Go to top of page

Appendix B: BCIIP Act Annual Report

Introduction

Section 20 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) requires the Australian Building and Construction Commissioner to prepare and give to the Minister a report on the performance of the Commissioner’s functions and the exercise of the Commissioner’s powers during the financial year (BCIIP Act Annual Report).

The BCIIP Act Annual Report must include details of the matters set out in sections 20(2) and 20(3) of the BCIIP Act.

This annual report sets out the activities undertaken by the ABCC in the 2019–20 financial year, i.e. 1 July 2019 to 30 June 2020 (the reporting period).

Under the BCIIP Act, the ABCC must also produce a quarterly report for each three-month period beginning 1 July, 1 October, 1 January and 1 April. Each of these quarterly reports must be prepared and given to the Minister as soon as practicable after the end of each quarter.

In order to facilitate the prompt presentation of these reports to the Minister, the ABCC begins preparing the reports immediately after the end of each reporting period. This means that, on occasion, additional data is recorded on activities undertaken in a reporting period after that quarter’s report has been prepared.

Accordingly, the figures in this annual report may be different from those in the quarterly reports.

Methodology

The internal cost allocated to investigations and court proceedings in this report are derived from a tailored, activity-based costing module within the ABCC’s case management system.

External legal costs are obtained from the ABCC’s financial management system and have been calculated using standard accrual accounting practices. This is a change in methodology from reports tabled in 2018-19, which were calculated based on the period for which the services were provided.

Performance of functions and exercise of powers

Matters investigated

In the reporting period, the ABCC had 224 open investigations.

Table B1 shows the breakdown of these open investigations by the main allegation being investigated. Table B2 shows the approximate internal cost of each of these investigations.

Table B1: Investigations open during the reporting period

Main allegation

Number of investigations

Right of entry

65

Wages and entitlements

58

Coercion

33

Unlawful industrial action

26

Freedom of association

25

Sham contracting

8

Unlawful picketing

4

Non-compliance with notices

3

Misrepresentation of workplace rights

1

Discrimination

1

Total

224

Table B2: Approximate internal cost of open investigations in the reporting period

