Australia: Learning the ABCC of investigations

In brief - What are the ABCC's investigative powers and what do building industry participants need to consider?

In the face of an investigation by the Australian Building and Construction Commission (ABCC), building industry participants should be aware of the specific powers of the ABCC and the benefits that may arise from adopting a strategic approach in managing their involvement in an investigation.

Although it may appear that the ABCC is focused on the misconduct of unions, it is important to note that all building industry participants may be required to participate in, or be the subject of, an ABCC investigation. In the most recent reporting period (ending March 2018), the ABCC had 81 open investigations nationally. Of those, employers were the subject of 44 investigations.

Investigative powers of the ABCC

The ABCC has broad powers under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) to gather information and investigate potential contraventions of a designated building law (including the Code for the Tendering and Performance of Building Work 2016 and the Fair Work Act 2009 (Cth)), including information concerning:

  • wages and entitlements
  • sham contracting
  • freedom of association
  • right of entry
  • coercion
  • discrimination
  • unlawful industrial action
  • adverse action

The intentional obstruction or hindrance of an ABCC Inspector in the performance of their functions may result in significant penalties (up to $210,000 for a body corporate and $42,000 for an individual).

As a result, it is important that building industry participants ensure that ABCC investigations are managed appropriately and that they seek advice and assistance at an early stage.

Dealing with an investigation by the ABCC

Voluntary assistance

Typically, an ABCC Inspector will notify a building industry participant that they are conducting an investigation. At that point they may informally request documents, information or witness statements.

While your first instinct may be to voluntarily comply with such requests, there may be significant industrial, legal strategic advantage in not complying with an informal request but rather waiting for such requests to be formalised.

Notice to produce documents ( section 77)

If an informal request is not accommodated then an ABCC Inspector may serve a Notice to Produce Documents.

A notice must be in writing (in the required form), served on a building industry participant, and require the production of documents. A building industry participant has at least 14 days to produce the documents.

The notice must specify the matter to which production relates, with sufficient particularity to permit a building industry participant to ascertain the relationship between what is sought and the matter which is being investigated. A notice may be void if it does not show that the particular production is within the authority of an Inspector to require ( Construction Forestry Mining and Energy Union v Alfred [2016] FCA 591).

A building industry participant is only required to produce the documents that are specifically listed in the notice. A building industry participant may also consider redacting from the documents any irrelevant information.

Examination ( section 61B(2))

The ABCC also has the power to serve an examination notice requiring the production of documents, information, or the attendance of a person to answer questions before the ABC Commissioner.

There are very strict requirements that the ABCC must comply with in issuing an examination notice. The agency is also required to notify and report to the Commonwealth Ombudsman regarding an examination notice.

Importantly, the BCIIP Act ( section 103) extends a protection from liability for building industry participants who give information, produce documents or records or answers questions which they are required to respond to under an examination notice (ie. if they are compelled to answer questions). The protection afforded by the BCIIP Act in relation to compliance with examination notices extends to "any information, document or thing obtained as a direct or indirect consequence of giving the information or answer..." ( section 102(2)(b) of the BCIIP Act).

This power seems to be rarely used by the ABCC, with only six examination notices issued in two investigations between January to March 2018.

Attend the premises and require the production of documents ( section 74)

In the event that an ABCC Inspector enters the premises of a building industry participant, they may exercise certain powers, including inspecting documents or interviewing a person.

Before entering the premises (or as soon as practicable after entering), the ABCC Inspector must show his or her identity card. It is also important that they be inducted onto site (for safety reasons) and that they be accompanied if they want to inspect any area of the site.

Building industry participants should consider training staff and seek legal advice when faced with an ABCC investigation

There are considerable risks and costs associated with managing ABCC investigations. We recommend that building industry participants train staff to ensure they are aware of their rights and obligations under the BCIIP Act. Building industry participants should seek specific legal advice in dealing with ABCC investigations as soon as they commence.

Megan Kavanagh Roxanne Hilton Matt Wichlinski
Work health and safety
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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