Below you can review a comprehensive list of all current and previous sanctions imposed by the Minister onto code covered entities.

Current and previous sanctions

Current

Failure to comply with Work Health and Safety Act 2011 (NSW), failure to report.
Period of exclusion: 2 May 2022 to 1 February 2023 (inclusive)

Reasons for sanction

  • In early 2018 Landmark Roofing was engaged to replace fire-damaged roofing at a Mayfield West (NSW) recycling centre.
  • On 8 March 2018, the first-year apprentice and his supervisor were on the roof of the building replacing a section of damaged polycarbonate skylight when the apprentice roof plumber fell around six metres through the skylight. He sustained serious injuries, from which he later died in hospital.
  • Landmark Roofing was a respondent to a prosecution brought the SafeWork New South Wales in the District Court of New South Wales.
  • On 15 May 2020, the District Court determined the company had a duty under the Work Health and Safety Act 2011 (NSW) (WHS Act), to ensure so far as is reasonably practicable, the health and safety of its workers while at work.
  • The District Court found that Landmark had failed to comply with its WHS duty, exposing the apprentice and his supervisor to a risk of death or serious injury in contravention of section 32 of the WHS Act.
  • A conviction was recorded, and the company was ordered to pay a fine of $400,000 plus the prosecution’s costs
  • Landmark’s failure to comply with a work health and safety law constitutes a breach of section 9(3) of the Code. Landmark failed to report its breach to the ABCC. This failure to report constitutes a breach of section 17 of the Code.

Period of exclusion

2 May 2022 to 1 February 2023 (inclusive)

Related entities also excluded

No

Effect of sanction

Landmark is excluded from submitting expressions of interest, tendering for or being awarded Commonwealth funded building work during the period of exclusion.

This exclusion sanction does not prevent Landmark from performing Commonwealth funded building work that was awarded to the company prior to the commencement of the exclusion period.

 

Previous

Failure to comply with Work Health and Safety Act 2011 (Qld), failure to report.
Period of exclusion: 24 May 2021 to 23 June 2021 (inclusive)

Reasons for sanction

  • In August 2017, MCP was working on the Commonwealth funded Toowoomba Second Range Crossing project. MCP had been engaged to provide and operate mobile concreting equipment comprised of a mobile concrete pump truck with a 60m boom. MCP set up that equipment incorrectly and failed to follow its Safe Work Method Statement. In setting up that equipment, the boom became overbalanced causing the mobile crane to tip over. No-one was injured in the incident.
  • On 20 July 2020, MCP pleaded guilty in the Toowoomba Magistrates’ Court to a charge relating to its failure to comply with a health and safety duty under the Work Health and Safety Act 2011 (Qld) (WHS Act). The Court declared that MCP had contravened section 19(1) of the WHS Act and it was ordered it to pay a fine of $50,000 plus costs.
  • MCP’s failure to comply with a work health and safety law constitutes a breach of section 9(3) of the Code. MCP failed to report its breach to the ABCC. This failure to report constitutes a breach of section 17 of the Code.

Period of exclusion

24 May 2021 to 23 June 2021 (inclusive)

Related entities also excluded

No

Effect of sanction

MCP is excluded from submitting expressions of interest, tendering for or being awarded Commonwealth funded building work during the period of exclusion.

This exclusion sanction does not prevent MCP from performing Commonwealth funded building work that was awarded to the company prior to the commencement of the exclusion period.

Security of Payment – failure to pay subcontractor.
Period of exclusion: 1 May 2019 to 31 May 2019 (inclusive)

Reasons for sanction

  • Breaching paragraph 21(a) of the Building Code 2013 (Building Code 2013) by failing to comply with an applicable security of payment law.
  • Breaching paragraph 21(c) of the Building Code 2013 by failing to ensure, so far as reasonably practicable, that disputes about payments are resolved in a reasonable, timely and cooperative way.

Period of exclusion

1 May 2019 to 31 May 2019 (inclusive)

Related entities also excluded

APM Holdings (Aust) Pty Ltd, ACN 121 399 586

Effect of sanction

APM Group (Aust) Pty Ltd and APM Holdings (Aust) Pty Ltd are excluded from submitting expressions of interest, tendering for or being awarded Commonwealth funded building work during the period of exclusion.

This exclusion sanction does not prevent APM Group (Aust) Pty Ltd or APM Holdings (Aust) Pty Ltd from performing Commonwealth funded building work that was awarded to the companies prior to the commencement of the exclusion period.

