Message from the Commissioner
Australia’s building and construction industry is a vital contributor to our nation’s prosperity. It is also a cost-driven industry full of busy people. At the ABCC we understand that for our services to be useful and effective they also need to be quickly and easily accessible.
Today marks 12 months since I commenced as the Australian Building and Construction Commissioner. During that time the ABCC has significantly expanded on the services it offers to the industry, and improved the way in which it engages with industry participants.
Our operational statistics paint an impressive picture of an active regulator. In the financial year to 30 June 2011 there was a 30% increase in the productivity of the ABCC’s field operations branch.
We are continuing to review the ways that we connect with the industry to provide advice and assistance to the industry. We are keen to build their capacity to better comply with workplace laws including, providing information and advice about enforcing right of entry, appropriate rates of pay, record-keeping obligations, leave entitlements and other conditions of employment.
We have fine-tuned our investigative and litigation policies to ensure that matters such as unlawful industrial action, coercion and right of entry breaches are conducted more expeditiously so that the time taken from when an investigation is commenced to when civil litigation proceedings are commenced or any other appropriate outcome is reduced. Our client service commitment to industry is to ensure that 80% of all investigations are concluded within 90 days. We are now consistently reaching this target.
Since taking responsibility for regulating wages and entitlements compliance in the industry in October last year we have recovered more than $240,000 in unpaid wages, site allowances and leave entitlements. We have also been active in enforcing time and wage record-keeping requirements.
A recent ABCC case in Perth resulted in the Federal Court imposing penalties totalling $16,000 on a construction company for their failure to keep adequate records. Taking on matters of this nature is a first for the ABCC, and I have been delighted with the success of our early efforts.
The Australian Government recently launched PayCheck Plus, an online application allowing users to automatically calculate correct rates of pay, allowances and overtime, to determine if they are receiving their legislated entitlements. I encourage employers in the building and construction industry to use this useful tool.
Unlawful industrial action persists as an area of concern for the industry and remains a significant part of our day to day regulatory work.
The ABCC has recently intervened in proceedings and commenced proceedings in our own right involving allegations of unlawful industrial action targeting Queensland Government projects and the Wonthaggi Desalination plant in Victoria.
During the past financial year, a staggering $2.5 million in civil penalties were imposed on the Victorian Branch of the CFMEU. Major proceedings such as the Melbourne Markets relocation program and the “Blue Glue’ disputes at the new Royal Children’s Hospital in Melbourne contributed to the total, showing how expensive it becomes to repeatedly and deliberately contravene Commonwealth workplace laws.
These repeated contraventions are an outright waste of money paid by members’ in good faith, and the ABCC will continue to hold those who break the law to account.
Analysis of the information obtained during the consultation phases of the ABCC’s Sham Contracting Inquiry is well underway. I anticipate the Inquiry final report will be released in late 2011. On 1 August 2011 I presented at the 19th Annual Labour Law Conference hosted by the Workplace Research Centre and Sydney Law School and took the opportunity to update the audience on the progress of the Sham Contracting Inquiry.
I have consistently noted the majority of contracting in the building and construction industry is legitimate and necessary. I am, however, concerned about the pervasive negative effects of unlawful sham contracting, especially for vulnerable workers. With the help of the employer associations, unions, academics and all building and construction industry participants, the role of legitimate contracting must be defended, and sham contracting stamped-out.
ABC Deputy Commissioners Michael Campbell and Brian Corney took up their appointments several months ago and I thank them for the strong leadership contribution they have made to the Field Operations and Legal groups, and the broader agency. Read on for further details on the ABC Deputy Commissioner’s and their approach to delivering public value.
I have very much enjoyed the challenge of my first 12 months as the ABC Commissioner. In a role that consistently presents new challenges and opportunities I have appreciated the support provided by my staff, and the support provided by the Industry.
I look forward to working closely with industry during the second year of my tenure to bring about a fairer and more productive Australian building and construction industry.
Leigh Johns
ABC Commissioner
New Deputy ABC Commissioners
On Friday 8 July 2011 the Minister for Tertiary Education, Skills, Jobs and Workplace Relations and Leader of the Government in the Senate, Senator the Hon. Chris Evans announced the appointment of Mr Michael Campbell and Mr Brian Corney as new Deputy ABC Commissioners.
