ABC Commissioner's Message
With important engineering and infrastructure projects coming on-stream and tight markets demanding innovation and responsiveness from the industry, this will be an exciting year for Australia's building and construction sector.
New Australian Bureau of Statistics figures show one in every six actively trading businesses in Australia is in the construction industry.
The ABS data shows as of June 2011, 352,000 (16.5%) of the 2.1 million registered businesses were involved in the construction industry - an increase of 1,500 from June 2010. During 2012 the ABCC will expand its engagement with new entrants and small businesses in the industry to ensure that they know their responsibilities; are aware of their rights and can easily access the advice and regulation services of the ABCC.
As a part of our ongoing focus on delivering impartial and comprehensive workplace regulation and advice new work projects will be undertaken in 2012. The ABCC's Statement of Strategic Intent drives our activities and guides the organisation's priorities. The ABCC executive has signed-off on our new business plans and we are undertaking a range of new projects in 2012 in order to deliver against our strategic goals.
In addition to continuing with our focus on traditional regulation activities, we will be improving the ABCC's education function to incorporate targeted educational initiatives aimed at prevention and creating behaviour change. We will increase the services we provide for culturally and linguistically diverse communities. We are implementing the recommendations of last year's national Sham Contracting Inquiry - working toward our vision that all Australian building and construction workplaces are fair and productive.
Productivity in the building and construction industry is often talked about, and the conversation must continue. Discussions about approaches for countering slow or negative growth or addressing inefficiencies are important. Nonetheless, the productivity conversation is always multifaceted. In December 2011 PricewaterhouseCoopers issued their quarterly Productivity Scorecard, showing the construction industry as the second-highest performing market sector. Despite a two per cent decrease in hours worked there was a four per cent increase in labour productivity for the quarter. As PwC described it, the result entails that the construction sector has been "quite simply, getting more from less." Obviously this is just one measure and it is to be noted that the change in labour productivity varies depending on the chosen time measure and across jurisdictions, but, nonetheless, these national figures suggest encouraging signals for the industry to build on in 2012.
It is equally encouraging to note that lost days to industrial action (inclusive of lawful and unlawful industrial action) have returned to the low range figures that have been recorded since June 2006. In the September 2011 quarter 6.5 days were lost per thousand workers. This was down from 44.7 in the June 2011 quarter (where disputes in Queensland and in Victoria caused an historically anomalous spike). Where that spike in unlawful behaviour occurred, the ABCC was quick to investigate the matters and get them into court.
In 2012, the ABCC will be investigating and litigating across the full range of legislation, investigating contraventions of both the Fair Work Act 2009 and the Building and Construction Industry Improvement Act 2005. We will be conducting targeted audits. We will be building on our suite of compliance tools, and utilising injunctions, mediation, infringements, enforceable undertakings and other compliance notices as well as ensuring we take timely steps to recover wages and entitlements where workers have been underpaid.
We are creating new collaborative working styles and increasing our agency's capacity to deliver public value.
I look forward to participating in an ongoing, constructive conversation with industry members about workplace laws, and workplace fairness.
Leigh Johns
ABC Commissioner
ABCC calls for tenders - Sham contracting research
The ABCC is calling for tender submissions to conduct research into sham contracting within Australia's building and construction industry.
Potential researchers will have until 19 March 2012 to submit a tender application, with research expected to begin in mid-April.
ABC Commissioner Leigh Johns said this marks an important milestone following the release, in November last year, of the ABCC's Sham Contracting Inquiry Report 2011.
"One of the Report's ten recommendations was that the ABCC conduct research to build an accurate picture of sham contracting in the building and construction industry.
"We took the first step in this process in December 2011, establishing a 'Sham Contracting Research Advisory Committee' consisting of eight industry stakeholders and academics. The Advisory Committee has decided that in order to find out about the nature of sham contracting, we need to inquire into the nature of contracting for personal labour in the building and construction industry generally.
"The ABCC has today published the Request for Tender on AusTender and is calling on researchers to help us uncover the extent of sham contracting in the industry.
"The research will analyse how many contracting relationships are genuine, and how many are misclassifications - whether deliberate or unintentional."
