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Analysis of performance against the purpose

Significant outcomes in providing tools and resources, advice and assistance to industry

An important component of the ABCC’s role as a regulator is to advise and assist industry stakeholders to understand their rights and obligations. In the reporting period, the agency provided tools and resources, advice and assistance to a broad range of industry participants by:

  • responding to enquiries
  • delivering presentations to building industry participants
  • visiting building and construction sites
  • conducting virtual site visits
  • delivering targeted education and compliance campaigns
  • using technology to extend its reach across the industry.

Enquiries

The ABCC receives enquiries from a range of sources. Responding to enquiries is a key channel through which the agency provides advice and assistance.

The ABCC hotline number continues to be the primary point of contact for many stakeholders. When they call the ABCC, they speak to a real person who is a subject matter expert.

Caller survey results indicate that 99 per cent of stakeholders were satisfied or highly satisfied with the quality and timeliness of advice and assistance provided. This is an endorsement of the value and quality of information provided by the ABCC to industry.

As Table 1 shows, the agency received 5,514 enquiries in the reporting period. This included 2,817 enquiries about building code issues, and 1,081 enquiries about workplace laws. Table 2 shows the majority of these enquiries (69 per cent) were received through the agency’s 1800 hotline. Of those calls, 99 per cent of calls were answered within 60 seconds with an average wait time for all calls of 15 seconds.

More than 1,380 enquiries were received via online sources, including the agency’s web enquiry form and email.

As part of a feedback loop, the ABCC interrogates enquiry information to inform and refresh website content and improve communication channels to stakeholders.

Table 1: Number of enquiries by main topic of enquiry

Main topic of enquiry

2018–19

2019–20

Code

3,379

2,817

Code assessment

929

998

General code information

1,299

740

Code advice

552

588

Security of payments

545

423

Notice of code breach

26

30

s.6B general advice

9

11

s.6B application

5

10

s.6A general advice

10

9

s.6A application

3

6

State code information

1

2

Workplace laws – building work

1,204

1,081

Wages and entitlements

296

454

Right of entry

395

310

Freedom of association

75

93

Unlawful industrial action

255

88

Coercion

113

83

Sham contracting

40

27

Misrepresentation of workplace rights

19

14

Discrimination

0

5

Strike pay

8

4

Unlawful picketing

0

3

Non-compliance with notices

3

0

Other laws*

627

905

Agency information and activities

529

429

Not relevant to the building industry

165

188

Workplace laws - non-building work^

94

94

Total

5,998

5,514

* Enquiries classified as ‘other laws’ include laws that are outside of the agency’s jurisdiction, for example, those related to domestic building work, taxation, competition or criminal laws.

^ Enquiries classified as ‘workplace laws – non-building work’ include workplace laws that are outside of the agency’s jurisdiction, for example, those related to enterprise agreements that are relevant to the Fair Work Commission (FWC), and those related to unfair dismissal or unlawful termination that are relevant to the FWC or Fair Work Ombudsman (FWO).

Table 2: Number of enquiries by enquiry method

Method of enquiry

2018–19

2019–20

Hotline

3,921

3,800

Online

1,691

1,386

Direct

321

266

Referral

46

31

Other

19

31

Total

5,998

5,514

Presentations

Presentations provide the ABCC with the opportunity to educate building industry participants about their rights and obligations under workplace relations laws and the building codes. Operational staff, middle managers and members of the ABCC Executive, including the Commissioner, all deliver presentations. In 2019–20, the ABCC launched a new ‘book a presentation’ request button on the ABCC website as an additional service for industry participants.

As Table 3 shows, in the reporting period the agency delivered 176 presentations to 2,680 building industry participants across Australia.

The number of presentations delivered exceeded the KPI target of 175 presentations, with 97 per cent of surveyed stakeholders indicating that the tools and resources provided by the ABCC improved their understanding of workplace rights and responsibilities.

Table 3: Presentations delivered and attendees

Presentations/attendees

2018–19*

2019–20

Presentations

167

176

Attendees

4,608

2,680

* The reported figure of 168 presentations to 4,618 attendees contained in the 2018–19 Annual Report has been adjusted on the basis of updated data.

Site visits

One of the ABCC’s key responsibilities is to monitor and promote appropriate standards of conduct in the industry. Site visits play a critical role in meeting this responsibility and are an opportunity for operational staff to engage directly with the industry to provide education, assistance and advice.

In April 2020, the agency began conducting virtual site visits due to the restrictions imposed by COVID-19 on agency staff undertaking physical proactive on-site activities. A virtual site visit involves an ABCC investigator, usually by phone, contacting a manager or supervisor from a particular construction site or project to provide education, assistance and advice.

As Table 4 shows, in the reporting period, the agency made 1,371 visits to building and construction worksites and offices, plus an additional 611 virtual site visits between April and June 2020. Figure 3 shows the location of both physical and virtual site visits conducted across Australia.

Table 4: Number of site visits

Site visits

2018–19

2019–20

Physical site visits

1,382

1,371

Virtual site visits

-

611

Total

1,382

1,982

Figure 3: Map of site visits Site visits marked in blue on a map of Australia.

Education activities

The ABCC provides educational tools and resources to promote understanding of and compliance with Australia’s workplace laws.

In 2019-20, this included running targeted education activities focused on wage compliance by labour hire employers, security of payments, right of entry, phoenix activity and promoting the rights and responsibilities of new workers to the industry.

During the year, Industry Update was revamped to a new, easy-to-read format, as well as moving to a monthly publication schedule.

The ABCC also introduced online videos as a new online education tool accessible via the website. The ABCC produced and disseminated six videos on a range of topics that have been viewed a collective 1,534 times.

In January 2020, the ABCC started using LinkedIn as a new communication tool, providing a different platform for the agency to engage with building industry participants. The use of LinkedIn has also helped to promote career opportunities in the agency.

The ABCC continued to improve the accessibility and utility of its website, reflected in an 8.2 per cent increase in monthly website hits. A 5.5 per cent increase in users of the ABCC On Site app was also recorded.