The Deputy ABC Commissioners have been in the role for three months, commencing their appointments on 11 July 2011.
Deputy ABC Commissioner (Field Operations) Michael Campbell
Most recently, Deputy ABC Commissioner Campbell was the Executive Director, Workplace Relations Policy and Education at the Office of the Fair Work Ombudsman (FWO).
Prior to joining the FWO, Deputy ABC Commissioner Campbell worked in senior executive roles at the Office of Workplace Services and the Workplace Ombudsman, as well as project management and industrial officer roles at the Australian Industrial Relations Commission and Australian Industrial Registry, and at Qenos Australia.
His senior executive and leadership experience, strong background in workplace policy, education, stakeholder relations and in labour law and business, will ensure that Deputy ABC Commissioner Campbell is an asset to the ABCC and the building and construction industry.
“I am extremely proud and privileged to be leading the ABCC’s inspectorate, the group of inspectors are dedicated to their role and like me they are committed to making a positive contribution to Australia’s building and construction industry,” said Deputy ABC Commissioner Campbell.
Deputy ABC Commissioner (Legal) Brian Corney
Prior to his appointment as Deputy ABC Commissioner (Legal), Deputy ABC Commissioner Corney was the Assistant Commissioner (Legal) at the ABCC. Deputy ABC Commissioner Corney has legal and industrial relations qualifications and extensive legal experience working on the ABCC’s legal issues.
Before taking up his position with the ABCC in 2008 Deputy ABC Commissioner Corney was Director, Industrial Relations Victoria and previously the Chief Commission Officer at the Employee Relations Commission of Victoria. He has also had considerable legal/industrial relations policy and high level government experience in Canberra and Melbourne.
He was honoured with a Public Service Medal on Australia Day 2009 for his commitment to promoting better workplace relations between employees and employers.
“Since joining the ABCC in 2008 I have been proud to be part of a national legal team that has made a significant contribution to the landscape of the Australian building and construction industry,” said Deputy ABC Commissioner Corney.
“I am looking forward to extending this contribution, by our maintaining a robust regulatory caseload, including a broadening into pay and conditions underpayments in the industry.”
End of financial year shows increased activity for ABCC
A review of the ABCC’s activities for the 2010-11 financial year revealed a substantial increase in the agency’s productivity across a number of key performance areas.
The increase comes on the back of the ABCC assuming functions such as pay and entitlement recoveries for the first time, and the roll-out of new programs such as the concreting and finishing trades audit.
Key field operations figures show that compared to the previous financial year the ABCC:
- was undertaking 402 investigations, an increase of 30 per cent;
- initiated 354 investigations, an increase of 47 per cent;
- finalised 315 investigations, an increase of 32 per cent; and
- initiated 134 investigations into sham contracting, successfully concluding civil litigation proceedings in one.
As a result of ABCC interventions, up until 30 June 2011, the agency was able to recover $127,479 in wages and entitlements for 38 industry participants. In the months since, the figure now exceeds $240,000.
The ABCC also remained active in civil litigation proceedings, conducting 58 proceedings before the courts and securing $2.57 million in penalties, an all-time high for the agency.
The ABCC also made submissions in seven Fair Work Australia proceedings, and intervened in two new court proceedings.
The ABCC is committed to servicing the industry by being a responsive, accessible and engaged regulator. During 2010-11 we delivered 292 presentations to industry participants, and responded to 2497 enquiries.
2011-12 is already shaping up as another busy year, with offices in Canberra and Darwin now established, and 17 new ABC Inspectors working to bring about fair and productive building and construction work.
Open for business in the Northern Territory
On 28 July 2011 ABC Commissioner Leigh Johns and Deputy ABC Commissioners Brian Corney and Michael Campbell marked the official opening of the ABCC’s Northern Territory office. Industry stakeholders, government Ministers and ABCC and FWO staff met in Darwin to celebrate the new ABCC NT services.
The ABCC’s new office in Darwin allows the agency to deliver increased public value in the Northern Territory. The ABCC has increased capacity to assist smaller contractors with National Code compliance, allowing them to tender for federal government work.
