NECA sends scathing submission to Senate inquiry

NECA has made a formal submission to the Senate inquiry into the Building and Construction Industry (Restoring Workplace Rights) Bill 2008, strongly urging the Australian government to retain the Australian Building and Construction Commission (ABCC) and its powers.

The proposed bill, introduced by Senator Rachel Siewert, seeks to repeal both the Building and Construction Industry Improvement Act (BCII Act) 2005 and the Building and Construction Industry Improvement (Consequential and Transitional) Act 2005 in their entirety, which would result in the abolition of the ABCC.

NECA CEO James Tinslay said NECA strongly supported the Australian government’s pre- and post-election commitment to retain the ABCC until January 2010, after which time its responsibilities would transfer to a specialist division of Fair Work Australia: “NECA opposes the passing of the Australian Green’s Building and Construction Industry (Restoring Workplace Rights) Bill 2008 which will effectively undo the good work that has been achieved in changing cultural and systemic lawlessness present in the Australian building and construction industry for decades. The title of NECA’s submission — Putting the ‘It’s not wrong, it’s just illegal’ mentality behind us — underscores NECA’s points.

“There are numerous valid reasons for retention of the ABCC, as evidenced in the 2008 Econtech Report, including 10.5% improvement in labour productivity, 13.6% increase in multifactor productivity over the four years to 2005–06 and a reduction of lost working days due to industrial disputes from 120,000 in 2005 to only 7000 in 2007.

“The linkage between the ABCC and WorkChoices made by Senator Siewert in relation to her proposed bill is erroneous. The BCII Act and the ABCC not only preceded the previous government’s WorkChoices reform agenda, but were introduced for reasons ‘specific’ to the history and problems of the construction industry.

“The formation of the ABCC was a direct outcome of the Cole Royal Commission report, which found inappropriate and unlawful conduct and behaviour were rife throughout the industry. Two of the most important reforms flowing from the Royal Commission have been the establishment of the ABCC and the government’s requirements for compliance with the National Code of Practice for the Construction Industry.

“The obligations and reach of the code and its related implementation guidelines have ensured that self-compliance and self-assessment in relation to proper industrial practices and the rule of law are now a commercial and financial imperative for nearly all construction industry participants.

“Because the ABCC has primary responsibility for monitoring compliance with the code and investigating alleged breaches, it ensured that the majority of industry participants now follow the code and that the BCII Act is also upheld.”

Tinslay said the NECA submission addressed three key issues which the ABCC had been successfully addressing and overcoming: “Firstly, a significant issue for contractors was the coercion exerted on them to employ an ETU-nominated person as the shop steward on projects. This was the one significant risk variable that contractors were unable to manage on their projects. Shop stewards could turn a profitable project into one where it made significant loss.

“NECA submitted that Section 43 of the BCII Act (‘Coercion in relation to engagement etc. of building employees and building contractors’) is essential, not only to project productivity and cost outcomes, but to the employer’s right to determine who he/she will employ on any particular project.

“Secondly, NECA submitted that the provisions of the BCII Act in respect of unlawful industrial action are fair and reasonable, especially when one re-reads the Cole Royal Commission on the issue and considers recent court decisions in enforcing the Act.

“Thirdly, NECA is, in principle, against pattern bargaining as the conditions, in some states, created an unregulated de facto industrial jurisdiction beyond the legislated jurisdiction.

“Committing to a pattern agreement is often the defining point between a business that is dynamic, lateral and flexible, compared with a business that must commit to a regime of pattern-agreement regulation, high wages, inflexibility and therefore the nature of the work that can be sought. NECA is of the view that pattern-bargaining agreements hold no place in Australia’s workplace relations landscape, other than with the genuine consent of all parties involved.

“NECA believes that abolishing the ABCC will have a direct and detrimental effect on the productivity, profitability and fairness of the Australian construction industry and that its existence and the intent of its aims, must be maintained.”