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Comment on ICA criticisms of ABCC sham inquiry process

5 March 2011

From Jon M

This response does not do much to allay your concerns.

Claim 1. The response confirms there is an inevitable confusion about the purpose of the inquiry. Is it to examine issues related to sham contracting? Or is it to uncover potential incidents of unlawful conduct for the ABCC to investigate? This calls into question the suitability of the ABCC conducting such an inquiry. Ideally it should be undertaken by a body not encumbered by legislative powers to investigate and prosecute unlawful conduct. Conduct of the inquiry by the ABCC leads to inevitable confusion and compromises the usefulness of the inquiry.

It is incongruous to have an inquiry overlaid by the ABCC litigation policy.

Claim 2. He states the terms are applicable to the website use. But surely the website is integral to the conduct of a transparent public inquiry. The terms are onerous and will impact on the nature and content of participants' submissions.

Claim 3. Participants are able to approach the ABCC for permission to go outside the terms. This appears to confirm that the terms are unnecessarily restrictive, complex and confusing. The notion of "talk to us" also emerges from Claim 2 and Additional Concerns responses. The overall response suggests the ABCC went overboard on protecting its position and powers without thinking about how this could impact on the inquiry.

From Greg M

I admit I haven't taken the time to read the full terms of reference for the enquiry, but from reading the three concerns and Commissioner Johns' response to them I assume that points 2 & 3 are probably ok but you have to read the fine print to realise you are safe.

However, point 1---protection from prosecution---he doesn't make any promises; only suggest that they might not prosecute if you cooperate. I have to admit, if I knew I was in a grey area of the law, I'd be reluctant to draw attention to myself by making a submission. The old saying says "it's easier to ask forgiveness than permission", but it's even easier to keep quiet hide the whole lot under the rug. If you really want people to come forward and tell the truth, you need to convince them that they won't get into more trouble for doing so.

I'd suggest to Commissioner Johns that rather than defending his terms from what he sees as an uninformed criticism, he could take on board that rewording them could make his intent clearer the first time it is read. But that aside; yes, the ABCC does an important and necessary job and does it well.

From Master Builders Association Newsletter No. 3, Tuesday, March 1, 2011

Sham Contracting inquiry---update
Members will recall from earlier Newsbriefs (No.17-2010, No.18-2010 and No. 1-2011) that the ABCC is conducting an inquiry and round-table into sham contracting as part of its push to broaden its focus under new ABC Commissioner Leigh Johns. Some stakeholders have expressed concerns with a number of the underpinning assumptions made in the related discussion paper and the structure of the inquiry itself. For example, the Independent Contractors Australia (ICA) has advised their members not to become formally involved with the inquiry, labelling the processes adopted in the inquiry 'strange and odd'. For that reason, ICA will not make a formal submission.

Master Builders shares a number of these concerns. However, we believe members interests are best served through our formal involvement in the inquiry. As such, we will be lodging a formal submission through our national office. While individual members are encouraged to make their own decision regarding their involvement in the inquiry, Master Builders recommends that those intending to do so familiarise themselves with the attendant risks of taking part. These include the lack of any legal protection for those who offer a submission; a submission process that seeks to limit responses to 11 key questions; the lack of confidentiality; and copyright related issues.

Master Builders will also be conducting a number of independent contracting seminars for members, with details to be confirmed in the near future. Members seeking further information should contact the IR Department on (03) 9411 4560.

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