ONSTRIKE

A Full Bench of Fair Work Australia (FWA) has confirmed that protected industrial action is now available as a means to compel an employer to bargain. As a result, unions are now in a position to bypass the good faith bargaining provisions of the Act by moving, via a ballot, immediately to protected industrial action.

This decision shows that the Act has numerous deficiencies that ought be of concern to employers; principal among them is the ability to bypass the requirement to bargain in good faith, prior to any industrial action being available.

PROTECTED INDUSTRIAL ACTION AVAILABLE BEFORE BARGAINING ‘COMMENCES’

The decision confirms that in the following circumstances protected industrial action is available where:

•bargaining has not yet ‘commenced’

•the employer has refused to bargain

•FWA has not otherwise ordered the employer to bargain, and

•there may not be majority support for an enterprise agreement from employees to be covered by the agreement.

BACKGROUND

The decision concerned an employer (JJ Richards) who refused the Transport Workers’ Union’s (TWU) request to bargain for an enterprise agreement to cover its employees.

Bargaining had not commenced, and the TWU had not made use of specific provisions of the Act that enable FWA to compel an employer to bargain (being the provisions that allow a bargaining representative to make application for a Majority Support Determination and seek Bargaining Orders).

Following the Company’s refusal to bargain, the TWU made an application for a protected action ballot order to enable protected industrial action to be engaged in by relevant employees. The order was made (and upheld) despite the fact that negotiations had not commenced.

IMPLICATIONS OF THE DECISION

The impact of the decision is that an employer may find itself subject to protected industrial action in circumstances where:

•it has not agreed to bargain

•it has legitimate and compelling operational reasons for not agreeing to bargain, and

•there is little support amongst the relevant employees for an enterprise agreement to cover them.

The decision also confirms that the pre-requisite to obtaining a protected action ballot order that the applicant be ‘genuinely trying to reach an agreement,’ is not a high bar to meet.

WHAT TO DO?

Employers need to understand their risk profile in the bargaining process. The likelihood of protected action has now increased exponentially and needs to be factored into your bargaining strategies.

• MD Baldwin – IR Director

UNIONS NOW ABLE TO STRIKE BEFORE

BARGAINING

ED

ITION

4-2011

Master Builders Association of the ACT1 Iron Knob St, Fyshwick ACT 2609PO Box 1211, Fyshwick ACT 2609

Tel: (02) 6247 2099Fax: (02) 6249 8374

Email: canberra@mba.org.auWeb: www.mba.org.au

MASTER BUILDERS EXECUTIVE COUNCILPresident – Ross Barrett Treasurer – Simon Butt Chair, Commercial Builders’ Sector Council – Valdis Luks Chair, Suppliers and Subcontractors’ Sector Council – Grace Ferreira Chair, Residential Builders’ Sector Council – David Howarth Chair, Civil Contractors’ Sector Council – David Jones Chair, Professional Consultants’ Sector Council – Hans Sommer

MASTER BUILDERS MANAGEMENT TEAMExecutive Director – John MillerDeputy Executive Director – Jerry HowardDirector Industrial Relations – Mike BaldwinSenior Management Accountant – Louise MacCallumSenior Manager - Marketing & Membership Services – David Leitch

MASTER BUILDERS GROUP TRAINING General Manager – Wendy Tengstrom

The Federal Coalition has said it will fight the Government’s planned tax crack-down on the building industry and independent contractors, announced in May’s Federal Budget.

The Budget foreshadowed a range of new measures aimed specifically at the building industry, including through tougher restrictions on the use of personal-services income.

The Coalition has announced it “will not change the current laws relating to the treatment of personal service income and will resist the current government’s attack on contractors and the self-employed.

“The recent federal budget has also added onerous new reporting and red-tape requirements for independent contractors in the construction sector”, the Shadow Minister for Small Business, Bruce Billson said.

Despite the Coalition’s promise to oppose the measures, their ability to prevent implementation of the new measures is uncertain.

According to a Government Discussion Paper on the changes, no legislation will be necessary. However new regulations will be needed - which can be disallowed by Parliament, and which the Coalition could conceivably block if it can secure support from independents or minor parties.

