ABC Commisisoner's Message
2011 has been a busy year for the ABCC. As the snap shot of the Annual Report included in this Industry Update evidences, on all measures, we have increased our productive output. With new offices in Canberra and Darwin (and ABC Inspectors in Launceston) we have also increased our geographical reach.
Productivity, along with fairness, have been the catch-cry of our regulatory work this past calendar year. As such, on every occasion when I have met with people in the building and construction industry I have taken the opportunity to reiterate that we cannot have a productive national economy without a productive building and construction sector.
I frequently met with industry participants from all quarters; major contractors, industry representatives, subcontractors and employees. I have presented at numerous conferences, spoken at various functions and attended many other stakeholder events. In every discussion I promote the importance of Australia's building and construction sector. It's a sector I am very proud to be a part of.
Despite some of the rhetorical flourishes that the media like to report, there is actually significant mutuality of interest that employers, workers and the regulator share in terms of our care for our industry. In 2012 I will remain committed to working with all participants and being available to the entire regulated community.
I also remain committed to ensuring that, as a responsive regulator, we investigate and litigate matters across the full range of workplace laws included in the Fair Work Act 2009 and the Building and Construction Industry Improvement Act 2005.
In 2011 we found new ways to provide advice and information and prioritised open and constructive dialogue with members of the industry. We spent a lot of time on building sites. We will continue to do this in 2012 (with a particular focus on smaller sub-contractors - assisting them to more easily comply with workplace laws).
When I penned the final Commissioner’s Message this time last year I had taken up the appointment as ABC Commissioner just ten weeks prior. The ABCC had newly transitioned to a full-service regulator, accessible to all industry participants and responsible for wages and entitlements claims.
One-year-on the ABCC has recovered more than $275,000 in wages and entitlements for building and construction workers. "Wage justice" will continue to be a focus of our work in 2012. In particular we will be launching a new strategy aimed at ensuring vulnerable workers from CALD communities are not exploited.
We have done (and will continue to do) all of this new work while continuing to pursue with vigour our usual suite of regulatory concerns; unlawful industrial action, right of entry breaches, freedom of association and coercion. In 2011 we did this by pursuing our own litigation and also intervening in a number of high profile matters playing an active role. We have accelerated the time in which it has taken us to get matters into court and used, with more regularity, the statutory power to pursue compensation for victims of unlawful action.
But, as I have said on many occasions, my preference is not to litigate, but to prevent unlawful, unproductive and unfair behaviour. Surely the $3 million dollars of members’ money the Victorian Branch of the CFMEU has paid to the Commonwealth in penalties in the past 6 years (often by agreement) could have been better spent on OHS measures, training and member services.
And so, as another busy year in the building and construction industry draws to a close I call on all industry participants to consider the importance of our industry to this nation’s wealth and choose to act in the industry’s best interests. Make 2012 the year of observing workplace laws to ensure productivity and fairness.
Finally, my sincere thanks and congratulations to the ABCC inspectorate and staff for a great year. They have a strong ethic of service to our industry and, like me, are committed to impartial and comprehensive regulation and advice services.
I hope your Christmas break allows time to cherish peace and goodwill.
Leigh Johns
ABC Commissioner
Annual Report shows increased ABCC service delivery
The ABCC 2010-11 Annual Report was released on 27 October 2011, revealing a substantial increase in agency productivity and signifying the ABCC’s success in transitioning to become a full-service regulator.
As we come to the end of 2011 the levels of activity have not dropped. The ABCC continues to be a vigorous and active full-service regulator.
