The Coalition Government's revived Australian
Building and Construction Commission will have more powers than the
The Federal Coalition Government has delivered on one of its key
pre-election promises by introducing the Building and Construction
Industry (Improving Productivity) Bill 2013 into Parliament to
re-establish the Australian Building and Construction Commission
(ABCC) on 14 November 2013.
It is likely, however, that construction companies will have to
wait a while yet until they are afforded the added protections
provided by the Bill, as it is unlikely to be passed until the
Coalition obtains a majority in the Senate on 1 July 2014.
The Bill provides the ABCC Commissioner with additional
mechanisms and powers to regulate the building and construction
industry, some of which have not existed in legislation previously.
Some of the key changes are:
Extended definition of "building work"
The Bill's extended definition of "building work"
includes off-site prefabrication of made-to-order components for
parts of buildings, structures or works, and the transporting or
supplying of goods to be used in building work.
This change is intended to ensure that large resource projects
are not indirectly disrupted by co-ordinated go-slows on the supply
The most significant new provision in the Bill deals with
unlawful picketing. The Bill defines an unlawful picket as action
has the purpose of preventing or restricting a person from
accessing or leaving a building site or ancillary site;
directly prevents or restricts a person accessing or leaving a
building site or an ancillary site; or
would reasonably be expected to intimidate a person from
accessing or leaving a building site or an ancillary site; and
that is motivated for the purposes of supporting or advancing
claims in respect of the employment of employees or the industrial
objectives of a union, or is otherwise unlawful.
Importantly, a reverse onus of proof applies in relation to any
alleged unlawful picketing. This means that if it is alleged that a
person organised or engaged in an the unlawful action for a
particular reason or intent, then it will be presumed that they did
so for that reason unless the person proves otherwise.
As under the previous ABCC legislation, unlawful industrial
action is prohibited, as are coercion and discrimination.
The Bill expressly provides an avenue for a person to apply for
an injunction to stop either unlawful industrial action or unlawful
Project agreements will be unenforceable under the Bill where
the intention is to secure standard employment conditions relating
to a particular site covering employees from different
Penalties and compensation
The pecuniary penalties for engaging in unlawful action have
been increased from those that applied under the ABCC's
previous legislation. The maximum penalties for a body corporate
(including unions) will be $170,000, and for an individual
Under the Bill, as well as seeking penalties and injunctions,
the ABCC will also be able to pursue uncapped compensation for
damage suffered by a person affected by a contravention.
The Bill reintroduces the legal costs regime which does not
apply under the Fair Work Act unless certain criteria are
satisfied. The reversion to a costs jurisdiction will enable the
ABCC and building industry participants who are successful in
bringing proceedings under the new Act to recover their legal costs
of doing so.
The Bill will extend the ABCC's reach to any resources
platform in the exclusive economic zone, or in waters above the
continental shelf, and to any ship in these areas that is traveling
to and from an Australian port.
Importantly, this provides the ABCC with powers to investigate a
building work occurring offshore that was previously outside its
The Bill will reinstate the ABCC's coercive powers and will
give it the power to give a person written notice compelling that
person to attend examinations or produce documents if the ABCC
believes they have information or documents relevant to an
investigation, or are capable of giving evidence relevant to such
The Government has stated that this power is necessary to ensure
that the ABCC is able to carry out its investigations thoroughly
and breakdown the "historical and unacceptable 'culture of
silence' in the sector."
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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