New construction code attacks wages, conditions

New laws could hurt the wages and conditions of more than a million construction workers. Photo:
Friday, August 29, 2014

The Coalition dominated Senate will vote on a raft of amendments to the Fair Work Act in July next year that includes the Building and Construction (Fair and Lawful Building Sites) Code.

The code will be voted in as a piece of retrospective legislation. This means it will be backdated to April 24 this year. This is so the code will apply to all new enterprise bargaining agreements (EBA) due to be negotiated by all construction unions with the respective employers.

Any employer who does not have a code compliant EBA will not be able to tender or supply labour on government jobs. Employers are already drawing up code compliant EBAs, which will apply to government and non-government work.

If this code is successfully implemented it will attack the wages and conditions of more than a million construction workers.

What will the code do?

The code will prohibit all clauses that restrict the use of contractors. So the current union-negotiated EBA clauses that require any contractor brought onsite to be paid the same wages and conditions will be breaking the code. It is also non-code compliant for the unions to request payslips from employers and contractors to check wages and entitlements.

In practice, a contractor can get a legal EBA voted up with only a handful of loyal inhouse employees. This EBA is then binding on all future employees and under the future rules of the code can be marched onto any building site.

How bad can this EBA be?

It has to pass only the Better Off Overall Test — known as the BOOTS test — introduced by the Labor Party in 2009. This test applied by the Fair Work Commission compares the proposed EBA not with the previous EBA but with the Award.

Using an electrician’s wage, an employer could set wages at $25 an hour and still pass BOOTS with flying colours, as the highest hourly wages provided for by the 2010 Electrical Award is $23.49.

The “flexibility clause” also introduced by the Labor Party must be included in every EBA. It gives the employer the right to approach individuals and get them to sign an agreement that varies anything from penalty rates to working hours. This clause can achieve what John Howard wanted to achieve with individual contracts. Combined with the code it becomes dynamite.

The code makes it non-code compliant to have EBA clauses that proscribe lump sum payments. Lump sum payments in effect turn a worker into a salaried employee. The pressure on individual workers who are approached by their employer to accept losses in wages and conditions or face the dole queue will be enormous.

The code also does away with current EBA restrictions on the use of part-time and casual labour.

Non-compliant clauses include a whole raft of provisions in current EBAs that cover overtime, rostered days off (RDO) and shift arrangements. Gone will be lock down weekends, the ability to say no to working an RDO, the ability to say no to a shift change and the ability to limit the amount of overtime, such as the Victorian ETU's 10-hour cap.

Under the code, employers will have the right to make people work when they want, for as long as they want restricted only by the paltry provisions of the award.

The code removes any EBA clauses that stipulate quotas of mature age workers, women or apprentice ratios. All are deemed unacceptable under the catch-all phrase “this restricts the employer’s ability to manage its business”.

The code, of course, attacks union representation. In fact, the code cannot even bring itself to mention unions by name. Instead, it uses the term “building association”. It further restricts the right of union access to members. Union representatives will no longer have any role in onsite inductions or hold onsite meetings that encourage workers to join the union.

A delegate can no longer carry out compliance checks to ensure all members are being correctly paid their wages and entitlements. Anything onsite such as union posters, leaflets, RDO calendars, stickers or flags that encourage workers to join a union break the code.

On top of all this, prime minister Tony Abbott has created a revamped Building Industry watchdog headed by anti-union ideologue Nigel Hadgkiss. This watchdog will have more money and powers than ever before to ensure compliance with the code. There can be no doubt that the long-term aim of this watchdog is to remove unions from worksites altogether.

What can we do?

Abbott and the employer organisations who have fed him these polices have been clear in what they want to achieve: Big cuts to wages and conditions, the end of penalty rates and union strength reduced to next to nothing. In fact, they would prefer unions disappeared altogether.

This upcoming attack by Abbott and the Coalition has the ability to destroy 50-years of hard won conditions in a matter of years. Abbot is banking on people’s weakness and that the fresh new layers of construction workers will not stick together and fight.

If people want to see Australia’s wages driven down in a race to the bottom, all they have to do is nothing.

Not only can people fight and win, they can use this battle to get back on the front foot. Now is the time to prepare, to discuss strategies and tactics and be ready to do whatever it takes to defend their own livelihoods and their fellow workers’ future.

Here are some suggested actions.

• Step one: The construction unions need to do a mass mail-out to all members informing them of the code and calling them to mass meetings. Most members do not even know about the code.

• Step two: Conduct a protracted national industrial campaign that throws the construction industry into chaos. We should be fighting right now to stop this code even getting on the table. Revolving overtime bans, health and safety audits, mass sick days, rallies, go slow. It is time to hit the construction bosses in the only place they care about, their bank accounts.

I am well aware we have union leaderships that, bar a few exceptions, will not carry out any strategy except to do nothing and elect the Labor Party. These officials care only about saving their own jobs. The rank and file construction worker cannot sit back and allow this to happen.

Dare to struggle, dare to win. If you don’t fight you lose.

[Simon Millar is a member of the Socialist Party. He can be contacted at]