Message from the ABC Commissioner John Lloyd PSM
Recently, I announced that I will not be reappointed when my tenure as ABC Commissioner comes to an end in September and that I have chosen not to reapply for the role.
Following that announcement I would like to provide an assurance that our operations will continue as usual and that the ABCC remains an active and committed regulator.
Building and construction industry participants can continue to rely on the ABCC to enforce workplace relations law in the industry.
In particular, the ABCC’s commitment to support smaller subcontractors and their employees remains unaffected. Subcontractors can be confident that any complaint referred to the ABCC will be thoroughly investigated.
We devote considerable resources to high-profile investigations and cases, but the numerous small cases we attend to are just as important to our function and credibility.
The overall standard of workplace relations in the industry has undoubtedly improved since the ABCC was established. Industry participants who are willing to engage with the ABCC and take a stand against unlawful action will assist us to lift the standard further.
I encourage anyone who encounters unlawful conduct to contact the ABCC, and I look forward to working with the industry over the coming months.
John Lloyd
ABC Commissioner
Workplace arrangements and the National Code
The ABCC has been made aware of a number of recent instances where unions have tried to get subcontractors to sign up to union EBAs or adopt union-drafted side deeds or clauses.
National Code compliance is a matter for DEEWR, not unions
In Victoria, some sole traders and small companies have been told they must adopt a union EBA in order to be compliant with the National Code of Practice for the Construction Industry. In an attempt to prevent subcontractors that did not adopt the EBA from getting work, several head contractors have been told those subcontractors are not National Code compliant.
Sole traders and small companies who want to ensure they are National Code compliant are advised to have their workplace arrangements assessed by the Department of Education, Employment, and Workplace Relations’ Building Industry Branch (BIB). The BIB can tell you whether you are National Code compliant and advise what steps you need to take if you are not.
Many self-employed tradesmen or companies with only one employee do not have written workplace agreements. These businesses will still need to be assessed. However, with no employees and no ‘industrial instruments’ such as agreements, awards or contracts, the assessment will be very straightforward and almost certainly be found compliant.
Union side deeds make you non-compliant with the National Code
In Queensland, a union has been requesting employers sign a ‘Memorandum of Understanding’ (MOU) on the rates and allowances they pay their employees. The MOU is similar to a collective agreement as it details wages and conditions with which employers signing it are expected to comply.
Employers have no obligation to sign an EBA, MOU or any other type of side deed. Those who choose to sign a side deed should be aware that the 2009 Implementation Guidelines for the National Code of Practice for the Construction Industry advise that the use of unregistered written agreements – other than common law agreements made between the employer and an individual employee – are inconsistent with the National Code and Guidelines. The entity/entities to which such an agreement applies will be deemed non-compliant with the National Code and Guidelines.
Being coerced to sign any agreement is unlawful under the Building and Construction Industry Improvement Act 2005 (BCII Act) and the Fair Work Act 2009 (FW Act). If you feel you are being forced to sign any workplace arrangement call the ABCC for advice and assistance.
Coercion can occur in different ways
Coercion is the act of applying pressure to force a party to do, or not do, a certain thing or make a particular decision.
Unlawfully coercive or discriminatory behaviour in the construction industry is prohibited under the BCII Act and the FW Act.
Unlawful coercion can involve intimidation, bullying, pressuring, blacklisting, harassing or demanding behaviours. The three most common types of unlawful coercion that take place in the building and constructing industry are:
- coercion relating to hiring or firing of building contractors or employees
- coercion relating to agreement making
- coercion relating to membership of a union or industrial association.
Unlawful coercion interferes with a person’s freedom of choice. The right to decide whether or not to be a member of a union or to make a workplace agreement with a union is enshrined in workplace laws.
All building industry participants should be aware that threatening or intimidating conduct can be unlawful and the right to choose is protected by law.
The ABCC regularly investigates allegations of unlawful coercion and will prosecute if investigations suggest the law has been contravened. Industry participants convicted of unlawful coercion will be exposed to substantial penalties.
High penalties issued in a number of recent ABCC coercion cases reflect that this behaviour is unacceptable within the building and construction industry
Further information
For enquiries about National Code and Guidelines assessment call the National Code Assessment Hotline on 1300 731 293, email building@deewr,gov.au or visit www.abcc.gov.au
For more information on your rights and obligations in relation to unregistered written agreements, or if you think you may be being coerced, call the ABCC Hotline on 1800 003 338.
Right of entry – entry notice requirements
When right of entry permit holders enter construction sites under the law to investigate suspected contraventions of workplace laws or hold discussions with employees, they are required to provide a right of entry notice.
The FW Act details what information must be provided on this notice when entering for each purpose.
All entry notices must specify:
- the premises to be entered
- the day of entry
- the organisation the permit holder belongs to
- the section of the FW Act that authorises the entry.
Additionally, when the entry is to investigate a suspected contravention the entry notice must:
- specify the particulars of the suspected contravention
- contain a declaration by the permit holder that their organisation is entitled to represent the industrial interests of a union member who performs work at the premises and who the suspected contravention relates to or affects
- specify the provision of the organisation’s rules that entitles the organisation to represent the union member.
When the entry is to hold discussions with employees, the entry notice must:
- contain a declaration by the permit holder that their organisation is entitled to represent the industrial interests of an employee who performs work on the premises
- specify the provision of the organisation’s rules that entitles the organisation to represent the employee.
If a union official does not meet these requirements or produce their federal permit/entry notice when required they may be denied entry.
The ABCC right of entry fact sheets were recently expanded to incorporate this information.
Right of entry permit holders can be verified online
Fair Work Australia provides an online tool that allows users to instantly ascertain whether an individual has been issued a right of entry permit.
