How we litigate
The enforcement of Commonwealth workplace laws is a means by which the Australian Building and Construction Commission (ABCC) aims to achieve its main object of providing an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively.
The power to commence civil penalty proceedings is conferred on an Australian Building and Construction Inspector by the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).
Decisions to commence legal proceedings
Decisions to commence legal proceedings should satisfy a two-step test:
- there must be sufficient evidence to prosecute the case; and
- it must be evident from the facts of the case, and all the surrounding circumstances, that it would be in the public interest to commence proceedings.
Under the Legal Services Directions, the ABCC must not (except in urgent circumstances) commence a proceeding unless it has received written legal advice from an external legal provider indicating that there are reasonable grounds for starting the proceeding.
Factors which may arise in considering whether it is in the public interest to commence a proceeding include:
- the nature and seriousness of the alleged contravention
- the characteristics of the alleged wrongdoer, for example their compliance history
- the level of industry or public concern in the nature of the alleged contravention. The ABCC assumes that in all cases the public and industry are concerned about compliance with building industry laws.
- the impact of the alleged contravention on the person who was injured or otherwise adversely affected by the alleged contravention and other relevant persons
- the likely impact of proceedings on general deterrence (i.e. reducing the likelihood that other building industry participants will commit similar contraventions or otherwise contravene building industry laws), and specific deterrence (i.e. reducing the likelihood that the alleged wrongdoer will commit further contraventions of such laws)
- the likely effect of litigation including the likely outcome, the availability and efficacy of any alternatives to litigation, and whether the consequences of a finding of contravention would be unduly harsh or oppressive
- other public interest considerations.
Professional and Ethical Standards
The ABCC adopts the highest professional and ethical standards in the exercise of its functions and powers, including the power to commence civil proceedings.
These standards are contained in a number of sources including:
- relevant legislation and judicial guidance;
- ABCC policies; and
- the Legal Services Directions 2005 (including Appendix B – obligation to act as a model litigant).
The legal cases section of this website contains summaries of ABCC (and previously, FWBC) initiated legal proceedings before the courts or the Fair Work Commission.
Need more information?
For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.