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2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for Employment and
Workplace Relations, the Honourable Kevin Andrews MP)
BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT BILL 2003
OUTLINE
The Building and Construction Industry
Improvement Bill (the Bill) is the Government’s legislative response to
the workplace relations recommendations of the Royal Commission into the
Building and Construction Industry. The Royal Commission’s report was
tabled in the Parliament on 26 and 27 March 2003.
The legislation
will:
• establish the Australian Building and Construction Commissioner (ABC Commissioner) and the Federal Safety Commissioner;
• improve the bargaining framework by focussing on genuine bargaining at the enterprise level, restricting pattern bargaining and providing for mandatory ‘cooling off’ periods during which protected industrial action is not permitted;
• make unlawful all industrial action within constitutional limits, other than protected industrial action, with industry participants able to recover any losses they suffer due to unlawful action;
• strengthen freedom of association provisions so that a wider range of inappropriate behaviour identified by the Royal Commission is effectively dealt with;
• enhance the right of entry system to clearly spell out parties’ rights and responsibilities, and limit scope for State law to be used to circumvent Federal requirements;
• ensure that registered organisations are accountable for the actions of their officials and employees; and
• improve the compliance regime, by
increasing penalties and enhancing access to damages for unlawful
conduct.
The Bill is made up of 13 Chapters.
Chapter 1
contains the objects of the Act. The main object of the Act is to provide an
improved workplace relations framework for building work to ensure that building
work is carried out fairly, efficiently and productively for the benefit of all
building industry participants and for the benefit of the Australian economy as
a whole. The Chapter also contains definitions and machinery
provisions.
Chapter 2 is the Government’s response to the
Royal Commission’s recommendation to establish a regulatory body for the
building and construction industry. The body is to be headed by the ABC
Commissioner and will have wide ranging powers to monitor, investigate and
enforce Federal workplace relations law and the Building Code, and refer other
matters to the appropriate Federal, State or Territory agency.
Chapter
3 allows the Minister to issue a Building Code. This goes towards
implementing the Royal Commission’s recommendations that the Commonwealth
use its purchasing powers as a building client to foster cultural change in the
building and construction industry. The Chapter also sets out obligations to
report on Building Code compliance.
Chapter 4 is the
Government’s response to the Royal Commission’s recommendations
concerning Occupational Health and Safety (OHS). The Chapter establishes the
Federal Safety Commissioner, and provides for the establishment of an OHS
accreditation scheme to be administered by the Federal Safety Commissioner. The
accreditation scheme will ensure that any person wishing to contract with the
Commonwealth for building work must meet certain OHS standards. Chapter 4 also
contains provisions dealing with the process to be followed in cases where
employees stop work due to OHS concerns. The new provisions will ensure that
employees who abide by the proper processes will be entitled to be paid while
addressing the Royal Commission’s concern about misuse of OHS for
industrial purposes.
Chapter 5 contains provisions relating to
awards and certified agreements in the building industry as well as other
provisions about employment conditions. This Chapter is the Government’s
response to recommendations of the Royal Commission to simplify awards and
impose some additional requirements for making certified agreements in the
building and construction industry. In addition to the Royal Commission
proposals, the Bill also provides for the further simplification of awards, in
line with the Government’s broader award simplification agenda. Due to
the complexity of awards in this industry, further award simplification is a
vital and urgent area of reform.
The Chapter also implements Royal
Commission recommendations in relation to pattern bargaining by:
• making it clear that pattern bargaining is not genuine bargaining;
• providing that the ABC Commissioner or any other person can seek an injunction to stop pattern bargaining conduct;
• providing an opportunity for employees to vote on whether they wish to be represented by a union in agreement negotiations;
• rendering project agreements not
certified under the Workplace Relations Act (WR Act)
unenforceable.
Chapter 6 is the Government’s response
to the Royal Commission’s recommendations in relation to industrial
action. It makes certain forms of industrial action unlawful and provides
improved access to sanctions against unlawful industrial action in the form of
injunctions, pecuniary penalties and compensation for loss.
Employers
will be required to notify the ABC Commissioner of threatened or actual
industrial action and of the cessation of unlawful industrial action. It
provides additional requirements for accessing protected industrial action for
single business agreements including:
• mandatory cooling-off periods after 14 days of industrial action; and
• a requirement for a secret ballot of
employees to approve industrial action.
Consistent with the Royal
Commission’s recommendation that a new “statutory norm” of
industrial action be established to bring greater clarity to the regulation of
industrial action, these provisions, subject to constitutional limitations,
apply broadly within the building and construction industry.
Chapter
7 is the Government’s response to the Royal Commission’s
recommendations to improve freedom of association in the building and
construction industry. The Royal Commission found that the objects of Part XA of
the WR Act are being thwarted in the building and construction industry and that
the principles of freedom of association are being undermined. The Chapter
enhances the freedom of association legislative regime in the building and
construction industry by:
• providing a number of general prohibitions that apply to all building industry participants to deal with what the Royal Commission found to be the most common forms of inappropriate conduct;
• making improvements to various existing freedom of association provisions, particularly in relation to enhanced protection for independent contractors and their employees; and
• providing greater penalties for
contravention of the freedom of association provisions.
Consistent
with the Royal Commission’s recommendations, the freedom of association
provisions, subject to constitutional limitations, apply broadly within the
building and construction industry.
Chapter 8 is consistent with
recommendations of the Royal Commission designed to eliminate coercion and
discrimination in the industry. It prohibits the coercion of persons in
relation to the engagement of subcontractors and employees and coercion or undue
pressure in relation to certified agreements or choice of superannuation fund.
Discrimination on the basis of the type of, or parties to, an industrial
instrument covering a person’s employees is also
prohibited.
Chapter 9 is the Government’s response to the
recommendations of the Royal Commission relating to right of entry. The Royal
Commission considered improving compliance with right of entry provisions to be
a key reform priority. This Chapter:
• strengthens the provisions for dealing with the issue, suspension and revocation of right of entry permits;
• imposes a “fit and proper person” requirement for union officials seeking a right of entry permit;
• more clearly sets out the rights and obligations of union officials, employers and occupiers of premises;
• empowers the Australian Industrial Relations Commission (AIRC) to deal with abuses of the right of entry system; and
• imposes greater penalties for
contravention of the right of entry provisions.
Consistent with
the Royal Commission’s recommendations, the right of entry provisions,
subject to constitutional limitations, apply broadly within the building and
construction industry. However, the new right of entry regime does not impinge
upon any right of entry provided for under occupational health and safety
legislation.
Chapter 10 is the Government’s response to the
Royal Commission’s recommendation to further enhance the accountability of
registered building organisations. The measures provided for in the Chapter
include:
• the availability of court orders to deal with transactions entered into by organisations, where the effect is, or might be, to put income or assets beyond the reach of creditors;
• improved financial accountability of organisations, including disclosing particulars of specified donations and complying with enhanced financial reporting requirements;
• providing for the deregistration of an organisation for failure to pay a judgment debt; and
• the disqualification of organisation
officials in specified circumstances.
Chapter 11 is
consistent with the Royal Commission’s recommendations in relation to
demarcation disputes. The measures provided for in the Chapter include:
• extending the right to apply for representation orders to the ABC Commissioner and any person who may be adversely affected by a demarcation dispute; and
• providing that persons who suffer loss by
reason of a contravention of a representation order are entitled to bring
proceedings to recover a civil penalty.
Chapter 12 is
divided into 2 parts. This Chapter is the Government’s response to the
Royal Commission’s recommendations to enhance compliance with relevant
laws in the building and construction industry, including by providing an
appropriate investigatory and enforcement regime.
Part 1 sets out
penalties for contravention of civil penalty provisions, orders that a court may
make, and who may apply for these orders.
The measures in Part 1
include:
• giving the ABC Commissioner standing to bring proceedings for contraventions of civil penalty provisions; and
• introducing a two-tier civil penalty
regime – the first tier which deals with more serious contraventions
provides for a maximum penalty of 1000 penalty units for a body corporate (200
penalty units in other cases); the second tier, which deals with less serious
contraventions provides for a maximum penalty of 100 penalty units for a body
corporate (20 penalty units in other cases).
Part 2 sets out the
compliance powers of the ABC Commissioner, Australian Building and Construction
Inspectors (ABC Inspectors) and Federal Safety Officers.
Chapter
13 deals with miscellaneous matters, including the following matters
recommended by the Royal Commission:
• making organisations responsible for the conduct of their officials, employees and members, unless they take reasonable steps to prevent such conduct;
• the protection and dissemination to other agencies of confidential information;
• the power of the ABC Commissioner to intervene in court and Commission proceedings;
• jurisdiction of courts, particularly in relation to unlawful industrial action; and
• protection against liability of officials
for conduct in good faith.
FINANCIAL IMPACT
STATEMENT
Australian Building and Construction Commissioner and
Federal Safety Commissioner
The Commonwealth will incur costs in
establishing the agency to be headed by the Australian Building and Construction
Commissioner and support for the role of the Federal Safety Commissioner.
Proper and adequate funding will be provided for these functions. An
appropriation of $5 million has been made to cover initial establishment costs.
Secret Ballots
The requirement for protected action to be
preceded by a secret ballot will involve costs for the Commonwealth. The
Commonwealth will be liable for 80 per cent of the reasonable costs incurred in
holding such ballots.
Other
The Bill will confer
additional jurisdiction on federal courts, the Australian Industrial Relations
Commission and The Australian Industrial Registry.
REGULATION IMPACT STATEMENT
BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT BILL 2003
Overview
This Bill marks the final phase of the Government’s response to the workplace relations recommendations from the Royal Commission into the Building and Construction Industry (the Royal Commission). The Royal Commission’s recommendations have formed the basis of the Government’s proposed reforms. During the second phase, the Government has consulted with industry participants – unions, peak employer associations, contractors, employees and small business as well as the general public and State and Territory governments to seek their views on the proposed reforms. The third phase has been the development of the Building and Construction Industry Improvement Bill 2003 (the BCIIB) which addresses 120 of the Royal Commission’s 212 recommendations. The Government is taking steps to address separately the other recommendations concerning tax evasion, phoenix companies and non-payment of workers’ entitlements. In some cases the Australian Government has already introduced legislation that addresses these matters.
Current Situation
1. Participants in the building and construction industry are currently regulated in the same manner and to the same extent as all other industries covered by the Workplace Relations Act 1996 (the WR Act). Employees and employers are subject to a range of obligations imposed by the WR Act and by awards and agreements made under it. The WR Act has been amended on a number of occasions since 1996 to improve its operation.
2. This regulation impact statement outlines measures included in the BCIIB. The BCIIB measures described below, in conjunction with other recommended measures, will effect structural and cultural change in the building and construction industry.
Problem
3. The Royal Commission was established to conduct inquiries into the unlawful or otherwise inappropriate practice and conduct in the building and construction industry.
4. The Royal Commission’s inquiry was focussed on the commercial building and construction industry which includes non-residential building and engineering construction sectors and is worth $40 billion. The Royal Commission found an industry characterised by a widespread disregard for the law and an unacceptable record in terms of compliance with occupational health and safety (OHS) regulation. The Royal Commission also identified significant weakness in current structures for enforcing the law in this industry.
5. The final report of the Royal Commission provides compelling evidence of the need for reform in this industry. It catalogues over 100 types of unlawful and inappropriate conduct. The findings demonstrate “an industry which departs from the standards of commercial and industrial conduct exhibited in the rest of the Australian economy. They mark the industry as singular. The findings indicate an urgent need for structural and cultural reform.” (Vol 3 P5.11).
6. The industry’s lawlessness is manifested as criminal conduct, unlawful conduct, including breaches of the WR Act and OHS legislation, and a disregard for revenue statutes. The report concludes that at the root of this lawlessness is a reality that “those engaging in unlawful conduct will not be held to account by criminal proceedings, proceedings for penalties or for loss occasioned to others by unlawful conduct.” (Vol 3 P5.12). The Royal Commission portrayed an environment where the behaviours and conduct of the parties maintain a culture that tolerates lawlessness.
7. Existing regulatory bodies have insufficient powers and resources to enforce the law in this industry. The Royal Commission found that currently there is no Australian Government agency that provides complete and effective regulatory coverage of the building and construction industry: some existing Australian Government authorities, such as the OEA, lack the resources and powers to sufficiently enforce regulation in the industry; whereas, some organisations such as the police forces consider ‘industrial matters’ to be outside the scope of their responsibility. Further, current penalties are insufficient to discourage unlawful behaviour.
8. The Interim Building Industry Taskforce (the Taskforce) was established following a recommendation in the first report of the Royal Commission to reinforce the Government’s zero tolerance of industrial law breaking throughout the industry. Since it commenced operations on 1 October 2002, the Taskforce has received, as at 9 October 2003, almost 1040 complaints, has visited sites in all States and Territories (1222 sites visits in total) and in addition to the matters arising from the Royal Commission that are being assessed, the Taskforce currently has 56 active investigations underway and 8 matters before the court. However, the Taskforce also lacks the resources and powers to police unlawful and inappropriate conduct in the industry.
9. The current workplace relations system places the onus on the parties to comply and to a large extent, enforce the law against each other. However, the different focus of the building and construction industry participants, combined with ineffective regulatory bodies, has resulted in a culture of lawlessness that permeates the industry.
10. Inappropriate conduct is defined by the Royal Commissioner as behaviour that infringes the WR Act, a person’s right of choice and other conduct which departs from recognised norms of civility and behaviour. The Royal Commission concluded that there is a conflict between the short-term project profitability focus of building contractors and clients on the one hand, and the long-term aspirations of the union movement to control and regulate the industry for the benefits of its members. The short-term focus driven by profitability means that quick-fix commercial expediency can supplant insistence on legal rights, adherence to ethical and legal norms and the pursuit of legal remedies. This inequality of bargaining power is sometimes exploited, resulting in high levels of unlawful or inappropriate conduct.
11. The industry has a pivotal role in underpinning a modern and competitive economy. The pervading lawlessness of the industry results in serious inefficiencies and costs. The building and construction sector contributes around 5 per cent to GDP annually. A Tasman Economics report to the Royal Commission found if productivity in the building industry matched market sector productivity growth, the accumulated gain to real GDP for the period 2003 to 2010 would be in the order of $12 billion.
12. All industries will benefit from an efficient commercial building industry. Econtech found the Australian economy could gain significantly if workplace practice in the construction sector could match the standards in the domestic housing building sector – the Consumer Price Index would be 1 per cent lower, there would be an annual gain in economic welfare of $2.3 billion and real GDP would be 1.1 per cent higher.
13. Small businesses are an essential element of the industry, representing almost 99 per cent of the entire industry and are the most exposed to the impact of lawlessness.
Objective
14. In considering its response to the findings and recommendations of the Royal Commission, the Government’s primary aim is to restore the rule of law in the building and construction industry. The Government is also seeking to improve the productivity of the industry.
Options
1) Maintaining the status quo
15. This approach would allow participants within a significant Australian industry to continue to disregard the current regulatory framework and OHS performance would remain unacceptable. This would be compounded by the absence of any entity with sufficient legislative powers to enforce the law within the industry.
2) The Government’s reform proposal
16. The reform proposal will strengthen elements of the WR Act which have been shown by the Royal Commission to be ineffective in the building and construction industry while maintaining the relevance of the WR Act for the overall regulation of the industry. The BCIIB focuses attention on the areas that were identified by the Royal Commission as requiring reform, and highlights to the industry the significance of the changes being made.
17. The BCIIB will give effect to the Royal Commission’s recommendations by:
(a) establishing an independent enforcement body;
(b) establishing a body to encourage improvement in OHS performance;
(c) improving the bargaining framework by focussing on genuine bargaining at the enterprise level, restricting pattern bargaining and providing for mandatory ‘cooling off’ periods during which protected industrial action is not permitted;
(d) further simplifying awards;
(e) making unlawful industrial action, other than protected industrial action, with industry participants able to recover any losses they suffer due to unlawful action;
(f) strengthening freedom of association (FoA) so that the wider range of inappropriate behaviour identified by the Royal Commission will be effectively dealt with;
(g) enhancing the right of entry (RoE) system to clearly spell out parties’ rights and responsibilities, and limiting scope for State law to be used to circumvent federal requirements;
(h) improving the accountability of registered organisations, including for the actions of their officials and employees; and
(i) improving the compliance regime, by increasing penalties and enhancing access to damages for unlawful conduct.
Impact Analysis
General impact of the reform proposal
1. In general terms, there is only limited additional regulatory burden imposed by the reform proposal. The scope of the BCIIB reflects the need to capture the full range of unlawful and inappropriate conduct identified by the Royal Commission. The provisions of the BCIIB will apply to employees, contractors, employers, employer organisations and unions in the commercial sector of the building and construction industry. Although the scope and definitions of the BCIIB have been developed to cover the commercial sector, there will be businesses whose operations are not limited to the commercial construction sector that will in some cases also be covered by aspects of the new laws. This will ensure that all inappropriate conduct is caught.
2. There are additional reporting requirements for industry participants, including sanctions and penalties imposed through enhanced enforcement machinery for those who break the law by not meeting those reporting requirements.
3. Additional regulatory burden for industry participants operating within the law is focussed on the areas of improved bargaining frameworks; simplified awards; a strengthened FoA regime; and an enhanced RoE system. Those wishing to contract for Commonwealth construction work will need to meet the requirements of an OHS accreditation scheme.
4. The impact of these proposals is discussed below in more detail.
Economy wide impacts
5. The impact of the Government’s reform proposal on the economy as a whole is likely to be significant. In general terms the reform proposals may allow the full potential of the building and construction industry to be realised by curbing unlawful behaviour and addressing inappropriate conduct and practices. According to Access Economics, activity in all sectors of the building and construction industry, including engineering and non-residential building, is forecast to increase by over 16 per cent during the period to 2006.
6. Economic modelling undertaken by Tasman Economics for the Royal Commission shows that if productivity growth in the building and construction sector matched the average for the market sector by 2010, the accumulated gain in real GDP would be about $12 billion. All industries would benefit from an increase in output as a result of the reduction in costs to the building and construction industry.
7. A review of the Tasman work concluded that “... an increase in labour productivity has a substantial and beneficial impact on the international competitiveness of, and incentives to invest in, most sectors of the economy...An increase in labour costs, without a commensurate increase in productivity, raises capital costs and therefore reduces future investment in Australia relative to the rest of the world.” (Vol 3 P52.8) These benefits are likely to flow on to consumers more broadly.
8. The likely gains experienced within the economy overall will also be experienced by the small business participants in the industry. Small business, in the form of sub-contractors, comprises, in raw number terms, approximately 99 per cent of firms in this industry. Given the composition of the industry, the Royal Commission noted that small business are the most exposed to the impact of lawlessness and pressure from the unions (Vol1 P12.30) so are likely to benefit disproportionately from the reforms. However, it is difficult to accurately quantify the impact likely to be experienced by small business against each of the specific proposals outlined below.
Impact analysis of specific proposals to be implemented under the BCIIB
Proposal:
Australian Building and Construction Commissioner (ABC Commissioner)
9. The Royal Commission recommended, and the Government has agreed, to the establishment of a new independent body with a range of functions and powers, broadly covering investigation, enforcement and prosecution in the building and construction industry.
10. The ABC Commissioner will head a new agency, responsible for enforcing federal workplace relations laws on building sites. It will operate as a ‘one-stop shop’ for the building and construction industry by either dealing with matters itself or referring them to relevant agencies for action.
11. The main benefits of the ABC Commissioner will be to ensure structural and cultural reform in the industry, principally by taking action to address unlawful conduct in the industry. The ABC Commissioner will work with industry participants to ensure they understand their rights and obligations under the law, the consequences of breaching the law and the benefits of abiding by the law.
12. The ABC Commissioner will improve current arrangements by being able to act promptly on unlawful industrial action and strategically intervene on behalf of parties to provide cost effective relief when the federal workplace relations laws have been breached.
13. The ABC Commissioner will operate across the country in urban, rural and remote areas. The structural environment that the ABC Commissioner will operate in includes accessing over 400 Commonwealth construction sites, nearly 200 CBD sites and several hundred regional sites. The ABC Commissioner may direct ABC Inspectors to target construction sites that are at the greatest risk of industrial action by increasing the number of visits to such sites during the life of a project.
14. The ABC Commissioner will initially have offices in Melbourne, Sydney, Perth and Brisbane. These key offices will also service the Northern Territory, South Australia, Tasmania and the Australian Capital Territory and may include a presence on large regional projects.
15. The ABC Commissioner’s functions and powers will be regulated by the BCIIB to provide complete and effective regulatory coverage of workplace relations issues in the building and construction industry. The BCIIB provides specific statutory powers for the ABC Commissioner, appropriate investigatory, compliance and enforcement powers, including the appointment of ABC Inspectors. The ABC Inspectors’ powers are similar to those currently provided to inspectors under the WR Act.
16. Parties taking unlawful industrial action will be accountable for their actions and the ABC Commissioner will be able to assist those affected, to obtain appropriate remedies. To assist n performing this role, the BCIIB requires the ABC Commissioner to be:
• notified by an employer within 72 hours where employees engage in or threaten to engage in industrial action, or OHS action;
• notified by an employer within 72 hours of claims for strike pay or payments made in relation to OHS action;
• notified by an employer within 14 days after becoming aware that unlawful industrial action taken by the employees has ceased;
• provided (on request) with statements and supporting documentation about the quantum of loss or damage incurred or likely to be incurred as a result of industrial action;
• notified of any demand for a donation to a registered organisation exceeding $500 within 30 days of the request being made.
• (as per the regulations) served with applications to any court under the Bill.
Impact:
17. The impact of the ABC Commissioner on all industry participants will be significant, as it will be a body which will have the power to deal with the lawlessness which was found by the Royal Commission to be endemic in the industry.
18. The ABC Commissioner will be able to act even-handedly to protect the public interest in situations in which, at the present, limited or no attempt is made to enforce the compliance with the law. This may involve legal action but the effect of the Commissioner’s educative role and the presence of ABC Inspectors on building sites in addressing the current cultural and structural deficiencies will be important.
19. Employers will benefit from the establishment of a ‘one-stop shop’ for the building and construction industry. It will make it easier, for small business in particular, to access information and to find the appropriate regulatory body to handle matters, regardless of location or jurisdiction issues.
20. Employers will also benefit from the ABC Commissioner being sufficiently resourced to provide effective regulatory coverage, as current regulatory bodies such as the OEA, lack the resources and powers to sufficiently police the industry.
21. All industry participants will benefit from the ABC Commissioner’s role in providing information in respect of the BCIIB, the WR Act, the National Code and other issues affecting the industry. Benefits will flow to unions, employees, subcontractors and head contractors as their understanding of their rights and obligations under the law, the consequences of breaching the law and the benefits of abiding the law, are explained and promoted by the ABC Commissioner.
22. Employers, particularly small business, will benefit from the introduction of effective sanctions and an enforcement body with the powers and resources to act, as combined it should reduce, and eliminate illegal and inappropriate behaviour by all industry participants.
23. In order to ensure compliance with relevant laws – the ABC Commissioner needs to be informed about potentially unlawful conduct. Despite the administrative burden associated with notification of matters to the ABC Commissioner, those affected by unlawful industrial action will benefit through improved access to damages to which they are entitled.
24. The Australian Government will ensure that the ABC Commissioner is appropriately resourced and funding for it will be determined in the next federal budget.
Proposal:
Federal Safety Commissioner (FSC)
25. The Royal Commission found that the OHS performance of the building and construction industry is unacceptable. The construction industry ranks in the top four of all industries for the number of fatalities in the workplace as well as ranking in the top five for incidence of workplace injuries. Average workers compensation premium rates for the construction industry at 4.9 per cent of payroll are the second highest for all industry classifications and well above the national average for all industries in 2001/02 of 2.5 per cent.
26. To address this, and taking into account the Commonwealth’s limited jurisdiction on OHS matters, the Royal Commission recommended, and the Government has accepted, that the Commonwealth foster a new paradigm where work must be performed safely as well as on budget and on time and use its influence as a client and provider of capital in acting as a ‘model client’.
27. To achieve this, the Royal Commission recommended that the Commonwealth establish an independent Office of the Commissioner for Occupational Health and Safety in the Building and Construction Industry – to be known as the Federal Safety Commissioner (FSC).
28. The FSC will promote and enhance OHS in the industry, primarily by promoting better OHS performance on Commonwealth funded construction projects through:
(a) an OHS accreditation scheme for persons wishing to contract with the Australian Government to perform building work (OHS accreditation scheme); persons tendering that meet the OHS standards of the accreditation scheme will be able to be selected for work on Australian Government projects;
(b) the FSC will also monitor compliance with the OHS aspects of the National Code; and
(c) promoting the use of safer design.
46. It is understood that most, if not all States and Territories have prequalification schemes and that they are not harmonised. In developing the Commonwealth scheme, regard will be had to existing State and Territory prequalification requirements relevant to OHS, noting the separate and distinct emphasis on OHS under the proposed Commonwealth arrangements. There may be scope for mutual recognition, recognising the intention to lift OHS performance standards over time, an objective common to some other jurisdictions.
Impact:
47. Poor OHS is a significant problem in the industry and the Australian Government intends to act as a model client, including in relation to OHS on its projects, to improve performance. Businesses with experience of prequalification schemes are likely to be well equipped to address the requirements of the Commonwealth scheme.
48. The accreditation scheme is an additional administrative and regulatory burden on contractors and sub-contractors tendering for Australian Government work. However:
• those with experience of State accreditation systems will be well equipped to address the requirements of the Commonwealth scheme;
• accreditation is voluntary;
• contractors are already obliged to meet significant obligations in respect of OHS management systems that currently exists in State/Territory legislation, the schemes will focus on complimentary management; and
• it will result in improved OHS and safe design.
49. The Productivity Commission in its 1995 Report found that the average cost of a workplace incident was $27 000. The community overall will benefit from the proposal through improved occupational safety in the industry and the potentially reduced costs as a consequence. Employees will benefit through improved OHS and the resulting reduction in work related injury and death rates. Construction employers will also benefit from reduced worker’s compensation premiums through improved OHS performance.
Proposal:
Bargaining, agreement making and protected industrial action
50. The BCIIB will encourage genuine bargaining at the enterprise level. Agreements will generally no longer be permitted to include retrospective pay rises.
51. The Royal Commission found that there is widespread use of pattern bargaining – broadly defined as the seeking of identical agreements across an industry – in the building and construction industry. As of 30 June 2003, 66 per cent of all registered construction agreements with wage provisions were identified as pattern or 'mirror' agreements, covering over 48 800 employees. (Agreement making under the Workplace Relations Act 1996, 2000 and 2001).
52. Pattern agreements result in some enterprises paying wage increases for minimal, if any, improvement in productivity. The Housing Industry Association estimates that under pattern agreements the cost of employees can be 30 per cent or more higher than that of employees being paid under Award rates (Vol 12, p.119). Pattern bargaining entrenches the existing culture by reinforcing a mandated uniform approach, which does not allow for innovation and change, and does not enable the industry to realise its productivity potential. Under the BCIIB, access to pattern bargaining will be severely limited. The ABC Commissioner, or any other person, will be able to seek an injunction to stop pattern bargaining.
53. The Royal Commission found that over the last six years, the level of industrial disputation in the building and construction industry has been at least twice and sometimes five times the national average. The effect of lost time has a significant impact on continuity of work and thus the productivity on the affected project. The indirect effects are likely to be the most significant. Industrial action can affect the reputation of a particular State or of Australia as a good place to invest. The existing legal framework does not adequately address the problem, with employers finding the remedies available to be cumbersome, slow and costly to pursue. Unions understand the practical delays any employer faces in seeking to challenge their actions in tribunals or courts and know that by adopting tactics such as short strikes they can damage the employer commercially without risking legal repercussions. The BCIIB seeks to address these issues.
54. Currently, workers are rarely consulted at the enterprise level before protected industrial action is taken. This is despite industrial action causing them to lose wages and other benefits. The BCIIB will give workers the opportunity to vote on whether or not to take protected action, with a majority vote in favour of such action being a precondition to industrial action being protected. Industrial action would be authorised by a ballot if at least 40 per cent of eligible voters participated in the ballot and if more than 50 per cent of the votes cast are in favour of the proposed industrial action.
Impact:
55. The restriction on retrospective pay rises in certified agreements is being implemented as part of a package to prohibit pattern bargaining as recommended by the Royal Commission and its impact cannot be assessed in isolation of other pattern bargaining measures in the BCIIB. Generally it is considered that the restriction should reduce administrative costs for employers as reaching agreement should be quicker and pay increases cannot be backdated. The proposal is likely to discourage unions from causing unreasonable delays in bargaining processes.
56. Given the prevalence of pattern bargaining in the construction industry employers and employees will be the likely beneficiaries of the restrictions on pattern bargaining as agreement making will be focussed at the enterprise level and agreements will be tailored to meet specific business and individual needs of employees. Allowing agreements to be made as part of an industry wide campaign can restrict the productivity improvements that can flow from such discussions. Such campaigns have been shown to increase widespread industrial action, which has adverse economic impacts on the economy as a whole and the productivity of individual enterprises.
