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Australian Building and Construction Commission—Performance of the functions and the exercise of powers of the Australian Building and Construction Commissioner—Quarterly report for the period 1 January to 31 March 2020


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2019 -20

Performance of the functions and the exercise of powers of the Australian Building and Construction Commissioner

QUARTERLY REPORT Third quarter of 2019 - 20 Operations from 1 January - 31 March inclusive

1. Quarterly Report - Third quarter of 2019 - 20

COMMENTS AND ENQUIRIES The Australian Building and Construction Commission welcomes comments and enquiries. Please contact:

Quarterly Report Contact Officer ABCC GPO Box 9927 Melbourne VIC 3001 Telephone: 1800 003 338 Email: enquiry@abcc.gov.au Internet: www.abcc.gov.au

DISTRIBUTION The report is available from the ABCC and via the ABCC website at: https://www.abcc.gov.au/about/plans-and-reports/quarterly-reports

COPYRIGHT © Commonwealth of Australia 2019 With the exception of the Commonwealth Coat of Arms, the Australian Building and Construction Commission’s logo, all photographs and where otherwise noted, all material in this document is licensed under a Creative Commons Attribution 4.0 Australia licence (http://creativecommons.org/licenses/by/4.0).

The details of the relevant licence conditions are available on the Creative Commons website, accessible using the link provided, as is the full legal code for the CC BY 4.0 AU licence (https://creativecommons.org/licenses/by/4.0/legalcode). The terms under which the Coat of Arms can be used are detailed on the Department of the Prime Minister and Cabinet website (www.dpmc.gov.au/government/commonwealth-coat-arms).

2. Quarterly Report - Third quarter of 2019 - 20

Contents Letter of transmittal 4

1. Introduction 6

2. Methodology 7

3. Performance of functions and exercise of powers 8

a) Matters investigated 8

b) Assistance and advice 11

c) Building Code compliance 13

d) Matters investigated in relation to building employers 14

e) Proceedings commenced 18

f) Number and cost of proceedings finalised 19

g) Legal expenses incurred as a result of enforcement action 20

h) Details of industry conditions 20

i) Compliance of products used in building work 20

j) Examination notices issued 20

4. Additional reporting 21

a) Directions given by the Minister 21

b) Delegations made by the Australian Building and Construction Commissioner 21

4. Quarterly Report - Third quarter of 2019 - 20

5 May 2020

The Hon Christian Porter MP Attorney-General Minister for Industrial Relations Parliament House Canberra ACT 2600

Dear Attorney-General

The Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) requires the Australian Building and Construction Commissioner to prepare a report each quarter on the performance of the Commissioner’s functions and the exercise of powers and to provide that report to the Minister.

I am pleased to present to you this quarterly report, which covers the Australian Building and Construction Commission’s operations in the third quarter of 2019-20 (1 January - 31 March 2020).

I note subsection 20(5) of the BCIIP Act provides that the Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt.

Yours sincerely

Stephen McBurney Commissioner Australian Building and Construction Commission

Letter of transmittal

On 2 December 2016, the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) and the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 commenced. As a result, the Australian Building and Construction Commission (ABCC) commenced operations on 2 December 2016.

Section 20 of the BCIIP Act requires the Australian Building and Construction Commissioner to prepare and give to the Minister a report on the performance of the Australian Building and Construction Commissioner’s functions and the exercise of the Commissioner’s powers during that quarter (the Quarterly Report).

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

The following report sets out the activities undertaken by the ABCC in the third quarter of the 2019-20 financial year, 1 January to 31 January 2020 (the reporting period).

1. Introduction

7. Quarterly Report - Third quarter of 2019 - 20

The internal costs 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 ‘inCase’.

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.

2. Methodology

8. Quarterly Report - Third quarter of 2019 - 20

a) Matters investigated

In the reporting period, the ABCC had 103 open investigations. Table A1 shows the breakdown of open investigations by the main allegation being investigated. Table A2 shows the approximate internal cost of each investigation.

