News & Views

The ETU has launched a Federal Court challenge to the construction watchdog's power to assess whether enterprise agreements comply with the 2013 construction code.

The union argues the FWBC is abusing its power by rejecting valid workplace agreements reached between construction workers and their employers.

It is the first test of the FWBCs power to review proposed agreements, a role which it took over from the Department of Employment from May 18, shortly before the Turnbull Government called the double dissolution election.

Under the changed regime, the Employment Minister can issue an exclusion sanction on the recommendation of FWBC Director Nigel Hadgkiss, which would exclude a builder from Commonwealth-funded projects.

ETU national secretary Allen Hicks said this week the FWBC rejected the electrical contractor’s agreement despite it being largely unchanged from one approved three years earlier by the Department of Employment after being assessed against the same building code.

Hicks says,

The FWBC as a watchdog has gone rabid, indiscriminately attacking anything that move.

They have been haphazardly involving themselves in bargaining between unions and employers, ignoring the legal parameters of their role in ways that would make a tin-pot dictator blush.

The agreement in question is 100 per cent legal under the Fair Work Act, but the FWBC seems determined to strike it out as part of their own ideological agenda, simply to frustrate the collective negotiations between working people and their employers.

That is why we are seeking the support of the Federal Court to rein in the FWBC, bringing it back within the bounds of its lawful powers which are currently being trampled on.

The ETU says the FWBC has held up hundreds of other agreements in Queensland and NSW.

Decisions made by the FWBC cannot be reviewed under the Administrative Decisions (Judicial Review) Act 1997.

The ETU is understood to have made its application under the Judiciary Act 1903.

The FWBC is understood to have raised objections to three parts of the proposed electrical contractor’s agreement under s5(a) of the Code which deals with promoting "fair, cooperative and productive workplace relations in the building and construction industry".

The watchdog is understood to have objected to clauses that provide for:

• Employees to attend meetings on industrial matters during working hours providing they are not compulsory, are unpaid and that written notice is given beforehand;

• Employees being consulted before contractors or labour hire companies are engaged; and

• The employer to pay any difference the pay rates of contractors and employees.

The FWBC is also said to have asserted that the "pay the difference" clause would effectively be an unregistered agreement that would be consistent with s10(1) of the Code.

An FWBC spokesperson said the agency undertook an assessment of a draft enterprise agreement and will defend its position in this case.

There is now a court process to be followed and it would not be appropriate to make further comment.

Feedback on proposed agreements is provided on a confidential basis to contractors who submit an agreement for assessment.

It would be inappropriate for FWBC to disclose this feedback publicly.

The Government wants to introduce a tougher version of the construction that it unveiled in 2014, but that will not come into force until legislation is passed to re-establish the ABCC.

Source: Workplace Express, 8 November 2016

For further information, please contact NECAs Industrial Relations department (02) 9744 1099 or email gordon.jervis@neca.asn.au

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