57. The proposal requiring a secret ballot for protected industrial action will benefit employees as they will be able to exercise a choice regarding the taking of protected industrial action. This may result in less industrial action. A reduction in industrial action would increase productivity and is likely to have flow on benefits for allied industries.
58. The secret ballot provision will result in a greater administrative burden for unions or any employee who is a negotiating party to the proposed agreement, or a group of such employees acting jointly. However, up to 80 per cent of the cost will be provided by the Australian Government to offset the costs of holding a ballot, providing the applicant follows certain steps.
Proposal:
Award Simplification
59. The Royal Commission found that the National Building and Construction Industry Award 2000 currently contains 41 special rates and 21 allowances and contains complicated provisions in relation to rostered days off, overtime and special time, shift work and weekend work which is confusing for both employers and employees.
60. The main features of the award simplification provisions in the BCIIB are:
• the Australian Industrial Relations Commission (AIRC) to consider the desirability of reducing and simplifying the number of allowances when conducting the review of allowances provisions of building awards;
• the scope of some existing allowable matters will be tightened;
• the Royal Commission’s recommendation that excessive overtime be able to be addressed in awards is provided for in the BCIIB, by allowing the AIRC to include in an award the maximum number of hours per week that an employee can be required to work. The Royal Commission commented that excessive working hours has implications for productivity, quality of life and most importantly long hours can be an occupational health and safety hazard. This provision does not allow for the setting of an absolute maximum number of hours that an employee can work, retaining the flexibility to choose to work beyond these hours if need be;
• the AIRC’s power to make an award dealing with superannuation matters does not include the power to specify a particular superannuation fund or scheme to be provided for; and
• the times or days when work counts as ordinary time or overtime, or when rostered days off may be taken is specified as a non-allowable award matter.
Impact:
61. The provisions contained in awards exist to provide a safety net for the low paid who are unable to reach workplace agreements. Therefore this proposal is likely to have a limited impact given the wide coverage of certified agreements in the industry. However in general terms, this proposal may benefit employers and employees as:
• the arrangements will be less prescriptive, with relevant enterprise level needs being addressed in agreements;
• choice of superannuation funds will not be limited by awards;
• administrative costs will be reduced through the streamlining of allowances;
• employees will have a better understanding of their entitlements; and
• fewer allowances and special rates would reduce the confusions and disagreement between employers and employees about the precise amounts payable to workers and allegations of underpayment or non-payment.
Proposal:
Freedom of Association (FoA)
62. The BCIIB will create an industry-specific FoA regime that enhances current arrangements. State regimes will continue to operate concurrently.
63. The FoA provisions in the BCIIB are designed to protect the rights of individual workers to make a free choice as to whether to join or not to join a union. The BCIIB will enhance FoA protection in the building industry by introducing a series of general prohibitions dealing with the most common forms of inappropriate conduct and addressing specific gaps in the current provisions identified by the Royal Commission. The Royal Commission found that other interests are prevailing over compliance with the WR Act, for example, individuals being pressured into joining the union or discriminated against or victimised if they are non members, to ensure head contractors can progress their projects on time, on budget and without unreasonable industrial action. The ABC Commissioner will play a key role in enforcing the new FoA regime and ensuring that industry participants are free to join or not join an industrial association without fear of discrimination or victimisation.
64. The general prohibitions will deal with coercion in relation to joining and resigning from unions and employer organisations, industrial action because of a person’s membership status and the making of false statements about requirements to join a union or employer organisation.
65. A range of measures will ensure that contractors operating in the building industry are better protected. The BCIIB prohibits discrimination and coercion in relations to whether or not a person has a particular form of workplace agreement with their employees.
66. Failure to comply with freedom of association provisions of the BCIIB will be subject to a civil penalty.
Impact:
66. Employees and employers will benefit from the new provision, protecting their right to make a free choice about whether or not to join an industrial association. Unions will also benefit from such provisions because the provisions provide stronger protections for union members against discrimination or victimisation on the basis of their status as union members.
Proposal:
Right of Entry (RoE)
67. The RoE provisions of the BCIIB will ‘cover the field’ to the exclusion of any federal or State industrial laws or industrial instrument for union entry to premises within the scope of the BCIIB’s coverage. Any entry rights granted under occupational health and safety legislation will not be affected.
68. Consistent with the recommendations of the Royal Commission, the RoE provisions provide a framework which balances the right of unions to represent their members in the workplace, hold discussion with potential members and investigate suspected breaches of industrial laws and instruments and the right of employers and occupiers of premises to conduct their business without undue interference or harassment. The ABC Commissioner will play a key role in enforcing the new RoE regime.
69. The rights and responsibilities associated with right of permits will be more clearly spelt out. The BCIIB strengthens the requirements for obtaining a right of entry permit and significantly expands the grounds for suspension and revocation of permits.
70. The BCIIB requires the Industrial Registrar, before issuing a permit, to consider whether the applicant is ‘a fit and proper person’ to be exercise the rights conferred by a permit and expressly empowers the Registrar to impose conditions on the use of a permit.
71. It expands the grounds for suspension and revocation or permits and requires the Industrial Registrar to suspend or revoke a permit in certain circumstances, including where the permit holder’s right of entry under State law has been cancelled or suspended. The AIRC will also be explicitly empowered to make orders to address abuse of the right of entry system. The AIRC will be able to make orders revoking, suspending or imposing conditions some or all of the permits held by union or banning or limiting the issuing of permits to that union.
Impact:
72. The RoE provisions in the BCIIB will limit the right of union officials to access non-union members’ records. However the Bill empowers the AIRC to make orders allowing union officials to access non-member records where it is satisfied that this is necessary to investigate a suspected breach affecting members of the permit holder’s organisation.
73. The provisions will benefit employers by protecting them from unnecessary and costly disruptions due to entry into their workplace. There will be a significant administrative burden on unions by requiring union officials to go through a more administrative process to gain a permit. However the BCIIB also ensures that permit holders are not hindered or obstructed in relation to legitimate exercises of right of entry.
Consultation
74. The Department of Employment and Workplace Relations has undertaken extensive consultation with industry participants and interested parties since the Royal Commission tabled its final report in March 2003.
75. On 18 September 2003, an exposure draft of the BCIIB was released and a consultation period of four weeks was established for public comments to be sent to the Department either electronically through the website or in hard copy. Over 20 submissions were received from employee industrial associations, employer organisations, major contractors and subcontractors.
76. Employer organisations, including the Master Builders Association (MBA), Australian Chamber of Commerce and Industry, Australian Industry Group (Ai Group) and the National Electrical and Communications Association have all made submissions to the Department. Each of the submissions was generally supportive of the main objective of the BCIIB and the intent of its provisions.
77. The MBA comment in their submission (Submission by the MBA, p.4) that:
“The Bill will introduce a stronger regulatory regime in building and construction industry workplace relations. Its provisions will facilitate a return to the rule of law for an industry where the Cole Report found there to be a culture where industrial agreements were not honoured and measures not implemented when made. The standards of industrial and commercial conduct exhibited in the building and construction industry must reflect the standards that apply in the rest of the Australian economy. These measures will assist with the process of making that change. This is also the underlying rationale for the separate rules for the industry that will apply in the future.”
78. Ai Group has argued strongly that:
“a body should be established to monitor conduct in the building and construction industry, to take action to stop unlawful conduct and to pursue prosecutions when the law is breached. The taskforces which operated in the industry in New South Wales and Western Australia were successful in improving compliance with the law and improving workplace relations in the industry. Such taskforces addressed the significant problem of employers being reluctant to enforce their legal rights due to retaliation and victimisation by construction industry unions.” (The Australian Industry Group’s position on the exposure draft, p.7)
79. All the submissions have contained comments on specific provisions and possible amendments. Officers from the Department have considered these comments and as a result several technical amendments have been made to the BCIIB.
80. The Australian Council of Trade Unions (ACTU), the Construction Forestry, Mining and Energy Union and the Electrical Trades Union of Victoria have each made submissions to the Department. These submissions oppose the introduction of the BCIIB into Parliament and have argued that there is not a need for industry-specific legislation. These submissions were considered and as a result several technical amendments have been made to the BCIIB.
81. Several sub-contractors responded
during the four week period that the BCIIB was open form public comment.
Comments received from subcontractors focussed on the need for the establishment
of a new a regulatory body as well as the implementation of an enforcement and
penalties process in the industry in order to stamp out unlawful behaviour.
Conclusion and recommended option
82. Option two, the Australian Government’s reform proposal as set out in the BCII Bill is the recommended option. The main object of the reforms contained in the BCIIB is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole. The provisions of the Bill are directed at addressing both the entrenched culture of lawlessness identified by the Royal Commission and the other inappropriate practices in the industry that act against choice, productivity and safety.
Implementation and review
83. The Department has in a place a sufficient system for monitoring the framework of workplace relations and it will continue to monitor the effectiveness of the legislative changes on the building and construction industry.
84. The BCCIB requires the ABC Commissioner to prepare and give to the Minister an annual report on the operations of the ABC Commissioner during that year. The report must include:
a. details of the number, and type, of matters that were investigated by the ABC Commissioner during the financial year;
b. details of assistance provided to building employees and building contractors in connection with the recovery of unpaid entitlements; and
c. details of the assessments of damages resulting from unlawful industrial action.
86. The FSC must also prepare and present
an annual report for the Minister detailing the number and type of matters that
were investigated during the financial
year.
87. The resourcing and effectiveness
of the ABC Commissioner and the FSC, including the benefits for small business
will be monitored on an ongoing basis.
GENERAL NOTE ON CIVIL PENALTY PROVISIONS
Part 1 of Chapter 12
of the Bill deals with contraventions of civil penalty provisions.
Clause 227 of the Bill will allow an action to be brought in relation to
contravention of a civil penalty provision. An application may be brought in an
“appropriate court” – generally the Federal Court – by
an “eligible person” (the ABC Commissioner, a person affected by the
contravention and any person prescribed by the regulations).
The Court
may order a pecuniary penalty. The maximum pecuniary penalty that may be
ordered depends upon whether the relevant provision is a Grade A or a Grade B
civil penalty provision.
• The maximum penalty for a Grade A civil penalty provision is 1000 penalty units in the case of a body corporate, or 200 penalty units in other cases.
• The maximum penalty for a Grade B civil penalty provision is 100 penalty units in the case of a body corporate, or 20 penalty units in other cases.
• By operation of section 4AA of the
Crimes Act 1914, the value of a penalty unit is currently $110.
The Court may also order:
• damages payable to a specified person;
• any other order the court thinks
appropriate (including an injunction or an order for the sequestration of
assets).
Subclause 226(2) provides that a person involved in a contravention
of a civil penalty provision is taken to have contravened the provision. A
person is taken to have been involved in a contravention if they have:
• aided, abetted, counselled, procured or induced the contravention, whether by threats or promises or otherwise; or
• been in any way, by act or omission,
directly or indirectly, knowingly concerned in or party to the
contravention.
Clause 247 provides that conduct of members of a
building association (where it is authorised by the rules of the association,
the committee of management of the association or an officer or agent of the
association acting in that capacity) is taken to be conduct of the building
association.
1.1 Clause 1 is a formal provision
specifying the short title of the
Act.
1.2 Clause 2 sets out a table specifying
when the various provisions of the Act are to commence.
1.3 Clauses 1
and 2 and any provision of the Act not
elsewhere covered by the table will commence on the day on which the Act
receives the Royal Assent.
1.4 Clauses 3 to 255 and Schedule 1 will
commence on a day or days fixed by Proclamation. However, if any of the
provisions do not commence within six months of the Act receiving the Royal
Assent, they will commence on the first day
following that six month period.
1.5 The main object of the Act is to improve the workplace relations framework for the building and construction industry to ensure that building industry participants and the Australian economy benefit from the fair, efficient and productive performance of building work (subclause (1)). The Act’s means of achieving that object are set out in subclause (2) and include:
• improving the bargaining framework so as to further encourage genuine bargaining at the workplace level;
• promoting respect for the rule of law;
• ensuring respect for the rights of all building industry participants;
• ensuring all building industry participants are held accountable for their unlawful conduct;
• providing effective means for investigation and enforcement of relevant laws;
• improving occupational health and safety;
• encouraging the pursuit of high employment in the industry; and
• providing assistance and advice to building industry participants in
connection with their rights and obligations under relevant industrial
laws.
1.6 Clause 4 defines the terms used in the Bill. The definitions appear in
alphabetical order in the Bill. However, for the purposes of the Explanatory
Memorandum, definitions have been grouped together to aid interpretation. Only
key definitions are explained here.
1.7 Bargaining services is
defined to mean services provided by or on behalf of a building association
(that is, an industrial association of building employers, building employees or
building contractors) in relation to the
negotiation, making, certification, operation, extension, variation or
termination of an agreement under Part VIB of
the WR Act. This definition does not apply to Chapter 7, where a broader
definition of the term applies.
1.8 Bargaining services fee is
defined to mean a fee, however described, payable to a building association or
to someone else in lieu of a building association wholly or partly for the
provision, or purported provision of bargaining services. This definition
ensures that relevant provisions of the Bill
would apply in cases where a building association purports to, but has not in
fact, provided bargaining services in respect of which it is claiming a fee.
Membership dues are specifically exempted from the definition. This definition
does not apply to Chapter 7, where a broader definition of the term
applies.
1.9 Building agreement, building award and
building certified agreement are defined respectively to mean any
agreement, award or certified agreement that has application to building work,
regardless of whether that agreement, award or certified agreement also applies
to any other kind of work. For example, an agreement whose provisions apply to
both commercial construction and other work will be a building agreement. The
terms award and certified agreement have the same meanings that
they have in section 4 of the WR Act.
1.10 Building association
is defined to mean any industrial association (which is defined to have
the same meaning that it has in Part XA of the WR Act) whose eligibility
rules (rules that relate to the conditions of eligibility for membership)
allow membership by at least one of the following groups:
• building employers;
• building employees;
• building contractors.
1.11 An
industrial association will be a building association if its eligibility rules
allow membership by any of the above groups, regardless of whether the rules
also allow membership by any other persons. For example, an industrial
association representing a range of businesses including building employers
would be a building
association.
1.12 Building
contractor is defined to mean a person who has entered into, or offered to
enter into, a contract for services under which the person carries out building
work, or arranges for building work to be
carried out. The term encompasses both
independent contractors as well as contractors and subcontractors who engage
employees or other contractors to perform building
work.
1.13 Building employee is
defined to mean both a person whose employment consists of, or includes,
building work and a person who accepts an offer of engagement as an employee for
work that consists of, or includes, building work. An employee that performs
some building work and also performs other work will be a building employee for
the purposes of this Bill. Employee has the same meaning as in section 4
of the WR Act and does not include a person who is undertaking a vocational
placement.
1.14 Building
employer is defined to mean an employer who employs, or offers to employ,
building employees. Employer has the same meaning as in section 4 of the
WR Act and includes a person who is usually an employer and an unincorporated
club.
1.15 Building industry
participant is a broad term encompassing persons and entities engaged in or
involved with the building industry. Each of
the following is a building industry
participant:
• a building employee;
• a building employer;
• a building contractor;
• a person who enters into a contract with a building contractor under which the building contractor agrees to carry out building work or to arrange for building work to be carried out (that is, a client of a building contractor);
• a building association;
• an officer, delegate or other representative of a building association; or
• an employee of a building
association.
1.16 Commonwealth
building employee organisation is defined to mean an organisation of
employees (being an organisation registered under Schedule 1B to the WR Act)
whose eligibility rules allow membership by building employees regardless of
whether or not those rules also allow other persons to be
members.
1.17 Commonwealth building
employer organisation is defined to mean an organisation of employers (being
an organisation registered under Schedule 1B to the WR Act) whose eligibility
rules allow membership by building employers regardless of whether or not those
rules also allow other persons to be
members.
1.18 Eligible
condition means a condition that relates to:
• the times or days when work is to be performed;
• inclement weather procedures;
• any other matter prescribed by the
regulations for the purposes of the
paragraph.
1.19 This definition is
relevant to provisions of the Bill relating to pattern bargaining and
discrimination in respect of industrial instruments by providing minor
exceptions to those provisions. It allows for matters to be prescribed by
regulations to enable other kinds of conditions to be designated eligible
conditions, where
appropriate.
1.20 Industrial
dispute has the meaning given by section 4 of the WR Act, including the
additional matters in subsection 4(3) of that Act. This definition does
not apply to Chapter 7, where a broader
definition of the term
applies.
1.21 Unlawful action damages
means an amount of compensation ordered by a Court under paragraph 227(1)(b) of
this Bill to compensate a person for damage suffered as a result of a
contravention of clause 74. Clause 74 prohibits unlawful industrial
action.
1.22 This definition is integral to the
understanding and application of the Bill. It determines the scope of the Bill
by forming the basis of terms such as building employee and building
agreement, and hence terms such as building employer and building
association. The coverage of all provisions of the Bill is ultimately
determined by reference to the definition of building
work.
1.23 In order to ensure
appropriate coverage for the legislation the
definition of building work is broad. It is defined to mean any of the
activities listed in paragraphs (1)(a) to (d).
1.24 Paragraph (a) covers
building activities:
• construction,
alteration,
extension,
restoration, repair, demolition,
dismantling of buildings, structures or works that
form, or are to form, part of land, whether or not the buildings, structures or
works are permanent.
1.25 To avoid doubt, paragraph (b) lists
the same activities in relation to railways and docks but makes it clear that
such activities in relation to railway rolling stock are excluded.
1.26 Paragraph (c) covers building
activities that relate to the fit-out of buildings such as the installation in
any building, structure or work of fittings
including: heating; lighting;
air-conditioning;
ventilation;
power supply; drainage; sanitation; water supply; fire protection; security; and
communication
systems.
1.27 1.27 Paragraph (d)
covers all
activities
that are necessarily preparatory to or for the purpose of rendering complete any
of the activities listed in paragraphs (a) to (c). Specific examples are
provided, but the coverage of paragraph (d) is not limited to those
examples.
1.28 Paragraphs (e), (f) and
(g) set out exceptions to the definition of
building work.
1.29 Paragraphs (e)
and (f) exclude extraction and mining
activities.
1.30 Paragraph (g)
excludes activities associated with domestic
building. The Bill intends, as far as possible, to exclude the domestic housing
sector from the coverage of the Bill. Any work that is part of a project for
the construction, repair or restoration of a single-dwelling house or a
building, structure or work associated with a single-dwelling house is excluded
from the definition of building work (subparagraphs (1)(g)(i) and(ii)).
1.31 Alteration and extension
activities will also be excluded from the definition of building work, where
those activities are performed on a single-dwelling house and the resulting
structure remains a single-dwelling house (subparagraph (1)(g)(iii)).
1.32 Dismantling and
demolition activities will also be excluded
from the definition of building work, where they are part of a project for the
construction or repair etc. of a single-dwelling
house.
1.33 The domestic building
sector
exception does not apply where the activities
are performed as part of a project that is part of a multi-dwelling development
consisting of, or including the construction of, at least 5 single-dwelling
houses (subclause
(2)).
1.34 Regulations may
be made to supplement the definition.
1.35 Subclause (3) allows
regulations to be made to include additional
activities. Subclause (4) allows activities to be excluded from the definition.
It is intended that regulations will be made where it is not clear whether or
not a particular activity falls within the definition.
1.36 This clause defines the term office in relation to an association.
• In this context, the term
“association” includes both an organisation registered under
Schedule 1B to the WR Act and an industrial
association (as defined in Part XA of the WR Act), as well as a branch of such
an organisation or association (subclause
(2)).
1.37 The term office is
defined in similar terms to the definition of
office in Schedule 1B to the WR Act, and covers:
• certain designated positions in organisations and associations or their branches (paragraph (1)(a));
• other positions, the holders of which
have direct responsibilities relating to the
management, policy determination or
rule-making and rule-enforcement functions of organisations, associations and
their branches (paragraphs (1)(b), (c), (d) and (e)).
1.38 The
definition excludes persons who carry out
functions of the kind mentioned above, but only under direction to implement
existing policy or decisions (paragraph (1)(c)).
1.39 The concept of office is
relevant to clause 217, which establishes rules in relation to disqualification
from holding office.
1.40 Objectionable provision is defined to mean any provision in a document that:
• requires or permits conduct that would contravene Chapter 7 (Freedom of association) or, disregarding the constitutional limitations in Part 2 of Chapter 7, would contravene Chapter 7 (paragraph (1)(a));
• directly or indirectly requires a person to encourage another person to become or remain a member of a building association (subparagraph (1)(b)(i));
• directly or indirectly requires a person to discourage another person from becoming or remaining a member of a building association (subparagraph (1)(b)(ii));
• indicates support for persons being members of a building association (paragraph (c));
• indicates opposition to persons being members of a building association (paragraph (d));
• requires or permits payment of a bargaining services fee to a building association (paragraph (e)); or
• requires or permits an officer or
employee of a Commonwealth or State union to exercise rights of a kind covered
by Chapter 9 (Union right of entry) (paragraph
(f)).
1.41 A provision will be
objectionable regardless of whether it is void because of clause 69 of this Bill
- which renders provisions in building
certified agreements and building awards void to the extent that they are
objectionable provisions (subclause
(2)).
1.42 Subclause (3) clarifies
the scope of the terms “permits” and “requires” for the
purposes of this clause. For example, a
provision of a document will be an
objectionable provision where it purports to permit or require conduct that
would contravene the freedom of association provisions, even if it would not in
fact have that effect.
1.43 Pattern
bargaining is defined to mean a course of
conduct or bargaining, or the making of claims that involves seeking common
wages or other common conditions of employment and extends beyond a single
business (subclause (1)).
1.44 A
person would not be engaging in pattern bargaining where:
• the conduct involves seeking common wages or other common conditions of employment in an award or State award (paragraph (1)(a));
• the person is genuinely trying to reach agreement on the matters that are the subject of the conduct (subclause (2));
• the person is a party to a proposed agreement and is seeking the inclusion in the agreement of terms and conditions that give effect to a decision of the Full Bench of the AIRC establishing national standards (subclause (3));
• the person engages in the conduct solely to encourage a second person
to include particular eligible conditions in an enterprise agreement
covering the second person’s employees and the person proposes to enter
into a construction contract with the second person (subclause
(4)).
1.45 When
determining whether a person is “genuinely trying to reach
agreement”, subclause (5) directs the court or AIRC (as applicable)
to the same phrase in section 170MW of the WR Act, as supplemented by the list
of indicators provided in clause 62 of this Bill.
1.46 As the Bill
regulates pattern bargaining occurring
outside the Federal jurisdiction, subclause (6) makes it clear that references
to “negotiating party” in clause 62 of the Bill are to be read as
references to a “proposed party to a proposed
agreement”.
1.47 Giving advice
or recommending particular approaches to persons trying to reach agreements will
not amount to pattern bargaining. However, if the conduct goes beyond the
provision of advice or the making of recommendations and amounts to a campaign
to achieve a consistent outcome across a number of businesses, it may amount to
pattern bargaining, providing that all elements of the definition are
met.
1.48 A course of conduct in
pursuit of a project agreement may amount to pattern bargaining if there is a
failure to genuinely try to reach
agreement.
1.49 This clause provides that, as with all
Commonwealth legislation, the Bill extends to Christmas
Island (subclause (1)).
1.50 The Bill applies with
such modifications as are prescribed by
regulations (subclause (2)). This reflects the WR Act.
1.51 This clause provides that the Bill applies to the Crown in right of the Commonwealth and each of the States and Territories, but that this does not mean that the Commonwealth or a State or Territory can be prosecuted for an offence under the Bill.
CHAPTER 2 – AUSTRALIAN BUILDING AND CONSTRUCTION
COMMISSIONER
1.52 Chapter 2 will establish new statutory offices of ABC
Commissioner and Deputy ABC Commissioner. The office of the ABC Commissioner
will be subject to the Freedom of Information Act 1982 and the
Ombudsman Act 1976.
1.53 Clause 11 provides for the statutory office of the ABC Commissioner.
The ABC Commissioner is to be assisted by such number of Deputy ABC
Commissioners as may be appointed.
1.54 Clause 17 provides for the ABC
Commissioner and Deputy ABC Commissioners to be appointed by the Minister for
Employment and Workplace Relations.
1.55 Clause 12 sets out the ABC Commissioner’s broad functions. These are to:
• monitor, and promote compliance with, this Act, the WR Act and the Building Code;
• refer matters to other relevant agencies and bodies;
• investigate suspected contraventions of this Act, the WR Act, instruments or orders made under that Act, and the Building Code;
• institute, or intervene in, proceedings in accordance with this Act;
• provide information, advice and assistance to building industry participants about their rights and obligations under this Act and the WR Act;
• provide representation to a building industry participant in proceedings under this Act or the WR Act, where he or she considers that this would promote enforcement; and
• disseminate information relevant to building industry
participants.
1.56 The function of ‘monitoring and promoting’
compliance with this Act, the WR Act and the Building Code is further
supplemented by specific provisions in this Bill, in particular clause 230 which
relates to the power of the ABC Commissioner to obtain
information.
1.57 In addition to the broad functions in clause 12, the
ABC Commissioner will also have other functions under the Act, including:
• nominating an ABC Inspector to assess the maximum amount of damages resulting from unlawful industrial action that could be ordered by a court and issue a certificate in relation to the assessment (clause 77);
• applying to the Industrial Registrar for:
– revocation or suspension of the right of entry permit of a permit holder (clause 184);
– the issue of a deregistration certificate where a Commonwealth building organisation has failed to pay court-ordered unlawful action damages (clause 215); and
• (in certain circumstances), applying to the Federal Court for an
order disqualifying a person from holding office in a Commonwealth building
organisation (clause 217).
1.58 To enable the ABC Commissioner to
perform his or her functions, the ABC Commissioner will appoint Australian
Building and Construction Inspectors (ABC Inspectors) (clause 235). As noted
above, the ABC Commissioner will also have investigative powers, and will be
able to require people to provide information relevant to an investigation
(clause 230).
1.59 The central role of the ABC Commissioner is to monitor
the industry and enforce this Act, the WR Act and the Building Code. This role
is enshrined throughout the Bill. For example:
• employers will be required to notify the ABC Commissioner of certain industrial matters, including the taking of industrial action (clause 135), and claims for strike pay (clause 137),
• potential donors will be required to notify the ABC Commissioner of any request that a donation exceeding $500 be made to a Commonwealth building organisation (clause 213);
• the ABC Commissioner will have a particular role in monitoring compliance with the new right of entry requirements:
– a permit holder seeking entry will be required to provide a copy of the entry notice to the ABC Commissioner prior to exercising right of entry (clauses 190 and 200);
– the ABC Commissioner will have a right to be heard in right of entry permit matters before the Industrial Registrar (clause 208);
• the Industrial Registrar will be required to provide the ABC
Commissioner with at least seven days notice of hearings relating to the
certification of an agreement and copies of all documents lodged in support of
the application for certification (clause 53). It must also notify the ABC
Commissioner of: all applications lodged with the AIRC or Australian Industrial
Registry (AIR) under this Act and the WR Act as affected by this Act; and the
outcome of each such application (clause 251).
1.60 Clause 13 allows the Minister to give directions to the ABC
Commissioner. Directions are to be given by notice published in the
Commonwealth Gazette and therefore will be available for public scrutiny.
Details of all directions given during the year must also be included in the ABC
Commissioner’s annual report (clause 16).
1.61 Clause 13 only
permits the Minister to give general directions. The Minister must not give a
direction in relation to a particular case (subclause (2)).
1.62 Directions by the Minister are disallowable instruments under the
Acts Interpretation Act 1901 (subclause (4)).
1.63 Clause 14 allows the Minister to direct the ABC Commissioner to provide
specified reports relating to the ABC Commissioner’s functions.
1.64 Clause 15 allows the ABC Commissioner to delegate his or her powers and
functions.
1.65 The ABC Commissioner’s powers to obtain
information under clause 230 can only be delegated to a Deputy ABC
Commissioner.
1.66 All other powers and functions can be delegated to a
Deputy ABC Commissioner, an ABC Inspector, a Senior Executive Service (SES)
employee, or acting SES employee in the Australian Public Service, or a person
prescribed by the regulations.
1.67 In exercising delegated powers or
functions the delegate must comply with any directions given by the ABC
Commissioner (subclause (3)).
1.68 Details of delegations made under this
clause are to be published (for example on the Internet) “as soon as
practicable” after the delegation occurs (subclause (4)).
1.69 Clause 16 requires the ABC Commissioner to provide an annual report for
each financial year. The report must be prepared “as soon as
practicable” after the end of the financial year (subclause (1)).
1.70 The report must contain details of any directions given to the ABC
Commissioner by the Minister during the year, details of any delegations by the
ABC Commissioner during the year and details of any investigations undertaken by
the ABC Commissioner (subclauses (2) and (3)).
1.71 Subclause (4)
requires the Minister to cause a copy of the report to be laid before each House
of the Parliament within 15 sitting days of receiving it.