Ref

Main allegation

Internal cost

31833

Wages and entitlements

$6,883

34575

Sham contracting

$865

35007

Freedom of association

$3,573

35059

Wages and entitlements

$7,389

35083

Right of entry

$117

35100

Right of entry

$10,637

35407

Right of entry

$0

35410

Right of entry

$563

35718

Right of entry

$802

35736

Right of entry

$1,092

35913

Right of entry

$5,770

36032

Coercion

$12,173

36254

Right of entry

$867

36293

Right of entry

$693

36320

Right of entry

$14,201

36342

Wages and entitlements

$5,333

36695

Sham contracting

$354

37076

Wages and entitlements

$659

37247

Unlawful industrial action

$10,534

37267

Unlawful industrial action

$1,482

37338

Wages and entitlements

$1,826

37461

Right of entry

$5,927

37623

Unlawful picketing

$15,101

38016

Coercion

$6,027

38108

Coercion

$7,038

38148

Right of entry

$12

38834

Wages and entitlements

$2,377

38986

Right of entry

$8,296

39131

Wages and entitlements

$22,364

39293

Wages and entitlements

$254

39368

Coercion

$220

39471

Freedom of association

$6,605

39772

Unlawful industrial action

$778

39821

Sham contracting

$2,186

39867

Unlawful industrial action

$172

39951

Coercion

$6,123

40125

Right of entry

$10,403

40365

Coercion

$5,075

40448

Right of entry

$7,178

40487

Freedom of association

$6,733

40496

Sham contracting

$7,380

40625

Unlawful industrial action

$1,240

40765

Coercion

$168

40818

Right of entry

$7,058

40847

Unlawful industrial action

$2,713

40904

Right of entry

$8,607

41026

Non-compliance with notices

$2,047

41097

Wages and entitlements

$7,871

41235

Freedom of association

$22,361

41329

Coercion

$887

41436

Wages and entitlements

$23,624

41454

Coercion

$4,326

41506

Unlawful industrial action

$15,142

41571

Unlawful industrial action

$370

41591

Right of entry

$31,235

41599

Coercion

$4,783

41656

Right of entry

$26,322

41671

Right of entry

$4,566

41759

Right of entry

$2,194

41776

Coercion

$11,974

41807

Coercion

$545

41846

Unlawful industrial action

$595

42010

Wages and entitlements

$16,031

42146

Unlawful picketing

$17,321

42148

Right of entry

$1,047

42176

Right of entry

$14,873

42179

Wages and entitlements

$2,440

42286

Unlawful industrial action

$1,922

42296

Coercion

$1,227

42308

Right of entry

$851

42479

Wages and entitlements

$1,158

42485

Freedom of association

$6,782

42491

Unlawful industrial action

$2,425

42507

Wages and entitlements

$1,489

42558

Wages and entitlements

$1,899

42559

Unlawful industrial action

$3,394

42568

Right of entry

$1,467

42572

Freedom of association

$4,001

42617

Non-compliance with notices

$1,230

42652

Right of entry

$5,145

42660

Unlawful industrial action

$24,713

42669

Right of entry

$2,284

42701

Right of entry

$7,237

42757

Coercion

$10,266

42789

Non-compliance with notices

$2,315

42823

Right of entry

$7,132

42873

Wages and entitlements

$2,862

42908

Wages and entitlements

$2,859

42943

Coercion

$1,495

42944

Right of entry

$25,168

42980

Wages and entitlements

$26,921

43009

Wages and entitlements

$1,380

43068

Freedom of association

$842

43100

Unlawful industrial action

$15,835

43148

Right of entry

$565

43158

Freedom of association

$4,683

43203

Wages and entitlements

$859

43232

Wages and entitlements

$2,191

43250

Right of entry

$12,186

43298

Freedom of association

$8,306

43301

Right of entry

$4,870

43321

Freedom of association

$3,182

43376

Wages and entitlements

$1,098

43392

Coercion

$10,766

43405

Coercion

$6,952

43463

Freedom of association

$22,199

43557

Unlawful industrial action

$1,494

43607

Coercion

$37,578

43608

Sham contracting

$1,692

43637

Sham contracting

$4,148

43677

Unlawful industrial action

$2,253

43690

Right of entry

$1,214

43786

Freedom of association

$5,049

43802

Right of entry

$338

43856

Wages and entitlements

$1,844

43861

Coercion

$447

43909

Freedom of association

$2,466

43951

Wages and entitlements

$3,499

43961

Discrimination

$1,512

43968

Coercion

$5,231

43991

Wages and entitlements

$1,101

44024

Unlawful picketing

$20,186

44027

Sham contracting

$867

44094

Right of entry

$4,222

44137

Right of entry

$11,452

44180

Coercion

$1,899

44276

Freedom of association

$1,760

44311

Wages and entitlements

$967

44460

Coercion

$14,884

44510

Unlawful industrial action

$3,669

44606

Wages and entitlements

$817

44731

Unlawful industrial action

$24,854

44754

Wages and entitlements

$1,987

44815

Sham contracting

$2,609

44819

Freedom of association

$16,249

44828

Right of entry

$20,760

44890

Right of entry

$7,659

45034

Wages and entitlements

$2,263

45132

Wages and entitlements

$543

45134

Wages and entitlements

$2,756

45138

Right of entry

$1,866

45181

Wages and entitlements

$648

45224

Wages and entitlements

$4,127

45240

Wages and entitlements

$1,773

45283

Right of entry

$1,552

45297

Wages and entitlements

$1,001

45301

Unlawful industrial action

$8,429

45324

Right of entry

$618

45338

Unlawful industrial action

$10,613

45565

Right of entry

$8,708

45656

Freedom of association

$4,020

45668

Wages and entitlements

$2,146

45681

Wages and entitlements

$4,346

45820

Freedom of association

$3,476

45851

Right of entry

$14,475

45868

Wages and entitlements

$515

45935

Freedom of association

$4,534

45991

Wages and entitlements

$2,854

45992

Wages and entitlements

$1,383

45998

Wages and entitlements

$1,413

46036

Coercion

$2,364

46039

Freedom of association

$1,976

46041

Right of entry

$1,375

46047

Wages and entitlements

$3,649

46052

Unlawful industrial action

$2,824

46056

Freedom of association

$2,486

46068

Coercion

$16,202

46104

Unlawful industrial action

$10,634

46145

Wages and entitlements

$1,089

46165

Right of entry

$4,271

46205

Coercion

$6,958

46207

Unlawful picketing

$9,350

46278

Misrepresentation of workplace rights

$4,002

46282

Wages and entitlements

$2,514

46283

Wages and entitlements

$563

46290

Right of entry

$951

46357

Wages and entitlements

$2,046

46452

Wages and entitlements

$958

46509

Wages and entitlements

$696

46510

Wages and entitlements

$886

46533

Right of entry

$3,552

46606

Right of entry

$2,057

46636

Wages and entitlements

$1,516

46656

Coercion

$8,648

46672

Right of entry

$5,272

46730

Unlawful industrial action

$9,399

46778

Right of entry

$1,591

46786

Unlawful industrial action

$4,898

46788

Coercion

$3,589

46797

Right of entry

$6,785

46799

Right of entry

$9,074

46817

Wages and entitlements

$2,290

46820

Freedom of association

$2,694

46835

Right of entry

$2,391

46858

Right of entry

$3,781

46861

Right of entry

$14,239

46879

Wages and entitlements

$2,317

46891

Right of entry

$2,871

46922

Freedom of association

$9,767

46935

Right of entry

$3,649

47059

Wages and entitlements

$1,988

47183

Coercion

$12,457

47185

Unlawful industrial action

$4,585

47230

Freedom of association

$3,346

47243

Right of entry

$6,648

47252

Right of entry

$8,541

47312

Right of entry

$7,139

47421

Wages and entitlements

$475

47449

Wages and entitlements

$703

47526

Coercion

$1,874

47549

Coercion

$2,518

47550

Right of entry

$2,604

47579

Right of entry

$2,517

47584

Wages and entitlements

$1,276

47621

Coercion

$1,019

47624

Freedom of association

$1,454

47767

Right of entry

$738

47794

Coercion

$1,351

47810

Unlawful industrial action

$2,500

47827

Coercion

$192

47849

Wages and entitlements

$534

47891

Wages and entitlements

$170

47950

Freedom of association

$1,615

48065

Right of entry

$797

Assistance and advice

The ABCC provided assistance and advice by responding to 5,514 enquiries.
Table B3 shows these enquiries by main topic and the category of the enquirer.

