The workplace relations framework for the building and construction industry established under the BCIIP Act fails workers. The ABCC continues to target unions and union officials whilst critical issues such as poor work health and safety, poor compliance with wages and entitlements obligations, subcontractors not being paid for work performed, and misclassification and sham contracting continue to plague the industry. The ABCC is not performing its full service regulator function – yet another example of Australia’s workplace laws failing to meet international labour law standards. Concerns remain around the role of the Commissioner being performed in a partial and political manner. The Building Code imposes special rules on bargaining that are damaging for workers, particularly in respect of issues such as job security, engagement of apprentices, work health and safety and worker participation in decision making about matters that affect their working lives. For all of these reasons and many more, the Australian union movement rejects the legitimacy of the BCIIP Act in its entirety.
In terms of the specific issues raised by the terms of reference for this review, we note:
1) The ABCC is not performing its full service regulator function. The ABCC continued to target unions and union officials and to fail to adequately enforce wages and entitlements obligations or deal with misclassification and sham contracting. Concerns remain about the role of the Commissioner being performed in a partial and political manner. The legislative amendments designed to address these issues have not been effective. In addition, the quarterly reporting requirements need to be strengthened to require detailed, timely reporting that enables a proper assessment of the ABCC and the Commissioner’s performance as a full service regulator and its performance in monitoring and enforcing compliance with the Building Code.
2) The oversight of the compulsory examination powers does not allow real time oversight with the ability to correct problems as they arise (rather than making unenforceable recommendations after the fact). It would be preferable if these powers were abolished and replaced with the usual discovery and subpoena powers supervised by the courts. In the interim, the Ombudsman reports should be more easily accessible via the ABCC’s website and be required to be published in a timely fashion.
3) In terms of the effectiveness of the penalties regime, the ACTU again refers the review to the disturbing rates of non-compliance with wages and entitlement obligations in the industry and, in particular, the industry’s ongoing appalling safety record.
4) There needs to be a wholesale review of the Building Code and its interaction with other laws. In the meantime, at the very least:
a) Clauses 11(1) and 11(3) of the Building Code ought to be repealed, to ensure consistency with the Fair Work Act and Australia’s international obligations and to promote genuine bargaining.
b) The Note to clause 11F of the Building Code needs to be amended to clarify the relationship between the Building Code and the Migration Act; that is, to clarify that employers must comply with the requirements in cause 11F in addition to any requirements in the Migration Act.
c) The ABCC needs to adopt a proactive role in monitoring and enforcing compliance with clause 9(3) of the Building Code and its reporting obligations need to be strengthened to enable a proper assessment of its performance of this function.
d) Clause 13 of the Building Code ought to be repealed, to ensure consistency with Australia’s international obligations.
5) In terms of the operation of new provisions, including the Federal Safety Commissioner’s new audit functions:
a) The potential effectiveness of the security of payments provisions has been significantly limited by the ABCC’s interpretation of the term ‘disputed or delayed progress payment’.
b) Clauses 11(1) and 11(3) of the Building Code hinders the engagement of apprentices. The ABCC’s reporting requirements need to be strengthened to enable a proper assessment of its performance in promoting the engagement of apprentices.
c) The office of the Federal Safety Commissioner needs to be adequately resourced to carry out its new functions. An effective penalties regime for non-compliance with the National Construction Code ought to be introduced, such as revocation of accreditation or a ban from tendering for Commonwealth funded construction work and substantial financial penalties.