1.72 Clause 17 provides for the Minister to appoint the ABC Commissioner and
Deputy ABC Commissioners by written instrument.
1.73 Subclause (2)
provides that the ABC Commissioner is appointed on a full-time basis and that
Deputy ABC Commissioners can be appointed on either a full-time or part-time
basis.
1.74 Before appointing a person as a Commissioner, the Minister
must be satisfied that the person has suitable qualifications or experience, and
is of good character (subclause (3)).
1.75 The length of an appointment
is to be specified in the instrument of appointment, but cannot be longer than 5
years (subclause (4)). However, a Commissioner can be reappointed for a further
term or terms.
1.76 This clause provides for the appointment by the Minister of an Acting
ABC Commissioner when necessary, including on a recurring basis.
1.77 Clause 19 provides for the Remuneration Tribunal to determine the
remuneration of Commissioners or, in the absence of a determination, the
regulations can set the remuneration. In addition, Commissioners are to be paid
any allowances prescribed by regulation.
1.78 Subclause (3) provides that
this clause has effect subject to the Remuneration Tribunal Act 1973.
This will ensure that general provisions of the Remuneration Tribunal Act
are not displaced by this clause.
1.79 The Remuneration Tribunal is to determine the recreation leave
entitlements for full-time Commissioners (subclause (1)).
1.80 Subclause (2) allows the Minister to grant a full-time ABC
Commissioner leave of absence, other than recreation leave, on such terms and
conditions as he or she determines.
1.81 Subclause (3) allows the
Minister to grant a part-time ABC Commissioner leave of absence, including
recreation leave, on such terms and conditions as he or she determines.
1.82 Clause 21 requires a full-time Commissioner to obtain approval from the
Minister before engaging in other paid employment. A part-time Commissioner
must not engage in other paid employment that could result in a conflict with
his or her duties as a Commissioner.
1.83 These arrangements are
complemented by clause 24 which allows the Minister to terminate a
Commissioner’s appointment if the requirements of clause 21 are
contravened, without a reasonable excuse.
1.84 Clause 22 requires Commissioners to give the Minister notice of all
financial or other interests that could conflict with the Commissioners
duties.
1.85 This requirement is complemented by clause 24 which allows
the Minister to terminate a Commissioner’s appointment if the requirements
of clause 22 are contravened, without a reasonable excuse.
1.86 Clause 23 provides that a Commissioner may resign by written notice
given to the Minister.
1.87 Subclause (1) allows the Minister to terminate the appointment of a Commissioner if the Commissioner:
• becomes bankrupt or takes specified steps related to insolvency;
• contravenes, without reasonable excuse, the requirements relating to engagement in other paid employment (clause 21);
• contravenes, without reasonable excuse, the requirement to disclose to the Minister any interest that could conflict with the Commissioner’s functions (clause 22); or
• in the case of a full-time Commissioner, is absent from duty (except
on authorised leave) for 14 consecutive days or for 28 days in any 12 month
period.
1.88 Subclause (2) allows the Minister to terminate a
Commissioner’s appointment for misbehaviour or on the ground of physical
or mental incapacity. Termination on the grounds of physical or mental
incapacity may be subject to certain limitations imposed by superannuation
legislation (subclauses (3) and (4)).
1.89 Staff to assist the ABC Commissioner in the performance of his or her
functions are to be engaged under the Public Service Act 1999 (subclause
(1)).
1.90 The ABC Commissioner and the Australian Public Service
employees assisting the ABC Commissioner will constitute a Statutory Agency for
the purposes of the Public Service Act 1999 (subclause
(2)).
1.91 Subclause (3) provides that the ABC Commissioner may engage
consultants with suitable qualifications and experience on behalf of the
Commonwealth. The terms and conditions of engagement of consultants are to be
determined in writing by the ABC Commissioner.
CHAPTER 3 – THE BUILDING CODE
1.92 Clause 26 authorises the Minister to issue one or more documents that
together comprise the Building Code.
1.93 Subclause (2) specifically
authorises the Minister to issue one or more documents under subclause (1) that
relate to occupational health and safety matters in respect of building work.
The Minister must take into account any recommendations of the Federal Safety
Commissioner in relation to occupational health and safety matters (subclause
(4)) – the Federal Safety Commissioner is a new office established in
Chapter 4 of the Bill.
1.94 Subclause (3) lists the persons who may be
required to comply with the Building Code. The Code will set out who is
required to comply.
1.95 The Minister must make the Building Code
publicly available (subclause (5)).
1.96 Clause 27 requires the ABC Commissioner to report to the Minister at
least annually in relation to compliance with the Building Code.
1.97 The Minister may notify the ABC Commissioner of occupational health
and safety issues that need not be addressed in the report (subclause (2)).
This provision reflects the fact that clause 29 requires the Federal Safety
Commissioner to separately report on occupational health and safety aspects of
the Building Code.
1.98 The Minister must table the ABC
Commissioner’s report in each House of Parliament within 15 sittings days
of receiving it (subclause (3)).
1.99 Clause 28 authorises the ABC Commissioner to publish details of
non-compliance with the Building Code, if he or she considers that it is in the
public interest to do so.
1.100 Clause 29 requires the Federal Safety Commissioner to report to the
Minister at least annually in relation to compliance with the occupational
health and safety elements of the Building Code.
1.101 The Minister
must table the Federal Safety Commissioner’s report in each House of
Parliament within 15 sittings days of receiving it (subclause (2)).
1.102 The ABC Commissioner may direct a person required to comply with the
Building Code in respect of particular building work to provide a written report
about the extent to which he or she has complied with the Building Code in
respect of that building work (subclauses (1) and (2)).
1.103 The ABC
Commissioner’s direction must be in writing, and specify when the report
is to be provided – at least 14 days notice must be provided (subclause
(2)).
1.104 Contravention of the requirement to provide a report to the
ABC Commissioner in accordance with a direction is subject to a Grade B civil
penalty (subclause (3)).
1.105 Given their shared responsibility for the
Building Code, the ABC Commissioner must provide the Federal Safety Commissioner
with a copy of any report (subclause (4))
CHAPTER 4 – OCCUPATIONAL HEALTH AND SAFETY
1.106 Part 1 of this Chapter will establish the new statutory office of Federal Safety Commissioner. The office of the Federal Safety Commissioner will be subject to the Freedom of Information Act 1982 and the Ombudsman Act 1976.
1.107 Clause 31 creates the new statutory office of the Federal Safety
Commissioner.
1.108 Clause 37 provides for the Federal Safety
Commissioner to be appointed by the Minister.
1.109 Clause 32 sets out the Federal Safety Commissioner’s functions. These are to:
• promote:
– OHS in relation to building work;
– the benefits of the accreditation scheme (established by clause 50); and
– compliance with the OHS aspects of the Building Code;
• disseminate information about the accreditation scheme and the OHS aspects of the Building Code;
• monitor compliance with the occupational health and safety aspects of the Building Code;
• perform functions as the accrediting authority for the accreditation scheme; and
• refer matters to other relevant agencies or
bodies.
1.110 Other functions can also be conferred on the Federal Safety
Commissioner by this or any other Act, or by the regulations.
1.111 Clause 33 allows the Minister to give directions to the Federal Safety
Commissioner. Directions are to be given by notice published in the
Commonwealth of Australia Gazette so they will be available for public scrutiny.
Details of all directions given during the year must also be included in the
Federal Safety Commissioner’s annual report (clause
36).
1.112 Clause 33 only permits the Minister to give general
directions. The Minister must not give a direction in relation to a particular
case (subclause 2).
1.113 Directions by the Minister are disallowable
instruments under the Acts Interpretation Act 1901 (subclause
(4)).
1.114 Clause 34 allows the Minister to direct the Federal Safety Commissioner
to provide specified reports relating to the Federal Safety Commissioner’s
functions.
1.115 Clause 35 allows the Federal Safety Commissioner to delegate his or her
powers and functions to a Federal Safety Officer, a Senior Executive Service
(SES) employee or acting SES employee in the Australian Public Service, or a
person prescribed by the regulations.
1.116 In exercising delegated
powers or functions the delegate must comply with any directions given by the
Federal Safety Commissioner.
1.117 Details of delegations made under this
clause are to be published (for example on the Internet) “as soon as
practicable” after the delegation occurs (subclause (3)).
1.118 Clause 36 requires the Federal Safety Commissioner to provide an annual
report for each financial year. The report must be prepared “as soon as
practicable” after the end of the financial year (subclause (1)).
1.119 The report must contain details of any directions given to the
Federal Safety Commissioner by the Minister during the year, details of any
delegations by the Federal Safety Commissioner during the year and details of
any investigations undertaken by the Federal Safety Commissioner (subclauses (2)
and (3)).
1.120 Subclause (4) requires the Minister to cause a copy of
the report to be laid before each House of the Parliament within 15 sitting days
of receiving it.
1.121 Clause 37 provides for the Minister to appoint the Federal Safety
Commissioner by written instrument.
4.17 The Federal Safety
Commissioner is to be appointed on a full-time basis (subclause
(1)).
1.122 Before appointing a person as a Commissioner, the Minister
must be satisfied that the person has suitable qualifications or experience, and
is of good character (subclause (2))
1.123 The length of an appointment
is to be specified in the instrument of appointment, but cannot be longer than
five years (subclause (3)). However, a Commissioner can be reappointed for a
second or subsequent term.
1.124 This clause provides for the appointment of an Acting Federal Safety
Commissioner when necessary, including on a recurring basis.
1.125 Clause 39 provides for the Remuneration Tribunal to determine the
Federal Safety Commissioner’s remuneration or, in the absence of a
determination, the regulations can set the remuneration. In addition, the
Federal Safety Commissioner is to be paid any allowances prescribed by
regulation.
1.126 Subclause (3) provides that this subsection has effect
subject to the RT Act. This will ensure that general provisions of the RT Act
are not displaced by this clause.
1.127 Clause 40 provides that the Remuneration Tribunal is to determine the
recreation leave entitlements.
1.128 The Remuneration Tribunal is to
determine the recreation leave entitlements of the Federal Safety Commissioner
(subclause (1)).
1.129 Subclause (2) allows the Minister to grant the
Federal Safety Commissioner leave of absence, other than recreation leave, on
such terms and conditions as he or she determines.
1.130 Clause 41 requires the Federal Safety Commissioner to obtain approval
from the Minister before engaging in other paid employment.
1.131 These
arrangements are complemented by paragraph 44(1)(b) which allows the Minister to
terminate the Commissioner’s appointment if the requirements of clause 41
are contravened without a reasonable excuse.
1.132 Clause 42 requires the Federal Safety Commissioner to give the Minister
notice of all financial or other interests that could conflict with the
Commissioner’s duties.
1.133 This requirement is complemented by
paragraph 44(1)(b), which allows the Minister to terminate the
Commissioner’s appointment if the requirements of clause 42 are
contravened without a reasonable excuse.
Clause 43 –
Resignation
1.134 Clause 43 provides that the Federal Safety
Commissioner may resign by giving written notice to the Minister.
1.135 Subclause 44(1) provides that the Minister may terminate the Federal Safety Commissioner’s appointment if the Federal Safety Commissioner:
• becomes bankrupt or takes specified steps related to insolvency;
• contravenes, without reasonable excuse, the requirements relating to engagement in other paid employment (clause 41);
• contravenes, without reasonable excuse, the requirement to disclose to the Minister any interest that could conflict with the Commissioner’s functions (clause 42); or
• is absent from duty (except on authorised leave) for 14 consecutive
days or for 28 days in any 12 month period.
1.136 Subclause (2) allows
the Minister to terminate a Commissioner’s appointment for misbehaviour or
on the ground of physical or mental incapacity. Termination on the grounds of
physical or mental incapacity may be subject to certain limitations imposed by
superannuation legislation (subclauses (3) and (4)).
1.137 Clause 45 provides that the staff to assist the Federal Safety
Commissioner in the performance of his or her functions are to be engaged under
the Public Service Act 1999, and made available by the Secretary of the
Department of Employment and Workplace Relations (subclause (1)).
1.138 Subclause (2) provides that the Federal Safety Commissioner may engage
consultants with suitable qualifications and experience on behalf of the
Commonwealth. The terms and conditions of engagement of consultants are
determined in writing by the Federal Safety Commissioner.
1.139 Clause 46 defines building OHS action. This term is relevant to
the operation of clauses 47-49.
1.140 Building OHS action is
defined as an employee’s failure or refusal to attend for building work or
to perform any work at all if they attend for building work, where the failure
or refusal is based on a reasonable concern about an imminent risk to the
employee’s health or safety. The reasonable concern must be held by the
employee and must arise from conditions at the employee’s
workplace.
1.141 For constitutional reasons, this definition of
building OHS action only applies where the employer is a constitutional
corporation or the Commonwealth, or the refusal or failure by the employee
occurs in a Territory or a Commonwealth place.
1.142 Clause 47 applies to employees who engage in building OHS action
(subclause (1)).
1.143 Subclauses (3) and (4) impose penalties on
employers who make payments to such employees in relation to a pre-referral
non-entitlement period, and on employees who accept such
payments.
1.144 A period during which an employee engaged in building OHS
action is a pre-referral non-entitlement period if:
• the period does not occur after the situation giving rise to building OHS action was referred to a relevant authority under an OHS law as prescribed by regulations; and
• the employee fails to comply with the relevant dispute resolution
procedure that applies to the situation giving rise to the building OHS action
(subclause (2)).
1.145 Subclauses (5) and (6) impose civil penalties on
employers who make payments to employees, and employees who accept such
payments, where employees engage in building OHS action after the situation
giving rise to the building OHS action has been referred to a relevant authority
under an OHS law. Paragraphs (5)(c) and (d) provide exceptions to where such a
payment may be made. These exceptions are:
• where a prohibition notice has been issued in respect of the situation giving rise to the building OHS action and the employee has complied with the relevant dispute resolution procedure at all times from the time of the referral to the time the prohibition notice was issued;
• where the building OHS action ceased before the relevant authority
began an inspection of the situation and the employee complied with the relevant
dispute resolution procedure at all times from the time of the referral to the
time the building OHS action ceased.
1.146 Subclause (7) provides
employees who don’t comply with a relevant dispute resolution procedure
with a defence where their non-compliance is due to circumstances outside their
control.
1.147 Clause 48 requires employers to give written notification to the ABC
Commissioner of any threatened or actual building OHS action within 72 hours
after the employer becomes aware of the action or threat.
1.148 This
clause is a Grade B civil penalty provision.
1.149 Clause 49 requires employers to give written notification to the ABC
Commissioner of a payment they have made to an employee in respect of a period
during which the employee was engaged in building OHS action, within 72 hours of
making that payment.
1.150 This clause is a Grade B civil penalty
provision.
1.151 Clause 50 provides for an accreditation scheme and provides that the
details of this scheme will be contained in the regulations.
1.152 The
regulations will provide for an accreditation scheme for persons who wish to
enter into Commonwealth building contracts with the Commonwealth or Commonwealth
authorities (subclause (1)).
1.153 The Commonwealth, or a Commonwealth
authority must not enter into a building contract with a person who is not
accredited at the time of entering into the contract. The regulations may
provide exceptions to this rule (subclause (4)).
1.154 The prohibition
in subclause (4) overrides past, current and future Commonwealth provisions
(subclause (5)) and a contravention of subclause (4) in respect of a contract
does not affect the validity of the contract (subclause (6)).
1.155 Fees
may be imposed for applications under the accreditation scheme (subclause (3)).
1.156 The Federal Safety Commissioner will be the accrediting authority
under the scheme (subclause (2)).
1.157 Subclause (7) sets out relevant
definitions.
CHAPTER 5 – AWARDS, CERTIFIED AGREEMENTS AND OTHER PROVISIONS ABOUT EMPLOYMENT CONDITIONS
1.158 This Part contains provisions to further simplify building awards and
to ensure that exceptional matters orders in relation to building industrial
disputes are made only by a Full Bench of the AIRC.
1.159 Clause 51 sets out the scope of building industrial disputes where the AIRC is performing the following functions under the WR Act:
• dealing with an industrial dispute by arbitration;
• preventing or settling an industrial dispute by making an award or order;
• maintaining the settlement of an industrial dispute by varying an
award or order.
1.160 5.3 Building industrial dispute is defined
in clause 4 of the Bill as any industrial dispute that relates to building
employees whether or not the dispute also relates to other employees. The
definition is broad to ensure that the provisions of the Bill dealing with
industrial disputes have appropriate and effective
coverage.
1.161 Subclause (2) lists the allowable award matters in
relation to which the AIRC can exercise arbitration powers in respect of
building industrial disputes. Subclause (2) is different in a number of
respects to subsection 89A(2) of the WR Act, which it replaces in relation to
building industrial disputes.
• Paragraph (2)(a) does not refer to “skill-based career paths” because these matters are more appropriately dealt with at the enterprise or workplace level and, if regulation by industrial instrument is necessary, by a certified agreement or an Australian Workplace Agreement (AWA).
• Paragraph (2)(d) does not refer to “bonuses” because such matters are more appropriately dealt with at the enterprise or workplace level and, if regulation by industrial instrument is necessary, by a certified agreement or an AWA. Paragraph (2)(s) is included to ensure that “bonuses for outworkers” remains an allowable award matter.
• There is no reference to “long service leave” as minimum standards of long service leave are set in State and Territory legislation.
• Paragraph (2)(f) (the equivalent of paragraph 89A(g) of the WR Act) does not refer to “cultural leave and other like forms of leave.” The capacity to include certain forms of cultural leave in an award provision is provided for in paragraph 2(g) which ensures that leave for Aboriginal and Torres Strait Islander people to meet ceremonial obligations and leave for other cultural or religious obligations of a similar nature continue to be allowable award matters for building awards.
• Paragraph (2)(i) will preclude the AIRC from including in awards provisions that treat particular days as public holidays in addition to those declared by State and Territory governments to be observed generally in the relevant community as public holidays. A building award could not include as public holidays additional days which may be or may have been treated as “extra” public holidays in the building and construction industry. This change is not intended to preclude a building award from providing for the substitution of different days to be observed as public holidays or from providing for arrangements to be made at the workplace or enterprise level for the substitution of different days to be observed as public holidays.
• Paragraph (2)(j) provides that the kinds of provisions that may be included in a building award in relation to allowances are those that relate to monetary allowances payable to employees for:
– expenses incurred in the course of their employment;
– particular responsibilities or skills that are not taken into account in an employee’s rate of pay; and
– disabilities associated with the performance of particular tasks (for example, handling hazardous materials, or work in particular conditions or locations such as remote locations).
• Paragraph (2)(k) is a provision that will allow the AIRC to include in building awards provisions that set the maximum number of hours per week that an employee can be required to work overtime. It does not allow the AIRC to set an industry-wide cap on hours that may be worked in the industry. This is intended to address the productivity and OHS issues of excessive work hours and overtime in the building and construction industry. This retains flexibility while being designed to operate in a manner akin to the existing right of employees to refuse unreasonable overtime.
• Paragraph (2)(n) clarifies the circumstances in which a building award may provide for redundancy pay. An award may only provide redundancy pay in circumstances where an employee’s employment has been terminated at the initiative of the employer on the grounds of operational requirements. Nothing in clause 51 operates to allow the inclusion in building awards of provisions which affect the capacity of an employer to determine the number or identity of persons whose employment is to be terminated for operational requirements.
• There is no reference to “notice of termination” (paragraph 89A(2)(n) of the WR Act) because minimum requirements as to notice are set out in Part VIA of the WR Act.
• There is no reference to “jury service” (paragraph
89A(2)(q) of the WR Act) as such payments are appropriately dealt with by State
and Territory governments.
1.162 Subclause (3) makes clear that the
AIRC’s power to make or vary an award dealing with the matters in
subclause (2) is limited to making minimum rates awards that provide for basic
minimum entitlements. This reinforces the objects of ensuring that awards act
as a safety net of basic minimum wages and conditions of employment, help
address the needs of the low paid, do not provide for wages and conditions of
employment above the safety net and do not operate as a disincentive to
agreement making.
1.163 Subclause (4) limits the scope of the allowable
award matters listed in subclause (2) by expressly providing that certain
matters are not within the scope of the allowable matters. The range of
non-allowable matters is not confined to the matters listed in subclause (4).
This list is simply intended to provide greater certainty as to the status of
the matters listed in that provision.
Key non-allowable matters are set out
below.
• Transfers between work locations are not within the scope of the allowable award matters (paragraph (4)(a)). This provision is intended to remove from the scope of building awards provisions such as those setting out conditions applicable to transfers or selection for transfers from one work location to another. It is not intended to prevent the inclusion in awards of provisions that permit the transfer of employees where the employer is not able to usefully employ them because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.
• Paragraph 4(b) excludes training or education matters except in relation to leave and allowances for apprentices. Rates of pay underpinning training arrangements may still be set by the AIRC under paragraph 2(c). This will not prevent the description of training programmes in awards, where those training programmes are part of the establishment of wages and conditions.
• Matters relating to the times or days when work counts as ordinary time or overtime, or when rostered days off may be taken, are not allowable award matters (paragraph (4)(d)). The inclusion of such matters in awards greatly reduces the flexibility of both employers and employees to achieve improvements in productivity and meet competing work, family and social obligations. The term “rostered day off” refers to any similar allocated day off work to limit the total number of hours worked in a week, regardless of how that day may be described in an award.
• Paragraph (4)(f) would exclude dispute settling procedures that provide an automatic role for an organisation of employers or employees. This provision expressly provides that it does not exclude organisations from involvement in dispute settling procedures, where this is the choice of the employer or employee concerned.
• Paragraph (4)(g) precludes clauses that provide for transfers from one type of employment (eg, full time employment, casual employment or shift work) to another type of employment. This would not preclude the inclusion in an award of provisions that permit the transfer of employees to different duties where the employer is not able to usefully employ them to perform their usual duties because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.
• Paragraph (4)(i) would exclude from the scope of allowable award
matters prohibitions (whether direct or indirect) on an employer employing
persons in a particular type of employment or classification. This limitation
is not intended to preclude a building award from including provisions that
stipulate that particular competencies, qualifications or licences must be held
in order to perform certain duties.
1.164 Subclause (5) limits the
AIRC’s power when making an award dealing with superannuation matters.
The AIRC is precluded from specifying in an award a particular superannuation
fund or scheme. This will ensure that awards do not prevent employees in the
building and construction industry from exercising choice between complying
superannuation funds into which their employer is able to make contributions on
their behalf. (See also clause 175 of the Bill, which prohibits coercion in
relation to superannuation.)
1.165 Subclauses (6), (7) and (8) set out
other provisions that the AIRC may include in an award.
1.166 Subclause
(6) makes clear that a building award may contain provisions:
• setting minimum consecutive hours for regular part time employees;
• facilitating a regular pattern of hours for regular part time
employees.
1.167 Subclause (7) limits the scope of
“incidental” provisions that may be included in an award to those
provisions that are essential for the purpose of making particular clauses
relating to allowable matters operate in a practical way. This provision would
allow the AIRC to include in awards provisions that are required to ensure the
practical operation of clauses dealing with allowable award matters, but would
also ensure the notion of “practical operation” is not expanded,
thereby recognising that awards should act as a safety net of basic minimum
wages and conditions of employment.
1.168 Subclause (8) clarifies that
the limits on allowable award matters in subclause (2) do not preclude awards
from including machinery provisions such as “definitions”,
“arrangement”, “commencement date” or “terms and
parties bound”.
1.169 Further, exceptional matters may be included
in an award, provided that the AIRC is satisfied of all the factors listed at
paragraphs (9)(a) to (9)(e).
1.170 Subclause (10) modifies the definition
of “exceptional matters” in section 4 of the WR Act for the purpose
of the application of the WR Act to building industrial disputes. It makes
clear that, when dealing with building industrial disputes, the reference to
subsection 89A(7) in the definition of “exceptional matters” is to
be read as a reference to subclause 51(9) of this Bill.
1.171 Only a Full
Bench of the AIRC may make an exceptional matters order under section 120A of
the WR Act in relation to a building industrial dispute (subclause (11)). At
present, a single Commissioner may make an exceptional matters order that
relates to a single business.
1.172 Subclauses (12), (13) and (14) allow
the AIRC to include in or with a building award: a model discrimination clause,
an enterprise flexibility provision and the statutory freedom of association
statement (set out in Schedule 1 to the Bill).
1.173 This clause requires the AIRC to have regard, when performing its
functions under Part VI of the WR Act, to the significant task of minimising the
number and complexity of allowances in building awards. Building awards
currently contain a large number of detailed and intricate special rates and
allowances. Clause 52 is intended to ensure that parties to building awards
obtain the benefit of assistance from the AIRC to simplify these
provisions.
1.174 This Division contains a number of provisions that impose additional
preconditions for the certification of building agreements under Part VIB of the
WR Act.
1.175 The Bill proposes that the AIRC be satisfied of a number of matters
prior to certifying a building agreement. In order to ensure that the necessary
information is placed before the AIRC, it is proposed that the AIRC be required
to hold a hearing prior to certifying any building agreement (subclause
(1)).
1.176 The Industrial Registrar will be required to provide the ABC
Commissioner with documents lodged in relation to each application for
certification of a building agreement at least seven days prior to the hearing
(subclause (2)). This will enable the ABC Commissioner to determine whether to
intervene in the proceedings under clause 250 of the Bill.
1.177 The AIRC will be prohibited from certifying building agreements that
contain matters that do not pertain to the relationship between the employer and
those employees of the employer whose employment is subject to the agreement
(subclause (1))
1.178 However, despite the prohibition in subclause (1),
subclause (2) allows the AIRC to certify a building agreement that contains
matters incidental to matters pertaining to the employment relationship that are
essential for the purpose of making a particular provision of the agreement
operate in a practical way. This would allow the AIRC to certify agreements
that contain provisions that are required to ensure the practical operation of
matters that do pertain to the employment relationship.
1.179 Subclause
(3) makes it clear that the inclusion of the statutory freedom of information
statement in a building agreement, in accordance with clause 58, does not
prevent the AIRC from certifying the agreement.
1.180 It is proposed that, as a general rule, the AIRC only be able to
certify agreements that have a nominal expiry date of three years after the
starting date of the agreement (the maximum permitted under the WR Act)
(subclause (1)). This is designed to prevent the facilitation of pattern
bargaining through the fixing of common nominal expiry dates across a large
number of building agreements.
1.181 The only exception to the general
rule is where the AIRC is satisfied that an earlier expiry date is justified by
special circumstances (subclause (2)). Special circumstances could include a
short-term agreement designed to assist an employer through a period of
financial difficulty or an agreement designed to meet the requirements of a
specific and limited project.
1.182 Subclause (3) prohibits the AIRC from
certifying an agreement that imposes retrospective obligations on the employer
to pay any wages, allowances, contributions or any other monetary benefits to,
or on behalf of employees, unless the AIRC is satisfied that the employer
unreasonably delayed the making of the agreement (subclause (4)). This is
designed to encourage the parties to reach a new agreement prior to the nominal
expiry date of any existing agreement.
1.183 Clause 56 requires the AIRC to refuse to certify an agreement unless it
is satisfied that the agreement is not an agreement that resulted from pattern
bargaining (a “pattern agreement”).
1.184 The definition of
pattern bargaining is contained in clause 8. For an agreement to be a
pattern agreement, it is not necessary for the entire agreement to have resulted
from the seeking of common wages or common conditions of employment. An
agreement may be a pattern agreement if only part of the agreement has resulted
from pattern bargaining.
1.185 The definition of pattern bargaining does
not prevent a person from engaging in conduct that involves seeking common
conditions of employment beyond a single business, so long as the person
genuinely tries to reach agreement in relation to those conditions of
employment.
1.186 In determining whether a person has “genuinely
tried to reach agreement”, the AIRC is referred to the same phrase as it
is used in section 170MW of the WR Act and expounded by the factors listed in
clause 62 of this Bill.
1.187 A number of factors might indicate the
presence of pattern bargaining such as: the extent of commonality of the
agreement with other agreements in the building industry; the incorporation of
other documents into agreements; and evidence of pattern bargaining campaigns in
the industry.
1.188 However, an agreement will not be a pattern agreement
merely because it resulted from a person seeking the inclusion in the proposed
agreement of terms and conditions which give effect to a decision of a Full
Bench of the AIRC establishing national standards.
1.189 Where the AIRC
is in doubt as to whether the agreement is a pattern agreement, it must refuse
to certify the agreement.
5.33 Clause 57 prohibits the AIRC from certifying a building agreement where
it is satisfied that the agreement contains an objectionable provision.
1.190 The definition of objectionable provision is contained in
clause 7.
1.191 Clause 58 prohibits the AIRC from certifying a building agreement
unless it contains the statutory freedom of association statement.
1.192 The statutory freedom of association statement is set out in
Schedule 1 to the Bill. The inclusion of this statement in certified agreements
will ensure that the fundamental principles of freedom of association are clear
to anyone reading the agreement.
1.193 Clause 59 prohibits the AIRC from certifying a building agreement
unless a notice initiating a bargaining period in respect of that agreement is
issued under section 170MI of the WR Act.