Table B3: Details of assistance and advice provided to building industry participants in response to enquiries

Main topic

Building industry participant

Member of the public

Government

Law enforcement agency

Total

Code

2,528

152

136

1

2,817

Code assessment

952

33

13

0

998

General code information

632

48

60

0

740

Code advice

479

51

57

1

588

Security of payments

405

14

4

0

423

Notice of code breach

29

1

0

0

30

s.6B general advice

9

1

1

0

11

s.6A general advice

6

3

1

0

10

s.6B application

9

0

0

0

9

s.6A application

6

0

0

0

6

State code information

1

1

0

0

2

Workplace laws - building work

957

69

53

2

1,081

Wages and entitlements

418

28

8

0

454

Right of entry

260

17

33

0

310

Freedom of association

82

10

1

0

93

Coercion

76

8

3

1

88

Unlawful industrial action

74

1

7

1

83

Sham contracting

25

2

0

0

27

Misrepresentation of workplace rights

11

2

1

0

14

Discrimination

5

0

0

0

5

Strike pay

4

0

0

0

4

Unlawful picketing

2

1

0

0

3

Other laws

217

680

8

0

905

Agency information and activities

205

184

39

1

429

Not relevant to the building industry

24

162

2

0

188

Workplace laws – non-building work

41

53

0

0

94

Total

3,972

1,300

238

4

5,514

Building code compliance

In the reporting period, the ABCC finalised 160 audits and 171 inspections to monitor compliance with the Code for the Tendering and Performance of Building Work 2016 (Building Code 2016) and the Building Code 2013.

Table B4 shows the outcomes of all building code audits finalised. Table B5 shows the outcomes of all building code inspections finalised.

Potential issues were identified in 106 building code audits, with contractors committed to rectification in most instances.

An additional 92 building code audits were commenced but not finalised.

Table B4: Outcome of audits

Outcome of audit

Total

No issues

54

Potential issues

106

Total

160

Table B5: Outcome of inspections

Outcome of inspection

Total

No issues

101

Potential issues

70

Total

171

Matters investigated in relation to building employers

The conduct of employers was the subject of investigation in 107 matters.1

Table B6 shows the breakdown of these investigations by the main allegation being investigated. Table B7 shows the approximate internal cost of each of these investigations.

Table B6: Investigations where employers were a subject of the investigation

Main allegation

Number of investigations

Wages and entitlements

57

Freedom of association

13

Right of entry

9

Coercion

9

Sham contracting

8

Unlawful industrial action

6

Unlawful picketing

2

Misrepresentation of workplace rights

1

Discrimination

1

Non-compliance with notices

1

Total

107

Table B7: Approximate internal cost where employers were a subject of the investigation