The increased engagement and opportunity to create partnerships with stakeholders in the NT industry has already greatly enhanced the ABCC’s capacity to respond effectively to the industry’s needs with both regulatory intervention and advice and education.
ABCC field operations staff are on hand to assist employers and employees in the Northern Territory’s building and construction industry with targeted advice on appropriate classifications, hourly rates, record-keeping obligations, leave and termination issues.
The initial focus of the NT office will be a series of targeted compliance audits and investigations into businesses in the finishing trades. The ABCC is co-located with the Fair Work Ombudsman at Level 5, 47 Mitchell Street, Darwin.
New location for Brisbane office
The Brisbane office of the ABCC has recently moved to a new location. The new address is:
Level 16
200 Mary Street
Brisbane QLD 4000
Due to the relocation process, land line phone numbers of ABCC staff members have changed. If you wish to speak to a specific member of staff please contact their mobile phone or alternatively call the ABCC hotline on 1800 003 338.
All mail for the Brisbane office can be sent to:
GPO Box 9927
Brisbane QLD 4001
Seventy-five percent of maximum penalty for abusive RoE breach
Right of entry provisions are an important feature of the Fair Work Act 2009, and exist to balance the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions with the right of occupiers to go about business without undue inconvenience.
The recent decision in White v Powell demonstrates that the Courts view right of entry (RoE) contraventions seriously, and they are willing to impose serious penalties upon those who ignore their obligations.
The Court heard that in August 2008, Michael Powell entered the site of the Monash Freeway upgrade in Chadstone, Victoria, to meet with workers in the lunch shed.
The Court accepted that after a disagreement with a site manager Mr Powell lost his cool, standing over the manager to repeatedly scream insults at him while threatening to ‘get’ him and shut the site down. The Court found that this conduct readily fit the description of improper behaviour. As a result of his outburst and in the context of his previous contraventions, Mr Powell was penalised $5000, 75 per cent of the maximum penalty available.
These proceedings were initiated under the Workplace Relations Act 1996, however the Fair Work Act 2009 also contains similar provisions.
While some colourful language is used on a building site, matters such as this demonstrate that abusive and threatening comments are not acceptable on building sites and the ABCC will continue to investigate and if appropriate, issue civil litigation proceedings in similar circumstances.
To help building and construction industry participants understand their RoE responsibilities, the ABCC has information available on its website, and provides materials including pocket guides and posters to building sites across Australia.
To find out more about how RoE provisions apply to workplaces in the building and construction industry in Australia, visit www.abcc.gov.au or contact the ABCC Hotline on 1800 003 338.
Three lessons learned – Setka v Gregor appeal proceeding
On 28 July 2011, the Full Bench of the Federal Court handed down an appeal decision reducing a penalty imposed on CFMEU Victoria Assistant Secretary John Setka in matter Gregor v Setka from $6000 to $3000.
In the original proceedings the Mr Setka was found to have acted in an improper manner when he aggressively directed serious threats towards site management on a Docklands building site. In the appeal Mr Setka challenged the penalty as well as his liability in the matter, arguing that the wording of s.767 of the Workplace Relations Act 1996 (WR Act) meant that acting in an improper manner must be linked with hindering or obstructing.
The Court rejected this argument and found Mr Setka’s conduct was clearly improper, providing important clarification on points of law that still apply under s.500 of the Fair Work Act 2009 (FW Act).
1. Permit Holders can be held liable even if they flout the requirements of entry laws
The Appeal Court found there was ample evidence to justify Burchardt FM’s finding at first instance that Mr Setka was at the least, seeking to exercise a right of entry under Victorian OHS law even though he had not complied with the legal requirements under the OHS law. The requirements that applied to Mr Setka included taking all reasonable steps to give a notice and produce his entry permit for inspection after entering (s.88 OHS Act 2004). The Appeal Court’s decision demonstrates that a permit holder may contravene Right of Entry laws (in this case, improper conduct) even where they do not comply with all the legal requirements of exercising entry or give other outward indications that they are using statutory powers. Further, the Court indicated that a finding that an organiser is exercising or seeking to exercise rights is not a grave issue that requires a very high degree of proof.