1.194 A legislative note to
this provision refers to clause 64. Clause 64 sets out additional requirements
for the valid initiation of a bargaining period in certain circumstances.
1.195 The initiation of a bargaining period in respect of an agreement
is an important step in the negotiation process as it places the bargaining
parties on notice and defines the matters at issue between
them.
1.196 The initiation of a bargaining period in relation to a
proposed agreement does not prevent the initiation of further bargaining periods
in relation to the matters that the proposed agreement is intended to cover, as
long as the requirements in clause 64 are met wherever applicable. The mere
fact that an employee organisation initiates a bargaining period does not
prevent the employer or the employees from taking an active role in determining
the appropriate agreement for their workplace.
1.197 Clause 60 encourages the AIRC, when certifying agreements, to take into
account the content of other agreements or documents incorporated by reference
into the building agreement.
1.198 Some agreements or documents
incorporated into building agreements may not meet the requirements for
certification and consequently, agreements into which such documents are
incorporated may not meet the requirements for certification.
1.199 This provision is designed to ensure that the AIRC reviews
agreements as a whole (including any incorporated documents), in order to
ascertain whether the entire agreement meets the requirements for
certification.
1.200 Clauses 54-59 set out grounds on which the AIRC must refuse to certify
an agreement. Clause 61 modifies the operation of paragraph 45(1)(eaa) of the
WR Act – which provides a limited right of appeal against a decision to
certify an agreement.
1.201 Clause 61 extends the right of appeal to
cover a decision of a member of the AIRC to certify an agreement on the ground
that the member should have refused to certify the agreement under any of
clauses 54-59.
1.202 This Division contains miscellaneous provisions to ensure that
certified agreements in the building and construction industry are genuinely
reached, taking into account the views of interested parties.
1.203 Section 170MW of the WR Act gives the AIRC power to suspend or terminate a bargaining period in certain circumstances. Paragraphs 170MW(2)(a) and (b) provide that two of the circumstances for the suspension or termination of a bargaining period are that:
• a negotiating party organising or taking industrial action did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or
• is not genuinely trying to reach agreement with the other negotiating
parties.
1.204 Clause 62 lists a number of indicators of “genuinely
trying to reach agreement”, which the AIRC may consider when determining
whether a negotiating party is genuinely trying to reach agreement.
“Negotiating party” is defined in clause 4 as having the same
meaning of “negotiating party” found in subsection 170MI(3) of the
WR Act.
1.205 The indicators describe a range of appropriate bargaining
behaviours, designed to enhance the quality and efficacy of the bargaining
process. The list of indicators is non-exhaustive – other
behaviours and approaches may indicate that a party is genuinely trying to reach
agreement. Similarly, the mere presence or absence of a factor does not, of
itself, indicate that a party is or is not genuinely trying to reach
agreement.
1.206 Nothing in this clause limits or modifies Justice
Munro’s consideration of the issue of whether or not a negotiating party
is genuinely trying to reach agreement in Australian Industry Group v
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
as referred to in a legislative note to subsection 170MW(2).
1.207 Clause 63 ensures that where an employer makes a building agreement
under the WR Act with an organisation of employees, all employees, whether they
are members of the organisation or not, have an opportunity to make
representations to the employer about the proposed agreement.
1.208 The
means by which an employer could meet its obligations under this clause are not
set out in the legislation, but could include, for example: meeting and
conferring with employees; meeting with employee representatives; or holding a
mass meeting of employees.
1.209 Relevant organisations of employees
already have a similar right under subsections 170LK(4) and (5) of the WR Act in
relation to agreements made directly with employees.
1.210 Clause 64 will ensure that employees have an opportunity to vote on who
should represent them in negotiations for a proposed agreement. Employees will
be able to determine whether they should represent themselves or whether they
are represented by a relevant organisation of employees. Employees choosing to
represent themselves may also appoint an agent to initiate a bargaining period
(see clause 65).
1.211 A union, or an employer seeking to reach an
agreement with a union, cannot issue a notice initiating a bargaining period
unless, in the 21 day period before the notice is issued, all employees whose
employment will be subject to the agreement have been given an opportunity to
vote on whether they wish to be represented by the union in the negotiations
(subclause (1)).
1.212 Subclause (2) sets out the requirements with which
the vote must comply.
• The vote must be conducted by secret ballot where there are at least 10 employees whose employment will be covered by the agreement entitled to vote (paragraph (2)(a)).
• The voting process must be fair (paragraph (2)(b)).
• All affected employees must be notified of the vote, what the vote is about and the timing and the method of the vote (paragraph (2)(c)).
• Any additional requirements prescribed by regulations (paragraph
(2)(d)).
1.213 Clause 65 will allow an employee or group of employees who wish to
initiate a bargaining period under section 170MI of the WR Act, or who wish to
give an employer notice of their intention to take industrial action under
section 170MO of the WR Act, to appoint an agent to initiate the bargaining
period or issue the notice on their behalf. This will give the employee or
employees the option of remaining anonymous to their employer.
1.214 This provision is consistent with subclause 87(6), which would
allow an employee or employees to appoint an agent to represent them in relation
to applications for a protected action ballot.
1.215 Clause 65 specifies
that where an agent has been appointed to initiate a bargaining period under
section 170MI, the written notice that would be required to be given to the AIRC
under subsection 170MI(2) must include the names of the employee or employees
who appointed the agent (subclause (2)).
1.216 Subclause (3) provides for
regulations to be made about the qualifications and appointment of any agents
appointed under this clause.
1.217 Clause 66 further protects the identity of employees who appoint agents
under clause 65 by prohibiting the AIRC from disclosing information that would
identify persons who have appointed an agent.
1.218 However, the AIRC
will be able to disclose information that would identify persons who have
appointed an agent if the disclosure is permitted by an Act or by regulations
made under an Act, or if the disclosure has been authorised in writing by the
person whose identity would otherwise be protected (subclause
(2)).
1.219 It would be an offence for any person to disclose information
that would identify persons who have appointed a bargaining agent under clause
65. The maximum penalty for this offence is 12 months imprisonment (subclause
(3)).
1.220 Exceptions to the prohibition on disclosure are where the
disclosure:
• is required or permitted by any Act or by regulations made under an Act;
• has been authorised by the person whose identity would otherwise be protected; or
• is by a Registry official or authorised ballot agent (or a person
acting on their behalf) in the course of performing their functions or duties
(subclause (4)).
1.221 For the purposes of determining the burden of
proof in proceedings relating to offences under subclause (3), the exceptions
set out in subclause (4) would be part of the description of the offence. This
addresses the requirements of the Criminal Code Act 1995 (the Criminal
Code).
1.222 Subclause (5) provides definitions of the terms
“protected information” and “Registry official” for the
purposes of clause 66.
1.223 This Part contains provisions to promote the making of genuine
agreements in the building and construction industry and to prevent the
inclusion and operation of objectionable provisions in industrial
instruments.
1.224 Clause 67 provides the Federal Court with power to issue an injunction,
in whatever terms it considers appropriate, to restrain a person from engaging
in pattern bargaining in respect of building employees.
1.225 The ABC
Commissioner or any other person may apply to the Federal Court for an
injunction.
1.226 The Federal Court may grant an injunction against a
person or industrial association, if it is satisfied that the person or
industrial association is engaging, has engaged or is proposing to engage in
pattern bargaining. Reference is made to “industrial associations”
to capture unincorporated associations, as they would not fall within the
meaning of “person”.
1.227 Pattern bargaining is defined in
clause 8 as a course of conduct or bargaining, or the making of claims by a
person that involves seeking common wages or other common conditions of
employment and extends beyond a single business. A person seeking common wages
or other common conditions of employment beyond a single business will not be
engaging in pattern bargaining if the person is:
• genuinely trying to reach agreement on the matters that are the subject of the conduct; or
• seeking the inclusion of matters in a Federal or State award; or
• seeking the inclusion in a proposed agreement of terms and conditions which give effect to a decision of a Full Bench of the AIRC establishing national standards; or
• proposing to enter into a construction contract with the second
person and is engaging in the conduct solely to encourage a second person to
include particular eligible conditions (as defined in clause 4) in an enterprise
agreement covering the second person’s employees.
1.228 In all
other circumstances, where a person seeks common wages or other common
conditions of employment beyond a single business, an injunction may be obtained
to restrain that person from engaging in pattern bargaining, regardless of
whether the conduct occurs in relation to a proposed Federal agreement, a
proposed State agreement or a proposed unregistered or informal
agreement.
1.229 Subclause (2) provides the Federal Court with power to
grant an interim injunction pending the determination of an application for an
injunction.
1.230 Subclause (3) sets out the constitutional prerequisites
for the Federal Court’s exercise of power to grant an injunction.
Paragraph 3(c) allows the Federal Court to grant an injunction or interim
injunction where some or all of the employees, in respect of whom the pattern
bargaining conduct is engaged in, are employees or prospective employees of a
constitutional corporation. Reference is made to “prospective
employees” in order to regulate pattern bargaining conduct in greenfields
situations, where an employer is yet to engage any employees in its
business.
1.231 The Federal Court may grant an injunction regardless of
whether it appears to the Court that the defendant intends to engage again,
continue to engage or has previously engaged in pattern bargaining conduct and
regardless of whether there is an imminent danger of substantial damage to any
person if the defendant engages in pattern bargaining conduct (subclause
(4)).
1.232 Subclause (5) makes it clear that an injunction may be
granted and enforced to restrain pattern bargaining conduct even if it otherwise
meets the requirements for protected action.
1.233 Clause 68 makes it clear that project agreements in any form are
unenforceable unless certified under the WR Act (subclause (1)). This provision
affects agreements only and does not apply to awards, whether made by consent or
otherwise. Section 170LC of the WR Act specifies the conditions under which a
“multiple business agreement” may be certified.
1.234 Project
agreements usually provide standard employment conditions for employees employed
in a number of different businesses on a particular building site or sites and
provide a means for securing “pattern” outcomes. This is contrary
to the WR Act’s focus on bargaining at the enterprise or workplace level.
1.235 Clause 68 is not intended to render unenforceable an agreement
securing standard employment conditions for the employees of a single employer
working across a number of building sites (paragraph
(1)(b)).
1.236 Paragraph 68(1)(c) describes the kinds of agreements that
are rendered unenforceable by this clause. Any project agreement will be
unenforceable to the extent to which it relates to building employees if at
least some of the employees to which the agreement applies are:
• members of an organisation that is party to the agreement; or
• employees of a constitutional corporation that is party to the
agreement.
1.237 Section 170LB of the WR Act is to be disregarded when
determining whether employees are employed by the same employer (subclause (2)).
This is to ensure that the situations set out in section 170LB(2) where two or
more employers are taken to be one employer do not apply for the purposes of
this clause.
1.238 A legislative note appended to this section refers to
clauses 56 and 67. These provisions will operate to prevent the implementation
of common agreements on project sites through pattern bargaining.
• Clause 56 prohibits the AIRC from certifying an agreement unless satisfied that it is not a pattern agreement.
• Clause 67 gives the Federal Court power to issue an injunction to
restrain pattern bargaining conduct.
1.239 Also relevant is clause 174
which prohibits a person from discriminating against another person on the
ground that the industrial instrument covering or proposed to cover that
person’s employees is of a particular kind or made with a particular
person.
1.240 Subclause 69(1) renders void any provision of a building certified
agreement or building award to the extent that it is an objectionable provision.
The definition of objectionable provision is set out in clause 7 of the Bill.
1.241 Subclause 69(2) renders void any provision of any agreement,
arrangement or award that would require or permit, or have the effect of
requiring or permitting any conduct that would contravene Chapter 7 of the Bill,
which deals with freedom of association.
1.242 The AIRC, where it is satisfied that a building award contains
objectionable provisions, must remove those provisions from the award upon
application by any of the persons listed in subclause (2) (subclause
(1)).
1.243 The AIRC, where it is satisfied that a building agreement
contains objectionable provisions, must remove those provisions from the
agreement upon application by any of the persons listed in subclause (4)
(subclause (3)).
1.244 This clause provides that the compliance arrangements set out in Part VIII of the WR Act apply in relation to building awards, building certified agreements and building orders – i.e. an order of the AIRC under this Act or an order of the AIRC under the WR Act that is binding on a building employer or building employee, with the following modifications:
• references to a magistrates court are to be read to include the Federal Magistrates Court;
• references to penalty amounts in subsections178(4) and (4A) are to be converted into penalty units as follows:
– $1,000 to become 100 penalty units;
– $2,000 to become 200 penalty units;
– $5,000 to become 500 penalty units; and
– $10,000 to become 1,000 penalty
units.
1.245 The maximum amount that the court can award in a small
claims procedure is also to be increased. The reference in paragraph 179D(2)(a)
of the WR Act to $5,000 is to be read as $25,000.
CHAPTER 6 – INDUSTRIAL ACTION ETC.
1.246 This Chapter sets
out rules relating to industrial action for the building and construction
industry. The Chapter:
• renders certain kinds of industrial action unlawful;
• modifies what may be protected action for the purposes of the WR Act;
• requires the ABC Commissioner to be notified of certain matters in relation to industrial action; and
• sets out a scheme for secret ballots to approve the taking of
protected industrial action.
1.247 This Part contains relevant industrial action definitions for Chapter
6.
building industrial action
1.248 Building industrial action is
defined broadly to encompass conduct by employers and employees that adversely
affects the performance of building work. Paragraphs (e), (f) and (g) describe
exceptions to the definition of building industrial action.
1.249 Paragraph (e) excludes action by employees that has been
authorised or agreed to in advance and in writing by the employer of those
employees. Paragraph (f) excludes action by an employer that has been
authorised or agreed to in advance and in writing by or on behalf of the
employees of that employer. The requirement for the action to be authorised or
agreed to in advance and in writing is intended to prevent the application of
pressure on parties to authorise industrial action
retrospectively.
1.250 Paragraph (g) excludes action by an employee where
that action is based on a reasonable concern by the employee about an imminent
risk to his or her own health and safety and the employee did not unreasonably
fail to comply with any direction of his or her employer to perform other
available work that was safe for the employee to perform. The employer may
direct the employee to perform available work at the same or any other
workplace.
constitutionally-connected action
1.251 A definition of
constitutionally-connected action is required in order to constitutionally limit
the broad operation of building industrial action in circumstances where it is
necessary to do so. Only one of the conditions needs to be met in order to
provide a constitutional basis for regulating the industrial
action.
1.252 Paragraph (a) refers to building industrial action being
taken by an organisation. Clause 247 of the Bill makes it clear that action
taken by a group of members of an organisation is action taken by the
organisation where it has been authorised by the rules of the organisation, the
committee of management or an officer or agent of the organisation acting in
that capacity.
Excluded action
1.253 The term “excluded action” is
used to designate the kinds of industrial action that will not be unlawful
industrial action under this Bill. Only protected action under the WR Act as
modified by this Bill and AWA industrial action will be excluded action.
1.254 In accordance with the recommendations of the Royal Commissioner,
action protected under State and Territory legislation will not be excluded
action for the purposes of this Bill.
industrially-motivated
1.255 This term is used to distinguish
conduct that is generally recognised as industrial action from conduct that,
while technically falling into the broad definition of building industrial
action, would not be considered to be industrial action as that term is commonly
understood. For example, a mere failure to attend for work may occur for a
number of reasons and will not necessarily be considered to be industrial action
unless the failure to attend is for one of the reasons, or for reasons including
one of the reasons, listed in this definition.
1.256 In order for action
to be industrially-motivated, it is not necessary that it be taken solely for
one of the reasons listed in the definition, nor must a reason listed in the
definition be the dominant purpose for the action. It must merely be one of the
purposes for which the action is taken. Where, for example, the purpose is to
disrupt the performance of work in order to attain a particular goal, the action
will be industrially-motivated.
1.257 For action to be
industrially-motivated, it is not necessary for the action to be taken to
support or advance claims against the employer of the employees taking the
action. Action by employees to support or advance claims by a separate group of
employees against a different employer will also be considered
industrially-motivated.
1.258 If a person seeks to argue that they have
not engaged in industrial action on the grounds that the action falls within the
exception for action based on an imminent risk to health and safety, the onus is
on that person to prove that the action was based on a reasonable concern about
an imminent risk to health and safety (subclause (2)). This provision has been
included to prevent persons engaging in industrial action from avoiding
responsibility for their actions by relying on spurious health and safety
risks.
1.259 Subclause 72(3) is modelled on subsection 4(9) of the WR
Act. Paragraph (3)(a) makes it clear that action, such as the implementation of
work bans, by either an employee or employer will still be building industrial
action, even if it relates to only part of the duties that an employee is
required to perform in the course of employment. Paragraph (3)(b) makes it
clear that industrial action may include a course of conduct.
1.260 This Part contains provisions to prevent the occurrence of unlawful
industrial action.
1.261 Unlawful industrial action is defined as all
constitutionally-connected, industrially-motivated building industrial action
that is not excluded action (as defined in clause 72). For example, where the
reason, or one of the reasons for the industrial action is a demarcation dispute
between unions, such action will be unlawful industrial action.
1.262 Clause 74 prohibits a person from engaging in unlawful industrial
action. This is a Grade A civil penalty provision.
1.263 In addition to
the general rules applying to civil penalty provisions, outlined at the
beginning of the explanatory memorandum, clause 227 of the Bill will allow an
action in relation to unlawful industrial action to also be brought by any
eligible person in the Federal Magistrates Court or any Supreme, District or
County Court of a State or Territory.
1.264 Subclause 227(4) provides
an appropriate court with power, in respect of a contravention of this clause,
to grant an injunction regardless of whether it appears to the court that the
defendant intends to engage again, continue to engage or has previously engaged
in unlawful industrial action and regardless of whether there is an imminent
danger of substantial damage to any person if the defendant engages in unlawful
industrial action.
1.265 This clause allows the ABC Commissioner, or any other person who
becomes aware of threatened, impending or probable unlawful industrial action,
to make application to an appropriate court for an injunction to prevent
the occurrence of the unlawful industrial action.
1.266 An appropriate
court will be able to grant an interim injunction, pending its determination of
the application for the injunction (subclause (2)).
1.267 An appropriate
court will be able to grant an injunction regardless of whether it appears to
the court that the defendant intends to engage again, continue to engage or has
previously engaged in unlawful industrial action and regardless of whether there
is an imminent danger of substantial damage to any person if the defendant
engages in unlawful industrial action (subclause (3)).
1.268 The term
appropriate court is defined in subclause (4) for the purposes of this
clause as being the Federal Court, the Federal Magistrates Court, the Supreme
Court of a State or Territory or any District or County Court of a
State.
1.269 Clause 76 requires an employer whose employees have engaged in unlawful
industrial action to notify the ABC Commissioner, in writing, within 14 days of
becoming aware that the industrial action has ended.
1.270 This is a
Grade B civil penalty provision.
1.271 There will be a form prescribed
by the regulations for the purposes of notifying the ABC Commissioner under this
clause. Employers will be required to provide the particulars indicated in the
form (subclause (2)).
1.272 In some cases, the ABC Commissioner may
require further information from the employer and will issue a written notice to
the employer to provide additional information about the damage suffered as a
result of the unlawful industrial action (subclause (3)).
1.273 If
issued with a notice under subclause 76(3), the employer must provide the
information within the time period specified in the notice (subclause 76(4)).
1.274 This is a Grade B civil penalty provision.
1.275 False
and misleading statements are covered by the Criminal Code.
1.276 An
obligation to notify the ABC Commissioner of the commencement of industrial
action, whether unlawful or not, is in clause 135.
1.277 Under paragraph 227(1)(b), an appropriate court may make an order
requiring a person who has contravened a civil penalty provision to pay
compensation for damage suffered by another person as a result of the
contravention.
1.278 Where a person has suffered loss as a result of
alleged unlawful industrial action, clause 77 will allow the ABC Commissioner to
nominate, in writing, an ABC Inspector to assess the amount of damage. The
amount is to be assessed by reference to the amount a court could order the
person to be paid as compensation for the damage suffered. The alleged
contravention, in respect of which the assessment is being conducted, must be
specified in the document nominating an ABC inspector to carry out the
assessment (subclause (1)).
• Paragraph 237(1)(d) provides an ABC Inspector with power to enter premises for the purpose of making an assessment under this clause.
• ABC Inspectors conducting loss assessments will be appropriately
qualified. Clause 25(3) enables the ABC Commissioner to engage persons having
suitable qualifications and experience as consultants to the ABC Commissioner.
Such consultants may be appointed as ABC Inspectors under paragraph 235(1)(c) of
the Bill.
1.279 After performing the assessment, the ABC Inspector may
issue a certificate. The certificate must specify the assessment figure, the
person who suffered the damage and the alleged contravention (subclause
(2)).
1.280 Where more than one person suffers damage as a result of the
alleged contravention, the ABC Inspector may issue more than one certificate in
respect of the contravention. Each certificate must specify the amount that the
person named in the certificate could be paid in
compensation.
1.281 Where a court finds that the specified unlawful
industrial action occurred (in contravention of clause 74), the certificate is
prima facie evidence of the loss suffered by a person as a result of the
specified contravention (subclause (3)). This does not prevent any party to the
proceedings from challenging the certificate.
1.282 Subclause (4) enables
persons to rely on the validity of documents that purport to be certificates
issued under this clause unless the document is proven not to be such a
certificate.
1.283 This Part contains exceptions to the rules governing protected action
under the WR Act, and new requirements for secret ballots authorising protected
action.
1.284 This Division outlines circumstances in which building industrial
action will not be protected action for the purposes of the WR Act. These
circumstances are in addition to the requirements for protected action under the
WR Act.
1.285 Under clause 54, a building agreement may only be about matters that
pertain to the relationship between the employer and the employees who will be
subject to the agreement.
1.286 Clause 78 makes it clear that any
building industrial action in support of claims that cannot be included in a
building certified agreement is not protected action for the purposes of the WR
Act. Where building industrial action is taken for the purpose of supporting or
advancing a number of claims, the action will not be protected action if any of
the claims for which the action is taken does not pertain to the relationship
between the employer and the employees who will be subject to the
agreement.
1.287 Building industrial action in support of a claim that is
incidental to a matter pertaining to the employment relationship and is
essential for the purpose of making a particular provision of the agreement
operate in a practical way will still be protected action, provided that it
meets all other requirements for protected action.
1.288 Clause 79 makes it clear that any building industrial action which is engaged in in concert with unprotected persons, or organised by persons including unprotected persons, will itself be unprotected. An unprotected person is anyone other than:
• a negotiating party to the proposed agreement;
• a member of an organisation that is a negotiating party to the proposed agreement and whose employment will be subject to the agreement; or
• an officer or employee of an organisation that is a negotiating party
and who is acting in that capacity.
1.289 Clause 80 makes it clear that where the employment of employees is
subject, in any respect, to a building certified agreement or agreements,
building industrial action taken prior to the nominal expiry date of any one of
those agreements will not be protected action.
1.290 This provision is
largely modelled on section 170MN of the WR Act. However, the reference to
“in any respect” in subclause (1) is designed to address an apparent
anomaly in the WR Act identified by the Federal Court in Emwest v Automotive,
Food, Metals, Engineering, 6.45 Printing and Kindred Industries Union
(2003) FCAFC 183. In that case, the court held that section 170MN of the WR Act
did not prevent employees taking protected industrial action in respect of
issues not covered by a certified agreement. This is contrary to the intent of
the provision.
1.291 Clause 81 imposes mandatory cooling-off periods on parties taking
building industrial action. The purpose of these cooling-off periods is to
limit the serious economic harm caused by industrial action and to encourage
parties to continue negotiations in a less heated
environment.
1.292 Subclause (1) imposes a mandatory 21 day cooling-off
period that applies 14 days after industrial action has been notified to
commence, regardless of whether industrial action has been taken on each or any
of those 14 days. The cooling-off period is imposed by providing that building
industrial action taken during the cooling-off period is not protected
action.
1.293 After the 21 day cooling-off period, further protected
building industrial action may be taken (provided it meets all other
requirements for protected action) if the AIRC issues a certificate to cover the
building industrial action (subclause (2)).
1.294 A certificate to cover
the building industrial action may be issued on application by the person who
notified the initial industrial action. In considering whether to issue the
certificate, the AIRC must have regard to all of the matters listed at
paragraphs (a) to (g) (subclause (3)).
1.295 The certificate issued by
the AIRC can authorise no more than 14 days further industrial action (subclause
(4)) and can only sanction industrial action authorised by the original secret
ballot approving the industrial action.
1.296 After those 14 days have
elapsed, a further mandatory cooling-off period of 21 days is imposed before an
application may be made to the AIRC for further approval to take industrial
action (subclause (5)). In considering whether to issue a further certificate,
the AIRC must again have regard to all of the matters listed at paragraphs (a)
to (g) of subclause (3).
1.297 Paragraph (5)(c) makes it clear that no
application may be made to the AIRC for a certificate authorising industrial
action while the bargaining period is suspended under section 170MW of the WR
Act.
1.298 Subclause (6) provides that notification of intent to take
industrial action under section 170MO of the WR Act is not required where the
industrial action has been authorised by a certificate issued by the AIRC. This
is because affected parties would have sufficient warning of impending
industrial action as a result of the procedure involved with the issue of the
certificate by the AIRC.
1.299 Under clause 82, building industrial action for the purpose of
supporting or advancing claims against an employer can only be protected action
if it is authorised in advance by a ballot held in accordance with the
requirements of Division 2 of Part 3 of Chapter 6.
1.300 Building
industrial action in response to a lockout by the employer of the employees,
whose employment will be subject to the agreement, is not required to be
authorised in advance by a secret ballot.
1.301 Clause 83 provides that subsections 170MP(1) and (2) of the WR Act do
not apply to building industrial action. Subsections 170MP(1) and (2) provide
that industrial action is not protected unless the organisation or employees
taking action have genuinely tried to reach agreement.
1.302 This
requirement will no longer be necessary as the issue of whether a union or
employees proposing to take industrial action have been genuinely trying to
reach agreement will be considered by the AIRC when it is determining an
application for a protected action ballot under clause
97.
1.303 Subclauses (2) and (3) provide that a negotiating party is not
engaging in protected industrial action unless it has complied with any order or
direction made by the AIRC in relation to the negotiations.
1.304 Clause 84 makes it clear that where a person organises building
industrial action, the act of organising the industrial action will not be
protected action if the action being organised would not be protected action
under any of the additional rules regulating access to protected action imposed
by Division 1 of Part 3 of Chapter 6.
1.305 This Division contains the requirements that must be met by a secret
ballot, in order for that ballot to authorise protected action.
1.306 This Subdivision contains the object and an overview of the Division
along with the definitions applicable to this Division.
1.307 Clause 85 establishes the object of this Division: to provide employees
with access to a process of free and democratic secret ballots to determine
whether protected building industrial action should be taken. The provisions
are designed to be facilitative (i.e. to provide the means for accessing
protected action) not prohibitive (i.e. to outline the circumstances in which
such action is not available). This clause also makes clear, in a legislative
note, that a protected action ballot would not be required in the case of action
taken in response to a lockout by the employer.
1.308 Clause 86 defines the terms used in this Division.
1.309 This Subdivision sets out who may apply for a protected action ballot
order and the manner in which such an application must be made.
1.310 Under clause 87, an application for a protected action ballot could
only be made once a bargaining period has commenced. However, if there is an
existing agreement applying to relevant employees (“relevant
employee” is a defined term – see clause 86) then the application
cannot be made more than 30 days before the nominal expiry date of the agreement
or, if there is more than one agreement, the latest nominal expiry date of those
agreements. This reflects the fact that protected action may not be taken
before the nominal expiry date of an agreement (see clause 80) and that a secret
ballot can only authorise industrial action that commences within a 30 day
period from the declaration of the ballot or the nominal expiry date of an
existing agreement (whichever is later) (see clause 114).
1.311 Who can
make the application depends on who initiated the bargaining period under
section 170MI of the WR Act. Under subclause 87(4), if a union initiated the
bargaining period, then that union could apply to the AIRC for a ballot order.
If an employee or employees seeking a non-union agreement initiated the
bargaining period, then any employee who would be subject to the proposed
agreement, or such employees acting jointly, could apply to the AIRC for a
ballot order.
1.312 To ensure that a sufficient level of employee support
exists to justify the holding of a ballot in relation to employees seeking a
non-union agreement, subclause (5) will provide that an employee or employees
acting jointly are unable to make an application to the AIRC for a ballot order
unless the application has the support of a prescribed number of employees who
would be subject to the proposed agreement. (The equivalent requirement in the
case of ballot applications by a union, is that the union is to be required to
provide evidence that the application has been authorised by or through the
union’s committee of management - see subclause
89(2)).
1.313 6.68 The term “prescribed number” is defined in
subclause 86. The “prescribed number” varies depending on the size
of the workplace:
• if there are less than 80 employees who would be subject to the proposed agreement, then at least two of the employees would be required to support the ballot application.
• if there are between 80 and 5000 employees who would be subject to the proposed agreement, at least 5 per cent of the employees would be required to support the ballot application.
• if there are more than 5000 employees who would be subject to the
proposed agreement, then at least 250 of the employees would be required to
support the ballot application.