Table A1: Investigations open during the reporting period

Main allegation Number of

investigations

Wages & entitlements 35

Right of entry 31

Freedom of association 8

Unlawful industrial action 8

Coercion 8

Sham contracting 5

Unlawful Picketing 4

Non-compliance with Notices 3

Misrepresentation of workplace rights

1

Total 103

Table A2: Approximate internal cost of open investigations

Ref Main allegation Cost

31833 Wages & entitlements $1,804

35007 Freedom of association $2,428

35059 Wages & entitlements $828

35083 Right of entry $55

35100 Right of entry $2,094

35407 Right of entry $0

35410 Right of entry $162

35736 Right of entry $321

35913 Right of entry $1,613

36032 Coercion $922

36293 Right of entry $190

36342 Wages & entitlements $815

37623 Unlawful picketing $3,056

38148 Right of entry $0

39131 Wages & entitlements $2,480

40125 Right of entry $3,544

40496 Sham contracting $346

41026 Non-compliance with notices $556

41097 Wages & entitlements $1,734

41235 Freedom of association $2,974

41436 Wages & entitlements $3,678

41591 Right of entry $7,624

3. Performance of functions and exercise of powers

9. Quarterly Report - Third quarter of 2019 - 20

Ref Main allegation Cost

41656 Right of entry $5,651

41671 Right of entry $254

41759 Right of entry $14

42010 Wages & entitlements $4,195

42146 Unlawful picketing $1,780

42176 Right of entry $3,366

42179 Wages & entitlements $99

42558 Wages & entitlements $451

42617 Non-compliance with notices $611

42660 Unlawful industrial action $9,380

42701 Right of entry $923

42789 Non-compliance with notices $1,554

42823 Right of entry $119

42873 Wages & entitlements $503

42944 Right of entry $2,051

42980 Wages & entitlements $8,324

43203 Wages & entitlements $99

43232 Wages & entitlements $1,120

43250 Right of entry $1,944

43376 Wages & entitlements $195

43405 Coercion $3,651

43463 Freedom of association $8,776

43607 Coercion $20,708

43608 Sham contracting $237

43637 Sham contracting $996

43856 Wages & entitlements $0

43951 Wages & entitlements $2,120

43968 Coercion $1,635

Ref Main allegation Cost

43991 Wages & entitlements $490

44024 Unlawful picketing $10,303

44027 Sham contracting $728

44137 Right of entry $4,708

44311 Wages & entitlements $376

44460 Coercion $7,306

44510 Unlawful industrial action $653

44606 Wages & entitlements $468

44731 Unlawful industrial action $11,153

44754 Wages & entitlements $1,691

44815 Sham contracting $1,158

44819 Freedom of association $6,569

44828 Right of entry $12,382

44890 Right of entry $3,280

45034 Wages & entitlements $2,077

45132 Wages & entitlements $439

45134 Wages & entitlements $2,111

45138 Right of entry $1,787

45181 Wages & entitlements $648

45224 Wages & entitlements $2,536

45240 Wages & entitlements $1,081

45283 Right of entry $1,552

45297 Wages & entitlements $1,001

45301 Unlawful industrial action $5,101

45324 Right of entry $618

45338 Unlawful industrial action $4,749

45565 Right of entry $5,358

45656 Freedom of association $3,469

10. Quarterly Report - Third quarter of 2019 - 20

Ref Main allegation Cost

45668 Wages & entitlements $532

45681 Wages & entitlements $1,019

45820 Freedom of association $1,007

45851 Right of entry $6,402

45868 Wages & entitlements $515

45935 Freedom of association $3,270

46036 Coercion $2,364

46039 Freedom of association $1,243

46041 Right of entry $1,375

46047 Wages & entitlements $686

46052 Unlawful industrial action $2,037

46056 Coercion $1,686

46068 Unlawful industrial action $2,750

46104 Unlawful industrial action $8,325

46145 Wages & entitlements $581

46165 Right of entry $802

46205 Coercion $1,844

46207 Unlawful picketing $2,691

46278 Misrepresentation of workplace rights $777

46290 Right of entry $358

46357 Wages & entitlements $787

46509 Wages & entitlements $187

46510 Wages & entitlements $163

46533 Right of entry $350

46606 Right of entry $430

11. Quarterly Report - Third quarter of 2019 - 20

b) Assistance and advice

In the reporting period, the ABCC provided assistance and advice by responding to 1,413 enquiries. Table B shows a breakdown of enquiries by main topic and the enquirer category.

