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Message from the Commissioner

In the 2019–20 financial year, the ABCC discharged its critical role as the full-service regulator for the building and construction industry. The strategic objectives set out in the Corporate Plan were a focus for the agency, namely, to educate, advise and assist, impartially monitor and assess compliance, and use litigation to change behaviour and enforce the law.

The key performance indicators for the agency provide a useful insight into the breadth of our activities and the successful deployment of our resources. We produced significant results in a challenging environment for what can only be described as extraordinary times for both the industry and the wider Australian community.

The last few months of the financial year, in particular, saw all of us face the unprecedented challenges posed by the COVID-19 pandemic. The building and construction industry was quickly identified as a critical industry, and has continued to operate throughout the COVID-19 crisis.

It was particularly encouraging to see the level of cooperation within the industry. Governments, essential services, communities and industry have worked tirelessly to implement the necessary public health measures in response to this one-in-a-hundred-year event.

For building and construction, this has involved all levels of government, employer associations and employee associations coming together to ensure building sites can remain open, viable and operate safely with appropriately modified working conditions and restrictions.

As a responsive regulator, we embraced innovation to overcome the roadblocks that the COVID-19 pandemic presented. We remained open for business and continued to perform our regulatory functions while observing social distancing measures. We did so while being mindful to not add any unnecessary regulatory burden to building industry participants dealing with the challenges posed by the pandemic.

Where we were needed on site, our inspectors deployed new ways of providing assistance without having to resort to face-to-face meetings. We used our website to provide COVID-19 specific information that was continually updated to provide timely and responsive advice to industry.

The COVID-19 pandemic also came off the back of one of the most intense bushfire seasons in history. The unprecedented fires devastated many communities across the country but also saw us all band together as we sought to help bushfire-affected communities pull through. We are aware of the bushfire reconstruction challenges ahead and are able to provide advice and assistance to industry in the affected regions, specifically on the application of the Code for the Tendering and Performance of Building Work 2016 (Building Code 2016).

Education, assistance and advice

During the reporting period, we responded to 5,514 enquiries with 3,800 of these via calls on our 1800 hotline. The overwhelming majority of these calls, 99 per cent, were answered within 60 seconds, with an average wait time of 15 seconds. Importantly, our hotline and web enquiries remained operational throughout the pandemic, including through our transition to working remotely.

Our interaction on site continued through the introduction of virtual site visits, where our inspectors replaced face-to-face interactions with phone calls to site occupiers. In the reporting period, we conducted 611 virtual site visits, bringing our total site visits to 1,982.

We found innovative ways to expand our audience reach through the introduction of webinars, LinkedIn videos and a revamped Industry Update. Pleasingly, despite the restrictions that have occurred during the pandemic, the use of this technology has allowed us to deliver 176 presentations, exceeding the 167 presentations conducted in 2018–19.

We delivered Industry Update using a new user-friendly platform that was extremely popular with industry. The publication went from a quarterly to a monthly distribution with five new editions and two quarterly editions published during the reporting period.

Each Industry Update edition focused on key themes that aimed to assist industry understand its obligations and pre-empt any queries it may have. Our editions included a COVID-19 specific edition in April, a ‘Getting a new start under the Building Code’ edition in May and a wages specific edition in June.

Recovering wages

We helped more people recover their wages in the 2019–20 financial year. Over the course of the reporting period, we recovered $1,117,330 for 1,741 employees. This was an increase from the 2018–19 financial year where we recovered $824,626 for 1,377 employees, bringing our total wage recoveries since our re-establishment to more than $2.2 million.

The majority of these wage recoveries, were for employees who were not aware they had been underpaid. These recoveries were the result of our proactive audit programs. This included our labour hire audit program, where we recovered $563,850 for 1,337 employees.

Our most important consideration throughout these audits is to ensure employees are paid what they are owed. Every dollar returned to an employee, apprentice or trainee counts.

In the course of our audits, we provided education to employers to help them understand their obligations. Where potential underpayments were identified, ABCC inspectors worked with each employer to rectify issues and obtained evidence of back payments. However, where employers failed to rectify or failed to address underpayments, we did not hesitate to use our full enforcement powers.

Enforcement

This approach to our litigation was evident in the breadth and scope of our matters during the reporting period.

