Commissioner's Message
Welcome to the November edition of the ABCC Industry Update, the first opportunity I have had to update the industry as the Australian Building and Construction Commissioner.
As ABC Commissioner I look forward to developing strong lines of communication with building and construction industry stakeholders. The Industry Update is a valuable means of achieving this aim.
On Wednesday 20 October 2010, I addressed the Senate Standing Committee on Education, Employment and Workplace Relations, and took the opportunity to outline my vision for the ABCC.
I am determined that the ABCC evolve into a ‘full service regulator’ in the building and construction industry. To this end, I will be working with my senior executive team to redefine a broader role for the ABCC with a respectful acknowledgment of the wider range of interests in the building and construction industry.
On the day I commenced as ABC Commissioner I wrote to the Fair Work Ombudsman, to terminate the previous arrangement whereby the ABCC would refer claims of underpayment to the Fair Work Ombudsman.
Consequently the ABCC will now assist building and construction workers in the regulated community to recover under-payments when they seek our assistance. As a citizen centric agency, we will not turn away any citizen in the building and construction industry.
Sham contracting persists as an area of concern for the industry; it is vital that industry stakeholders engage with government agencies in this endeavour.
Accordingly, I plan to convene a roundtable of relevant agencies and stakeholders to devise an all-of-government response to eliminating sham contracting in the building and construction industry.
To develop a transparent approach to litigation, I have published the ABCC Litigation Policy, which sets out guidelines for the agency when commencing civil proceedings.
I also intend to preside over all compulsory examinations of witnesses for the foreseeable future. My experiences as a lawyer, Chief Counsel of a Workplace Regulator and previously as Deputy ABC Commissioner presiding over section 52 examinations, makes me well qualified for this role.
Over the past five years the ABC Inspectorate has remained resolute in promoting respect for the rule of law, and the industry has undergone an important era of reform. I am committed to continuing that reform agenda.
Smaller subcontractors now work with greater confidence knowing that the ABCC will investigate and take appropriate action against claims of threats, intimidation and coercion.
The Government has emphasised the continuing need for a ‘tough cop on the beat’. No matter what form the agency takes in the future, the focus on and fair and productive building and construction work will remain.
I look forward to meeting and working with a range of building and construction industry participants in my role as ABC Commissioner.
Leigh Johns
ABC Commissioner
New Assistant Commissioner Operations, Linda Addison has been busy meeting with building and construction industry participants from across Australia to seek their views on what they see as the important issues facing the building and construction industry and the role of the ABCC.
Ms Addison started work as the Assistant Commissioner Operations on Monday, 23 August 2010. She comes to the ABCC with over 20 years of public sector experience in a range of policy and program areas.
As head of the Operations Group, Ms Addison is responsible for leading and managing the team which has the most interaction with building and construction industry participants, providing advice and assistance on relevant workplace relations laws and their application in the workplace.
Ms Addison says the stakeholder meetings have been valuable in raising a variety of issues which she has already begun to take action on and will continue to pursue.
In addition, Ms Addison will focus on implementing changes within the Operations Group to enable the ABCC’s move to being a ‘full service regulator’. This will include looking at pay and entitlement matters in the building and construction industry and consulting with stakeholders to tackle sham contracting in the industry.
Consistent with plans for the ABCC to evolve into a ‘full service regulator’ ABC Commissioner Leigh Johns has announced the establishment of the first permanent ABCC office in Canberra.
Initially the office will be staffed by two people, to be selected via a selection process that commenced recently.
Presently matters arising in the ACT region are attended to by officers from the ABCC’s Sydney office.
As recently noted in the ABCC’s annual report, the majority of the ABCC’s sham contracting investigations occurred in the ACT.
A presence in the ACT and surrounding areas will allow the ABCC to more readily monitor and promote appropriate standards of conduct throughout the building and construction industry in this region particularly having regard to the number of National Code sites in that area.
ABC Commissioner Leigh Johns recently released a guidance note detailing the ABCC Litigation Policy, setting out guidelines to be followed by the ABCC when commencing civil legal proceedings.
“The decision to institute or continue civil penalty proceedings is an important one, and careful consideration is given to each matter,” said Commissioner Johns.
“The ABCC Litigation Policy is a public document which sets out the relevant guidelines for determining whether it is appropriate to institute litigation, or continue that litigation.
“The main purpose of the policy is to promote consistency in the making of the various decisions which arise in the institution and conduct of civil penalty litigation by the ABCC.
“The policy also serves to inform the public, building industry participants, stakeholders and practitioners of the principles which guide the decisions made by the ABCC.”
While the policy is a first for the ABCC, it is substantially based on the prosecution policy of the Commonwealth and is consistent with the litigation policy of the Fair Work Ombudsman.
The 20-point policy considers factors including the nature of evidence that has been obtained and public interest considerations.
“This policy makes public current practices – it does not change them,” said Commissioner Johns.
“Litigation is one of several tools to bring about compliance with building industry laws; this policy will ensure there is consistency in determining when it is the preferred course of action.”
The ABCC litigation policy can viewed at www.abcc.gov.au.
When formulating a new enterprise bargaining agreement, satisfying all legal requirements requires careful consideration.
Ensuring employees participate in a legally valid vote to endorse or reject a new industrial instrument is an important step in the agreement-making process.
A Fair Work Australia (FWA) decision made earlier in the year serves as an important reminder that employees must be given the opportunity to vote on a new enterprise agreement for it to be considered valid.
In this matter, Commissioner Julius Roe rejected the application made by finance sector firm, Waterdale Enterprises, on the basis that employees had not been afforded the opportunity to vote on the agreement, and therefore had not genuinely agreed to it.
