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You can find the current article at its original source at https://www.theguardian.com/australia-news/2016/dec/02/construction-red-tape-may-apply-regardless-of-hiring-australians-experts-warn
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| Construction red tape may apply regardless of hiring Australians, experts warn | |
| (35 minutes later) | |
| Labor’s 11th-hour “hire Australian” amendment to the Australian Building and Construction Commission bill could impose onerous requirements to advertise jobs even when an Australian is hired, experts have warned. | Labor’s 11th-hour “hire Australian” amendment to the Australian Building and Construction Commission bill could impose onerous requirements to advertise jobs even when an Australian is hired, experts have warned. |
| Employment law expert Andrew Stewart has told Guardian Australia the provision, which is intended to force employers to advertise for locals before hiring visa-holders, appears to impose the requirement across the board regardless of who is hired. | Employment law expert Andrew Stewart has told Guardian Australia the provision, which is intended to force employers to advertise for locals before hiring visa-holders, appears to impose the requirement across the board regardless of who is hired. |
| The Master Builders Association chief executive, Wilhelm Harnisch, has confirmed it is a “live issue” that is being raised with the government and the ABCC, the new regulator that took over from Fair Work Building and Construction this week. | The Master Builders Association chief executive, Wilhelm Harnisch, has confirmed it is a “live issue” that is being raised with the government and the ABCC, the new regulator that took over from Fair Work Building and Construction this week. |
| The amendment moved by Labor requires a clause in the building code that “no person is to be employed to undertake building work” unless: | The amendment moved by Labor requires a clause in the building code that “no person is to be employed to undertake building work” unless: |
| The government first opposed the amendment in the Senate, but accepted it in the lower house as part of a deal to win crossbench support for the ABCC bill. | The government first opposed the amendment in the Senate, but accepted it in the lower house as part of a deal to win crossbench support for the ABCC bill. |
| Stewart, a labour law professor at Adelaide University, said the amendment was “meant to say nobody who isn’t an Australian citizen or permanent resident can be employed” unless the conditions were met. | Stewart, a labour law professor at Adelaide University, said the amendment was “meant to say nobody who isn’t an Australian citizen or permanent resident can be employed” unless the conditions were met. |
| “But that’s not what it says – it says no person is to be hired without the conditions being met. On the face of it, it means no matter how minor, every job must be nationally advertised.” | “But that’s not what it says – it says no person is to be hired without the conditions being met. On the face of it, it means no matter how minor, every job must be nationally advertised.” |
| Stewart said that was a “significant” imposition because of the project-based nature of building work and the fact employers generally hired from a pool of workers known to them without extensive advertising. “There is no way any contractor will comply with that requirement as written,” he said. | Stewart said that was a “significant” imposition because of the project-based nature of building work and the fact employers generally hired from a pool of workers known to them without extensive advertising. “There is no way any contractor will comply with that requirement as written,” he said. |
| Stewart said the government could try and insert a better drafted term into the code, but that “risks the argument the code is invalid because it is inconsistent with the legislation”. | Stewart said the government could try and insert a better drafted term into the code, but that “risks the argument the code is invalid because it is inconsistent with the legislation”. |
| He said it was more likely the government would put the provision into the code then ask ABCC to ignore the unintended consequences rather than blacklist employers due to a failure to meet the technical requirement. | He said it was more likely the government would put the provision into the code then ask ABCC to ignore the unintended consequences rather than blacklist employers due to a failure to meet the technical requirement. |
| That would give companies that didn’t comply with other sections of the code an argument “that they’re being singled out or treated arbitrarily because other code breaches are let go”, Stewart said. | That would give companies that didn’t comply with other sections of the code an argument “that they’re being singled out or treated arbitrarily because other code breaches are let go”, Stewart said. |
| Commenting on the requirement as it was intended to operate, Harnisch said: “The construction industry and contractors as normal practice hire Australians first, with high-level skills.” | Commenting on the requirement as it was intended to operate, Harnisch said: “The construction industry and contractors as normal practice hire Australians first, with high-level skills.” |
| He said use of skilled temporary 457 visa-holders was “ not the first resort” of employers. | He said use of skilled temporary 457 visa-holders was “ not the first resort” of employers. |
| Asked about the two-year phase-in period for the building code negotiated by Derryn Hinch, Stewart said it had “saved the government from a mess of its own making”, the proposed retrospective application of the code. | Asked about the two-year phase-in period for the building code negotiated by Derryn Hinch, Stewart said it had “saved the government from a mess of its own making”, the proposed retrospective application of the code. |
| But Stewart said the phase-in would create problems for builders without enterprise agreements, or whose agreements were up for renegotiation in the next two years, if they came under industrial pressure from the union to sign a non-code-compliant deal. | But Stewart said the phase-in would create problems for builders without enterprise agreements, or whose agreements were up for renegotiation in the next two years, if they came under industrial pressure from the union to sign a non-code-compliant deal. |
| He said the application of the new code could arbitrarily punish some builders. | He said the application of the new code could arbitrarily punish some builders. |
| “If an employer rolls over after the new code takes effect, they’re in the firing line; whereas those who rolled over right away, if they did exactly what the government said they shouldn’t do, they get protection until November 2018 .” | “If an employer rolls over after the new code takes effect, they’re in the firing line; whereas those who rolled over right away, if they did exactly what the government said they shouldn’t do, they get protection until November 2018 .” |
| A spokeswoman for the ABCC said: “The new code is yet to be published and registered. It is subject to amendments made this week.” | A spokeswoman for the ABCC said: “The new code is yet to be published and registered. It is subject to amendments made this week.” |
| The ABCC refused to comment on the effect of the amendment, adding only that it would “review and analyse the registered version of the code”, despite the fact the text of the offending provision is already contained in legislation. | The ABCC refused to comment on the effect of the amendment, adding only that it would “review and analyse the registered version of the code”, despite the fact the text of the offending provision is already contained in legislation. |
| Guardian Australia has contacted the employment minister, Michaelia Cash, for comment. | Guardian Australia has contacted the employment minister, Michaelia Cash, for comment. |