03/04/2009 - 14:41

New building watchdog too soft: CCIWA

03/04/2009 - 14:41

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The Chamber of Commerce and Industry WA has expressed concern over what it says is the watering down of powers of the new building and construction industry watchdog and the penalties it can impose.

New building watchdog too soft: CCIWA

The Chamber of Commerce and Industry WA has expressed concern over what it says is the watering down of powers of the new building and construction industry watchdog and the penalties it can impose.

The comments come as a report into the creation of a specialist division for the building and construction sector within the federal government's new Fair Work Bill is released today.

The government had requested Murray Wilcox QC to carry out the report and prepare recommendations for the transition.

CCIWA said if the recommendations made by the report are implemented, there may be a return to the "bad old days" of harmful and costly industrial disputes on building and construction sites across the state.

"While the report finds that "there is still such a level of industrial unlawfulness in the building and construction industry, especially in Victoria and Western Australia", its author, the Honourable Murray Wilcox QC, has recommended that the penalties imposed on people, and organisations, that instigate unlawful industrial action be softened," CCIWA said.

The report recommends the maximum penalty that can be issued to an individual be lowered from $22,000 to $6,600 while at the corporate level, including unions, the penalty is $33,000, down from $110,000.

Judge Wilcox said this was to keep the sector in line with other industries.

He also recommended a string of protections for employees called for compulsory interrogations, including the payment of costs and legal expenses.

Judge Wilcox also recommended safeguards in the use of compulsory interrogations including a notice to be issued only by a presidential member of the Administrative Appeals tribunals to the person to be questioned.

CCIWA today said construction industry watchdog, the Australian Building and Construction Commission, has played an important role in stamping out unlawful and improper behaviour in the construction industry.

"Its strong powers, and ability impose significantly penalties, is the main reason behind its success," CCIWA said.

"Since its introduction in October 2005 there has been more than a 90 per cent reduction in the time lost due to industrial disputes on construction sites in Western Australia, and the rest of the Nation.

"It is critical there remains a powerful watchdog to scrutinise the building and construction industry."

State and territory ministers will be asked to consider the recommendations and report by June 2009.

 

 

A summary of the report's recommendations are below:

 

Recommendations

Recommendation 1:

The proposed Specialist Division be located within the Office of the Fair Work Ombudsman but have:

(i) operational autonomy under a Director, appointed by the Minister, who would implement policies, programs and priorities determined by an advisory board comprising the Fair Work Ombudsman, the Director and a number of part-time members appointed by the Minister; and

(ii) funds allocated each year against an Outcome related only to the Specialist Division.

Recommendation 2:

The provisions of the Fair Work Bill governing:

(i) the conduct of employers, employees and industrial associations; and

(ii) penalties for contraventions of the Fair Work Bill; apply, unchanged, to participants in the building and construction industry.

Recommendation 3:

The Director of the Building and Construction Division be invested with a power, similar to that contained in section 52 of the Building and Construction Industry Improvement Act 2005, to cause people compulsorily to attend for interrogation, but subject to the safeguards contained in Recommendation 4; and

(i) the grant of this power be reviewed after five years;

(ii) in order to ensure review, the provisions in the new legislation providing for compulsory interrogation be made subject to a five-year sunset clause.

Recommendation 4:

The use of compulsory interrogation be subject to the following safeguards:

(i) a notice to a person compulsorily to attend for interrogation be issued only by a presidential member of the Administrative Appeals Tribunal who is satisfied by written material, which may include evidence on the basis of "information and belief", that:

(a) the Building and Construction Division has commenced an investigation into a particular suspected contravention, by one or more building industry participants, of the Fair Work Act, an "industrial law", as defined by that Act, or an industrial instrument made under that Act;

(b) there are reasonable grounds to believe that a particular person has information or documents relevant to that investigation, or is capable of giving evidence that is relevant to that investigation;

(c) it is likely to be important to the progress of the investigation that this information or evidence, or those documents, be obtained; and

(d) having regard to the nature and likely seriousness of the suspected contravention, any alternative method of obtaining the information, evidence or documents and the likely impact upon the person of being required to do so, insofar as this is known, it is reasonable to require that person to attend before the Director or a Deputy Director and answer questions and/or produce documents relevant to the investigation;

(ii) the Director or a Deputy Director of the Building and Construction Division preside at all compulsory interrogations;

(iii) the Commonwealth Ombudsman monitor proceedings at all compulsory interrogations and for that purpose the Director:

(a) promptly notify the Commonwealth Ombudsman of the issue of all notices to attend for interrogation; and

(b) promptly after the interrogation, supply to the Commonwealth Ombudsman a report, a video recording of the interrogation and a copy of any written transcript; and

(iv) the Commonwealth Ombudsman report to Parliament annually, and otherwise as required, concerning the exercise of the power of compulsory interrogation.

Recommendation 5:

The legislation authorising compulsory interrogation provide for:

(i) payment to persons summoned for interrogation of their reasonable expenses (travelling, accommodation and legal, as may be) and any loss of wages or other income; and

(ii) recognition and availability of client legal privilege and public interest immunity.

Recommendation 6:

(i) A new Division 4 be added to Part 5-2 of the Fair Work Bill relating to the "building and construction industry", as therein defined.

(ii) The definition of "building and construction industry" follow the definition of "building work" in the Building and Construction Industry Improvement Act 2005, but excluding off-site work.

Recommendation 7:

The Director of the Building and Construction Division have all the functions, powers and responsibilities, in relation to the "building and construction industry", as defined in the new legislation, that the Fair Work Ombudsman has in respect of other industries; including, in particular, investigation of suspected unlawful behaviour by any building industry participant (whether employer, employee or industrial association) and the prosecution of penalty and other legal proceedings.

Recommendation 8:

Except perhaps in rural and remote areas, the Building and Construction Division have its own dedicated
operational staff, including inspectors.

STANDING BY BUSINESS. TRUSTED BY BUSINESS.

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