The ABCC concreting and finishing trades audits will be focused on educating employers in the concreting, painting, plastering, gyprocking and tiling trades about their workplace rights and obligations and assisting them comply with workplace laws.
Concreting and finishing trades audits - Q & A
Overview of the ABCC’s national targeted education and compliance audit of the concreting and finishing trades
This document provides a question and answer overview of how the ABCC’s national targeted education and compliance audits will be conducted and the interaction employers and industry representatives can expect to have with the ABCC during this campaign.
Which trades will be the subject of the national audit and how many employers will be involved?
As part of the national audit the ABCC intends to audit around 240 employers in the concreting or finishing trades (such as gyprocking, plastering, painting and tiling).
How does the ABCC select a business for auditing?
While businesses can be selected at random for auditing, the ABCC has also given consideration to other matters such as:
- information received from other government agencies like the Department of Immigration and Citizenship and the Fair Work Ombudsman
- information gained from prior ABCC site visits from both head contractors and subcontractors who have provided information about those engaged in the finishing trades
- information gained from previous investigations
- information received via the ABCC 1800 Hotline
- examination of recruitment activity in the industry where job advertisements have called for ‘full time’ and ‘permanent’ positions where an ABN is a requirement of engagement
- general research including identifying companies through the ABN Lookup website, companies recorded in the ABCC’s internal database, and online searches identifying finishing trades in the commercial building industry.
What powers will ABC Inspectors exercise when conducting audit activity?
The authority of ABC Inspectors to conduct these audits is derived from the Fair Work Act 2009 (FW Act) and the Building and Construction Industry Improvement Act 2005 (BCII Act).
ABC Inspectors will primarily exercise powers under the FW Act when conducting the audits. However, where appropriate an ABC Inspector may also exercise other powers depending on the findings of the audit. ABC Inspectors will at all times declare the powers they intend to exercise ahead of investigatory steps being taken.
Information concerning ABC Inspectors’ powers in respect of the relevant legislation can be obtained by accessing the 'Reforming the Industry' fact sheet section of the ABCC website.
How will the ABCC contact me?
Employers and industry representatives that interact with the ABCC during the national audit can expect the following by way of contact:
- Advisory letters to industry representative bodies – the ABCC will advise industry representatives that an audit is about to commence. The advice will include details of the nature of the audit.
- Notification of audit letter – a business selected for audit by the ABCC will be advised of their selection by letter. The letter will advise the recipient of the nature of the audit and request that they voluntarily complete and return an ‘audit entity’ form. The information included in the returned audit entity form will allow the ABC Inspector to better understand the nature of the business. The letter will advise that ABC Inspectors intend to visit the office of the selected business to examine or collect copies of a range of documents. These documents will be identified in the letter.
- Telephone contact – an ABC Inspector will contact the selected business by telephone after the employer has received the notification of audit letter. The Inspector will explain the audit process and arrange a suitable time to visit the business premises (or other agreed premises such as an accountant’s office) to examine or collect the documents requested in the notification of audit letter.
- Inspection of documents – at an agreed time and place an ABC Inspector will visit the business to examine or collect the requested documents from the employer.
- Interview with principal of business entity – ABC Inspectors may have questions to put to the employer following the examination of documents. If this is the case the ABC Inspector may request that the employer participate in an interview or provide further information to the ABC Inspector.
- Interviews with workers – ABC Inspectors may interview workers identified during the audit to assist verify the information provided by the employer. The ABC Inspector will advise the employer of their intention to conduct these interviews but will not necessarily provide details of which workers they intend to interview.
What documents will be requested as part of the audit and how will any possible contraventions be resolved?
ABC Inspectors will request that audit participants produce certain documents and records that relate to the workers they engage(d) over a specified period of time (the audit period). Examples of the types of records or documents that ABC Inspectors may request include:
- the names of employees, their status of employment (full-time, part-time, casual or daily hire) and details about the duties they perform
- any apprenticeship or traineeship contracts, or relevant industrial instrument(s) that may be in place
- time sheets, attendance records, rosters or other documents showing hours worked (including any overtime hours for which the employee is entitled to an overtime rate)
- payroll advice records detailing the gross and net wages paid to each employee in each pay period during the audit period
- wage rates (or salary) paid as well as any penalties, loadings or allowances, and the nature of such payments
- copies of payslips that were provided to employees
- where the business engages independent contractors, ABC Inspectors may request a copy of relevant contracts together with invoices and records of payment along with details of the services provided by the independent contractor(s).
Following receipt of the requested records and documents the ABC Inspector will review the materials and assess if there has been a possible contravention that requires rectification. If no contravention is identified the ABC Inspector may decide to conclude the audit at that point. However, if a possible contravention is identified or if the ABC Inspector considers it is necessary to gather more evidence, further information may be requested from the employer; or the ABC Inspector might conduct other activities like taking further evidence from the employer and or conducting a site visit.
ABC Inspectors will work with the audited businesses to resolve any alleged contraventions by way of voluntary compliance. Where it has been assessed that a probable contravention has occurred over a period of time, such as an underpayment of wages, the employer will be asked to make good the underpayment for the length of that period.
The ABCC expects that most alleged contraventions it identifies through the audit process will have occurred as a result of an honest mistake and not because of intentional unlawful practices. Where an investigation does uncover a more serious contravention or where an employer is engaging in exploitative practices, such as knowingly underpaying their employees or engaging in sham contracting, the ABCC may consider a different compliance response to such circumstances.
How does the ABCC determine if an alleged contravention is significant or not?
The ABCC’s approach to assessing the seriousness of an alleged contravention and the need for court proceedings to address an alleged contravention is set out part 12 of the ABCC’s Litigation Policy. The Litigation Policy can be accessed in full via the legal action and information section of the ABCC website.
Part 12 of the Litigation Policy sets out the public interest factors the ABCC has regard to when considering the commencement of court proceedings. While each investigation or audit will involve different circumstances and facts which must be assessed independently, the public interest factors include the:
- nature and circumstances of the alleged contravention
- characteristics of the alleged wrongdoer
- level of industry or public concern
- impact of alleged contravention
- deterrence
- effect of litigation
- public administration considerations.
Will the ABCC refer matters to external agencies?
Where an ABC Inspector identifies a potential contravention of laws outside of the ABCC’s jurisdiction, the ABC Inspector may refer those matters to another relevant government agency.
An example of this could include a situation where an employer or worker has attempted to evade their tax obligations, such a matter would be of interest to the Australian Taxation Office.
If a matter is referred to another agency will I be notified?
The ABCC will advise an employer or worker in writing that a particular matter has been referred to another agency. The letter will detail which agency the matter has been referred to and why.