On this page you will find important information that directly affects building and construction workers. The industry issues and legislation summarised here will help you to better understand your rights and obligations as a building industry participant.
If you require more specific information please read our fact sheets or contact us for confidential advice and assistance.
[Relevant Legislation] [Unlawful Industrial Action] [Freedom of Association] [Choice of Agreement] [Strike Pay] [Independent Contractors Laws]
Relevant Legislation
The Building and Construction Industry Improvement Act 2005 (BCII Act) forms part of the government’s national workplace relations reforms. The purpose of this legislation is to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and the Australian economy as a whole. All building industry participants are required to comply with this Act when working on Australian building sites.
Unlawful Industrial Action
Unlawful Industrial Action is generally action taken by employees or employers in the building industry that interrupts or restricts normal work. Most industrial action is unlawful. Severe penalties may be imposed on an individual or a body corporate, including a union, that is found by a court to have participated in unlawful industrial action. These penalties include fines of up to $22,000 for an individual and up to $110,000 for a body corporate.
Lawful, or “protected” industrial action occurs if you are negotiating a federal workplace agreement, and certain conditions have been met. The most important, being is that there is a secret ballot of the workers that are to be covered by the agreement.
Action by an employee is not industrial action if:
- the employer has agreed in writing before the action occurs; or
- there is an imminent risk to the employee's health or safety and the employee was not directed to perform other work in a safe area.
For more information please read our fact sheet: Unlawful Industrial Action Under the BCII Act.
Freedom of Association
What is Freedom of Association?
In Australia, every employee is free to join, or not to join, a union. It is illegal to try to force anyone into joining or not joining a union.
Freedom of Association in the building and constructions industry is governed by special provisions in the BCII Act and the WR Act.
Do I have to join a union?
No. It is entirely up to you whether you choose to join a union or not.
It is illegal to try to force someone to join a union, and also illegal for employers to discriminate against non-union workers. Any clause in an industrial agreement which requires employees to join a union is void and unenforceable.
Can my employer stop me joining a union?
No. If you want to join a union, it is illegal for your employer to try to stop you. Equally, it is illegal for employers to discriminate against union members.
Can a union take industrial action to force my employer into employing only union members?
No. A union must not take, or threaten to take, industrial action against an employer to force them into employing union members.
Can the ABCC help if someone is trying to force me to join, or stop me from joining, a union?
Yes. The ABCC can take legal action against anyone suspected of breaching the Freedom of Association provisions of the BCII Act and WR Act. You can contact us on 1800 003 338 daily between 7am and 7pm (Eastern Standard Time).
If I make a complaint to the ABCC will it remain confidential?
Yes. Your identity as the person making the complaint is kept confidential unless you provide express permission to disclose your identity.
The only exception to disclosing your identity as the person making the complaint would be if there is a legal requirement to do so, for example a court subpoena or where disclosure is necessary to enforce the criminal law.
Choice of Agreement
Generally, employers and employees are entitled to choose the type of agreement they want to use. This may be an individual agreement, a collective employee agreement or a collective union agreement.
Where there is an existing employment relationship, it is unlawful for anyone to threaten or coerce you into choosing a particular type of agreement. It is also unlawful to discriminate against you in the workplace because of the type of agreement you have chosen.
However, where a person offers employment to a proposed new employee, the offer can be made on condition that a particular kind of agreement be entered into. Unlike the situation that applies in respect of existing employees, such a conditional offer to a new employee does not amount to coercion or unlawful discrimination.
Strike Pay
Are employees entitled to be paid while taking industrial action?
Under the WR Act it is illegal for employers to pay employees for any period of industrial action. It is also illegal for unions and their members to make claims for pay for any period of industrial action, or to take or threaten further industrial action to try to obtain such pay. Industrial action includes situations where employees do something which restricts, limits, or delays work, such as imposing bans, or work-to-rule or go-slow campaigns. For more information on what “industrial action” means please read our fact sheet: Unlawful Industrial Action.
Can the ABCC take action against employees who receive strike pay?
The ABCC can take legal action against any person suspected of breaching the strike pay provisions of the WR Act. Individuals in the building industry who receive strike pay may incur a penalty of up to a maximum of $6,600.
Does the prohibition on strike pay still apply if the industrial action is protected?
Yes. This prohibition applies even if the industrial action is protected action.
Independent Contractors Laws
Workers and Independent Contractors
Independent contractors legislation is intended to protect 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 new legislation relies on the common law test developed by the courts to define who is an independent contractor.
Independent contractors generally run their own business and control their own working times and how they do their work. Many independent contractors advertise their business, provide all their own tools and equipment and pay others to carry out their jobs.
In contrast, employees generally are subject to control and direction on how, where and when their work is to be performed. They are paid regularly on an hourly, daily, weekly or monthly basis, and cannot pay someone else to do their work for them.
A worker may be defined as an ‘independent contractor’ under various federal and state Acts, but that will not determine their status under the IC Act.
For further information see our Am I an Independent Contractor? fact sheet.
Independent contractors legislation also affords strong protections to individuals by ensuring that they cannot be forced into independent contracting arrangements.