The ABCC issued 38 media releases and was mentioned in the media 490 times during the reporting period, which resulted in a potential audience reach of 15.3 million.

Security of Payments Education and Communication Program

The ABCC conducted a two-phase education and communication program in 2019–20 to improve awareness, engagement, reporting and compliance with the security of payments (SoP) provisions of the Building Code 2016.

Phase one of the program (November–December 2019) coincided with the ABCC’s self-audit advice to code covered entities while phase two (February 2020) complemented the audit stage.

The program attracted 5,324 impressions across a range of the ABCC’s channels, including its website, E-Alert, Industry Update, LinkedIn and YouTube. The campaign had a total audience reach of 29,333.

The ABCC continues to produce education and communication materials regarding its role in SoP in response to the industry’s needs, including state and territory fact sheets that can be downloaded from the website.

More information on SoP can be found at Appendix C: Security of Payments Working Group Annual Report.

Significant outcomes in impartially monitoring and assessing compliance

Wages and entitlements compliance

The ABCC has been responsible for ensuring that building and construction employees have been paid correctly since 2 December 2016 and has now recovered more than $2.2 million in wages for more than 3,300 employees.

In 2019–20, $1,117,330 in unpaid wages was recovered for 1,741 employees from 89 employers through requests for assistance and ABCC initiated activities.

Figure 4 provides a breakdown of the total wages recovered by location of employer.

Figure 4: Total wages recovered by location of employer A map of Australia with wages recovered by state or territory. NSW - $406,596; VIC - $308,508; QLD - $215,080; WA - $105,915; NT - $57,857; TAS - $13,508; SA - $13,276.

Proactive audit programs

The ABCC undertakes proactive compliance programs to test the level of compliance in sectors of the industry or from intelligence the ABCC has obtained. Sector specific audit programs undertaken this year by the ABCC include:

  • apartment construction
  • companies covered by the Building Code 2016
  • labour hire providers.

Where contraventions are identified, the ABCC works with employers to achieve voluntary rectification. Forms of rectification include:

  • an audit of time and wage records
  • evidence of back payments made to workers
  • a compliance commitment to rectify record keeping
  • evidence of ongoing record keeping compliance.

This year, the ABCC finalised its first series of wage audits of labour hire employers in the building and construction industry. Figure 5 illustrates the outcomes of these wage audits. The results showed that a disappointing 79 per cent of these employers did not comply with Australia’s workplace laws.

Figure 5: Results of the ABCC's wage audits of labour hire employers Summary of results from Labour hire audit. First graph shows $563,850 recovered for 1,337 workers, broken down by State. Infographic shows number of complaints (12), non-compliant breaches rectified (30), non-compliant audits resulting in education (20), upgraded investigations (1) and companies audited (63).

The ABCC will be revisiting the labour hire sector in the 2020–21 financial year. Where contraventions are identified, education provided to employers during the first phase of the audit program will be a consideration in determining the most appropriate compliance outcome.

In 2019–20, the ABCC recovered $761,716 for 1,651 employees through proactive activities.

Following are examples of recent wages matters the ABCC has successfully resolved.

Example 1

The ABCC commenced a proactive audit of a NSW post-tensioning company.

The audit identified that the site allowance payable to employees had not been adjusted by the CPI increase required by the company’s enterprise agreement.

After auditing their records, the employer rectified the issue by back paying a total of $7,653 to 74 employees.

Example 2

The ABCC proactively commenced an audit of a NSW traffic control company.

The audit identified that, on occasions, employees were required to work more than five hours without an unpaid meal break. Under the Building and Construction Modern Award, employees are entitled to be paid double time for the period after five hours until the meal break is taken. The employer was paying employees time and a half after six hours without a meal break under an enterprise agreement that no longer applied to the employees. As such, employees were underpaid.

The audit also identified that the pay slips issued to employees did not include the date of the payment as required by the Fair Work Regulations 2009.

The employer undertook an internal audit of their records and calculated underpayments to the satisfaction of the ABCC. The company paid out $47,989 to 72 employees in February 2020 to rectify the issues. The company also provided a commitment that pay slips issued to employees in the future would include the payment date.

Example 3

The ABCC commenced a proactive audit of a commercial construction company in regional Victoria. The audit resulted from an anonymous report the ABCC received that an apprentice was being paid award wages when the employer had an enterprise agreement.

The audit identified that the employer had previously made an enterprise agreement, which had subsequently reached its nominal expiry date. The employer had misunderstood the effect of the nominal expiry date and had reverted to paying its employees under the modern award. The employer was unaware that the enterprise agreement continued to operate after the nominal expiry date.

As a result, the employer was found to be underpaying the minimum rates of pay, payment of RDOs, travel allowance, site allowance and leave loading.

Once the ABCC notified the employer of this error, it was proactive in engaging external specialists to undertake a full analysis of its industrial relations practices.

Consequently, the employer voluntarily back paid close to $100,000 to four employees. The employer’s other 12 employees were not underpaid as a result of the error.

Wages investigations

In the reporting period, the ABCC commenced 53 investigations and recovered $355,613 in unpaid wages for 90 employees from 22 employers.

Investigations can be commenced in relation to single- or multi-employee complaints, and often involve complex workplace relations issues for consideration.

Following are examples of the types of investigations that the ABCC undertakes.

Example 1

In February 2020, the ABCC received a complaint from an employee in relation to his redundancy entitlements. His employer had advised him that he would be paid redundancy entitlements in line with the modern award. However, the employee believed that the entitlement under the enterprise agreement would be applicable.

As a result of the allegation raised, the ABCC undertook an investigation and found that an old pre-reform enterprise agreement was still applicable due to the Fair Work (Transitional and Consequential Amendments) Act 2009, as it had not been terminated or replaced. The enterprise agreement contained redundancy terms that were more favourable than the modern award.

