Bargaining under the Liberals’ Building & Construction Code: Game on!

The Liberals’ Building and Construction Code is now upon us

After stopping the code from becoming law for 18 months with the help of Senators Adam Bandt and Jacqui Lambie and the ALP, the ignorant new ‘independent’ senators bent over for the government. In return for what, we may never know.

What we do know is that Derryn Hinch, Nick Xenophon and Pauline Hanson will all have blood on their hands – trading off the livelihoods and lives of trades workers for their short-term political benefit.

The code: what we know

By 1 September 2017 any contractor wanting work on any major government-funded project must have a ‘code compliant’ agreement.

Until September, companies without code compliant agreements will be able to tender for government work but will not win the work until agreements are changed.

The code will be overseen by the newly re-formed Australian Building and Construction Commission (ABCC) under Nigel Hadgkiss.

Section 11 - the Liberal Government’s ideology imposed on every agreement

Section 11 of the code says agreements must not have clauses that ‘impose limits on the ... company to manage its business or to improve productivity’.

In short, section 11 prohibits clauses in agreements that agree policies and procedures for things such as:

  • ordinary and overtime hours
  • use of labour hire workers
  • use of casual workers
  • fixed rostered days off
  • number and use of overseas workers
  • number of apprentices
  • union representative structures and procedures.

Under the code, even if an employer wants to clarify issues in an agreement and ‘impose’ conditions on themselves (so they can continue to ‘deliver projects on time and on budget’), they will be banned from publicly funded work.

What we don’t know

We do not know exactly which clauses are noncompliant with the code because section 11 is so broad it could apply to any content of an agreement.

Every individual agreement needs to be vetted by the ABCC and approved by Nigel Hadgkiss.

The ETU had one of its common contracting agreements vetted, and 72 clauses were found to be ‘noncompliant’.

Since then, however, some agreements containing some of those clauses have been accepted as ‘code compliant’.

The ETU has sought clarification of clauses in more agreements that have just disappeared into the black hole of the ABCC, which has kept the whole industry in the dark.

University of Adelaide law professor Andrew Stewart said the code ‘effectively gives the ABCC discretion to object to almost anything’.

‘You can regard almost anything in an enterprise agreement as interfering with an employer’s capacity to manage its business,’ he said.

Where to from here

The ETU will continue to navigate the obstacles to decent agreements imposed by this government and the ABCC to deliver agreements.

The only choice we have been left with is to bargain like we’ve never bargained before.

This isn’t a bargaining round that you can afford to ignore.

It is our duty to you, and your duty to the industry and future living standards for electrical trades, to stand up and fight.

The ETU has never taken a backward step, and we are not about to now. Anything being taken away from our conditions because they are now ‘prohibited’ must be compensated for: No retreat, no surrender. 

It is our duty to you, and your duty to the industry and future living standards for electrical trades, to stand up and fight.

This article is from the Autumn 2017 issue of the ETU's members magazine. You can read the digital edition here.