an application under Part XA of the WR Act in respect of that conduct.

 

Part 9 - Miscellaneous

Clause 170 - Proof not required of the reason for, or the intention of, conduct

1.512 Clause 170, in relation to proceedings under Chapter 12 Part 1, reverses the onus of proof applicable to civil proceedings.

 

1.513 Normally, in a civil action, the onus falls on the complainant to establish, on the balance of probabilities, that the conduct complained of was carried out for a particular reason or particular intent in contravention of the relevant provision(s). 

 

1.514 The consequence of this provision is that, once a complainant has alleged that the conduct carried out, or threatened to be carried out, in relation to him or her is motivated by a reason or intent that would contravene the relevant provision(s) of Chapter 7, the person or building association will have to establish, on the balance of probabilities, that the conduct was not carried out for the unlawful reason or intent.

 

1.515 The reverse onus does not apply to the granting of interim injunctions.  This differs from section 298V of the WR Act, and is intended to address the problems that can arise from the interaction of the reverse onus with the “balance of convenience” test that applies to interim injunctions.

 

Clause 171 - Freedom of association not dependent on certificate

1.516 Clause 171 confirms that a person’s right to freedom of association does not depend on whether the person holds a conscientious objection certificate. (Conscientious objection certificates can be issued by the Industrial Registrar under section 180 of Schedule 1B to the WR Act.) 



CHAPTER 8 - DISCRIMINATION, COERCION AND UNFAIR CONTRACTS

Clause 172 - Coercion in relation to engagement etc. of building employees and building contractors

1.517 Clause 172 is intended to prevent persons from being coerced to do certain things in relation to the engagement and employment of building contractors and building employees.  It prohibits persons from organising or taking any action, or from threatening to organise or take action intended to coerce another person to do any of the following:

·          employ, or not employ, a person as a building employee;

·          engage, or not engage a person as a building contractor;

·          allocate, or not allocate, particular responsibilities to a building employee or building contractor; or

·          designate a building employee or a building contractor as having, or not having, particular duties or responsibilities.

 

1.518 This is a Grade A civil penalty provision.

 

1.519 Subclause (2) sets out the constitutional basis of the prohibition.

 

Clause 173 - Coercion of persons to make, vary, terminate etc. certified agreements etc.

1.520 Clause 173 is intended to ensure that persons are not coerced or subject to undue pressure in relation to their certified agreement.

 

1.521 It provides that a person must not take or threaten to take any action, or refrain or threaten to refrain from taking any action, with intent to coerce another person or apply undue pressure to another person in relation to various aspects of the agreement-making process.  These aspects are the making, varying or terminating, or extending the nominal expiry date of a building agreement under Division 2 or 3 of Part VIB of the WR Act or approving any of these things.

 

1.522 This is a Grade A civil penalty provision.

 

1.523 Subclause (2) makes it clear that the prohibition on coercion and undue pressure does not apply to any action that is protected action for the purposes of the WR Act, as modified by this Bill.

 

1.524 Subclause (3) replicates subsection 170NC(3) of the WR Act.  It prohibits employers from coercing employees in relation to requests for organisation representation in respect of an agreement being made under section 170LK. 

 

1.525 Subclause (4) prohibits employers from applying undue pressure to employees in relation to requests for organisation representation in respect of an agreement being made under section 170LK.

 

1.526 This is a Grade A civil penalty provision.

 

1.527 Section 170NC of the WR Act does not apply in relation to building agreements (subclause (5)).

 

Clause 174 - Discrimination against employer in relation to industrial instruments

1.528 Clause 174 prohibits a person from discriminating against an employer on the basis that the employment of its employees is covered by or proposed to be covered by a particular kind of industrial instrument or an industrial instrument made with a particular person.  Examples of the type of conduct this clause is intended to prohibit include: 

·          a head contractor refusing to give work to a subcontractor because the subcontractor’s employees are covered by a non-union agreement;

·          a head contractor refusing to give work to a subcontractor on the basis that the subcontractor’s agreement is or is not made with a particular organisation of employees;

·          a union disrupting the operations of an employer (other than through protected action) on the basis that the employer’s employees are covered by a State rather than a Federal agreement.

 

1.529 This is a Grade A civil penalty provision.

 

1.530 Subclause (2) makes it clear that that the prohibition does not apply to any action that is protected action for the purposes of the WR Act, as modified by this Bill.

 

1.531 Consistent with the views of both the Royal Commissioner and the Productivity Commission in its 1999 report Work Arrangements on Large Capital City Building Projects , there is a need for head contractors to exercise control over certain integral features of a building site such as the site opening hours or inclement weather provisions. 

 

1.532 Subclause (3) therefore provides that the prohibition on discrimination does not apply to prevent conduct by a person that:

·          is engaged in solely for the purpose of encouraging the employer to have eligible conditions in an industrial instrument covering its employees; and

·          occurs in relation to a proposed agreement or proposed variation to an agreement under which the employer would carry out building work or arrange for building work to be carried out for that person.

 

1.533 An “eligible condition” is defined in clause 4 of the Bill to mean a condition relating to:

·          the times or days when work is to be performed; or

·          inclement weather procedures; or

·          any other matter prescribed by the regulations.

 

1.534 Subclause (4) sets out the constitutional limitations which would apply to the prohibition in subclause (1). 

 

Clause 175 - Coercion in relation to superannuation

1.535 Clause 175 is intended to ensure that building employees and building employers are protected from coercion in relation to the payment of superannuation contributions into a particular superannuation fund or scheme.

 

1.536 Subclause (1) provides that a person must not take or threaten to take any action, or refrain or threaten to refrain from taking any action, with intent to coerce:

·          a building employee to nominate a particular superannuation fund to receive the employee’s superannuation; or

·          a building employer to make payments in respect of building employees to a particular superannuation fund.

 

1.537 This is a Grade A civil penalty provision.

 

1.538 Subclause (2) makes it clear that subclause (1) doesn’t apply to action that is protected action for the purposes of the WR Act, as modified by this Bill.  This means that a union or employees can still take protected action in order to secure a clause in respect of a particular superannuation fund in a certified agreement.

 

1.539 Subclause (3) sets out the constitutional limitations which would apply to subclause (1).

 

1.540 Requiring a person to comply with their legal obligations to make payments in relation to superannuation would not amount to coercion.

 

Clause 176 - Unfair contracts with building contractors

1.541 Clause 176 enables applications under section 127A of the WR Act in relation to unfair contracts for the performance of building work to be made to the Federal Magistrates Court as well as the Federal Court.  Currently the WR Act only allows applications to be made to the Federal Court. 



CHAPTER 9 - UNION RIGHT OF ENTRY

1.542 This Chapter sets out a clear regime of rights and responsibilities in relation to union right of entry to premises.  The new arrangements apply to both Commonwealth and State unions within constitutional limits, but do not impact upon any right of entry that might be available under OHS legislation.

 

Part 1 - Preliminary

Clause 177 - Objects of this Chapter

1.543 Clause 177 sets out the objects of Chapter 9, which are additional to the objects set out in clause 3.  These objects are to:

·          establish a framework that balances the right of unions to represent their members in the workplace and the right of occupiers and employers to conduct their business without undue interference or harassment;

·          ensure that persons who hold permits are fit and proper persons and understand their rights and obligations under Chapter 9;

·          ensure that occupiers and employers understand their rights and obligations under Chapter 9; and

·          ensure permits are suspended or revoked where rights granted under this Chapter are misused.

 

Clause 178 - Definitions

1.544 Clause 178 defines a number of terms used in the Chapter.

 

Clause 179 - Form of entry notice

 

1.545 This clause requires the Registrar to approve a form of entry notice in writing (subclause (1)).

 

1.546 Subclause (2) sets outs the particulars that the form must include. However, subclause (2) does not limit the matters which may be required by, or contained in, the form of entry notice (subclause (3)).

 

Part 2 - Issue of permits

Clause 180 - Issue of permit

1.547 Clause 180 provides for the issue of permits by the Industrial Registrar to officials of unions who are named in applications by unions (subclauses (1) and (2)).  The term “official” is defined in clause 178 to include both office holders and employees of a union.

 

1.548 Subclause (3) provides that the permit must include any conditions that have been imposed by the Industrial Registrar (under clause 181) or by the AIRC (under clause 185). 

 

1.549 Regulations may be made on a number of matters relating to the application for, and issue of, permits under clause 180 -  the regulations may, for example, specify the documents that must accompany an application for a permit and the form of the permit (subclause (4)).

 

Clause 181 - Imposition of permit conditions at time of issue

1.550 Clause 181 provides that at the time a permit is issued the Industrial Registrar may impose conditions on that permit that limit the effect of the permit, having regard to the list of matters specified in subclause 182(2) (subclauses (1) and (2)). 

 

1.551 A legislative note indicates that the conditions that might be imposed could include a limit on the range of premises to which a permit applies, or the time of day when entry may be made.

