On 20 March 2012, the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012 (Cth) (“the Bill”) passed through the Senate. The final step in the legislative process is for assent to be given by the Governor General in order for the Bill Law. The Bill will amend the title of the Building and Construction Industry Improvement Act 2005 to read Fair Work (Building Industry) Act 2012 (Cth). The Passing of the Bill is a much needed triumph for Labor given the current political climate.
As reported previously, the Bill will abolish the Australian Building and Construction Commission (ABCC) and replace it with the Office of the Fair Work Building Inspectorate. The main changes, aside from the abolition of the ABCC include more oversight in the use of the “coercive” examination powers of the ABCC.
Where previously the ABCC was able to issue examination notices without much oversight, the new Fair Work Inspectorate must request the notice from the Administrative Appeals Tribunal (“AAT”) who will issue the notice upon review of the circumstances of the request. The value in such a method of review is the check of the use of powers that are generally seen by many to be very coercive. In the alternative, the additional oversight may be seen as a bureaucratic burden.
The examination powers are subject to a sunset provision outlined in s 46 of the Bill, which provides for the prohibition against making an application for an examination notice more than 3 years from the date of commencement. However the Government at that time may review the examination powers, and may elect to retain their use within the Inspectorate, or to allow the sunset provision to take its course.
There has also been controversy around the limitation of the inspectorate to commence or maintain proceedings after agreement between parties to a dispute. There is argument that this is effectively allowing the Inspectorate to turn a blind eye to illegal conduct, no doubt a move seen to favour the unions.
It would seem, at an objective view, that the abolition of the ABCC is less about the importance of having a fair and balanced building and construction industry specific watchdog, but more about political position. The ABCC was the one of the last institutions of the Howard-Era industrial relations system, set up in response to the Cole Royal Commission into the building and construction industry. It has been seen by many (particularly unions) as been biased towards employers and head contractors, and that it has treated unions and its representatives and members unfairly. It’s abolition further embeds the Labour Party’s Fair Work framework for industrial relations.