Freedom of association breaches, undue influence to have a particular workplace arrangement in place, failure to require subcontractors to comply with the Code.
Period of exclusion: 1 April 2017 to 30 June 2017 (inclusive)

Reasons for sanction

  • Breaching paragraph 7(b) of the Building Code 2013 (2013 Code) by failing to require compliance with the 2013 Code from all subcontractors before doing business with them.
  • Breaching paragraph 13(b) of the 2013 Code by engaging in activity that attempts to unduly influence a subcontractor or supplier to have particular workplace arrangements in place.
  • Breaching subparagraph 15(1)(b)(i) of the 2013 Code by not adopting policies that ensure that persons are free to become, or not become, members of industrial associations.
  • Breaching paragraph 15(2)(b) of the 2013 Code by allowing a 'no ticket, no start' sign to be displayed on a worksite.

Period of exclusion

1 April 2017 to 30 June 2017 (inclusive),

Related entities also excluded

Nil

Effect of sanction

J. Hutchinson Pty Ltd is excluded from submitting expressions of interest, tendering for or being awarded Commonwealth funded building work during the period of exclusion.

This exclusion sanction does not prevent J. Hutchinson Pty Ltd from performing Commonwealth funded building work that was awarded to the company prior to the commencement of the exclusion period.

Formal warnings

Security of Payment – failure to pay subcontractor, failure to resolve disputes in a reasonable, timely and cooperative way, failure to report and others. 

Reasons for sanction

  • In 2019 and early 2020, i2 Solutions breached numerous security of payment provisions of the Building Code 2016 including requirements in sections 7, 11D and 11E.
  • I2 Solutions breached Code provisions relating to:
    • paying its subcontractors on time;
    • complying with State based security of payment legislative obligations;
    • resolving disputes in a reasonable, timely and cooperative way;
    • maintaining and following a dispute settlement procedure;
    • reporting delayed payments to the ABCC; and
    • applying undue influence or undue pressure on a subcontractor not to exercise its security of payment rights.
  • Examples of some of this conduct include:
    • failure to pay one subcontractor claims totalling $39,349.75;
    • failure to pay a subcontractor $127,026.68 that was determined by a third party adjudicator;
    • failure to make on time payments totalling $1,196,416.80 to a number of different subcontractors; and
    • behaving in an intimidating and threatening manner during an adjudication process with a subcontractor.

Details of formal warning

“A formal warning in accordance with section 18(1A)(b) of the Building Code 2016 and not[ing] that any further failure to comply with the Building Code 2016 may result in the imposition of an exclusion sanction.”

Effect of formal warning

I2 Solutions is under external administration and can therefore no longer tender for or be awarded Commonwealth funded building work.

Contravened the Fair Work Act 2009 by unlawfully threatening to dismiss workers.

Reasons for formal warning

Breaching paragraph 9(1) of the Code after the Federal Court found that DMG contravened section 340 of the Fair Work Act 2009 by unlawfully threatening to dismiss workers during enterprise agreement negotiations.

Details of formal warning

A formal warning that a further failure to comply with the Code may result in the imposition of an exclusion sanction.

Effect of formal warning

DMG may continue to tender for and be awarded Commonwealth funded building work. However, a further failure to comply with the Code may result in the imposition of an exclusion sanction.

Publication of non-compliance

Notice of publication pursuant to section 108 of the Building and Construction Industry (Improving Productivity) Act 2016.

Business details

Hardy Bros Mining & Civil Construction Pty Ltd (in liquidation)

ACN: 608 230 397

Code breaches

  • HBMCC breached s 11D(1)(a) of the Code when it failed to comply with the Building and Construction Industry Security of Payment Act 1999 (NSW) by not making payment of $337,070.29 to subcontractor Coopers Earthmoving & Haulage Pty Ltd on a Commonwealth funded project, the Ellerton Drive Extension Queanbeyan Bypass Road Upgrade, NSW (the Project).
  • HBMCC breached s 11D(1)(b) of the Code when it failed to ensure that payments which were due and payable by HBMCC were made in a timely manner and were not unreasonably withheld by not making payments of $337,070.29 to the subcontractor on the Project.

Background

On 14 May 2018, Coopers was engaged by HBMCC to supply wet hire plant to the Project. Coopers invoices from September to December 2018 went unpaid. Those invoices totalled $337,070.29.

Interest of at least $7,025.67 accrued on the unpaid invoices.

