Construction watchdog loses a few teeth, but keeps its bite


Construction watchdog loses a few teeth, but keeps its bite

The Federal Government has introduced legislation to replace the ABCC with a Building Inspectorate under FWA, but with the operation of the coercive powers softened in a bid to quell opposition from unions.


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The Federal Government has introduced legislation to replace the ABCC with a Building Inspectorate under FWA, but with the operation of the coercive powers softened in a bid to quell opposition from unions.
While the coercive powers will operate for five years from 1 February 2010 — and are then subject to review — the ABCC and its replacement body will not have the free-ranging powers which currently exist.
At the moment the ABCC can haul any worker in for interrogation at will, and even has veto over the appointment of legal representatives by the worker concerned.
From 3 August this year the ABCC has had these powers circumscribed.
In her second reading speech, Deputy Prime Minister Julia Gillard said she will be issuing a direction to the ABCC concerning the application of coercive powers and the conduct of compulsory interviews.
This direction will require the following safeguards be implemented:
  • The legal representative permitted to attend with a person who is the subject of a coercive powers hearing may sit and speak with their client at all times, speak on behalf of their client, and be given the time and privacy to consult and advise their client.
  • The ABC Commissioner must comply with the model litigant policy of the Commonwealth.
  • The ABC Commissioner must provide a reasonable opportunity for an objection to be raised to a particular exercise of the coercive power, and allow any such objection to be tested in an appropriate court or tribunal.
  • Before exercising the coercive power, the ABC Commissioner must provide a nominated person who is a Presidential Member of the AAT, acting in their personal capacity, with a report describing the person against whom the power is to be exercised, the purpose of the exercise of power, the urgency, the likely effect on the person, and whether the purpose can be achieved in another way.
  • Having provided the report, the ABC Commissioner must consult with the nominated person and receive written advice from the nominated person, on their opinion in respect of the proposed exercise of power.
Once the Building Inspectorate is established:
  • use of the powers is dependent on a presidential member of the Administrative Appeals Tribunal being satisfied a case has been made for their use;
  • persons required to attend an interview may be represented by a lawyer of their choice, and their right to claim legal privilege and public interest immunity will be recognised;
  • persons required to attend a interview will be reimbursed for their reasonable expenses;
  • all interviews are to be videotaped and undertaken by the Director or their deputy;
  • the Commonwealth Ombudsman will monitor and review all interviews, and provide reports to the Parliament on the exercise of this power; and
  • the powers will be subject to a five year sunset clause.
Powers can be ‘switched off’
The Government has also adopted a method by which the coercive powers can be ‘switched off’ at a construction site if there is good behaviour.
All new sites will automatically be under the coercive powers, but an application can be made by an interested party to have them switched off. However any bad behaviour can see the powers reinstated.
Gillard will today issue a direction to the ABCC that it show where its resources are allocated, compared with the locations of high levels of lawlessness so she can ensure the resources are being appropriately used.
The penalty provisions applied under the Building Construction Industry Improvement Act are also being amended to bring them into line with the lower penalties of the Fair Work system.
ACTU will fight on
Despite the changes, the ACTU says it will continue its fight to have the coercive powers abolished and construction workers treated the same as other workers.
ACTU secretary, Jeff Lawrence, said the only people who will win from the retention of unfair laws in this industry will be the big building developers and construction companies.
‘It will be good to see the Australian Building and Construction Commission (ABCC) abolished, as the Government has said it will do,’ he said.
‘The removal of unfair, higher penalties for construction workers is also a step forward.
‘However it is unacceptable for the Labor Government to retain discriminatory laws, including the use of over-the-top coercive powers against one group of workers.
‘Unions are fundamentally opposed to the continued use of coercive powers against workers — even for a five year period and with the new safeguards that are proposed.
‘Our short term fear is that workers will continue to be subject to laws that are just unfair and unreasonable.
‘Our long term fear is that these laws will stop workers on building sites from speaking out when a situation is unsafe or unfair.’
Employers unhappy
Employer groups are unhappy, saying the changes weaken the construction industry watchdog.
Heather Ridout, chief executive of the Australian Industry Group, said that while the building industry legislation is largely consistent with the recommendations of the Wilcox Review, industry concerns remain.
‘On the positive side, Ai Group is pleased that the compulsory interrogation powers of the building industry inspectorate will be retained for at least another five years, although the new safeguards will need to be studied closely to ensure they are workable.
‘We are also pleased that, as recommended by Ai Group, the inspectorate will be a separate statutory body independent of Government.
‘However, industry is very concerned with the exemption provision for interrogation powers, which arose from negotiations with unions, and without consultation with industry. It is a late amendment with an unwieldy governance structure.
‘Details of who the Independent Assessor will be and what criteria they will apply have not been released and questions remain about its workability.
‘The powers of the construction industry watchdog should be available on all projects and should not be watered down. Clearly there has not yet been a sustained and genuine cultural change in the industry.
‘We are also concerned with the sunset provision relating to the interrogation powers, and the removal of the special rules and higher penalties applying in the construction industry.’
Powers ‘watered down’ says MBA
Master Builders Australia expressed disappointment at the ‘watering down’ of the powers for the new industry watchdog, saying it is contrary to a mountain of evidence pointing to the need for a tough cop on the beat.
‘Despite the disappointment, Master Builders will work with the Deputy Prime Minister to ensure that the legislation is workable and to ensure to ensure that any weakening of the current ABCC powers are minimized,’ said Wilhelm Harnisch, CEO of MBA.
‘The powers have been weakened by additional upfront processes for initiating investigations into unlawful behaviour, which have the potential to create substantial delays for the new building industry inspectorate to respond to unlawful behaviour on building sites.
‘The most controversial weakening of the powers is the introduction of new legislative provisions, where the so called coercive powers can be ‘switched off’ in the case where the unions can demonstrate a good track record of lawful behaviour.
‘This is unnecessary and could create an industrial quagmire and a new battleground for industrial thuggery. The building unions should have nothing to fear if they behave within the law.
Trojan horse for unions
‘The building industry is very concerned that the new legislation could become a Trojan horse for building unions to take their damaging practices of coercion and intimidation back on to building sites around Australia.’
Greg Evans, acting chief executive of ACCI, said the business community is concerned that the Government’s proposals are risky, ‘particularly given the success of the ABCC and its predecessor in dealing with some of the worst excesses of behaviour in the building and construction industry.
‘We are concerned the changes send the wrong message to the industry and the community, particularly when the economy can least afford to jeopardise the economic dividends that have been delivered, and at a time of major infrastructure spending,’ he said.
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