ABC Commissioner Johns said that he expected the research to identify the motivation and intentions of both parties, when defining an employment relationship.
"We want to identify what workers perceive are the benefits of being engaged on a contractual basis, rather than as an employee."
ABC Commissioner Johns said once the research has identified the extent of sham contracting, the ABCC can move to eliminate it from the industry.
"Its continuing incidence hurts workers through a reduced capacity to enjoy basic conditions of employment, work security and access to formal training, and adversely affects decent employers, who face an invidious choice of either joining in the indecency of sham contracting or going out of business," he said.
For more information on the Request for Tender, and to submit an application, visit the ausTENDERS website: www.tenders.gov.au
$46k penalties imposed for Gold Coast University Hospital strikes
An unlawful two-day strike at the Gold Coast Hospital in November 2009 has resulted in fines totalling $46,860 being imposed on the CFMEU and two organisers.
The project is valued at $1.76bn and involves 108 subcontractors. ABC Commissioner Leigh Johns said the hefty penalties reflected the seriousness of the breach.
"This major public project was interrupted at a critical stage of its development," ABC Commissioner Johns said.
CFMEU organisers Tim Jarvis and Andrew Temoho attended the site on 26 November 2009, without giving notice as required by law. They spoke to workers on the site including employees of the head contractor, Bovis Lend Lease (BLL), and a subcontractor, Heinrich Constructions Pty Ltd.
Mr Jarvis and Mr Temoho held a mass meeting and told workers that BLL had withheld entitlements from employees of another subcontractor working on other sites. The workers voted to stop work until 30 November 2009 in protest.
In an agreed statement of facts presented to the court, the organisers admitted to having breached s38 of the Building and Construction Industry Improvement Act 2005 by taking unlawful industrial action. The CFMEU agreed to pay penalties of $36,300, Mr Jarvis agreed to penalties totalling $7260 and Mr Temoho agreed to penalties totalling $3300.
The ABCC investigates more than 200 cases of unlawful industrial action every year, accounting for a quarter of all investigations.
Adult apprentice allowances stand after FWA ruling
Fair Work Australia has clarified the eligibility of adult apprentices for a range of allowances. Adult apprentices paid under the Building and Construction General On-Site Award 2010 must also receive relevant allowances.
The Master Builders Association recently applied to Fair Work Australia to vary the Award seeking to clarify the payment of allowances to adult apprentices being paid under the Award's lowest classification (CW1) for ordinary hours.
The MBA noted there has been confusion and uncertainty within the industry over whether allowances be incorporated in payroll calculations for adult apprentices.
As a result of FWA's ruling it is now clear that adult apprentices are entitled to up to $60.80 allowances per week, or approximately $3000 a year of tool, industry and special allowances as prescribed by the Award.
Senior Deputy President Watson said if the application had been upheld it may have led to a "strange outcome where adult apprentices would be the only employees under the award not entitled to the special, tool and industry allowances."
If you need help calculating entitlements for your employees, or advice about your workplace rights and responsibilities see www.abcc.gov.au or contact the ABCC Hotline on 1800 003 338. Non-English speakers should call via the free Translating and Interpreting Service on 13 14 50.
ABCC recovers $344k for building workers
2011 saw the ABCC transition to become a full-service regulator, taking up responsibility for recovering lost wages and entitlements, a role that previously sat with the Fair Work Ombudsman.
An important part of the ABCC's regulatory work is ensuring building and construction employees receive their correct wages and entitlements. Since the ABCC started doing this work 14 months ago, it has recovered more than $344,000 unpaid wages, leave entitlements, allowances and superannuation for 308 workers.
The ABCC can assist employers and employees in the building and construction industry understand their rights and obligations when it comes to wages and entitlements.
Breakdown of recoveries:
- $97,000 for 28 employees in Western Australia,
- $60,950 for 148 employees in New South Wales,
- $54,550 for 74 employees in Victoria,
- $34,150 for 17 employees in the Australian Capital Territory,
- $55,400 for 14 employees in Queensland,
- $27,600 for 9 employees in South Australia, and
- $14,350 for 18 employees in the Northern Territory.