Key performance figures show the ABCC:
|
2010-11 Financial Year |
Updated to 30 November 2011 |
|
Recovered $127,479 in wages and entitlements for 38 building and construction workers |
Recovered $253,475 in wages and entitlements for 233 building and construction workers |
|
Undertook 402 investigations |
Undertook 590 investigations |
|
Finalised 315 investigations |
Finalised 542 investigations |
|
Initiated 134 sham contracting-related investigations |
Initiated 205 sham contracting-related investigations |
|
Conducted 58 penalty proceedings before the courts and secured $2.570 million in penalties |
Conducted 68 penalty proceedings before the courts and secured $2.806 million in penalties |
|
Made submissions in 7 Fair Work Australia proceedings and intervened in 2 new court proceedings |
Made submissions in 8 Fair Work Australia proceedings and intervened in 2 new court proceedings |
The ABCC will remain focussed on bringing about fair and productive building
and construction work in 2012.
ABCC releases Sham Contracting Inquiry Report
The ABCC’s Sham Contracting Inquiry Report was released on 29 November 2011, detailing the key findings and recommendations arising from the ABCC Sham Contracting Inquiry held this year.
The Inquiry brought together industry representatives, academics, major contractors, subcontractors and other stakeholders to discuss their experiences and insights into sham contracting, the scope of the problem and possible solutions.
The report outlines ten key recommendations that the ABCC will adopt as a first step in eliminating sham contracting.
Next steps to be taken by the ABCC include:
• conducting further research to build an accurate picture of the incidence and impact of sham contracting in the building and construction industry;
• convening a high level social partner working group to examine the outcomes of the research;
• undertaking educational activities (including in partnership with key industry stakeholders and the ATO); and
• consulting with key industry stakeholders to develop an ABCC Fair Work Contractor Statement for voluntary distribution to independent contractors prior to engagement.
The recommendations are a direct result of industry stakeholders uniting to discuss the best approach to target sham contracting.
While there is no quick fix to the problem, the ABCC’s next steps will be critical in tackling sham contracting in the building and construction industry.
It is vital that this occur to protect the interests of workers, legitimate contactors, honest employers, and the Australian economy.
A full copy of the Sham Contracting Inquiry Report is available at: www.shamcontractinginquiry.gov.au.
ABCC establishes Sham Contracting Research Advisory Committee
ABC Commissioner Leigh Johns recently announced the establishment of the Sham Contracting Research Advisory Committee, the first step in implementing the recommendations of the Sham Contracting Inquiry Report.
The ABCC’s Sham Contracting Research Advisory Committee members are:
• Anthony Forsyth (Chair), Associate Professor, Monash University
• Jim Simmonds, Disputes Panel Chair, Electrical Contractors
• Richard Calver, National Director Industrial Relations, Master Builders Association
• Jim Barrett, Executive Director, Australian Constructors Association, Director Construction and Infrastructure, Australian Industry Group
• Glenn Simpson, General Counsel, Housing Industry Association
• Andrew Stewart, Professor of Law, University of Adelaide
• Peter Gahan, Associate Professor, Monash University (Melbourne University Professor from February 2012)
• Cathy Cato (Secretariat), Director Legal (Vic), ABCC
The committee, which sat for the first time on 19 December 2011, will formulate the terms of reference for the request for tender for independent research into sham contracting in the building and construction industry.
It will then sit as the Tender Evaluation Committee to consider the applications, in accordance with Commonwealth Government procurement guidelines, and make a recommendation to the ABC Commissioner.
Employment decisions are for employers
When applying for a job, most candidates want their application to be judged solely on merit, and assessed in the same way as every other application.
It’s the only fair way to select employees, which is why the Fair Work Act 2009 (FW Act) and the Building and Construction Industry Improvement Act 2005 (BCII Act) make it unlawful to place pressure on employers to make a particular employment decision.
Unfortunately, it is not always the way employment decisions are made in the building and construction industry.
The ABCC has the power to commence civil litigation proceedings where appropriate where it is suspected that a trade union or anyone else has coerced an employer to make a particular employment decision.
One of the highest profile civil litigation proceedings related to coercion taken by the ABCC was Gregor v CFMEU, Christopher, Hudson, Reardon, Setka, Spernovasilis and Washington, a proceeding that resulted in penalties totalling $305,000 for the CFMEU and six of its officials.
