This page contains general information of interest to participants in the building and construction industry.
The ABCC has created a number of fact sheets to assist you in gaining more specific information.
[Independent contractors][Definition of Building Work][ABCC Investigations][Compliance Powers][The National Code of Practice][Notifications to the ABCC][Penalties under the BCII Act and related Acts][OHS training requirements][Project Agreements]
Independent contractors
Independent contractors legislation protects the status of independent contractors by freeing them from the constraints of industrial and employment law. This allows genuine independent contractors to operate within a commercial framework, and prevents them from being captured by state laws that deem them to be employees.
The legislation offers protection from ‘sham’ arrangements, where employment relationships are misrepresented as independent contractors relationships.
The legislation also provides for a court to review services contracts and to strike them out, or re-write them, if they are found to be unfair.
The laws took effect on 1 March 2007 and apply immediately for new contracts.
While the sham and unfair contract provisions apply immediately, a three year transition period applies to the over-riding of state laws deeming a contractor to be an employee. For a person entering a services contract on or after 1 March 2007, the over-riding of state deeming laws applies immediately.
For further information about independent contractors legislation, see the ABCC's suite of Independent Contractors fact sheets.
Definition of Building Work
Building work covers a broad range of activities in the construction industry. Some activities that relate to domestic housing, mining, and oil and gas extraction are excluded.
For more information please see our fact sheet: The Definition of Building Work - Do you come within the jurisdiction of the ABCC? available on our Fact Sheets page.
ABCC investigations
What powers do the ABCC investigators currently have?
The ABCC investigates contraventions of the Building and Construction Industry Improvement Act 2005 (BCII Act), the Workplace Relations Act 1996 (WR Act) and the Independent Contractors Act 2006 (IC Act), including issues relating to workplace agreements, federal awards and orders of the AIRC. If necessary, the ABCC can take legal action against those alleged to have contravened the BCII Act, WR Act or IC Act.
The ABCC will refer allegations of breaches of other laws to relevant agencies or authorities, such as the Federal Safety Commissioner, the police, the Department of Employment and Workplace Relations or the ACCC.
For more information please see our fact sheet: Powers of ABCC Inspectors available on our Fact Sheets page.
Compliance Powers
The ABC Commissioner may by notice compel a person to attend an examination; provide information to answer questions on oath; and/or produce documents. If you fail to comply with such a notice you may incur a penalty of six months imprisonment.
For more information please see our fact sheet: Compliance Powers of the ABC Commissioner available on our Fact Sheets page.
The ‘National Code of Practice’
The National Code of Practice and its Implementation Guidelines require proper workplace relations and commercial conduct on building work undertaken on behalf of the Australian government and its agencies.
It is necessary for a contractor’s workplace relations arrangements to comply with the Code and Guidelines. This is a requirement to be eligible to work on Australian Government funded projects.
The Code compliance requirement applies in respect of arrangements the contractor uses on both government and private sector projects. The Code and Guidelines also apply to projects that are jointly funded by the Australian, state and territory governments.
A key component in becoming eligible to tender for Australian Government projects is the completion of the Australian Government Building and Construction OHS Accreditation Scheme. For more information about this scheme please visit the Federal Safety Commissioner’s website.
For more information please visit the National Code page on this website. The ABCC has also produced a suite of fact sheets regarding the National Code, please see our Fact Sheets page for more details.
Notifications to the Australian Building and Construction Commissioner
Building industry participants must notify the ABC Commissioner when they make, or are otherwise involved in, an application made to a court under the BCII Act, section 34 of the IC Act or WR Act. For more information please visit our Notifications to the ABCC page.
If you are required to notify the ABCC, please call the hotline on 1800 003 338, or send a facsimile to 03) 8509 3023.