Ref

Main allegation

Internal cost

31833

Wages and entitlements

$6,883

34575

Sham contracting

$865

35007

Freedom of association

$3,573

35059

Wages and entitlements

$7,389

36342

Wages and entitlements

$5,333

36695

Sham contracting

$354

37076

Wages and entitlements

$659

37338

Wages and entitlements

$1,826

38834

Wages and entitlements

$2,377

39131

Wages and entitlements

$22,364

39293

Wages and entitlements

$254

39471

Freedom of association

$6,605

39821

Sham contracting

$2,186

39867

Unlawful industrial action

$172

40365

Coercion

$5,075

40448

Right of entry

$7,178

40496

Sham contracting

$7,380

40765

Coercion

$168

41097

Wages and entitlements

$7,871

41235

Freedom of association

$22,361

41436

Wages and entitlements

$23,624

41807

Coercion

$545

42010

Wages and entitlements

$16,031

42146

Unlawful picketing

$17,321

42179

Wages and entitlements

$2,440

42286

Unlawful industrial action

$1,922

42308

Right of entry

$851

42479

Wages and entitlements

$1,158

42485

Freedom of association

$6,782

42491

Unlawful industrial action

$2,425

42507

Wages and entitlements

$1,489

42558

Wages and entitlements

$1,899

42559

Unlawful industrial action

$3,394

42572

Freedom of association

$4,001

42757

Coercion

$10,266

42789

Non-compliance with notices

$2,315

42873

Wages and entitlements

$2,862

42908

Wages and entitlements

$2,859

42943

Coercion

$1,495

42980

Wages and entitlements

$26,921

43009

Wages and entitlements

$1,380

43232

Wages and entitlements

$2,191

43298

Freedom of association

$8,306

43321

Freedom of association

$3,182

43376

Wages and entitlements

$1,098

43463

Freedom of association

$22,199

43607

Coercion

$37,578

43608

Sham contracting

$1,692

43637

Sham contracting

$4,148

43856

Wages and entitlements

$1,844

43861

Coercion

$447

43909

Freedom of association

$2,466

43951

Wages and entitlements

$3,499

43961

Discrimination

$1,512

43968

Coercion

$5,231

43991

Wages and entitlements

$1,101

44024

Unlawful picketing

$20,186

44027

Sham contracting

$867

44094

Right of entry

$4,222

44311

Wages and entitlements

$967

44606

Wages and entitlements

$817

44754

Wages and entitlements

$1,987

44815

Sham contracting

$2,609

45034

Wages and entitlements

$2,263

45132

Wages and entitlements

$543

45134

Wages and entitlements

$2,756

45138

Right of entry

$1,866

45181

Wages and entitlements

$648

45224

Wages and entitlements

$4,127

45240

Wages and entitlements

$1,773

45283

Right of entry

$1,552

45297

Wages and entitlements

$1,001

45324

Right of entry

$618

45656

Freedom of association

$4,020

45668

Wages and entitlements

$2,146

45681

Wages and entitlements

$4,346

45820

Freedom of association

$3,476

45868

Wages and entitlements

$515

45991

Wages and entitlements

$2,854

45992

Wages and entitlements

$1,383

45998

Wages and entitlements

$1,413

46039

Freedom of association

$1,976

46047

Wages and entitlements

$3,649

46104

Unlawful industrial action

$10,634

46145

Wages and entitlements

$1,089

46278

Misrepresentation of workplace rights

$4,002

46282

Wages and entitlements

$2,514

46283

Wages and entitlements

$563

46357

Wages and entitlements

$2,046

46452

Wages and entitlements

$958

46509

Wages and entitlements

$696

46510

Wages and entitlements

$886

46636

Wages and entitlements

$1,516

46730

Unlawful industrial action

$9,399

46817

Wages and entitlements

$2,290

46835

Right of entry

$2,391

46879

Wages and entitlements

$2,317

46922

Freedom of association

$9,767

46935

Right of entry

$3,649

47059

Wages and entitlements

$1,988

47421

Wages and entitlements

$475

47449

Wages and entitlements

$703

47526

Coercion

$1,874

47584

Wages and entitlements

$1,276

47849

Wages and entitlements

$534

47891

Wages and entitlements

$170

48065

Right of entry

$797

Employers were a complainant in 130 open investigations. Table B8 shows the breakdown of those investigations by the main allegation being investigated. Table B9 shows the approximate internal cost of each investigation.

Table B8: Investigations where employers were a complainant in the investigation

Main allegation

Number of investigations

Right of entry

52

Coercion

24

Unlawful industrial action

22

Freedom of association

17

Wages and entitlements

7

Unlawful picketing

3

Sham contracting

3

Non-compliance with notices

1

Misrepresentation of workplace rights

1

Total

130

Table B9: Approximate internal cost where employers were a complainant in the investigation

Ref

Main allegation

Internal cost

35083

Right of entry

$117

35100

Right of entry

$10,637

35407

Right of entry

$0

35410

Right of entry

$563

35718

Right of entry

$802

35736

Right of entry

$1,092

35913

Right of entry

$5,770

36254

Right of entry

$867

36293

Right of entry

$693

36320

Right of entry

$14,201

37461

Right of entry

$5,927

38016

Coercion

$6,027

38108

Coercion

$7,038

38148

Right of entry

$12

38986

Right of entry

$8,296

39471

Freedom of association

$6,605

39772

Unlawful industrial action

$778

39821

Sham contracting

$2,186

39867

Unlawful industrial action

$172

39951

Coercion

$6,123

40125

Right of entry

$10,403

40365

Coercion

$5,075

40487

Freedom of association

$6,733

40625

Unlawful industrial action

$1,240

40765

Coercion

$168

40818

Right of entry

$7,058

40847

Unlawful industrial action

$2,713

40904

Right of entry

$8,607

41026

Non-compliance with notices

$2,047

41235

Freedom of association

$22,361

41506

Unlawful industrial action

$15,142

41571

Unlawful industrial action

$370

41591

Right of entry

$31,235

41599

Coercion

$4,783

41671

Right of entry

$4,566

41759

Right of entry

$2,194

41776

Coercion

$11,974

41807

Coercion

$545

41846

Unlawful industrial action

$595

42146

Unlawful picketing

$17,321

42148

Right of entry

$1,047

42176

Right of entry

$14,873

42286

Unlawful industrial action

$1,922

42296

Coercion

$1,227

42308

Right of entry

$851

42485

Freedom of association

$6,782

42491

Unlawful industrial action

$2,425

42559

Unlawful industrial action

$3,394

42568

Right of entry

$1,467

42572

Freedom of association

$4,001

42660

Unlawful industrial action

$24,713

42669

Right of entry

$2,284

42701

Right of entry

$7,237

42823

Right of entry

$7,132

42943

Coercion

$1,495

42944

Right of entry

$25,168

43148

Right of entry

$565

43158

Freedom of association

$4,683

43203

Wages and entitlements

$859

43250

Right of entry

$12,186

43298

Freedom of association

$8,306

43301

Right of entry

$4,870

43321

Freedom of association

$3,182

43376

Wages and entitlements

$1,098

43392

Coercion

$10,766

43405

Coercion

$6,952

43463

Freedom of association

$22,199

43557

Unlawful industrial action

$1,494

43607

Coercion

$37,578

43637

Sham contracting

$4,148

43677

Unlawful industrial action

$2,253

43690

Right of entry

$1,214

43786

Freedom of association

$5,049

43802

Right of entry

$338

43861

Coercion

$447

43909

Freedom of association

$2,466

43968

Coercion

$5,231

44024

Unlawful picketing

$20,186

44027

Sham contracting

$867

44137

Right of entry

$11,452

44311

Wages and entitlements

$967

44460

Coercion

$14,884

44510

Unlawful industrial action

$3,669

44606

Wages and entitlements

$817

44819

Freedom of association

$16,249

44828

Right of entry

$20,760

44890

Right of entry

$7,659

45240

Wages and entitlements

$1,773

45301

Unlawful industrial action

$8,429

45324

Right of entry

$618

45338

Unlawful industrial action

$10,613

45565

Right of entry

$8,708

45656

Freedom of association

$4,020

45851

Right of entry

$14,475

45935

Freedom of association

$4,534

46036

Coercion

$2,364

46052

Unlawful industrial action

$2,824

46056

Freedom of association

$2,486

46068

Coercion

$16,202

46104

Unlawful industrial action

$10,634

46165

Right of entry

$4,271

46207

Unlawful picketing

$9,350

46278

Misrepresentation of workplace rights

$4,002

46290

Right of entry

$951

46357

Wages and entitlements

$2,046

46533

Right of entry

$3,552

46656

Coercion

$8,648

46730

Unlawful industrial action

$9,399

46786

Unlawful industrial action

$4,898

46788

Coercion

$3,589

46797

Right of entry

$6,785

46835

Right of entry

$2,391

46858

Right of entry

$3,781

46861

Right of entry

$14,239

46891

Right of entry

$2,871

46922

Freedom of association

$9,767

47183

Coercion

$12,457

47185

Unlawful industrial action

$4,585

47243

Right of entry

$6,648

47252

Right of entry

$8,541

47312

Right of entry

$7,139

47449

Wages and entitlements

$703

47550

Right of entry

$2,604

47579

Right of entry

$2,517

47621

Coercion

$1,019

47767

Right of entry

$738

47794

Coercion

$1,351

47810

Unlawful industrial action

$2,500

47827

Coercion

$192

47950

Freedom of association

$1,615

Proceedings commenced

In the reporting period, the ABCC commenced 14 court proceedings and intervened in one court proceeding.

