Investigation outcomes

A number of enforcement options are available to the ABCC, depending on the circumstances and outcome of an investigation.

Not all contraventions brought to the attention of the ABCC must be the subject of litigation. After consideration of the evidence and the public interest, an ABCC investigation will result in one of the following:

  • the commencement of litigation,
  • the giving of an enforceable undertaking by a wrongdoer,
  • the issuing of a compliance notice,
  • the issuing of a letter of caution, or
  • no further action.

Disputes in the building and construction industry may sometimes result in private court action between one or more parties. The Australian Building and Construction (ABC) Commissioner has a right to intervene in court proceedings, and to make submissions in proceedings before the Fair Work Commission (FWC), that involve building industry participants or building work.

Litigation

Decisions to commence court proceedings should satisfy a two-step test:

  • first, there must be sufficient evidence to prosecute the case; and
  • secondly, 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.

Generally, the more serious the civil remedy provision alleged to have been contravened:

  • the more likely it will be that the public interest will require that a proceeding be commenced, and
  • the more compelling the reasons would have to be for a proceeding not to be pursued if the evidence is strong and the prospects good.

Although there may be mitigating factors in a particular case, often the proper decision will be to commence a proceeding and for those factors to be put to the court in mitigation, if and when penalty is considered.

The factors, which can properly be taken into account in deciding whether the public interest requires that a proceeding be commenced, will vary from case to case.

Enforceable Undertaking

An enforceable undertaking is an alternative to litigation. The ABC Commissioner may accept a written undertaking under section 98 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), or section 715 of the Fair Work Act 2009 (FW Act)(as the case may be). The ABC Commissioner may accept an undertaking if:

  • it is reasonably believed that the person proposed to be subject to 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; and
  • the person giving the undertaking is willing to cooperate with the ABCC.

As part of the undertaking, the wrongdoer must admit the contravention, remedy the contravention in the manner specified (where appropriate), acknowledge that application may be made to the court for orders against them if they fail to comply with the undertaking and take any other action agreed to in the undertaking.

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.

All undertakings will be published on the ABCC website.

Compliance notice

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 specified 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 in receipt of a compliance notice may seek a review of it by a relevant court. Following a review a court may confirm, vary or cancel a notice.

Letter of Caution

Where the ABCC is of the opinion that a workplace relations law may have been breached, but it is not appropriate to utilise other enforcement options, a ‘letter of caution’ may be sent to a suspected wrongdoer. However, such letters are used in limited circumstances, and only where relatively minor contraventions are suspected..

No Further Action

No further action will be taken where:

  • in the case of potential litigation, legal advice is such litigation would not have a reasonable prospect of success, or
  • it is otherwise considered that litigation, or any other form of enforcement action, would not be in the public interest.

Court interventions

Disputes in the building and construction industry may sometimes result in private court action between one or more parties. The ABC Commissioner has a right to intervene in court proceedings that arise under the FW Act (or associated legislation), and involve building industry participants or building work.

The ABC Commissioner will intervene where there is public interest in doing so, and will use the power to intervene as one means of achieving improved standards of conduct in the building and construction industry.

If a building industry participant wishes to have the ABC Commissioner intervene in a case before a court, they should contact the ABCC. The ABCC will then seek details of the case, and the Commissioner will decide the appropriate steps to take.

Please note there may be instances in which it is inappropriate for the ABC Commissioner to intervene, or continue to participate in, court proceedings.

Submissions to the Fair Work Commission

The ABC Commissioner may make submissions in proceedings before the Fair Work Commission (FWC) arising under the FW Act and involving building industry participants or building work. The intention of submissions to the FWC is to ensure that the FWC, and the parties involved, are fully aware of the impact of the relevant Commonwealth legislation.

If a building industry participant believes the ABC Commissioner should make submissions to the FWC in a particular case, they should contact the ABCC. The ABCC will then seek details of the case, and the Commissioner will decide the appropriate steps to take.

 

Need more information?

For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.