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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 April to 30 June 2021


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2020 -21

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

QUARTERLY REPORT Fourth quarter of 2020 - 21 Operations from 1 April - 30 June inclusive

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 2021 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). This document must be attributed as the ABCC Quarterly Report, fourth quarter of 2020-21.

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 12

d) Matters investigated in relation to building employers 13

e) Proceedings commenced 16

f) Number and cost of proceedings finalised 18

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 - Fourth quarter of 2020 - 21

23 August 2021

Senator the Hon Michaelia Cash Attorney-General Minister for Industrial Relations Deputy Leader of the Government in the Senate Parliament House Canberra ACT 2600

Dear Minister

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 fourth quarter of 2020-21 (1 April - 30 June 2021).

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

5. Quarterly Report - Fourth quarter of 2020 - 21

6. Quarterly Report - Fourth quarter of 2020 - 21

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 2020-21 financial year, 1 April to 30 June 2021 (the reporting period).

1. Introduction

7. Quarterly Report - Fourth quarter of 2020 - 21

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. Figures are accurate as at the reporting date. Further legal costs received outside of the reporting period for finalised legal matters will be updated and reported in the annual BCIIP Act Report.

2. Methodology

8. Quarterly Report - Fourth quarter of 2020 - 21

a) Matters investigated

In the reporting period, the ABCC had 86 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 and entitlements 40