 

Clause 182 - Permit not to be issued in certain cases

1.552 Clause 182 sets out the circumstances in which a permit may not be issued to an applicant.

 

1.553 Subclause (1) provides that the Industrial Registrar must not issue a permit to an official unless the Industrial Registrar is satisfied that the official is a fit and proper person to hold the permit having regard to the matters referred to in subclause (2). These include whether:

·          the official has received appropriate training about the rights and responsibilities of a permit holder;

·          the official has ever been convicted of a prescribed offence;

·          the official or any other person (such as the official’s union) has ever been ordered to pay a civil penalty under any industrial law in respect of the official’s conduct;

·          a previous permit issued to the official has been revoked or suspended or made subject to conditions;

·          the official’s right of entry for industrial purposes under a State industrial law has ever been suspended, cancelled, or had conditions imposed on it, or the official has been disqualified under a State industrial law from exercising or applying for a right of entry for industrial purposes.

 

1.554 Subclauses (3) and (4) prohibit the Industrial Registrar from issuing a permit:

·          where the issue is prevented by an order of the AIRC under clause 185 or 209 (clause 185 provides that the AIRC can make orders where there is an abuse of the permit system and clause 209 relates to the powers of the AIRC to settle industrial disputes about the operation of this Chapter);

·          during a disqualification period specified by the Industrial Registrar under clause 184 (clause 184 provides for the revocation and suspension of a permit by the Industrial Registrar);

·          where an official’s right to enter for industrial purposes has been suspended under a State industrial law, or that person has been disqualified from exercising or applying for a right of entry permit under State industrial law.

 

Part 3 - Expiry, revocation, suspension etc. of entry permits

Clause 183 - Expiry of permit

1.555 Clause 183 provides that a permit remains in force for three years unless it is revoked or the permit holder ceases to be an official of the union before that date, whichever happens first.

 

Clause 184 - Revocation, suspension etc. by Industrial Registrar

1.556 Clause 184 provides for the revocation, suspension or imposition of conditions on permits by the Industrial Registrar.  An application may be made by the ABC Commissioner or a prescribed person, and must be in accordance with the regulations (subclause (1)).

 

1.557 On application, the Industrial Registrar may revoke, suspend or impose conditions on one or more permits held by the permit holder, having regard to the matters specified in subclause 182(2) (subclauses (2) and (3)).

 

1.558 Subclauses (4) and (5) set out the circumstances in which the Industrial Registrar must revoke or suspend a permit:

·          the permit holder was found to have contravened clause 207, which prohibits false statements about right of entry;

·          a court ordered a penalty to be paid in respect of a contravention of Chapter 9 by the permit holder;

·          the permit holder gave an entry notice for frivolous or vexatious reasons, or in frivolous or vexatious circumstances;

·          the permit holder’s right of entry for industrial purposes under a State industrial law was cancelled or suspended or the permit holder has been disqualified under a State industrial law from exercising or applying for a right of entry for industrial purposes;

·          the permit holder otherwise acted improperly in relation to the exercise of rights under Chapter 9. 

 

1.559 A period of suspension or revocation under subclause (4) must be for at least the “minimum disqualification period”: three months on the first occasion the Industrial Registrar takes action under this subclause; 12 months on the second occasion, and five years on the third and any subsequent occasion.

 

1.560 Subclause (6) defines “acted improperly” to include: exercising rights under Chapter 9 in a vexatious, unreasonable or inappropriate manner; and making unreasonable, vexatious or inappropriate use of information obtained by the permit holder as a result of exercising rights under Chapter 9. 

 

1.561 The term “acted improperly” would also cover the situation where a permit holder unreasonably fails to comply with a request by an employer or occupier pursuant to clause 192 or 202 or fails to comply with a condition of a permit or fails to comply with entry requirements.

 

1.562 Subclause (6) also defines “minimum disqualification period”. 

 

1.563 The Industrial Registrar’s decision will be appellable under section 81 of the WR Act. 

 

Clause 185 - Orders by AIRC for abuse of system

1.564 This clause allows the AIRC to make orders restricting the rights of a union or an official of a union, who has abused rights conferred by Chapter 9 (subclause (1)).  The AIRC may make an order on its own motion or on application of the ABC Commissioner (subclause (2)).

 

1.565 The AIRC may:

·          revoke or suspend some or all of the permits that have been issued in respect of the union;

·          impose conditions on some or all of the permits that have been issued in respect of a union or might in the future be issued in respect of the union;

·          ban the issue of permits for a specified period in relation to a specified person or in respect of the union generally (subclause (3)). 

 

1.566 A union, or official of a union who is subject to an order must comply with the order (subclause (4)). This subclause is a Grade A civil penalty provision.

 

1.567 Subclause (5) provides that the AIRC’s powers to make orders under this clause may only be exercised by the President or, if the President directs, another Presidential member or a Full Bench.

 

Clause 186 - Revoked etc. permit must be returned to Industrial Registrar

1.568 A permit holder must return his or her permit within seven days of their permit’s revocation, expiration and suspension or when conditions are imposed on the permit after is issued (subclause (1)).  This is a Grade B civil penalty provision.

 

1.569 In the case of a suspended permit, subclause (2) requires the Industrial Registrar to return the permit to the permit holder or the permit holder’s union on application after the end of the suspension period, if satisfied that the permit is still in force.

 

Clause 187 - Extra conditions to be endorsed on permit

1.570 Where conditions are imposed on a permit - by the Industrial Registrar under clause 184 or by the AIRC under clause 185 - the permit ceases to have effect until the conditions have been endorsed on the permit. 

 

1.571 A person who attempts to use a permit which is not endorsed with the correct conditions may contravene clause 207, which prohibits false statements about right of entry.

 

Part 4 - Right of Entry to investigate suspected breaches

1.572 Part 4 sets out the circumstances in which a Commonwealth or State union official may seek entry to investigate suspected breaches of industrial law or relevant industrial instruments.  The general rule is set out in clause 188.  Clauses 190 and 192 - 194 impose limitations on the right of entry.

 

1.573 The rules in this Part do not apply to entry by consent.  In such a case, it is the consent that authorises entry, not the provisions of this Part.

 

Clause 188 - Right of entry to investigate breach

1.574 Clause 188 sets out the circumstances in which a permit holder for a Commonwealth or a State union may enter premises to inspect a breach of industrial law or a relevant industrial instrument.

 

1.575 Subclause (1) authorises a permit holder of a Commonwealth union to enter premises for the purpose of investigating a suspected breach of:

·          the Building and Construction Industry Improvement Act;

·          the WR Act; or

·          an award, certified agreement or order under either of those Acts binding on the permit holder’s union.

 

1.576 Subclause (1) provides that a right of entry must only be exercised during working hours and in respect of premises where building work is being carried out by one or more employees who are members of the permit holder’s union and the suspected breach relates to or affects that building work or any of those employees.

 

1.577 Subclause (2) authorises a permit holder of a State union to enter premises for the purpose of investigating a suspected breach of a State industrial law, or a State industrial instrument that is binding on the permit holder’s union.

 

1.578 Subclause (2) provides that a right of entry must be exercised during working hours and only in respect of premises where:

·          building work is being carried out by one or more employees who are members of the permit holder’s State union and the suspected breach relates to or affects that building work or any of those employees; and

·          the employer of the employees is a constitutional corporation or the premises are in a Territory or Commonwealth place.

 

1.579 Clause 196 requires a permit holder to have reasonable grounds for believing there is a suspected breach.

 

189 - Rights of permit holders after entering premises

1.580 Clause 189 specifies what permit holders may do after entering premises for the purpose of investigating a suspected breach.

 

1.581 Subclauses (2) and (4) provide that while on premises, permit holders can, in order to investigate a suspected breach, exercise a number of rights during working hours including: 

·          inspect machinery or materials;

·          interview employees who are members or are eligible to be members of the permit holder’s union;

·          require an affected employer to produce or allow access to any records relevant to the suspected breach other than non-member records - the term “non member record” is defined in subclause (12).

 

1.582 Subclause (3) makes it clear, for the avoidance of doubt, that a refusal or failure by a person to participate in an interview under subclause (2) does not constitute conduct covered by section 149.1 of the Criminal Code (which relates to obstruction of Commonwealth officials).

 

1.583 Subclause (5) authorises a permit holder to issue a notice to require an affected employer to:

·          produce or allow access to records (other than “non-member records”) relevant to the suspected breach at the premises or at another agreed place on a later day or days specified in the notice;

·          allow the permit holder to inspect and make copies of any of these records during working hours on a later day or days specified in the notice. 

 

1.584 The date in the notice must be at least 14 days after the day on which it is given (subclause (6)).  A copy of this notice must be provided to the ABC Commissioner (subclause (8)).

 

1.585 Subclause (7) provides that before exercising rights under subclauses 189(4) or (5), the permit holder must show the employer documents evidencing the authority to exercise right of entry.

 

1.586 Subclause (8) entitles a permit holder to enter premises during working hours for the purpose of inspecting and copying the records under a notice in subclause (5).

 

1.587 Upon application by a permit holder (subclause (9)), the AIRC may order access to non-member records if satisfied that access is necessary to investigate the suspected breach.  Before making such an order the AIRC must have regard to any conditions that apply to the permit holder’s permit (subclause (10)).  If the permit holder obtains an order under subclause (10) then the entry will be authorised by the order and will be subject to any conditions in the order.

