During the 2020–21 financial year, the ABCC continued to adopt a proactive and responsive approach to all its activities and met its statutory mandate to ensure building work was carried out fairly, efficiently and productively.
Our overarching priority was keeping the industry and our people safe as we continued our operations in a reporting period marked by numerous lockdowns and stringent social distancing measures brought on by the COVID-19 pandemic.
In the face of these challenges, the ABCC exceeded all of our key performance indicators set out in our Corporate Plan.
Education, assistance and advice
We reached more people through our presentations, delivering 241 to an audience of 3,036. The Inspectorate conducted 605 virtual site visits in addition to 1,543 in-person site visits.
We continued to embrace technology and expanded our suite of educational videos by producing new content on topics including right of entry, wages and entitlements, code compliance and security of payment.
Additionally, LinkedIn provided yet another popular platform where we featured educational content, with our LinkedIn followers increasing by 81% in the reporting period.
Following a reader survey, we made improvements to our monthly e-newsletter, Industry Update, resulting in a 12% increase in our subscribers.
Supporting victims of unlawful conduct
Critically, our presence in the building and construction sector and the breadth of the enforcement work we undertook provided meaningful outcomes for victims of unlawful conduct.
In April 2021, the Federal Court ordered that $2,500 of the CFMMEU’s penalty be paid to an employee who was the victim of abuse at an unlawful picket. The Court also ordered $30,000 be paid to Botany Cranes to cover lost revenue. While this matter is now under appeal, the orders for these payments are significant for the victims.
In February 2021, we finalised our first court proceedings related to security of payment. The Federal Circuit Court ordered New South Wales company N-Cap Pty Ltd to pay a subcontractor $10,633 in outstanding payment claims following ABCC action.
We are also awaiting a penalty decision from the Federal Court in the agency’s first age discrimination case. The Court will determine penalties to be paid by labour hire company Corestaff and a host employer for their refusal to hire a qualified 70-year-old grader because of his age.
Recoveries for employees and subcontractors
Our proactive and reactive audits relating to security of payment under the Code achieved outstanding results.
In the reporting period, more than $1.6 million was paid to subcontractors after the ABCC contacted companies in relation to unpaid amounts. This brought the total amount paid to subcontractors since July 2019 to more than $7.7 million.
The ABCC continued to recover underpayments for employees in the reporting period with $902,464 recovered for 1448 employees, bringing our total wage recoveries since re-establishment to more than $3 million.
Many of these workers were not even aware they had been underpaid. Of the money recouped, 73% was the result of proactive wage audits and 27% was the result of investigations the ABCC conducted.
Our intelligence-led approach saw us test levels of compliance across various sectors, including apartment construction, labour hire providers and companies covered by the Code.
We accepted nothing less than full cooperation and rectification from employers, and where compliance was not achieved, we commenced court proceedings. Two cases were filed in the reporting period.
In the Federal Circuit Court in Sydney, we filed proceedings alleging Open Tiling Services Pty Ltd underpaid an employee wages, entitlements and superannuation. On 4 August 2021, the Court ordered the company to pay $88,949 to the employee for unpaid wages and imposed penalties totalling $83,160 against the company and its director.
In the Federal Circuit Court in Melbourne, we are alleging Jake Gray, operating as Jake Gray’s Carpentry, failed to comply with 2 statutory notices during an ABCC investigation into the underpayment of a first-year apprentice.
In May 2021, the Minister for Industrial Relations issued 2 Code sanctions on my referral.
A one-month exclusion sanction was imposed against Queensland construction company MCP (Aus) Pty Ltd for a safety incident at the Toowoomba Second Range Crossing Project.
A formal warning was issued against Queensland-based Intelligent Infrastructure Solutions Pty Ltd, also known as i2 Solutions, for multiple breaches of the Code relating to security of payment obligations. The formal warning was the only sanction available given the company was in administration.
The ABCC also addressed Code compliance by providing industry participants with education, advice and assistance on a range of issues relating to the Code.
The ABCC responded to 2,362 Code enquiries and assessed 1,760 enterprise agreements, 114 sets of individual clauses and 569 workplace relations management plans for compliance with the Code.
Our turnaround time for enterprise agreement assessments was 2.2 weeks, against a target of 4 weeks. This demonstrates the ABCC’s commitment to assess enterprise agreements in a timely manner for the benefit of all sectors of the industry.
In the reporting period, the ABCC was successful in 16 of 17 cases, resulting in $3,491,890 in penalties imposed by the courts.
We sought personal payment orders in a number of cases. Ultimately, the greater the sting or burden felt as a result of a personal payment order, the more likely it will be that the respondent will be deterred from future contraventions.
In the reporting period, the courts imposed personal payment orders totalling $189,600 against 8 individuals in 3 cases.
This includes the 2 highest personal payment orders to date in the Botany Cranes matter where CFMMEU NSW Assistant Secretaries Michael Greenfield and Robert Kera were ordered to personally pay $65,000 and $47,500 respectively. These penalties are under appeal.
Our staff have continued to deliver exceptional service in the face of significant challenges posed by the pandemic. Like all Australians, we have been impacted by lockdowns across the country and extended periods of working remotely.
Our staff have met these challenges and demonstrated resilience, innovation and a commitment to assisting all building industry participants.
Pleasingly, for the third year in a row, we ranked in the top 5 agencies in the Australian Public Service Employee Census on the wellbeing index and continued to rank among the top 20 for innovation and engagement across the Australian Public Service.
I would like to commend all our staff who volunteered to assist a number of Federal and State government agencies in their response to the COVID-19 pandemic and natural disasters. Their dedication to making a difference in times of great need in the community is the essence of public service. Our people contributed to surge requests at Services Australia, the Fair Work Ombudsman, the Western Australian Department of Health and the Victorian Department of Health and Human Services.
Cliff Pettit resigned as Deputy Commissioner effective 7 June 2021. I would like to thank Cliff for his distinguished service over the years and his leadership of our operations, wages and corporate functions, and the ABCC's western region.
In the year ahead we will continue to respond to changes in the industry, ensuring our activities are data-driven and risk-based. Our engagement with stakeholders will focus on fostering a culture of compliance and ensuring we understand the issues affecting them.
We will continue to help those who want to comply with the law, while taking appropriate action against those who choose to disregard it.
As always, our focus remains on ensuring that victims of unlawful conduct are supported and where possible have some form of recourse.
Stephen McBurney Australian Building and Construction Commissioner