According to the Budget, the Government will require businesses to report annually on payments made to contractors in the building and construction industry, with effect from 1 July 2012.

“The reporting regime will require businesses

to report information that they should already collect under existing tax arrangements.”

The Budget predicts the measure will raise an additional $514 million in tax over four years. As part of the plan the Australian Taxation Office has been given an extra $46 million to undertake data matching.

Businesses will be required to report annually to the ATO any amounts paid to contractors in the building and construction industry, along with each contractor’s ABN. No private individual who hires a contractor will be required to report payments under this regime. The proposal will be confined to business-to-business transactions (contractors).

The Government plans to activate an unused section of the Tax Act (the Payment, ABN and identification verification system (PAIVS)) as part of the crackdown.

According to the Discussion Paper, “The PAIVS has not been activated yet, as components of the new compliance system will only be used in areas where there is entrenched non-compliance and when the Government is convinced that it is necessary.”

Regulations will be inserted into the Taxation Administration Regulations 1976 defining the terms of ‘purchaser’, ‘supplier’ and ‘supply’.

Opposition Leader Tony Abbott said, “Labor has well and truly declared war on independent contractors and family enterprises and I want the independent contractors of Australia to understand that they have a friend in this Coalition.”

COALITION TO FIGHT INDEPENDENT

CONTRACTOR CHANGES

“The recent federal budget has also added onerous new

reporting and red-tape requirements for independent contractors in the construction sector”

The Building Quality Forum was reconvened by Minister Simon Corbell MLA, Minister for Environment and Sustainable Development on July 5 2011 at the ACT Legislative Assembly. The Master Builders made a follow up submission to the Forum addressing some of the key concerns raised regarding quality of building work, including recommendations to the Minister to deliver better quality outcomes.

The ACT Government has conducted a public survey on the quality of building work with 350 responses received. The survey was being conducted by ACTPLA for the Government’s Building Quality Forum, which was established last year after a campaign by building owner and consumer groups and a spike last year in complaints about the quality of building work,

especially involving high rise developments.

The Government says the building quality survey will help it determine the extent of problems with building quality in the ACT and find solutions.

Home or unit owners or body corporates that have experienced poor quality work have been invited to complete the survey and members of the construction industry and associated professions were invited to send the survey to people they know will want to contribute to the survey. The survey closed on 20 June.

The results are to remain confidential, the Government said.

One of the Building Quality Forum’s recommendations to Government last year was to quantify quality issues and set a benchmark to measure the success of other

recommendations as they are implemented. The survey was developed jointly by the Government, the Owners Corporation Network and Strata Community Australia ACT.

The Government said the findings will help the Government provide a well-regulated construction industry where new dwellings meet community expectations of quality, safety and environmental sustainability, the national Building Code of Australia and local requirements for licensed trades.

The ACT Budget in May allocated more than $6.5 million over three years for improved building quality and increased regulation of the building industry.

MEASURES INCLUDED:

• Expanded electrical, plumbing and gas inspection certification teams and building investigation and audit teams to ensure all new dwellings meet exacting safety standards prior to occupation and addressing and investigating complaints about building quality.

• An enhanced compliance management service to act where the Government believes severe breaches of the building standards have occurred; and

• Changes to the building quality framework in the ACT, including amending the Building Act and subordinate legislation to address the building quality reforms, the National Energy Efficiency Strategy and the Disability Access Standards, and investigating the expansion of specific Government initiatives such as the ACT House Energy Rating Scheme.

BUILDING QUALITY STILL A TOPICAL ISSUE

“The Government says the building quality survey will help it determine the extent of problems with building quality in the ACT and find solutions.”

Attention all Industry practitioners, developers & builders.

Be aware that new fees and charges will apply from 1 September 2011. We will provide you with further updates as this information comes to hand.

(and as always the fees are not likely to be any less than previously levied)

New requirements under the changed High Risk Work Licensing rules came into operation from 1 July.

The new rules mean High Risk Certificates of Competency or tickets will no longer be issued from 1 July 2011 for the use of cranes, scaffolding, rigging and forklifts. Operators will need to apply for a High Risk Work Licence (HRWL).