Right of entry 18

Freedom of association 9

Coercion 9

Unlawful industrial action 6

Sham contracting 2

Hinder or obstruct ABC inspector 1

Unlawful picketing 1

Total 86

Table A2: Approximate internal cost of open investigations

Ref Main allegation Cost

35007 Freedom of association $269

39131 Wages and entitlements $429

41436 Wages and entitlements $2,175

45338 Unlawful industrial action $199

45681 Wages and entitlements $1,061

46282 Wages and entitlements $274

46283 Wages and entitlements $296

46797 Right of entry $2,877

47421 Wages and entitlements $0

47584 Wages and entitlements $0

47849 Wages and entitlements $1,311

47946 Right of entry $1,258

48050 Coercion $1,667

48275 Coercion $5,381

48691 Wages and entitlements $227

48835 Wages and entitlements $4,069

49387 Freedom of association $3,579

49459 Wages and entitlements $2,495

49624 Wages and entitlements $2,748

49685 Wages and entitlements $553

49690 Right of entry $13,244

49780 Wages and entitlements $2,488

3. Performance of functions and exercise of powers

9. Quarterly Report - Fourth quarter of 2020 - 21

Ref Main allegation Cost

49995 Coercion $3,852

50165 Right of entry $5,091

50223 Wages and entitlements $5,394

50290 Right of entry $3,843

50357 Freedom of association $4,926

50441 Right of entry $18,477

50454 Coercion $5,997

50487 Freedom of association $9,070

50503 Right of entry $3,419

50690 Wages and entitlements $2,581

50789 Wages and entitlements $284

50825 Wages and entitlements $654

50833 Wages and entitlements $2,607

50918 Sham contracting $945

50935 Wages and entitlements $5,107

50939 Wages and entitlements $1,212

50975 Coercion $8,187

50986 Wages and entitlements $2,441

50988 Wages and entitlements $1,968

51095 Unlawful industrial action $955

51230 Wages and entitlements $712

51232 Right of entry $17,525

51237 Freedom of association $10,302

51244 Wages and entitlements $490

51254 Wages and entitlements $121

51328 Wages and entitlements $1,304

51499 Right of entry $9,279

51502 Coercion $14,397

Ref Main allegation Cost

51526 Freedom of association $2,786

51649 Right of entry $14,945

51727 Right of entry $14,243

51744 Right of entry $15,074

51746 Freedom of association $4,704

51748 Wages and entitlements $768

51828 Wages and entitlements $1,360

51845 Wages and entitlements $1,962

51866 Coercion $12,570

51931 Wages and entitlements $664

51943 Wages and entitlements $1,733

51977 Wages and entitlements $732

51988 Wages and entitlements $658

52012 Right of entry $634

52036 Right of entry $9,675

52056 Unlawful industrial action $6,314

52162 Right of entry $15,497

52267 Unlawful industrial action $9,472

52279 Unlawful industrial action $2,448

52308 Unlawful picketing $11,405

52324 Right of entry $4,378

52329 Coercion $4,337

52334 Wages and entitlements $690

52414 Wages and entitlements $1,024

52420 Wages and entitlements $131

52432 Freedom of association $10,174

52563 Freedom of association $2,842

52601 Wages and entitlements $1,253

10. Quarterly Report - Fourth quarter of 2020 - 21

Ref Main allegation Cost

52643 Wages and entitlements $119

52708 Coercion $2,982

52752 Sham contracting $1,750

52789 Unlawful industrial action $2,550

52812 Wages and entitlements $298

52825 Hinder or obstruct ABC inspector $2,957

52895 Right of entry $7,594

52986 Right of entry $2,036

11. Quarterly Report - Fourth quarter of 2020 - 21

b) Assistance and advice

In the reporting period, the ABCC provided assistance and advice by responding to 1,069 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 Law enforcement Total

Code 518 30 30 0 578

Code assessment 266 5 8 0 279

General code information 129 18 19 0 166

Security of payment 87 3 0 0 90

Code advice 26 3 3 0 32

Notice of code breach 7 0 0 0 7

s.6A general advice 2 1 0 0 3

s.6B application 1 0 0 0 1

Workplace laws - building work 199 12 19 0 230

Wages and entitlements 88 7 1 0 96

Right of entry 61 0 14 0 75

Unlawful industrial action 20 0 1 0 21

Freedom of association 14 2 2 0 18

Coercion 12 2 0 0 14

Unlawful picketing 3 0 0 0 3

Sham contracting 1 1 0 0 2

Hinder or obstruct ABC inspector 0 0 1 0 1

Other laws 26 77 0 0 103

Agency information and activities 34 22 7 1 64

Not relevant to the building industry 7 57 1 0 65

Workplace laws - non building work 22 7 0 0 29

Total 806 205 57 1 1,069

12. Quarterly Report - Fourth quarter of 2020 - 21

c) Building Code compliance

In the reporting period, the ABCC finalised 64 audits and 22 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 building code inspections finalised.

Potential issues were identified in 31 building code audits and 9 building code inspections.

An additional 59 building code audits were commenced but not finalised.

Table C1: Outcome of audits

Outcome of audit Total

No issues 33

Potential issues 31

Total 64

Table C2: Outcome of inspections

Outcome of inspection Total

No issues 13

Potential issues 9

Total 22

13. Quarterly Report - Fourth quarter of 2020 - 21

d) Matters investigated in relation to building employers

In the reporting period, the conduct of employers was the subject of investigation in 56 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 and entitlements 40

