Labor will get rid of the federal Building Code

Last weekend it was reported in The Australian that the federal Opposition will replace the Code for the Tendering and Performance of Building Work 2016, with a new set of procurement guidelines for the construction industry focused on safety standards and apprenticeships.

This follows an earlier announcement that Labor will abolish the specialist industry regulator, the Australian Building and Construction Commission.

Cast your mind back to the last election in 2016. The Coalition’s legislation to ‘restore the rule of law’ through re-establishment of the ABCC was one of the triggers for the double dissolution poll (see: https://theconversation.com/explainer-what-are-the-abcc-and-registered-organisations-bills-56676). However, regulation of the building industry hardly featured as an issue during the campaign.

The re-elected Turnbull Government secured passage of the ABCC bill through Parliament in late 2016, a victory for then-Employment Minister Michaelia Cash. The 2016 Code followed soon after, a further measure to loosen the powerful grip of the Construction, Forestry, Mining and Energy Union.

The Code requires companies seeking to be selected for federally-funded building projects to comply with detailed requirements, including ensuring that their enterprise agreements do not include ‘union-friendly’ clauses or other provisions that limit workplace flexibility and productivity.

This is a ‘soft law’ mechanism which attempts to use the disincentive of ineligibility to tender for lucrative construction contracts in order to bring about cultural change, and in particular, to prevent companies from bending to the will of the CFMEU.

In an article published in the Sydney Law Review earlier this year, I contended that the Code (and the broader Coalition scheme for construction industry regulation) is grounded in a narrow view of the concept of the rule of law which stresses the need for compliance with legal rules. The Coalition takes aim at the ‘lawlessness’ in this sector typified by the CFMEU’s disregard for legal restrictions on industrial action and union rights of entry to building sites.

I also made the following observations:

… in many more respects, the 2016 Code has nothing at all to do with the rule of law. Rather, it seeks to promote other aspects of the Government’s workplace relations agenda, particularly its desire to dilute the power and influence of trade unions. …

Arguably, the 2016 Code is the Coalition Government’s most potent statement of anti-union intent — especially the extensive attempts to preclude union involvement in the workplace through the agreement content restrictions and freedom of association requirements. These provisions of the 2016 Code go well beyond ensuring neutrality in the choice presented to employees as to whether they should join a union or become involved in union activities (or not). Rather, the 2016 Code restrictions seek to prevent employers from offering any support for, or tolerance of, union involvement in the workplace — right down to prohibiting the display of union flags or symbols and union involvement in employee inductions — under the pain of possible ineligibility for Commonwealth-funded building work.

(see: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/SydLawRw//2018/4.html)

Sure enough, in February this year, the ABCC issued guidance on interpretation of the Code which sought to ban the display on building sites of ‘images generally attributed to, or associated with an organisation [i.e. union], such as the iconic symbol of the five white stars and white cross on the Eureka Stockade flag’.

It’s seriously removed from the reality of how this industry works to think that imposing a ban on union flags on cranes and Eureka insignia on hard-hats will change anything. As I concluded in the article:

… the special scheme of construction regulation has been in place for almost 15 years without any real change in the nature of industrial relations practices on building sites.

When last in government, Labor angered construction unions by maintaining separate regulation of the industry through a watered-down version of the Howard-era regulator. Shorten Labor is seeking to make a more fundamental shift that is in tune with the broader union narrative of the need to #changetherules.

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