Building Code Used as ‘Trojan Horse’ to Attack Non-Construction Workers

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Tuesday, August 23rd, 2016
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Rules which govern critical matters of workplace relations and conduct on the sites of federally funded construction projects are being used as a ‘Trojan Horse’ to attack the rights of workers who do not form part of the building sector, a key union in Australia’s manufacturing industry has warned.

Australian Workers Union national secretary Scott McDine has accused heavy equipment supplier WesTrac and building industry workplace relations regulator Fair Work Building and Construction of misusing critical provisions contained within the Building Code 2013 to strip workers of conditions from its existing enterprise agreements with staff who did not operate within the building and construction sector.

“WesTrac is using the Building Code as a justification to ignore the Fair Work Act’s enterprise consent requirements,” McDine said. “It’s trying to remove hard-fought conditions – such as providing labour hire employees with the same rates in-house employees, and requiring employers to consult with employees before making redundancies.”

The dispute centres around the Building Code 2013 – the current version of a set of rules which relate to enterprise agreements and workplace relations practices and are mandatory for contractors who are awarded work on building projects which receive specified dollar values of money from the federal government in respect of any building work which is performed.

According to the union, the current case started after WesTrac secretly forwarded two separate agreements relating to maintenance and warehouse employees in New South Wales and the Australian Capital Territory to check whether indeed these agreements were compliant with the Code.

Following a ruling that some clauses were not compliant with the requirements of the Code, the company is reportedly attempting to dictate that these clauses – which relate to parity wages for labour hire workers, consultation with workers and their representatives prior to redundancies and entitlements for union delegates – need to be removed.

McDine says the workers in question are not performing ‘building work’ and that as such, the Code clearly does not apply to them.

WesTrac’s efforts to bring them in under the Code’s requirements sets a worrying precedent which could see the provisions of the Code extent well beyond employees who are engaged in actual construction, McDine said.

“We could see retail sales assistants from Bunnings classified as builders on the grounds that they sell building products. Or Four ’n Twenty workers classified as builders because their pies are often eaten on building sites. Or workers in office block considered builders on the grounds that they work in a building.

“It would almost be comical if it wasn’t such a serious attack on the rights of hard-working Australians.”

WesTrac has not been able to be reached for comment.

Fair Work Building and Construction chief executive officer Nigel Hadgkiss said any suggestion of the regulator being involved in any attempt to attack the rights and conditions of any workers was ‘completely without foundation.’

FWBC, Hadgkiss said, does not write or recommend any clause contained within any agreement nor recommend or suggest any rates of pay put forward in agreements but merely advises as to whether or not agreements are compliant or non-compliant with the Code.

In the case of WesTrac (or any other case), Hadgkiss says it would be inappropriate for the FWBC to refuse to assess an agreement unless the agreement in question clearly and specifically excludes a company’s potential to perform building work.

McDine says the union is also concerned about employers within the construction sector demanding that suppliers on their projects have agreements which are compliant with the Code even in cases where it is clear that the suppliers in question do not perform building work.

In the case of WesTrac, it is understood that contractors on projects such as West Connect, M4 upgrades and HMAS Albatross have demanded that the company have Code-compliant enterprise agreements even though the company is a simply a supplier and does not perform building work.

Whilst contractors who perform work under federally funded contracts are required under section 8 of the Code to act in a manner which is consistent with the Code, section 13 of the Code forbids a contractor from forcing particular workplace arrangements onto subcontractors or suppliers.

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