 

1.588 Subclause (12) defines the terms “non-member record” and “record relevant to the suspected breach”.

 

Clause 190 - Limitation on rights - entry notice or exemption certificate

1.589 Clause 190 provides that entry to premises under clause 188 is not authorised unless the notice requirements in either subclause (2) or subclause (3) are complied with.

 

1.590 Subclause (2) provides that a permit holder is not authorised to enter premises under clause 188 unless:

·          the permit holder has given an entry notice to the occupier of the premises and the ABC Commissioner at least 24 hours but not more than 14 days before the entry;

·          the notice specifies entry is authorised under clause 188 and identifies the particulars of the suspected breach or breaches; and

·          entry is on the day specified in the notice.

 

1.591 Subclause (4) provides that the exercise of rights under clause 189 after entry is not authorised unless the conduct is for the purpose of investigating a suspected breach identified in the entry notice.

 

1.592 Subclause (3) provides that a permit holder is not authorised to enter premises under clause 188 unless:

·          a copy of an exemption certificate issued under clause 191 is given to the occupier of the premises and the ABC Commissioner not more than 14 days before the entry.

·          entry is on the day specified in the certificate;

·          the premises are those specified in the certificate.

 

1.593 This clause relates to entry authorised by clause 188, not entry in other circumstances.  So, it is not applicable to entry to inspect records at a later agreed time (under subclause 189(8)) or entry under an AIRC order to enter premises to inspect non-member records (under subclause 189(10)).

 

Clause 191 - Exemption from requirement to provide entry notice

1.594 Clause 191 allows a union to apply for a certificate exempting it from the notice requirements for entry onto premises under clause 188 (subclause (1)).

 

1.595 The Industrial Registrar must issue such a certificate if satisfied that there are reasonable grounds for believing that advance notice of entry might result in relevant evidence being destroyed, altered or concealed (subclause (2)).

 

1.596 The certificate must specify certain matters, including the premises and the union to which it applies, the particulars of the suspected breach or breaches and the day or days on which it operates (subclause (3)). 

 

1.597 Regulations may be made in relation to the form of application and the exemption certificate (subclause (4)).

 

Clause 192 - Limitation on rights - failure to comply with requests of occupier or affected employer

1.598 Clause 192 provides that entry is not authorised under Part 4 unless a permit holder complies with specific requests of an occupier or affected employer.

 

1.599 Under this clause, a permit holder is not authorised to enter or remain on premises if the permit holder fails to comply with a request by an occupier or affected employer to:

·          produce documents evidencing authority to enter (subclause (1));

·          observe OHS requirements that apply to the premises, provided the request is reasonable (subclause (2));

·          conduct interviews in a particular room or area of the premises or to take a particular route to reach a particular room or area of the premises to conduct an interview, provided the request is reasonable (subclause (3)). 

 

1.600 To avoid doubt, subclause (4) makes clear that a request to conduct interviews in a particular room or take a particular route to reach a particular room or area of the premises is not unreasonable merely because it is not the room, area or route that the permit holder would have chosen.

 

Clause 193 - Limitation on rights - residential premises

1.601    Clause 193 provides that Part 4 does not authorise a person to enter any part of premises that is used for residential purposes. 

 

Clause 194 - Limitation on rights - permit conditions

1.602 Clause 194 provides that, other than in relation to entry authorised by the AIRC under subclause 189(10), a permit holder’s rights under Part 4 of Chapter 9 are subject to any conditions that apply to his or her permit. 

 

Clause 195 - Exclusion of rights of entry under other industrial laws or instruments

1.603 Clause 195 excludes all rights to enter under other industrial laws or State industrial instruments where there is a right to enter conferred by Part 4, or where there would be a right to enter under Part 4 if the permit holder’s right was not subject to any conditions, and the limitations in clauses 190 (entry notice requirements), 192 (reasonable requests) and 193 (residential premises) did not apply.

 

1.604 This clause does not exclude right of entry under an OHS law prescribed in the regulations.

 

Clause 196 - Burden or proving reasonable grounds for suspecting breach

1.605 Clause 196 provides that the burden of proving the existence of reasonable grounds for suspecting a breach, as mentioned in clause 188, is on the person asserting the existence of those grounds.  This is designed to ensure that a suspicion of a suspected breach on the part of the permit holder is objectively reasonable having regard to the information in the possession of the permit holder at the time of the purported exercise of the right of entry. 

 

Part 5 - Right of entry to talk to employees

1.606 Part 5 sets out the circumstances in which a Commonwealth or State union official may seek entry to hold discussions with employees.  The general rule is set out in clause 197.  Clauses 198-203 impose limitations on the right of entry.

 

1.607 The rules in this Part do not apply to entry by consent.  In such a case, it is the consent that authorises entry, not the provisions of this Part.

 

Clause 197 - Right of entry to hold discussions with employees

1.608 Clause 197 sets out the circumstances in which a permit holder for a Commonwealth or a State union may enter premises to hold discussions with employees.

 

1.609 Subclause (1) authorises entry by a permit holder who is a Commonwealth union official for the purpose of holding discussions with employees who wish to participate in those discussions provided the employees:

·          are members or eligible to be members of the permit holder’s union; and

·          carry out work on the premises which is covered by an award or certified agreement that binds the permit holder’s union.

 

1.610 Subclause (2) authorises a permit holder of a State union to enter premises for the purpose of holding discussions with employees who wish to participate in those discussions provided the employees:

·          are members or eligible to be members of the permit holder’s union; and

·          carry out work on the premises which is covered by a state industrial instrument that binds the permit holder’s union.

 

1.611 Permit holders of State unions are not authorised to enter premises unless the employer of the employees is a constitutional corporation or the premises are in a Territory or a Commonwealth place (subclause (3)).

 

Clause 198 - Limitation on rights - times of entry and discussions

1.612 Clause 198 provides that the permit holder is only allowed to enter under clause 197 during working hours and may only hold discussions during the employees’ meal-time or other breaks.

 

Clause 199 - Limitation on rights - conscientious objection certificates

1.613 Clause 199 provides that a permit holder is not authorised to enter premises if an employer:

·          holds a conscientious objection certificate in force under section 180 of Schedule 1B to the WR Act which has been endorsed under section 285C of the WR Act, indicating that the employer is a practicing member of a religious society or order whose beliefs preclude membership of any other body; and

·          employs 20 or fewer employees at the premises, none of whom are union members.

 

Clause 200 - Limitation on rights - entry notice

1.614 Subclause (1) provides that a permit holder is not authorised to enter under clause 197 unless:

·          an entry notice is given to the occupier and to the ABC Commissioner at least 24 hours but not more than 14 days before the entry (the ABC Commissioner need only be given a copy of the notice);

·          the notice specifies section 197 as authorising entry; and

·          entry is on the day specified in the notice.

 

1.615 Further limits are imposed in relation to entry for recruitment purposes (subclause (2)).  Entry under clause 197 and subsequent conduct is not authorised if the conduct is for the purpose of recruitment and the entry notice does not specify recruitment as a purpose for entry or any other permit holder for the union entered the premises in the preceding 6 months for the purpose of recruiting.

 

Clause 201 - Limitation on rights - residential premises

1.616 Clause 201 provides that Part 5 does not authorise entry onto any part of a premises which is used for residential purposes.

 

Clause 202 - Limitation on rights - failure to comply with requests of the occupier or affected employer

1.617 Clause 202 provides that unless a permit holder complies with specified requests of occupiers or affected employers entry is not authorised under Part 5 to hold discussions.  Specifically, a permit holder must comply with a request to:

·          produce documents evidencing authority to enter (subclause (1));

·          observe occupational health and safety requirements that apply to the premises, provided the request is reasonable (subclause (2));

·          conduct interviews in a particular room or area of the premises or to take a particular route to reach a particular room or area of the premises to conduct an interview, provided the request is reasonable (subclause (3)). 

 

1.618 To avoid doubt, subclause (4) makes clear that a request to conduct interviews in a particular room or take a particular route to reach a particular room or area of the premises is not unreasonable merely because it is not the room, area or route that the permit holder would have chosen. 

 

Clause 203 - Limitation on rights - permit conditions

1.619 Clause 203 provides that a permit holder’s rights under Part 5 of Chapter 9 are subject to any conditions that apply to his or her permit.

 

Clause 204 - Exclusion of rights of entry under other industrial laws or instruments

1.620 Clause 204 excludes all rights to enter under other industrial laws or State industrial instruments where there is a right to enter conferred by Part 5, or where there would be a right to enter under Part 5 if the permit holder’s right was not subject to any conditions, and the limitations in clauses 198 (times of entry and discussion), 199 (conscientious objection certificate), 200 (entry notice requirements), 201 (residential premises) and 202 (reasonable requests).

 

1.621 It does not exclude the operation of right of entry under an OHS law as prescribed in the regulations.

 

Part 6 - Miscellaneous

Clause 205 - Hindering, obstruction etc. in relation to this Chapter

1.622 Clause 205 prohibits certain conduct in relation to the exercise of powers under Chapter 9, including (subclauses (1)-(4)):

·          permit holders intentionally hindering, obstructing or acting in an improper manner;

·          persons intentionally hindering or obstructing a permit holder exercising rights under Part  or refusing or unduly delaying entry to premises by a permit holder entitled to enter;

·          employers refusing or failing to comply with a requirement to produce documents under subclauses 189(4) or (5).

