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Commission’s powers outrage law firm


Cite as: (2006) 80(12) LIJ, p. 16

A Western District law firm has accused the Australian Building and Construction Commission (ABCC) of denying the principles of natural justice to three workers during proceedings in May and July this year.

Stringer Clark Solicitors has called on the Law Institute of Victoria (LIV) to make other legal practitioners aware of the ABCC’s powers and to lobby for changes to the institution’s procedures.

The ABCC, which was established last year, has, according to its website, the “powers to enforce workplace laws, to address the problems that the building and construction industry encounters ... Its key objective is to ensure that workplace relations laws are enforced in building and construction industry workplaces”.

Stringer Clark principal Richard Morrow said in a letter to the LIV that the ABCC’s procedures restrict a legal practitioner’s ability to represent clients.

However, the ABCC said its compliance powers have proven to be an effective method of obtaining information from reluctant witnesses.

Stringer Clark associate Vanessa Focken, who represented three workers in separate ABCC hearings in Portland, described the hearings as “disturbing”.

She said the experience left each client intimidated, confused and unable to be properly represented.

Ms Focken said she was not able to object to questions being put to her clients unless the questions were “unclear or irrelevant to the subject matter of the investigation”.

“I was also unable, under the directions of the Commission, to object or interrupt the proceedings. Our clients were not able to speak to me before answering a question and it really left them alone,” Ms Focken said.

The ABCC also made an order preventing Stringer Clark from discussing the pro-ceedings at all.

Ms Focken said the order restricted her from advising each client about the procedures and alerting them about what to expect. That non-disclosure order has since been withdrawn, making it possible for the firm to speak out against the ABCC and lobby for change.

Mr Morrow warned that the procedures adopted at the Portland hearings were examples of major principles of natural justice, long established in Australia, being denied to their clients.

“We believe many legal practitioners are unaware of the draconian powers given to the Commission,” Mr Morrow said.

Ms Focken said it was disappointing that an institution set up to promote respect for the role of law in the building and construction industry failed to respect basic legal processes.

In response to the above claims, ABCC Commissioner John Lloyd said the use of its compliance powers has assisted investigations which would otherwise have stalled.

“The compliance powers are used as a last resort if someone chooses not to cooperate voluntarily with an ABCC investigation,” he said in a written response to the LIJ.

“The ABCC’s mission is that workplace relations laws are enforced in building and construction industry workplaces. We will continue to exercise these powers in accordance with the legislation and the guidelines.”

Since the ABCC was established on 1 October 2005, Australian Bureau of Statistics figures show the number of working days lost to industrial action have fallen from 43.5 days per 1000 workers in March 2005 to 5.7 days in March 2006.

“The ABCC is here to help the industry get on with the job of being more productive and to ensure that unlawful activity in the industry is investigated and prosecuted if necessary,” Mr Lloyd said.

LIV CEO Mike Brett Young said the matter had been referred to the LIV Industrial Relations Committee for investigation.


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