Table B10 provides the approximate internal legal cost for each of the 14 court proceedings and the category of the respondents.

Table B11 provides the approximate internal legal cost for the intervened court proceeding.

Table B10: Proceedings commenced by category of building industry participant and approximate internal legal cost

Case

Case name

Category of respondent

Number of respondents

Internal legal cost

BRG344/2020

Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor (The Hedge Project)

Building association

1

$5,770

Building association representative

1

BRG365/2020

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Boggo Road Site)

Building association

1

$14,239

Building association representative

3

BRG864/2019

Australian Building and Construction Commissioner v Jason Bray & Ors

Employee

64

$10,534

NSD1792/2019

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (WGC Crane Group)

Building association

1

$7,038

Building association representative

7

NSD2057/2019

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Kiama Aged Care Centre of Excellence)

Building association

1

$8,296

Building association representative

3

NSD2137/2019

Australian Building and Construction Commissioner v Brendan Holl & Ors (Wheeler Cranes)

Building association

1

$6,027

Building association representative

3

QUD194/2020

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Logan Enhancement Project)

Building association

1

$10,637

Building association representative

6

QUD614/2019

Australian Building and Construction Commissioner v James Fissenden & Anor (Sunshine Plaza)

Building association

1

$6,733

Building association representative

1

QUD656/2019

Australian Building and Construction Commissioner v Te Aranui Albert & Ors (CR2SM)

Building association

1

$14,201

Building association representative

3

SAD60/2020

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Adelaide Airport Terminal)

Building association

1

$31,235

Building association representative

9

SYG1018/2020

Australian Building and Construction Commissioner v Simon Gutierrez & Ors (WestConnex (New M5))

Building association

1

$10,403

Building association representative

2

SYG1031/2020*

Australian Building and Construction Commissioner v Dean Rielly & Ors (Coffs Harbour Pre-cast Facility)

Building association

1

$5,075

Building association representative

2

TAD15/2020

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Elizabeth Street)

Building association

1

$26,322

Building association representative

2

WAD41/2020

Australian Building and Construction Commissioner v Tyrone Construction Services Pty Ltd & Anor (Skypark)

Employer (organisation)

1

$17,321

Employer (individual)

1

* Previously reported as NSD21976/2019 in Q2.

Table B11: ABCC interventions and approximate internal legal cost

Case number

Case name

Jurisdiction

Internal legal cost

VID429/2019

Construction, Forestry, Maritime, Mining and Energy Union v McConnell Dowell Constructors (Aust) Pty Ltd & Ors

Federal Court

$1,162

The ABCC filed an appeal in one proceeding. Table B12 shows the approximate internal legal cost for this proceeding.

Table B12: ABCC appeals

Case number

Case name

Jurisdiction

Internal legal cost

WAD383/2019

Australian Building and Construction Commissioner v Walter Molina & Anor (Perth Stadium)

Full Court of the Federal Court

$6,700

Five appeals were filed against the ABCC. Table B13 shows the approximate internal legal cost for this proceeding.

Table B13: Appeals filed against the ABCC

Case number

Case name

Jurisdiction

Internal legal cost

VID1220/2019

Construction, Forestry, Maritime, Mining and Energy Union & Anor v Australian Building and Construction Commissioner (Monash Peninsula)

Full Court of the Federal Court

$9,727

QUD712/2019

Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor (Bruce Highway Caloundra to Sunshine Upgrade Case)

Full Court of the Federal Court

$2,171

VID1341/2019

Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner (Bay Street Case)

Full Court of the Federal Court

$9,356

VID431/2020

Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner (College Crescent Case)

Full Court of the Federal Court

$335

VID233/2020

Tadic & Anor v Australian Building and Construction Commissioner (Castlemaine Police Station Case No. 2)

Full Court of the Federal Court

$3,509

The ABCC intervened in 10 proceedings in the Fair Work Commission. Table B14 provides the details of each proceeding and approximate internal legal cost.

Table B14: ABCC interventions in Fair Work Commission proceedings and internal legal cost

Case number

Type of proceedings

Name

Internal legal cost

C2019/7475

Appeal of decision on application for entry permit

Paul McAleer

$3,375

RE2019/1025

Application for entry permit

Joshua Bolitho

$1,339

RE2019/1074

Application for entry permit

Zachary Smith

$1,472

RE2019/1101

Application for entry permit

Scott Vink

$1,805

RE2019/1102

Application to revoke or suspend entry permit

Blake Hynes

$8,017

RE2019/1200

Application for entry permit

Christopher Cain

$1,472

RE2019/859

Application for entry permit

Michael Smith

$2,677

RE2019/940

Application for entry permit

Darren Greenfield

$2,480

RE2020/207 and RE2020/214

Application for entry permit

Michael Greenfield

$3,346

RE2020/65*

Application for entry permit

Roland Cummins

$611

* Intervention filed in Q3. Not previously reported.

An appeal was commenced in a matter in which the ABCC had earlier intervened in the Fair Work Commission. Table B15 provides the details of this proceeding and approximate internal legal cost.

