Office of the Australian Building and Construction Commissioner


Office of the Australian Building and Construction Commissioner
Office of Australian Building and Construction Commissioner
Agency overview
Formed 1 October 2005
Minister responsible The Hon. Chris Evans, Minister for Tertiary Education, Skills, Jobs and Workplace Relations
Commissioner Leigh Johns
Deputy Commissioner - Legal Brian Corney
Deputy Commissioner - Field Operations Michael Campbell
Website
www.abcc.gov.au

The Office of the Australian Building and Construction Commissioner (ABCC) is an independent statutory authority, responsible for monitoring and promoting workplace relations in the Australian building and construction industry. The ABCC provides education, investigates workplace complaints and enforces compliance with national workplace laws in the building and construction industry.

The ABCC does this by:

  • Providing information, education and advice on Commonwealth workplace laws
  • Investigating complaints or suspected contraventions of workplace laws
  • Taking court action to enforce workplace laws

Contents

Functions

The ABCC’s functions are set out in the Building and Construction Industry Improvement Act 2005 (BCII Act) and include:

Educating and advising building and construction participants of their rights and responsibilities.

The ABCC conducts presentations on the rights and responsibilities of building industry participants and responds to enquiries for advice and assistance.

They produce and distribute fact sheets on legislation, regulations and industrial relations practices and distribute updates on topics affecting the industry.

Investigating and prosecuting building industry participants

The ABCC investigates alleged contraventions of the BCII Act, the Fair Work Act 2009 (FW Act) (which replaced the Workplace Relations Act 1996), federal awards , enterprise agreements and related legislation. They also investigating sham arrangements and unfair services contracts provisions of the Independent Contractors Act 2006 (IC Act).

The ABCC may also intervene in court proceedings that involve a building industry participant or building work.

Monitoring and promoting compliance with building and construction industry laws and regulations

The ABCC monitors compliance with the BCII Act, the FW Act, the IC Act and the National Code of Practice for the Construction Industry (the National Code) through site visits, site inspection and audits.

History

Royal Commission into the Building and Construction Industry

The Royal Commission into the Building and Construction Industry was established in August 2001 and tabled its final report in March 2003.

The Royal Commission found that the building and construction industry was characterised by a widespread disregard for the law, cataloguing over 100 types of unlawful and inappropriate conduct.[1]

The Commission also found that existing regulatory bodies had insufficient powers and resources to enforce the law.

Building Industry Taskforce

The Building Industry Taskforce (BIT) was the predecessor to the ABCC, and was established on 1 October 2002 as an interim body prior to the establishment of the national agency envisaged by Royal Commissioner Cole.

In March 2004 the Interim Taskforce became a permanent taskforce, operating until the BCII Act created the ABCC in October 2005.

Read more about the BIT’s legal cases.

Nigel Hadgkiss was the director of the BIT from October 2002 until it was subsumed by the ABCC. On 29 September 2005 the Hon. John Lloyd PSM was appointed as the inaugural ABC Commissioner. ABC Commissioner Leigh Johns took up his appointment on 11 October 2010.

Regulatory focus

Unlawful Industrial Action

The ABCC can commence civil penalty proceedings against individuals and organisations who engage in unlawful industrial action, namely industrial action that is industrially-motivated, constitutionally-connected and not excluded action.

Building industrial action by employees includes work stoppages, bans and other restrictions on the performance of work. Building industrial action by employers includes locking out employees.

Civil penalty proceedings resulting in a fine may be brought against building and construction industry participants who engage in unlawful industrial action.

Coercion

Coercion in the building and construction industry is unlawful. Coercion includes pressure to make decisions regarding the hiring of building contractors and employees, agreement making, union or industry association membership, and superannuation schemes.

Wages and Entitlements

The ABCC provides free information and advice on pay, conditions, and workplace rights and obligations to building and construction industry participants. The ABCC also investigates complaints relating to the underpayments of wages, sham contracting or any other denial of entitlements for those working in the building and construction industry.

The National Code

In 1997 the Australian Government put in place a National Code of Practice for the Australian building and construction industry. In order to be eligible to work on Australian Government building and construction projects businesses must be compliant with the National Code of Practice. The National Code and Guidelines encourage a culture of best practice workplace relations and to compliance to all legal obligations and ethical tendering requirements.

Sham Contracting

A sham contract is where an employer deliberately disguises an employment relationship as an independent contracting arrangement, instead of engaging the worker as an employee. This may mean the worker misses out on some entitlements.

In other cases, employees are pressured to become independent contractors where they are threatened with being dismissed or are misled about the effect of changing their working arrangements.

The FW Act and IC Act protects genuine employees from sham contracting arrangements.

Right of Entry

The ABCC oversees laws regarding how and when a person can enter a building or construction worksite. Union officials wishing to enter a building or construction worksite must hold a valid federal permit and in most instances must provide at least 24 hours written notice. If the reason for entry relates to an occupational health and safety issue, the written notice period may not apply.

Industry Response

Industry response to the ABCC has been varied. Industry associations such as Master Builders Association (MBA) have generally voiced strong support of the ABCC,[2] while the union movement oppose the ABCC and seek to have the agency abolished.[3]

Section 52 compulsory examination power

Section 52 of the BCII Act provides the ABC Commissioner with the power to compel a person who has evidence relating to an investigation to answer questions, provide information and/or produce documents. People who fail to comply with a section 52 notice can be prosecuted by the Commonwealth Department of Public Prosecutions. The maximum penalty is six months imprisonment. A court may instead of, or in addition to imprisonment, impose a maximum $3,300 fine for breaches, and five times that for a body corporate convicted of an offence. This is provided for under subsection 4B(2) of the Crimes Act 1914.

Australia’s major construction union has criticised the ABCC’s use of the power saying, ‘the powers enable the ABCC to put construction workers in front of a secret interrogation’.[4]

In support of the ABCC’s Section 52 power MBA Victoria said:

In order to be effective in this role, the ABCC was provided strong powers to investigate alleged misconduct and breaches of the law. The ABCC needed these strong investigatory and compliance powers to break down the ‘wall of silence’, ‘culture of intimidation’ and ‘fear of speaking up’ in the industry. These powers were also provided to protect individuals who give evidence.[5]

International Labour Organization

In 2007 the Australian Council of Trade Unions (ACTU) submitted a complaint to the International Labour Organization (ILO) on the alleged harsh measures contained in the BCII Act against construction workers and their unions in continuing deterioration of compliance with Conventions 87 and 98. The Government responded to the complaint by outlining the national conditions that led to the BCII Act, which included the Royal Commission’s finding of a culture of lawlessness in the building and construction industry.[6]

Targeted campaigns

Sham Contracting Inquiry

In March and April 2011 the ABCC held a national inquiry into the practice of sham contracting. Events were held in Canberra, Sydney, Melbourne, Perth and Brisbane, and provided a forum for all building and construction industry participants to discuss the issues surrounding unethical practices and reach industry-wide solutions.

Wages and Entitlements

In March 2011 the ABCC took full responsibility for investigating complaints relating to wages and entitlements within the building and construction industry. Prior to this a memorandum of understanding had been in place between the ABCC and Fair Work Ombudsman (FWO) where such complaints were handled by the latter agency. ABC Commissioner Leigh Johns announced he would terminate this practice when he commenced his appointment on 11 October 2010.

Organisation structure

The ABCC is structured by four broad groups; Legal, Field Operations, Corporate Services and Governance, and Public Affairs.

External links

Further reading

References


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