Freedom of association 6

Right of entry 6

Unlawful industrial action 2

Coercion 1

Sham contracting 1

Total 56

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

35007 Freedom of association $269

39131 Wages and entitlements $429

41436 Wages and entitlements $2,175

45681 Wages and entitlements $1,061

46282 Wages and entitlements $274

46283 Wages and entitlements $296

47421 Wages and entitlements $0

47584 Wages and entitlements $0

47849 Wages and entitlements $1,311

47946 Right of entry $1,258

48691 Wages and entitlements $227

48835 Wages and entitlements $4,069

49459 Wages and entitlements $2,495

49624 Wages and entitlements $2,748

49685 Wages and entitlements $553

49780 Wages and entitlements $2,488

50223 Wages and entitlements $5,394

50290 Right of entry $3,843

50357 Freedom of association $4,926

50441 Right of entry $18,477

50454 Coercion $5,997

50487 Freedom of association $9,070

50690 Wages and entitlements $2,581

50789 Wages and entitlements $284

14. Quarterly Report - Fourth quarter of 2020 - 21

Ref Main allegation Cost

50825 Wages and entitlements $654

50833 Wages and entitlements $2,607

50918 Sham contracting $945

50935 Wages and entitlements $5,107

50939 Wages and entitlements $1,212

50986 Wages and entitlements $2,441

50988 Wages and entitlements $1,968

51095 Unlawful industrial action $955

51230 Wages and entitlements $712

51237 Freedom of association $10,302

51244 Wages and entitlements $490

51254 Wages and entitlements $121

51328 Wages and entitlements $1,304

51526 Freedom of association $2,786

51649 Right of entry $14,945

51744 Right of entry $15,074

51746 Freedom of association $4,704

51748 Wages and entitlements $768

51828 Wages and entitlements $1,360

51845 Wages and entitlements $1,962

51931 Wages and entitlements $664

51943 Wages and entitlements $1,733

51977 Wages and entitlements $732

51988 Wages and entitlements $658

52056 Unlawful industrial action $6,314

52324 Right of entry $4,378

52334 Wages and entitlements $690

52414 Wages and entitlements $1,024

Ref Main allegation Cost

52420 Wages and entitlements $131

52601 Wages and entitlements $1,253

52643 Wages and entitlements $119

52812 Wages and entitlements $298

Employers were a complainant in 39 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 16

Coercion 8

Freedom of association 7

Unlawful industrial action 6

Wages and entitlements 1

Unlawful picketing 1

Total 39

15. Quarterly Report - Fourth quarter of 2020 - 21

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

Ref Main allegation Cost

45338 Unlawful industrial action $199

46797 Right of entry $2,877

48050 Coercion $1,667

48275 Coercion $5,381

49387 Freedom of association $3,579

49690 Right of entry $13,244

49995 Coercion $3,852

50290 Right of entry $3,843

50441 Right of entry $18,477

50454 Coercion $5,997

50487 Freedom of association $9,070

50503 Right of entry $3,419

50975 Coercion $8,187

51095 Unlawful industrial action $955

51232 Right of entry $17,525

51237 Freedom of association $10,302

51499 Right of entry $9,279

51502 Coercion $14,397

51526 Freedom of association $2,786

51649 Right of entry $14,945

51727 Right of entry $14,243

51744 Right of entry $15,074

51746 Freedom of association $4,704

51748 Wages and entitlements $768

51866 Coercion $12,570

52012 Right of entry $634

Ref Main allegation Cost

52036 Right of entry $9,675

52056 Unlawful industrial action $6,314

52162 Right of entry $15,497

52267 Unlawful industrial action $9,472

52279 Unlawful industrial action $2,448

52308 Unlawful picketing $11,405

52324 Right of entry $4,378

52432 Freedom of association $10,174

52563 Freedom of association $2,842

52708 Coercion $2,982

52789 Unlawful industrial action $2,550

52895 Right of entry $7,594

52986 Right of entry $2,036

16. Quarterly Report - Fourth quarter of 2020 - 21

e) Proceedings commenced

In the reporting period, the ABC Commissioner commenced 3 court proceedings. Table E1 lists these court proceedings, 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 -

Organisation Trade union Trade union

representative Internal legal cost

BRG161/2021 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Queensland Performing Arts Complex (QPAC))

1 3 $3,843

MLG1029/2021 Australian Building and Construction Commissioner v Gray (Jake Gray’s Carpentry)

1 $2,578

SYG825/2021 Australian Building and Construction Commissioner v Rielly & Ors (Armidale Secondary School)

1 2 $2,877

The ABCC did not file any appeals.

Two appeals were filed against the ABC Commissioner. Table E2 shows the internal legal cost for these proceedings.

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

Case number Case name Jurisdiction Internal legal cost

NSD579/2021 Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner (Botany Cranes Penalty Appeal)

Full Court of the Federal Court

$658

NSD463/2021 Hanlon v Australian Building and Construction Commissioner (The Austar Plaster Case Appeal) Full Court of the Federal Court

$555

The ABC Commissioner intervened in one court proceeding. Table E3 shows the internal legal cost for this proceeding.

