Master Builders busts a number of myths about the powers and operation of the ABCC.
Fiction: The building and construction workers are subject to draconian laws that other workers are not.
 The powers that the ABCC holds under the Building and Construction Industry Improvement Act (BCII Act) are very similar to laws in other industries
The compliance powers that the ABCC holds are very similar to the compliance powers of the Australian Securities and Investment Commission (ASIC), the Australian Prudential Regulation Authority (APRA), the Australian Competition and Consumer Commission (ACCC), and the Australian Taxation Office (ATO). These compliance powers are not unique to the building and construction industry.
Fiction: The ABCC laws were created to ‘criminalise’ union activity on-site.
The ABCC and the BCII Act were created to produce a fair and safe working environment for all building industry participants.
During the Royal Commission, Justice Cole found that the industry was rife with criminal activity. Justice Cole heard cases of coercion, physical abuse, destruction of property and bribery on construction sites. The ABCC was created to re-establish the rule of law on all construction sites. In his Review, Justice Wilcox recognised that there was a continued need for a strong body to monitor and enforce the rule of law on Australian building sites.
The ABCC’s role is not to criminalise legitimate union activity, but to enforce the law and stamp out illegal activity undertaken by any building industry participant.
Fiction: The ABCC deliberately targets employees who are members of a union.
This is untrue. Both employers and employees have been investigated by the ABCC.
The ABCC has initiated 61 proceedings before the courts and the AIRC / Fair Work Australia since 1 October 2005 (as of 25 August 2009). Of these, 41 proceeding were successful and monetary penalties were imposed by the courts in 34 of these cases. Of these 34 cases, monetary penalties were awarded against unions in 26 cases, against employers in two cases, against employees in two cases, against employers and unions in three cases, and against employee and union in one case. Victoria has had the most investigations and proceedings, and, as of 25 August, the ABCC has finalised 31 cases. The ABCC’s predecessor, the Building Industry Taskforce, put 29 cases of alleged misconduct to the courts. Of these, 15 cases were against the unions and nine against employers.
The ABCC upholds the rule of law. Any building industry participant who breaks the law is liable to investigation and prosecution by the ABCC.
Fiction: The ABCC can interrogate construction employees without any right to legal representation.
The ABCC has a number of powers to investigate illegal or inappropriate conduct in the building and construction industry. These powers include interviewing persons (e.g. employers and employees) who may have seen or participated in such conduct. The ABCC undertakes a number of investigations, some openly and some privately. The ABCC can do this and does so to protect the person involved in the investigation from intimidation or being illegally influenced.
In a letter to the Deputy Prime Minister from ABCC Commissioner John Lloyd, Commissioner Lloyd states that “(a) significant number of examinees are persons who ask to give information pursuant to this power (compulsory examinations). They take this approach because they fear reprisal if seen to be cooperating with the ABCC… We estimate that 33 per cent of examinations are conducted on this basis.”
All persons are entitled to have a legal representative at the examination. In the case Bonan v Hadgkiss, Deputy ABCC Commissioner Hadgkiss excluded a particular legal representative because she had appeared for another witness and may have, therefore, prejudiced the investigation. The Federal Court upheld this ruling. However, in the unusual circumstance where a particular legal representative is excluded, the witness is given time to arrange for alternative legal representation of their choosing (Source: ABCC).
Fiction: Under the BCII Act, building industry participants have no protection against self-incrimination, meaning information provided in interrogation can be used against them in Court.
Whilst the ABC Commissioner can compel a person to provide information, that person is protected from self-incrimination. Neither the information provided, nor information derived from what is provided, can be used against the person in court, unless they are being prosecuted for:
- failing to comply with the notice;
- knowingly providing false or misleading information, answers or documents; and / or,
- obstructing, hindering, intimidating or resisting an official in the performance of the official’s functions.
Without compulsory interrogation powers, the code of silence that has operated in the construction industry due to a culture of fear and intimidation would be reasserted. This would severely impact the effectiveness of investigations and leading to a marked increase in lawless and disruptive behaviour.
This was recognized by Wilcox who recommended the retention of compulsory interrogation powers.
Fiction: The ABCC does not allow construction employees to speak up about workplace issues, such as health and safety issues.
This is untrue. Employees and employers are encouraged to hold open dialogue about legitimate concerns in the workplace, especially on occupational health and safety.
Master Builders encourages employers and employees to speak regularly about issues on-site and work to find appropriate solutions.
Fiction: The ABCC’s powers are unjustifiable.
Due to the systemic and ingrained culture of lawlessness, intimidation, coercion, acts of violence and thuggery on Australian building sites, the ABCC requires strong penalty and enforcement powers.
The building and construction industry has had a volatile industrial relations history. Penalties for inappropriate or illegal conduct need to be tough. Master Builders believes that the ABCC has been successful in part due to the high penalties attached to illegal activity.
|