1.314 Subclause (6) provides that where
an employee or employees have initiated a bargaining period for a non-union
agreement and building industrial action is proposed, an employee or employees
acting jointly may appoint an agent to represent them in making the ballot
application and for all purposes connected with the ballot application. This is
intended to enable employees making an application to remain anonymous.
1.315 Clause 88 proposes mandatory requirements for a ballot application under clause 87. Applications would be required to include the following information:
• the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed building industrial action; and
• details of the types of employees who are to be
balloted.
1.316 Regulations may be made under this clause in respect of
any matter to be included in an application.
1.317 Subclause 88(2) allows
the ballot order applicant to nominate a person to conduct the ballot (although
the question of who is to conduct the ballot is ultimately determined by the
AIRC – paragraph 99(1)(e) and clause 116).
1.318 Clause 89 would require the applicant to provide certain material to the AIRC with the ballot application, including:
• a copy of the notice initiating the bargaining period and the particulars accompanying that notice;
• a declaration by the applicant that the industrial action to which the application relates is not for the purpose of advancing or supporting claims to include an “objectionable provision” (as defined in clause 7 of the Bill);
• if the applicant is an organisation of employees, a written notice showing that the application has been duly authorised in accordance with the organisation’s rules; and
• if the applicant is represented by an agent, a document containing
the name of the employee applicant or applicants.
1.319 False and
misleading statements are covered by the Criminal Code.
1.320 Clause 90 would require the applicant to give a copy of the application
to the relevant employer and any person nominated in the application to conduct
the ballot within 24 hours of the application being lodged with the AIRC.
However, the applicant would not be required to give these parties copies of the
supporting material that must be given to the AIRC with the application under
clause 89, such as the document containing the names of applicant employees
where the applicants are represented by an agent.
1.321 The Industrial
Registrar would be required to inform the ABC Commissioner of the application
pursuant to clause 251 of the Bill.
1.322 Clause 91 provides that where an employee seeking a non-union agreement
initiated a bargaining period for the proposed agreement, two or more employees
who would be subject to the proposed agreement could make a ballot application
jointly (subclause (1)).
1.323 If a joint application was made, another
employee could, with the consent of the other applicants, add their name to the
application, and an applicant could withdraw their name from the application.
Either adding or withdrawing names may be done at any time before the
application is determined (subclauses (2) and (3)).
1.324 Regulations may
be made specifying how the provisions of the Bill relating to ballot orders
apply to joint applicants (subclause (4)).
1.325 This Subdivision contains substantive and procedural provisions about
the determination of the application for a ballot order and specifies the
contents of the ballot order and procedural provisions in relation to the ballot
order.
1.326 This clause would allow the AIRC, after an application for a ballot
order is lodged, to notify all parties of the procedure for dealing with the
application if the AIRC considers that this will not delay, and may expedite,
the determination of the application.
1.327 In exercising its powers under this Division, the AIRC must act as
quickly as practicable and would be required, as far as is reasonably possible,
to determine an application for a ballot order within two working days of the
application being made (subclause (1)). A legislative note makes it clear that,
in exercising its powers under this Division, the general procedural obligations
on the AIRC (such as the requirements to act according to equity, good
conscience and the substantial merits of the case) are
applicable.
1.328 In spite of the timeframe foreshadowed by this clause,
the AIRC must not deal with an application for a ballot order unless it is
satisfied that the notice requirements in clause 90 have been complied with and
those with a relevant interest have had a reasonable opportunity to make
submissions in relation to the application. (The indicative timeframe for
dealing with applications would be a factor in determining what was reasonable
in the circumstances.)
1.329 Paragraph 111(1)(g) of the WR Act does not
apply to ballot proceedings under this Division (subclause (3)). Paragraph
111(1)(g) allows the Commission to dismiss or to refrain from hearing or
determining a dispute on various grounds, including that: the dispute is
trivial; the dispute is being dealt with by a State industrial authority; or a
party to the dispute is engaging in conduct that is hindering the settlement of
the dispute, or has breached an award, agreement or order of the AIRC, etc.
Under subclause 94(4), however, the AIRC would still be able to refrain from
considering a submission if it was satisfied that the submission was vexatious,
frivolous, misconceived or lacking in substance.
1.330 A party or a relevant employee (both terms are defined in clause 86),
will be entitled to make submissions to, or to apply for directions from the
AIRC about the application, or about any aspect of the conduct of the protected
action ballot (subclause (1)). A legislative note reminds readers of the
ability of the AIRC to summon witnesses to help in the determination of an
application for a ballot order or related directions.
1.331 Subclause (2)
would allow a person who has been nominated in an application to conduct a
ballot to make submissions and apply for directions relating to the
application.
1.332 Subclause (3) would allow an authorised ballot agent
to make submissions, and apply for directions, relating to any aspect of a
protected action ballot.
1.333 Subclause (4) would allow the AIRC to
refuse to consider a submission if the AIRC was satisfied that the submission
was vexatious, frivolous, misconceived or lacking in substance.
1.334 Clause 95 would enable the AIRC to make directions regarding an
application for a ballot order or about any aspect of the conduct of a protected
action ballot. Any such directions would be orders of the
AIRC.
1.335 Subclause (2) would expressly authorise the AIRC to issue
directions to ensure that ballots are conducted
expeditiously.
1.336 Subclause (3) would require the AIRC, in considering
whether to issue such directions, to have regard to the desirability of the
ballot results being available to the parties within 10 days of a ballot order
being made.
1.337 Clause 96 seeks to ensure that any disruption that may be caused to an
employer’s operations by the conduct of more than one protected action
ballot proposed to be held within a short space of time can be minimised
(especially eg attendance ballots).
1.338 The AIRC would be specifically
empowered to hear and determine at the same time applications that concerned the
same employer or that concerned the same place of work where different employers
were involved (this will be particularly relevant in the case of a construction
site).
1.339 For example, if an order had been made concerning a
particular employer or place of work and a further application was made
concerning that employer or place of work, the AIRC would be able to determine
that the later ballot be held at the same time as the first ordered ballot, or
it could vary the order for the first ordered ballot to require both ballots to
be held at the same time. However, the AIRC may only determine the applications
at the same time, or order that ballots be conducted at the same time, if it
considers that doing so will not unreasonably delay the determination of any
application (paragraph (1)(c)) or the conduct of either ballot (paragraph
(2)(d))
1.340 Clause 97 provides that the AIRC must grant an application for a ballot
order if it is satisfied that the applicant has, during the bargaining period,
genuinely tried to reach agreement with the employer and is continuing to do so.
Conversely, the AIRC must not grant an application for a ballot order unless it
is satisfied of these conditions.
1.341 Subclause (2) provides the AIRC
with discretion to refuse an application even if satisfied that the
prerequisites for a ballot have been met, in circumstances where the applicant,
or an employee or union member who would be eligible to vote in the proposed
ballot, has at any time contravened a provision of this Division or an order or
direction made by the AIRC under this Division. A legislative note sets out the
provisions under which orders can be made under this Division.
1.342 Clause 98 would provide that if the AIRC grants an application for a
ballot order, the AIRC must order the applicant to hold a ballot in accordance
with this Division.
1.343 Clause 99 sets out the information that would be required to be
contained in a ballot order made by the AIRC.
1.344 Subclause (1)
requires a ballot order to specify:
• the name of the applicant or the applicant’s agent;
• the type of employees to be balloted;
• the voting method;
• the timetable for the ballot;
• the name of the person authorised by the AIRC to conduct the ballot and the independent adviser for the ballot (if one is required – see subclauses 116(3) and (4) for when an independent adviser is necessary); and
• the question or questions to be put to the relevant employees in the
ballot, including the nature of the proposed action.
1.345 Subclause (2)
requires the order to specify a postal ballot as the voting method unless the
AIRC is satisfied that another voting method proposed in the application is more
efficient and expeditious than a postal ballot.
1.346 Subclause (3)
provides that if the order specifies a postal ballot as the voting method, it
must specify that the voting take place by way of declaration voting.
The subclause then sets out what is meant by declaration voting, including that
the ballot paper must be placed in a declaration envelope. Declaration
envelope is defined in clause 86 to mean an envelope in the form prescribed
by the regulations on which a voter is required to make a declaration containing
the prescribed information. This approach will assist an authorised ballot
agent to ensure that only the votes of those entitled to vote are counted while
still maintaining the secrecy of the ballot.
1.347 If a ballot is to be
conducted by an attendance vote, the ballot order would be required to specify
that voting is to take place during breaks or otherwise outside work hours
(subclause (4)).
1.348 Paragraph 114(1)(b) requires a prescribed
percentage (normally 40 per cent) of those eligible to vote to cast a valid vote
in order for industrial action to be authorised by the protected action ballot.
Subclause (5) allows the AIRC to specify a lesser percentage if satisfied that
this is justified by special circumstances.
1.349 Subclause (6) would
allow the AIRC, if it is satisfied that there are exceptional circumstances to
justify it, to extend the period of written notice of intention to take
industrial action that is required from three days (paragraph 170MO(2)(b) of the
WR Act) to up to seven days.
1.350 To assist the AIRC in speedily determining applications, the President
of the AIRC would be given the power to develop guidelines concerning timetables
for the conduct of ballots under this Division. The President may consult with
the Australian Electoral Commission or any other person in developing the
guidelines under this clause.
1.351 The only employees who would be eligible to vote in protected action
ballots are those who would be subject to the proposed agreement and, in the
case of union initiated ballots, are members of the union that is the applicant
for the order. To determine whether a particular person is eligible to vote in
a ballot would frequently require the AIRC (or the authorised ballot agent) to
obtain information from the employer and the applicant.
1.352 To
address this, subclause (1) would allow the AIRC to order the applicant or the
employer of the employees (or both) to provide the AIRC with a list of employees
who might be eligible to vote in a proposed ballot, and any other information
that the AIRC reasonably requires to assist in compiling the roll of voters for
the proposed ballot.
1.353 The AIRC would be able to require the list or
other information to be provided either to the AIRC or to the authorised ballot
agent and could require it be provided in whatever form the AIRC thinks is
appropriate (subclauses (2) and (3)).
1.354 Clause 102 would provide for the compilation of the roll of voters by
the AIRC, which must provide the roll to the authorised ballot agent or,
alternatively, the AIRC may order that the authorised ballot agent compile the
roll.
1.355 Subclause 103(1) would establish that a person is only eligible to vote in a protected action ballot if the person:
• was employed by the relevant employer on the day the ballot order was made; and
• would be subject to the proposed agreement in respect of which the
relevant bargaining period was initiated.
1.356 Additionally, if the
applicant for the ballot order was an organisation of employees, the person
would be required to have been a member of the organisation on the day the
ballot order was made by the AIRC.
1.357 Further, under subclause 103(2),
a person whose employment is subject to an AWA that had not passed its nominal
expiry date, would not be eligible to vote in a ballot, even if the person meets
the other requirements for eligibility in subclause (1). This is because the
AWA, if it remains in place, would operate to the exclusion of the proposed
certified agreement.
1.358 The ballot agent would be required to add a person’s name to the
roll of voters for a ballot at any time before voting in the ballot is finished,
if the person requests that their name be added to the roll, and the ballot
agent is satisfied that the person is eligible to be included on the roll of
voters (subclause (1)).
1.359 In addition, a person is to be able to
apply to the AIRC for a declaration that they are eligible to be included on the
roll of voters for a ballot. If the AIRC is satisfied that the person is
eligible to be included on the roll of voters and voting in the ballot has not
finished, the AIRC would be required to make the declaration sought and direct
the ballot agent to include the person’s name on the roll of voters for
the ballot (subclause (2)).
1.360 A party to a ballot order, a person
whose name is on the roll of voters for the ballot or the authorised ballot
agent, is to be able to apply to the AIRC for a declaration that a person whose
name is on the roll of voters is not eligible to be included on the roll. If,
in the case of a postal ballot, voting had not yet finished, or in the case of
any other type of ballot, voting had not yet started, and the AIRC was satisfied
that the person was not eligible to be included on the roll of voters, the AIRC
would be required to make the declaration sought and direct the ballot agent to
remove the person’s name from the roll of voters (subclause
(3)).
1.361 If a person’s name was removed from the roll as
outlined above and a postal ballot had already commenced and the person had cast
a vote, the ballot agent would be required to take all reasonable steps to
ensure that the person’s vote was not counted (subclause (4)).
1.362 Subclause 105(1) would allow an applicant for a ballot order to apply
to the AIRC, at any time before the expiry of the ballot order, to have the
ballot order varied; for example to deal with unanticipated
circumstances.
1.363 Subclause 105(2) would allow the authorised ballot
agent under a ballot order to apply to the AIRC, at any time before voting under
the ballot has finished, to have the voting method or timetable for the ballot
specified in the ballot order varied. This would enable the ballot agent to
request an alteration in the timetable if, for example, it encounters
difficulties in compiling the roll of voters that would prevent it from
completing the ballot within the ordered timeframe.
1.364 Clause 106 provides that a ballot order expires at the end of the
period specified in the order if the ballot has not been held. It would be open
for an applicant for a ballot order to apply to the AIRC to have the order
revoked at any time before the order expires; for example, if the matters at
issue are resolved before the ballot is conducted. If such an application were
made, the AIRC would be required to revoke the order.
1.365 Clause 107 makes clear that a person or organisation of employees must
comply with an order or direction under this Division that applies to them. (A
ballot order would only apply to the applicant, although separate orders and
directions could be made which would apply to other parties.)
1.366 This
is a Grade A civil penalty provision.
1.367 Clause 108 would require the AIRC to ensure that a copy of that order
is given to each party to the application and the authorised ballot agent, as
soon as practicable after it makes a ballot order.
1.368 This Subdivision contains provisions relating to the conduct and effect
of a protected action ballot.
1.369 Clause 109 would provide that a ballot will not be a protected action
ballot unless it is conducted by the authorised ballot agent (this term is
defined in clause 86).
1.370 The effect of this clause is that a ballot
must be conducted by the ballot agent authorised by the AIRC in the ballot order
for it to comply with the requirements of this Division. If anyone other than
the authorised ballot agent conducts the ballot then any industrial action taken
following the ballot would not be protected action for the purposes of clause 82
of the Bill.
1.371 Clause 110 sets out the information that must be included on a ballot paper for a protected action ballot:
• the name of the applicant or applicant’s agent (as the case requires);
• the types of employees who are to be balloted (for example their occupations, work groups and locations – similarly required in paragraph 170MJ(b) of the WR Act);
• the name of the ballot agent authorised to conduct the ballot;
• the question or questions to be put to the voters, including the nature of the proposed action;
• a statement that the voter’s vote is secret and that the voter is free to choose whether or not to support the proposed industrial action; and
• instructions to the voter on how to complete the ballot
paper.
1.372 Clause 111 would provide that a person cannot vote in a ballot unless
the person’s name is on the roll of voters for the ballot (established
under clause 102).
1.373 Clause 112 would require the authorised ballot agent to make a
declaration of the results of the ballot and inform the applicant, the affected
employer and the Industrial Registrar of the results as soon as practicable
after the end of voting. Both the declaration and the notice informing the
parties must be in writing.
1.374 Clause 113 would require the authorised ballot agent and authorised
independent adviser (if one has been appointed), to provide a written report to
the Industrial Registrar about the conduct of the ballot as soon as practicable
after the end of voting (subclauses (1) and (4)). Subclauses (1) and (4) are
Grade B civil penalty provisions.
1.375 The reports must set out the
details of any complaints made to the authorised ballot agent or authorised
independent adviser about the conduct of the ballot or any irregularities in the
conduct of the ballot that have come to their attention (subclauses (2) and
(5)). Subclause (7) defines what is meant by “conduct” and
“irregularity” in this clause. However, these requirements do not
limit what may be included in the report, nor does the absence of these factors
mean a report is not necessary.
1.376 The report could be relevant in any
future consideration by the AIRC as to whether someone is a fit and proper
person to be an authorised ballot agent or independent ballot adviser.
1.377 Subclause 114(1) provides that industrial action will only be authorised by a protected action ballot if:
• the action was the subject of a ballot conducted in accordance with the provisions of this Division;
• at least 40 per cent of persons on the roll of voters for the ballot established under clause 102 voted in the ballot or a lesser percentage specified by the AIRC (for when this may occur see subclause 99(5));
• more than 50 per cent of the votes cast in the ballot approved the industrial action; and
• the action commences within a 30 day period after the later of the
date of the declaration of the results of the ballot or the nominal expiry date
of the existing agreement (or the last occurring nominal expiry date if there is
more than one existing agreement). The AIRC can extend this 30-day period by up
to 30 days if both the employer and applicant for the ballot order jointly apply
for such an extension. There may only be one such extension (see subclauses (3)
and (4)).
1.378 The action is not authorised if it occurs after the end
of the bargaining period that gave rise to the application for a ballot (section
170MV of the WR Act sets out when a bargaining period ends) (subclause (2)).
1.379 Subclause (6) ensures that the phrase “existing
agreement” includes an old IR agreement (that is, an agreement certified
under the Act as it stood before 31 December 1996).
1.380 Clause 115 would require the Industrial Registrar to keep, for each
ballot held under this Division, a record of questions put to the voters and the
results of the ballot. The Registrar would be required to publish the results
of a ballot as soon as practicable after being notified of the results by the
authorised ballot agent.
1.381 This Subdivision contains provisions setting out minimum standards for
authorised ballot agents and authorised independent advisers.
1.382 6.136 Clause 116 sets out whom the AIRC may name as an authorised
ballot agent.
1.383 The AIRC may name either the Australian Electoral
Commission or another person (subclause (1)).
1.384 The AIRC must not
name a person other than the Australian Electoral Commission unless the AIRC is
satisfied that the person:
• is capable of ensuring the security and secrecy of votes cast in the ballot and that the ballot will be fair and democratic;
• will conduct the ballot expeditiously; and
• is otherwise a fit and proper person to conduct the ballot (subclause
(2). Subclause (5) allows regulations to be made to prescribe the conditions a
person must meet, and factors the AIRC must take into account, for the AIRC to
be satisfied that a person is a fit and proper person to conduct a
ballot.
1.385 Subclause (3) provides that an applicant may apply to be
the authorised ballot agent, although, in this case, the applicant must nominate
another person to be the authorised independent adviser for the ballot and the
AIRC must name that person as the authorised independent adviser (clause 117
sets out who may be authorised by the AIRC to be the independent adviser). This
additional requirement is designed to allow applicants to run their own ballots,
provided that the applicants are properly advised by independent advisers (see
clause 117).
1.386 Subclause (4) provides that an authorised independent
adviser must be nominated and appointed if the AIRC is satisfied that a person
nominated as the authorised ballot agent is not sufficiently independent of the
applicant.
1.387 Subclause 117(1) sets out who may be appointed as an authorised
independent adviser - the appointment of an authorised independent adviser may
be required by subclauses 116(3) or (4).
1.388 The AIRC must not name a
person as the authorised independent adviser unless it is satisfied that the
person is sufficiently independent of the applicant and is capable of providing
advice and recommendations to the authorised ballot agent that are directed
towards ensuring that the ballot will be fair and democratic (subclause (2)).
1.389 Regulations can be made to prescribe factors that the AIRC must
take into account when determining if a person is capable of providing such
advice and recommendations to the authorised ballot agent (subclause
(3)).
1.390 This Subdivision contains provisions regarding liability for the cost
of a ballot and provides for the Commonwealth partially to fund ballots under
this Division.
1.391 The applicant for a ballot order is liable for the cost of holding the
ballot. Where a ballot application was made jointly, each applicant is jointly
and severally liable for the cost of holding the ballot.
1.392 This
clause operates subject to the Commonwealth being partially liable for the
reasonable costs of the ballot if certain conditions are met (clause
119).
1.393 6.147 This clause provides that the Commonwealth will be liable for 80
per cent of the reasonable ballot costs (subclauses (2) and
(6)).
1.394 Where the authorised ballot agent is not the Australian
Electoral Commission, the Industrial Registrar is required to determine the
reasonable ballot cost, on application by the applicant within a reasonable time
after the completion of the ballot (subclause (1)).
1.395 Subclause (2)
provides that where subclause (1) applies, the Commonwealth is liable to pay to
the authorised ballot agent 80 per cent of the amount determined under that
subclause. To the extent that the Commonwealth becomes liable for the ballot
costs, the liability of the applicant is discharged (subclause
(3)).
1.396 Subclause (4) enables regulations to be made prescribing
matters that are to be taken into account by the Industrial Registrar in
determining whether ballot costs are reasonably and genuinely incurred for the
purposes of subclause (1).
1.397 Where the authorised ballot agent is the
Australian Electoral Commission, the Australian Electoral Commission must
certify, within a reasonable time after the completion of the ballot, the amount
of the reasonable costs charged by the Australian Electoral Commission to the
applicant in relation to holding the ballot (subclause (5)). The liability of
the applicant is then reduced by 80 per cent of the amount certified under
subclause (5).
1.398 Clause 120 prohibits the AIRC from disclosing information that would identify a person as:
• an applicant for a ballot order, where the applicant is represented by an agent;
• an employee who supports an application for a ballot order, for the purposes of subclause 87(5);
• a person whose name appears on the roll of voters for a ballot; or
• a person who is party to an AWA (subclause
(1)).
1.399 Exceptions to this rule are: if the disclosure was required
or permitted by an Act or by regulations made under an Act, or if the disclosure
has been authorised in writing by the person whose identity would otherwise be
protected (subclause (2)).
1.400 A similar prohibition on revealing information would apply to
persons generally under clause 121.
1.401 Under this clause, it would
be an offence to disclose the information listed in clause 120 where it has been
acquired in the course of performing functions or duties as a Registry official
or from such a person or in the course of performing functions or duties as or
on behalf of an authorised ballot agent or from such a person. The proposed
maximum penalty for this offence is 12 months imprisonment (subclause
(1)).
1.402 Proposed exceptions to the offence are set out in subclause
(2): a person may disclose protected information if the disclosure was made by a
Registry official, authorised ballot agent or authorised independent adviser in
the course of performing their functions or duties, if the disclosure was
required or permitted by any Act or by regulations made under an Act, or if the
disclosure had been authorised in writing by the person whose identity would
otherwise be protected. These exceptions reflect subsection 170WHB(2) of the WR
Act.
1.403 For the purposes of determining the burden of proof in
proceedings relating to offences under subclause (1), the exceptions set out in
subclause (2) are part of the description of the offence (subclause (3)). This
subclause addresses the requirements of the Criminal
Code.
1.404 Definitions of the terms “protected information”
and “Registry official”, which are used in subclause 121, are set
out in subclause (4).
1.405 Clause 122 proposes that where the results of a protected action
ballot, as declared by the authorised ballot agent, purport to authorise
particular industrial action, and an organisation or person organises or
participates in industrial action acting in good faith on the results of the
ballot, no legal action can be taken against that organisation or that person if
it turns out that the action was not in fact authorised by the ballot.
1.406 This immunity would not apply in cases where the industrial action
resulted in personal injury, wilful or reckless damage to property or the
unlawful taking or keeping of property. Also, subclause (2) provides that there
would be no immunity against legal action for defamation in the course of
industrial action. (These exceptions are in line with the exceptions to the
immunity provided by section 170MT of the WR Act).
1.407 Clauses 123 and 124 are designed to protect the integrity of the
conduct of ballots and ballot results, by limiting the circumstances in which
ballot orders, the conduct of ballots and ballot results may be
challenged.
1.408 Under clause 123, a ballot order, or a decision or
order relating to a ballot order, can only be challenged where:
• it is being alleged that another party has contravened (other than in a technical manner) the secret ballots provisions or an AIRC order relating to secret ballots; or misled the AIRC in proceedings to which the order or decision relates; and
• the relevant court considers that there is a reasonable basis for the
allegation.
1.409 Clause 124 protects ballot results and the conduct of
ballots from challenge where the ballot has been conducted or has purportedly
been conducted unless:
• it is being alleged that another party has: contravened (other than in a technical manner) the secret ballots provisions or an AIRC order relating to secret ballots; acted fraudulently in relation to the conduct or declaration; or acted in such a way as to cause an irregularity that affected, or could have affected the outcome of the ballot; and
• the relevant court is satisfied that there is a reasonable basis for
the allegation.
1.410 Subclause 124(3) defines conduct and irregularity,
and makes it clear that the conduct of a ballot extends to the compilation of
the roll of voters.
1.411 The limitations in clauses 123 and 124 do not
prevent a penalty being imposed upon a person for a contravention of either the
WR Act or this Bill. Criminal and civil sanctions that would otherwise be
relevant to the conduct in relation to a protected action ballot remain
applicable (for example, the criminal sanctions contained in section 317 of the
WR Act).
1.412 Under clause 125 an authorised ballot agent who conducts a ballot under
this Division would be required to keep the roll of voters, all ballot papers,
envelopes and other records relevant to the ballot for one year after completion
of the ballot. A maximum penalty of 60 penalty units applies to this
provision.
1.413 Clause 126 would ensure that if the Australian Electoral Commission
(AEC) is the authorised ballot agent for a ballot under this Division, it is a
function of the AEC to conduct the ballot. That is, if the AIRC authorises the
AEC to conduct a ballot in a ballot order, the AEC would be required to conduct
the ballot. The AEC would be unable to make a submission or application to the
AIRC to avoid being nominated or appointed as an authorised ballot agent. The
AEC would, however, be notified under clause 90 of an application for a ballot
order where it was the person nominated in the application to conduct the ballot
and could make submissions under clause 94 regarding, for example, the timing of
the ballot.
1.414 Clause 127 would amend the definition of “prescribed
premises” in subsection 134(5) of the WR Act in relation to
building industrial disputes. It would replace a reference to section 136 of
the WR Act (which will have greatly limited operation as a result of clause 128
of this Bill) with a reference to this Division of the Bill, which contains
provisions relating to protected action ballots in the building
industry.
1.415 Clause 128 makes a series of amendments that are consequential to the
new secret ballot requirements introduced by this Division.
1.416 The
AIRC would be prevented from ordering a secret ballot of members of a
Commonwealth building employee organisation under subsection 135(1) of the WR
Act where there is a current bargaining period initiated by the organisation
under section 170MI of the WR Act for an agreement (subclause (1)). This would
ensure that a decision of employees or a union to apply for a protected action
ballot could not be pre-empted by the AIRC.
1.417 Likewise, subsection
135(2) of the WR Act, under which the AIRC may order a secret ballot of members
of an organisation does not apply to members of a Commonwealth building employee
organisation (subclause (2)). The power to order such ballots will no longer be
appropriate following the introduction of requirements for protected action
ballots by this Bill.
1.418 For the same reason, subsection 135(2B),
under which the AIRC may order a secret ballot to determine whether employees
support taking industrial action where it appears that industrial action is
being taken or is threatened, impending or probable, does not apply in relation
to building industrial action (subclause (3)).
1.419 Subsections
136(1)-(7) of the WR Act would also not apply in relation to building
industrial action (subclause (3)). These subsections permit members of an
organisation, who have been requested or directed by the organisation to engage
in industrial action, to apply to the AIRC to order a secret ballot to find out
whether or not the members support the proposed industrial action. These
provisions would no longer be required in relation to building industrial
action, as it is proposed that protected action could not take place before a
protected action ballot of members is conducted under this Division.
1.420 Building industrial action taken without the authorisation of such
a ballot would not be protected and it would be inappropriate for the AIRC to be
involved in ordering a ballot in such circumstances; rather the various
compliance measures in the Bill and elsewhere are available in relation to
participants in such action.
1.421 Section 170MQ of the WR Act (which
specifies that certain action is not protected action where the AIRC orders a
ballot) will not apply in relation to building industrial action (subsection
(4)). This provision is not required as the AIRC will no longer have the power
to order ballots under subsections 135(2) or (2B) of the WR Act in relation to
building industrial action.
1.422 Subclause 129(1) modifies the operation of section 170MO of the WR Act
in relation to building industrial action to take into account the operation of
subclause 99(6) of the Bill, which would allow the AIRC, if satisfied that there
are exceptional circumstances that justify it, to extend the period of written
notice required following a protected action ballot from the usual three working
days to up to seven working days.
1.423 Subsection 170MO(6) of the WR
Act, which allows written notice or other notification of industrial action to
be given before the start of a bargaining period does not apply in relation to
notification of an intention to take building industrial action (subclause (3)).
As a result of the proposed protected action ballot arrangements, it will no
longer be possible for notice of such action to be given until the action has
been authorised by a ballot.
1.424 A protected action ballot would not be
required for an employer to undertake a protected action lockout of employees,
nor would a ballot be required for a union and employees to respond to such a
lockout. In either of these situations, notice by an employer or by a union or
employees could be given once the bargaining period has commenced (subclause
(2)).
1.425 Clause 130 makes it clear that orders of the AIRC under this Division
are to be enforced under the civil penalty provisions of this Bill and not under
subsection 178(1) of the WR Act (which provides for penalties for breach of AIRC
awards and orders).
