In an important win for the community, taxpayers and people who work in the building and construction industry, the Senate has finally passed the Building and Construction Industry (Improving Productivity) Bill 2013 (the ABCC Bill) by a margin of 36 to 33. The ABCC Bill subsequently passed the House of Representatives and received Royal Assent, with the legislation taking effect on and from 1 December 2016.

As a result the ABCC returns, the previous loophole in relation to industrially motivated pickets has been closed, and maximum penalties for those that break workplace laws in the industry are increased to a level where they may be able to act as an effective deterrent. In addition, the strengthened Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (Building Code 2014) will take effect.

Whilst Master Builders would have preferred that no changes were made to the ABCC Bills, members should be aware that there were a number of last minute amendments that were accepted by the Government in order to ensure passage through the Senate. The most immediately important of which, relates to Senator Hinch’s amendments to Building Code 2014. Senator Hinch’s amendments had the effect of overturning the Government’s existing policy regarding eligibility for Commonwealth work announced after the commencement of Building Code 2014. As a result, the requirement that all enterprise agreements made after the advance release of the Building Code 2014 in April 2014 would need to be Code compliant was amended as follows:

• Enterprise agreements made prior to Building Code 2014 taking effect, that were not compliant with Building Code 2014, will be ‘deemed Code compliant’ for a period of two years. By the end of this transitional period (29 November 2018), these enterprise agreements will need to have been made compliant with Building Code 2014 in order to maintain eligibility for Commonwealth work; and

• All enterprise agreements made on or after Building Code 2014 taking effect must be compliant with Building Code 2014 for those wishing to be eligible to tender for new Commonwealth work.

It is important to note that whilst these amendments are disappointing for a large number of industry participants, Building Code 2014 contains a number of important elements that go far beyond the issue of enterprise agreement content. A stronger focus on productivity and maintaining the rule of law, including a renewed emphasis on right of entry and freedom of association, represents a win for members and the construction industry as a whole.

In addition, employers and employees now have the certainty of knowing that any enterprise agreement they enter following the commencement of Building Code 2014, will need to be compliant should they wish to be eligible to tender for new Government funded work.

Whilst a number of the other amendments to the ABCC Bills will take some time for the industry to absorb, Master Builders will work with the Government and other parties to arrive at a set of practical arrangements for their implementation and for future reforms.

Members seeking further information are encouraged to contact the IR Department on (03) 9411 4560.