Compliance powers

Background

When investigating a complaint, investigators will use all avenues available to them to obtain information voluntarily.

If an investigator exhausts all avenues available to obtain information voluntarily, the Director may consider using compulsory examination powers under the Fair Work (Building Industry) Act 2012(FWBI Act).

FWBC examination powers

On 20 May 2015, the Construction Industry Amendment (Protecting Witnesses) Act 2015 received royal assent, extending FWBC's compulsory powers until 1 June 2017. The legislation means FWBC can continue to conduct compulsory examinations as part of its investigations.

When exercising compulsory examination powers, the Director may seek to have a person:

  • attend before the Director to answer questions;
  • provide information to the Director; and
  • produce documents to the Director.

The Director is required to make an application to a Presidential Member of the Commonwealth Administrative Appeals Tribunal in order to exercise the examination powers. The powers can be used where the Director believes on reasonable grounds that a person:

  • has information or documents relevant to an investigation; or
  • is capable of giving evidence relevant to the investigation.

Under section 54A(3) of the FWBI Act, the Commonwealth Ombudsman is required to review the exercise of examination powers by the Director and any person assisting the Director. Section 54A(6) requires the Commonwealth Ombudsman to report to parliament after the end of each financial year on the examinations conducted by the Director and the results of reviews carried out by the Commonwealth Ombudsman during that year.

Use of compliance powers in 2015–16

During 2015–16, FWBC exercised its compulsory examination powers on 17 occasions. Of the persons examined, 11 chose to have legal representation.

Table 11 outlines the notices issued for examinations nationally.

Table 12 sets out examinations conducted nationally.

Table 13 (on p. 42) shows that of the 17 examinations conducted in 2015–16, the vast majority were of individuals in management positions.

Table 14 (on p. 42) shows that as at 30 June 2016, six investigations where compliance powers were used remain ongoing, nine matters had progressed to the courts and two investigations were closed.

#Table 11: Notices issued

State

2014–15

2015–16

NSW

8

0

VIC

5

6

QLD

1

9

WA

0

0

SA

0

0

TAS

0

2

ACT

0

0

NT

0

0

Total

14

17

#Table 12: Examinations conducted

State

2014–15

2015–16

NSW

6

1

VIC

6

6

QLD

2

7

WA

0

0

SA

0

1

TAS

0

2

ACT

0

0

NT

0

0

Total

14

17

#Table 13: Type of examinee

Type of examinee

2014–15

2015–16

Management

10

14

Employee

3

2

Union official/delegate

0

1

Government

1

0

Total

14

17

#Table 14: Outcomes of examination – based on the year examination conducted

Outcome

2014–15

2015–16

Proceedings commenced, cases currently before the courts

4

9

Investigation ongoing

9

6

Investigation closed with no proceedings commenced

1

2

Total

14

17