Builders oppose new Fair Work Commission powers

Builders claim new commission powers will undermine the rights of independent contractors.

Master Builders Australia chief executive Denita Wawn says independent contractors were being led ‘down the garden path’.

Builders are opposing the federal government giving new powers to the Fair Work Commission to determine unfair contract term disputes, claiming they will undermine the rights of independent contractors and increase the influence of unions across the construction sector.

Under the Closing Loopholes Bill, Workplace Relations Minister Tony Burke is proposing a “new, low cost and efficient” jurisdiction within the commission for resolving disputes about unfair contract terms.

While independent contractors will still be able to challenge the fairness of their contractual terms through the courts, Mr Burke said existing protections against unfair contract terms under the independent Contractors Act had not worked, and better protections were needed.

Master Builders Australia chief executive Denita Wawn said independent contractors were being led “down the garden path” as the bill handed “more options for unions to influence and control a large part of the sector and interfere in commercial matters”.

“To suggest they will have the same protections as the courts is wrong with a number of protections lost to make way for third party influence,” she said.

“Sadly, changes to unfair contracting are consistent with the rest of the bill in overturning every ounce of clarity for ­employers and independent contractors.

“People who have gone out to start their own business need certainty and flexibility. These changes simply undermine their rights and leave them exposed to negative conditions not typically seen in residential construction.”

In a submission to the senate inquiry into the bill, Master Builders says the commission is an industrial tribunal with “no experience in determining commercial matters that should properly remain the domain of experienced courts and existing state-based business dispute resolution bodies”.

It says provisions in the Independent Contractors Act will not be replicated in the matters the commission will need to have regard when deciding what is an unfairness term.

For example, provisions dealing with terms that are “unconscionable” are not available to the commission nor is the requirement that a term of the contract “be against the public interest”, it says.

The MBA says protections against undue influence, unfair pressure or unfair tactics will be lost in the commission process and there will be no regard to the conduct of persons acting on behalf of parties.

University of Adelaide law professor Andrew Stewart said he was sceptical about the employer claims, and “my concern about the provisions is they don’t go fair enough”.

Professor Stewart said the CFMEU had the resources to take a matter to court.