Sign of the Times?

What a year 2022 has proved to be — in the Industrial Relations world

In 2022, the Australian Building and Construction Commission (ABCC) tally of fines imposed on the CFMEU for lawless behaviour in the construction industry clicked over the $16 million mark. This is an incredible figure reflecting the construction union’s complete disregard for the law. In addition to the fines, there were a number of very important legal outcomes, most notably in the High Court of Australia with the Pattison decision. Mr Pattison was a union delegate in Victoria who had been claiming ’no ticket no start’ rules applied to a particular job. The ABCC prosecuted and won, and the maximum fines were applied to the union and Mr Pattison because of the union’s notorious record of offending. The matter was appealed by the CFMEU to the High Court of Australia which upheld the application of the maximum penalties because of the lawless history of the CFMEU. It was clear that the maximum penalty was necessary to deter such behavior. Likewise, Mr Pattison, as a representative of the CFMEU, was also found to be deserving of a higher penalty. It is difficult to overstate the value of the Pattison decision to the IR world and the construction industry in particular. We have yet to see its full effect, but this will come in time. In addition to the Pattison decision, we also saw High Court decisions in the “Jamsek” and “Personnel Contracting” cases. These decisions overturned years of established law around the question of when a worker is held to be either an employee or a contractor. With these decisions the High Court held that if the contract was legitimately entered into by the parties, the contract would be the thing that determined the true nature of the relationship, not post contractual behavior which is an ambiguous guide at best. These decisions were a huge relief to our industry which has for years been held hostage by bogus backpay claims for casuals who had already been compensated for various entitlements and wage loadings.

Change of Government

On 21 May 2022, the Australian Labour Party won the federal election and on 10 July 2022 (only 35 business days after the election) the new IR Minister Tony Burke gutted the 2016 Building Code which had successfully enabled the ABCC to regulate lawless behaviour in the industry. There was no consultation with industry prior to this change. In fact, Minister Burke did not announce the change to the 2016 Code until 24 July 2022 when he dropped the news on a Sunday TV talk show without any warning.

Jobs and Skills Summit

On 1-2 September 2022, the Government held a Jobs and Skills Summit. Ostensibly the purpose of the summit was to bring unions, employers, civil society and governments together to address our shared economic challenges, by looking at measures to (amongst other points); • Ensure women have equal opportunities and equal pay; • Keep unemployment low, and boost productivity and incomes; • Deliver secure, well-paid jobs and strong, sustainable wages growth; • Expand employment opportunities for all Australians including the most disadvantaged; • Address skills shortages and get our skills mix right over the long term; • Improving migration settings to support higher productivity and wages.

Proposed new Industrial Relations laws

On 27 October 2022 the Secure Jobs Better Pay Bill 2022 (the Bill) was tabled in the Australian Parliament. This Bill represents the first major change to Australian industrial law since 2008. At 249 pages in length the Bill is enormous and has clearly been considered in detail for some time. Simply put the Bill (if made law in its current form) will return Australia to the pre-Hawke/Keating IR era and will result in a return to industry level bargaining and widespread strikes and chaos. Building and construction is crucial to our economy in NSW. As one of the largest direct employers and the largest employer of apprentices and trainees, great care needs to be taken when dealing with our sector. Master Builders welcomes measures that will improve pay and conditions in many underpaid sectors in Australia such as aged care and retail. However, in Building and Construction we have for years been paying market wages far above the Award and well in advance of more recent inflationary rates. Moreover, the industry is struggling with crippling labour shortages and dramatic increases in material prices as a result of the pandemic shutdowns and interrupted supply chains, absenteeism, and the negative impact of inclement weather. In short, Construction is already a well-paid industry and is facing significant headwinds. In 2023 the Master Builders movement looks forward to genuine consultation with governments to foster and grow the industry for the benefit of all participants.