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Deconstruction of the ABCC and the Building Code

The enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Act) brings in major changes to the industrial relation space, the most extensive changes since the introduction of the Fair Work Act 2009 (Cth) (FW Act). The Act received Royal Assent on 6 December 2022.

For those in the building and construction industry, a significant reform is the abolishment of the Australian Building and Construction Commission (ABCC) and the repeal of the Code for the Tendering and Performance of Building Work 2016 (Code). The Act also makes a number of amendments to the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act).

In summary, the changes are:

the ABCC is abolished and the Fair Work Ombudsman will take over responsibility for enforcing the FW Act for the construction industry;
what remains of the Code has been repealed (earlier substantial amendments made to the Code in July 2022 stripped back the powers of the ABCC and watered down Code requirements);
provisions of the BCIIP Act relating to penalties for building industry participants have been removed;
matters such as unlawful industrial action, coercion, adverse action, freedom of association and discrimination will now be dealt with under provisions of the FW Act.

The Act also establishes the National Construction Industry Forum (NCIF), which will commence on 1 July 2023. The purpose of the NCIF is to be a statutory advisory body for the building and construction industry, including having the ability to provide advice to the Government about the industry.

On a separate but related note, the “general building and construction industry” has been excluded from multi-employer bargaining in the support bargaining and single-interest employer authorisation streams.

For those in the building and construction industry this means that:

you no longer need to comply with the requirements that were set out in the BCIIP Act and the Code (however, you still need to comply with relevant provisions of the FW Act);
the building and construction industry will no longer have a designated regulator;
for now, you will not be subject to multi-employer bargaining under the supported bargaining or single-interest employer authorisations streams.

In the context of these changes, you should look to:

refamiliarise yourself with relevant provisions of the FW Act, including provisions around industrial action, right of entry and adverse action;
review any relevant industrial relations policies, procedures or guidance your business has in place;
revisit and confirm tendering requirements, including any current tender processes;
review current enterprise agreements in place and confirm nominal expiry dates.

For further advice on how these changes may impact your business, please reach out to our team for assistance.