 

1.623 To avoid doubt, a failure by a permit holder and an affected employer to agree on a place to provide access to documents for inspection under paragraph 189(5)(a) does not constitute hindering or obstructing (subclause (5)).

 

1.624 To avoid doubt, subclause (6) provides that a person must not hinder or obstruct a permit holder exercising rights before a permit holder enters the premises. For example, a person found to be destroying or concealing documents would breach this prohibition.

 

1.625 Subclauses (1)-(4) are Grade A civil penalty provisions.

 

Clause 206 - Unreasonable requests by occupier or affected employer

1.626 Clause 206 allows the AIRC to make whatever orders it considers appropriate in respect of the rights of a permit holder under clauses 188 (entry to investigate) or 197 (entry for discussions) if satisfied that the occupier of the premises has made an request to a permit holder under clause 192 or 202 that is not a reasonable request (subclause (1)).

 

1.627 The orders that can be made include an order authorising access to premises for specified purposes (subclause (2)).

 

1.628 The AIRC may act on application or on its own motion (subclause (4)).  The AIRC’s powers to make orders under this clause may only be exercised by the President or, if the President directs, another Presidential member or a Full Bench (subclause (3)).

 

Clause 207 - Misrepresentations about right of entry

1.629 Clause 207 prohibits a person (first person) from intentionally or recklessly giving an impression to a second person that the first person, or a third person, is authorised under Chapter 9 to exercise particular rights if:

·          the first person or the third person is not so authorised; and

·          the first person knows or has reasonable grounds for believing that the first person or the third person is not so authorised. 

 

1.630 Examples of behaviour which this clause intends to cover are:

·          where a person purports to enter premises without a valid permit; or

·          a permit holder does not comply with a condition attached to a permit.

 

1.631 The “authorised” things referred to in this clause also include the right to enter under an order by the AIRC in clause 189(10).

 

Clause 208 - ABC Commissioner to be given opportunity to be heard

1.632 Clause 208 allows the ABC Commissioner a right to be heard on applications under Chapter 9 before the Industrial Registrar.

 

Clause 209 - Powers of AIRC to settle industrial disputes

1.633 This clause permits the AIRC to exercise its dispute settling powers to prevent and settle industrial disputes about the operation of Chapter 9. Any order that the AIRC makes cannot, however, confer rights that are additional to, or inconsistent with, rights exercisable under Chapter 9 (subclause (1)).

 

1.634 Subclause (2) makes it clear that the AIRC has the power, for the purpose of preventing or settling the industrial dispute, to revoke, suspend or impose “limiting conditions” on a right of entry permit issued under Chapter 9.

 

1.635 Subclause (3) defines “limiting condition”.

 



CHAPTER 10 - ACCOUNTABILITY OF ORGANISATIONS

Clause 210 - Deductions from money held on behalf of member

1.636 Clause 210 prohibits a Commonwealth building organisation from making a “membership deduction” (i.e. a deduction in respect of an amount that a member owes to the organisation in relation to the member’s membership) unless:

·          the member has given a written consent in the prescribed form covering the deduction concerned;

·          the consent was given not more than 12 months before the deduction is made; and

·          the deduction, when added to other membership deductions made with the organisation during that same 12 month period, is no more than the annual rate of membership fees applicable to the member at the time the consent was given.

 

1.637 This provision is a Grade A civil penalty provision.

 

Clause 211 - Annual statement of money held on behalf of members

1.638 This clause requires a Commonwealth building organisation to lodge an annual statement with the Industrial Registry and with the ABC Commissioner if, at the end of a financial year, the organisation holds money on behalf of a member or members of the organisation.

 

1.639 This clause will ensure that Commonwealth building organisations properly disclose details of funds it holds of behalf of its members.

 

1.640 This provision is a Grade B civil penalty.

 

Clause 212 - Annual statement of donations

1.641 Clause 212 requires a Commonwealth building organisation to lodge a statement, detailing each donation received over $500, with the Industrial Registry and with the ABC Commissioner.  The statement must be lodged within 90 days after the end of each financial year (subclause (1)).  This is a Grade B civil penalty provision.

 

1.642 Subclause (2) sets out the details that must be included in the statement, including the name and address of the donor and the reason why the donor made the donation the organisation.

 

1.643 Subclause (3) provides that an organisation does not breach the reporting requirement by failing to include the name and address of the donor and the reason why the donor made the donation, provided that it made reasonable inquiries to ascertain this information.

 

1.644 Subclause (4) provides that a statement lodged in the Industrial Registry may be inspected by a member of the organisation at any registry during office hours.

 

1.645 Subclause (5) provides that within 90 days of 30 June each year, the Industrial Registrar must give the Minister for Employment and Workplace Relations and the ABC Commissioner a report about the statements lodged in the Industrial Registry.

 

1.646 Subclause (6) defines “financial year”. The definition takes account of the fact that individual organisations may have different financial years.

 

1.647 The requirements in clause 212 are in addition to the financial reporting obligations on registered organisations set out Schedule 1B to the WR Act.

 

Clause 213 - Donation requests to be reported

1.648 Clause 213 requires a person to report a request for a donation of more than $500 by a person acting on behalf of a Commonwealth building organisation.  The request must be reported to the ABC Commissioner within 30 days of the request being made.  This is a Grade B civil penalty provision.

 

1.649 Subclause (1) sets out when a person must a report a request.

 

1.650 Subclause (2) sets out the details that must be included in each report to the ABC Commissioner.

 

Clause 214 - Financial reports under the Workplace Relations Act

1.651 Clause 214 requires the Industrial Registrar to make additional reporting guidelines for building reporting units under section 255 of Schedule 1B to the WR Act. (The term “building reporting units” is defined in subclause (7)).

 

1.652 The guidelines must require the reporting unit to disclose (subclause (2):

·          commissions and other economic benefits received or receivable by the reporting unit or by an officer or employee of the reporting unit (in that capacity);

·          commissions and other economic benefits received or receivable or paid or payable by an entity:

-          that the reporting unit controls ;

-          that is controlled by a person in the capacity of an officer or employee of the reporting unit where the controls is for one of the purposes listed in subparagraphs (2)(c)(ii)(A) - (D).

 

1.653 The term “economic benefits” is not defined but is a phrase used by accounting standards and has its ordinary meaning.

 

1.654 Subclause (4) makes it clear that guidelines cannot require information to be disclosed by a reporting unit under subclause (2)(c), if the disclosure would contravene a law of the Commonwealth or of a State or Territory.

 

1.655 Subclause (5) provides that section 254 of Schedule 1B to the WR Act (which requires reporting units to pre pare operating reports ) applies to building reporting units as if that requirement also requires the reporting units to give details of:

·          each entity in which the reporting unit has a financial interest;

·          each entity in which an officer, employee or member of the reporting unit holds a position as a trustee or director (but only where certain criteria are met);

·          each entity controlled by the reporting unit; and

·          each entity that is controlled by a person in the capacity of an officer or employee of the reporting unit.

 

1.656 Subclauses (2) and (5), in part ensure that reporting requirements extend to economic benefits (such as funds and income) in relation to entities (such as trusts) over which a reporting unit or an officer/employee of a reporting unit can exercise control.

 

1.657 Subclause (8) provides a definition of “control” for the purposes of subclauses (1) and (2).

 

1.658 Subclause (6) requires the Industrial Registrar to prepare a report about:

 the extent of each building reporting unit’s compliance with the financial accountability requirements of Schedule 1B to the WR Act (as modified by subclause (1)). The report must be provided to the Minister for Employment and Workplace Relations and the ABC Commissioner within 90 days of each year ending 30 June.

 

1.659 Subclause (7) contains the definition of “building reporting unit”.

 

Clause 215 - Deregistration for failing to satisfy a judgment debt

1.660 Clause 215 sets out a process whereby a Commonwealth building organisation which fails to satisfy a judgment debt for unlawful action damages, may be deregistered.

 

1.661 The ABC Commissioner may apply for a deregistration certificate.  The application must be accompanied by a copy of the court order and evidence that the unlawful action damages have not been paid (subclause (2)).

 

1.662 The Industrial Registrar must serve the deregistration certificate on the organisation (subclause (3)).

 

1.663 The deregistration takes effect, by force of law, at the end of the fourteenth day after service, unless the unlawful action damages have been paid in full (subclause (6)).

 

1.664 A certificate cannot be issued if an appeal is pending against the payment order, or within the time permitted to lodge an appeal (subclause (4)).  If an appeal is lodged after the issue of a certificate but before the deregistration takes effect, the certificate is treated as never having been issued (subclause (5)).

 

1.665 Deregistration does not take effect if an appeal is pending in relation to the issue the deregistration certificate (subclause (7)).  Appeal includes action taken in the High Court or Federal Court on jurisdictional grounds (subclause (9)).

 

1.666 Subclause (10) provides that if an organisation is deregistered, then section 32 of Schedule 1B to the WR Act, which deals with the consequences of deregistration, applies.