After being notified of the ABCC’s findings, the employer reviewed all redundancies offered to employees, including for the complainant, resulting in an additional $51,955 of redundancy entitlements being paid to 11 employees.

Example 2

In September 2018, the ABCC received a complaint from a first-year apprentice, alleging that his employer, a Tasmanian tiling company, had failed to pay him correctly.

The ABCC commenced an investigation and identified that the apprentice had been underpaid his ordinary hourly rate of pay and was not paid overtime penalties, travel allowance or annual leave loading in accordance with the modern award.

The investigation also identified that the pay slips issued did not identify the date of payment or the superannuation details as required by the Fair Work Regulations 2009.

The employer undertook an internal review of its records and calculated underpayments to the satisfaction of the ABCC. The company paid $5,448.98 to the complainant in 2019 to rectify the issues. The company also provided a commitment that the pay slips issued to employees in the future would include the payment date along with the superannuation fund details.

Wages related litigation

During the reporting period, the ABCC finalised two wages related cases resulting in penalties of $54,000 imposed against the sole director of SWAT Building Systems, and $22,680 imposed against Big Li Ceiling Pty Ltd and its director.

Australian Building and Construction Commissioner v SWAT Building Systems Pty Ltd & Anor

In May 2020, the Federal Court imposed penalties totalling $54,000 against the former sole director of Victorian building company, SWAT Building Systems.

The penalties were ordered against the company’s former director following an ABCC investigation into allegations that a labourer employed by SWAT had been dismissed when he complained to the director about not being paid.

The labourer had not been paid for five weeks, including his minimum entitlements, overtime, public holiday pay and superannuation.

When the labourer asked the director when his wages would be paid, the director told him he was ‘disrespectful’ and ‘not loyal’, and terminated his employment.

As a result of the ABCC’s successful court action to recover the worker’s entitlements, in addition to being penalised $54,000, the director was ordered to pay the employee $13,673 in unpaid wages and entitlements and $906.55 in interest.

Building code compliance

In the reporting period, the ABCC addressed building code compliance by providing industry participants with education, advice and assistance on a range of issues relating to the building codes.1

The ABCC’s website contains detailed guidance, resources and tools to assist contractors, funding entities and other building industry participants to understand the requirements of the building codes.

In addition to the materials published on the ABCC’s website, the agency prioritised opportunities to have direct contact with building industry participants, including contractors, government agencies, and employer and employee associations.

The ABCC responded to 2,817 building code enquiries and assessed 1,640 enterprise agreements, 125 sets of individual clauses and 425 workplace relations management plans for compliance with the Building Code 2016. Through these combined activities, the ABCC assisted building industry participants with building code issues on 5,007 occasions.

The ABCC continued to monitor contractors’ compliance through proactive compliance activities, including site inspections and field audits.

Security of payments

Since 1 September 2018, mandatory reporting obligations have applied under the Building Code 2016 requiring all disputed and delayed payments to subcontractors to be reported to the ABCC as soon as practicable after the date on which the payment falls due. This resulted in an escalating number of complaints and reports requiring the ABCC’s intervention in the 2018–19 reporting period, which has continued this financial year with 2,926 security of payments claims received.

The ABCC implemented a new internal reporting process for the 2019–20 reporting period. As a result, the total number of security of payment cases received recorded a lower figure of 511 in comparison to 614 from the previous period. However, the individual claims reported to the ABCC rose substantially from 1,182 to 2,926.

The ABCC identified the need to increase awareness of its role in supporting compliance and, in November 2019, a new security of payments campaign was initiated to improve awareness, engagement, reporting and compliance. This campaign resulted in an increase in reporting. As part of the campaign, proactive audits were initiated, with the first round of audits underway. Future audit rounds will continue into the next financial year.

See Appendix C: Security of Payments Working Group Annual Report for more information about the Security of Payments Working Group.

Assessment of enterprise agreements

The ABCC provides advice on the compliance of enterprise agreements with the Building Code 2016. Table 5 shows the numbers of agreements received and assessed during the reporting period.

Table 5: Agreements received and assessed

Agreement status

2018–19*

2019–20

Received

1,742

1,602

Assessed

1,764

1,640

*Agreements received and assessed in the 2018–19 period decreased by two due to a reclassification of data.

The agency also received 125 sets of individual clauses, which were assessed in an average timeframe of three days.

Improvements were made to the ABCC website to make it easier for stakeholders to find and understand important information regarding enterprise agreements and tendering. Key features include a new enterprise agreements page with a clear link to submit agreements for assessment, a revised eligibility to tender web page with simplified content, a new proof of eligibility assessment flowchart that allows stakeholders to easily determine the evidence required to demonstrate eligibility, and a new frequently asked questions section.

Workplace relations management plans

In the reporting period, the agency received 429 workplace relations management plans (WRMPs) and assessed a total of 425 WRMPs against the requirements of the Building Code 2016. The agency reduced the timeframe for WRMP assessments from 10 business days to three business days.

Building code compliance activities

Building code audits and inspections (compliance activities) proactively monitor the on-site behaviour and business systems of code covered entities, using voluntary rectification or the risk of a sanction to influence contractors to adopt lawful workplace practices.

Building code inspections are undertaken without notice and aim to establish the level of on-site compliance with relevant building codes. Inspection outcomes provide the agency with intelligence and support a risk-based approach to planning building code audit activities.

Building code audits are more formal, in-depth compliance activities, aimed at comprehensively assessing a contractor’s code compliance. Audits can target specific issues or be general in their approach.

Companies that have committed to voluntary rectification are also considered for follow‑up compliance activities to assess whether agreed measures have been implemented.

In the reporting period, the ABCC commenced 156 code audits and 146 code inspections. Table 6 shows the number of building code compliance activities undertaken by type.

Table 6: Building code compliance activities commenced

Compliance activities commenced

2018–19

2019–20

Code audits

205

156

Code inspections

157

146

Total

362

302

In addition, the agency finalised 160 audits and 171 inspections, some of which were commenced in a prior reporting period. Potential building code issues were identified in 106 audits and 70 inspections. These figures are reported in Appendix B: BCIIP Act Annual Report.

