During the 2002 Royal Commission, Justice Cole recognised the need for urgent reform in the building industry. He recommended the establishment of the Building Industry Taskforce, an interim body for the ABCC, which commenced operations five months before the release of the Final Report.
The Taskforce had the task to “secure the law in the industry” until the ABCC commenced operations. During this time, the Taskforce investigated more than 380 matters. Unfortunately, around 50 per cent of these investigations had to be discontinued due to the inability of the Taskforce to gather information. This was mainly due to witnesses being unwilling to provide statements.
In total, the Taskforce put 29 matters before the courts: 15 proceedings against the unions, nine against employers, four matters involving both unions and employers, and one against the State Government.
The ABCC formally replaced the Taskforce on 1 October 2005.
The role of the ABCC
The ABCC’s role is to enforce workplace relations laws on Australian construction sites.
The ABCC is also responsible for ensuring that building industry participants comply with the relevant State and Territory laws and the National Code of Practice for the Construction Industry (the Code) and the Australian Government Implementation Guidelines (the Guidelines).
Under the Building and Construction Industry Improvement Act (BCII Act), the ABCC has a number of responsibilities, including:
- The ability to investigate alleged breaches of the BCII Act and the Code and Guidelines;
- Commence court proceedings where breaches of the relevant Acts have occurred; and,
- Intervene in court proceedings at the Australian Industrial Relations Commission (AIRC), if it is appropriate.
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.
Compliance Powers
Under the BCII Act, the Commissioner of the ABCC and ABCC Inspectors have a number of powers to compel persons to comply with their requests when they investigate potential breaches of the law.
i. The ABCC Commissioner
The Commissioner of the ABCC has a number of powers under Section 52 of the BCII Act to compel a person to provide information, produce documents and / or answer questions at an examination. This is so the Commissioner can investigate whether contraventions of the relevant building industry laws have occurred.
The Commissioner can utilise this power when all other avenues of obtaining information have been unsuccessful. This can include witnesses voluntarily providing information to the Commissioner.
If the Commissioner (or the Deputy Commissioner) decides that an examination is required, the Commissioner will issue a notice to attend an examination. This letter includes an explanation letter as well as the option to be represented by legal counsel.
Not complying with a notice to attend is a serious offence under Section 52 (6) of the BCII Act and attracts a penalty of up to six month gaol.
In a letter from the ABCC Commissioner John Lloyd to Deputy Prime Minister Julia Gillard on 27 April 2009, the Commissioner confirmed what many people in the building industry already knew – that a significant portion (about 33 per cent) of those persons subject to compulsory examination request to give information under this power because they fear reprisal if seen to be cooperating with the ABCC.
ii. The ABCC Inspectors
Should a building industry participant refuse to comply with a request from an ABCC inspector, they are currently liable for strong penalties, including:
- A maximum penalty of up to $110,000 for refusing or delaying entry to premises by an inspector;
- Maximum penalty of $13,200 and / or two years gaol for obstructing, hindering, intimidating or resisting an ABCC inspector; and,
- Maximum penalty of $6,600 and / or twelve months gaol for knowingly misleading or providing false information to an ABCC inspector.
While these powers may seem strong, the building and construction industry is a notoriously tough industry which has been plagued by violence and intimidation. There is a deep culture of lawlessness within the industry and this must be stamped out.
It is due to these strong investigative powers that the building and construction industry has enjoyed almost four years of relative industrial peace. These powers must be retained in full to keep all building industry participants operating within the law.
The Federal Government has announced that they will replace the ABCC with the Office of the Fair Work Building Industry Inspectorate (FWBII). This is to be facilitated by the proposed Building and Construction Industry Improvement (Transition to Fair Work) Bill which is currently before Parliament.
The building industry is concerned that the replacement body will have severely reduced investigative, compliance and enforcement powers. It is these very principles that have been so effective in cleaning up an industry that was once the worst performing in Australia.
For more information on the ABCC, please visit their website.
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