For an agreement to be considered ‘genuinely agreed to’, certain conditions must be met, including:
- Employers must give employees notice of their right to a bargaining representative as soon as practicable, and not later than 14 days after the commencement of the agreement-making process;
- Employers must not request employees hold a vote on whether or not they will endorse the agreement until at least 21 days after the notice of employee representational rights is given;
- Employers must provide employees with a copy or access to the agreement and any associated material at least seven days before a vote is held; and
- At least seven days before the vote is held an employer must take all reasonable steps to inform employees of the time and location of the vote and the method by which votes will be taken.
In case of Waterdale Enterprises, Commissioner Roe found a letter that was provided to employees requesting they peruse and sign the agreement did not satisfy these conditions.
“The only actions requested of employees were to “peruse” the Enterprise Agreement, ask any questions they might have of the employer and sign the document.
“The message that there was to be no negotiation was also reinforced by the fact that the copy of the proposed Agreement provided to each employee was already signed and dated by the employer.
“This clearly suggests the document is not open to any change.”
Employers must also ensure that all new agreements meet the Better Off Overall (BOOT) test. The BOOT test ensures that any workers covered by an agreement, will be better off than if they were instead covered by the relevant award.
Enterprise agreements are a fundamental part of Australia’s workplace relations system, and in every industry getting the process right is crucial.
If you need assistance to understand your rights and obligations during enterprise bargaining or agreement making contact Fair Work Australia on 1300 799 675 or visit www.fwa.gov.au.
The Victorian National Code team is educating the industry at a new level, with presentations tailored for building and construction students introduced this year.
A presentation on the National Code was incorporated into the ‘Professional Studies’ unit for final year students at Deakin University’s Geelong Campus and a further practical applications session took place in tutorials.
Presentations have also been conducted at Kangan and Box Hill TAFEs.
The National Code is an important feature of the building and construction industry. The presentation helps students understand the application of the National Code, to assist them when working on major government projects in the future.
The program has been a success. The National Code team is now planning to expand the program in 2011.
For more information contact Helen Evenden on (03) 8509 3115.
A recent decision in the Federal Court has clarified requirements for employers to follow once a permit holder has been allowed on site, identifying the circumstances where there is a need to respond positively to a ‘reasonable request’.
In his decision in the case CFMEU v Safety Glass Pty Ltd Justice Tracey provided an interpretation of the Fair Work Act 2009 (FW Act) on how site management should treat union officials who have been allowed on site after exercising their right to enter.
"It is implicit in s.492(1) of the Act that, once a permit holder has been admitted to an employer's premises, the employer is required to respond positively to any reasonable request that a particular room be made available in which the permit holder may hold discussions with workers," Justice Tracey said.
This interpretation of the FW Act emphasises an employer’s obligation to, where possible, provide a suitable room for union officials to conduct interviews or hold discussions with workers. Permit holders are still required to comply with a reasonable request from an employer about the rooms they may use, however, employers should in turn consider any reasonable requests made by permit holders for the use of a suitable room.
A request from an employer for a permit holder to use a specific room or area may be considered unreasonable if:
- the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or
- the request is made with the intention of:
- intimidating persons who might participate in the interviews or discussions; or
- discouraging persons from participating in the interviews or discussions; or
- making it difficult for persons to participate in the interviews or discussions,
- whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.
Further information:
See the ABCC fact sheets
Right of Entry: What to do when a Union Official comes on your site
Right of Entry - Federal Union Officials: What to do when visiting a site
Industry update court round-up
Two recent decisions handed down by the Federal Magistrates Court in Melbourne have emphasised the need to follow lawful dispute resolution procedures, after $57,500 in penalties was incurred by the CFMEU and three of its officials.
Dispute resolution procedures should be observed
On Monday 11 October 2010 the Federal Magistrates Court in Melbourne ordered the CFMEU and two of its officials to pay penalties totalling $25,000 for shutting down a building site in Parkville, Melbourne in 2009.
The CFMEU pay a $22,500 penalty, and officials Matthew Hudson and Shaun Reardon pay a penalty of $2,500 each.
“The agreement covering this project provided a very clear process for resolving grievances,” said Mr Johns.
“The Court has found that the respondents engaged in unlawful industrial action without making any attempt to observe these procedures.”
The dispute arose after the CFMEU and head contractor Hooker Cockram disagreed on the entitlement of employees to a height allowance at the Walter Eliza and Hall Institute Enabling Works project.
In a statement of agreed facts provided to the court respondents admitted that on the morning of 1 April 2009, Mr Hudson and Mr Reardon arrived on the Parkville site without prior notification and spoke to the site OHS representative.
The officials organised a stop work meeting and persuaded employees on the site not to perform further work and to leave the site immediately, contravening the dispute resolution clause in the site agreement. As a result, no further work was performed that day.
Case information: Wotherspoon v CFMEU, Reardon & Hudson
Everyone in the building industry has rights and responsibilities
A similar dispute resolution clause was ignored, when the construction site of student apartments in Hawthorn, Melbourne was shut down in October 2008.
The Federal Magistrates Court in Melbourne ordered the CFMEU to pay a penalty of $25,000 and CFMEU official Danny Berardi to pay a penalty of $5,000, after Mr Berardi directed employees to stop work over B Central’s dismissal of the site peggy.
The peggy had received oral and written warnings about his poor work performance over a five-month period.
ABC Commissioner Leigh Johns welcomed the successful outcome and emphasised the importance of following lawful dispute resolution procedures:
“The award covering this project provided very clear dispute resolution options. There are reasonable and lawful steps that aggrieved parties can take in situations like this. An unlawful strike is not an acceptable solution,” Commissioner Johns said.
“This type of action has no place in modern workplace relations. Fairness and productivity in the building and construction industry means that while workers and their representatives have rights, they also have responsibilities.”
Case information: Gregor v Berardi & CFMEU