Figure 6 shows the location of audits and inspections undertaken.

Figure 6: Map of audits and inspections undertaken A map of Australia with code inspections marked in dark blue and code audits marked in light blue by location.

Rectification of non-compliance with the building codes

The ABCC is committed to working with code covered entities to ensure their compliance with relevant building codes. Where non‑compliance with building codes is identified, the agency seeks, where appropriate, to provide education and opportunities for the entity to rectify issues voluntarily. If identified non‑compliance cannot be satisfactorily rectified, the Commissioner can refer the non‑compliance to the Minister with a recommendation that a sanction be imposed. No sanctions were imposed in the reporting period.link

Significant outcomes in using the full range of enforcement options to address non-compliance

The ABCC has a statutory mandate to investigate contraventions of legislation and use the full range of enforcement options to address non‑compliance. The ABCC pursues, where appropriate, civil penalty litigation in the courts for potential breaches of workplace relations laws.

Investigations

Table 7 shows the number of investigations commenced, finalised and continuing for the last two reporting periods.

Table 7: Investigations by status

Investigation status

2018–19

2019–20

New investigations commenced

206

162

Investigations finalised

216

147

Investigations continuing at end of period

63

78

In the reporting period, 162 new investigations were commenced into suspected breaches of workplace laws. While acknowledging the significant spike in the previous reporting period, Figure 7 shows that the overall trend in the number of investigations commenced continues to increase since the re-establishment of the ABCC on 2 December 2016.

Figure 7: Investigations commenced since re-establishment of the ABCC Line graph showing the number of investigations commenced per financial year from 2015-16 to 2019-20, with 162 investigations commenced this reporting period.

Table 8 shows investigations commenced by primary topic, and Table 9 by location.

Table 8: Investigations commenced by primary topic

Primary topic of investigation

2018–19*

2019–20

Coercion

28

21

Discrimination

1

1

Freedom of association

10

21

Misrepresentation of workplace rights

3

1

Non-compliance with notices

2

2

Right of entry

75

44

Sham contracting

9

4

Strike pay

2

0

Unlawful industrial action

44

17

Unlawful picketing

3

2

Wages and entitlements

29

49

Total

206

162

*The reported figures contained in the 2018–19 Annual Report have been adjusted following recategorisation of contraventions.

​Table 9: New investigations commenced by state/territory

State/territory

2018–19*

2019–20

ACT

6

8

NSW

70

44

NT

4

6

QLD

45

19

SA

16

9

TAS

14

0

VIC

31

53

WA

20

23

Total

206

162

*The reported figures contained in the 2018–19 Annual Report have been adjusted on the basis of updated data.

In the reporting period, the ABCC investigated 486 alleged contraventions of Commonwealth workplace laws. Table 10 shows these by type of contravention for the past two reporting periods.

Table 10: Types of contraventions investigated

Type of contravention investigated

2018–19*

2019–20

Coercion

88

69

Criminal

1

1

Discrimination

4

5

Freedom of association

59

58

Misrepresentation of workplace rights

28

22

Other

11

4

Right of entry

196

154

Sham contracting

36

26

Strike pay

9

2

Unlawful industrial action

72

33

Unlawful picketing

9

6

Wages and entitlements

113

106

Total

626

486

* The reported figures contained in the 2018–19 Annual Report have been adjusted following recategorisation of contraventions.

Use of compliance powers

When conducting investigations, the ABCC may request that relevant information, documents or evidence be provided voluntarily.

Under the BCIIP Act, ABCC authorised officers also have powers to enter premises to obtain records and documents, or to interview witnesses to alleged contraventions.

If the agency is unable to obtain information voluntarily or by using authorised officer powers, the Commissioner may exercise examination powers to investigate the suspected contraventions.

The powers can be used when the Commissioner believes on reasonable grounds that a person:

  • has information or documents relevant to an investigation into a suspected contravention, by a building industry participant, of the BCIIP Act or a designated building law, or
  • is capable of giving evidence that is relevant to such an investigation.

When exercising examination powers, the Commissioner may require the person to:

  • give information to the Commissioner
  • produce documents to the Commissioner, or
  • attend before the Commissioner and answer questions relevant to the investigation.

The use of examination powers is subject to an extensive range of safeguards. As a precondition to their use, the Commissioner is required to make an application supported by a sworn affidavit to a presidential member of the Administrative Appeals Tribunal (AAT).

As soon as practicable after an examination, the Commissioner must give the Commonwealth Ombudsman:

  • a report about the examination
  • a video recording of the examination
  • a transcript of the examination.

The Commonwealth Ombudsman must then review the exercise of examination powers by the Commissioner and any person assisting the Commissioner, and prepare and present to the parliament a report about examinations conducted. The report must include the results of reviews conducted during the relevant quarter.

A witness attending for examination before the Commissioner is entitled to:

  • be represented by a lawyer of their choice
  • apply for reimbursement of reasonable expenses incurred to attend the examination.

Examination powers are used only as a last resort. In the reporting period, the Commissioner applied for 14 examination notices and conducted six examinations under the BCIIP Act. Of the witnesses examined, one chose to be legally represented.

Table 11 shows examinations conducted during the last two reporting periods.

Table 11: Examinations conducted

State

Examinations conducted

2018–19

2019–20

VIC

2

0

TAS

1

3

QLD

10

3

Total

13

6

Table 12 shows the types of examination notices issued. Table 13 and Table 14 show the outcomes of examinations undertaken and the types of examinees.

Table 12: Types of examination notices issued

Type of examination notice

2018–19

2019–20

Give information

1

0

Attend before the Commissioner

16

14

Total

17

14

Table 13: Outcomes of examinations conducted

Outcome of examination

2018–19*

2019–20

Investigation closed with no proceedings issued

2

0

Investigation ongoing

8

3

Proceedings commenced, case currently before the courts

3

3

Total

13

6

*As at 30 June 2019

Table 14: Types of examinees for examinations conducted

Type of examinee

2018–19

2019–20

Management

3

4

Employee

9

2

Government

1

0

Total

13

6

On 6 March 2020, the Federal Court affirmed the validity of an examination notice issued by the AAT and dismissed a legal challenge brought by the witness (Ehrke v ABCC [2020] FCA 267). Details of this decision are set out under Significant judicial decisions.