 

Clause 216 - Additional ground for deregistration by Federal Court

1.667 Clause 216 provides an additional ground upon which an application may be made to the Federal Court for cancellation of the registration of a Commonwealth building organisation. The additional ground is that the organisation (or a substantial number, section or class of members of the organisation) has failed to comply with an injunction granted under this Act (subclause (1)).

 

1.668 Where a finding of fact has been made by the Federal Court in proceedings under this Act for an injunction or interim injunction, that finding of fact is admissible as prima facie evidence of that fact in an application for cancellation of registration on the additional ground set out in subclause (1) (subclause (2)).

 

Clause 217 - Disqualification of officials

1.669 Clause 217 sets out the circumstances under which the ABC Commissioner may apply to the Federal Court to for an order disqualifying an individual from holding office in a Commonwealth building organisation and/or exercising certain functions in relation to that organisation.

 

1.670 A Commonwealth building organisation is defined in clause 4 as a union or employer association registered under the WR Act that that has rules which allow membership by building employees or building employers, irrespective of whether it also allows other members.

 

1.671 Subclause (1) provides that the Federal Court may make an order if satisfied the person has:

·          been found, in other proceedings, to have contravened a civil penalty provision in this Act or the WR Act; or

·          has been disqualified from holding office in an industrial association, by a court or other body under a State industrial body.

 

1.672 Subclause (3) sets out the factors which the Federal Court must take into account when considering whether to exercise its powers.

 

1.673 Subclause (4) sets out the consequences of the Federal Court ordering a period of disqualification:

·          if the person is an office holder in a Commonwealth building organisation, the person ceases to hold office;

·          during the disqualification period, the person is not eligible to run for office, or to be elected or appointed to an office in a Commonwealth building organisation.

 

1.674 Clause 217 applies in addition to Part 4 of Schedule 1B to the WR Act which deals with disqualification from office when a person has been convicted of a “prescribed offence”.

 

Clause 218 - Transactions to defeat creditors

1.675 Clause 218 allows the Federal Court to make certain orders in relation to transactions entered into by Commonwealth building organisations, where the effect of the transaction is, or might be, to put income or assets beyond the reach of persons to whom the Commonwealth building organisation must pay unlawful action damages.

 

1.676 Subclause (1) outlines the preconditions that must be met before the Federal Court can make an order, namely:

·          a court has ordered a Commonwealth building organisation to pay unlawful action damages to a person (the judgment creditor) by a specified date;

·          the damages have not been paid by the specified date;

·          either before or after the time of the order, the organisation entered into a transaction:

-          with intent to defeat the interests of one or more creditors  of the organisation (as defined in subclause (6)); or

-          with reckless disregard of the interest of one or more creditors of the organisation. 

 

1.677 If these preconditions are satisfied, the Federal Court, on application by a judgement creditor, may order a person to pay the judgment creditor, in satisfaction of the unsatisfied amount the judgment debt, an amount that, in the Court’s opinion, fairly represent some or all of the benefits that the beneficiary has received because of the designated transaction.

 

1.678 This provision is intended to have wide application and cover beneficiaries of a transaction and is not limited to parties to the transaction eg. the clause could apply to a person who received an interest in income or assets pursuant to a trust.

 

1.679 Subclauses (2) - (4) set out the circumstances in which the Court cannot make an order, including:

·          if it is satisfied that the organisation itself has the capacity to satisfy the judgment debt (subclause (2)); or

·          the order materially prejudices the rights of a person (subject to certain criteria being met (subclauses (3) and (4)).

 

1.680 Subclause (5) ensures that a person who is required to pay an amount pursuant to this clause has the right to recover this amount from the organisation as a debt.

 

1.681 The definition of creditor in subclause (6) includes not only those persons who are already creditors of the organisation, but also those who could reasonably have been foreseen by the organisation to be reasonably likely to become a creditor.

 



CHAPTER 11 - DEMARCATION DISPUTES

1.682 This Chapter enables the AIRC to make orders, in the context of demarcation disputes, about the representation rights of organisations in relation to building employees. The provisions are based on Chapter 4 of Schedule 1B to the WR Act.

 

1.683 The power of the AIRC to make orders under this Chapter is available whenever the dispute relates, to some extent, to building employees. This approach ensures that the AIRC is able to resolve the entire dispute, even where an organisation involved in the dispute is not a building organisation.

 

Clause 219 - Orders about representation rights of Commonwealth employee organisations

1.684 Clause 219 gives the AIRC power to make orders to alter the rights of employee organisations to represent the industrial interests of particular classes or groups of employees. The AIRC can exercise power in relation to demarcation disputes in the building industry irrespective of whether or not the dispute also relates to other employees.

 

1.685 Subclause (1) specifies the circumstance in which the AIRC may makes orders concerning organisational coverage in settlement of a demarcation dispute (the term “demarcation dispute” is defined in section 6 of Schedule 1B to the WR Act) that involves the right to represent building employees. 

 

1.686 Subclause (2) makes it clear that the AIRC may vary set aside, revoke or vary an order on application by an eligible person.

 

1.687 Persons eligible to apply for an order are an organisation, an employer, the Minister, the Building Commissioner and any person who is, or is likely to be adversely affected (whether directly or indirectly) by a demarcation dispute between organisations (subclause (3).

 

Clause 220 - Preconditions for making order

1.688 Clause 220 limits the power of the AIRC to make an order about organisational coverage to circumstances where it is satisfied that the conduct, or threatened conduct of an organisation or an officer, member or employee of the organisation is preventing or interfering with the performance of work or is harming any person or that such consequences have ceased but are likely to recur or are imminent.  

 

1.689 This provision differs from its WR Act equivalent (section 134 of Schedule 1B to the WR Act) in one key respect - the requirement that the AIRC consider conciliation before an order is made is not included.

 

1.690 This does not preclude conciliation in appropriate circumstances, but rather increases the emphasis on quick AIRC action to resolve demarcation issues in the building and construction industry.

 

Clause 221 - Factors to be taken into account by AIRC

1.691 This provision requires the AIRC, in considering whether to make an order under clause 219, to have regard to the matters specified in that clause. Those matters include the wishes of the employees who are affected by the dispute, the effect of any order on the operations of certain employers and the consequences of not making an order on any employer, employee or organisation involved in the dispute. 

 

1.692 The AIRC is also required to have regard to any relevant agreements or understandings of which it becomes aware that affect the representation rights of the organisations concerned.

 

Clause 222 - Order may be subject to limits

1.693 Clause 222 is a technical item to make it clear that an order made under clause 219 may be subject to conditions or limitations.

 

Clause 223 - Organisation must comply with order

1.694 Clause 223 requires an organisation to which an order under clause 219 applies, to comply with that order and gives the Federal Court jurisdiction to make orders to ensure compliance.

 

1.695 This is a Grade A civil penalty provision.

 

1.696 The class of persons who may make an application to the Federal Court in respect of a breach of a representation order reflects the class of persons who make apply for order under clause 219.

 

Clause 224 - Exercise of AIRC’s powers under this Chapter

1.697 Clause 224 provides that the powers of the AIRC under this Chapter can only be exercised by a Full Bench or Presidential Member.

 

Clause 225 - Exclusion of power to make orders under Workplace Relations Act

1.698 Clause 225 provides that where an order can be made under this Chapter in relation to a demarcation dispute, then an order in respect of the same dispute cannot be made under Chapter 4 of Schedule 1B to the WR Act.

 



CHAPTER 12 - ENFORCEMENT

Part 1 - Contravention of civil penalty provisions

Clause 226 - Definitions

1.699 Subclause (1) contains relevant definitions for the purposes of Chapter 12 Part 1.

 

1.700 Subclause (2) outlines the circumstances in which a person is taken to have been “involved in” in a contravention of a civil penalty provision.

 

Clause 227 - Penalties etc. for contravention of civil penalty provision

1.701 An “eligible person” may apply to an “appropriate court” in respect of a contravention of a civil penalty provision.

·          an “eligible person” is: the ABC Commissioner, a person affected by the contravention, or a person prescribed by the regulations (subclause (6))

·          an “appropriate court” is generally the Federal Court; applications may be brought in a wider range of courts in the case of a contravention of the prohibition on unlawful industrial action (clause 74).

 

1.702 Subclauses (1)-(3) set out the orders that a court can make against a person who contravenes a civil penalty provision.

 

1.703 The court may order a pecuniary penalty.   The maximum pecuniary penalty that may be ordered depends upon whether the relevant provision was a Grade A or a Grade B civil penalty provision.

·          The maximum penalty for a Grade A civil penalty provision is 1,000 penalty units in the case of a body corporate, or 200 penalty units in other cases.

·          The maximum penalty for a Grade B civil penalty provision is 100 penalty units in the case of a body corporate, or 20 penalty units in other cases.

-          By operation of section 4AA of the Crimes Act 1914 , the value of a penalty unit is currently $110.

 

1.704 The court may also order:

·          damages payable to a specified person;

·          any other order the court thinks appropriate (including an injunction or an order for the sequestration of assets).

 

1.705 If a person contravenes clause 74 of the Bill (which prohibits unlawful industrial action), then subclause (4) sets out the circumstances in which the court can grant an injunction restraining a person from engaging in such conduct.