Table E3: ABCC interventions and internal legal cost

Case number Case name Jurisdiction Internal legal cost

B78/2020 Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson High Court $89

17. Quarterly Report - Fourth quarter of 2020 - 21

The ABC Commissioner intervened in one proceeding in the Fair Work Commission. Table E4 shows the internal legal cost for this proceeding.

Table E4: ABCC interventions in Fair Work Commission proceedings and internal legal cost

Case number Type of proceeding Name Internal legal cost

RE2021/485 Application for entry permit Walter Molina $6,570

18. Quarterly Report - Fourth quarter of 2020 - 21

f) Number and cost of proceedings finalised

In the reporting period, the ABC Commissioner finalised his involvement in 4 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

NSD574/2019 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (The Botany Cranes Case) [2021] FCA 525

$301,051 $46,790

NSD1792/2019 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (The WGC Cranes Case) [2021] FCA 622

$379,462 $43,981

SYG2231/2015 Australian Building and Construction Commissioner v Hanlon & Ors [2021] FCCA 787 (The Austar Plaster Case)

$137,947 $6,965

VID494/2020 Australian Building and Construction Commissioner v Parker & Ors [2021] FCA 704 (Melbourne Metro Rail Tunnel)

$77,739 $64,017

There were 2 court appeal decisions delivered in the reporting period that relate to previously finalised matters. Table F2 shows the total external and internal legal costs for this appeal decision.

Table F2: Appeal decisions related to previously finalised matters and total legal costs

Case number Case name External legal cost Internal legal cost

M121/2020 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2021] HCATrans 115 (The Bay Street High Court Appeal)

$128,020 $4,253

B79/2020 Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor [2021] HCASL 60 (The Bruce Highway Caloundra to Sunshine Upgrade High Court Appeal)

$14,118 $546

19. Quarterly Report - Fourth quarter of 2020 - 21

In the reporting period, the ABC Commissioner finalised his involvement in 4 proceedings in the Fair Work Commission. Table F3 shows the total external and internal legal costs for each proceeding.

Table F3: 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

RE2018/1438 Application to revoke or suspend entry permit Jason O’Mara $6,480 $3,723

RE2020/207 Application for entry permit Michael Greenfield $0 $4,040

RE2021/175 Application for entry permit Brendan Holl $1,917 $922

RE2021/89 Application for entry permit Grant Harradine $32 $1,497

The ABC Commissioner finalised his intervention in one court proceeding. Table F4 shows the internal and external legal cost for this proceeding.

Table F4: Interventions finalised

Case number Case name External legal cost Internal legal cost

B78/2020 Heiko Constructions t/as Heiko Constructions Pty Ltd v Tyson2 $65,197 $3,974

Further legal costs incurred on finalised matters received after the reporting date are not included in these tallies. These costs will be updated and reported for finalised matters in the annual BCIIP Act Report.

2 The application for special leave was discontinued before the High Court could make a ruling on whether the ABC Commissioner would be granted leave to intervene in the proceeding.

20. Quarterly Report - Fourth quarter of 2020 - 21

g) Legal expenses incurred as a result of enforcement action

In the reporting period, the ABCC incurred $1,239,054 in external legal expenses as a result of enforcement action undertaken in 62 matters.

This figure has been calculated using standard accrual accounting practices.

h) Details of industry conditions

In the reporting period, the ABCC received 49 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

Security of payment 15

Wages and entitlements 8

Coercion 7

Right of entry 6

Unlawful industrial action 5

Freedom of association 4

Unlawful picketing 2

Hinder or obstruct ABC inspector 1

Sham contracting 1

Total 49

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

Seven examination notices were issued in the reporting period. Table J shows the main allegation for each examination notice.

Table J: Examination notice issued

Main allegation Total

Coercion 5

Right of entry 2

Total 7

21. Quarterly Report - Fourth quarter of 2020 - 21

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

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