Penalties under the BCII Act and Related Acts
The BCII Act includes a number of new civil penalty provisions and provides for increased maximum penalties. Following is a brief summary:
Unlawful conduct |
Maximum corporate penalty |
Maximum noncorporate penalty |
Unlawful industrial action |
$110,000 |
$22,000 |
| Coercion or undue pressure concerning a building agreement |
$110,000 |
$22,000 |
| Coercion concerning employing/engaging or not employing/not engaging a building employee or contractor |
$110,000 |
$22,000 |
| Discrimination concerning workplace agreement, award or AWA coverage of building employees |
$110,000 |
$22,000 |
| Coercion or undue pressure concerning employee requests for union representation |
$110,000 |
$22,000 |
| Coercion concerning a superannuation fund |
$110,000 |
$22,000 |
| Failure to comply with an ABCC ‘notice to produce’ |
Maximum 6 months' imprisonment |
| Obstruction, hindrance, intimidation or resistance of ABCC officers |
Maximum 24 months' imprisonment
|
| Knowingly providing false or misleading material to ABCC officers |
Maximum 12 months' imprisonment |
| Refusal or undue delay of an ABC inspector’s entry to a premises |
$110,000 |
$22,000 |
| Breaches of freedom of association rights |
$33,000 |
$6,600 |
| Breaches of union right of entry powers |
$33,000 |
$6,600 |
| Unlawful strike payments |
$110,000 |
$6,600 |
OHS Training Requirements
Building and construction industry participants may be required to undertake specific occupational health and safety training before being allowed to commence work. Training requirements are different in each State and Territory. The State/Territory prequalification schemes are broad schemes encompassing many elements such as finance, OHS and environmental requirements. Each scheme varies markedly in their approach to OHS. In contrast, the Australian Government Building and Construction OHS Accreditation Scheme is solely focused on OHS and covers Australian Government funded projects.
More detailed information about OHS training, your legal obligations, and contact details for registered training groups can be obtained by following the links on the Federal Safety Commissioner website.
Project Agreements
What is a project agreement?
A project agreement is an agreement that applies common employment conditions to all subcontractors and employees at a site. Most project agreements are negotiated between the head contractor and a union(s). Subcontractors are typically not included at the bargaining table, even though the project agreement may determine the remuneration of a subcontractor’s employees working on the project.
When and why are project agreements used?
Most project agreements occur on large capital city building projects. They are also used on large civil construction projects. They are designed to establish common terms and conditions for all workers despite the fact the workers may have different employers and be engaged in different trades. Typically, they provide for site or “productivity” allowances, rostered days off (RDOs), work hours, inclement weather, and health and safety requirements.
Example: a project agreement for a Sydney skyscraper between the head contractor and the CFMEU could establish standard wages and conditions for the many small subcontractors who supply the vast majority of labourers working on the project. Project agreements often have the effect of increasing the cost of a project for the project owner, because it requires over-award payments such as payments to a redundancy fund and “top-up workers compensation”.
What is the legal status of a project agreement?
Many project agreements are not registered under the Workplace Relations Act 1996. Unregistered agreements legally cannot override workplace agreements or awards. However, a subcontractor may consider letting an unregistered project agreement take precedence over their registered workplace agreement. This is contrary to the WR Act and the BCII Act.
The WR Act allows for Multiple Business Agreements, which is a method now available for reaching project agreements. These agreements can be used where several employers want to offer their employees the same conditions.
Multiple business agreements must be lodged, and will operate, in the same way as other collective agreements under the WR Act, except they can only be made with the approval of the Employment Advocate.
Section 7 of the BCII (Consequential and Transitional) Act 2005 provides a three-year grace period for project agreements made under a State industrial law before 12 September 2005. This means that such existing project agreements will become unenforceable as of 12 September 2008.
Project agreements and the National Code of Practice
Head Contractors need to ensure that a proposed project agreement will comply with the National Code of Practice. If not, a head contractor who is a party to such an agreement, even on a private project, risks incurring sanctions under the Code. Non-compliance with the Code can place the contractor’s ability to tender for future Australian Government funded work in jeopardy.