1.426 Section 345 of Schedule 1B to the WR Act provides that financial
members of an organisation have the right to participate in any vote of the
members of the organisation. Section 346 of the same Schedule provides that
financial members of an organisation may request information regarding ballots
from the returning officer to determine whether there has been an irregularity
in relation to the ballot. As the entitlement to vote in a protected action
ballot will be regulated by the rules set out in this Division of the Bill,
those sections do not apply to protected action ballots.
1.427 Subsection 317(2) of the WR Act lists various offences in relation to
ballots. Subsection 317(3) prohibits a person from engaging in activities that
might prevent the taking of a ballot or influence the outcome of the ballot.
Subsection 317(4) prohibits certain activities that might impact on the secrecy
of a ballot. The penalty for a contravention of any of these provisions is $500
or imprisonment for six months or both. Clause 132 makes it clear that these
provisions also apply to protected action ballots under this Division.
1.428 Regulations may be made in relation to the following matters:
• the qualifications and appointment of applicants’ agents;
• procedures to be followed in conducting a ballot or class of ballot;
• the qualifications, appointment, powers and duties of scrutineers;
• the powers and duties of authorised independent advisers; and
• the manner in which ballot results are to be published.
1.429 Clause 134 empowers the AIRC to make orders to stop or prevent building
industrial action from occurring.
1.430 In a similar fashion to section
127 of the WR Act, the AIRC may make an order where building industrial action
is happening, or is threatened, impending or probable in relation to an
industrial dispute, the negotiation or proposed negotiation of an agreement
under Division 2 of Part VIB of the WR Act or work that is regulated by an award
or certified agreement (subclause (1)).
1.431 Subclause (2) provides that
the AIRC may make such an order of its own motion or on the application of those
persons listed in paragraphs (a) to (d).
1.432 Subclause (3) requires the
AIRC to hear and determine an application for an order under subclause (1)
within 48 hours.
1.433 Subclause (4) will expressly empower the AIRC to
make an interim order to stop industrial action, or to prevent industrial action
from occurring. This power to make an interim order is in addition to the
general power of the AIRC to make interim orders under subparagraph
111(1)(b)(ii) of the WR Act. In Transfield Pty Ltd v Automotive, Food,
Metals Engineering, Printing and Kindred Industries Union (Print 908202),
Munro J of the AIRC noted the difficulty in producing an adequately reasoned
decision in the limited time available and issued an interim order to cease
industrial action. The order applied until Munro J finally determined the
matter.
1.434 Paragraph (4)(b) will provide that, prior to making an
interim order the AIRC must either be satisfied that the building industrial
action is not protected action or has not formed a view about whether or not the
industrial action is protected action. The AIRC can make an interim order with
respect to industrial action which may subsequently be determined to be
protected action. However, the immunity in subclause (11) will apply where the
industrial action is protected action.
1.435 Before the AIRC can make an
interim order, it will have to be satisfied that:
• it will be unable to hear and determine the application within 48 hours (subparagraph (4)(c)(i)); or
• where the building industrial action has not commenced, but is likely
to do so within 48 hours, it will be unable to determine the application prior
to its commencement (subparagraph (4)(c)(ii)).
1.436 The purpose of
this proposal is to encourage the making of an interim order in time to prevent
the building industrial action from commencing if the AIRC is satisfied that
this is appropriate.
1.437 An interim order will cease to have effect if
an application under clause 134 is determined (subclause (5)). This will apply
where the AIRC has not stipulated in an order the time at which the order will
lapse.
1.438 Subclause (6) lists a number of factors that the AIRC must
have regard to when exercising its discretion to issue an interim order. The
provision does not, in listing these factors, prevent the AIRC from taking into
account other relevant factors when exercising its discretion.
1.439 Listing these factors is designed to highlight circumstances that
have previously been problematic in relation to the making of timely and
effective orders under section 127 of the WR Act. Some of the factors are
similar to those identified by Munro J in Transfield Pty Ltd v Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union (Print
908287), including damage to business, the time needed to determine the
application and whether or not the industrial action has escalated since the
application was made.
1.440 Paragraph (6)(d) identifies that the
occurrence of a sequence of related industrial action is a factor to be
considered by the AIRC. This acknowledges that a sequence of unprotected
action, even where each instance lasts only 24 or 48 hours, can result in
significant damage to an employer and previous conduct of this nature should be
considered by the AIRC.
1.441 The factors also include lack of proper
notice of industrial action (paragraph (6)(f)). Where industrial action is not
properly notified, it makes it more difficult for the AIRC to hear and determine
applications in time to make an order preventing the industrial action from
proceeding. Also, for the purposes of conducting protected action, it is
necessary, among other things, to provide at least 3 days notice of the proposed
industrial action. Accordingly, lack of appropriate notice is highly indicative
of unlawful industrial action.
1.442 Proposed subclause (7) will set out
matters that the AIRC must have regard to when considering whether to issue an
order or interim order under clause 134, as follows.
• A key indicator that unlawful industrial action is occurring is where a party engages in building industrial action even though the party is subject to a certified agreement that has not reached its nominal expiry date. Building industrial action taken in such circumstances is prohibited by clause 80 of this Bill. Paragraph (7)(a) addresses this issue.
• There have been instances where the AIRC has exercised its discretion
under subsection 127(1) of the WR Act to not make an order even though
industrial action that was not protected action was occurring. However, any
industrial action that is not protected is unlawful under this Bill.
Accordingly, paragraph (7)(b) will require the AIRC to have regard to the
undesirability of the occurrence of building industrial action that is not
protected action when considering applications for orders and interim orders
under clause 134.
1.443 Orders to stop or prevent industrial action under
section 127 of the WR Act will still be available. However, if an order can be
made by the AIRC under this section in relation to building industrial action,
then an order cannot be made by the AIRC in respect of the same building
industrial action under section 127 of the WR Act (subclause
(8)).
1.444 Subclause (9) makes it clear that the powers to make orders
under subclause (1) and interim orders under subclause (4) is in addition to all
other powers conferred on the AIRC.
1.445 Subclause (10) states expressly
that a person to whom an order under subclause (1) or an interim order under
subclause (4) is expressed to apply must comply with that order.
6.200 An
order under subclause (1) or (4) does not apply to action that is protected
action for the WR Act (as modified by this Bill) (subclause (11)). This
subclause ensures that the immunity that currently applies under section 170MT
of the WR Act in relation to orders made under section 127 of that Act also
applies to the similar orders made under clause 134 of this
Act.
1.446 The Federal Court is empowered to grant an injunction or
interim injunction where it is satisfied that a person or organisation has
failed to comply or is proposing to fail to comply with an order or interim
order of the AIRC under this clause. Application for such an injunction may be
made by the ABC Commissioner or a person or organisation affected by the order
or interim order (subclauses (12) and (13)).
1.447 The ABC Commissioner
may apply for a variation of the injunction or for the court to take action in
respect of a breach of the injunction despite the fact that he or she was not
involved in obtaining the injunction under subclauses (12) or (13) (subclause
(14)). The rights of the parties to the original injunction proceedings remain
unaffected and the ABC Commissioner is required to notify those parties before
making an application under subclause (14).
1.448 Clause 135 requires an employer to notify the ABC Commissioner if an
employee engages or threatens to engage in building industrial action that is
both constitutionally-connected and industrially-motivated. The notification
must be in writing and made within 72 hours of the employer becoming aware of
the action or threat. It is important for the ABC Commissioner to be aware of
the occurrence of industrial action in the industry in order to render
assistance to affected parties and to identify unlawful industrial action where
necessary. This is a Grade B civil penalty provision.
1.449 False and
misleading statements are covered by the Criminal Code.
6.205 Clause 136 adopts, with modifications, Part VIIIA of the WR Act, which
deals with “strike pay”. The effect of this clause is to prohibit
employers from making payments and employees from accepting payments in relation
to any periods of building industrial action that are industrially-motivated and
constitutionally-connected.
1.450 Clause 136 does not apply to stoppages
of building work based on a reasonable concern by the employee about an imminent
risk to health or safety. Clauses 47 and 49 apply in those
circumstances.
1.451 This is a civil penalty provision with a penalty of
1000 penalty units in the case of bodies corporate and 200 penalty units in all
other cases.
1.452 Applications in relation to contraventions may be
made to the Federal Court by the Minister, a person who has an interest in the
matter or any other person prescribed by the regulations. Application may also
be made by the employer in relation to contraventions of section 187AB of the WR
Act, as modified by this Bill.
1.453 Paragraphs 187AD(c) and (d) of the
WR Act allow the Federal Court, in respect of contraventions, to make
injunctions (including interim injunctions) and any other orders considered
necessary to stop the contravention or remedy its
effects.
1.454 Subsection 187AD(2) of the WR Act makes it clear that the
Court must not make an order requiring a person to pay an employer compensation
for a contravention of section 187AB if the employer has itself contravened
section 187AA by making a payment.
1.455 Clause 137 requires employers to notify the ABC Commissioner of any
claim made to an employer for a payment that, if paid, would contravene section
187AA of the WR Act (which prohibits the making of payments in relation to
periods of industrial action) as applied by clause 136 of this Bill. The
notification must be in writing and made within 72 hours of the claim being
made. This is a Grade A civil penalty provision.
1.456 False and
misleading statements are covered by the Criminal Code.
1.457 Clause 138 limits both the employer and the employee party in relation
to a proposed building agreement to only one notice of intention to take
industrial action in respect of that proposed agreement. This clause is
required to give effect to clause 81, which prescribes mandatory cooling-off
periods in relation to building industrial action in respect of a proposed
agreement.
1.458 The effect of clause 139 is to allow a person to bring an action in
tort in respect of conduct by a Commonwealth building employee organisation in
contemplation or furtherance of claims that are the subject of a building
industrial dispute without first seeking a certificate from the AIRC under
section 166A of the WR Act.
1.459 Where the conduct is protected action
under the WR Act (as modified by this Bill), the immunity under section 170MT of
the WR Act will continue to apply.
1.460 Clause 140 prohibits the Federal Court from issuing interlocutory anti-suit injunctions in respect of proceedings brought under State or Territory law in respect of the same building industrial action.
CHAPTER 7 – FREEDOM OF ASSOCIATION
1.461 Clause 141 sets out the objects to Chapter 7 which are in addition to the principal objects set out in clause 3, particularly:
• that building industry participants are free to join or not to join building associations of their choice;
• that building industry participants are not discriminated against or victimised by virtue of that choice; and
• ensuring there are effective remedies to address conduct which
infringes the right to freedom of association.
1.462 This clause contains definitions relevant to the operation of Chapter
7.
1.463 For the purposes of Chapter 7, bargaining services is
defined to mean services provided by or on behalf of a building association
(that is, an industrial association of building employers, building employees or
building contractors) in relation to:
(a) the negotiation, making, certification, operation, extension, variation or termination of an agreement under Part VIB of the WR Act; or
(b) a “State employment agreement” or proposed State employment
agreement (“State employment agreement” is defined in clause
5).
1.464 For the purposes of Chapter 7, bargaining services fee
is defined to mean a fee, however described, payable to a building
association or to someone else in lieu of a building association wholly or
partly for the provision, or purported provision of bargaining services (as
defined for the purposes of Chapter 7).
1.465 This Part sets out the constitutional basis for the provisions of
Chapter 7.
1.466 Chapter 7 is intended to apply broadly to employers,
employees, contractors and industrial associations in the building and
construction industry, irrespective of whether other employment issues are
regulated by Federal or State legislation. To this end, a range of
constitutional powers are relied upon; these include: the conciliation and
arbitration power, the corporations power, the Territories power and the
Commonwealth places power. Reliance is also placed on the 1996 referral of
powers to the Commonwealth by the Victorian Parliament.
1.467 The Royal Commission recommended that there should be a small number of
general prohibitions dealing with the most common forms of inappropriate conduct
that apply to all building industry participants. Each of these general
prohibitions is a Grade A civil penalty provision.
1.468 Clause 151 prohibits a building industry participant from organising or taking, or threatening to organise or take, action against another building industry participant with intent to coerce that building industry participant or another building industry participant to:
• become, or not become, an officer or member of a building association; or
• to remain or cease to be, an officer or member of a building
association.
1.469 Clause 152 prohibits a building industry participant from making a false or misleading representation about another building industry participant’s obligation to:
• be or not be, or to become or not become or to cease to be, an officer or member of a building association;
• disclose whether they are, or have been, a member of a building association, or a particular association;
• be, or not be, an officer or member of a building association, or a
particular association, in order to obtain the benefit of an industrial
instrument.
1.470 The clause also provides, by way of legislative note,
examples of representations that could be false or misleading.
1.471 Clause 153 prohibits a building industry participant from organising or
taking, or threatening to organise or take, industrial action against another
building industry participant on the basis of whether or not they are, have been
or propose to be a member or officer of a building association.
1.472 Clause 154 prohibits an employer or other person from doing, or
threatening to do, for a “prohibited reason”, or for reasons that
include a prohibited reason, any of the actions set out in subclauses (1) and
(2). These are, broadly, actions which harm persons who are building employees
in relation to their employment, or building contractors in relation to their
provision of services.
1.473 The prohibited reasons are listed in clause
155.
1.474 A mistaken belief as to the existence of a prohibited reason
is irrelevant as to whether an employer or other person contravenes this
clause.
1.475 Clause 154 is a Grade A civil penalty provision.
1.476 Clause 155 contains a list of matters, each of which constitutes a
“prohibited reason” in relation to the conduct referred to in
subclauses 154(1) and 154(2). The list of prohibited reasons is substantially
based on the prohibitions in section 298L of the WR Act. The paragraphs
detailing the prohibited reasons are disjunctive.
1.477 Subclause (2)
deals with threats to engage in conduct referred to in subclauses 154(1) and
154(2). If the threat to engage in that conduct is intended to dissuade or
prevent a person from doing something referred to in subclause (1) or to make
the person do it, the threat is taken to have been made for that prohibited
reason. The term “threat” is defined in clause 142 as a threat of
any kind, whether direct or indirect, express or implied.
1.478 Clause 156 prohibits a building employer, or a person who has engaged a building contractor, from inducing a building employee or the building contractor to:
• become, or not become, an officer or member of a building association; or
• to remain or cease to be, an officer or member of a building
association.
1.479 Clause 156 is a Grade A civil penalty
provision.
1.480 This Part concerns conduct by building employees or building
contractors against certain persons for proscribed reasons.
1.481 Clause 157 prohibits the cessation of work by a building employee or a
building contractor for the reasons set out in the clause. Those reasons are
based on the prohibited grounds in clause 155, to the extent that they are
applicable in this context.
1.482 Clause 157 is a Grade A civil penalty
provision.
1.483 This Part prohibits various types of conduct by building associations
for proscribed reasons against building employers, building employees, members
and building contractors.
1.484 Clause 158 is intended to safeguard a building employer from industrial
or other action by a building association for various specified reasons. These
include: the building employer’s involvement or non-involvement with a
building association; encouraging the employer to take action which if taken
would contravenes subclause 154(1); and encouraging a building employer to harm
a building employee who has failed to abide by a direction from the
association.
1.485 Clause 158 is a Grade A civil penalty
provision.
1.486 Subclause (1) is intended to protect the freedom of employees to choose
whether or not they wish to take part in industrial action, and their right to
seek a secret ballot under an industrial law. This is done by prohibiting a
building association from taking, or threatening to take, action which has the
effect of prejudicing the person’s employment or prospective employment to
force the person to join in industrial action or not to seek a secret ballot
under an industrial law.
1.487 Subclause (2)
prohibits a building association from taking, or threatening to take, action
that has the effect of prejudicing a person in his or her employment or
prospective employment, and from advising, encouraging or inciting another
person to take such
action, if the reason
for the action or conduct is that the person:
• does not propose to, has not agreed to pay, or has not paid, a bargaining services fee;
• is, has been, proposes to become or has at any time proposed to become an officer or member of a building association;
• is not, or does not, propose to become a member of a building association;
• has not paid, has not agreed to pay or does not propose to pay a fee (however described) to a building association;
• has refused or failed to join in industrial action;
• has made or proposes to make an inquiry or
complaint to a person or body having the capacity
under an industrial law to seek compliance
with that law or the observance of a person’s rights under an industrial
instrument.
1.488 Clause
159 is a Grade A civil penalty
provision.
1.489 Clause 160 is similar to clause 159 in many
respects, but it is intended to protect a member of a
building association from adverse action by
the building association, or by an officer or other member of the association.
1.490 Clause 160 is a Grade A
civil penalty provision.
1.491 Clause 161 is intended to safeguard building
contractors from victimisation on the basis of a number of
prohibited reasons.
1.492 This clause extends the
equivalent provision in the WR Act (section 298S) by expanding the range of
prohibited reasons to include:
• discriminatory conduct engaged in because of membership as well as non-membership;
• refusal or failure to comply with a direction given by a building association;
• non payment of a fee (however described) to a building association;
• an inquiry
or complaint to a person or body having the
capacity under an industrial law to seek compliance with that law or the
observance of a person’s rights under an industrial
instrument.
1.493 The clause prohibits
not only discriminatory conduct against building contractors, but also conduct
against any person employed or engaged by the building
contractor.
1.494 Subclause (3) makes
it clear that the prohibitions in subclause (2) do not prevent a building
association from entering into an agreement with another person for the supply
of goods or services to members of the building association (eg. by offering
discounted services to a member of the building
association).
1.495 Subclause (4)
prohibits the taking of discriminatory action for a “prohibited
reason”. Subclause (5) provides that conduct is for “prohibited
reason” if it concerns the non payment of a “bargaining services
fee” as defined in clause 142.
1.496 Clause 161 is a Grade A civil
penalty provision.
1.497 Clause 162 is similar to subclause
158(3), except that it is intended to protect building contractors rather than
building employers from action which, if
taken, would contravene subclause
154(2).
1.498 Clause
162 is a Grade A civil penalty provision.
1.499 Subclause (1) prohibits a building
association, or an officer or member of a building association, from
demanding payment of a bargaining services fee
from
a building industry
participant.
1.500 Clause 163 is a
Grade A civil penalty provision.
1.501 Clause 164 prohibits a building association
from taking, or threatening to take, action against a building industry
participant with intent to coerce the participant, or another building industry
participant, to pay a bargaining services fee. This clause captures third-party
conduct where, for example, a building association of employees might take
action against an employer to force an employee who is not a member of the
association to pay the bargaining services
fee.
1.502 Clause 164 is a
Grade A civil penalty
provision.
1.503 Clause 165 makes it clear that nothing in
the freedom of association provisions prevents a
building association from entering into a
contract for the provision of bargaining services with a person who is not a
member of the association.
1.504 Clause 166 prohibits a building industry participant from making a false or misleading representation about another building industry participant’s:
• liability to pay a bargaining services fee;
• obligation to enter into an agreement to pay a bargaining services fee; or
• obligation to become a member of a building
association.
1.505 Clause 166 is a Grade A
civil penalty provision.
1.506 Clause 167
is a savings provision.
1.507 Subject
to the effect of clause 168, Chapter 7 is not intended to exclude or limit the
concurrent operation of State and Territory
laws, to the extent that the Chapter is given a wider application by clauses
147, 149 or 150.
1.508 Clause 168 applies where conduct in
contravention of this Chapter involves a constitutional
corporation, occurs in a Territory,
Commonwealth place or in Victoria and the conduct is in contravention of an
industrial law of a State or Territory concerning discrimination or preference
in employment. The clause is intended to avoid a person from being liable to
civil penalties or other orders under both Federal and State laws in relation to
the same conduct.
1.509 Subclause (2)
precludes the making of an application against
a person or building association under an industrial law of a State or Territory
where an application has been made under Chapter 12 Part 1 of the Bill in
relation to the conduct intended to be the subject of the State or Territory
order. Conversely, subclause (4) precludes the making of an application under
Chapter 12 Part 1 where an application has been made under a State or Territory
law.
1.510 Subclause (3) does not
prevent a person or building association being prosecuted in the case where the
conduct is an offence under the industrial law of a State or Territory.
Conversely, subclause (5) allows the making of an order under Chapter 12 Part 1
where any orders made under State or Territory industrial law are made in
connection with the prosecution of the person or building association for an
offence.
1.511 Clause 169 provides that where any person is
entitled to make an application under Chapter 12 Part 1 in respect of conduct
that contravenes this Chapter, then no person is entitled to make an application
under Part XA of the WR Act in respect of that conduct.
1.512 Clause 170, in relation to proceedings under
Chapter 12 Part 1, reverses the onus of proof
applicable to civil proceedings.
1.513 Normally, in a civil action, the
onus falls on the complainant to establish, on the balance of probabilities,
that the conduct complained of was carried out for a particular reason or
particular intent in contravention of the relevant provision(s).
1.514 The consequence of this
provision is that, once a complainant has alleged that the conduct carried out,
or threatened to be carried out, in relation to him or her is motivated by a
reason or intent that would contravene the
relevant provision(s) of Chapter 7, the person or building association will have
to establish, on the balance of probabilities, that the conduct was not carried
out for the unlawful reason or intent.
1.515 The reverse onus does not apply
to the granting of interim injunctions. This differs from section 298V
of the WR Act, and is intended to address the
problems that can arise from the interaction of the reverse onus with the
“balance of convenience” test that applies to interim injunctions.
1.516 Clause 171 confirms that a person’s right to freedom of association does not depend on whether the person holds a conscientious objection certificate. (Conscientious objection certificates can be issued by the Industrial Registrar under section 180 of Schedule 1B to the WR Act.)
CHAPTER 8 – DISCRIMINATION, COERCION AND UNFAIR CONTRACTS
1.517 Clause 172 is intended to prevent persons from being coerced to do certain things in relation to the engagement and employment of building contractors and building employees. It prohibits persons from organising or taking any action, or from threatening to organise or take action intended to coerce another person to do any of the following:
• employ, or not employ, a person as a building employee;
• engage, or not engage a person as a building contractor;
• allocate, or not allocate, particular responsibilities to a building employee or building contractor; or
• designate a building employee or a building contractor as having, or
not having, particular duties or responsibilities.
1.518 This is a Grade
A civil penalty provision.
1.519 Subclause (2) sets out the
constitutional basis of the prohibition.
1.520 Clause 173 is intended to ensure that persons are not coerced or
subject to undue pressure in relation to their certified
agreement.
1.521 It provides that a person must not take or threaten to
take any action, or refrain or threaten to refrain from taking any action, with
intent to coerce another person or apply undue pressure to another person in
relation to various aspects of the agreement-making process. These aspects are
the making, varying or terminating, or extending the nominal expiry date of a
building agreement under Division 2 or 3 of Part VIB of the WR Act or
approving any of these things.
1.522 This is a Grade A civil penalty
provision.
1.523 Subclause (2) makes it clear that the prohibition on
coercion and undue pressure does not apply to any action that is protected
action for the purposes of the WR Act, as modified by this
Bill.
1.524 Subclause (3) replicates subsection 170NC(3) of the WR Act.
It prohibits employers from coercing employees in relation to requests for
organisation representation in respect of an agreement being made under section
170LK.
1.525 Subclause (4) prohibits employers from applying undue
pressure to employees in relation to requests for organisation representation in
respect of an agreement being made under section 170LK.
1.526 This is a
Grade A civil penalty provision.
1.527 Section 170NC of the WR Act does
not apply in relation to building agreements (subclause (5)).
1.528 Clause 174 prohibits a person from discriminating against an employer on the basis that the employment of its employees is covered by or proposed to be covered by a particular kind of industrial instrument or an industrial instrument made with a particular person. Examples of the type of conduct this clause is intended to prohibit include:
• a head contractor refusing to give work to a subcontractor because the subcontractor’s employees are covered by a non-union agreement;
• a head contractor refusing to give work to a subcontractor on the basis that the subcontractor’s agreement is or is not made with a particular organisation of employees;
• a union disrupting the operations of an employer (other than through
protected action) on the basis that the employer’s employees are covered
by a State rather than a Federal agreement.
1.529 This is a Grade A
civil penalty provision.
1.530 Subclause (2) makes it clear that that the
prohibition does not apply to any action that is protected action for the
purposes of the WR Act, as modified by this Bill.
1.531 Consistent with
the views of both the Royal Commissioner and the Productivity Commission in its
1999 report Work Arrangements on Large Capital City Building Projects,
there is a need for head contractors to exercise control over certain integral
features of a building site such as the site opening hours or inclement weather
provisions.
1.532 Subclause (3) therefore provides that the prohibition
on discrimination does not apply to prevent conduct by a person
that:
• is engaged in solely for the purpose of encouraging the
employer to have eligible conditions in an industrial instrument covering its
employees; and
• occurs in relation to a proposed agreement or
proposed variation to an agreement under which the employer would carry out
building work or arrange for building work to be carried out for that
person.
1.533 An “eligible condition” is defined in clause 4
of the Bill to mean a condition relating to:
• the times or days when work is to be performed; or
• inclement weather procedures; or
• any other matter prescribed by the
regulations.
1.534 Subclause (4) sets out the constitutional limitations
which would apply to the prohibition in subclause (1).
1.535 Clause 175 is intended to ensure that building employees and building
employers are protected from coercion in relation to the payment of
superannuation contributions into a particular superannuation fund or
scheme.
1.536 Subclause (1) provides that a person must not take or
threaten to take any action, or refrain or threaten to refrain from taking any
action, with intent to coerce:
• a building employee to nominate a particular superannuation fund to receive the employee’s superannuation; or
• a building employer to make payments in respect of building employees
to a particular superannuation fund.
1.537 This is a Grade A civil
penalty provision.
1.538 Subclause (2) makes it clear that subclause (1)
doesn’t apply to action that is protected action for the purposes of the
WR Act, as modified by this Bill. This means that a union or employees can
still take protected action in order to secure a clause in respect of a
particular superannuation fund in a certified agreement.
1.539 Subclause
(3) sets out the constitutional limitations which would apply to subclause
(1).
1.540 Requiring a person to comply with their legal obligations to
make payments in relation to superannuation would not amount to
coercion.
1.541 Clause 176 enables applications under section 127A of the WR Act in relation to unfair contracts for the performance of building work to be made to the Federal Magistrates Court as well as the Federal Court. Currently the WR Act only allows applications to be made to the Federal Court.
CHAPTER 9 – UNION RIGHT OF ENTRY
1.542 This Chapter sets out
a clear regime of rights and responsibilities in relation to union right of
entry to premises. The new arrangements apply to both Commonwealth and State
unions within constitutional limits, but do not impact upon any right of entry
that might be available under OHS legislation.
1.543 Clause 177 sets out the objects of Chapter 9, which are additional to the objects set out in clause 3. These objects are to:
• establish a framework that balances the right of unions to represent their members in the workplace and the right of occupiers and employers to conduct their business without undue interference or harassment;
• ensure that persons who hold permits are fit and proper persons and understand their rights and obligations under Chapter 9;
• ensure that occupiers and employers understand their rights and obligations under Chapter 9; and
• ensure permits are suspended or revoked where rights granted under
this Chapter are misused.
1.544 Clause 178 defines a number of terms used in the
Chapter.
Clause 179 – Form of entry
notice
1.545 This clause requires the Registrar to approve a form of
entry notice in writing (subclause (1)).
1.546 Subclause (2) sets
outs the particulars that the form must include. However, subclause (2) does not
limit the matters which may be required by, or contained in, the form of entry
notice (subclause (3)).
1.547 Clause 180 provides for the issue of permits by the Industrial
Registrar to officials of unions who are named in applications by unions
(subclauses (1) and (2)). The term “official” is defined in clause
178 to include both office holders and employees of a
union.
1.548 Subclause (3) provides that the permit must include any
conditions that have been imposed by the Industrial Registrar (under clause 181)
or by the AIRC (under clause 185).
1.549 Regulations may be made on a
number of matters relating to the application for, and issue of, permits under
clause 180 – the regulations may, for example, specify the documents that
must accompany an application for a permit and the form of the permit (subclause
(4)).
1.550 Clause 181 provides that at the time a permit is issued the Industrial
Registrar may impose conditions on that permit that limit the effect of the
permit, having regard to the list of matters specified in subclause 182(2)
(subclauses (1) and (2)).
1.551 A legislative note indicates that the
conditions that might be imposed could include a limit on the range of premises
to which a permit applies, or the time of day when entry may be made.
1.552 Clause 182 sets out the circumstances in which a permit may not be
issued to an applicant.
1.553 Subclause (1) provides that the Industrial
Registrar must not issue a permit to an official unless the Industrial Registrar
is satisfied that the official is a fit and proper person to hold the permit
having regard to the matters referred to in subclause (2). These include
whether:
• the official has received appropriate training about the rights and responsibilities of a permit holder;
• the official has ever been convicted of a prescribed offence;
• the official or any other person (such as the official’s union) has ever been ordered to pay a civil penalty under any industrial law in respect of the official’s conduct;
• a previous permit issued to the official has been revoked or suspended or made subject to conditions;
• the official’s right of entry for industrial purposes under a
State industrial law has ever been suspended, cancelled, or had conditions
imposed on it, or the official has been disqualified under a State industrial
law from exercising or applying for a right of entry for industrial
purposes.