Making a workplace complaint
Industry participants that believe they are not getting the correct pay, conditions or workplace rights can make a workplace complaint to the ABCC.
For more information about lodging a complaint call 1800 003 338 or go to the ABCC website. Non-English speakers should call via the free Translating and Interpreting Service on 13 14 50.
New year, new opportunity - Get on top of your responsibilities
Many employers take advantage of quieter times at the start of each year to review their payroll practices and internal workplace systems.
Before new contracts and commitments kick off for 2012 make sure your workplace management practices are up to scratch.
Things to think about:
- Plan for implementing any 2012 wage increases in the award or agreement that covers your staff.
- Review applicable allowances and when they should be paid.
- Review your staff classifications and make sure their skills and duties align with their level.
- Make sure you are familiar with the dispute resolution clause in your award or agreement and all your employees know how you expect workplace disputes to be resolved.
- Have a look at the general protections in the Fair Work Act 2009 and make sure your management processes include compliance with these protections. For more information see the General Workplace Protections Fact Sheet .
If your employees are covered by the Building and Construction On-Site Award 2011 or theElectrical, Electronic and Communications Contracting Award 2010 you can access PaycheckPlus online for assistance calculating wages and entitlements.
We will continue enforcing compliance with wage and entitlement legislation in 2012. Employers can contact the ABCC for information and advice about workplace law responsibilities.
Right of Entry changes with health and safety harmonisation
Right of Entry laws changed in Queensland, New South Wales, Australian Capital Territory and Northern Territory on 1 January 2012 as a result of the introduction of new work, health and safety (WHS) legislation.
Only work health and safety permit holders can exercise a right of entry under the Work Health and Safety Act (WHS Act). However, under the WHS Act an employer or manager cannot refuse, or unduly delay, entry to a permit holder who is entitled to enter, unless there is a reasonable excuse.
The model WHS Act provides authorised union officials right of entry for specific reasons to workplaces where there are relevant workers:
- who are a member, or eligible to be a member of the union which the permit holder represents;
- whose industrial interests the relevant union is entitled to represent; and
- who works at that workplace.
Specific reasons for entry include:
- Entry to inquire into a suspected contravention of the WHS Act, and
- Entry to consult with and advise workers on work health and safety matters.
As soon as is reasonably practicable after entering the workplace, the permit holder must advise the relevant manager or employer of their entry, and the nature of the suspected contravention. The permit holder can inspect any part of the workplace that is directly relevant to the contravention; consult with any workers who are directly relevant to the contravention, and view and copy documents that are directly relevant to the contravention. If they want to inspect employee records or documents held by a third party, they must give 24 hours' notice.
If there is no suspected contravention of the WHS legislation, the WHS entry permit holder must give the person conducting the business at least 24 hours notice before entering the workplace.
A union official will only be eligible to receive a WHS entry permit if they:
- have satisfactorily completed prescribed work health and safety training; and
- hold, or will hold, a Fair Work Act entry permit or the relevant state or territory industrial law entry permit.
A Federal union official must not exercise these entry powers unless they also hold a current Fair Work Act entry permit: s.494 FW Act.
The WHS Act also enables workplace health and safety representatives elected under the Act to request the assistance of any person.
Comcare's Work Health and Safety website includes links to the Commonwealth Work Health and Safety Act 2011, Codes of Practice, guidance for officers in exercising due diligence, and the roles and responsibilities of managers. Employers can also reference this Safe Work Australia factsheet on right of entry under the model WHS Act.
Update to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
On 10 November 2011, the Senate referred the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011 for inquiry and report.
The Bill, if passed, will create a new set of compliance arrangements for the building and construction industry under the supervision of a new stand alone regulator of workplace laws.
Written submissions to the Senate Inquiry were due by 20 January 2012. A hearing was conducted on 3 February 2012. The Bill was debated in the House of Representatives on 9 February 2012. That debate is expected to resume this week.
The Education, Employment and Workplace Relations Committee (the Senate Committee) will release the inquiry report on 29 February 2012.
For more information see the Parliament of Australia website.