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

Main topic

Building industry participant

Member

of the public Government Total

Code 657 33 31 721

Code assessment 235 6 4 245

General code information 138 11 11 160

Security of payment 150 3 1 154

Code advice 119 11 14 144

Notice of code breach 6 0 0 6

s.6A General advice 2 1 1 4

s.6A Application 3 0 0 3

State code information 1 1 0 2

s.6B General advice 2 0 0 2

s.6B Application 1 0 0 1

Workplace Laws - Building Work 266 16 18 300

Wages & entitlements 148 7 2 157

Right of entry 64 4 11 79

Coercion 18 2 1 21

Unlawful industrial action 12 0 4 16

Freedom of association 12 1 0 13

Sham contracting 6 0 0 6

Misrepresentation of workplace rights 4 1 0 5

Unlawful Picketing 1 1 0 2

Discrimination 1 0 0 1

Other Laws 61 159 2 222

Agency Information and Activities 56 39 8 103

12. Quarterly Report - Third quarter of 2019 - 20

Main topic

Building industry participant

Member

of the public Government Total

Not relevant to the Building Industry 8 30 1 39

Workplace Laws - non building work 11 17 0 28

Total 1,059 294 60 1,413

13. Quarterly Report - Third quarter of 2019 - 20

c) Building Code compliance

In the reporting period, the ABCC finalised 25 audits and 61 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 C1 shows the outcome of all building code audits finalised. Table C2 shows the outcome of all building code inspections finalised.

Potential issues were identified in 14 building code audits.

An additional 43 building code audits were commenced but not finalised.

Table C1: Outcome of audits

Outcome of audit Total

No issues 11

Potential issues 14

Total 25

Table C2: Outcome of inspections

Outcome of inspection Total

No issues 38

Potential issues 23

Total 61

14. Quarterly Report - Third quarter of 2019 - 20

d) Matters investigated in relation to building employers

In the reporting period, the conduct of employers was the subject of investigation in 55 matters.1 Table D1 shows the breakdown of these investigations by the main allegation being investigated. Table D2 shows the approximate internal cost of each of these investigations.

Table D1: Investigations where employers were a subject of the investigation

Main allegation

Number of investigations

Wages & entitlements 34

Freedom of association 6

Sham contracting 5

Right of entry 3

Unlawful Picketing 2

Coercion 2

Non-compliance with Notices 1

Misrepresentation of workplace rights

1

Unlawful industrial action 1

Total 55

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

Table D2: Approximate internal cost where employers were a subject of the investigation