1.554 Subclauses (3) and (4) prohibit the Industrial Registrar
from issuing a permit:
• where the issue is prevented by an order of the AIRC under clause 185 or 209 (clause 185 provides that the AIRC can make orders where there is an abuse of the permit system and clause 209 relates to the powers of the AIRC to settle industrial disputes about the operation of this Chapter);
• during a disqualification period specified by the Industrial Registrar under clause 184 (clause 184 provides for the revocation and suspension of a permit by the Industrial Registrar);
• where an official’s right to enter for industrial purposes has
been suspended under a State industrial law, or that person has been
disqualified from exercising or applying for a right of entry permit under State
industrial law.
1.555 Clause 183 provides that a permit remains in force for three years
unless it is revoked or the permit holder ceases to be an official of the union
before that date, whichever happens first.
1.556 Clause 184 provides for the revocation, suspension or imposition of
conditions on permits by the Industrial Registrar. An application may be made
by the ABC Commissioner or a prescribed person, and must be in accordance with
the regulations (subclause (1)).
1.557 On application, the Industrial
Registrar may revoke, suspend or impose conditions on one or more permits held
by the permit holder, having regard to the matters specified in subclause 182(2)
(subclauses (2) and (3)).
1.558 Subclauses (4) and (5) set out the
circumstances in which the Industrial Registrar must revoke or suspend a
permit:
• the permit holder was found to have contravened clause 207, which prohibits false statements about right of entry;
• a court ordered a penalty to be paid in respect of a contravention of Chapter 9 by the permit holder;
• the permit holder gave an entry notice for frivolous or vexatious reasons, or in frivolous or vexatious circumstances;
• the permit holder’s right of entry for industrial purposes under a State industrial law was cancelled or suspended or the permit holder has been disqualified under a State industrial law from exercising or applying for a right of entry for industrial purposes;
• the permit holder otherwise acted improperly in relation to the
exercise of rights under Chapter 9.
1.559 A period of suspension or
revocation under subclause (4) must be for at least the “minimum
disqualification period”: three months on the first occasion the
Industrial Registrar takes action under this subclause; 12 months on the second
occasion, and five years on the third and any subsequent
occasion.
1.560 Subclause (6) defines “acted improperly” to
include: exercising rights under Chapter 9 in a vexatious, unreasonable or
inappropriate manner; and making unreasonable, vexatious or inappropriate use of
information obtained by the permit holder as a result of exercising rights under
Chapter 9.
1.561 The term “acted improperly” would also
cover the situation where a permit holder unreasonably fails to comply with a
request by an employer or occupier pursuant to clause 192 or 202 or fails to
comply with a condition of a permit or fails to comply with entry
requirements.
1.562 Subclause (6) also defines “minimum
disqualification period”.
1.563 The Industrial Registrar’s
decision will be appellable under section 81 of the WR Act.
1.564 This clause allows the AIRC to make orders restricting the rights of a
union or an official of a union, who has abused rights conferred by Chapter 9
(subclause (1)). The AIRC may make an order on its own motion or on application
of the ABC Commissioner (subclause (2)).
1.565 The AIRC may:
• revoke or suspend some or all of the permits that have been issued in respect of the union;
• impose conditions on some or all of the permits that have been issued in respect of a union or might in the future be issued in respect of the union;
• ban the issue of permits for a specified period in relation to a
specified person or in respect of the union generally (subclause (3)).
1.566 A union, or official of a union who is subject to an order must
comply with the order (subclause (4)). This subclause is a Grade A civil penalty
provision.
1.567 Subclause (5) provides that the AIRC’s powers to
make orders under this clause may only be exercised by the President or, if the
President directs, another Presidential member or a Full Bench.
1.568 A permit holder must return his or her permit within seven days of
their permit’s revocation, expiration and suspension or when conditions
are imposed on the permit after is issued (subclause (1)). This is a Grade B
civil penalty provision.
1.569 In the case of a suspended permit,
subclause (2) requires the Industrial Registrar to return the permit to the
permit holder or the permit holder’s union on application after the end of
the suspension period, if satisfied that the permit is still in force.
1.570 Where conditions are imposed on a permit - by the Industrial Registrar
under clause 184 or by the AIRC under clause 185 – the permit ceases to
have effect until the conditions have been endorsed on the permit.
1.571 A person who attempts to use a permit which is not endorsed with
the correct conditions may contravene clause 207, which prohibits false
statements about right of entry.
1.572 Part 4 sets out the circumstances in which a Commonwealth or State
union official may seek entry to investigate suspected breaches of industrial
law or relevant industrial instruments. The general rule is set out in clause
188. Clauses 190 and 192 - 194 impose limitations on the right of
entry.
1.573 The rules in this Part do not apply to entry by consent. In
such a case, it is the consent that authorises entry, not the provisions of this
Part.
1.574 Clause 188 sets out the circumstances in which a permit holder for a
Commonwealth or a State union may enter premises to inspect a breach of
industrial law or a relevant industrial instrument.
1.575 Subclause (1)
authorises a permit holder of a Commonwealth union to enter premises for the
purpose of investigating a suspected breach of:
• the Building and Construction Industry Improvement Act;
• the WR Act; or
• an award, certified agreement or order under either of those Acts
binding on the permit holder’s union.
1.576 Subclause (1) provides
that a right of entry must only be exercised during working hours and in respect
of premises where building work is being carried out by one or more employees
who are members of the permit holder’s union and the suspected breach
relates to or affects that building work or any of those
employees.
1.577 Subclause (2) authorises a permit holder of a State
union to enter premises for the purpose of investigating a suspected breach of a
State industrial law, or a State industrial instrument that is binding on the
permit holder’s union.
1.578 Subclause (2) provides that a right of
entry must be exercised during working hours and only in respect of premises
where:
• building work is being carried out by one or more employees who are members of the permit holder’s State union and the suspected breach relates to or affects that building work or any of those employees; and
• the employer of the employees is a constitutional corporation or the
premises are in a Territory or Commonwealth place.
1.579 Clause 196
requires a permit holder to have reasonable grounds for believing there is a
suspected breach.
1.580 Clause 189 specifies what permit holders may do after entering premises
for the purpose of investigating a suspected breach.
1.581 Subclauses
(2) and (4) provide that while on premises, permit holders can, in order to
investigate a suspected breach, exercise a number of rights during working hours
including:
• inspect machinery or materials;
• interview employees who are members or are eligible to be members of the permit holder’s union;
• require an affected employer to produce or allow access to any
records relevant to the suspected breach other than non-member records –
the term “non member record” is defined in subclause (12).
1.582 Subclause (3) makes it clear, for the avoidance of doubt, that a
refusal or failure by a person to participate in an interview under subclause
(2) does not constitute conduct covered by section 149.1 of the Criminal Code
(which relates to obstruction of Commonwealth officials).
1.583 Subclause
(5) authorises a permit holder to issue a notice to require an affected employer
to:
• produce or allow access to records (other than “non-member records”) relevant to the suspected breach at the premises or at another agreed place on a later day or days specified in the notice;
• allow the permit holder to inspect and make copies of any of these
records during working hours on a later day or days specified in the notice.
1.584 The date in the notice must be at least 14 days after the day on
which it is given (subclause (6)). A copy of this notice must be provided to
the ABC Commissioner (subclause (8)).
1.585 Subclause (7) provides that
before exercising rights under subclauses 189(4) or (5), the permit holder must
show the employer documents evidencing the authority to exercise right of
entry.
1.586 Subclause (8) entitles a permit holder to enter premises
during working hours for the purpose of inspecting and copying the records under
a notice in subclause (5).
1.587 Upon application by a permit holder
(subclause (9)), the AIRC may order access to non-member records if satisfied
that access is necessary to investigate the suspected breach. Before making
such an order the AIRC must have regard to any conditions that apply to the
permit holder’s permit (subclause (10)). If the permit holder obtains an
order under subclause (10) then the entry will be authorised by the order and
will be subject to any conditions in the order.
1.588 Subclause (12)
defines the terms “non-member record” and “record relevant to
the suspected breach”.
1.589 Clause 190 provides that entry to premises under clause 188 is not
authorised unless the notice requirements in either subclause (2) or subclause
(3) are complied with.
1.590 Subclause (2) provides that a permit holder
is not authorised to enter premises under clause 188 unless:
• the permit holder has given an entry notice to the occupier of the premises and the ABC Commissioner at least 24 hours but not more than 14 days before the entry;
• the notice specifies entry is authorised under clause 188 and identifies the particulars of the suspected breach or breaches; and
• entry is on the day specified in the notice.
1.591 Subclause
(4) provides that the exercise of rights under clause 189 after entry is not
authorised unless the conduct is for the purpose of investigating a suspected
breach identified in the entry notice.
1.592 Subclause (3) provides that
a permit holder is not authorised to enter premises under clause 188 unless:
• a copy of an exemption certificate issued under clause 191 is given to the occupier of the premises and the ABC Commissioner not more than 14 days before the entry.
• entry is on the day specified in the certificate;
• the premises are those specified in the
certificate.
1.593 This clause relates to entry authorised by clause 188,
not entry in other circumstances. So, it is not applicable to entry to inspect
records at a later agreed time (under subclause 189(8)) or entry under an AIRC
order to enter premises to inspect non-member records (under subclause
189(10)).
1.594 Clause 191 allows a union to apply for a certificate exempting it from
the notice requirements for entry onto premises under clause 188 (subclause
(1)).
1.595 The Industrial Registrar must issue such a certificate if
satisfied that there are reasonable grounds for believing that advance notice of
entry might result in relevant evidence being destroyed, altered or concealed
(subclause (2)).
1.596 The certificate must specify certain matters,
including the premises and the union to which it applies, the particulars of the
suspected breach or breaches and the day or days on which it operates (subclause
(3)).
1.597 Regulations may be made in relation to the form of
application and the exemption certificate (subclause (4)).
1.598 Clause 192 provides that entry is not authorised under Part 4 unless a
permit holder complies with specific requests of an occupier or affected
employer.
1.599 Under this clause, a permit holder is not authorised to
enter or remain on premises if the permit holder fails to comply with a request
by an occupier or affected employer to:
• produce documents evidencing authority to enter (subclause (1));
• observe OHS requirements that apply to the premises, provided the request is reasonable (subclause (2));
• conduct interviews in a particular room or area of the premises or to
take a particular route to reach a particular room or area of the premises to
conduct an interview, provided the request is reasonable (subclause (3)).
1.600 To avoid doubt, subclause (4) makes clear that a request to
conduct interviews in a particular room or take a particular route to reach a
particular room or area of the premises is not unreasonable merely because it is
not the room, area or route that the permit holder would have chosen.
1.601 Clause 193 provides that Part 4 does not authorise a person to enter
any part of premises that is used for residential purposes.
1.602 Clause 194 provides that, other than in relation to entry authorised by
the AIRC under subclause 189(10), a permit holder’s rights under Part 4 of
Chapter 9 are subject to any conditions that apply to his or her permit.
1.603 Clause 195 excludes all rights to enter under other industrial laws or
State industrial instruments where there is a right to enter conferred by Part
4, or where there would be a right to enter under Part 4 if the permit
holder’s right was not subject to any conditions, and the limitations in
clauses 190 (entry notice requirements), 192 (reasonable requests) and 193
(residential premises) did not apply.
1.604 This clause does not exclude
right of entry under an OHS law prescribed in the regulations.
1.605 Clause 196 provides that the burden of proving the existence of
reasonable grounds for suspecting a breach, as mentioned in clause 188, is on
the person asserting the existence of those grounds. This is designed to ensure
that a suspicion of a suspected breach on the part of the permit holder is
objectively reasonable having regard to the information in the possession of the
permit holder at the time of the purported exercise of the right of entry.
1.606 Part 5 sets out the circumstances in which a Commonwealth or State
union official may seek entry to hold discussions with employees. The general
rule is set out in clause 197. Clauses 198-203 impose limitations on the right
of entry.
1.607 The rules in this Part do not apply to entry by consent.
In such a case, it is the consent that authorises entry, not the provisions of
this Part.
1.608 Clause 197 sets out the circumstances in which a permit holder for a
Commonwealth or a State union may enter premises to hold discussions with
employees.
1.609 Subclause (1) authorises entry by a permit holder who is
a Commonwealth union official for the purpose of holding discussions with
employees who wish to participate in those discussions provided the
employees:
• are members or eligible to be members of the permit holder’s union; and
• carry out work on the premises which is covered by an award or
certified agreement that binds the permit holder’s
union.
1.610 Subclause (2) authorises a permit holder of a State union to
enter premises for the purpose of holding discussions with employees who wish to
participate in those discussions provided the employees:
• are members or eligible to be members of the permit holder’s union; and
• carry out work on the premises which is covered by a state industrial
instrument that binds the permit holder’s union.
1.611 Permit
holders of State unions are not authorised to enter premises unless the employer
of the employees is a constitutional corporation or the premises are in a
Territory or a Commonwealth place (subclause (3)).
1.612 Clause 198 provides that the permit holder is only allowed to enter
under clause 197 during working hours and may only hold discussions during the
employees’ meal-time or other breaks.
1.613 Clause 199 provides that a permit holder is not authorised to enter premises if an employer:
• holds a conscientious objection certificate in force under section 180 of Schedule 1B to the WR Act which has been endorsed under section 285C of the WR Act, indicating that the employer is a practicing member of a religious society or order whose beliefs preclude membership of any other body; and
• employs 20 or fewer employees at the premises, none of whom are union
members.
1.614 Subclause (1) provides that a permit holder is not authorised to enter under clause 197 unless:
• an entry notice is given to the occupier and to the ABC Commissioner at least 24 hours but not more than 14 days before the entry (the ABC Commissioner need only be given a copy of the notice);
• the notice specifies section 197 as authorising entry; and
• entry is on the day specified in the notice.
1.615 Further
limits are imposed in relation to entry for recruitment purposes (subclause
(2)). Entry under clause 197 and subsequent conduct is not authorised if the
conduct is for the purpose of recruitment and the entry notice does not specify
recruitment as a purpose for entry or any other permit holder for the union
entered the premises in the preceding 6 months for the purpose of
recruiting.
1.616 Clause 201 provides that Part 5 does not authorise entry onto any part
of a premises which is used for residential purposes.
1.617 Clause 202 provides that unless a permit holder complies with specified requests of occupiers or affected employers entry is not authorised under Part 5 to hold discussions. Specifically, a permit holder must comply with a request to:
• produce documents evidencing authority to enter (subclause (1));
• observe occupational health and safety requirements that apply to the premises, provided the request is reasonable (subclause (2));
• conduct interviews in a particular room or area of the premises or to
take a particular route to reach a particular room or area of the premises to
conduct an interview, provided the request is reasonable (subclause (3)).
1.618 To avoid doubt, subclause (4) makes clear that a request to
conduct interviews in a particular room or take a particular route to reach a
particular room or area of the premises is not unreasonable merely because it is
not the room, area or route that the permit holder would have chosen.
1.619 Clause 203 provides that a permit holder’s rights under Part 5 of
Chapter 9 are subject to any conditions that apply to his or her permit.
1.620 Clause 204 excludes all rights to enter under other industrial laws or
State industrial instruments where there is a right to enter conferred by Part
5, or where there would be a right to enter under Part 5 if the permit
holder’s right was not subject to any conditions, and the limitations in
clauses 198 (times of entry and discussion), 199 (conscientious objection
certificate), 200 (entry notice requirements), 201 (residential premises) and
202 (reasonable requests).
1.621 It does not exclude the operation of
right of entry under an OHS law as prescribed in the regulations.
1.622 Clause 205 prohibits certain conduct in relation to the exercise of powers under Chapter 9, including (subclauses (1)-(4)):
• permit holders intentionally hindering, obstructing or acting in an improper manner;
• persons intentionally hindering or obstructing a permit holder exercising rights under Part or refusing or unduly delaying entry to premises by a permit holder entitled to enter;
• employers refusing or failing to comply with a requirement to produce
documents under subclauses 189(4) or (5).
1.623 To avoid doubt, a failure
by a permit holder and an affected employer to agree on a place to provide
access to documents for inspection under paragraph 189(5)(a) does not constitute
hindering or obstructing (subclause (5)).
1.624 To avoid doubt, subclause
(6) provides that a person must not hinder or obstruct a permit holder
exercising rights before a permit holder enters the premises. For example, a
person found to be destroying or concealing documents would breach this
prohibition.
1.625 Subclauses (1)–(4) are Grade A civil penalty
provisions.
1.626 Clause 206 allows the AIRC to make whatever orders it considers
appropriate in respect of the rights of a permit holder under clauses 188 (entry
to investigate) or 197 (entry for discussions) if satisfied that the occupier of
the premises has made an request to a permit holder under clause 192 or 202 that
is not a reasonable request (subclause (1)).
1.627 The orders that can be
made include an order authorising access to premises for specified purposes
(subclause (2)).
1.628 The AIRC may act on application or on its own
motion (subclause (4)). The AIRC’s powers to make orders under this
clause may only be exercised by the President or, if the President directs,
another Presidential member or a Full Bench (subclause (3)).
1.629 Clause 207 prohibits a person (first person) from intentionally or recklessly giving an impression to a second person that the first person, or a third person, is authorised under Chapter 9 to exercise particular rights if:
• the first person or the third person is not so authorised; and
• the first person knows or has reasonable grounds for believing that
the first person or the third person is not so authorised.
1.630 Examples of behaviour which this clause intends to cover are:
• where a person purports to enter premises without a valid permit; or
• a permit holder does not comply with a condition attached to a
permit.
1.631 The “authorised” things referred to in this
clause also include the right to enter under an order by the AIRC in clause
189(10).
1.632 Clause 208 allows the ABC Commissioner a right to be heard on
applications under Chapter 9 before the Industrial Registrar.
1.633 This clause permits the AIRC to exercise its dispute settling powers to
prevent and settle industrial disputes about the operation of Chapter 9. Any
order that the AIRC makes cannot, however, confer rights that are additional to,
or inconsistent with, rights exercisable under Chapter 9 (subclause
(1)).
1.634 Subclause (2) makes it clear that the AIRC has the power, for
the purpose of preventing or settling the industrial dispute, to revoke, suspend
or impose “limiting conditions” on a right of entry permit issued
under Chapter 9.
1.635 Subclause (3) defines “limiting
condition”.
CHAPTER 10 – ACCOUNTABILITY OF ORGANISATIONS
1.636 Clause 210 prohibits a Commonwealth building organisation from making a “membership deduction” (i.e. a deduction in respect of an amount that a member owes to the organisation in relation to the member’s membership) unless:
• the member has given a written consent in the prescribed form covering the deduction concerned;
• the consent was given not more than 12 months before the deduction is made; and
• the deduction, when added to other membership deductions made with
the organisation during that same 12 month period, is no more than the annual
rate of membership fees applicable to the member at the time the consent was
given.
1.637 This provision is a Grade A civil penalty provision.
1.638 This clause requires a Commonwealth building organisation to lodge an
annual statement with the Industrial Registry and with the ABC Commissioner if,
at the end of a financial year, the organisation holds money on behalf of a
member or members of the organisation.
1.639 This clause will ensure that
Commonwealth building organisations properly disclose details of funds it holds
of behalf of its members.
1.640 This provision is a Grade B civil
penalty.
1.641 Clause 212 requires a Commonwealth
building organisation to lodge a statement, detailing each
donation received over $500, with the
Industrial Registry and with the ABC Commissioner. The statement must be lodged
within 90 days after the end of each financial year (subclause (1)). This is a
Grade B civil penalty
provision.
1.642 Subclause (2) sets
out the details that must be included in the statement, including the name and
address of the donor and the reason why the donor made the donation the
organisation.
1.643 Subclause (3)
provides that an organisation does not breach the reporting requirement by
failing to include the name and address of the donor and the reason why the
donor made the donation, provided that it made reasonable inquiries to ascertain
this information.
1.644 Subclause (4)
provides that a statement lodged in the
Industrial Registry may be inspected by a member of the organisation at any
registry during office
hours.
1.645 Subclause (5) provides
that within 90 days of 30 June each year, the Industrial Registrar must give the
Minister for Employment and Workplace Relations and the ABC Commissioner a
report about the statements lodged in the Industrial
Registry.
1.646 Subclause (6)
defines “financial year”. The definition takes account of the
fact that individual organisations may have different financial
years.
1.647 The requirements in clause 212 are in addition to the
financial reporting obligations on registered organisations set out Schedule 1B
to the WR Act.
1.648 Clause 213 requires a person to report a
request for a donation of more than $500 by a person acting on behalf of a
Commonwealth building organisation. The request must be reported to the ABC
Commissioner within 30 days of the request being made. This is a Grade B civil
penalty provision.
1.649 Subclause
(1) sets out when a person must a report a
request.
1.650 Subclause (2) sets
out the details that must be included in each report to the ABC
Commissioner.
1.651 Clause 214 requires the Industrial
Registrar to make additional reporting guidelines for building
reporting units under section 255 of
Schedule 1B to the WR Act. (The term “building reporting units” is
defined in subclause (7)).
1.652 The
guidelines must require the reporting unit
to disclose (subclause (2):
• commissions and other economic benefits received or receivable by the reporting unit or by an officer or employee of the reporting unit (in that capacity);
• commissions and other economic benefits received or receivable or paid or payable by an entity:
– that the reporting unit controls;
– that is
controlled by a person in the capacity of an officer or employee of the
reporting unit where the controls is for one of the purposes listed in
subparagraphs (2)(c)(ii)(A) –
(D).
1.653 The term “economic
benefits” is not defined but is a phrase used by accounting standards and
has its ordinary
meaning.
1.654 Subclause (4) makes
it clear that guidelines cannot require information to be disclosed by a
reporting unit under subclause (2)(c), if
the disclosure would contravene a law of the Commonwealth or of a State or
Territory.
1.655 Subclause (5)
provides that section 254 of Schedule 1B to the WR Act (which
requires reporting units to prepare operating
reports) applies to building reporting
units as if that requirement also requires the reporting units to give details
of:
• each entity in which the reporting unit has a financial interest;
• each entity in which an officer, employee or member of the reporting unit holds a position as a trustee or director (but only where certain criteria are met);
• each entity controlled by the reporting unit; and
• each entity that is controlled
by a person in the capacity of an officer or employee of the reporting unit.
1.656 Subclauses (2) and (5), in part ensure that reporting
requirements extend to economic benefits (such as funds and income) in relation
to entities (such as trusts) over which a reporting unit or an officer/employee
of a reporting unit can exercise
control.
1.657 Subclause (8)
provides a definition of
“control” for the purposes of subclauses (1) and
(2).
1.658 Subclause (6)
requires the Industrial Registrar to
prepare a report about:
the extent of
each building reporting unit’s compliance with the financial
accountability requirements of Schedule 1B to the WR Act (as modified by
subclause (1)). The report must be provided to the Minister for Employment and
Workplace Relations and the ABC Commissioner within 90 days of each year ending
30 June.
1.659 Subclause (7)
contains the definition of “building
reporting unit”.
1.660 Clause 215 sets out a process whereby a
Commonwealth building organisation which fails to satisfy a
judgment debt for unlawful action damages,
may be deregistered.
1.661 The ABC
Commissioner may apply for a deregistration certificate. The application must
be accompanied by a copy of the court order and evidence that the unlawful
action damages have not been paid (subclause (2)).
1.662 The Industrial
Registrar must serve the deregistration
certificate on the organisation (subclause (3)).
1.663 The deregistration takes
effect, by force of law, at the end of the fourteenth day after service, unless
the unlawful action damages have been paid
in full (subclause (6)).
1.664 A
certificate cannot be issued if an appeal is pending against the payment
order, or within the time permitted to lodge an appeal (subclause (4)). If an
appeal is lodged after the issue of a certificate but before the deregistration
takes effect, the certificate is treated as never having been issued (subclause
(5)).
1.665 Deregistration does not take effect if an appeal is pending
in relation to the issue the deregistration certificate (subclause (7)). Appeal
includes action taken in the High Court or Federal Court on jurisdictional
grounds (subclause (9)).
1.666 Subclause (10) provides that if an organisation is
deregistered, then section 32 of Schedule 1B to the WR Act, which deals with the
consequences of deregistration, applies.
1.667 Clause 216 provides an additional ground upon which an application may
be made to the Federal Court for cancellation of the registration of a
Commonwealth building organisation. The additional ground is that the
organisation (or a substantial number, section or class of members of the
organisation) has failed to comply with an injunction granted under this Act
(subclause (1)).
1.668 Where a finding of fact has been made by the
Federal Court in proceedings under this Act for an injunction or interim
injunction, that finding of fact is admissible as prima facie evidence of that
fact in an application for cancellation of registration on the additional ground
set out in subclause (1) (subclause (2)).
1.669 Clause 217 sets out the circumstances under which the ABC Commissioner
may apply to the Federal Court to for an order disqualifying an individual from
holding office in a Commonwealth building organisation and/or exercising certain
functions in relation to that organisation.
1.670 A Commonwealth
building organisation is defined in clause 4 as a union or employer association
registered under the WR Act that that has rules which allow membership by
building employees or building employers, irrespective of whether it also allows
other members.
1.671 Subclause (1) provides that the Federal Court may
make an order if satisfied the person has:
• been found, in other proceedings, to have contravened a civil penalty provision in this Act or the WR Act; or
• has been disqualified from holding office in an industrial
association, by a court or other body under a State industrial
body.
1.672 Subclause (3) sets out the factors which the Federal Court
must take into account when considering whether to exercise its
powers.
1.673 Subclause (4) sets out the consequences of the Federal
Court ordering a period of disqualification:
• if the person is an office holder in a Commonwealth building organisation, the person ceases to hold office;
• during the disqualification period, the person is not eligible to run
for office, or to be elected or appointed to an office in a Commonwealth
building organisation.
1.674 Clause 217 applies in addition to Part 4 of
Schedule 1B to the WR Act which deals with disqualification from office when a
person has been convicted of a “prescribed offence”.
1.675 Clause 218 allows the Federal Court to make certain orders in relation
to transactions entered into by Commonwealth building organisations, where the
effect of the transaction is, or might be, to put income or assets beyond the
reach of persons to whom the Commonwealth building organisation must pay
unlawful action damages.
1.676 Subclause (1) outlines the preconditions
that must be met before the Federal Court can make an order, namely:
• a court has ordered a Commonwealth building organisation to pay unlawful action damages to a person (the judgment creditor) by a specified date;
• the damages have not been paid by the specified date;
• either before or after the time of the order, the organisation entered into a transaction:
– with intent to defeat the interests of one or more creditors of the organisation (as defined in subclause (6)); or
– with reckless disregard of the interest
of one or more creditors of the organisation.
1.677 If these
preconditions are satisfied, the Federal Court, on application by a judgement
creditor, may order a person to pay the judgment creditor, in satisfaction of
the unsatisfied amount the judgment debt, an amount that, in the Court’s
opinion, fairly represent some or all of the benefits that the beneficiary has
received because of the designated transaction.
1.678 This provision is
intended to have wide application and cover beneficiaries of a transaction and
is not limited to parties to the transaction eg. the clause could apply to a
person who received an interest in income or assets pursuant to a
trust.
1.679 Subclauses (2) – (4) set out the circumstances in
which the Court cannot make an order, including:
• if it is satisfied that the organisation itself has the capacity to satisfy the judgment debt (subclause (2)); or
• the order materially prejudices the rights of a person (subject to
certain criteria being met (subclauses (3) and (4)).
1.680 Subclause (5)
ensures that a person who is required to pay an amount pursuant to this clause
has the right to recover this amount from the organisation as a debt.
1.681 The definition of creditor in subclause (6) includes not only
those persons who are already creditors of the organisation, but also those who
could reasonably have been foreseen by the organisation to be reasonably likely
to become a creditor.
CHAPTER 11 – DEMARCATION DISPUTES
1.682 This Chapter enables
the AIRC to make orders, in the context of demarcation disputes, about the
representation rights of organisations in relation to building employees. The
provisions are based on Chapter 4 of Schedule 1B to the WR Act.
1.683 The
power of the AIRC to make orders under this Chapter is available whenever the
dispute relates, to some extent, to building employees. This approach ensures
that the AIRC is able to resolve the entire dispute, even where an organisation
involved in the dispute is not a building organisation.
1.684 Clause 219 gives the AIRC power to make orders to alter the rights of
employee organisations to represent the industrial interests of particular
classes or groups of employees. The AIRC can exercise power in relation to
demarcation disputes in the building industry irrespective of whether or not the
dispute also relates to other employees.
1.685 Subclause (1) specifies
the circumstance in which the AIRC may makes orders concerning organisational
coverage in settlement of a demarcation dispute (the term “demarcation
dispute” is defined in section 6 of Schedule 1B to the WR Act) that
involves the right to represent building employees.
1.686 Subclause (2)
makes it clear that the AIRC may vary set aside,
revoke or vary an order on application by an eligible
person.
1.687 Persons eligible to apply for an order are an
organisation, an employer, the Minister, the Building Commissioner and any
person who is, or is likely to be adversely affected (whether directly or
indirectly) by a demarcation dispute between organisations (subclause
(3).
