What to expect from an ABCC Investigation
ABC Inspectors conduct investigations to determine whether there may have been contraventions of Commonwealth workplace laws, including the BCIIP Act and the FW Act.
The investigation process: step by step
Investigations usually commence after a complaint is made to us. An investigation may also commence without anyone making a complaint if we obtain information through other sources, including auditing particular workplaces or industries, that we believe warrants investigation.
Step 1: information gathering
ABC inspectors will initially seek evidence to determine whether a contravention may have occurred. As part of this process, inspectors will usually contact relevant employers and employees to ask for relevant information, records and documents.
If we don't get this information in a reasonable time, an inspector may visit the workplace to obtain this information, or issue a notice requiring a person to produce records and documents.
Inspectors will also obtain any necessary evidence from relevant third parties, and seek to interview persons who have information relevant to the investigation. In some circumstances, where a person has information relevant to the investigation, the ABC Commissioner may seek to issue a notice requiring that person to attend an examination and answer questions.
Step 2: review
Inspectors will review all evidence obtained during an investigation to determine whether there may have been a contravention of Commonwealth workplace laws (as outlined above).
Inspectors can determine the process of an investigation at their discretion. An inspector will determine the best course of action dependent upon the specific circumstances of each investigation.
Step 3: outcomes
If an inspector determines that a contravention of Commonwealth workplace laws may have occurred, there are a number of possible outcomes, including:
- the issuing of a compliance notice requiring the wrongdoer to take action to remedy the contravention
- the entering into an enforceable undertaking with the wrongdoer
- the commencement of legal action against the wrongdoer, which may result in penalties being imposed
- the issuing of a letter of caution to the wrongdoer
- taking no further action.
Please note that not all contraventions brought to the attention of the ABCC result in proceedings being commenced.
If an ABC Inspector reasonably believes that a person has contravened one or more of the workplace relations laws that apply to the building and construction industry, the inspector may issue a compliance notice to the person.
Such a notice may require the person to take specific action to remedy the direct effects of the suspected contravention, and/or produce evidence of their compliance with the notice.
Failure to comply with a notice will itself constitute a contravention of the BCIIP Act.
A person who has received a compliance notice may seek a review of it by a relevant court. On review, a court may confirm, vary or cancel a notice.
An enforceable undertaking is an alternative to litigation. The ABC Commissioner may accept a written undertaking under section 98 of the BCIIP Act, or section 715 of the FW Act.
The ABC Commissioner may accept a written undertaking if all of the following apply:
- it is reasonably believed that the person giving the undertaking has contravened a civil remedy provision of the BCIIP Act or the FW Act
- it is considered to be in the public interest, and otherwise appropriate in the circumstances, to accept an undertaking
- the relevant contravention is admitted
- the person giving the undertaking is willing to cooperate with the ABCC.
If the undertaking is not complied with, the ABC Commissioner may apply to an appropriate court for an order directing the offending party to comply with the terms of the undertaking, an order for payment of compensation for any loss suffered as a result of the undertaking being breached, and such other orders that the court considers appropriate.
Commencing legal action
Decisions to commence court proceedings should satisfy a two-step test:
- First, there must be sufficient evidence to prosecute the case.
- Second, it must be evident from the facts of the case, and all the surrounding circumstances, that commencing the proceeding would be in the public interest.
The factors taken into account to decide whether the public interest requires that a proceeding be commenced will vary from case to case.
There is more information about our litigation process in the ‘how we litigate’ section of this website.
Letters of caution
Where an ABC Inspector believes that a workplace relations law may have been breached, but it is not appropriate to use other enforcement options, a ‘letter of caution’ may be sent to a suspected wrongdoer.
A letter of caution will outline the suspected breach and any recommended action to be taken to rectify it.
Letters of caution are used in limited circumstances, and only where relatively minor contraventions are suspected.
No further action
Following an investigation, no further action will be taken where:
- no contravention has been identified
- it is considered that litigation, or any other form of enforcement action, would not be in the public interest.
What if the problems still aren't fixed after the investigation?
If you have made a complaint but the issues have not been resolved, we may be able to identify other options available to you. However, please note that we cannot provide you with legal advice.
If you are not satisfied with the outcome of an investigation, the investigation process, or the conduct of an ABC inspector, you can request a review of the matter.
What can’t the ABCC do?
It’s important to note that we do not have the power to order a wrongdoer to pay compensation or to give someone back their job.
If we investigate a complaint and the matter goes to court, we can seek penalties against the wrongdoer—but the court decides on penalties to be paid or other orders the wrongdoer must follow. These other orders can include paying compensation.
We also can’t investigate matters that are outside of our jurisdiction. Matters we can’t investigate include:
- unfair dismissal
- general bullying and harassment
- discrimination that is not workplace related.
Where a matter that we can’t investigate arises from a complaint, we may refer you to a different organisation that may be able to help you.