Ref Main allegation Cost

31833 Wages & entitlements $1,804

35007 Freedom of association $2,428

35059 Wages & entitlements $828

36342 Wages & entitlements $815

39131 Wages & entitlements $2,480

40496 Sham contracting $346

41097 Wages & entitlements $1,734

41235 Freedom of association $2,974

41436 Wages & entitlements $3,678

42010 Wages & entitlements $4,195

42146 Unlawful Picketing $1,780

42179 Wages & entitlements $99

42558 Wages & entitlements $451

42789 Non-compliance with Notices $1,554

42873 Wages & entitlements $503

42980 Wages & entitlements $8,324

43232 Wages & entitlements $1,120

43376 Wages & entitlements $195

43463 Freedom of association $8,776

43607 Coercion $20,708

43608 Sham contracting $237

43637 Sham contracting $996

43856 Wages & entitlements $0

43951 Wages & entitlements $2,120

15. Quarterly Report - Third quarter of 2019 - 20

Ref Main allegation Cost

43968 Coercion $1,635

43991 Wages & entitlements $490

44024 Unlawful Picketing $10,303

44027 Sham contracting $728

44311 Wages & entitlements $376

44606 Wages & entitlements $468

44754 Wages & entitlements $1,691

44815 Sham contracting $1,158

45034 Wages & entitlements $2,077

45132 Wages & entitlements $439

45134 Wages & entitlements $2,111

45138 Right of entry $1,787

45181 Wages & entitlements $648

45224 Wages & entitlements $2,536

45240 Wages & entitlements $1,081

45283 Right of entry $1,552

45297 Wages & entitlements $1,001

45324 Right of entry $618

45656 Freedom of association $3,469

45668 Wages & entitlements $532

45681 Wages & entitlements $1,019

45820 Freedom of association $1,007

45868 Wages & entitlements $515

46039 Freedom of association $1,243

46047 Wages & entitlements $686

46104 Unlawful industrial action $8,325

46145 Wages & entitlements $581

Ref Main allegation Cost

46278 Misrepresentation of workplace rights $777

46357 Wages & entitlements $787

46509 Wages & entitlements $187

46510 Wages & entitlements $163

Employers were a complainant in 57 open investigations. Table D3 shows the breakdown of those investigations by the main allegation being investigated. Table D4 shows the approximate internal cost of each of these investigations.

Table D3: Investigations where employers were a complainant in the investigation

Main allegation

Number of investigations

Right of entry 26

Unlawful industrial action 7

Wages & entitlements 6

Coercion 6

Freedom of association 5

Unlawful Picketing 3

Sham contracting 2

Non-compliance with Notices 1

Misrepresentation of workplace rights

1

Total 57

16. Quarterly Report - Third quarter of 2019 - 20

Table D4: Approximate internal cost where employers were a complainant in the investigation

Ref Main allegation Cost

35083 Right of entry $55

35100 Right of entry $2,094

35407 Right of entry $0

35410 Right of entry $162

35736 Right of entry $321

35913 Right of entry $1,613

36293 Right of entry $190

38148 Right of entry $0

40125 Right of entry $3,544

41026 Non-compliance with Notices $556

41235 Freedom of association $2,974

41591 Right of entry $7,624

41671 Right of entry $254

41759 Right of entry $14

42146 Unlawful Picketing $1,780

42176 Right of entry $3,366

42660 Unlawful industrial action $9,380

42701 Right of entry $923

42823 Right of entry $119

42944 Right of entry $2,051

43203 Wages & entitlements $99

43250 Right of entry $1,944

43376 Wages & entitlements $195

43405 Coercion $3,651

43463 Freedom of association $8,776

43607 Coercion $20,708

Ref Main allegation Cost

43637 Sham contracting $996

43968 Coercion $1,635

44024 Unlawful Picketing $10,303

44027 Sham contracting $728

44137 Right of entry $4,708

44311 Wages & entitlements $376

44460 Coercion $7,306

44510 Unlawful industrial action $653

44606 Wages & entitlements $468

44819 Freedom of association $6,569

44828 Right of entry $12,382

44890 Right of entry $3,280

45240 Wages & entitlements $1,081

45301 Unlawful industrial action $5,101

45324 Right of entry $618

45338 Unlawful industrial action $4,749

45565 Right of entry $5,358

45656 Freedom of association $3,469

45851 Right of entry $6,402

45935 Freedom of association $3,270

46036 Coercion $2,364

46052 Unlawful industrial action $2,037

46056 Coercion $1,686

46068 Unlawful industrial action $2,750

46104 Unlawful industrial action $8,325

46165 Right of entry $802

46207 Unlawful Picketing $2,691

17. Quarterly Report - Third quarter of 2019 - 20

Ref Main allegation Cost

46278 Misrepresentation of workplace rights $777

46290 Right of entry $358

Ref Main allegation Cost

46357 Wages & entitlements $787

46533 Right of entry $350

18. Quarterly Report - Third quarter of 2019 - 20

e) Proceedings commenced

In the reporting period, the ABCC commenced one court proceeding. Table E1 lists this court proceeding, category of respondent and approximate internal legal cost.

Table E1: Proceedings commenced by category of respondent and approximate internal legal cost

Case number Case name Employer Internal legal

cost

Organisation Person

WAD41/2020 Australian Building and Construction Commissioner v Tyrone Construction Services Pty Ltd & Anor (Skypark) 1 1 $1,780

The ABCC did not file any appeals.

One appeal was filed against the ABCC. Table E2 shows the internal legal cost for each proceeding.

Table E2: Appeal filed against the ABCC and internal legal cost

Case number Case name Jurisdiction Internal legal cost

VID233/2020 Tadic & Anor v Australian Building and Construction Commissioner ('Castlemaine Police Station') (Penalty Appeal)

Full Court of the Federal Court

$0

The ABCC did not intervene in any court proceedings.

