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 the information they require voluntarily, the Director may consider using compulsory examination powers granted by the Fair Work (Building Industry) Act 2012 (FWBI Act).

FWBC Examination Powers

The agency’s compulsory powers were due to expire at the end of May 2015. On 20 May, the Parliament passed the Construction Industry Amendment (Protecting Witnesses) Act 2015, which extends FWBC’s compulsory powers for two years.

The new legislation means FWBC can continue to use compulsory examinations conducted as part of 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; or
  • produce documents to the Director.

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.

The Director must apply to a Presidential Member of the Commonwealth Administrative Appeals Tribunal to exercise the examination powers.

Under s 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.

Table 2.14 Notices issued
  2013 - 14 2014 - 15
NSW 0 8
VIC 1 5
QLD 3 1
WA 0 0
SA 0 0
TAS 0 0
ACT 0 0
NT 0 0
Total 4 14

Section 54A(6) requires the Commonwealth Ombudsman to report to Parliament after the end of each financial year about 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 2014 to 15

During 2014 to 15, FWBC’s compulsory examination powers were exercised on 14 occasions, compared to four in the previous financial year.

Table 2.14 outlines the notices issued for examinations in 2014 to 15.

Table 2.15 sets out the state-by-state breakdown of examinations. New South Wales, Victoria and Queensland were the only states in which examinations were conducted.

Table 2.16 shows that of the 14 examinations conducted in 2014 to 15, the vast majority were individuals classified as ‘management’ with only about one in five examinees being employees.

Table 2.17 shows that as at 30 June 2015, the majority of the investigations relating to these examinations remain ongoing while four matters had progressed to the courts.

Table 2.15 Examinations conducted
  2013 - 14 2014 - 15
NSW 0 6
VIC 2 6
QLD 2 2
WA 0 0
SA 0 0
TAS 0 0
ACT 0 0
NT 0 0
Total 4 14
Table 2.16 Type of Examinee
  2013 - 14 2014 - 15
Employees 2 3
Union official/delegate 0 0
Management 2 10
Government 0 1
Total 4 14
Table 2.17 Outcomes of examinations – based on year examination conducted
  2013 - 14 2014 - 15
Proceedings finalised 0 0
Investigation ongoing 4 9
Proceedings commenced, case currently before the courts 0 4
Investigation closed with no proceedings commenced 0 1
Total 4 14