HBMCC and associated companies

HBMCC and its related entities had become subject to the Code on 8 May 2017 when HBMCC tendered for the Project. In the corporate group:

  • HBMC Services Pty Ltd (in liquidation and now deregistered) was the entity employing all the group’s employees
  • Another Hardy Bros entity owned all the group’s equipment; and
  • HBMCC held the contracts with customers and would hire equipment from the equipment entity and employees from HBMC Services.

In April 2019, HBMCC and HBMC Services were placed in liquidation.

On 4 December 2020, the liquidator of HBMC Services estimated that it owed the following unpaid employee entitlements:

  • Superannuation: $1,794,663.38
  • Wages/RDO: $10,252.22
  • Annual leave: $78,770.07
  • Payment in lieu of notice: $117,574.89
  • Redundancy: $162,388.60

In December 2020, HBMC Services was deregistered and ceased to exist.

HBMCC continues to be in liquidation.

Reason for publication

HBMCC’s failure to comply with the NSW SOP Act and therefore the Code were inconsistent with the BCIIP Act’s main objective to ‘ensure that building work is carried out fairly, efficiently and productively’. As a result of the failure to comply, Coopers did not receive $337,070.29 that it had a statutory entitlement to under s 14(4) of the NSW SOP Act.

The liquidators’ recent statutory reports suggest that the liquidation is very unlikely to achieve a return for Coopers. The conduct was detrimental, inefficient, unproductive and unfair to Coopers.

Publication of non-compliance will highlight s 11D(1)(a) and 11D(1)(b) of the Code as an important part of the Commonwealth’s expectations of and requirements for entities that become code covered entities and perform work on Commonwealth funded building projects.

Publication will also contribute to increased efficiency and cost savings by ensuring that other code covered entities understand and comply with the Code and SOP laws. This includes ensuring subcontractors engaged by code covered entities are paid their lawful entitlements in a timely manner.

Failed to comply with two notices to produce.

Business details

Big Li Ceiling Pty Ltd, ACN 605 363 102 (Big Li)

Reason for publication

Breaching section 9(1) of the Code after the Federal Circuit Court found that Big Li (and its director, Mr Yiting Li) had twice contravened section 77(3) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) Act by failing to comply with two separate notices to produce documents that were issued by an ABC Inspector.

Security of payment – failure to comply with security of payment laws, failure to pay subcontractor in timely manner, failure to report delayed payment to ABCC.

RMA Construction Group Pty Ltd (RMA) – Background and particulars of Code breaches

Background Facts

RMA was engaged as a head contractor to perform building work on a Commonwealth funded project, the Defence Housing Australia (DHA) – 36 Houses at Joongah Street Project in Randwick, NSW (the Project).

RMA engaged the subcontractor in or around September 2019 to supply and install a 400 metre Colorbond fence on the Project. On 19 February 2021, the subcontractor served a valid payment claim on RMA in respect of the work. In response, RMA issued a valid payment schedule to the subcontractor and withheld the amount claimed on 22 February 2021.

The subcontractor made an application for adjudication in relation to the payment claim on 9 March 2021. On 29 March 2021, the adjudicator determined that the amount of $62,453.18 (including GST) became payable to the subcontractor on 21 March 2021. The adjudicator also determined that interest was payable on the unpaid amount at 6.10% per annum and 100% of the adjudicator’s fees should be paid by RMA. The total of the Adjudicated Amount was $68,897.80. RMA was required to pay the Adjudicated Amount to the subcontractor by 8 April 2021.

Rather than pay the Adjudicated Amount, RMA sought to negotiate down the amount of its statutory liability. During those negotiations with the subcontractor, RMA issued written communications in a without prejudice letter to the subcontractor. As part of these communications, RMA misrepresented to the subcontractor that the subcontractor was prohibited from sharing RMA’s communication with the ABCC.

RMA ultimately paid the amount of $70,888 to the subcontractor on 21 July 2021, 105 days after the statutory due date for payment determined by the adjudicator.

Publication of Contraventions

RMA breached section 11D(1)(a) of the Code when it failed to comply with the Building and Construction Industry Security of Payment Act 1999 (NSW) (the NSW SOP Act) by not paying an adjudicated amount of $68,897.80 (the Adjudicated Amount) to a sole-trader subcontractor by the statutory due date.

The NSW SOP Act required RMA to pay the adjudicated amount within five business days of the adjudicator’s determination.

RMA breached section 11D(1)(b) of the Code when it failed to ensure that payments which were due and payable by RMA were made in a timely manner and were not unreasonably withheld by not paying the Adjudicated Amount by the statutory due date. RMA ultimately paid the Adjudicated Amount 105 days late.