Certificates of competency issued or re-issued before 1 January 2005 cease to be recognised from 1 July. (Certificates of Competency issued or re-issued after this date will expire and not be re-issued at various dates depending on when they were issued or re-issued, with all Certificates de-recognised from 30 June 2014.)

High Risk Work Licensing was introduced in the ACT on 1 October 2009 with the commencement of the Work Safety Regulation 2009. The Regulation introduced the National Standard for the Licensing of Persons Performing High Risk Work which was declared in 2006. High Risk Work Licensing (HRWL) replaced the National Occupational Health and Safety certificates (Certificates of Competency or tickets) and covers work such as the use of cranes, scaffolding, rigging and forklifts.

Also from 1 July 2011, all training and assessment for High Risk Work must be conducted through a Registered Training Organisation that has the relevant competency units in their scope of registration. Competency

assessors will no longer be able to operate independently of any Registered Training Organisation. Persons who want to become Competency Assessors are required to become a Registered Training Organisation themselves, commence work with, or be affiliated with, a Registered Training Organisation before 30 June 2011.

From 1 July 2011, only persons holding a Self-Erecting Tower Crane may operate self-erecting tower cranes. Certificates of competency in this area are also no longer recognised.

HIGH RISK WORK LICENCES CHANGE FROM 1 JULY

The Federal Court has ordered the CFMEU to pay $660,000 in fines, costs and compensation for a blockade designed to enforce CFMEU membership on a Melbourne development site at the expense of the AWU.

The action against the CFMEU was brought by the Australian Building and Construction Commission.

Federal Court justice Richard Tracey found the Construction, Forestry, Mining and Energy Union flagrantly disregarded a court order in May last year when it blockaded the Melbourne Markets relocation site.

Justice Tracey imposed a $150,000 fine on the CFMEU for contempt of an injunction and a $100,000 penalty for contraventions of the Building and Construction Industry Improvement Act.

The CFMEU will also have to pay $190,000 in costs to the ABCC and $120,000 compensation to six contractors.

“A meaningful penalty must be imposed in order to attempt to deter the CFMEU

and others who, but for the risk of a high penalty, may be tempted to emulate that union’s flagrant disregard of court orders,” Justice Tracey said.

The Federal Court in Melbourne accepted that the CFMEU acted unlawfully by blockading the Melbourne Markets Relocation Project site between 19 May 2010 and 28 May 2010. The blockade occurred despite injunctive orders to restrain the conduct of the CFMEU and its officials, made by the Court at the ABCC’s request.

After the blockade began, orders were made to the union to end the protest and allow people and vehicles access to the site, but this did not occur, the court heard.

“It (the CFMEU) arrogantly asserted a right to determine who entered the site and what work could be undertaken on it,” Justice Tracey said.

In a statement the ABCC said it was a landmark settlement and Commissioner Leigh Johns said he was pleased compensation would be paid to smaller subcontractors.

“Demarcation disputes threaten productivity, deprive workers of their wages and put hardworking subcontractors at risk,” Mr Johns said.

“The blockade sought to force an agreement with the CFMEU instead of the AWU,” said ABC Commissioner Johns. “Our industrial relations system allows employers to negotiate agreements with any union that covers their workers.”

Cars, 44-gallon drums and crushed rock were used to restrict entry during the blockade, and union officials attempted to lure kangaroos onto the site to disrupt works, stopping subcontractors from removing equipment for use on other sites, the ABCC said.

The action continued for approximately a week after the Federal Court issued orders restraining the CFMEU from hindering access to the site or from interfering with the perimeter fencing.

CFMEU PENALISED OVER BLOCKADE

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CEILING FRAMING SYSTEMSRobert Palombi from AC Contractors recently attended the Intex Expo in Las Vegas and he came back with some information on the Armstrong Drywall and Ceiling Framing Systems.

Robert said the biggest innovations he saw were in the Metal Grid systems for Drywall and Ceilings. “The industry is becoming simplified. In the US the systems

are built in modules rather than full lengths where you have to cut it to size, it’s all clicking together and is so much easier to use”.

The key to the new systems was that the grid clips together, “you need less tools, the main beams are premeasured in 100mm increments, so you can see the length and say every six just click a cross tee in”.