Penalty proceedings

In the reporting period, the agency initiated 14 civil penalty proceedings in the courts. The average time taken to commence proceedings for this reporting period was 12.4 months from the commencement of the relevant investigation. This was just outside the KPI target of within 12 months and was primarily due to the filing of two proceedings being deferred, pending judgment in a related proceeding (handed down approximately 12 months after the hearing).

Table 15 shows the primary allegation for the 14 proceedings commenced during the reporting period.

Table 15: Proceedings commenced by nature of allegation

Nature of allegation*

2018–19

2019–20

Coercion

6

3

Right of entry

6

8

Freedom of association

1

1

Unlawful picketing

0

1

Unlawful industrial action

5

1

Wages and entitlements

2

0

Discrimination^

1

0

Total

21

14

* Where a matter involves more than one type of allegation, the type of allegation most central to the proceedings is selected.

^ Previously categorised as ‘Misrepresentation of workplace rights’ in the 2018–19 reporting period.

Table 16 shows the results of finalised proceedings. The agency finalised 22 matters in the reporting period, with a 95 per cent success rate (successful in 21 out of 22 finalised proceedings). The ABCC continues to maintain a success rate above 90 per cent in proceedings finalised, with a success rate of 94 per cent for the previous reporting period.

Table 16: Results of finalised proceedings

Result of finalised proceedings

2018–19

2019–20

Successful

15

21

Unsuccessful

1

1

Total

16

22

As Table 17 shows, $2,034,005 in penalties were imposed as a result of ABCC court proceedings finalised in the reporting period. Table 18 shows that penalties imposed on the CFMMEU and its representatives accounts for $1,736,950 of this total. Figure 8 shows penalties imposed between 2 December 2016 and 30 June 2020 by respondent type.

Table 17: Penalties imposed

Type of penalty

2018–19*

2019–20

Coercion

$1,751,490

$929,525

Unlawful picketing

$0

$255,000

Right of entry

$1,189,840

$237,150

Freedom of association

$277,390

$194,950

Unlawful industrial action

$848,419

$177,500

Misrepresentation

$55,080

$108,600

Wages and entitlements

$0

$48,600

Other

$56,000

$82,680

Strike pay

$20,000

$0

Total penalties^

$4,198,220

$2,034,005

Total penalties subject to appeal as at 30 June 2020

$302,000

$187,000

* ABCC v Richard Hassett & Ors (Living City) (TAD21/2018). Penalties of $137,000 reduced by $48,000 to $89,000 on appeal by the CFMMEU ([2019] FCAFC 201). ABCC v CFMMEU & Ors (BKH) (NSD361/2016). Penalties of $313,000 reduced by $11,000 to $302,000 on appeal by the CFMMEU ([2020] FCAFC 9).

^ The sum of row totals may not equal the total penalties due to rounding.

Table 18: Penalties imposed by respondent type

Respondent

2019–20

CFMMEU

$1,736,950

CFMMEU

$1,461,950

CFMMEU representatives

$275,000

Other union

$112,000

Australian Manufacturing Workers’ Union (AMWU)

$100,000

AMWU representative

$12,000

Employee

$7,500

Employer

$177,555

Director of SWAT Building Systems Pty Ltd

$54,000

Devine Constructions Pty Ltd

$32,000

Employee of Devine Constructions Pty Ltd

$3,000

Employee of Devine Constructions Pty Ltd

$3,000

Forest Meiers Construction Pty Ltd

$32,000

Employee of Forest Meiers Construction Pty Ltd

$3,000

Harris HMC Interiors (VIC) Pty Ltd

$23,400

Employee of Harris HMC Interiors (VIC) Pty Ltd

$1,575

Employee of Harris HMC Interiors (VIC) Pty Ltd

$1,450

Employee of Harris HMC Interiors (VIC) Pty Ltd

$1,450

Big Li Ceiling Pty Ltd

$18,900

Director of Big Li Ceiling Pty Ltd

$3,780

Total

$2,034,005

Figure 8: Penalties imposed between 2 December 2016 and 30 June 2020 by respondent type Pie graph depicts the percentage of total penalties from 2 December 2016 to 30 June 2020 imposed by respondent type ie. Employee (3%), employer (2%), CFMMEU (92%) and other unions (3%).

Personal payment orders

In 2018, the High Court confirmed that courts have the power to make personal payment orders against individuals who have contravened the law.

Personal payment orders require individuals to personally pay any penalty imposed upon them. The individuals cannot seek or encourage a co-respondent (e.g. their union) to pay them any money or provide any financial benefit referable to the payment of the penalty. Additionally, individuals cannot accept or receive from a co-respondent any money or financial benefit referable to that payment.

Since the High Court’s decision, the courts have ordered personal payment orders against several union officials. During the reporting period, personal payment orders totalling $57,000 were made against seven individuals in five proceedings.2

As at 30 June 2020, the ABCC is seeking personal payment orders against 51 individuals in 18 matters before the courts.

Applications, submissions and interventions

Under the BCIIP Act, the Commissioner may intervene in court proceedings and make submissions or an application in FWC proceedings. The Commissioner will consider doing so in proceedings that involve building work or a building industry participant.

Table 19 shows that, in the reporting period, the ABCC made nine submissions on permit applications and one submission on the revocation or suspension of permits to the FWC. The ABCC also intervened in one court proceeding.

