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

There are no current sanctions.

Previous

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.

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.

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

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.

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
ABN: 88 608 230 397
Registered office: C/- Alpha Consulting Group (Norwest) Pty Limited, Unit B8, 12-14 Solent Circuit, Norwest NSW 2153
Registered principal place of business: Unit 1, 35A The Boulevarde, Toronto NSW 2283

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 a Caterpillar 30,000 litre 730 Articulated Water Truck and operator to the Project pursuant to a ‘Hire Schedule’ and HBMCC Hire Terms and Conditions (Agreement). The Agreement was signed by both parties on 14 May 2018.

Following the Agreement and the commencement of work, in early June 2018, HBMCC Site Supervisor requested that additional plant be provided by Coopers. This additional wet hire plant included:

  • Caterpillar 329 Excavator;
  • Caterpillar 12M Grader;
  • Caterpillar 320 Excavator; and
  • Volvo FM9 Water Truck.

The parties agreed that the additional plant would be charged to HBMCC in accordance with Coopers usual hourly hire rates.

Coopers invoices issued to HBMCC from May 2018 to August 2018 were paid up to and including August 2018. The payment of these invoices is a clear indication that HBMCC had accepted the charges in respect of each item of additional wet hire plant and the variation to the Agreement.

However, 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

Section 108 of the BCIIP Act provides that:

If the ABC Commissioner considers that it is in the public interest to do so, the ABC Commissioner may publish details of:

  1. non‑compliance with the Building Code, including the name of the person who has failed to comply; and
  2. non‑compliance by a building industry participant with this Act or designated building laws, including the name of the participant who has failed to comply.

The ABCC believes the actions of HBMCC warrant publication in the public interest for the following reasons:

General and particular objects of the BCIIP Act

Section 3(1) of the BCIIP Act provides that its main object is to ‘provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively, without distinction between interests of building industry participants, and for the benefit of all building industry participants and for the benefit of the Australian economy as a whole’.

Section 3(2) of the BCIIP Act provides that the main object will be achieved by, inter alia:

(b) promoting respect for the rule of law;

(c) ensuring respect for the rights of building industry participants;

(d) ensuring that building industry participants are accountable for their unlawful conduct;

(e) providing effective means for enforcing this Act, designated building laws (to the extent that those laws relate to building work) and the Building Code;

(h) providing assistance and advice to building industry participants in connection with their rights and obligations under this Act, designated building laws and the Building Code.

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 was entitled to under s 14(4) of the NSW SOP Act.

The ABCC accepts the liquidator’s submission that it is natural that there may be non-compliance as a result of insolvency, however the conduct remains inefficient, unproductive and unfair to Coopers. This remains the case even if HBMCC is no longer trading.

Publication of non-compliance in this instance should assist in fulfilling the objects of the BCIIP Act, by providing advice and assistance to building industry participants in connection with their rights and obligations under SOP Acts and the Code. It will also promote respect for the rule of law, ensure respect for the rights of employees of building industry participants, and to a degree ensure that HBMCC is accountable for its unlawful conduct.

In addition, s 108 publication is an effective, alternative means for enforcing the BCIIP Act and the Code, namely a mechanism to raise public awareness about the Code’s SOP obligations and about the negative impact of the conduct of HBMCC.

In the Statement of Compatibility with Human Rights enclosed in the Explanatory Memorandum to the BCIIP Bill, it is stated that ‘The ability of the ABC Commissioner to publicise non-compliance is an important enforcement tool and provides an opportunity to encourage compliance with the Building Code, the Bill and designated building laws by persons and building industry participants.’

Publication of non-compliance in this instance will likely assist in the achievement of these objects and purposes by encouraging broader compliance with the Code. The achievement of these objects and purposes would not be served by leaving the non-compliance unpublicised. The liquidators’ recent statutory reports suggest that the liquidation is very unlikely to achieve a return for Coopers. From these circumstances there is arguably a regulatory imperative to publicise non-compliance of HBMCC that affected Coopers on the Project, which was Commonwealth funded.

General and particular objects of the Code

Section 5 of the Code states that the Code has been developed to, among other things:

‘(a) promote an improved workplace relations framework for building work and promote compliance with this code of practice, the Act and designated building laws and encourage the development of safe, healthy, fair, lawful and productive building sites for the benefit of all building industry participants; and

(b) assist industry stakeholders to understand the Commonwealth’s expectations of, and requirements for, entities that choose to tender for Commonwealth funded building work, are awarded Commonwealth funded building work, or both; and

(c) increase efficiency and cost savings in the work performed by code covered entities by ensuring that they understand and comply with this code of practice, the Act and designated building laws; and

(d) increase the likelihood of timely, predictable, and cost-efficient delivery of Commonwealth funded building work through the use of building contractors and building industry participants that consistently adhere to this code of practice, the Act and designated building laws…’

As outlined above, the breaches of the Code’s security of payment obligations demonstrate a failure of fairness and lawfulness to the detriment of building industry participants, namely Coopers. Again, non-compliance may flow from insolvency but HBMCC’s conduct with respect to Coopers remains unfair and unlawful. The non-compliance denied Coopers $337,070.29 to which it had a statutory entitlement. This remains the case even if HBMCC is no longer trading.

Publication of non-compliance in this instance will highlights s 11(1)(a) and 11(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.

The achievement of these objects and purposes would not be served by leaving the non-compliance unpublicised. The liquidators’ recent statutory reports suggest that the liquidation is very unlikely to achieve a return for Coopers. The ABCC considers there is regulatory imperative to publicise non-compliance of HBMCC that affected Coopers on the Project, which was Commonwealth funded.

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.