While not available in Australia at this stage, David Yaxley from Armstrong says “it is our intention to supply the system in Australia, however the timing hasn’t been set.”

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INTERNAL WET AREA WATER PROOFING FAILURES

A recent seminar on wet area waterproofing held by the MBA, highlighted a number of concerns specifically related to the design and construction of wet areas within residential buildings. A number of the participants at the seminar discussed projects where they were called in to do alteration and remedial works where the previous waterproofing system had failed, or improper practices were used during the application of the waterproofing and following works undertaken by other trade contractors. One tiler/waterproofer with whom I had discussions, said that he is very selective of the builders he undertakes work with and has often been asked to do less than he thought was necessary in terms of waterproofing. This is a very disappointing comment, given that the input costs associated with getting waterproofing right, as opposed to the remedial costs for not getting it right, are totally disproportional.

In previous editorials we have highlighted problems associated with external waterproofing. Our own research would suggest that some of our members do not understand the requirements of AS3740 2010 Wet Area Waterproofing. In assisting our members and contractors to gain a better understanding of waterproofing, we are delivering a Certificate III in Construction Waterproofing over four days, commencing on 18th July.

We have included photographic evidence (opposite) of examples of non-compliance with the National Construction Code Volume 2 and AS3740. Builders may not be aware of the consequences of water from wet areas seeping into adjoining rooms. We have seen examples where such moisture ingress has not become apparent due to furniture or fixtures in the adjoining rooms which cover the damaged areas. Unfortunately, unbeknown to the occupants, mould has formed and this can have severe health consequences for the occupants of the building.

• Jerry Howard - Deputy Executive Director

Door Jamb and architrave to terminate 2mm above the finished foor tile

Fig 1.1 For whole wet area floor waterproofing. A water stop that has a vertical leg finishing flush with the top of the finished floor level shall be installed at floor level openings.

The floor membrane shall be terminated to create a waterproof seal to the water stop and to the perimeter flashing.

Fig 1.2 Section through a spa or standard bath when they are inserted and supported on horizontal surfaces. You cannot use a shower over this form of bath installation.

Waterproof membrane shown in blue over the wall lining

Water stop angle installed around bath perimeter must finish 5mm above top of tiles

More information

PROPOSED CHANGES TO NATIONAL CONSTRUCTION CODES 2012

NCC 2012 Volume One and Two - BCA Draft Proposals available for comment.

The draft changes for the 2012 edition of the National Construction Code Volume One & Two - Building Code of Australia, have been placed on the ABCB website for public comment and to give BCA users advance notice of proposals that may take effect from 1 May 2012.

Proposed changes from the current edition of Volume One & Two are marked with underlining (for new text) and strikethrough (for deleted text). It should be noted that the inclusion of a proposal in the public comment draft does not mean that the proposal is supported by the ABCB or its committees.

Comments are sought only on the proposed changes contained in the public comment draft. New proposals for changes should be submitted as a Proposal for Change for consideration as a part of future NCC editions.

The period for comment on the NCC Volume One & Two draft proposals closes on Monday 1 August 2011. Given the ABCB’s commitment to making NCC 2012 available as early as possible to enable industry to prepare for the changes, comments made after this date will not be considered.

Some of the major changes to both Volume One and Volume Two relate to the deletion of horizontal wire balustrades and changes in balustrade construction to not facilitate climbing. Stairways and ramps will now have to be provided with suitable handrails, where necessary, to assist and provide stability for people using the stairway ramp. Balustrades or barriers will now be required to prevent people from falling from a floor or roof or through an opening, including an openable window, where the height above the ground or floor level exceeds one metre. If the openable window is restricted to a 125mm opening or fitted with a robust screen, then there is no requirement to provide a barrier to that window. The four metre rule will no longer apply, as

all balustrades protecting people from falling greater than one metre must be constructed not to facilitate climbing.

Hand rails must be provided to a stair or ramp on at least one side and must extend for the full length of the flight or ramp. These requirements will apply to all stairs and ramps where the change in elevation is greater than one metre.