In that matter, the Court heard that Caelli Constructions had earlier re-assigned a worker who was also engaged as an OHS rep to a different project, in a move that aggrieved the CFMEU.
The CFMEU and its officials then engaged on a wide-spread industrial campaign of strikes and blockades at Bovis Lend Lease sites, in an attempt to exert pressure of Caelli Constructions to employ a worker at a particular site.
People who acquiesce to the demands of those exerting the pressure can also expose themselves to the possibility of civil litigation proceedings.
For example, it could be argued in Court that if an HR manager acted to engage an individual in order to remove the pressure being exerted on their company, then the manager was knowingly participating in a breach of workplace law.
With reports from industry stakeholders of similar behaviour still occurring on building sites, the ABCC remains committed to commencing civil litigation proceedings if this type of conduct is discovered.
Settling disputes on site – What does your agreement say?
Australian Bureau of Statistics (ABS) figures for the September 2011 quarter show the number of days lost to industrial action in building and construction dropped to just 6.5 days per thousand employees, down from 44.7 days in the previous quarter.
The decline in the number of days lost to industrial action is a timely reminder of the impact unlawful industrial action has on productivity, and the need to stick to agreed dispute resolution procedures.
Every agreement covering Australian building sites contains agreed dispute resolutions methods.
In the June 2011 quarter an extraordinarily high number of industrial delays occurred. On Australian building sites around the country a total of 34,000 productive working days were lost to industrial action during that quarter. By comparison, in the September 2011 quarter a total of 4,800 days were lost across all sites.
In total, that’s a difference of approximately eighty years of productive days lost to industrial disputation.
When you consider that during each of those days workers would have been docked at least four hours’ pay, and employers would have incurred the substantial costs of delays, it is clear that industrial action is costly for all involved.
The costs become particularly difficult to justify when legitimate industrial claims can be pursued lawfully.
Section 50 of the Fair Work Act 2009 (FW Act) stipulates that everyone bound by a workplace agreement must adhere to the agreed terms, or risk civil penalties of $6,600 for an individual or $33,000 for a corporation.
Employers, unions, workers and every other party that signs up to an agreement must stick to what they agreed to for the life of the agreement, including how to settle grievances and differences of opinions.
The end result is that disputes are settled lawfully and at minimal cost to employers, workers and the Australian economy.
The ABCC will continue to investigate instances of unlawful industrial action within the building and construction industry to ensure it is conducted lawfully, and where appropriate will enforce s.50 of the FW Act to ensure agreements are followed.
New accreditation scheme for 457 visas
The Minister for Immigration and Citizenship, Chris Bowen MP, announced in November 2011 that businesses using the subclass 457 visa program can now gain access to priority processing and extended approval periods under a new accreditation scheme.
Building and construction businesses can now seek approval for a 457 visa sponsorship period of six years, where previously it was a three year period.
Businesses will need to meet additional benchmarks to qualify for accredited status, including being an active 457 visa sponsor for the past three years and a commitment to ensuring at least 75 per cent of their domestic workforce is Australian.
The new accreditation scheme was developed in consultation with the Skilled Migration Consultative Panel, which includes representatives from major employer groups, unions and state governments.
The 457 visa is the most commonly used program for employers to sponsor overseas workers to work in Australia on a temporary basis.
For more information see Department of Immigration and Citizenships website at www.immi.gov.au/skilled/skilled-workers/sbs/ or call the DIAC on 13 18 81.
ABCC seasonal office closure 2011/12
ABCC offices around the country will close for the Christmas break from midday on Friday 23 December 2011 and reopen on Tuesday 3 January 2012.
Between 24 December 2011 and 8 January 2012, Deputy ABC Commissioner – Legal, Brian Corney, will be the acting ABC Commissioner.
The ABCC can be contacted during this period via the hotline: 1800 003 338.