RMA breached section 11D(1)(f) of the Code by failing to report the disputed or delayed adjudicated amount to the ABC Commissioner as soon as practicable after the date on which the payment fell due, or indeed at all. The ABCC was notified of the disputed or delayed adjudicated amount by the subcontractor.

Rectification Measures undertaken by RMA

Following intervention by the ABCC, RMA has undertaken measures to ensure that similar breaches do not recur in future. The ABCC has acknowledged those measures which include:

  • Staff training on the Code and security of payment legislation
  • Revised policies and procedures
  • Acknowledging and accepting responsibility for the contraventions
  • Implementation of a revised dispute settlement procedure
  • Quarterly project audits to ensure compliance with mandatory Code reporting obligations

The ABCC Commissioner has determined to publish details of ASI’s non-compliance with the Code pursuant to section 108 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).

A.S.I. Electrics Pty Ltd (ACN: 006203710) (ASI) – Background and particulars of Code breaches

Background Facts

ASI was engaged by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) to supply and install lighting products and to provide project management related services at the CSIRO LED Lighting Upgrades Project, at the University of Adelaide Waite Campus site (the Project).

ASI engaged the subcontractor in or around March 2019 in respect of the Project. On 19 May 2019, the subcontractor served a valid payment claim on ASI in respect of the work.

ASI did not issue a payment schedule to the subcontractor within the required timeframe. It made a partial payment in the sum of $23,260.30 within the required timeframe, however withheld the balance of the amount claimed in the sum of $62,671.70.

The subcontractor approached the ABCC in respect of ASI’s failure to pay the outstanding amount.

The ABCC issued a Compliance Notice to ASI, requiring payment of the outstanding amount. ASI made payment of the outstanding amount, albeit 16 days past the required timeframe in the Compliance Notice and approximately 24 months after it first became due and payable at law.

Shortly after making the payment to the subcontractor, ASI issued a letter of demand to the subcontractor for, amongst other things, legal costs in the sum of $27,000 incurred by ASI as a result of the subcontractor’s engagement with the ABCC.

Publication of Contraventions

ASI breached section 11D(1)(a) of the Code when it failed to comply with the Building and Construction Industry Security of Payment Act 2009 (SA) (SA SOP Act) by not paying the outstanding amount of $62,671.70 to the subcontractor by the statutory due date.

The SA SOP Act required ASI to serve a payment schedule within 15 business days of receipt of the subcontractor’s claim. ASI did not serve a payment schedule within that timeframe. Having failed to do so, ASI incurred a statutory liability to pay the claimed amount in its entirety. ASI made partial payment of $23,260.30 within the required timeframe, however, it failed to pay the remainder of the claimed amount in the sum of $62,671.70 to the subcontractor by the due date.

ASI’s failure to pay the outstanding amount by the due date constitutes a breach of section 14(4) of the SA SOP Act. That breach constitutes a breach of section 11D(1)(a) of the Code.

ASI breached section 11D(1)(b) of the Code when it failed to ensure that payments which were due and payable by ASI were made in a timely manner and were not unreasonably withheld. ASI ultimately paid the outstanding approximately 24 months after it first became due and payable at law. The payment was not made promptly by ASI’s own initiative, but only after the ABCC issued a Compliance Notice.

ASI breached section 11D(1)(d) of the Code by failing to resolve its payment dispute with the subcontractor in a reasonable, timely and cooperative way.

Rectification Measures undertaken by ASI

Following intervention by the ABCC, ASI has undertaken measures to ensure that similar breaches do not recur in future. These measures include:

  • conducting training with its employees about complying with the Code and the processes set in the SA SOP Act relating to the procedures and timeframes for payment claims and payment schedules
  • adopting a new template subcontract agreement that will be used for future engagements of this type

The ABCC Commissioner has acknowledged the rectification measures undertaken by ASI. ASI has not been subject to any previous findings of breaches of the Code. In the circumstances, the ABCC Commissioner considers publication of contravention to be an appropriate regulatory response.

Contractual dispute between ASI and the subcontractor

The ABCC Commissioner notes that there is an ongoing contractual dispute between ASI and the subcontractor. However, security of payment legislation creates a parallel regime, separate from a construction contract, for enforcing the interim payment of progress claims, without affecting the parties’ ultimate rights under the construction contract in subsequent civil proceedings in respect of that contract.

Code covered entities should ensure that if they wish to dispute a claim, they continue to follow the legislative security of payment process, which may include issuing a payment schedule within the required timeframe. Where contractors fail to follow this process they may become liable to pay the amount claimed by the claimant in its entirety while the dispute is being settled.