Office of the Australian Building and Construction Commissioner

False Claim

Fact

Building and Construction Industry Improvement Act 2005

The ABCC has been set up to target unions.

The Taskforce/ABCC prosecution statistics demonstrate the ABCC is not targeting unions but is committed to addressing unlawful behaviour by any building industry participant. An analysis of the 57 prosecutions to date reveals:

·          26 involve unions only

·          21 involve employers only

·          5 involve unions and employers

·          2 involve employees only

·          2 involve unions, employers and employees

·          1 involves the Victorian Government.

Under the BCII Act, individuals who hinder, obstruct, intimidate or resist an ABC inspector face up to 24 months imprisonment.

There is no such offence in the BCII Act and there is no 2 year jail term in the BCII Act. There is no specific offence for hindering or obstructing an ABCC officer or inspector.

It is an offence against the Criminal Code to hinder or obstruct a Commonwealth public official. This applies to the ABCC and a wide range of Commonwealth agencies including the Australian Taxation Office, Australian Securities and Investment Commission, Department of Immigration and Multicultural Affairs etc.

A person who discriminates against someone because of their industrial instrument faces a jail term.

There is no jail term for discrimination under the Act. There are financial penalties for discrimination.

Compliance powers

A criminal has more rights than a person who is required to attend an examination before the ABCC

The examination before the ABCC is an evidence gathering exercise. The ABCC has no power to fine or jail a witness. Only a Court can do this. A person has a right to legal representation, and all of the protections available under the Act.

A person subject to an examination has no right to silence and no right against self incrimination.

The BCII Act gives witnesses indemnity from prosecution as well as complete protection from civil liability for the answers they give. These protections are greater than the ACCC, ASIC, the ATO, or any other agency in Australia that has coercive powers.

A person subject to an examination is not allowed to talk to anyone about the proceedings.

The witness is free to talk to their lawyer. The ABCC does all it can to protect the privacy of examinations so witnesses are not subject to threats and intimidation for giving evidence.

The ABCC has removed the right for a witness to choose their own legal representatives

The BCII Act gives every witness a right to legal representation. The Federal Court has ruled in favour of the ABCC’s power to exclude a lawyer in a particular case. The ABCC will always give the witness time to arrange an alternative lawyer. The ABCC cannot force the witness to appear unrepresented

The ABCC is abusing its compliance powers and conducting roving enquiries to probe the activities of unions

The ABCC can only conduct an examination as a last resort when a person has REFUSED to talk to an ABCC inspector. It is entirely a decision for each person as to whether they wish to cooperate with ABCC enquiries and avoid having to attend an examination.

The ABCC is using its compliance powers to target the activities of unions

In its annual report, the ABCC disclosed only 4 union officials or delegates were examined in the first 9 months of the ABCC as against a total of 27 examinations

The ABCC has produced a suite of fact sheets that provide information on the rights and responsibilities of building industry participants under the BCII Act.

Fact sheets can be downloaded from the ABCC website or hardcopies can be ordered by email or calling 1800 003 338.