Table B15: ABCC intervention that is subject to an appeal and internal legal cost in the Fair Work Commission

Case number

Type of proceedings

Name

Internal legal cost

C2020/461

Appeal of decision to revoke or suspend entry permit

Blake Hynes

$5,304

Number and cost of proceedings finalised

In the reporting period, the ABCC finalised its involvement in 22 court proceedings. Table B16 shows the internal and external legal cost for each proceeding. The costs were incurred after 2 December 2016.

Table B16: Proceedings finalised and total legal cost

Case number

Case name

External legal cost

Internal legal cost

VID123/2019

Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers’ Union) & Ors [2020] FCA 404 (NewCold)

$69,306

$41,131

PEG502/2018

Australian Building and Construction Commissioner v Big Li Ceiling Pty Ltd & Anor

$58,458

$19,647

VID955/2015

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

$398,689

$18,415

VID494/2016

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

$144,518

$14,445

VID458/2016

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Aldi Altona North Case) (No. 2) [2019] FCA 1667

$183,878

$17,350

VID167/2016

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Bay Street Case) (No. 2) [2019] FCA 1859

$246,253

$16,671

SYG332/2016

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (No. 7) [2020] FCCA 351 (DMG)

$1,103,283

$83,544

NSD474/2019

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] FCA 549 (Mezzo Stage 2)

$195,201

$31,507

VID515/2018

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

$84,322

$36,483

SYG1132/2015

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

$335,756

$5,971

VID523/2014

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Syme Library Case) (No. 2) [2019] FCA 1555

$580,579

$9,834

VID881/2017

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

$183,063

$27,176

SYG3426/2014

Australian Building and Construction Commissioner v Luke Collier & Ors [2019] FCCA 650 (Barangaroo Headland Park)

$130,272

$6,840

BRG773/2015

Australian Building and Construction Commissioner v Devine Constructions Pty Ltd & Ors [2019] FCCA 2712

$272,098

$2,332

BRG151/2016

Australian Building and Construction Commissioner v Forest Meiers Construction Pty Ltd & Anor (No. 2) [2019] FCCA 2663

$19,123

$2,611

TAD17/2019

Australian Building and Construction Commissioner v Richard Hassett & Anor [2020] FCA 498 (Castle Hill Wind Farm)

$20,317

$20,112

BRG34/2019

Australian Building and Construction Commissioner v Blake Hynes & Anor [2019] FCCA 3145 (Logan Enhancement Project)

$85,925

$13,556

SAD39/2016

Australian Building and Construction Commissioner v Michael McDermott & Ors (No. 2) [2018] FCA 1611 (South Terrace)

$293,929

$18,748

WAD393/2017

Australian Building and Construction Commissioner v Walter Molina & Anor (No. 2) [2019] FCA 1014 (Perth Stadium)

$204,998

$34,229

BRG1165/2014

Australian Building and Construction Commissioner v Michael Myles & Ors (No. 2) [2019] FCCA 1932 (John Holland No. 3)

$227,694

$5,450

VID229/2019

Australian Building and Construction Commissioner v Kevin Pattinson & Anor [2019] FCA 1654 (Monash Peninsula)

$42,326

$14,283

MLG3942/2019

Australian Building and Construction Commissioner v SWAT Building Systems Pty Ltd (In Liq) & Anor [2020] FCCA 1360

$136,958

$34,321

Four appeal decisions were delivered that relate to previously finalised matters. Table B17 shows the internal and external legal cost for these appeal decisions.

Table B17: Appeal decisions related to previously finalised matters and legal cost

Case number

Case name

External legal cost

Internal legal cost

B26/2019

Australian Building and Construction Commissioner v. Construction, Forestry, Maritime, Mining and Energy Union & Ors [2019] HCASL 259 (Nine Brisbane Sites)

$139,786

$1,929

WAD383/2019

Australian Building and Construction Commissioner v Walter Molina & Anor [2020] FCAFC 97 (Perth Stadium)

$73,371

$6,700

TAD26/2019

Construction, Forestry, Maritime, Mining and Energy Union & Anor v Australian Building and Construction Commissioner [2019] FCAFC 201 (Living City)

$53,999

$10,836

NSD2247/2018

Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9

$24,103

$2,343

The ABCC finalised its involvement in 11 proceedings in the Fair Work Commission. Table B18 shows the total external and internal legal cost for each proceeding. The costs listed were incurred after 2 December 2016.

Table B18: Fair Work Commission proceedings in which the ABCC finalised its involvement and total legal cost

Case number

Type

Name

External legal cost

Internal legal cost

C2019/7475

Appeal of decision on application for entry permit

Paul McAleer

$13,095

$3,375

RE2018/1350

Application for entry permit

Douglas Heath

$19,304

$1,767

RE2018/1387

Application for entry permit

Daniel Cain

$19,304

$1,931

RE2018/1439

Application to revoke or suspend entry permit

Kenneth Miller

$0

$149

RE2019/1101

Application for entry permit

Scott Vink

$0

$1,805

RE2019/1102

Application to revoke or suspend entry permit

Blake Hynes

$6,625

$8,027

RE2019/1200

Application for entry permit

Christopher Cain

$0

$1,472

RE2019/361

Application for entry permit

Mikel Dacko

$0

$1,071

RE2019/374

Application for entry permit

Mark Travers

$0

$1,038

RE2019/859

Application for entry permit

Michael Smith

$0

$2,677

RE2019/940

Application for entry permit

Darren Greenfield

$2,611

$2,480

The ABCC finalised its involvement in an appeal commenced in a matter in which the ABCC had earlier intervened in the Fair Work Commission. Table B19 shows the internal and external legal cost for these appeal decisions.

