Australia’s regulator for industrial relations in the building and construction sector has completed 100 court cases since being re-established five years ago, a new report has found.

But the regulator remains unpopular with unions, who claim it has targeted workers whilst failing to act against employers who commit wage and entitlements theft.

In its latest Industry Update, the Australian Building and Construction Commission (ABCC) has summarised its regulatory and enforcement action since its reestablishment five years ago in December 2016.

According to its summary, since its reestablishment, the ABCC has:

• Completed 100 cases – 90 of which resulted in successful litigation.
• Achieved imposition of penalties totalling $15.261 million.
• Assessed more than 10,000 enterprise agreements for compliance with the Code for the Tendering and Performance of Building Work 2016.
• Recovered more than $4.98 million in unpaid wages for 8,200 workers. This includes recoveries of more than $1.6 million for more than 3,100 workers in the first half of 2022.

Of the 100 cases which have been completed, 90 resulted in a successful prosecution whilst a further nine were unsuccessful (one case was discontinued).

Seventy-four cases were against the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU) whilst a further five were against other unions (see chart).

Common forms of alleged contravention include coercion, breach of right-of-entry requirements, unlawful industrial action and freedom of association (see chart).

On wage underpayment and recovery, meanwhile, the ABCC says common breaches including using incorrect awards or enterprise agreements, failing to pay allowances, incorrect application of overtime provisions and non-compliant record keeping practices.

Widely supported by industry associations but despised by unions, the ABCC was reinstated by the Coalition Government in December 2016 after previously having been abolished by Labor in 2012.

Its reimposition followed findings of a culture of law-breaking and widespread disregard for the law by the CFMMEU (then known as the CFMEU) during the Royal Commission into Trade Union Governance and Corruption.

Its role is to enforce Commonwealth workplace relations legislation in the building and construction industry.

Sentiments toward the regulator are mixed.

On one hand, employer groups such as the Master Builders Association have frequently argued that the regulator is an effective ‘cop on the beat’ and plays an essential role in enforcing workplace relations law in an environment of widespread illegal activity from unions.

Unions, however, view the body as a politically motived attack dog of the Coalition Government against unions and workers.

In a statement, the CFMEU National Construction Secretary Dave Noonan slammed the regulator’s performance – accusing it of targeting unions and workers whilst failing to prosecute employers for wage/entitlement theft or breaching safety regulations.

It pointed out that:

• Fines which have been levied against individual workers ($530,800 against 252 workers) exceeded those which have been imposed on employers ($513,255).
• Almost three quarters of the 100 cases pursued by the ABCC have been against the CFMEU (74 cases) whilst only 13 have been against employers.
• The regulator has completed only three cases related to wages and entitlements (refer below) ‘in an industry where wage theft is rife and where the union has recovered tens of millions in wages for workers’.

Noonan says the regulator has failed and should be abolished.

“In 2016 the ABCC was re-constituted with a legally enshrined obligation to act as an independent and unbiased regulator in the construction industry and NOT as a politically motivated attack dog to be wielded as a weapon against workers and their unions,” Noonan said.

“Yet today the ABCC is shamelessly celebrating its blatant record of failure and ongoing refusal to act as an independent and unbiased regulator.

“This hopelessly compromised and deeply politicised outfit allows unscrupulous employers to rip workers off with impunity. Construction workers should not face being targeted and fined by a regulator with the powers of a Royal Commission that ignores criminal behaviour by employers.

“The ABCC must be abolished.”

Two points should be noted about the union’s claim.

First, the union’s argument that the ABCC has only brought three cases to court relating to wages and entitlements may be misleading as many matters of underpayment have been resolved before reaching trial.

As noted above, the ABCC has in fact recovered $4.98 million for 8,200 workers since its reinstatement.

On the union’s claim about the ABCC having ignored safety breaches, meanwhile, readers should note that the ABCC is not intended to be a safety regulator and instead has responsibility only for workplace relations.

Instead, safety matters are regulated by work, health and safety authorities in each jurisdiction.

A spokesperson for ABCC refused to respond to the union’s claims but pointed to the fact that 90 of the 99 cases which the regulator has completed have resulted in successful prosecutions.

This appears to refute any notions of cases being pursued without justification.

As for the large number of cases being pursued against the CFMMEU, the spokesperson pointed to frequently reported comments about the union’s extensive history of unlawful conduct from judges.

When handing down fines of $221,000 against the union and two of its Tasmanian officials for contravening right of entry laws on the Elizabeth Street project in Hobart, for example, the Federal Court noted that ‘it is nowadays a notorious fact that the CFMMEU is a well-resourced, recidivist offender of workplace laws’.

Prior to that particular case, the Court noted that the union had broken workplace laws more than 170 times over two decades.

Source: Australian Building and Construction Commission Industry Update 2022