Table 19: Submissions on permit applications and interventions

Category

2018–19

2019–20

Revocation/suspension of permit

3

1

Submissions on permit applications

9

9

Intervention

2

1

Total

14

11

Injunctions

Injunctions are discretionary orders of courts that compel a party to do, or refrain from doing, specific acts. These are often ordered on an interlocutory basis to preserve the status quo pending a court’s determination of legal rights in a matter. The ABCC did not seek any injunctions in the reporting period.

Significant cases

The following examples of significant cases finalised in the reporting period are illustrative of the continuing serious unlawful conduct within the building and construction industry and the breadth of the ABCC’s reach.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038

Facts

The ABCC commenced proceedings against the CFMMEU, two of its officials and one of its members for unlawfully picketing two Melbourne construction sites in 2017.

The CFMMEU admitted to organising a blockade on 8 May 2017 during construction of two cold storage warehouses at NewCold, one of the Southern Hemisphere’s largest cold storage and distribution points for major food manufacturers.

Mr Perkovic and a group of other men blocked access to one site when they stood next to a CFMMEU SUV that was parked across the entry gate.

When told he was trespassing and asked to leave, Mr Perkovic and others surrounded two managers at the site with one of the group saying, ‘P.ss off, we’re here, we’re staying.’

Around the same time, at the second NewCold site, Mr Pearson, Mr Raspudic and a group of other men stood next to another CFMMEU SUV parked across the driveway and restricted access to a number of concrete trucks, subcontractors, office staff and employees of a potential customer.

Decision

On 6 December 2019, the Federal Court imposed penalties on the CFMMEU and the individual respondents for contravening section 47 (unlawful picketing) of the BCIIP Act. The CFMMEU was also penalised for contravening section 77 of the BCIIP Act (failure to comply with a statutory notice to produce documents) and was ordered to pay the ABCC’s legal costs.

This was the first judgment to impose penalties under the new provisions introduced by the BCIIP Act prohibiting unlawful picketing on Australian building and construction sites. The BCIIP Act provisions significantly increased penalties to deter parties from taking unlawful industrial action.

Penalties

Respondents

Penalty

John Perkovic

$20,000

Kane Pearson

$20,000

Mario Raspudic

$15,000

CFMMEU

$215,000

Total

$270,000

Judicial comments

Justice O’Callaghan said:

… Mr Perkovic and Mr Kane behaved with an apparent sense of impunity, including when Mr Pearson said that the car was broken down and that he could not move it and when Mr Perkovic said that he had ‘lost’ his car keys.

His Honour went on to say of the CFMMEU:

… the CFMMEU is a large organisation with significant financial resources. It has a prior history that has been recorded and characterised in many decisions of this courts over many years … demonstrating its apparent willingness to contravene industrial laws in a serious way.

Director, Fair Work Building Industry Inspectorate v Devine Constructions Pty Ltd & Ors [2019] FCCA 2712

Facts

The ABCC's predecessor agency commenced proceedings against Devine Constructions Pty Ltd, its general manager and a senior employee for contravening the Fair Work Act by refusing to engage a steel fabrication company because it did not have a CFMMEU enterprise agreement.

Devine Constructions was the head contractor for an apartments project in Queensland. In July 2013, a project manager sent an email to all employees of Devine Constructions with an instruction to not engage contractors unless they had an agreement with the CFMMEU.

In October 2013, Craig’s Engineering Pty Ltd submitted a tender for structural steel works. The Devine Constructions’ contracts administrator Andrew Blore advised the tenderer, ‘We would like you to do the job but you don’t have an EBA Agreement.’

In December 2013, a different company was invited to tender for the project and was told it ‘would be an easier option for us’ if it had an EBA with the CFMMEU. Devine awarded the structural steel works to the company. Craig’s Engineering was unsuccessful and was told it needed a signed EBA to work on the site.

Decision

On 24 May 2019, the Federal Circuit Court found that Devine Constructions, its general manager Michael Tucker and contracts administrator Andrew Blore, had taken adverse action against Craig’s Engineering because it did not have an enterprise agreement with the CFMMEU, in contravention of section 340 of the Fair Work Act. All three were also found to have discriminated against the subcontractor, in contravention of section 354 of the Fair Work Act.

On 25 September 2019, the Court penalised Devine Constructions, its general manager and contracts administrator a total of $38,000 for their contraventions of the Fair Work Act.

The Court ordered that half of the penalties, $19,000, be paid to Craig’s Engineering.

Penalties

Respondents

Penalty

Michael Tucker

$3,000

Andrew Blore

$3,000

Devine Constructions Pty Ltd

$32,000

Total

$38,000

Judicial comments

Judge Jarrett said:

There is no doubt that Devine was faced with a difficult situation arising from the conduct of the CFMEU at this project site. Mr Blore and Mr Tucker both had difficult situations facing them. The relevant conduct took place in an environment in which the CFMEU were making threats of delay and disruption and engaging in coercive conduct.

… the respondents’ conduct against Craig’s Engineering has the potential to perpetuate a culture of submission in the building and construction industry where economic duress is able to be applied to subcontractors to force them to become covered by an enterprise agreement that also covers a union. If that potential is realised, the freedom of association provisions in the Fair Work Act will be subverted.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (No. 2) [2019] FCCA 3623

Facts

The ABCC commenced proceedings against the CFMMEU and two of its officials after they contrived safety concerns against a crane company, Reds Global (NSW) Pty Ltd, and organised work stoppages at three sites in New South Wales in March 2014.

The CFMMEU, through its officials, engaged in a targeted campaign against Reds Global, making bogus safety complaints because Reds Global was contemplating terminating the employment of one of its employees who was also the CFMMEU delegate.

CFMMEU organiser Anthony Sloane and former organiser Luke Collier organised a crane company’s employees to stop work at three separate construction sites. The union officials’ conduct was not motivated by a genuine concern for the health and safety of workers, but as a means to inconvenience the company. The two officials’ conduct was aimed at pressuring Reds Global to retain a CFMMEU site delegate.