1.688 Clause 220 limits the power of the AIRC to make an order about
organisational coverage to circumstances where it is satisfied that the conduct,
or threatened conduct of an organisation or an officer, member or employee of
the organisation is preventing or interfering with the performance of work or is
harming any person or that such consequences have ceased but are likely to recur
or are imminent.
1.689 This provision differs from its WR Act
equivalent (section 134 of Schedule 1B to the WR Act) in one key respect - the
requirement that the AIRC consider conciliation before an order is made is not
included.
1.690 This does not preclude conciliation in appropriate
circumstances, but rather increases the emphasis on quick AIRC action to resolve
demarcation issues in the building and construction industry.
1.691 This provision requires the AIRC, in considering whether to make an
order under clause 219, to have regard to the matters specified in that clause.
Those matters include the wishes of the employees who are affected by the
dispute, the effect of any order on the operations of certain employers and the
consequences of not making an order on any employer, employee or organisation
involved in the dispute.
1.692 The AIRC is also required to have regard
to any relevant agreements or understandings of which it becomes aware that
affect the representation rights of the organisations concerned.
1.693 Clause 222 is a technical item to make it clear that an order made
under clause 219 may be subject to conditions or limitations.
1.694 Clause 223 requires an organisation to which an order under clause 219
applies, to comply with that order and gives the Federal Court jurisdiction to
make orders to ensure compliance.
1.695 This is a Grade A civil penalty
provision.
1.696 The class of persons who may make an application to the
Federal Court in respect of a breach of a representation order reflects the
class of persons who make apply for order under clause 219.
1.697 Clause 224 provides that the powers of the AIRC under this Chapter can
only be exercised by a Full Bench or Presidential Member.
1.698 Clause 225 provides that where an order can be made under this Chapter
in relation to a demarcation dispute, then an order in respect of the same
dispute cannot be made under Chapter 4 of Schedule 1B to the WR Act.
CHAPTER 12 – ENFORCEMENT
1.699 Subclause (1) contains relevant definitions for the purposes of Chapter
12 Part 1.
1.700 Subclause (2) outlines the circumstances in which a
person is taken to have been “involved in” in a contravention of a
civil penalty provision.
1.701 An “eligible person” may apply to an “appropriate court” in respect of a contravention of a civil penalty provision.
• an “eligible person” is: the ABC Commissioner, a person affected by the contravention, or a person prescribed by the regulations (subclause (6))
• an “appropriate court” is generally the Federal Court;
applications may be brought in a wider range of courts in the case of a
contravention of the prohibition on unlawful industrial action (clause 74).
1.702 Subclauses (1)-(3) set out the orders that a court can make
against a person who contravenes a civil penalty provision.
1.703 The
court may order a pecuniary penalty. The maximum pecuniary penalty that may be
ordered depends upon whether the relevant provision was a Grade A or a Grade B
civil penalty provision.
• The maximum penalty for a Grade A civil penalty provision is 1,000 penalty units in the case of a body corporate, or 200 penalty units in other cases.
• The maximum penalty for a Grade B civil penalty provision is 100 penalty units in the case of a body corporate, or 20 penalty units in other cases.
– By operation of section 4AA of the
Crimes Act 1914, the value of a penalty unit is currently $110.
1.704 The court may also order:
• damages payable to a specified person;
• any other order the court thinks appropriate (including an injunction
or an order for the sequestration of assets).
1.705 If a person
contravenes clause 74 of the Bill (which prohibits unlawful industrial action),
then subclause (4) sets out the circumstances in which the court can grant an
injunction restraining a person from engaging in such conduct.
• An application in relation to a breach of clause 74 may be brought in
the Federal Court, the Federal Magistrates Court, a State or Territory Supreme
Court or a Country or District Court of a
State.
1.706 A penalty ordered under this
clause is payable to the Commonwealth or some other
person if the court directs. The penalty
may be recovered as if it were a judgment debt (subclause
(5)).
1.707 Subclause (7) allows
regulations prescribing a person as an “eligible person” (i.e. a
person able to bring proceedings for
breach of a civil penalty provision) to limit the circumstances in which the
person may make an application.
1.708 To avoid double penalties in respect of
the same conduct, subclause (1) prevents a court from
making an order for a pecuniary penalty
against a person if the person has already been
convicted of an offence constituted by
substantially the same conduct as the contravention of a civil penalty
provision.
1.709 Subclause (2)
provides that where criminal proceedings have commenced in respect of conduct
that is
substantially the same as that relating to
proceedings for a pecuniary penalty order for a contravention of a civil penalty
provision, the civil proceedings are stayed. If the person is later convicted
of the offence, then the proceedings for an order for breach of the civil
penalty provisions are dismissed. Otherwise, the proceedings may be
resumed.
1.710 Subclause (3)
ensures that if an order in respect of a
contravention of a civil penalty provision has been made, criminal proceedings
relating to substantially the conduct may still be instituted.
1.711 Clause 229 prevents admission of
evidence in criminal proceedings where the evidence was previously given in
proceedings for a pecuniary penalty order relating to contravention of a civil
penalty provision and the criminal
proceedings relate to substantially the same conduct. An exception is made for
criminal proceedings regarding false evidence given in the civil penalty
proceedings.
1.712 This Part contains the compliance powers of the ABC Commissioner, ABC
Inspectors and Federal Safety Officers appointed by the Federal Safety
Commissioner.
1.713 The ABC Commissioner may, by written notice, compel a person to produce information or documents, or to attend before the ABC Commissioner or an assistant and answer relevant questions if certain criteria are satisfied. The criteria are that the ABC Commissioner believes on reasonable grounds that the person:
• has information or documents relevant to an investigation into a contravention by a building industry participant of this Act, the WR Act or a Commonwealth industrial instrument; or
• is capable of giving evidence relevant to such an
investigation.
1.714 Subclause (2) requires a notice issued by the ABC
Commissioner to allow at least 14 days for a person to
comply.
1.715 Non-compliance with a notice or failure to take an oath or
affirmation when required to do so under subclause (4) constitutes an offence
punishable by a maximum imprisonment of six months (subclause (6)). The
Criminal Code allows for a range of circumstances to be pleaded as a
defence to criminal offences. Clause 231 limits the grounds for such a defence.
However, clause 232 protects persons from certain liabilities that may arise
from the disclosure of information or documents pursuant to clause
230.
1.716 Subclause (3) expressly provides that a person may be
represented by a legal practitioner when attending before the ABC Commissioner
or assistant.
1.717 Subclauses (4) and (5) provide that the ABC
Commissioner or an assistant may require information or answers to be verified
or given under oath or affirmation.
1.718 Subclause (7) provides that
the power of the ABC Commissioner to obtain information is not limited by the
secrecy provisions of any other law unless that law expressly excludes the power
to gather information by the ABC Commissioner or his or her assistants.
1.719 Clause 231 limits the grounds on which persons can legitimately refuse
to comply with a notice from the ABC Commissioner under clause 230, compelling
the production of information.
1.720 Subclause (1) provides individuals
cannot refuse to provide information on the grounds set out in the subclause,
including that it might incriminate that person or contravene another law.
However, subclause (2) provides that any information, answers or documents given
pursuant to a notice under clause 230 is inadmissible in any court proceedings
other those that relate directly to the giving or failure to give information,
answers or documents to the ABC Commissioner.
1.721 Clause 232 protects persons who disclose information to the ABC
Commissioner, in good faith, in compliance with a notice under clause 230, from
proceedings for contravening any other law (such as secrecy provisions in
another law) and from civil action for damages because of that disclosure.
1.722 Clause 233 provides that the ABC Commissioner may retain documents
produced under clause 230 for as long as necessary for the purpose of an
investigation.
1.723 However, subclauses (2) and (3) provide that the
person is entitled to a certified copy which must be received in all courts as
if it were the original. Subclause (4) allows persons access to the original of
a document provided to the ABC Commissioner where necessary.
1.724 In addition to the making of certified copies under clause 233 the ABC
Commissioner may also make and keep copies of documents produced by persons
under clause 230.
1.725 Clause 235 provides that the ABC Commissioner may appoint persons as “ABC Inspectors”. The only persons who can be appointed as ABC Inspectors are:
• employees of the Commonwealth, a State or a Territory;
• a person who is appointed or holds office under a Commonwealth, State or Territory law; and
• consultants engaged under clause 25.
1.726 In relation to
consultants, the ABC Commissioner must be satisfied that the person is an
appropriate person to be appointed as an ABC Inspector (subclause (2)).
1.727 Subclause (3) provides that the ABC Commissioner is also an ABC
Inspector.
1.728 ABC Inspectors must comply with any direction of the
ABC Commissioner (subclause (4)).
1.729 Clause 236 requires the ABC Commissioner to issue ABC Inspectors with
identity cards containing a recent photograph (subclause (1)). These cards must
be carried when exercising powers or performing functions as an ABC Inspector
(subclause (7)).
1.730 The Minister is also required to issue the ABC
Commissioner with an identity card (subclause (2)).
1.731 Subclauses (3)
to (6) require identity cards to be returned within 14 days of ceasing to be an
ABC Inspector, unless the person has a reasonable excuse for not doing so.
Failure to comply with this requirement is an offence, with a maximum penalty of
1 penalty unit.
1.732 Clause 237 sets out the powers of ABC Inspectors. An ABC Inspectors
can exercise his or her powers for “compliance purposes”: namely to
ascertain compliance with a designated building law or the Building Code, to
ascertain whether a court order relating to a designated building is or has been
complied with and to make an assessment of damage resulting from unlawful
industrial action (subclause (1)).
1.733 The powers may be exercised at
any time during ordinary working hours or at any other time at which it is
necessary to do so for compliance purposes (subclause (2)).
1.734 The
powers available to an ABC Inspector include entering, without force, any
premises on which the ABC Inspector has reasonable cause to believe that:
• building work to which a Commonwealth industrial instrument or the Building Code applies or applied;
• there are documents relevant to compliance purposes;
• a breach of a designated building law or the Building Code has, is or
is likely to occur (subclause (3)).
1.735 ABC Inspectors are not
permitted to enter a part of premises that are used for residential purposes
(subclause (4)).
1.736 Subclause (5) outlines what an ABC Inspector can
do on premises he or she has entered under this clause. These include:
• inspecting any work or machinery;
• interviewing any person;
• inspect, and make copies of, any document that is on the premises, or is accessible from a computer that is kept on the premises, being a document that the inspector believes, on reasonable grounds, to be relevant for compliance purposes; and
• requiring a person to produce a document in his or her custody, to
the inspector within a specified period.
1.737 If a person fails to
comply with a requirement to produce a document an inspector may serve written
notice on the person to produce the document within a specified period being not
less than 14 days (subclause (6)). A person who fails to comply with the
requirement to produce a document may contravene the Criminal Code.
1.738 Subclause (7) allows an inspector to inspect and copy a document
produced under subclauses (5) or (6). The inspector can retain the document,
provided a receipt is given and access is given to a person otherwise entitled
to access to the document or a person authorised by such a person (subclause
(8)).
1.739 Subclause (9) also allows an ABC Inspector to enter business
premises in which a person ordinarily performs work or conducts business if the
inspector has reasonable cause to believe that the person has information
relevant to compliance purposes.
1.740 An ABC Inspector who enters under
this subclause may interview the person concerned in that place (subclause
(11)). However, refusing or failing to be interviewed is not to be treated as
conduct covered by section 149.1 of the Criminal Code (subclause
(12)).
1.741 Subclause (13) provides that, before entering premises under
this clause, the inspector must announce that he or she is authorised to enter,
and if the occupier or other person is present the inspector must produce his or
her identity card to that person for inspection.
1.742 An occupier must
not refuse or unduly delay entry to an inspector under this clause. This is a
Grade A civil penalty provision (subclause (14)).
1.743 Clause 238 provides that the Federal Safety Commissioner may appoint persons as Federal Safety Officers. The only persons who can be appointed as Federal Safety Officers are:
• employees of the Commonwealth, a State or a Territory
• a person who is appointed or holds office under a Commonwealth, State or Territory law; and
• consultants engaged under clause 45.
1.744 In relation to
consultants, the Federal Safety Commissioner must be satisfied that the person
is an appropriate person to be appointed as a Federal Safety Officer (subclause
(2)).
1.745 Subclause (3) provides that the Federal Safety Commissioner
is also a Federal Safety Officer.
1.746 Federal Safety Officers must
comply with any direction of the Federal Safety Commissioner (subclause
(4)).
1.747 Clause 239 requires the Federal Safety Commissioner to issue Federal
Safety Officers with identity cards containing a recent photograph (subclause
(1)). These cards must be carried when exercising powers or performing
functions as a Federal Safety Officer (subclause (7)).
1.748 The Minister
is also required to issue the Federal Safety Commissioner with an identity card
(subclause (2)).
1.749 Subclauses (3) to (6) require identity cards to
be returned within 14 days of ceasing to be a Federal Safety Officer, unless
they have a reasonable excuse for not doing so. Failure to comply with this
requirement is an offence, with a maximum penalty of 1 penalty unit.
1.750 This clause sets out the powers of Federal Safety Officers. A Federal
Safety Officer can exercise his or her powers for the “compliance
purpose” of ascertaining compliance with the Building Code by a building
industry participant (subclause (1)).
1.751 The powers may be exercised
at any time during ordinary working hours or at any other time at which it is
necessary to do so for compliance purposes (subclause (2)).
1.752 The
powers available to a Federal Safety Officer include entering, without force,
any premises on which the officer has reasonable cause to believe that:
• building work is being carried out, or has been carried out, being building work to the Building Code applies or applied; or
• a breach of the Building Code has, is or is likely to occur
(subclause (3)).
1.753 Federal Safety Officers are not permitted to
enter a part of premises that are used for residential purposes (subclause
(4)).
1.754 Subclause (5) outlines what a Federal Safety Officer can do
on premises he or she has entered under this clause. These include:
• inspecting any work or machinery;
• interviewing any person;
• inspect, and make copies of, any document that is on the premises, or is accessible from a computer that is kept on the premises, being a document that the inspector believes, on reasonable grounds, to be relevant for compliance purposes; and
• requiring a person to produce a document in his or her custody, to
the inspector within a specified period.
1.755 If a person fails to
comply with a requirement to produce a document an officer may serve written
notice on the person to produce the document within a specified period being not
less than 14 days (subclause (6)). A person who fails to comply with the
requirement to produce a document may contravene the Criminal Code.
1.756 Subclause (7) allows an inspector to inspect and copy a document
produced under subclauses (5) or (6). The inspector can retain the document,
provided a receipt is given and access is given to a person otherwise entitled
to access to the document or a person authorised by such a person (subclause
(8)).
1.757 Subclause (9) also allows a Federal Safety Officer to enter
business premises in which a person ordinarily performs work or conduct business
if the officer has reasonable cause to believe that the person has information
relevant to compliance purposes.
1.758 A Federal Safety Officer who
enters premises under subclause (9) may interview the person concerned in that
place (subclause 11). However, refusing or failing to be interviewed is not to
be treated as conduct covered by section 149.1 of the Criminal Code
(subclause (12)).
1.759 Subclause (13) provides that, before entering
premises under this clause, the officer must announce that he or she is
authorised to enter, and if the occupier or other person is present the officer
must produce his or her identity card to that person for inspection.
1.760 An occupier must not refuse or unduly delay entry to a Federal
Safety Officer under this clause. This is a Grade A civil penalty provision
(subclause (14)).
1.761 Federal Safety officers can exercise their powers for “compliance purposes” related to the accreditation scheme – i.e. to:
• ascertain whether a constitutional corporation who is applying for accreditation meets the accreditation requirements;
• ascertain whether a constitutional corporation who is an accredited person has complied with or is complying with the conditions of accreditation;
• ascertain whether a person accredited under the scheme has complied
or is complying with the conditions of the accreditation in respect of building
work in a Territory or Commonwealth place.
1.762 The powers may be
exercised at any time during ordinary working hours or at any other time at
which it is necessary to do so for compliance purposes (subclause (2)).
1.763 The powers available to a Federal Safety Officer include entering,
without force, any premises on which the officer has reasonable cause to believe
that:
• there are documents relevant to compliance purposes;
• building work is being carried out, or has been carried out, by the
applicant or accredited person referred to in subsection (1) (subclause 3).
1.764 Federal Safety Officers are not permitted to enter a part of
premises that are used for residential purposes (subclause
(4)).
1.765 Subclause (5) outlines what a Federal Safety Officer can do
on premises he or she has entered under this clause. These include:
• inspecting any work or machinery;
• interviewing any person;
• inspect, and make copies of, any document that is on the premises, or is accessible from a computer that is kept on the premises, being a document that the inspector believes, on reasonable grounds, to be relevant for compliance purposes; and
• requiring a person to produce a document in his or her custody, to
the inspector within a specified period.
1.766 If a person fails to
comply with a requirement to produce a document an officer may serve written
notice on the person to produce the document within a specified period being not
less than 14 days (subclause (6)). A person who fails to comply with the
requirement to produce a document may contravene the Criminal Code.
1.767 Subclause (7) allows an inspector to inspect and copy a document
produced under subclauses (5) or (6). The inspector can retain the document,
provided a receipt is given and access is given to a person otherwise entitled
to access to the document or a person authorised by such a person (subclause
(8)).
1.768 Subclause (9) also allows a Federal Safety Officer to enter
business premises in which a person ordinarily performs work or conduct business
if the officer has reasonable cause to believe that the person has information
relevant to compliance purposes.
1.769 A Federal Safety Officer who
enters under subclause (9) may interview the person concerned in that place
(subclause 11). However, refusing or failing to be interviewed is not to be
treated as conduct covered by section 149.1 of the Criminal Code
(subclause (12)).
1.770 Subclause (13) provides that, before entering
premises under this clause, the officer must announce that he or she is
authorised to enter, and if the occupier or other person is present the officer
must produce his or her identity card to that person for inspection.
1.771 An occupier must not refuse or unduly delay entry to a Federal
Safety Officer under this clause. This is a Grade A civil penalty provision
(subclause (14)).
1.772 Subclause (15) defines relevant terms.
CHAPTER 13 – MISCELLANEOUS
13.773 This clause deals with the obligations on a person (in this provision
called an “entrusted person”) to protect the confidentiality of
information obtained in the course of their official employment (as defined in
subclause (8)).
13.774 Subclause (2) makes it an offence for an entrusted
person to make a record of, or disclose, protected information. The maximum
penalty is imprisonment for 12 months.
13.775 Subclause (3) sets out
exceptions from the offence in subclause (2) where the entrusted person is a
designated official (as defined in subclause (8)) at the time of the recording
or disclosure. The exceptions are that the recording or disclosure is:
• for the purposes of this Act;
• in the course of the performance of duties in the entrusted person’s official employment;
• to assist in the enforcement of a building industry law of the Commonwealth, State or Territory and is made to a person appointed or employed by the Commonwealth, a State or Territory, or an authority of the Commonwealth, a State or Territory; or
• in accordance with the regulations.
13.776 The exceptions in
subclause (3), allow for referral of information to other enforcement agencies
for investigation.
13.777 It is anticipated that the ABC Commissioner
will enter into memoranda of understanding with relevant enforcement agencies
dealing with the referral of matters, including follow-up as to action
taken.
13.778 Subclause (4) sets out exceptions from the offence in
subclause (2) where the entrusted person is not a designated official (as
defined in subclause (8)) at the time of the recording or disclosure. The
exceptions are the recording or disclosure is:
• for the purposes of this Act;
• in the course of the performance of duties in the entrusted person’s official employment, where the official employment relates to the enforcement of a building industry law of the Commonwealth, or of a State or Territory; or
• in accordance with the regulations.
13.779 If a person seeks
to rely on any of the exceptions under subclauses (3) and (4) for an alleged
breach of subclause (2), that person bears an evidential burden. This reflects
the Criminal Code.
13.780 The exceptions in subsections (3) and
(4) do not apply where protected information is disclosed to any Minister and
the disclosure was not required or authorised by specific provisions of the Bill
(subclause (5)). Those provisions require the ABC Commissioner and the Federal
Safety Commissioner to prepare annual reports and reports in accordance with
directions of the Minister.
13.781 The exceptions in subsections (3) and
(4) also do not apply where the disclosure of the protected information was made
in an annual report or a report required by the Minister and the requirements of
clause 243 (which prohibits reports from including information relating to an
individual’s affairs) have not been complied with (subclause
(6)).
13.782 Subclause (7) provides that disclosure of personal
information is take to be authorised by law for the purposes of the Privacy Act
1988 (ss.14(1)(d) - Information Privacy Principle 11) if the disclosure is made
in accordance with subclause (3) or (4).
13.783 Subclause (8) sets out
the definitions that apply under this clause.
13.784 This clause provides that information relating to the affairs of an individual must not be disclosed in an annual report or report required by the Minister if:
• the individual is named or otherwise specifically identified as the individual to whom the information relates; or
• it is reasonably likely that people generally (other than people to
whom the individual has disclosed information relating to the individual’s
affairs) would be able to work out the identity of the individual to whom the
information relates (subclause (1)).
13.785 Subclause (2) provides
assistance in interpreting paragraph (1)(b) by providing that the context in
which the information appears and information that is otherwise publicly
available must be taken into account along with any other relevant matter.
13.786 This clause provides that the AIRC may set aside, revoke or vary any
order that it has made under this Act on application by the ABC Commissioner or
a person affected by the order.
13.787 This clause provides that the Industrial Registrar may delegate any or
all of his or her powers and functions under this Act to a Deputy Industrial
Registrar. The regulations may prescribe exceptions.
13.788 Subclause (1) provides that the Minister may delegate any or all of his or her powers and functions under this Act to an SES employee or acting SES employee or a person prescribed by the regulations, other than powers or functions under:
• Chapter 2 – ABC Commissioner, which include the power to appoint and terminate the appointment of the ABC Commissioner and Deputy Commissioners, give directions to the ABC Commissioner and require reports of the ABC Commissioner;
• Chapter 4 – OHS, which include the power to appoint and terminate the appointment of the Federal Safety Commissioner, give directions to the Federal Safety Commissioner and require reports of the Federal Safety Commissioner;
• Clause 236 – Identity cards for ABC Inspectors, which requires the Minister to issue an identity card to the ABC Commissioner; and
• Clause 239 – Identity cards for Federal Safety Inspectors,
which requires the Minister to issue an identity card to the Federal Safety
Commissioner.
13.789 Subclause (2) provides that the Minister may also
delegate all or any of the Minister’s powers and functions under Chapter 3
(the Building Code) to:
• the ABC Commissioner
• a Deputy ABC Commissioner; or
• the Federal Safety Commissioner.
13.790 Subclause (3)
specifies that in exercising powers or function under delegation, the delegate
must comply with any directions of the Minister.
13.791 This clause provides that, for the purposes of this Act, conduct of
the committee of management of a building association or of an officer or agent
of a building association acting in that capacity, is taken to be conduct of the
building association (paragraphs (1)(a) and (b)).
13.792 Paragraphs 1(c)
and (d) set out the circumstances where the conduct of a member or group of
members of the association is taken to be conduct of the building
association:
• where the conduct of the member or group of members is authorised by:
– the rules of the association; or
– the committee of management of the association; or
– an officer or agent of the association acting in that capacity; and
• where the member is acting on behalf of members of the association in
dealing with any employer.
13.793 Subclause (2) specifies that the
conduct set out in paragraphs (1)(c) and (d) is not taken to be conduct of the
association where the committee of management, a person authorised by the
committee or an officer of the association, has taken reasonable steps to
prevent that action.
13.794 Subclause (3) provides that in this clause
officer of a building association includes delegates and other representatives
and employees of the association.
13.795 This clause provides that in applying a provision of this Act that
refers to coercing, encouraging, advising or inciting a person to do a
particular thing, whether or not the person is able, willing or eligible to do
that particular thing is not a relevant consideration. The conduct of coercing,
encouraging etc can be established even if the person being coerced, encouraged
etc is not able, willing or eligible to do the thing he or she is being coerced,
encouraged etc to do.
13.796 Subclause (1) provides that the ABC Commissioner may intervene in a
proceeding before a court in a matter that arises under this Act or the WR Act
if it is in the public interest to do so.
13.797 Subclause (2) provides
that where the ABC Commissioner intervenes in a proceeding, the ABC Commissioner
is taken to be a party to the proceeding with all the rights, duties and
liabilities of a party.
13.798 This clause provides that the ABC Commissioner may intervene in a
matter before the AIRC that arises under this Act or the WR Act as affected by
this Act.
13.799 This clause requires the Industrial Registrar to notify the ABC
Commissioner of every application lodged with the AIRC or Industrial Registrar
under this this Act or the WR Act as affected by this Act, and the outcome of
each application
13.800 This clause deals with a range of matters affecting the jurisdiction
of the courts in relation to provisions of this Act and the WR Act as affected
by this Act.
Jurisdiction where Act allows proceedings to be
instituted
13.801 Paragraph (1)(a) provides that where a provision of
this Act authorises a proceeding to be instituted in a particular court in
relation to a matter, that provision is taken to vest the court with
jurisdiction in that matter.
13.802 In relation to a State Court,
paragraph (1)(b) provides that the jurisdiction vested in the court by a
provision of this Act is subject to the same limits as any other jurisdiction of
that court.
13.803 Paragraph (1)(c) provides that the jurisdiction vested
in the Federal Court or Federal Magistrates Court by a provision of this Act is
not subject to any limits which may apply to other jurisdictions of the
court.
13.804 In relation to a Territory Court, paragraph (1)(d) provides
that the jurisdiction vested in the court by a provision of this Act is vested
only so far as permitted by the Constitution.
Additional jurisdiction
of the Federal Magistrates Court
13.805 Subclause (2) specifies that the
Federal Magistrates Court has jurisdiction in matters arising under the WR Act
as affected by sections 176 (Unfair contracts with building contractors) and 71
(Enforcement of building awards, agreements and orders) of this
Act.
Jurisdiction in relation to modified provisions of Workplace
Relations Act
13.806 Subclause (3) specifies that where a court has
jurisdiction in relation to a matter under a provision of the WR Act and that
provision is affected by this Act, then that jurisdiction extends to a matter
arising under that WR Act provision as affected by this Act.
Writ of
mandamus etc. against officers of the Commonwealth
13.807 For the
avoidance of doubt, subclause (4) specifies that subsections 412(2), 412(3) and
415(1) of the WR Act extend to matters in which a writ of mandamus or
prohibition, or an injunction, is sought against a Commonwealth officer holding
officer under the WR Act in relation to the exercise of powers or functions
under this Act.
13.808 Subclause (5) provides that for the purposes of
section 44 of the Judiciary Act 1903, (which empowers the High Court to
remit a matter to a federal court where that court has the relevant
jurisdiction), the Federal Court is taken to have jurisdiction with respect to
any matter in which a writ of mandamus or prohibition, or any injunction, is
sought against a Commonwealth officer holding office under this
Act.
13.809 Subclause (6) provides that the Federal Court has
jurisdiction with respect to matters remitted to under section 44 of the
Judiciary Act 1903.
Exclusive jurisdiction of Federal Court for
certain matters involving organisations etc.
13.810 Subclause (7) is
modelled on subsection 414(1) of the WR Act and provides that the Federal Court
has exclusive jurisdiction for certain matters involving building organisations.
Referral of matters to the Full court of the Federal
Court
13.811 Subclause (8) provides that a Judge of the Federal Court
may, at any stage of a proceeding in a matter, refer a question of law for the
opinion of the Full Court of the Federal Court or refer the matter to the Full
Court of the Federal Court to be heard and determined.
13.812 Where a
Judge refers a matter the Full Court of the Federal Court may have regard to
evidence given, or arguments adduced, in the proceeding before the
Judge.
13.813 Subclause (9) provides that the Federal Court has
jurisdiction to deal with the questions referred to it under subclause
(8).
13.814 This clause provides that a court cannot make undertakings as to
damages a condition of granting an interim injunction where the ABC Commissioner
is an applicant in proceedings under clauses 67 (injunction against pattern
bargaining), 75 (injunction against unlawful industrial action), 134 (AIRC
orders to stop or prevent building industrial action) or 227 (penalties for
contravention of civil penalty provision).
13.815 Subclause (1) provides that anything done or omitted to be done by
certain protected persons, as long as it is done in good faith and without
negligence, cannot give rise to liability in civil proceedings for loss, damage
or injury of any kind.
13.816 Subclause (2) specifies protected persons
for the purposes of this clause.
13.817 The Governor-General may make regulations prescribing matters where
this Act requires or permits that matters to be prescribed or where it is
necessary or convenient for the matters to be prescribed for carrying out or
giving effect to this Act.
13.818 Subclause (2) specifies matters for
which the regulations may make provision.
SCHEDULE 1 – STATEMENT ABOUT FREEDOM OF
ASSOCIATION
1. Schedule 1 contains the statement about freedom of
association which is relevant for the purposes of subclause 51(14) and 58 of the
Bill.
2. Subclause 51(14) allows the AIRC to include with a building
award the statutory freedom of association statement.
3. Clause 58
prohibits the AIRC from certifying a building agreement unless it contains the
statutory freedom of association statement.