Table B19: Appeal against a proceeding in the Fair Work Commission which the ABCC finalised its involvement and total legal cost

Case number

Type of proceedings

Name

External legal cost

Internal legal cost

C2020/461

Appeal of decision to revoke or suspend entry permit

Blake Hynes

$0

$5,304

The ABCC finalised its involvement in three proceedings. Table B20 shows the internal and external legal cost for these appeal decisions.

Table B20: Interventions finalised

Case number

Case name

External legal cost

Internal legal cost

PEG480/2018

Construction, Forestry, Maritime, Mining and Energy Union v Doric Contractors Pty Ltd & Ors

$210,262

$8,589

ACD79/2016

Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd & Ors [2019] FCA 1070

$46,583

$1,441

QUD508/2018

Andrew Ramsay & Anor v Susan Menso & Ors [2019] FCA 1273

$4,649

$7,902

Legal expenses incurred as a result of enforcement action

In the reporting period, the ABCC incurred $4,325,230 in external legal expenses as a result of enforcement action undertaken in 99 matters.2

Details of industry conditions

In the reporting period, the ABCC received 318 complaints. Table B21 shows the breakdown of complaints received by the main topic discussed.

Table B21: Complaints received by main topic

Main topic of complaint

Total

Wages and entitlements

69

Security of payments

68

Right of entry

62

Coercion

44

Freedom of association

41

Unlawful industrial action

19

Sham contracting

8

Misrepresentation of workplace rights

4

Notice of code breach

2

Code advice

1

Total

318

Compliance of products used in building work

Pursuant to section 25A(1)(b) of the Building Code 2016, a funding entity must ensure that, before a contract is entered into in respect of Commonwealth funded building work, the preferred tenderer provides information on whether the building materials to be used to undertake the building work comply with relevant Australian standards published by Standards Australia. Further, under section 26(8) of the Building Code 2016, a funding entity must only enter into a contract in respect of building work with a code covered entity that only uses products in building work that comply with the relevant Australian standards published by, or on behalf of, Standards Australia. During the reporting period, the ABCC identified one instance of non-compliance with section 26(8) of the Building Code 2016.

To help achieve compliance with these requirements during the reporting period, the ABCC ensured that government agencies and contractors had in place the appropriate model tender and contract clauses to implement the requirements, including through the supply chain. Funding entities provided notification forms about new projects to show that relevant clauses were included in contracts.

The ABCC proactively monitored compliance by funding entities with section 26(8) of the Building Code 2016. In the reporting period, the ABCC assessed funding entity compliance in four compliance activities, comprising one desktop audit and three field audits and inspections. These audits and inspections identified one instance where a funding entity was not compliant with the contractual requirement to use Australian Standard building products. The funding entity voluntarily rectified their non-compliance with section 26(8) of the Building Code 2016.

The ABCC’s model clauses for contractors enable them to pass their contractual requirement to use Australian Standard building products through the supply chain. The ABCC reviewed three head contractors for the use of the appropriate clause in their subcontracts and identified that all three had used the appropriate clause.

Examination notices issued

In the reporting period, the AAT issued 14 examination notices on the application of the ABC Commissioner. Table B22 shows the breakdown of examinations by main allegation.

Table B22: Examination notices issued

Main topic

Notices issued

Coercion

1

Freedom of association

3

Right of entry

5

Unlawful industrial action

5

Total

14

Additional reporting

Directions given by Minister

During the reporting period, no directions were issued by the Minister to the Australian Building and Construction Commissioner under sections 17 or 18 of the BCIIP Act.

Delegations made by the Commissioner

On 20 September 2019, the Australian Building and Construction Commissioner made the following delegations:

I, Stephen John McBurney, Australian Building and Construction Commissioner, appointed under section 21 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act), delegate my powers and functions under subsections 61E(3) and (4) and section 61F of the BCIIP Act to Matthew James Kelleher, Deputy ABC Commissioner Legal. This delegation is made pursuant to section 19 of the BCIIP Act.

I, Stephen John McBurney, Australian Building and Construction Commissioner appointed under section 21 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act), acting under subsection 19(1) of the BCIIP Act delegate to each person from time to time holding, occupying or performing the duties of the positions identified in Column B of the following table, all the corresponding powers and/or functions specified in column A of the table.

No.

Function and/or power

Delegations

Column A

Column B

Function of the ABC Commissioner

1

Promote the main object of the BCIIP Act in accordance with subsection 16(1)(aa) of the BCIIP Act.

Monitor compliance and promote appropriate standards of conduct by building industry participants, including by:

  • Monitoring and promoting compliance with the BCIIP Act, designated building laws and the Building Code by building industry participants; and
  • Referring matters to other relevant agencies and bodies, in accordance with subsection 16(1)(a) of the BCIIP Act.

Investigate suspected contraventions, by building industry participants, of the BCIIP Act, designated building laws or the Building Code in accordance with subsection 16(1)(b) of the BCIIP Act.

Ensure building employers and building contractors comply with their obligations under the BCIIP Act, designated building laws and the Building Code in accordance with subsection 16(1)(ba) of the BCIIP Act.

Provide assistance and advice to building industry participants regarding their rights and obligations under the BCIIP Act, designated building laws and the Building Code in accordance with subsection 16(1)(d) of the BCIIP Act.

Disseminate information about the BCIIP Act, designated building laws and the Building Code, and about other matters affecting building industry participants, including disseminating information by facilitating ongoing discussions with building industry participants in accordance with subsection 16(1)(f) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners
  • An SES employee or acting SES employee who is an employee of the Commission
  • Australian Building and Construction Inspectors

Consultants

2

Engage persons having suitable qualifications and experience as consultants to the ABC Commissioner in accordance with subsection 32 of the BCIIP Act.