Decision

On 7 August 2019, the Federal Circuit Court found that Mr Sloane had contravened sections 340 (adverse action), 343 (coercion), 417 (industrial action) and 500 (right of entry) of the Fair Work Act. Mr Collier was found to have contravened sections 340 and 343 of the Fair Work Act. The CFMMEU was also found to have contravened sections 340, 343, and 417, as well as section 50 (contravening an enterprise agreement) of the Fair Work Act.

On 12 December 2019, the Court imposed penalties totalling $156,900 against the CFMMEU and its two officials for their contraventions of the Fair Work Act.

Penalties

Respondents

Penalty

Tony Sloane

$15,200

Luke Collier

$6,700

CFMMEU

$135,000

Total

$156,900

Judicial comments

Judge Cameron said:

The absence of any form of contrition, and the maintenance of a defence which was signally lacking in merit, suggest that the respondents, particularly the CFMMEU and Mr Sloane, did not really take this proceeding or the contraventions which underlie it seriously.

… the contraventions were a form of extortion and it cannot be doubted that they were a discrete campaign … the inconvenience Mr Sloane caused to Reds Global … was based on a contrivance. Those are serious matters.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No.2) [2019] FCA 1498

Facts

The ABCC commenced proceedings against the CFMMEU and its former official Brendan Murphy alleging that Mr Murphy intentionally hindered and obstructed construction work and acted in an improper manner at the Geelong Grammar School in December 2014.

Mr Murphy entered the construction site without providing notice and refused to show his entry permit for inspection. He then refused multiple requests to leave the site and called a meeting of workers. Following the meeting, he told the site manager he would not leave until everyone was off the site because he was not happy with the subcontractors that had been engaged. A number of workers left the site and work ceased. Mr Murphy threatened that he would be back the next day to make sure the site wasn’t open.

Decision

On 9 November 2018, the Federal Court found that Mr Murphy and the CFMMEU had contravened section 500 (right of entry) of the Fair Work Act. Mr Murphy intentionally hindered and obstructed workers by causing the subcontractors and their employees to leave the site and causing work to cease, and acted in an improper manner by failing to provide notice of his entry, failing to produce his entry permit on request, refusing to leave the site when requested, making threats about not re-opening the site, and acting rudely and aggressively.

The Court rejected Mr Murphy’s claim that he was concerned about site safety, with Justice Mortimer saying, ‘I am not satisfied there was any real health and safety issue.’

On 13 September 2019, the Court imposed penalties totalling $34,500 against the CFMMEU and Mr Murphy.

Penalties

Respondents

Penalty

Brendan Murphy

$4,500

CFMMEU

$30,000

Total

$34,500

Judicial comments

Justice Mortimer took into account Mr Murphy’s conduct, including:

… his aggression, his language, the interference with work on the site, the refusing to leave when told to, the contrived OH&S concerns, the threats not to allow the site to re-open.

Her Honour said Mr Murphy’s conduct was:

… confrontational, aggressive and rude. Mr Murphy was bullying and overbearing, and deliberately so.

Justice Mortimer said of the CFMMEU:

This level of contravening conduct can only indicate a continuing readiness to disregard and flout the industrial laws of this country, when it suits the CFMMEU and its officials to do so.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757

Facts

The ABCC commenced proceedings against the CFMMEU and two of its officials for coercing workers to join and pay membership fees to the union and coercing subcontractors to pay ‘union rates’ during construction work on Melbourne University’s college site in Parkville in 2016.

In March 2016, CFMMEU site delegate Mario Raspudic prevented two subcontractor employees from working on the site unless they were paid-up members of the union. When one of the workers said that he didn’t have to become a member of the union to work on the site, a scuffle occurred in which Mr Raspudic attempted to grab a laptop computer out of the worker’s hands. Ultimately, both workers paid fees to join the CFMMEU in order to perform work on the site.

CFMMEU official Mark Travers later told the subcontractor that it was a ‘union site’ and the company should pay ‘union rates’. He threatened that if union rates weren’t paid, the CFMMEU would take action to stop the subcontractor from working on site.

Decisions

On 5 June 2020, the Federal Court found the conduct of the CFMMEU and Mr Raspudic had contravened section 346 (adverse action) and section 348 (coercion) of the Fair Work Act. Mr Travers had contravened section 348 of the Fair Work Act. The Court imposed penalties totalling $123,500 against the CFMMEU, Mr Raspudic and Mr Travers.

The Court ordered that the CFMMEU officials must personally pay their penalties and ordered them not to seek or accept any financial assistance from the CFMMEU.

This matter is currently under appeal.

Penalties

Respondents

Penalty

Mario Raspudic

$7,500

Mark Travers

$6,000

CFMMEU

$110,000

Total

$123,500

Judicial comments

Justice Snaden said:

I regard the Union’s conduct – viewing it, as I do, against the backdrop of the Union’s appalling history of statutory contravention – as very much of the gravest, most serious kind. As the Union has been told time and time again, “no ticket, no start” is a grotesque relic of a long-bygone era that has no place in Australia’s modern industrial relations landscape.

In the Union’s case, that history is nothing short of astounding. Since 2003, it has been found, by this court and others, to have contravened industrial laws more than 160 times.

The Union has paid a significant price over a long period for having intimidated or coerced others into complying with its demands. That it would genuflect toward those same thuggish instincts in spite of that history – even when it believed that it had the law on its side – beggars belief.

If ever there were an industry in which special or innovative measures to ensure compliance with industrial laws were warranted, it is the construction industry. In the absence of regulatory change aimed at addressing the Union’s apparent indifference to the unlawfulness committed in its name, the only obvious way to effect a change of heart on its part is to focus upon those at the proverbial coalface.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No. 2) [2020] FCA 202

Facts

The ABCC commenced proceedings against the CFMMEU and its senior official Alex Tadic for abusing a Victorian WorkSafe official.

The case related to the 2014 construction of the Castlemaine Police Station. Mr Tadic intimidated and abused a WorkSafe inspector while he was attempting to perform his duties investigating the health and safety of workers. Before and during his inspection, the inspector told Mr Tadic that he should limit any questions and comments until the end of the visit. Mr Tadic did not comply with these requests.

