Interesting to hear the commentary from the 2 different sides of politics. Although the Building Code removed the retrospectivity relating to its requirements for Employment Agreement content, there is still real opportunity for major construction projects to maximise the benefit from the intent of the Code immediately by only engaging contractors and suppliers who have current employment agreements consistent with the code requirements. Having an Employment Agreement already in place that is compliant with the code, RPR Trades is certainly looking forward to assisting companies to maximise the benefits from the code’s introduction. I came across this great article from my good friend Theresa Moltoni OAM, founder of IRIQ, who summarises the key points of each of these Acts and what they mean below.
The month of November has seen some major changes in the world of IR. The Registered Organisations Bill was passed, the ABCC was reintroduced and on 2 December the Minister for Employment, Michaelia Cash introduced the Code for the Tendering and Performance of Building Work 2016, the Building Code 2016. The Registered Organisations Bill along with the ABCC Bill was the trigger for the double dissolution in July. Registered Orgs Act On 22 November, the Senate passed the Registered Organisations Bill to establish a dedicated Registered Organisations Commission to regulate unions and employer organisations. The ROC Bill received support from Victorian independent Derryn Hinch and all three members of the Nick Xenophon team. The changes increase protection for whistleblowers, impose higher standards of regulation on union officials and extend investigatory obligations and accountability of auditors. The Government’s commitment entails six parts and will support a parliamentary inquiry into whistleblower laws to ensure that the protections of the ROC Bill will extend across the government and corporate sectors. This legislation is to be introduced into parliament by December next year and, at a minimum, has to support the standards set out in the Bill. A parliamentary vote on the legislation should follow no later than 30 June 2018. Following section 329AB of the Fair Work (Registered Organisations) Amendment Act 2016 the Registered Organisations Commissioner will;
- Promote efficient management of organisations and high standards of accountability of organisations and their office holders, to their members;
- Promote compliance with financial reporting and accountability requirements with the Act;
- Monitor acts and practices to ensure they comply with the provisions of this Act providing for the democratic functioning and control of organisations;
- Perform any other functions as are conferred on the Commissioner by the act; and,
- Do anything incidental to or conducive to the performance of any of the above functions.
The significant changes provided by the Registered Organisations Bill will repeal sections 337C Victimisation prohibited and 337D Right to Compensation and replace these sections with comprehensive protections and remedies for a person who makes a disclosure. This will include:
- An extensive definition of where a person takes a reprisal against another person for making a disclosure. A person who causes any detriment to another because they believe or suspect that the other person may have, proposes to or could make a disclosure that qualified for protection.
- A person will be able to recover civil remedies where the Federal Court or Federal Circuit Court is satisfied that a person has taken or threatened to take a reprisal against a person.
- A person will be ordered to pay costs where they vexatiously bring an application
- A civil penalty of 100 units will apply where a person who takes a reprisal against another person due to their belief or suspicion that a person made, may have made, proposed to make or could make a disclosure that qualifies for protection.
- It will also be a criminal offence if a person takes a reprisal against another person due to their belief or suspicion that a person made, may have made, proposed to make or could make a disclosure that qualifies for protection. This carries a penalty of 2 years’ imprisonment, 120 penalty units, or both.
The ROC Bill also introduces new legislation regarding the investigation of disclosures:
- Where a disclosure is made that qualifies for protection, the person whom the disclosure is made must allocate the disclosure to one or more qualified officials within 14 days.Theauthorised official is then required to investigate the disclosure within 90 days of the allocation; and
- A person will not be subject to any criminal or civil liability where they give information, produce documents or answer a question if they have been requested to do so and it is relevant to the investigation.
This is a substantial and significant change after years of dispute over the protection of sources who blow the whistle on wrongdoing. ABCC Legislation Following the passing the ROC Bill, the ABCC Bill was then passed in the Senate on 30 November, with 36 votes to 33. This legislation re-establishes the Australian Building and Construction Commission to the building industry. However, Malcolm Turnbull has had to make a number of concessions to restore the ABCC. The major concession made is that the Building Code 2016 will not be applied retrospectively or even from the date that the Bill was passed for existing enterprise agreements. The Senate passed an amendment that will see a two-year transition period to allow construction companies to update their enterprise agreements and strike out non-compliant clauses while still tendering for government work. The Code prevents employers agreeing to union claims such as casual, apprentice and labour hire clauses if they want to tender for Commonwealth work and is more restrictive than the existing 2013 Code. As a result of employer’s inability to persuade the CFMEU to exclude non-code compliant clauses that may never come into effect, the CFMEU has signed up more than 1 500 companies to four year agreements that are now in breach of the Code and must be re-negotiated by November 2018. Dave Noonan, the general division National Secretary of the CFMEU has claimed that, “the rights of a million construction workers have been sold down the river by crossbench senators to horse-trade with the Coalition on other issues.” The CFMEU has also made clear that they will be seeking extra pay for workers in exchange for agreeing to remove non-Code compliant clauses. Further amendments to the ABCC legislation passed by the Senate include:
- Builders tendering for government work must provide information on local content and compliance with Australian Standards;
- The establishment of a security of payment working group; and
- The requirement for the ABCC to act in a “reasonable and proportionate manner to each of the categories of building industry participants.” This also requires the ABCC to do additional reporting and uphold the APS values set out in section 10 of the Public Service Act 1999.
These amendments to the Bill were put forward by Senator Hinch, working with Senator Nick Xenophon’s NXT team. Senator Xenophon has explained that these changes maintain the requirement for a presidential member of the AAT to approve the exercise of the ABCC’s coercive powers and notify the Commonwealth Ombudsman of all examinations. Senator Hinch said the changes would make the Commissioner more accountable and unable to “cherry pick in future.” The Commissioner will also be required to enforce the Fair Work Act’s requirements on; wages and entitlements, general protections, discrimination, sham arrangements, industrial action, strike pay and right of entry. This will ensure that the ABCC is obliged to prevent underpayments and dodgy employers and will take the Commission’s focus and resources away from unions. Building Code 2016 The ABCC commenced on 2 December 2016 and Employment Minister, Michaelia Cash subsequently issued a new building code. The Code for the Tendering and Performance of Building Work 2016 (Building Code 2016) which applies to companies who submit an expression of interest or tender for Commonwealth-funded building work from 2 December. As a result, any enterprise agreements made from 2 December 2016 must comply with the Building Code 2016 in order to be eligible and awarded Commonwealth-funded work. The Building Code 2016 sets out the Commonwealth Government’s standards of conduct for all building industry participants that seek to be, or are, involved in Commonwealth funded building work. The purpose of the Code is set out in Section 5 and is to;
- Promote an improved workplace relations framework for building work and promote compliance with the code of practice, theAct and designated building laws and encourage the development of safe, healthy, fair, lawful and productive building sites for the benefit of all building industry participants;
- Assist industry stakeholders to understand the Commonwealth’s expectations of, requirements for, entities that choose to tender for Commonwealth funded building work;
- Increase efficiency and cost savings in the work performed by code covered entities;
- Increase the likelihood of timely, predictable, and cost-efficient delivery of Commonwealth funded building work through the use of building contractors and building industry participants that consistently adhere to the code of practice;
- Help funding entities to identify and work with building contractors and building industry participants with track records of compliance with the code of practice; and
- Reduce execution delays and costs in relation to Commonwealth funded building work by not engaging building contractors and building industry participants with track records of non-compliance.
This code will apply to building contractors, building industry participants and particular building work in a similar way to previous Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry. As a result, entities that choose not to become code compliant will be excluded from being awarded Commonwealth funded building work if they do not comply with, or meet the standards required by the code of practice.