‘Switched off’ coercive powers are still ‘on’, says Gillard

News

‘Switched off’ coercive powers are still ‘on’, says Gillard

The ability to ‘switch off’ the coercive powers of the new construction industry watchdog seems to exist in theory only, following a letter from IR Minister Julia Gillard to a Senate Committee inquiring into the watchdog’s powers.

WantToReadMore

Get unlimited access to all of our content.

The ability to ‘switch off’ the coercive powers of the new construction industry watchdog seems to exist in theory only, following a letter from IR Minister Julia Gillard to a Senate Committee inquiring into the watchdog’s powers.
 
In the letter, Gillard says that if the decision to ‘switch off’ the powers is rescinded because of bad behaviour, the re-instated powers would apply to any activity that took place during the time they were switched off.
 
Retrospective
 
In effect, this means that the powers were always there to be used, and are just being applied retrospectively.
 
In the letter, dated 16 July, to Senator Gavin Marshall, chairman of the Senate Standing Committee on Education, Employment and Workplace Relations, Gillard said she wanted to ‘ensure the Committee is made aware of the Government’s intentions’.
 
She said a meeting of the Committee on Industrial Legislation (COIL) on 26 June sought advice on provisions in the Bill relating to:
  • the definition of an ‘interested person’
  • the definition of ‘existing building project’
  • the criteria to be used by the Independent Assessor to determine whether to turn off (and on) the availability of coercive powers
  • the criteria to be used by the Administrative Appeals Tribunal to determine whether to issue a coercive notice.
 
On the first matter, Gillard says that the ‘interested person’ who can apply to have the coercive powers turned off includes the Minister and ‘building industry participants’ including employees, employers, unions and employer associations.
 
Lawful culture
 
‘These arrangements provide the industry with the opportunity to demonstrate that the requisite lawful culture is in place and the opportunity for the law abiding majority to not be tarred with the same brush as the unlawful rogue elements,’ Gillard says.
 
‘It is important to note that the Independent Assessor may rescind or revoke a determination to “switch off” the availability of coercive powers to a project where the project experiences industrial unlawfulness.'
 
‘It is also important to note that if a determination were made and subsequently rescinded, the subsequent use of coercive powers may apply to events which occurred during the period the availability of the powers had been switched off.’
 
On-site activity
 
The Bill says the capacity to apply to have the coercive powers switched off does not apply to projects that commenced prior to 1 February 2010, when the new body to replace the ABCC comes into effect.
 
Gillard's letter says the definition of an ‘existing project’ would be one that has had on-site activity before that date.
 
She also says that among the criteria the Independent Assessor must use in deciding to switch off the coercive powers are that the building project ‘have a demonstrated record of compliance with workplace relations laws, including court or tribunal orders; and that the views of other interested persons have been considered’.
 
Coercive criteria
 
Gillard says the criteria for issuing a coercive notice that would apply to an examination of an individual include:
  • that there are reasonable grounds to believe the person to whom the application relates has information or documents, or is capable of giving evidence, relevant to the investigation
  • that any other method of obtaining the information, documents or evidence has been attempted and has been unsuccessful, or is not appropriate
  • that the information, documents or evidence would be likely to be of assistance in the investigation
  • that, having regard to all the circumstances, it would be appropriate to issue the examination notice.
Post details