The Court found that during the inspection, Mr Tadic ‘expressed his dissatisfaction [with the inspector] directly and forcefully … In doing so he used swear words liberally.’ Mr Tadic called the inspector the worst inspector he had ever seen, causing the inspector to be to be disconcerted and concerned about his reputation. Mr Tadic also told the inspector in a raised voice that he was ‘pathetic’, and said, ‘Are you applying for a job with the builder?’ As Mr Tadic left, in the presence of workers, he said to the inspector, ‘This is not over.’

Decision

The ABCC successfully appealed an earlier Federal Court decision dismissing its case against Mr Tadic and the CFMMEU. On 12 February 2018, the Full Court of the Federal Court upheld the ABCC’s appeal and found that Mr Tadic had acted in an improper manner in contravention of section 500 (right of entry) of the Fair Work Act.

On 27 February 2020, Justice Anastassiou found that the CFMMEU had contravened section 500 of the Fair Work Act by reason of Mr Tadic’s conduct. The CFMMEU was penalised $51,000 – 100 per cent of the maximum available penalty. Mr Tadic was penalised $8,500 – 83 per cent of the maximum available penalty.

This matter is currently under appeal.

Penalties

Respondents

Penalty

Alex Tadic

$8,500

CFMMEU

$51,000

Total

$59,500

Judicial comments

Justice Anastassiou said:

The permit Mr Tadic had to enter the site was not a licence to bully, intimidate or threaten [the WorkSafe inspector], or anyone else for that matter …

In my view Mr Tadic abused that power by his conduct towards [the WorkSafe inspector]. Such conduct would not be tolerated in a workplace as between employees or as between an employer and employee.

Mr Tadic’s behaviour, by any measure, amounted to bullying and intimidation.

Intimidating and abusive behaviour by a Union official permitted to enter a site for the vital purpose of protecting the health and safety of workers on the site must be condemned in the strongest terms.

In relation to the CFMMEU’s recidivist behaviour, Justice Anastassiou stated:

I have no wish to add my voice to the chorus of condemnation of the Union’s systematic unlawfulness, for there is nothing of substance to add to what has already been said repeatedly.

Indeed the Union’s unabated recidivism is reason to infer that the more often condemnation to the same effect is repeated with no apparent deterrent effect, the more emboldened the Union may become in its defiance.

Australian Building and Construction Commissioner v Hynes & Anor [2019] FCCA 3145

Facts

The ABCC commenced proceedings against the CFMMEU and its official Blake Hynes for acting in an aggressive manner and abusing the general manager of a subcontractor at the Logan Enhancement Project.

Mr Hynes admitted that while exercising right of entry at the $512 million project south of Brisbane in August 2018, he approached the general manager and yelled, ‘You f…ing, dog, c..t’. As the general manager continued towards a parking area, Mr Hynes continued to shout at him while acting in an aggressive manner and at one point crossed his path.

Decision

On 1 November 2019, the Federal Circuit Court found that Mr Hynes and the CFMMEU had each contravened section 500 (right of entry) of the Fair Work Act. Judge Jarrett imposed penalties totalling penalties $39,050 against the CFMMEU and its official.

Penalties

Respondents

Penalty

Blake Hynes

$4,400

CFMMEU

$34,650

Total

$39,050

Judicial comments

Judge Jarrett said:

The conduct by Mr Hynes was unprovoked.

The words he used were objectively offensive. They were unprovoked and aggressive.

Mr Hynes’s conduct was … antithetical to the rights of entry regime established under the Fair Work Act and was a gross abuse of the entitlements given to Mr Hynes by his entry permit.

The CFMMEU is a large organisation with significant financial resources which exhibits an ongoing willingness to contravene the Fair Work Act ... Its unending recidivism calls for a penalty at the higher end of the range of penalties appropriate for this contravention.

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893

Facts

The ABCC commenced proceedings against CoreStaff WA Pty Ltd (CoreStaff) and Gumala Enterprises Pty Ltd (Gumala) relating to alleged discrimination against a prospective employee on the basis of his age.

CoreStaff provides labour hire and permanent recruitment services to clients across a range of industry sectors. Gumala provides civil construction, transport and mining related services to clients in the Pilbara Region of Western Australia.

In October 2018, CoreStaff conveyed to Gumala an application it received from a prospective employee for a position as a grader operator in the Pilbara. Had the worker been successful in his application, he would have been employed by CoreStaff and his services would have been made available to Gumala. The ABCC alleged that CoreStaff refused to employ the worker because he was 70 years of age and so contravened section 351 of the Fair Work Act. It was alleged that Gumala advised, encouraged or incited CoreStaff in its conduct.

Liability decision

On 26 June 2020, the Federal Court found that CoreStaff took adverse action when it refused to hire the qualified grader because of his age and therefore, contravened section 351 (discrimination) of the Fair Work Act.

The Court’s ruling only related to the liability of CoreStaff, as Gumala made admissions as to liability.

In October 2018, the worker’s application was forwarded by the CoreStaff Area Manager to Gumala. On 25 October 2018, a Gumala HR adviser emailed the CoreStaff Area Manager stating:

‘I have some feedback on the grader ops.

… we had his details already, he applied directly with us. He has all the tickets we are looking for, however he [sic] age is a concern – 70 years old.’

The CoreStaff Area Manager replied:

‘Wow didn’t know that, however I would have found out eventually … yes will certainly keep looking.’

Later that day, the CoreStaff Area Manager emailed the worker stating:

‘Sorry … no joy with the role at Gumala due to your age mate.’

On 3 July 2020, the Court made declarations that on 25 October 2018 CoreStaff and Gumala had each contravened section 351 of the Fair Work Act.

This proceeding is ongoing. The Federal Court has listed the matter for a penalty hearing.

Footnotes

  1. Code for the Tendering and Performance of Building Work 2016 (Building Code 2016) and Building Code 2013.
  2. Two proceedings are currently subject to appeal.