The New ABCC Legislation
The Building and Construction Industry (Improving Productivity) Bill 2013 (commonly referred to as the “Australian Building and Constructions Commission legislation” or “ABCC legislation”) was one of the triggers for the double dissolution election held in Australia in July 2016.
Having won the election, the Coalition Government re-introduced the Bill for debate in late 2016. The legislation (incorporating various amendments) was ultimately passed by both Houses and given Assent on 1 December 2016, becoming the Building and Construction Industry (Improving Productivity) Act 2016 (“the Act” or “the legislation”).
What is the Purpose of the ABCC Act?
In the Second Reading speech in the Senate, Minister Fierravanti-Wells said that the legislation “will re-establish the Australian Building and Construction Commission (ABCC) to ensure the rule of law prevails on building sites across the country” and further that the main object of the legislation “is to provide an improved workplace relations framework to ensure that construction work is carried out fairly, efficiently and productively…”.
One main purpose of the legislation is to create a body known as the Australian Building and Construction Commission (“ABCC”), that is headed by the Australian Building and Construction Commissioner (assisted by various .deputy Commissioners and other staff). The ABCC has various roles and powers, established by the legislation and these are discussed briefly below.
Other significant purposes of the ABCC legislation include:
- establishing a code of practice (known as “the Building Code”) for the performance of construction work on government-funded projects;
- requiring any party that is to carry out government-funded construction work to be accredited by the (newly created) Federal Safety Commissioner;
- setting out what is “unlawful” industrial action; and
- creating a right for any party affected by unlawful industrial action to seek a remedy in court (in particular the right to seek an injunction preventing unlawful industrial action).
What are the Main Functions and Powers of the ABCC?
Section 16 of the Act sets out the functions of the ABCC, most notably:
- monitoring and promoting appropriate standards of conduct by building industry participants;
- ensuring building employers and building contractors comply with their obligations under this Act, certain other laws and the Building Code;
- investigating suspected contraventions of the ABCC legislation and other laws (including the Independent Contractor’s Act and the Fair Work Act);
- instituting, or intervening in, certain proceedings; and
- providing representation to certain parties in certain legal proceedings.
The Act also gives far-reaching powers to the ABCC to gather information during the performance of its investigative functions. Of particular interest is the power given to the ABCC (under sections 61A to 61F of the Act) to apply for an “examination notice” to be issued and the consequence of non-compliance with such a notice. In summary:
- The ABC Commissioner may apply to have an examination notice issued on a person if the ABC Commissioner believes on reasonable grounds that the person:
a)has information or documents relevant to an investigation by an inspector into a suspected contravention, by a building industry participant, of this Act or a designated building law; or
b)is capable of giving evidence that is relevant to such an investigation.
- The examination notice may require the person:
a)to give information to the ABC Commissioner; or
b)to produce documents to the ABC Commissioner; or
c)to attend before the ABC Commissioner and answer questions relevant to the investigation.
- Section 62 of the Act makes failure to comply with an examination notice a criminal offence, with a maximum penalty of 30 penalty units and/or imprisonment for 6 months.
Plainly the legislation is intended to provide broad powers to the ABCC, particularly in relation to investigations of various matters, and creates potentially serious consequences for any party that does not cooperate with the ABCC’s investigations when formally requested to do so.
The full impact of this legislation is yet to be understood and we will provide updates from time to time as the role and functions of the ABCC begin to be tested in practice.
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