·          An application in relation to a breach of clause 74 may be brought in the Federal Court, the Federal Magistrates Court, a State or Territory Supreme Court or a Country or District Court of a State.

 

1.706 A penalty ordered under this clause is payable to the Commonwealth or some other person if the court directs. The penalty may be recovered as if it were a judgment debt (subclause (5)).

 

1.707 Subclause (7) allows regulations prescribing a person as an “eligible person” (i.e. a person able to bring proceedings for breach of a civil penalty provision) to limit the circumstances in which the person may make an application.

 

Clause 228 - Multiple proceedings for same conduct

1.708 To avoid double penalties in respect of the same conduct, subclause (1) prevents a court from making an order for a pecuniary penalty against a person if the person has already been convicted of an offence constituted by substantially the same conduct as the contravention of a civil penalty provision.

 

1.709 Subclause (2) provides that where criminal proceedings have commenced in respect of conduct that is substantially the same as that relating to proceedings for a pecuniary penalty order for a contravention of a civil penalty provision, the civil proceedings are stayed.  If the person is later convicted of the offence, then the proceedings for an order for breach of the civil penalty provisions are dismissed. Otherwise, the proceedings may be resumed.

 

1.710 Subclause (3) ensures that if an order in respect of a contravention of a civil penalty provision has been made, criminal proceedings relating to substantially the conduct may still be instituted.

 

Clause 229 - Evidence given in proceedings for penalty not admissible in criminal proceedings

1.711 Clause 229 prevents admission of evidence in criminal proceedings where the evidence was previously given in proceedings for a pecuniary penalty order relating to contravention of a civil penalty provision and the criminal proceedings relate to substantially the same conduct. An exception is made for criminal proceedings regarding false evidence given in the civil penalty proceedings.

 

Part 2 - Compliance etc. powers

1.712 This Part contains the compliance powers of the ABC Commissioner, ABC Inspectors and Federal Safety Officers appointed by the Federal Safety Commissioner.

 

Division 1 - ABC Commissioner’s powers to obtain information etc.

Clause 230 - ABC Commissioner’s powers to obtain information etc.

1.713 The ABC Commissioner may, by written notice, compel a person to produce information or documents, or to attend before the ABC Commissioner or an assistant and answer relevant questions if certain criteria are satisfied.  The criteria are that the ABC Commissioner believes on reasonable grounds that the person:

·          has information or documents relevant to an investigation into a contravention by a building industry participant of this Act, the WR Act or a Commonwealth industrial instrument; or

·          is capable of giving evidence relevant to such an investigation.

 

1.714 Subclause (2) requires a notice issued by the ABC Commissioner to allow at least 14 days for a person to comply.

 

1.715 Non-compliance with a notice or failure to take an oath or affirmation when required to do so under subclause (4) constitutes an offence punishable by a maximum imprisonment of six months (subclause (6)).   The Criminal Code allows for a range of circumstances to be pleaded as a defence to criminal offences. Clause 231 limits the grounds for such a defence. However, clause 232 protects persons from certain liabilities that may arise from the disclosure of information or documents pursuant to clause 230.

 

1.716 Subclause (3) expressly provides that a person may be represented by a legal practitioner when attending before the ABC Commissioner or assistant.

 

1.717 Subclauses (4) and (5) provide that the ABC Commissioner or an assistant may require information or answers to be verified or given under oath or affirmation.

 

1.718 Subclause (7) provides that the power of the ABC Commissioner to obtain information is not limited by the secrecy provisions of any other law unless that law expressly excludes the power to gather information by the ABC Commissioner or his or her assistants.

 

Clause 231 - Certain excuses not available in relation to section 230 requirements

1.719 Clause 231 limits the grounds on which persons can legitimately refuse to comply with a notice from the ABC Commissioner under clause 230, compelling the production of information.

 

1.720 Subclause (1) provides individuals cannot refuse to provide information on the grounds set out in the subclause, including that it might incriminate that person or contravene another law.  However, subclause (2) provides that any information, answers or documents given pursuant to a notice under clause 230 is inadmissible in any court proceedings other those that relate directly to the giving or failure to give information, answers or documents to the ABC Commissioner.

 

Clause 232 - Protection from liability

1.721 Clause 232 protects persons who disclose information to the ABC Commissioner, in good faith, in compliance with a notice under clause 230, from proceedings for contravening any other law (such as secrecy provisions in another law) and from civil action for damages because of that disclosure.

 

Clause 233 - Retention and copying etc. of documents

1.722 Clause 233 provides that the ABC Commissioner may retain documents produced under clause 230 for as long as necessary for the purpose of an investigation.

 

1.723 However, subclauses (2) and (3) provide that the person is entitled to a certified copy which must be received in all courts as if it were the original. Subclause (4) allows persons access to the original of a document provided to the ABC Commissioner where necessary.

 

Clause 234 - ABC Commissioner may make and keep copies of documents

1.724 In addition to the making of certified copies under clause 233 the ABC Commissioner may also make and keep copies of documents produced by persons under clause 230.

 

Division 2 - Powers of ABC Inspectors

Clause 235 - Australian Building and Construction Inspectors

1.725 Clause 235 provides that the ABC Commissioner may appoint persons as “ABC Inspectors”.  The only persons who can be appointed as ABC Inspectors are:

·          employees of the Commonwealth, a State or a Territory;

·          a person who is appointed or holds office under a Commonwealth, State or Territory law; and

·          consultants engaged under clause 25.

 

1.726 In relation to consultants, the ABC Commissioner must be satisfied that the person is an appropriate person to be appointed as an ABC Inspector (subclause (2)).

 

1.727 Subclause (3) provides that the ABC Commissioner is also an ABC Inspector. 

 

1.728 ABC Inspectors must comply with any direction of the ABC Commissioner (subclause (4)).

 

Clause 236 - Identity cards for ABC Inspectors

1.729 Clause 236 requires the ABC Commissioner to issue ABC Inspectors with identity cards containing a recent photograph (subclause (1)).  These cards must be carried when exercising powers or performing functions as an ABC Inspector (subclause (7)).

 

1.730 The Minister is also required to issue the ABC Commissioner with an identity card (subclause (2)).

 

1.731 Subclauses (3) to (6) require identity cards to be returned within 14 days of ceasing to be an ABC Inspector, unless the person has a reasonable excuse for not doing so.  Failure to comply with this requirement is an offence, with a maximum penalty of 1 penalty unit. 

 

Clause 237 - Power to enter premises etc.

1.732 Clause 237 sets out the powers of ABC Inspectors.  An ABC Inspectors can exercise his or her powers for “compliance purposes”: namely to ascertain compliance with a designated building law or the Building Code, to ascertain whether a court order relating to a designated building is or has been complied with and to make an assessment of damage resulting from unlawful industrial action (subclause (1)).

 

1.733 The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes (subclause (2)).

 

1.734 The powers available to an ABC Inspector include entering, without force, any premises on which the ABC Inspector has reasonable cause to believe that:

·          building work to which a Commonwealth industrial instrument or the Building Code applies or applied;

·          there are documents relevant to compliance purposes;

·          a breach of a designated building law or the Building Code has, is or is likely to occur (subclause (3)).

 

1.735 ABC Inspectors are not permitted to enter a part of premises that are used for residential purposes (subclause (4)).

 

1.736 Subclause (5) outlines what an ABC Inspector can do on premises he or she has entered under this clause.  These include:

·          inspecting any work or machinery;

·          interviewing any person;

·          inspect, and make copies of, any document that is on the premises, or is accessible from a computer that is kept on the premises, being a document that the inspector believes, on reasonable grounds, to be relevant for compliance purposes; and

·          requiring a person to produce a document in his or her custody, to the inspector within a specified period.

 

1.737 If a person fails to comply with a requirement to produce a document an inspector may serve written notice on the person to produce the document within a specified period being not less than 14 days (subclause (6)).  A person who fails to comply with the requirement to produce a document may contravene the Criminal Code .

 

1.738 Subclause (7) allows an inspector to inspect and copy a document produced under subclauses (5) or (6).   The inspector can retain the document, provided a receipt is given and access is given to a person otherwise entitled to access to the document or a person authorised by such a person (subclause (8)).

 

1.739 Subclause (9) also allows an ABC Inspector to enter business premises in which a person ordinarily performs work or conducts business if the inspector has reasonable cause to believe that the person has information relevant to compliance purposes.

 

1.740 An ABC Inspector who enters under this subclause may interview the person concerned in that place (subclause (11)).  However, refusing or failing to be interviewed is not to be treated as conduct covered by section 149.1 of the Criminal Code (subclause (12)).

 

1.741 Subclause (13) provides that, before entering premises under this clause, the inspector must announce that he or she is authorised to enter, and if the occupier or other person is present the inspector must produce his or her identity card to that person for inspection. 

 

1.742 An occupier must not refuse or unduly delay entry to an inspector under this clause.  This is a Grade A civil penalty provision (subclause (14)).

 

Division 3 - Powers of Federal Safety Officers

Clause 238 - Federal Safety Officers

1.743 Clause 238 provides that the Federal Safety Commissioner may appoint persons as Federal Safety Officers.  The only persons who can be appointed as Federal Safety Officers are:

·          employees of the Commonwealth, a State or a Territory

·          a person who is appointed or holds office under a Commonwealth, State or Territory law; and

·          consultants engaged under clause 45.

