Commissioner’s message
Welcome to the final Industry Update of 2010.
At the time of writing, I have been in the role of ABC Commissioner for 10 weeks. This edition of the Industry Update gives me a timely opportunity to provide you with an update of the steps I have taken in these weeks to evolve the ABCC into a full service regulator, and the steps I plan to take in 2011.
My first step to evolve the ABCC into a full service regulator was to terminate the previous arrangement with the Fair Work Ombudsman regarding underpayments in the building and construction industry.
As a result, we will begin dealing with underpayment claims that arise in the building and construction industry in early 2011.
I was pleased to publish the ABCC’s first Litigation Policy, stipulating guidelines to be followed by me and my officers when commencing civil litigation proceedings. The document, which has been made publicly available on the ABCC website, will ensure the ABCC’s approach to civil litigation is fair, consistent, and transparent.
The Inquiry and Round-table into sham contracting is a major priority for my agency. The first major part of this priority was the launch of the Discussion Paper on 22 December 2010.
The paper poses for discussion a number of the obvious areas in which debate and conflict exist in this area, and seeks to obtain the views of industry participants in these areas.
Based on the Discussion Paper, I will soon call for submissions addressing those specific issues. The Round-table conference will then be held in February 2011 to debate and discuss the matters which have emerged from the discussion paper and submissions. You can read the article in this edition of the Industry Update to find out more.
The Government’s agenda currently features a specific focus on areas including:
- ensuring a strong economy;
- the plan to return the budget to surplus in 2013;
- lifting capacity in the economy to better manage the challenges of the mining boom;
- investing in infrastructure; and
- extending market reform in health, education, carbon and water.
The building and construction industry is crucial to this agenda.
Just as these issues are the focus of the national agenda, they have been identified as a major focus of ours. I believe the ABCC has an enormous role to play, particularly in relation to what is happening in the mining sector and infrastructure.
Without an industry that is delivering fair and productive building work, the benefits to the nation cannot be delivered to the standard they ought to be.
I wish you all a happy and safe Christmas and look forward to working with you in what is sure to be a busy 2011.
ABCC Examinations Update
The recent decision in CDPP v Tribe has important implications for the compulsory examinations conducted under section 52 of the Building and Construction Industry Improvement Act (2005) (BCII Act)
The verdict was determined on important technical aspects of section 52, and the parts of the Act that give the ABC Commissioner the power to delegate his power or function to a Deputy ABC Commissioner or an ABC Inspector.
Prior to the verdict delivered in CDPP v Tribe, ABC Commissioner Leigh Johns announced that he would voluntarily adopt recommendations made by the Hon. Murray Wilcox regarding the use of section 52 powers.
The ABCC is reviewing any section 52 matters currently on hand, and will consider other procedural matters in the context of Magistrate Whittle’s findings.
To view Commissioner Johns’ full statement, visit the media section of abcc.gov.au
Have your say - Sham contracting Discussion Paper released.
ABC Commissioner Leigh Johns recently released the terms of reference for the ABCC’s Inquiry and Roundtable into sham contracting in the building and construction industry.
The Roundtable is a crucial first step in addressing the problems associated with sham contracting and labour hire arrangements in the industry.
The detail that the ABCC receives through submissions to the discussion paper will have a major impact on the rest of the process and the final outcome. If you have information or thoughts on sham contracting in the building and construction industry that you want to convey, the discussion paper provides a great opportunity to have your voice heard.
The discussion paper sets out the terms of reference for the inquiry and posing key questions for consideration, including:
- What is the extent and nature of sham arrangements in the building and construction industry?
- What factors are relevant in determining whether a construction worker is an employee or a subcontractor?
- How well are the differences between subcontractors and employees clearly understood in the industry?
- To what extent are labour hire arrangements essential to the efficient functioning of the building and construction industry?
- How could the ABCC assist all stakeholders in the building and construction industry to ensure labour hire practices are both fair and efficient?
Roundtable conferences will be held in Sydney, Melbourne, Brisbane, Canberra and Perth commencing in late March 2011, to discuss submissions and examine strategies for eliminating sham contracting.
Compliance power FAQ
The ABCC receives questions about compliance powers, and the facts around the powers are often the subject of public debate.
To answer some of those questions and to address some of the common misunderstandings regarding the powers, the ABCC has prepared a Frequently Asked Questions guide — an FAQ — for the website.
The FAQ includes a description and background of the powers, and includes an image of the examination room at the ABCC office in Melbourne.
The FAQ is available from www.abcc.gov.au
New look ABCC Website launched
A new-look ABCC website has arrived. The new website is more user-friendly, making it easier for building and construction industry participants, legal professionals, journalists, students and interested members of the public to get information about the ABCC.