The ABCC intervened in two proceedings in the Fair Work Commission. Table E3 shows the internal legal cost for each proceeding.

Table E3: ABCC interventions in Fair Work Commission proceedings and internal legal cost

Case number Type of proceeding Name Internal legal cost

RE2020/207 and RE2020/214 Application for entry permit Michael Greenfield $892

C2020/461 Appeal of decision to revoke or suspend entry permit Blake Hynes $2,301

19. Quarterly Report - Third quarter of 2019 - 20

f) Number and cost of proceedings finalised

In the reporting period, the ABCC finalised its involvement in four court proceedings. Table F1 shows the total external and internal legal costs for each proceeding.

Table F1: Proceedings finalised and total legal costs

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

$60,072 $40,590

PEG502/2018 Australian Building and Construction Commissioner v Big Li Ceiling Pty Ltd & Anor $58,458 $19,156

SYG332/2016 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (No. 7) [2020] FCCA 351

$1,142,797 $83,509

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 $19,033

There were no court appeal decisions delivered in the reporting period that related to a previously finalised matter.

In the reporting period, the ABCC finalised its involvement in five proceedings in the Fair Work Commission. Table F2 shows the total external and internal legal costs for each proceeding.

Table F2: Fair Work Commission proceedings in which the ABCC finalised its involvement and total legal costs

Case number Type of proceeding Name External legal cost Internal legal cost

C2019/7475 Appeal of decision to refuse application for entry permit Paul McAleer $13,095 $3,375

RE2019/1101 Application for entry permit Scott Vink $0 $1,805

RE2019/1102 Application to revoke or suspend entry permit Blake Hynes $0 $7,585

RE2019/1200 Application for entry permit Christopher Cain $0 $1,472

RE2019/859 Application for entry permit Michael Smith $0 $2,677

20. Quarterly Report - Third quarter of 2019 - 20

g) Legal expenses incurred as a result of enforcement action

In the reporting period, the ABCC incurred $1,129,774 in external legal expenses as a result of enforcement action undertaken in 58 matters.

This figure has been calculated using standard accrual accounting practices. This is a change in methodology from reports tabled in 2018-19.

h) Details of industry conditions

In the reporting period, the ABCC received 101 complaints. Table H shows the breakdown of complaints received by the main topic.

Table H: Complaints received by main topic

Main topic of complaint Total

Wages & entitlements 36

Security of payment 18

Right of entry 18

Coercion 11

Freedom of association 8

Unlawful industrial action 7

Misrepresentation of workplace rights

3

Total 101

i) Compliance of products used in building work

Section 26(8) of the Building Code 2016 requires funding entities to only enter into contracts for building work that require the use of products that comply with the relevant Australian standards published by, or on behalf of, Standards Australia.

The ABCC monitors compliance of supply chain contracts to ensure that the requirement to use building materials that comply with relevant Australian standards is passed down the supply chain.

The ABCC has published model clauses, including the Australian standard requirement, for use by funding entities in their contracts for building work. The ABCC has continued to receive notification forms from funding entities providing evidence that relevant clauses have been included in contracts.

No instances of non-compliance with section 26(8) by funding entities were identified by the ABCC during the reporting period.

j) Examination notices issued

There were no examination notices issued in the reporting period.

21. Quarterly Report - Third quarter of 2019 - 20

a) Directions given by the 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.

b) Delegations made by the Australian Building and Construction Commissioner

During the reporting period, the Australian Building and Construction Commissioner did not make any delegations under section 19 of the BCIIP Act.

4. Additional reporting

22. Quarterly Report - Third quarter of 2019 - 20

Australian Capital Territory Level 8, 12 Moore Street Canberra ACT 2600

New South Wales Level 8, 111 Elizabeth Street Sydney NSW 2000

Northern Territory Jacana House Level 7, 39-41 Woods Street Darwin NT 0800

Queensland

Level 25, 400 George Street Brisbane QLD 4000

South Australia Level 3, 60 Light Square Adelaide SA 5000

Tasmania

Level 4, 39-41 Davey Street Hobart TAS 7000

Victoria

Level 4, 509 St Kilda Road Melbourne VIC 3004

Western Australia Level 2, 863 Hay Street Perth WA 6000

www.abcc.gov.au