Given the building industry's need to know up-front what projects are going to cost, the model flexibility clause "will not be often used in the building and construction industry", the MBA has said. "Whilst the form of the clause is otherwise appropriate, there is a provision in its terms which enables termination of the arrangements negotiated by either the employer or the employee giving four weeks' notice," MBA nat director IR and legal counsel, Richard Calver, told an MBA NSW Seminar at Watpac Limited today. "Employers constantly send us the message that they want certainty in employment arrangements on projects where they may attract liquidated damages from delays." They do not want to negotiate flexibility arrangements only to find projected costs are blown out a month after they have been put in place, Calver said.

The MBA was also not happy with "one major change in the agreement making process" brought about by Labor's transitional IR legislation, Calver said. The majority of agreements now need approval from the Workplace Authority (WA) before they have legal effect, he said. "Essentially, ITEAs that are made with existing employees, employee collective agreements and union collective agreements come into operation only when they have passed the NDT" and a notice from the WA has been issued, he said. "Our members are not happy to wait for extended periods after the deal is done and they certainly do not understand the process from looking at the legislation which is very complex in its expression," Calver said. The MBA urged a "complete re-write of the law" in the substantive bill rather than "tacking on" the new reforms to the current law. According to Adelaide University Prof Andrew Stewart, most people are working under the assumption it will be a whole new Act, which the Deputy PM's office confirmed to Workforce earlier this year.

Don't underestimate the power of the martyr

While the Fed Govt had committed to keeping the ABCC until 2010, industry parties should not underestimate the "galvanic power of a figure who is prepared to go to jail for his beliefs", Calver said. He was referring to the prosecution of building worker Noel Washington for refusing to attend an ABCC interview. Calver said it also appeared the national construction code and guidelines would remain in place after Fair Work Australia came into being, but he was worried by the "premature public statement" by Murray Wilcox that the code and guidelines were adversely affecting competition in the industry.