  • Chief Operating Officer

Building Code

3

Give written notice to a person who is required to comply with the Building Code in respect of particular building work in accordance with subsection 35(1) of the BCIIP Act.

  • Australian Building and Construction Inspectors

Examination notices

4

Give an examination notice to the person in relation to whom it is issued in accordance with subsection 61E(1) of the BCIIP Act.

  • Australian Building and Construction Inspectors

5

Notify the Commonwealth Ombudsman that an examination notice has been issued and provide a copy of the examination notice, the affidavit that accompanied the application for the examination notice and any other information in relation to the examination notice that was given to the nominated AAT presidential member who issued the notice in accordance with section 64 of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners

6

Give the Commonwealth Ombudsman a report, video recording and transcript of an examination of a person in accordance with subsection 65(1) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners

Persons assisting authorised officers

7

Determine whether a person may accompany an authorised officer onto premises to assist the authorised officer in accordance with subsection 75(1) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners
  • An SES employee or acting SES employee who is an employee of the Commission
  • Australian Building and Construction Inspectors who are designated as Team Leaders or Acting Team Leaders

Disclosure of information

8

Disclose or authorise the disclosure of information in accordance with subsections 105(2), (3) and (4) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners
  • An SES employee or acting SES employee who is an employee of the Commission
  • Australian Building and Construction Inspectors

Submissions

9

May intervene or make submissions in a matter before the Fair Work Commission in accordance with subsection 110(1) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioner (Legal)

These delegations replace the delegations made on 11 July 2017 by the (then) Australian Building and Construction Commissioner, Nigel Clive Hadgkiss.

On 19 December 2019, the Australian Building and Construction Commissioner made the following delegations:

I, Stephen John McBurney, Australian Building and Construction Commissioner appointed under section 21 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act), acting under subsection 19(1) of the BCIIP Act delegate to each person from time to time holding, occupying or performing the duties of the positions identified in Column B of the following table, all the corresponding powers and/or functions specified in column A of the table.

No.

Function and/or power

Delegations

Column A

Column B

Function of the ABC Commissioner

1

Promote the main object of the BCIIP Act in accordance with subsection 16(1)(aa) of the BCIIP Act.

Monitor compliance and promote appropriate standards of conduct by building industry participants, including by:

  • Monitoring and promoting compliance with the BCIIP Act, designated building laws and the Building Code by building industry participants; and
  • Referring matters to other relevant agencies and bodies, in accordance with subsection 16(1)(a) of the BCIIP Act.

Investigate suspected contraventions, by building industry participants, of the BCIIP Act, designated building laws or the Building Code in accordance with subsection 16(1)(b) of the BCIIP Act.

Ensure building employers and building contractors comply with their obligations under the BCIIP Act, designated building laws and the Building Code in accordance with subsection 16(1)(ba) of the BCIIP Act.

Provide assistance and advice to building industry participants regarding their rights and obligations under the BCIIP Act, designated building laws and the Building Code in accordance with subsection 16(1)(d) of the BCIIP Act.

Disseminate information about the BCIIP Act, designated building laws and the Building Code, and about other matters affecting building industry participants, including disseminating information by facilitating ongoing discussions with building industry participants in accordance with subsection 16(1)(f) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners
  • An SES employee or acting SES employee who is an employee of the Commission
  • Australian Building and Construction Inspectors

Consultants

2

Engage persons having suitable qualifications and experience as consultants to the ABC Commissioner, including determining the terms and conditions of the engagement, in accordance with section 32 of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners
  • An SES employee or acting SES employee who is an employee of the Commission

Building Code

3

Give written notice to a person who is required to comply with the Building Code in respect of particular building work in accordance with subsection 35(1) of the BCIIP Act.

  • Australian Building and Construction Inspectors

Examination notices

4

Give an examination notice to the person in relation to whom it is issued in accordance with subsection 61E(1) of the BCIIP Act.

  • Australian Building and Construction Inspectors

5

Notify the Commonwealth Ombudsman that an examination notice has been issued and provide a copy of the examination notice, the affidavit that accompanied the application for the examination notice and any other information in relation to the examination notice that was given to the nominated AAT presidential member who issued the notice in accordance with section 64 of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners

6

Give the Commonwealth Ombudsman a report, video recording and transcript of an examination of a person in accordance with subsection 65(1) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners

Persons assisting authorised officers

7

Determine whether a person may accompany an authorised officer onto premises to assist the authorised officer in accordance with subsection 75(1) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners
  • An SES employee or acting SES employee who is an employee of the Commission
  • Australian Building and Construction Inspectors who are designated as Directors or Assistant Directors – Operations

Disclosure of information

8

Disclose or authorise the disclosure of information in accordance with subsections 105(2), (3) and (4) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioners
  • An SES employee or acting SES employee who is an employee of the Commission
  • Australian Building and Construction Inspectors

Submissions

9

May intervene or make submissions in a matter before the Fair Work Commission in accordance with subsection 110(1) of the BCIIP Act.

  • Deputy Australian Building and Construction Commissioner (Legal)

In accordance with subsection 19(3) of the BCIIP Act, all delegated functions or powers must be carried out or exercised in accordance with any direction I make from time to time.

These delegations replace the delegations made on 20 September 2019.

Footnotes

  1. The conduct of others may also have been considered in these matters.
  2. External legal expenditure in Q1 of 2019–20 was previously reported as $656,602. This figure has been adjusted following reconciliation of invoices and relevant cases and should be $671,288 for Q1.