 

1.744 In relation to consultants, the Federal Safety Commissioner must be satisfied that the person is an appropriate person to be appointed as a Federal Safety Officer (subclause (2)).

 

1.745 Subclause (3) provides that the Federal Safety Commissioner is also a Federal Safety Officer. 

 

1.746 Federal Safety Officers must comply with any direction of the Federal Safety Commissioner (subclause (4)).

 

Clause 239 - Identity cards for Federal Safety Officer

1.747 Clause 239 requires the Federal Safety Commissioner to issue Federal Safety Officers with identity cards containing a recent photograph (subclause (1)).  These cards must be carried when exercising powers or performing functions as a Federal Safety Officer (subclause (7)).

 

1.748 The Minister is also required to issue the Federal Safety Commissioner with an identity card (subclause (2)).

 

1.749 Subclauses (3) to (6) require identity cards to be returned within 14 days of ceasing to be a Federal Safety Officer, unless they have a reasonable excuse for not doing so.  Failure to comply with this requirement is an offence, with a maximum penalty of 1 penalty unit. 

 

Clause 240 - Powers to enter premises etc. to ascertain compliance with Building Code

1.750 This clause sets out the powers of Federal Safety Officers.  A Federal Safety Officer can exercise his or her powers for the “compliance purpose” of ascertaining compliance with the Building Code by a building industry participant (subclause (1)).

 

1.751 The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes (subclause (2)).

 

1.752 The powers available to a Federal Safety Officer include entering, without force, any premises on which the officer has reasonable cause to believe that:

·          building work is being carried out, or has been carried out, being building work to the Building Code applies or applied; or

·          a breach of the Building Code has, is or is likely to occur (subclause (3)).

 

1.753 Federal Safety Officers are not permitted to enter a part of premises that are used for residential purposes (subclause (4)).

 

1.754 Subclause (5) outlines what a Federal Safety Officer can do on premises he or she has entered under this clause.  These include:

·          inspecting any work or machinery;

·          interviewing any person;

·          inspect, and make copies of, any document that is on the premises, or is accessible from a computer that is kept on the premises, being a document that the inspector believes, on reasonable grounds, to be relevant for compliance purposes; and

·          requiring a person to produce a document in his or her custody, to the inspector within a specified period.

 

1.755 If a person fails to comply with a requirement to produce a document an officer may serve written notice on the person to produce the document within a specified period being not less than 14 days (subclause (6)).  A person who fails to comply with the requirement to produce a document may contravene the Criminal Code .

 

1.756 Subclause (7) allows an inspector to inspect and copy a document produced under subclauses (5) or (6).   The inspector can retain the document, provided a receipt is given and access is given to a person otherwise entitled to access to the document or a person authorised by such a person (subclause (8)).

 

1.757 Subclause (9) also allows a Federal Safety Officer to enter business premises in which a person ordinarily performs work or conduct business if the officer has reasonable cause to believe that the person has information relevant to compliance purposes. 

 

1.758 A Federal Safety Officer who enters premises under subclause (9) may interview the person concerned in that place (subclause 11).  However, refusing or failing to be interviewed is not to be treated as conduct covered by section 149.1 of the Criminal Code (subclause (12)).

 

1.759 Subclause (13) provides that, before entering premises under this clause, the officer must announce that he or she is authorised to enter, and if the occupier or other person is present the officer must produce his or her identity card to that person for inspection. 

 

1.760 An occupier must not refuse or unduly delay entry to a Federal Safety Officer under this clause.  This is a Grade A civil penalty provision (subclause (14)).

 

Clause 241 - Powers to enter premises etc. to ascertain compliance with accreditation scheme

1.761 Federal Safety officers can exercise their powers for “compliance purposes” related to the accreditation scheme - i.e. to:

·          ascertain whether a constitutional corporation who is applying for accreditation meets the accreditation requirements;

·          ascertain  whether a constitutional corporation who is an accredited person has complied with or is complying with the conditions of accreditation;

·          ascertain whether a person accredited under the scheme has complied or is complying with the conditions of the accreditation in respect of building work in a Territory or Commonwealth place.

 

1.762 The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes (subclause (2)).

 

1.763 The powers available to a Federal Safety Officer include entering, without force, any premises on which the officer has reasonable cause to believe that:

·          there are documents relevant to compliance purposes;

·          building work is being carried out, or has been carried out, by the applicant or accredited person referred to in subsection (1) (subclause 3).

 

1.764 Federal Safety Officers are not permitted to enter a part of premises that are used for residential purposes (subclause (4)).

 

1.765 Subclause (5) outlines what a Federal Safety Officer can do on premises he or she has entered under this clause.  These include:

·          inspecting any work or machinery;

·          interviewing any person;

·          inspect, and make copies of, any document that is on the premises, or is accessible from a computer that is kept on the premises, being a document that the inspector believes, on reasonable grounds, to be relevant for compliance purposes; and

·          requiring a person to produce a document in his or her custody, to the inspector within a specified period.

 

1.766 If a person fails to comply with a requirement to produce a document an officer may serve written notice on the person to produce the document within a specified period being not less than 14 days (subclause (6)).  A person who fails to comply with the requirement to produce a document may contravene the Criminal Code .

 

1.767 Subclause (7) allows an inspector to inspect and copy a document produced under subclauses (5) or (6).   The inspector can retain the document, provided a receipt is given and access is given to a person otherwise entitled to access to the document or a person authorised by such a person (subclause (8)).

 

1.768 Subclause (9) also allows a Federal Safety Officer to enter business premises in which a person ordinarily performs work or conduct business if the officer has reasonable cause to believe that the person has information relevant to compliance purposes. 

 

1.769 A Federal Safety Officer who enters under subclause (9) may interview the person concerned in that place (subclause 11).  However, refusing or failing to be interviewed is not to be treated as conduct covered by section 149.1 of the Criminal Code (subclause (12)).

 

1.770 Subclause (13) provides that, before entering premises under this clause, the officer must announce that he or she is authorised to enter, and if the occupier or other person is present the officer must produce his or her identity card to that person for inspection. 

 

1.771 An occupier must not refuse or unduly delay entry to a Federal Safety Officer under this clause. This is a Grade A civil penalty provision (subclause (14)).

 

1.772 Subclause (15) defines relevant terms.

 



CHAPTER 13 - MISCELLANEOUS

 

Clause 242 - Protection of confidentiality of information

13.773     This clause deals with the obligations on a person (in this provision called an “entrusted person”) to protect the confidentiality of information obtained in the course of their official employment (as defined in subclause (8)).

 

13.774     Subclause (2) makes it an offence for an entrusted person to make a record of, or disclose, protected information.   The maximum penalty is imprisonment for 12 months.

 

13.775     Subclause (3) sets out exceptions from the offence in subclause (2) where the entrusted person is a designated official (as defined in subclause (8)) at the time of the recording or disclosure.  The exceptions are that the recording or disclosure is:

·          for the purposes of this Act;

·          in the course of the performance of duties in the entrusted person’s official employment;

·          to assist in the enforcement of a building industry law of the Commonwealth, State or Territory  and is made to a person appointed or employed by the Commonwealth, a State or Territory, or an authority of the Commonwealth, a State or Territory; or

·          in accordance with the regulations.

 

13.776     The exceptions in subclause (3), allow for referral of information to other enforcement agencies for investigation.

 

13.777     It is anticipated that the ABC Commissioner will enter into memoranda of understanding with relevant enforcement agencies dealing with the referral of matters, including follow-up as to action taken.

 

13.778     Subclause (4) sets out exceptions from the offence in subclause (2) where the entrusted person is not a designated official (as defined in subclause (8)) at the time of the recording or disclosure.  The exceptions are the recording or disclosure is:

·          for the purposes of this Act;

·          in the course of the performance of duties in the entrusted person’s official employment, where the official employment relates to the enforcement of a building industry law of the Commonwealth, or of a State or Territory; or

·          in accordance with the regulations.

 

13.779     If a person seeks to rely on any of the exceptions under subclauses (3) and (4) for an alleged breach of subclause (2), that person bears an evidential burden.  This reflects the Criminal Code .

 

13.780     The exceptions in subsections (3) and (4) do not apply where protected information is disclosed to any Minister and the disclosure was not required or authorised by specific provisions of the Bill (subclause (5)).  Those provisions require the ABC Commissioner and the Federal Safety Commissioner to prepare annual reports and reports in accordance with directions of the Minister.

 

13.781     The exceptions in subsections (3) and (4) also do not apply where the disclosure of the protected information was made in an annual report or a report required by the Minister and the requirements of clause 243 (which prohibits reports from including information relating to an individual’s affairs) have not been complied with (subclause (6)).

 

13.782     Subclause (7) provides that disclosure of personal information is take to be authorised by law for the purposes of the Privacy Act 1988 (ss.14(1)(d) - Information Privacy Principle 11) if the disclosure is made in accordance with subclause (3) or (4).

