Bill would turn tables on construction disputes

Australia’s new coalition government has sought to fulfil its 2013 election commitment to re-establish the Australian Building and Construction Commission (ABCC) by tabling the Building and Construction Industry (Improving Productivity) Bill 2013 in the House of Representatives. Under the bill, the ABCC, which operated from 2005, will replace the Fair Work Building Industry Inspectorate (FWBII). The FWBII supplanted the ABCC in mid-2012. This follows the federal government’s announcement on 17 October 2013 of the appointment of two former heads of the ABCC – Nigel Hadgkiss, as director of the FWBII, and John Lloyd, as chair of the FWBII’s advisory board – to steer the FWBII during the transition.

The bill reinstates various measures that were initially legislated in the Building and Construction Industry Improvement Act 2005 (BCII Act) in response to the Cole Royal Commission, but which were largely abolished by the 2012 FWBI Act. The framework and structure of the new bill largely mirrors the BCII Act and proposes to apply to “building work” and “building industry participants”, which includes contractors, employees and unions.

Here we shall consider the main features of the bill. The implications for employers largely stem from the enhanced powers given to the ABC commissioner to deal with various industrial issues in the building and construction industry, including unlawful industrial action and the newly created statutory unlawful picketing contravention.

The coalition government does not command a majority in the Senate, Australia’s upper house of parliament, and so it is unclear whether the bill will be passed in the Senate, at least until 1 July 2014, when the new Senate sits.

Michael Sheng and David Parker are partners at Ashurst in Shanghai and Perth, respectively