As part of its election campaign and industrial relations agenda, Labor announced that it would abolish the Australian Building and Construction Commission (ABCC) and the Registered Organisations Commission (ROC).
The Labor Government has now taken initial steps towards ending the ABCC, with changes introduced under the Code for the Tendering and Performance of Building Work Amendment Instrument 2022 (Amended Building Code), paring back the powers of the ABCC and requirements under the Code for the Tendering and Performance of Building Work 2016 (the Building Code).
The Amended Building Code took effect as of 26 July 2022.
What has changed?
The changes are significant, with the Amended Building Code effectively stripping the most substantive requirements from the Building Code.
The key changes are the removal of the following:
the ABCC Commissioner’s powers to grant exemptions and recommend exclusion sanctions under the Code, with these powers now going to the Workplace Relations Minister;
the restrictions on the content of enterprise agreements and freedom of association, with the Explanatory Statement stating that these requirements “have the effect of imposing additional requirements on building and construction workers compared to those in other industries” and that these matters are already dealt with in existing laws, such as the Fair Work Act 2009 (Cth) (FW Act);
the requirements for code-covered entities to comply with applicable work health and safety laws and sections relating to fitness for work, again with the Explanatory Statement stating that these matters are already covered by existing work health and safety legislation;
compliance, monitoring and enforcement arrangements, including the obligation imposed on code-covered entities to notify the ABCC of a breach or suspected breach of the Code;
requirements for funding entities, other than provisions which are required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act);
the provisions dealing with Workplace Relations Management Plans.
So what’s left?
Essentially, only the following remains in the Building Code:
the obligation on code-covered entities to undertake Labour Market Testing;
the obligation on funding entities to ensure that before entering into a contract for Commonwealth funding building work, the preferred tenderer provides particular information to the funding entity (this is required under the BCIIP Act);
What will happen to the ABCC?
Whilst Labor pledged to abolish the ABCC, the ABCC can only be decommissioned through legislation, meaning that the Labor Government needs to repeal the BCIIP Act
Until the BCIIP Act is repealed, the ABCC will remain in existence, albeit in a significantly diminished state noting the Labor Government has also indicated it is prepared to strip the ABCC of funding. The Labor Government has flagged it will propose legislation later this year seeking to repeal the BCIIP Act, but whether such legislation will pass remains to be seen with some senators already expressing reservations.
Any changes to the ROC?
So far there have been no changes to the ROC.
The BCCIP remains in force, which means that for now the ABCC will continue but it is expected its operations will wind down given the recent changes.
It also remains to be seen what impact the Amended Building Code has on the building and construction industry, and whether any further changes will be made in the industry.
Building and construction participants should also bear in mind that despite the Amended Building Code, the BCIIP Act, the Fair Work Act 2009 (Cth) and applicable work health and safety legislation continue to apply, and must be complied with.
Should you require any advice in relation to your obligations under such laws or further information about the Amended Building Code, please contact our employment team.