Since the last Industry Update, there have been a number of changes including the Federal Election and the ABCC moving to the Attorney-General’s industrial relations portfolio. The responsible minister for the ABCC and the Building Code is now the Attorney-General the Hon. Christian Porter. What this means for those who work in the building and construction industry is it remains business as usual. The ABCC continues its important work as a full service regulator for the industry.

This edition of the Industry Update marks the end of the financial year. I highlight some of the key outcomes for the agency. As is evident from our current operational activities, we are committed to improving behaviour on building sites. 

Wages and Entitlements

This financial year we recovered more than $790,000 for 1229 employees. This takes to $1.08 million the amount of outstanding wages and entitlements returned to workers since the ABCC became responsible for this function on 2 December 2016.  You can read more about our recoveries in this update.

New minimum wage increases apply from the first full pay period after 1 July 2019. We have important information about this on our website as well as links to the Pay and Conditions Tool on the Fair Work Ombudsman website.

Right of Entry

Right of entry continues to be a focus for the ABCC. It comprises a significant proportion of our investigations and our legal proceedings as set out in this update. As well as cases commenced by my agency, I have exercised my right of intervention in three right of entry cases commenced by the CFMMEU in Brisbane, Canberra and Perth. 

I will have more to say about these cases once a final decision is delivered. But I do want to emphasise that right of entry involves a balancing of the rights of the occupier and the rights of a permit holder.

Whether that is a permit holder acting properly and complying with the requirements that come with the privilege of holding a permit and exercising a right of entry. Or whether that is ensuring employers and occupiers faithfully respect the rights of union officials who hold a valid permit.

The Act requires a balancing exercise to be undertaken. This involves managing a balance between the rights of unions to represent workers, the rights of workers to be represented and the rights of occupiers to go about their business without undue inconvenience. I will work to ensure this balance is respected and applied on Australian building sites.

We have developed clear and practical guidance on right of entry. This can be delivered to your device where it matters most, on site. The ABCC On Site app is free and you can download it via the Apple App Store or the Google Play Store. It steps you through right of entry scenarios. It has been referred to and relied upon by both site managers and union officials to ensure they are complying with the law.

If in any doubt, as is made clear in the app, a phone call to 1800 003 338 will enable you to speak to the ABCC and get immediate advice on your rights and obligations.

Court cases

On the litigation front, the ABCC has commenced 18 new court proceedings since 1 January 2019. Among these matters are allegations of age discrimination, racial abuse, unlawful picketing and coercion. 

On 21 June 2019, the Federal Court imposed penalties of $119,300 on the CFMMEU and two of its officials, Stephen Long and Drew MacDonald, for repeated unlawful entries and making threats on two Melbourne construction sites.

In this case, the Federal Court imposed personal payment orders against both officials. That means they must personally pay the fines imposed on them and the penalties cannot be paid by the CFMMEU. This reinforces the landmark High Court decision handed down last year on personal payment orders. Ultimately, if a penalty is devoid of sting or burden, it will not have any deterrent effect. The greater the sting or burden of the penalty, the more likely it will be that the union officials will be deterred from future contraventions.

The ABCC was also successful in an appeal to the Federal Court resulting in an increased penalty against J Hutchinson P/L for contravening strike pay provisions after the company paid workers who had engaged in unlawful industrial action.

We argued the initial $1,200 penalty against the company was manifestly inadequate. As a result of our appeal, the penalty was increased to $20,000.

 

The final penalties total for the financial year is $4.257 million.  This is an increase of more than $1 million from the previous year. 

The ABCC achieved successful outcomes in 18 of 20 cases for the financial year. In terms of penalties imposed by the Courts in ABCC cases, the results reveal:

  • The CFMMEU and its officials were penalised $4.221 million
  • J. Hutchinson Pty Ltd were penalised $20,000
  • Prolac Pty Ltd were penalised $16,200

While it is not for me to pass judgment on the CFMMEU, I do consider it appropriate to refer to relevant judicial commentary. In his judgment delivered on 21 June 2019, the Honourable Justice Bromberg stated:

“ The CFMMEU, and in particular the Divisional Branch, has an appallingly long history of prior contraventions of industrial laws.”

“… There is no evidence before me of the CFMMEU taking any compliance action to counsel, educate or inform MacDonald or Long in order to prevent the reoccurrence of contravening conduct by them in the future.  Nor is there any evidence before me of any compliance regime ever put in place by the CFMMEU to address its long history of prior contraventions.”

Where a building industry participant has been the subject of unlawful conduct, we will explore available options to compensate the victim.  Last week the Federal Circuit Court in Brisbane accepted our application for compensation and made a compensation order in favour of a Brisbane tiling company for $200,000. The tiling company had lost out on a tender to a rival bid that was $300,000 higher because of pressure from the CFMEU.  You can read the full details of this case in this edition.

Providing advice and assistance

Finally, I want to promote our stakeholder engagement and education objectives.

 

 

We have undertaken more site visits this year than for any of the last five years. Our 1382 site visits enable us to fulfil our statutory mandate of providing advice and assistance to industry. Site visits provide us with direct contact on site, increases our site visibility, and enables us to assess and promote compliance with the law.

Another important medium for us is our hotline.  For immediate advice and assistance, you can call our hotline on 1800 003 338. Our hotline operates from 7am to 6pm on business days. Your call will be answered within 60 seconds, you will speak to a real person who is a subject matter expert, and we aim to resolve your query within 24 hours. 

Last financial year we answered 3934 calls with an average wait time of 20 seconds. Over 98 per cent of callers surveyed indicated they were satisfied with the service provided.

 

Presentations to industry are also included as a KPI in our Corporate Plan. My staff are available to present on any relevant topic and in every State and Territory. We provide this service at no cost to you. We tailor the presentation to meet your needs. I am personally available to present on the ABCC’s role and priorities.

My staff are available to deliver presentations to contractors, employees, site managers, employer associations, and unions. We have also been active in delivering presentations to final year university students about our role on building and construction sites. 

Our most popular topics for presentations have been:

  • ABCC – role and function
  • Right of Entry
  • Building Code 2016
  • Freedom of association
  • Industrial Action
  • Coercion
  • Wages and Entitlements
  • Security of Payments
  • Unlawful picketing

Should you have any questions regarding the information contained in this industry update, please contact us.

Steve McBurney

Commissioner

ABCC