Australia: Are you ready for the ABCC and the new Building Code?


An amendment to the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP) broadens the Australian Building and Construction Commission's powers to monitor the building industry.

Employers in this industry should consider how they will be affected by these reforms and take action to ensure compliance with the BCIIP and its accompanying new Building Code. Failure to ensure compliance will affect the ability of construction companies to undertake Commonwealth-funded work.


On Wednesday 30 November 2016, the Australian Senate passed the Building and Construction Industry (Improving Productivity) Bill 2016. Parliament also passed the Building and Construction Industry (Improving Productivity) Amendment Act 2017 (Cth) on 16 February 2017.

The BCIIP creates a new construction industry oversight body - the Office of the Australian Building and Construction Commission (ABCC) under Chapter 2.

The ABCC will replace the Office of the Fair Work Building Industry Inspectorate.

The ABCC is, in some ways, a reflection of the former ABCC created under the Building and Construction Industry Improvement Act 2005. The ABCC's role will broadly relate to:

  • monitoring and promoting appropriate standards of conduct by building industry participants
  • investigating suspected contraventions of relevant building laws and the Building Code
  • instituting or intervening in legal proceedings, and
  • providing assistance, advice and representation to building industry participants where appropriate


Following an amendment in the Senate, the ABCC will be required to focus its attention over the entire building industry and to allocate its resources evenly between stakeholders such as employers, employees, unions, employer organisations and others.

The effect of this amendment is yet to be directly felt. However, recent sanctions against one of Australia's largest building industry participants (under the superseded 2013 code) may provide some insight into how seriously the ABCC will take its responsibilities.

In view of these reforms and recent sanctions, now is the time for employers in the building industry to ensure that they understand their obligations so as to ensure compliance and to avoid sanctions, adverse publicity and the risk of missing out on contracts.


The ABCC holds significant powers to gather information and investigate, such as the ability to require a person to give information, produce documents or attend an interview to give evidence in relation to an investigation. Details and procedures relating to examination notices and the conduct of examinations are set out in the BCIIP.

The ABCC can investigate or prosecute a matter even if the parties to the dispute have already settled the dispute.

Building industry participants should ensure that they provide training to their staff about how to respond to an investigation and what can and can't reasonably be required by the ABCC.


The BCIIP is to be accompanied by a new Building Code, the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014, which will be phased in over the next year.

The Building Code imposes some significant obligations on building industry participants, including provisions relating to sham contracting, collusive tendering practices, drug and alcohol guidelines, workplace relations management plans, terms of industrial agreements and freedom of association.

Building industry contractors and participants will be required to comply with the Building Code in order to be eligible for Commonwealth-funded construction projects.

Employers will have the opportunity to amend any non-compliant industrial agreements while still being eligible for Commonwealth-funded construction projects up until 31 August 2017.

It may be difficult for employers in the sector to reform non-compliant industrial agreements in the face of comments by CFMEU officials to the effect that they will not re-open negotiations of agreements to make them compliant with the Building Code's requirements.

However, despite these likely difficulties, once the Building Code applies to a building industry participant, they must comply with the Building Code on all public and private building work they undertake to retain the right to perform Commonwealth building work. In this way, the Building Code has the potential to significantly transform the entire building industry.


The BCIIP also brings in new rules and powers relating to unlawful action. Under the Act, unlawful action includes organising or taking of unlawful industrial action in addition to the newly introduced "unlawful picketing" provisions.

Under the BCIIP, the maximum penalties for unlawful industrial action and unlawful picketing are increased from $54,000 to $180,000 for corporate entities (including unions), and from $10,800 to $36,000 for individuals.


Building work is broadly defined as the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land.

Under the Building Code, building work now also includes the transporting or supplying of goods to be used in work covered by [the above building work description] directly to building sites (including any resources platform) where that work is being or may be performed.

The definition has also been extended to include work on ships, Australian ports and offshore rigs as part of the definition of "building work". Consequently, the scope of ABCC powers and the jurisdiction of the BCIIP will include ships, ports, offshore rigs and transport of goods used in building and construction projects.


The BCIIP and the Building Code present opportunities for suppliers of locally-made building products and materials. To be eligible to undertake Commonwealth-funded work, contractors will now have to comply with requirements relating to the investigation and use of Australian made products.


The ABCC Act prohibits any action being taken against a person because they are, or are not, covered by an enterprise agreement.

Additionally, the new Act outlaws unwritten or informal agreements, so called "project agreements", which aim to set terms and conditions of employment across whole projects or building sites.


Building industry participants should act now to ensure that they are compliant with the new requirements before August 2017. To remain eligible for Commonwealth-funded work, building industry businesses will need to ensure that their enterprise agreements are compliant with the Building Code (save for the transitional exemptions).

Building industry participants should:

  1. Carefully review their enterprise agreements and where necessary, begin the process of changing the agreements now, noting that there may be resistance to such change from employees and unions.
  2. Check whether they are now participants in the building industry owing to the extended definition of the term.
  3. Consider how they will respond to the ABCC if it commences an investigation involving the employer or its employees.
  4. Plan for issues relating to right of entry under the new rules by gaining an understanding of the changes and preparing policies and procedures.
  5. Check its procurement practices to ensure that they comply with the new framework.
  6. Update and train their staff in relation to the changes, in particular to the ABCC's information and investigation functions.

Building industry participants need to prepare for these changes to ensure that they are meeting their obligations. Obtaining appropriate legal advice will assist you to manage the risks presented by these reforms.

Megan Kavanagh
Workplace relations
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Emily McRae
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.