In this edition of Industry Update, we provide a summary of recent activities, cases and campaigns conducted by the ABCC. 

Annual Report 

The ABCC’s 2018-19 Annual Report was tabled in Federal Parliament on 21 October. Among the highlights of the reporting period, the ABCC: 

  • responded to 6976 enquiries from industry 
  • delivered 168 presentations to 4,618 people, including employees, employers and representatives of peak bodies 
  • relaunched the ABCC On Site App that delivers critical information about workplace rights and obligations where it is needed most 
  • conducted 554 compliance activities comprising building code audits and inspections, and wages and entitlements audits
  • reached a milestone of 5000 enterprise agreements assessed since the agency’s establishment, with time taken to assess agreements reduced to less than two weeks 
  • recovered $823,724 in wages and entitlements for 1,376 employees, bringing total recoveries to more than $1 million since the agency’s establishment on 2 December 2016 
  • commenced 21 new court proceedings, with a 94% success for finalised proceedings 
  • obtained orders for $4.25 million in penalties from the Federal Court and Federal Circuit Court. 

Recent court decisions

In the past month the Federal Court has delivered two significant decisions in proceedings taken against the CFMMEU and its officials. These are the Bruce Highway matter in Queensland and the Monash Peninsula Student Accommodation Project in Victoria. Both matters remain before the Court and are subject to appeal, so the commentary below is confined to the published decisions of the Federal Court.

Bruce Highway case

In April last year the ABCC was successful in gaining an interlocutory injunction preventing a number of CFMMEU officials from entering the Bruce Highway, Caloundra project site in Queensland. Between 8 March and 17 April 2018, CFMMEU officials had entered site on nine separate occasions, each time refusing to show their Federal right of entry permits.The unlawful entries resulted in disruption to work on the site with Queensland Police attending on four occasions. Officials failed to comply with requests from police to leave the site, resulting in their arrest for trespass.

At the time, the officials attending the site claimed they were doing so under 81(3) of the Queensland work Health and Safety Act 2011 and therefore did not need to comply with federal right of entry laws. The ABCC alleged and the Court accepted that the entries to site disrupted work on the project and required the attendance of Queensland Police on six successive working days.

Following the granting of the injunction, the substantive case was argued in October 2018. The Minister for Education and Industry Relations for the State of Queensland intervened in the proceeding.

The Federal Court’s decision of 23 October 2019 has reconfirmed that union officials entering work sites under State or Territory OHS laws must hold a valid federal right of entry permit and abide by the right of entry laws.

In published reasons for decision, Justice Collier concluded:

“As a general principle, I agree with the Commissioner that it would be a nonsense to accept the argument advanced by the respondents (and the Minister) that, in so attending, the respondents had proceeded on the assumption that s 81(3) conferred no right of entry on anyone (including them), and was completely unenforceable by anyone.”

Monash Peninsula case

In another important Federal Court decision on 14 October, the Court examined the application of proportionality and the imposition of maximum penalties in the case of repeated offending. The contraventions alleged by the ABCC were that CFMMEU shop steward Kevin Pattinson prevented an apprentice and electrician from working on a Frankston construction site because they were not members of the union.

The Court imposed the equivalent of the maximum penalty against the CFMMEU. In handing down his judgment Justice Snaden said:

“…I regard the Union’s Agreed Contraventions—viewing them, as I do, against the backdrop of its sorry record of statutory contravention—as very much of the gravest, most serious kind. It is bad enough that it should so casually intrude upon rights of free association so valued by societies of conscience; much worse that it should do so, yet again, in deliberate defiance of the law that it has been told time and time again that it must obey.
…it appears to be wholly unmoved by the prospect that it might be forced yet again to dig into its members’ “big pots of gold” in the name of “fight[ing] the good fight”.

Right of entry

Right of entry accounts for a third of our current investigations and is the most prevalent workplace relations issue that our inspector’s deal with on a daily basis. There is clearly a need for improved education in this area as investigations into right of entry were up 12 per cent in the last financial compared with 2017-18 and we also recorded a 25 per cent increase in hotline enquiries on this issue.

So what can we do to help?

  1. Presentations: It’s easy to book a right of entry presentation for your workplace, using our new Book a Presentation button on our website.
  2. ABCC On Site app: It provides detailed information and scenarios on right of entry. Download instructions are available on our website.
  3. Hotline: Our staff are available to answer your calls about right of entry on 1800 003 338 or you can contact us via our online enquiry form.
  4. Website: Detailed information on right of entry is available here.

We have a statutory mandate to assist anyone to understand their rights and obligations and to provide advice and assistance. You are encouraged to contact us to discuss any issues arising on site. Education and prevention is always preferable to litigation.

Stephen McBurney

Commissioner

Australian Building and Construction Commission