 

13.783     Subclause (8) sets out the definitions that apply under this clause.

 

Clause 243 - Reports not to include information relating to an individual’s affairs

13.784     This clause provides that information relating to the affairs of an individual must not be disclosed in an annual report or report required by the Minister if:

·          the individual is named or otherwise specifically identified as the individual to whom the information relates; or

·          it is reasonably likely that people generally (other than people to whom the individual has disclosed information relating to the individual’s affairs) would be able to work out the identity of the individual to whom the information relates (subclause (1)).

 

13.785     Subclause (2) provides assistance in interpreting paragraph (1)(b) by providing that the context in which the information appears and information that is otherwise publicly available must be taken into account along with any other relevant matter.

 

Clause 244 - Variation etc. of AIRC orders

13.786     This clause provides that the AIRC may set aside, revoke or vary any order that it has made under this Act on application by the ABC Commissioner or a person affected by the order.

 

Clause 245 - Delegation by Industrial Registrar

13.787     This clause provides that the Industrial Registrar may delegate any or all of his or her powers and functions under this Act to a Deputy Industrial Registrar.  The regulations may prescribe exceptions.

 

Clause 246 - Delegation by Minister

13.788     Subclause (1) provides that the Minister may delegate any or all of his or her powers and functions under this Act to an SES employee or acting SES employee or a person prescribed by the regulations, other than powers or functions under:

·          Chapter 2 - ABC Commissioner, which include the power to appoint and terminate the appointment of the ABC Commissioner and Deputy Commissioners, give directions to the ABC Commissioner and require reports of the ABC Commissioner;

·          Chapter 4 - OHS, which include the power to appoint and terminate the appointment of the Federal Safety Commissioner, give directions to the Federal Safety Commissioner and require reports of the Federal Safety Commissioner;

·          Clause 236 - Identity cards for ABC Inspectors, which requires the Minister to issue an identity card to the ABC Commissioner; and

·          Clause 239 - Identity cards for Federal Safety Inspectors, which requires the Minister to issue an identity card to the Federal Safety Commissioner.

 

13.789     Subclause (2) provides that the Minister may also delegate all or any of the Minister’s powers and functions under Chapter 3 (the Building Code) to:

·          the ABC Commissioner

·          a Deputy ABC Commissioner; or

·          the Federal Safety Commissioner.

 

13.790     Subclause (3) specifies that in exercising powers or function under delegation, the delegate must comply with any directions of the Minister.

 

Clause 247 - Building association responsible for conduct of members etc.

13.791     This clause provides that, for the purposes of this Act, conduct of the committee of management of a building association or of an officer or agent of a building association acting in that capacity, is taken to be conduct of the building association (paragraphs (1)(a) and (b)).

 

13.792     Paragraphs 1(c) and (d) set out the circumstances where the conduct of a member or group of members of the association is taken to be conduct of the building association:

·          where the conduct of the member or group of members is authorised by:

-          the rules of the association; or

-          the committee of management of the association; or

-          an officer or agent of the association acting in that capacity; and

·          where the member is acting on behalf of members of the association in dealing with any employer.

 

13.793     Subclause (2) specifies that the conduct set out in paragraphs (1)(c) and (d) is not taken to be conduct of the association where the committee of management, a person authorised by the committee or an officer of the association, has taken reasonable steps to prevent that action.

 

13.794     Subclause (3) provides that in this clause officer of a building association includes delegates and other representatives and employees of the association.

 

Clause 248 - Capacity, state of mind etc. of person being coerced etc.

13.795     This clause provides that in applying a provision of this Act that refers to coercing, encouraging, advising or inciting a person to do a particular thing, whether or not the person is able, willing or eligible to do that particular thing is not a relevant consideration.  The conduct of coercing, encouraging etc can be established even if the person being coerced, encouraged etc is not able, willing or eligible to do the thing he or she is being coerced, encouraged etc to do.

 

Clause 249 - ABC Commissioner intervention in court proceedings

13.796     Subclause (1) provides that the ABC Commissioner may intervene in a proceeding before a court in a matter that arises under this Act or the WR Act if it is in the public interest to do so. 

 

13.797     Subclause (2) provides that where the ABC Commissioner intervenes in a proceeding, the ABC Commissioner is taken to be a party to the proceeding with all the rights, duties and liabilities of a party.

 

Clause 250 - ABC Commissioner intervention in AIRC proceedings

13.798     This clause provides that the ABC Commissioner may intervene in a matter before the AIRC that arises under this Act or the WR Act as affected by this Act.

 

Clause 251 - Industrial Registrar must keep ABC Commissioner informed

13.799     This clause requires the Industrial Registrar to notify the ABC Commissioner of every application lodged with the AIRC or Industrial Registrar under this       this Act or the WR Act as affected by this Act, and the outcome of each application

 

Clause 252 - Jurisdiction of courts

13.800     This clause deals with a range of matters affecting the jurisdiction of the courts in relation to provisions of this Act and the WR Act as affected by this Act.

 

Jurisdiction where Act allows proceedings to be instituted

13.801     Paragraph (1)(a) provides that where a provision of this Act authorises a proceeding to be instituted in a particular court in relation to a matter, that provision is taken to vest the court with jurisdiction in that matter.

 

13.802     In relation to a State Court, paragraph (1)(b) provides that the jurisdiction vested in the court by a provision of this Act is subject to the same limits as any other jurisdiction of that court.

 

13.803     Paragraph (1)(c) provides that the jurisdiction vested in the Federal Court or Federal Magistrates Court by a provision of this Act is not subject to any limits which may apply to other jurisdictions of the court.

 

13.804     In relation to a Territory Court, paragraph (1)(d) provides that the jurisdiction vested in the court by a provision of this Act is vested only so far as permitted by the Constitution.

 

Additional jurisdiction of the Federal Magistrates Court

13.805     Subclause (2)  specifies that the Federal Magistrates Court has jurisdiction in matters arising under the WR Act as affected by sections 176 (Unfair contracts with building contractors) and 71 (Enforcement of building awards, agreements and orders) of this Act.

 

Jurisdiction in relation to modified provisions of Workplace Relations Act

13.806     Subclause (3) specifies that where a court has jurisdiction in relation to a matter under a provision of the WR Act and that provision is affected by this Act, then that jurisdiction extends to a matter arising under that WR Act provision as affected by this Act.

 

Writ of mandamus etc. against officers of the Commonwealth

13.807     For the avoidance of doubt, subclause (4) specifies that subsections 412(2), 412(3) and 415(1) of the WR Act extend to matters in which a writ of mandamus or prohibition, or an injunction, is sought against a Commonwealth officer holding officer under the WR Act in relation to the exercise of powers or functions under this Act.

 

13.808     Subclause (5) provides that for the purposes of section 44 of the Judiciary Act 1903 , (which empowers the High Court to remit a matter to a federal court where that court has the relevant jurisdiction ), the Federal Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition, or any injunction, is sought against a Commonwealth officer holding office under this Act.

 

13.809     Subclause (6) provides that the Federal Court has jurisdiction with respect to matters remitted to under section 44 of the Judiciary Act 1903 .

 

Exclusive jurisdiction of Federal Court for certain matters involving organisations etc.

13.810     Subclause (7) is modelled on subsection 414(1) of the WR Act and provides that the Federal Court has exclusive jurisdiction for certain matters involving building organisations.

 

Referral of matters to the Full court of the Federal Court

13.811     Subclause (8) provides that a Judge of the Federal Court may, at any stage of a proceeding in a matter, refer a question of law for the opinion of the Full Court of the Federal Court or refer the matter to the Full Court of the Federal Court to be heard and determined.

 

13.812     Where a Judge refers a matter the Full Court of the Federal Court may have regard to evidence given, or arguments adduced, in the proceeding before the Judge.

 

13.813     Subclause (9) provides that the Federal Court has jurisdiction to deal with the questions referred to it under subclause (8).

 

Clause 253 - Court not to require undertaking as to damages

13.814     This clause provides that a court cannot make undertakings as to damages a condition of granting an interim injunction where the ABC Commissioner is an applicant in proceedings under clauses 67 (injunction against pattern bargaining), 75 (injunction against unlawful industrial action), 134 (AIRC orders to stop or prevent building industrial action) or 227 (penalties for contravention of civil penalty provision).

 

Clause 254 - ABC Commissioner etc. not liable for conduct in good faith

13.815     Subclause (1) provides that anything done or omitted to be done by certain protected persons, as long as it is done in good faith and without negligence, cannot give rise to liability in civil proceedings for loss, damage or injury of any kind.

 

13.816     Subclause (2) specifies protected persons for the purposes of this clause.

 

Clause 255 - Regulations

13.817     The Governor-General may make regulations prescribing matters where this Act requires or permits that matters to be prescribed or where it is necessary or convenient for the matters to be prescribed for carrying out or giving effect to this Act.

 

13.818     Subclause (2) specifies matters for which the regulations may make provision.  



SCHEDULE 1 - STATEMENT ABOUT FREEDOM OF ASSOCIATION

 

1.       Schedule 1 contains the statement about freedom of association which is relevant for the purposes of subclause 51(14) and 58 of the Bill.

 

2.       Subclause 51(14) allows the AIRC to include with a building award the statutory freedom of association statement.

 

3.       Clause 58 prohibits the AIRC from certifying a building agreement unless it contains the statutory freedom of association statement.