To view further information and the draft documents, please visit the ABCB website – www.abcb.gov.au

Fig 1.3

Fig 1.4 Fig 1.5 Fig 1.6

The problems depicted in figure 1.5 and 1.6 can be avoided if proper detailing of the waterproofing is installed and door jambs and architraves are fitted as per figure 1.1 - Figure 1.2 shows how drop in baths should be installed with water-stop angle. Figure 1.3 shows waterproofing installed to a floor requiring full floor waterproofing with no water-stop angle and architraves and door jambs embedded in the tile bed - a potential disaster as depicted in figure 1.5 and figure 1.6. Figure 1.4 shows a large blob of silicone around a shower mixer outlet - how will the silicone react with the waterproofing and how will the tile bond to the silicone?

MILLION

// To Insert New Data Goto Object/Graph/Data• Copy and Paste Pivot Table Data into Data

$0

$30

$60

$90

$120

$150 New Homes

Multi Unit

Garages, Pools, Decks and Similar Structures

Commercial Building Work

Additions and Alterations (Residential)

May-11Apr-11Mar-11Feb-11Jan-11Dec-10Nov-10Oct-10Sep-10Aug-10Jul-10Jun-10

Jun-10 Jul-10 Aug-10 Sep-10 Oct-10 Nov-10 Dec-10 Jan-11 Feb-11 Mar-11 Apr-11 May-11Additions and Alterations (Residential) 8.55 5.01 1.51 14.37 1.5 0.7 0.95 0.345 5.7 17.3 14.87 4.97Commercial Building Work 53.29 119.43 41.78 39.91 17.82 130.32 131.16 20.42 12.5 22.50 41.42 14.20Garages, Pools, Decks and Similar Structures 8.52 2.18 3.48 11.49 35.74 10.08 11.27 3.96 4.7 7.16 5.14 6.90Multi Unit 44.86 21.88 30.84 95.7 31.46 78.4 148.8 5.92 50.4 53.62 54.66 8.81New Housing 55.60 27.54 13.83 9.31 7.3 13.53 7.3 6.02 15.2 19.05 12.82 7.43

The above graph and table below summarise private sector building activity for the various building sectors in the ACT over the past 12 months. The values for each month are depicted in millions of dollars.

ACT PRIVATE SECTOR BUILDING ACTIVITY

COMING EVENTS FOR 2011

CCF Earth Awards Date: September 1 2011 Where: National Gallery, Gandel Hall

The Earth Awards have the specific aim of recognising outstanding work in construction and environmental excellence which reflects development and use of the best technologies and practices by Australian civil contractors. In their 18th year, the Earth Awards are the most prestigious awards in civil infrastructure including; roads, bridges, railways, marine structures and utilities that are the economic veins and arteries that link the Australian community.

For more detailed information visit: www.civilcontractors.com/earthawards.

Annual Dinner Date: October 27 2011 Where: ANZAC Hall, Australian War Memorial

This years Master Builders Annual Dinner will be held in ANZAC Hall at the Asutralian War Memorial. This year the guest speaker will be Robert Gottleibsen. Robert Gottleibsen is one of Australia’s leading business commentators and has a long history of business journalism in this country.

TRAINING DATES FOR JULY 2011

TRAFFIC CONTROLLER COURSE

Date: July 18 (Contact Norma Inglis at ninglis@mba.org.au to book your place)

The Traffic Controller course conducted by Coates Training utilises the New South Wales Roads & Traffic Authority Package. The course is designed to qualify participants as a Traffic Controller and should be attended by personnel required to control traffic using a Stop/Slow bat and the legislative requirement of work based health and safety induction training.

CONFINED SPACE Date: July 20 & 21 (Contact Norma Inglis at ninglis@mba.org.au to book your place)Our Confined Space course is a 2 day course designed for workers who may be required to enter / manage a confined spaces or hazardous atmosphere. The course is nationally recognised and participants receive a certificate of attainment on completion..

TIMBER FRAMING COURSE

Date: August 3 (Contact Norma Inglis at ninglis@mba.org.au to book your place)AS1684 Residential Timber Framing Code is by far the most important standard used in construction primarily due to the fact that our industry is dominated by Timber Framed construction. This seminar was developed by the Timber Development Association with the support of Wood Solutions and Hyne, to explain the key changes in the 2010 version of the standard.