2. Acting in an improper manner is not restricted to hindrance or obstruction.
Section 767 of the WR Act and s.500 of the FW Act contain provisions which state that a permit holder exercising, or seeking to exercise their rights under the Acts, must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
Mr Setka’s submissions on appeal drew attention to the fact that the heading of s.767 of the WR Act specifically referred to hindering and obstructing. Mr Setka argued that conduct constituting acting in an improper manner must be considered within the concepts of hindering or obstructing.
The Full Bench of the Federal Court disagreed with this interpretation, finding that the WR Act cannot be read in a way that confines the prohibited improper behaviour to that which is intended to hinder or obstruct.
The Fair Work Bill 2009 Explanatory Memorandum provides further clarity in relation to s.500 of the FW Act by expressly stating s.500 is intended to prohibit two types of behaviour; conduct that is intended to hinder or obstruct any person and conduct that amounts to acting in an improper manner.
3. Intent applies to hindering and obstructing, not necessarily to acting in an improper manner.
In paragraph 35 of the appeal judgment, the Full Bench of the Federal Court reached a tentative conclusion that intent need not necessarily apply to determining improper behaviour, observing:
“Nor was it necessary that the inspector establish that Mr Setka intended to act in an improper manner. In Darlaston v Parker 92010) 189 FCR at 17 [54] Flick J was disposed to construe s 767(1) such that there was “no need to confine an act which amounts to ‘act[ing] in an improper manner’ to an intentional act.” In other words, the word “intentionally” only qualifies to the words “hinder or obstruct.”
When exercising, or seeking to exercise rights under the FW Act, it is important for permit holders to remember they must conduct themselves professionally and appropriately, and act in a proper manner while visiting a workplace.
By behaving appropriately and refraining from actions such as using threatening or abusive language, permit holders can ensure they do not unintentionally contravene s.500 of the FW Act.
Right of entry provisions are designed to balance the needs of permit holders, those that occupy a premises, and employees, without causing undue disruption to a workplace. It is important for permit holders and site occupiers to know and understand their obligations under the FW Act and act accordingly, to ensure that building work can be carried out fairly and productively.
Ready to go with Gov 2.0
In line with the Australian Government’s Declaration of Open Government, the ABCC is implementing a new strategy to reduce barriers to online communication and broaden the methods we use to communicate.
The ABCC has created an official Twitter account — @abcc_gov_au — and initiated a Wikipedia article about the agency.
The ABCC will use Twitter to share useful information and industry news as it happens, making it easier for people to access information about the ABCC and information relevant to their workplace, as well as making it easier to connect directly with the ABCC.
The ABCC is in good company on Twitter, with over 200 accounts representing all levels of Australian Government.
The Wikipedia article about the Office of the Australian Building and Construction Commissioner is now available and open for the community to edit. By creating a presence on this site, the ABCC is hoping to use its features including openly editable pages, to diversify communication between the ABCC and our industry partners.
We believe the entry would benefit from the unique perspectives of our industry stakeholders. As such we invite you to view and edit the entry as you feel is appropriate.
The ABCC Wikipedia entry and official Twitter account are small parts of a broader strategy currently being initiated by the ABCC office to promote the use of government information, promote transparency and better engagement between the government and wider community.
If you have any ideas on how you think the ABCC could reduce barriers to engaging online, please don’t hesitate to let us know on 1300 003 338, or tweet @abcc_gov_au.
The ABCC continues its commitment to transparency
In May 2011 the ABCC launched a new Freedom of Information section on the ABCC website to meet the new requirements under the Freedom of Information Act 1982 (FOI Act).
The changes to the FOI Act emphasise a commitment to transparency, including the publication of certain information under the “Information Publication Scheme.” Another major change is the creation of the FOI Disclosure Log, where information requested under FOI laws will be published on the ABCC website.
As part of its continued commitment to transparency, the ABCC has published its Finance Directions as Optional information under the Information Publication Scheme. The Finance Directions documents outline the procedures that the ABCC follows to ensure that resources are used in an efficient, effective and ethical manner.
More information about the Information Publication Scheme is available from the Freedom of Information Section of the ABCC website.