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Australian Building and Construction Commission Annual Report 2019-20

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

The conduct of others may also have been considered in these matters.↩
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.↩

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