The Australian Building and Construction Commission is reminding all building industry participants ahead of a series of nation-wide rallies to familiarise themselves with their rights and responsibilities.
Rallies will take place this month and in November, with the first scheduled for Perth on Thursday 18 October followed by rallies in Melbourne, Sydney, Wollongong and Cairns on Tuesday 23 October. Subsequent rallies have also been organised for Hobart; Adelaide; Newcastle; Brisbane and Canberra, along with a number of regional centres.
What should employees do?
If employees want to attend the rally they should talk to their employer about whether they can have time off work.
If the employer gives permission to have time off work to attend the rally, employees should ask their employer to confirm the permission in writing.
If an employee attends the rally without permission from their employer, they are not able to be paid for the period of the absence (or four hours, whichever is greater). It is also unlawful for employees to ask their employer to pay them for any period when they are not at work as a result of taking unlawful industrial action.
The employee could also face civil penalty proceedings. The maximum penalty for taking unlawful industrial action is $42,000 for an individual. In a recent case, the Federal Court imposed penalties of $1,400 on individual employees who took one day of unlawful industrial action (see media release).
What should employers do?
Employers can allow employees to be absent from work to attend a rally (for example by allowing employees to use their annual leave). Annual leave must be agreed to by both the employee and the employer. Employers must not unreasonably refuse a request to take annual leave.
Prior to the rally, employers may want to discuss the rally with their employees.
Employers may wish to inform their employees that it is unlawful for the employer to pay its employees for any period when they are not at work taking unlawful industrial action.
Employers may wish to provide copies of the ABCC Fact Sheet on taking strike action to their employees.
Employers should keep a record of any employees who were given permission to leave work to attend the rally along with any employees who left work to attend the rally without permission.
What about employers covered by the Building Code?
Employers covered by the Code who give employees permission to be absent from work to attend the rally should record this in writing.
Building industry participants covered by the 2013 and 2016 Building Codes are required to report industrial action as soon as practicable after the action occurs. The 2016 Code requires that the industrial action must be reported within 24 hours to the ABCC.
Section 16 of the Code for Tendering and Performance of Building Work 2016 does not require any action to be taken where an employer has authorised the absence of their workers.
Whether an employer gives permission or authorises employees to be absent (to attend rallies or otherwise) is a matter for the employer and their workforce.
What is the ABCC going to do?
Prior to the rallies, the ABCC will be undertaking a range of education activities to inform employers and employees of their rights and responsibilities. During and after the rally, the ABCC will be undertaking compliance activities to identify instances of unlawful industrial action.
The ABCC is available at any time to provide advice and assistance to employers and employees. Further information on these requirements can be found on the ABCC website under industrial action. Alternatively, you can call the ABCC Hotline on 1800 003 338.