On 29 May 2020, the Federal Circuit Court imposed penalties of $54,000 against the sole director of Victorian company SWAT Building Systems. The director was also ordered to pay unpaid wages and entitlements of $13,673 plus interest. The successful court action was the result of an investigation into allegations that a labourer was dismissed when he complained to his employer about not being paid.

On 21 February 2020, West Australian company Big Li Ceiling Pty Ltd and its director were penalised $22,680 and ordered to pay the ABCC’s legal costs of $24,284. The court action followed the repeated failures by the director and company to cooperate with us during a wages and entitlements investigation.

We also received a liability judgment in an important age discrimination case. On 26 June 2020, the Federal Court found that West Australian labour hire company CoreStaff WA Pty Ltd took adverse action when it refused to employ a qualified 70-year-old grader driver because of his age.

This is the first case the ABCC has run on age discrimination. The ABCC performs its regulatory functions in a broad policy setting. We will monitor, assess, investigate and litigate contraventions of the important protections contained in our Act and the Fair Work Act as it relates to the building and construction industry.

The courts drew a line in the sand in addressing the actions of repeat offenders. We saw the continued imposition of personal payment orders as a tool of general deterrence.

The courts imposed personal payment orders totalling $57,000 against seven individual respondents during the financial year. The purpose of a personal payment order is to ensure that the contravener feels the burden or sting of the penalty. These decisions sent a clear message that the deliberate and repeated disregard of workplace laws will not be tolerated.

In the case of CFMMEU Tasmania State Secretary Richard Hassett, on 21 April 2020 the Court ordered that he personally pay $10,000 for contravening right of entry laws at the Cattle Hill Wind Farm in January 2019. The CFMMEU was also penalised $50,000 for the conduct. This was the fourth case in which Mr Hassett was found to have contravened Australia’s workplace laws. As at 30 June 2020, Mr Hassett has been penalised a total of $49,500 and has had his entry permit revoked as a result of proceedings instituted by the ABCC.

Penalties imposed in matters the ABCC brought before the courts were in excess of $2 million and we were successful in 21 of the 22 matters finalised in court. In the case of the CFMMEU, judicial commentary highlighted a number of instances where there was no contrition, no remorse, and no intent to change the path of deliberate and repeated abuse of workplace laws.

Building code compliance

During the reporting period, we continued to provide education, assistance and advice to building industry participants on the Building Code 2016 and Building Code 2013. We responded to 2,817 building code enquiries and assessed 1,640 enterprise agreements. We maintained our fast turnaround times and assessed 125 sets of individual clauses within an average timeframe of three business days.

We significantly reduced the amount of time taken to assess workplace relations management plans (WRMPs) from two weeks to three business days, with 425 WRMPs assessed.

Our compliance activities related to security of payment laws ramped up. In November 2019, we launched a new security of payment campaign to improve awareness, engagement, reporting and compliance.

We finalised 161 compliance activities where security of payment was assessed. Almost 50 per cent (79 activities) identified potential issues, with 77 resulting in rectification measures being agreed to and implemented. Examples of rectification outcomes include payment of money owed, the introduction of processes to ensure timely payment, and agreeing to undertake training.

Our people

When the pandemic hit, we made keeping our staff safe and keeping industry safe our number one priority. I am pleased to report that the ABCC recorded no positive cases of COVID-19 during the reporting period.

We were able to quickly and seamlessly implement flexible working arrangements to enable our people to work remotely. Staff provided an overwhelmingly positive response to a pulse survey aimed at assessing our working from home arrangements. This revealed that as an agency, we were successful in replicating our harmonious and supportive work environment.

I would also like to acknowledge the staff who volunteered to assist in the whole-of-government response to the pandemic. This provided staff with a great opportunity to make a real difference in servicing the needs of the country during the pandemic. We deployed staff to Services Australia and to the Fair Work Ombudsman.

Looking forward

We are acutely aware that the long-term economic impacts of the COVID-19 pandemic are still to come. Our role as a regulator will be more important than ever before. The building and construction industry will remain a key economic driver in a post-pandemic world.

Various levels of government across the country have announced large infrastructure programs in a bid to stimulate the economy. To properly address this operating environment, the ABCC will deploy a flexible and agile workforce so we are able to respond rapidly to issues as they arise. Most importantly, the ABCC stands ready to assist anyone in the industry in complying with their legal obligations and will hold those who break the law to account.

Signature of ABC Commissioner Stephen McBurney.

Stephen McBurney

Australian Building and Construction Commissioner