The new website features improved functionality to allow faster access to information, including a filter function on the Court Cases, Interventions, and Latest News and Media sections.
The new homepage design provides a snapshot of the current activity of the ABCC. The latest newsletters, media statements, upcoming court cases and reports published by the ABCC are all easily accessible to help users keep up-to-date with the ABCC’s activities.
Regular users should also take advantage of our RSS feeds so new developments on the ABCC website are sent to you as they happen.
We’re keen to know what you think. Your comments can help us improve the website even further. Send your feedback to enquiry@abcc.gov.au
Right of entry ‘right’ is black and white
A recent right of entry decision by the Federal Magistrates Court in Canberra and a right of entry decision by the Federal Court in Sydney highlight the key elements of right of entry conditions that must be observed by employers, site managers, and permit holders.
The cases provide some important lessons for building industry participants:
1. Right of entry laws do not only exist to protect contactors from unlawful intrusion. They also safeguard the right of unions to lawfully enter workplaces;
2. Right of entry is an important right for building and construction participants.; and
3. All industry participants have a responsibility to ensure they are informed about current workplace laws.
Case backgrounds
On 7 June 2007 two CFMEU organisers were refused entry to the National Convention Centre site in Canberra by Iqon Pty Ltd, its employees, Michael Riley and Wayne Clark and Brendan Byatt, a director of Iqon.
The organisers were attempting to gain entry to the site to investigate alleged breaches of the Occupational Health and Safety Act 1989 (ACT) and were authorised under that Act to enter the site without giving prior notice.
On 12 November 2010 penalties of $10,000 were imposed on Iqon Pty Ltd and $1,000 each on Brendan Byatt and Michael Riley for contravening the right of entry provision at s.767(3) of the Workplace Relations Act 1996.
Comparing that outcome to the judgment in Darlaston v CFMEU & Ors demonstrates the other side of right of entry conditions, and the balance that the section of the Fair Work Act (2009) (FW Act) seeks to establish.
In Darlaston v CFMEU & Ors the Court found that the union officials refused to participate in a site safety induction, climbed on to scaffolding that was undergoing alterations and refused repeated requests to come down, abused employees, and drove a vehicle into a gate close to where an employee was standing.
As a result, the Court imposed penalties of $15,000 on the CFMEU, $15,000 on the CFMEU NSW $8,000 on Mr Parker, $2,500 on Mr Hanlon, $7,500 on Mr Mitchell and $2,500 on Mr Kera.
While relevant legislation that each of these judgments is the Workplace Relations Act (1996), each of the lessons arising are relevant under the FW Act.
Lesson 1: Right of entry laws do not only exist to protect contactors from unlawful intrusion. They also safeguard the right of unions to lawfully enter workplaces.
The object of the part of the Fair Work Act that governs right of entry for OHS is to establish a framework for officials of organisations to enter premises that balances the right of permit holders, and site managers or other occupiers of the premises.
It allows organisations to represent their members in the workplace, hold discussions, and investigate suspected contraventions of State or Territory OHS laws in a manner that recognises the right of occupiers of premises and employers to go about their business without undue inconvenience.
When anyone associated with a permit holder’s right of entry neglects their responsibilities under state or federal legislation, there is significant potential for damage or harm.
The actions of the respondents in Hogan v Riley & Ors and Darlaston v CFMEU & Ors disrupted different sections of the balance the FW Act seeks to uphold. The ABCC will initiate civil litigation proceedings when this section of the FW Act is contravened, regardless of who is alleged to have breached the law.
Lesson 2: Right of entry is an important right for building and construction participants.
Right of entry provisions are crucial to ensure that union officials are able to gain access to sites so that they may properly represent their members, meet with workers, and investigate suspected OHS issues.
The judgment in Hogan v Riley & Ors demonstrates that when a union official is meeting their obligations under right of entry legislation, employers and site managers must fulfil theirs.
Federal Magistrate Smith noted in his judgment:
“... it is of great public importance that construction company managers, whether off site or on site, should have accurate knowledge of the legal conditions attaching to the OH&S right of entry by authorised union officials, and should have acquired that knowledge before – not during or after – an attempt by an official to exercise that right. There will be circumstances where lives may be put at risk if site managers fail to appreciate and recognise the very substantial limitations on their powers to refuse or delay immediate entry."
Conversely, once entry has been granted, it is incumbent of permit holders to comply with the reasonable OHS requests an occupier of a premises may make, such as to undergo a site safety induction.
In Darlaston v CFMEU & Ors the union officials refused to undergo the site safety induction and engaged in unacceptable conduct while on the site, causing the occupiers of the premises and employees undue convenience.
