The government is vowing to honour its election promise to abolish the Fair Work Building and Construction Inspectorate (FWBCI) and reinstate the Australian Building and Construction Commission (ABCC) within 100 days of its election, despite the likely obstacle of a hostile Senate.

The ABCC was established by the Howard government in 2005 to regulate industrial relations in the building and construction industry by monitoring the application of the National Code of Practice for the Building and Construction Industry (Code), which required businesses tendering for federally funded construction work to be certified compliant with strict workplace relations guidelines aimed at reigning in the influence of trade unions on the collective bargaining process.

Under subsequent Labor governments, the scope of the ABCC’s investigative and enforcement powers was reduced and the Code amended to reflect the new Fair Work Act 2009 (Act), eventually resulting in the abolition of the ABCC and the creation of the FWBCI to monitor compliance with the Act and revised Code.

Employment minister Eric Abetz has confirmed the government is on track to introduce draft legislation required to implement the return of the ABCC in the first sitting week of parliament. However, Labor and the Greens have maintained their opposition to the government’s proposed course of action and are expected to prevent any such legislation from passing the Senate before the make up of the Upper House changes on 1 July next year.

To counteract the anticipated opposition to its legislation, the government is reportedly considering implementing a range of measures that do not require parliamentary approval, with the aim of instilling the hardline approach of the Howard-era ABCC in the current FWBCI.

The first of these measures has already been implemented, with Eric Abetz last month appointing Nigel Hadgkiss the new director of the FWBCI, replacing Val Gostencnik, who resigned shortly after the election. In 2002, Tony Abbott, then workplace relations minister under the Howard government, appointed Hadgkiss to head up the Interim Building Taskforce, a precursor to the ABCC. Hadgkiss occupied a senior role with the ABCC until October 2008 and was most recently responsible for overseeing the enforcement of the Victorian state government’s building code.

Further measures reportedly being considered by the government include:

• assigning some of the FWBCI’s responsibilities for enforcing compliance with the National Employment Standards in the Act to the Fair Work Ombudsman, to better equip the FWBCI to investigate alleged unlawful industrial activity within the industry.

• amending the Code and implementation guidelines to more closely reflect the position under the Howard government.

• reversing $24 million in funding cuts to the FWBCI over the next four years, as proposed by the Labor government in the 2013 Federal Budget.

A strengthening of the code as it applies to the influence of trade unions on industrial relations would also bring the federal system into line with equivalent guidelines in place in jurisdictions such as Queensland and Victoria for construction and infrastructure projects funded by state governments.

However, the lawfulness of using the code and implementation guidelines to encourage ‘appropriate’ industrial behaviour in construction projects has been called into question by the federal court ruling in CFMEU v McCorkell Constructions (McCorkell).

In McCorkell, the CFMEU successfully pursued a general protections dispute against the Victorian state government under the Fair Work Act 2009. In May, Justice Bromberg ruled that the government had contravened the prohibition at s343 of the act against coercing a person into exercising a workplace right in a particular way by imposing the terms of the Victorian building industry code in an attempt to force McCorkell into making amendments to its enterprise agreement limiting the role of trade unions in the enterprise bargaining process, in order to win a state government tender.

When handing down his decision in October, imposing a penalty of $28,000 (from a possible $33,000) on the government for its contravention of the act, Justice Bromberg made the following comments regarding the Victorian government’s conduct:

“The capacity for action to be taken which serves to undermine the freedom of industrial parties to bargain, free of the coercion which s343 proscribes, is widespread. Every industrial negotiation is capable of being subjected to that kind of interference. A clear message needs to be sent to all persons who might engage in that kind of interference that it will be accompanied by a substantial cost.

“… the coercive conduct engaged in by the state in the context of its own prohibition on others engaging in such conduct, leads to a perception that the state saw itself as beyond the reach of the behavioural norms to which others had to adhere.”