National Workplace Relations – Extensive set of annotations to building and construction legislation, including the:

• Building and Construction Industry (Improving Productivity) Act 2016;

• Building and Construction Industry (Consequential and Transitional Provisions) Act 2016; and

• Code for the Tendering and Performance of Building Work 2016.

by Aaron Neal

BEco, LLB (Hons) (Syd); Solicitor, Supreme Court of New South Wales.

Aaron Neal has extensive experience in workplace relations and employment law, having been an Associate to Justice Marshall of the Federal Court of Australia, a Legal and Policy Officer at the Commonwealth Department of Employment and Workplace Relations, practiced as a barrister at the New South Wales Bar, and worked as an in-house lawyer at a number of unions. He is currently a Senior National Legal Officer at the Maritime Union of Australia, Sydney.

Aaron is a contributing author of the National Workplace Relations subscription service, as well as co-General Editor of the Fair Work Legislation 2015 book.

Key section annotations

Aaron has written entirely new annotations to key building and construction legislation, to address the passage of the Building and Construction Industry (Improving Productivity) Act 2016 (Building Act) and the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Transitional Act) on 30 November 2016 - the Acts having served as a trigger for the 2016 double-dissolution election.

Building and Construction Industry (Improving Productivity) Act 2016

The Building Act commenced on 2 December 2016 and re-establishes the Australian Building and Construction Commission (ABCC), as well as seeking to extend its coverage beyond that of predecessor legislation. It now applies to the transport or supplying of goods to building sites and (in s 6(1)(d)) is extended to “any operation that is part of, or is preparatory to, or is for rendering complete, work covered by” a wide range of building work. A note to s 6(2) provides that the Act extends (for the first time) to any resources platform and to certain ships in the exclusive economic zone or in the waters above the continental shelf.

The legislation also introduces significant new offences (see Ch 5 Unlawful action and Ch 6 Coercion, discrimination and unenforceable agreements) as well as new powers to obtain information (see Ch 7 Powers to obtain information) and enforcement provisions (see Ch 8 Enforcement).

Building and Construction Industry (Consequential and Transitional Provisions) Act 2016

Aaron has also provided new annotations to the Transitional Act which commenced 2 December 2016 and deals with consequential and transitional matters relating to the re-establishment of the ABCC and other matters set out in the Building Act.

The Transitional Act repeals the Fair Work (Building Industry) Act 2012 (FWBI Act) and replaces it with the Building Act. The Transitional Act makes consequential amendments to Commonwealth legislation relevant to the operation of the Building Act, and makes a range of transitional provisions, including changes of names of institutions and offices, preserving the appointments of senior position holders and the employment entitlements of staff of affected organisations, preserving the confidentiality of certain information, legal proceedings, and other related matters.

Code for the Tendering and Performance of Building Work 2016

The passage of this legislation has also seen the Government issue the Code for the Tendering and Performance of Building Work 2016 (Building Code) as a legislative instrument. The Code is reproduced in the National Workplace Relations service with new annotations from Aaron throughout. The Building Code commenced 23 February 2017 and sets out the Government’s standards of conduct for all building industry participants that seek to be, or are, involved in Commonwealth funded building work.

The aim of the Building Code is to promote compliance with the code of practice, the Building Act and designated building laws, to assist industry stakeholders with understanding the Commonwealth’s requirements for entities involved in Commonwealth funded building work, and to establish an enforcement framework.

Significance

These instruments have a significant impact on building and construction industry practices and agreements. The legislation repeals and replaces the FWBI Act, introduces a broader definition of “building work”, and re-establishes the ABCC, extending the ABCC’s jurisdictional and industry sector application. It also restores former provisions of the Building & Construction Industry Improvement Act 2005, with some modifications.

The role of the ABCC is to monitor compliance with relevant laws by the industry, retains its powers to obtain information, take enforcement action where necessary, and promote appropriate standards of conduct. The Act prohibits and introduces harsher penalties for industrial action, and aims to eliminate coercive action. The Federal Government’s media release, from Senator the Hon Michaelia Cash, states that this will “enforce tougher laws and a stronger Building Code.”