The law prohibits the behaviour demonstrated by each of the respondents in these matters.
Had the law been observed properly in each of these matters then the officials would have been able to achieve the purposes of their visits, while the occupiers of the premises and the employees would have been able to go about their business without undue inconvenience.
Lesson 3: All industry participants have a responsibility to ensure they are informed about current workplace laws.
In its submissions Iqon purported to rely on information in outdated ABCC fact sheets. This assertion was rejected by the court.
Federal Magistrate Smith noted in his decision:
‘I do not accept that the lack of proper knowledge of the union OH&S right of entry under ACT legislation was reasonable or excusable. Submissions of the respondents suggested that publications by the Commonwealth building industry regulators provided an excuse, but in my opinion there is no foundation for such a conclusion. The publications which were tendered did not contain anything misleading at the time of their publication. They clearly were not directed at explaining State and Territory OH&S requirements... it is my impression that the managers simply failed to inform themselves about current legal requirements under ACT OH&S legislation.'
Certain right of entry conditions can vary across the states and territories. All industry participants have a responsibility to ensure awareness and compliance with both federal and state workplace relations laws, in the state or territory they operate in.
Further Information:
ABCC Media Statement: ABCC defends legitimate right to enter
Decision: Hogan v Riley, Clark, Byatt and Igon FMCA 760
Judgment: Hogan v Riley, Clark, Byatt and Iqon FCAFC 30
ABCC Media Statement: Right of entry provisions must not be ignored
Decision: Darlaston v CFMEU, CFMEUNSW, Parker, Hanlon, Kera & Mitchell
Judgment: Darlaston v CFMEU, CFMEUNSW, Parker, Hanlon, Kera & Mitchell
ABCC fact sheet: 3-Step Guide to Right of Entry
National Code – online assessments
The online service offered by DEEWR to assess industrial instruments for compliance with the National Code of Practice for the Construction Industry will cease on Thursday, 24 December 2010 and resume on Tuesday, 4 January 2011. This may result in processing taking longer than the normal 14 days.
For more details, visit the assessment and online lodgement site at: www.deewr.gov.au/building
ABCC holiday closure
ABCC offices around Australia will close for the Christmas break from midday on Friday, 24 December 2010 and re-open on Tuesday, 4 January 2011.
The ABCC can still be contacted during this period via the hotline: 1800 003 338
Court Round-up
Alleged strike at Carlton apartment
ABCC V CFMEU & Hudson
The ABCC alleges CFMEU organiser Matt Hudson and the CFMEU engaged in unlawful industrial action on 13 March 2009 at the Rosso Apartment project in Carlton, Victoria.
The ABCC has alleged that on 13 March 2009, Mr Hudson attended the site and directed 44 employees to meet in the basement. When the project manager directed the employees to return to work Mr Hudson directed them to go on strike.
22 employees followed Mr Hudson’s direction and took industrial action.
When Victoria Police attended the site, Mr Hudson told them he was there to distribute information about apprenticeships.
A directions hearing is scheduled for 9 March 2011.
Case Information
Backgrounder
‘Blue Glue’ strikes at Caroline Springs
ABCC v CFMEU & Reardon
The ABCC filed proceedings in the Federal Court at Melbourne alleging the CFMEU and its organiser Shaun Reardon directed employees working on a shopping centre project to go on strike.
On 20 November 2008 employees working on the Caroline Springs Shopping Centre project were due to have their photos taken for security passes on the site. Bovis Lend Lease were rolling out a similar system across Victoria, that became known as ‘Blue Glue’.
The ABCC alleges that on that day Mr Reardon attended the site and directed employees to go on strike for the next three days.
As a result, the ABCC alleges employees went on strike from 11.00am on 20 November 2008, not returning to work until Monday 24 November 2008.
Directions were given on 8 December 2010, a further hearing has not been scheduled at this time.
Case Information
Backgrounder
Right of Entry Breaches at BER project
ABCC v Doyle & CFMEU
The ABCC launched civil penalty proceedings in the Federal Magistrates’ Court at Melbourne alleging that CFMEU official Fergal Doyle contravened numerous right of entry provisions on a building site at Mossgiel Park Primary School in Endeavour Hills, Victoria.
The ABCC alleges that at about 1.45pm on 19 October 2009, CFMEU official Fergal Doyle entered the Mossgiel Park Primary School site without prior notice to SJ Higgins.
Mr Doyle refused to attend the site office to sign in and refused to show the site manager his entry permit, pulled three power cords out of their sockets, directed several steelfixers and concreters working at the site to sit in the sheds, and failed to provide details of suspected safety breaches as required by the OHS Act.
Case Information
Backgrounder
A further directions hearing will be held on 15 March 2011.