Users simply need to enter a representative’s name to find out if that person has a valid right of entry permit.
The results will detail if that person has a permit, with what organisation it is held and whether it remains valid.
The National Code hits the road
Throughout 2010 the ABCC National Code team in NSW has been out and about attending regional shows and trade fairs.
The ABCC’s National Code experts have manned stalls at agricultural shows in Queanbeyan, Dapto, Nowra, Maitland, Bathurst, Tamworth, Newcastle, Coffs Harbour and Dubbo.
Staff provided information packs, advice and direct assistance on National Code compliance issues. A large cross-section of industry participants visited the stalls with the ABCC fielding enquiries from tradespeople, business owners, contractors, industry suppliers and local community members.
Attendees mainly sought information about the application of the National Code, but they also enquired about sham contracting, right of entry, freedom of association and general information regarding the functions of the ABCC.
The stalls have raised awareness of the National Code in regional NSW with the ABCC receiving lots of positive feedback from show-goers.
The agricultural show circuit slows down over the winter months. It is anticipated the next round of visits will commence in September at events in Singleton and Wagga Wagga.
Further information
The National Code is presented in detail on the ABCC website and in our fact sheets.
Independent contracting – getting it right
The Federal Department of Innovation, Industry, Science and Research has developed two new resources to explain the rights and obligations of independent contractors – the ‘Independent Contractors: the essential handbook’ and the Contractor decision tool.
The ‘Independent Contractors: the essential handbook’ provides information on a comprehensive range of topics relevant to both independent contractors and their hirers such as taxation, superannuation, workers compensation and negotiating contracts. The handbook is free and can be ordered through the Independent Contractors Hotline on 1300 667 850 or downloaded from www.business.gov.au/contractors
The online Contractor decision tool can help you understand whether a person is likely to be considered an independent contractor or an employee in the eyes of the law. The Contractor decision tool is available at www.business.gov.au/contractors
ABCC resources
The ABCC enforces independent contractors legislation where it applies to a building industry participant or building work. A suite of fact sheets specific to the building industry is available from the ABCC website.
Court round up
Legal proceedings
Single dispute affects six Melbourne sites
The ABCC has launched proceedings in the Federal Court in Melbourne against the CFMEU and six of its organisers it alleges engaged in a number of acts of unlawful behaviour at the Royal Children’s Hospital (RCH) project and five other Caelli sites.
On 12 December 2008 CFMEU officials Matthew Hudson, Noel Washington, Derek Christopher, John Setka, Bill Oliver, Elias Spernovasilis and Shaun Reardon blocked the front entrance of the RCH site with vehicles until 1pm, preventing concrete, steel and waste management trucks from accessing the site.
It is alleged that this action was due to their dissatisfaction with a Caelli employee – who was also the CFMEU delegate and OHS representative – being directed to work at another Caelli site.
When this action did not achieve their objectives, it is alleged further unlawful industrial action was organised at the Olsen site in South Yarra and the Myer, Robin and Merchant sites at Docklands during December 2008 and February and March 2009.
ABCC media backgrounder: Mortimore v CFMEU, Christopher, Hudson, Reardon, Setka, Spernovasilis and Washington
Case information: Mortimore v CFMEU, Christopher, Hudson, Reardon, Setka, Spernovasilis and Washington
Same site, different dispute
The ABCC has filed proceedings in the Federal Magistrates’ Court in Melbourne that also relate to the Royal Children’s Hospital project and the Myer, Montage and ANZ projects.
The ABCC alleges that the CFMEU and its officials Shaun Reardon, Matt Hudson, Noel Washington, Adrian McLoughlin and Derek Christopher contravened the BCII Act and the WR Act on a number of occasions.
It is alleged these contraventions included placing bans on work, obstructing a concrete pour, disrupting induction activities and entering sites without authorisation.
ABCC media backgrounder: Cozadinos v Christopher, CFMEU, Hudson, McLoughlin, Reardon and Washington
Case information: Cozadinos v Christopher, CFMEU, Hudson, McLoughlin, Reardon and Washington
Court action over blockade at new Melbourne market
On 20 May 2010 the ABCC was granted urgent injunction orders in the Federal Court to restrain a picket and blockade at the Melbourne Wholesale Fruit, Vegetable and Flower Market project in Epping, Victoria.
The ABCC alleged the CFMEU established the blockade with the intent to coerce Fulton Hogan, a contractor on the project, to enter into an industrial agreement with the union.
On 24 May 2010 the Court extended the orders to restrain the CFMEU from interfering with the site or its perimeter fencing.
The blockade was disbanded on 28 May 2010 but the injunction order remains in place until determination of the ABCC’s proceeding. A further directions hearing has been listed for 3 September 2010.
ABCC media statement: Federal court orders should be observed
ABCC e-Alert: CFMEU ordered to stop demarcation picket at Melbourne Market Relocation Project
Judgments
CFMEU penalty appeal dismissed
The Full Court of the Federal Court has dismissed a penalty appeal by the CFMEU after they were fined for threatening a building contractor.
In September 2009 the Court imposed penalties on the CFMEU and organiser Bob Mates for unlawful coercion at a Heidelberg construction project. Mr Mates threatened the head contractor saying the project ‘was not going to happen’ if his demands to engage two union shop stewards and an OHS officer were not met.
The Full Bench dismissed the CFMEU’s appeal of the decision on 18 May 2010, upholding penalties totalling $75,500 imposed on the CFMEU and $10,000 on Mr Mates for three contraventions of s.43 of the BCII Act.
ABC Commissioner John Lloyd said the significant penalties should act as a deterrent to others: ‘The court has upheld serious penalties. Threatening contractors and telling them they must employ certain people is coercive and it is against the law,’ Mr Lloyd said
Case information: Cahill v CFMEU and Mates