Transition to Fair Work Australia for the Building & Construction Industry

April 2009

On 3 April 2009 the Honourable Murray Wilcox QC released his Report into the creation of the specialist division for building and construction work within Fair Work Australia.  A summary of the principal recommendations of the report are:

• The creation of a Building and Construction Division ('the BCD') of the Office of the Fair Work Ombudsman.
• The BCD should investigate and prosecute breaches of Federal workplace laws, including industrial instruments, whether by building employers, building employees or unions.  It should also undertake training and OHS awareness programs.
• There should be no differences between building and other employees, with regard to substantive behaviour or penalties.
• Because of the level of unlawfulness in the building and construction industry, the BCD will retain a power of compulsory interrogation, but be subject to several safeguards, such as ensuring that compulsory interrogation is not used unnecessarily and the interrogated person is treated fairly and courteously.
• The Notice to Attend is to be issued by a Presidential Member of the Administrative Tribunal which is independent of the BCD.  The Presidential Member must have regard to the importance of the investigation, evidence and documents likely to be obtained and the reasonableness to require a person to attend the compulsory interrogation, taking into account the seriousness of the suspected contravention.
• The new legislation should allow for cost of representation, travel and accommodation expenses or lost wages for a person attending interrogation.
• The National Code of Practice for the Construction Industry 1997 ('the Code') be retained with a number of amendments such as:
  • The removal of the requirement of code compliance to off-site contractors and material suppliers, the removal ambiguities and avoiding the unnecessary micro-management of construction site behaviour.  It is recommended that a working party be established of building unions and employers.
  • The Code to be legislated to allow access to both judicial and merit review.
  • Should the Code reflect other government policies such as stimulating jobs growth, indigenous people and women; or relating to the environment, such as materials recycling and energy and water efficiency?

The retention of a specific industry body and the retention of compulsory interrogation subject to safeguards are welcomed and will assist in the continuation of beating the unlawful behaviour that occurs in this industry to provide additional protection to employers and individuals.

Chamber of Commerce & Industry Queensland supports the recommendations to the Code as it will provide clarity and also certainty in its application.  The removal of offsite contractors and suppliers is a major change that will provide relief to a number of businesses that are not in the building and construction industry per se, but who were caught under the Code and Guidelines.

It is now up to the Government to consider the Report and to make the necessary changes to the Fair Work Act 2009.

Further information

For further information please contact your nearest Chamber of Commerce & Industry Queensland regional office. Members can also obtain free advice from the Employer Advice Line by calling 1300 135 822.