Building Industry and Special Projects Inspectorate

• What is BISPI?
• Dual systems of jurisdiction: federal and state
• Investigations and prosecutions procedures
• BISPI Complaints & Investigative Procedures
• Underpayment of wages
• Freedom of association
• Right of entry
• Routine inspections
• Criminal behaviour
• Other useful links

What is BISPI

The Building Industry and Special Projects Inspectorate (BISPI) is a Branch of the Compliance and Education Directorate, Labour Relations Division.

The role of BISPI is to monitor and investigate compliance of awards and industrial laws primarily in the building and construction industry, and investigate and where necessary prosecute when breaches occur. The role specifically involves:

• providing advice to employees, unions, employers, contractors and sub contractors primarily in the building and construction industry on their rights and legal obligations under awards and industrial laws;
• carrying out regular inspections of time and wages records of employers and sub contractors and visiting building sites to monitor compliance;
• investigating alleged breaches of awards or industrial laws; and
• facilitating the laying of complaints by employees, union officials, contractors or sub contractors about trespass, intimidation, threats and any other criminal activity with the appropriate officers within the Police Service.

Dual systems of jurisdiction: federal and state

The industrial relations system in Western Australia is divided into two jurisdictions: the Federal and the State. Awards and agreements may be registered in either jurisdiction. Employees may be covered by either one jurisdiction or the other, but not both. In the case where an employee is covered by a State Award or Agreement and a Federal Award or Agreement, the Federal jurisdiction will override the State where any inconsistency occurs.

State

The State jurisdiction operates under the WA Industrial Relations Act 1979. The Western Australian Industrial Relations Commission (WAIRC) was established under this Act for the purpose of preventing and settling industrial disputes in WA. One method in which this is achieved is through the creation of Awards and Industrial Agreements - often called Enterprise Bargaining Agreements (EBA's). These documents set out minimum employment terms and conditions that are binding on employees and employers.

Federal

The Federal jurisdiction operates under the Workplace Relations Act 1996. The Australian Industrial Relations Commission (AIRC) was established under this Act for a similar purpose as the WAIRC. The AIRC is responsible for the registration of Federal Awards and Certified Agreements, which are the Federal equivalent of EBA's in the State system.

Issues such as Freedom of Association and Right of Entry vary between the two jurisdictions.

Investigations and prosecutions procedures

As BISPI officers are Industrial Inspectors appointed under both the state and federal jurisdictions, the compliance, investigative and prosecution procedures applying to Industrial Inspectors within the Compliance and Eduction Directorate of DOCEP will apply to BISPI.

BISPI Industrial Inspectors carry out their investigations and prosecutions in accordance with the Compliance and Eduction Directorate operational procedures. All BISPI Industrial Inspectors are trained in those procedures.

BISPI, however, maintains a separate identity to the Compliance and Eduction Directorate Industrial Inspectors, with its own complaints process and data base, and reporting structure for investigations and prosecutions.

The following is a summary of the specific procedures in relation to the operation of BISPI.

BISPI Complaints & Investigative Procedures

Complaints

Complaints, generally received by phone, fax or mail, will be acknowledged by the BISPI in writing. In instances where a complainant declines to make a formal complaint, the information provided will be recorded and retained but not necessarily followed up. An example of such an instance would occur when a complainant rings for advice but does not wish BISPI to become involved.

When a formal complaint is received, a complaint form is completed and a file number is assigned to the case. The complaint form is then passed to the Assistant Director, who assigns the case to the Senior Investigations Officer to coordinate the investigation. The investigation will commence at this time. In some instances BISPI Inspectors will receive complaints directly, in which case they will generate a complaint form and discuss the case with the Assistant Director before the investigation begins.

In the event the Assistant Director is not immediately available and action needs to be taken the Senior Investigations Officer or the BISPI Industrial Inspector in coordination with the Senior Investigations Officer will take the necessary action. As soon as possible thereafter usual procedures will be implemented.

Investigations & Prosecutions

Investigations will be carried out in accordance with the investigative procedure of the Compliance and Eduction Directorate.

Consistent with the approach of Compliance and Eduction Directorate procedures, if there is sufficient evidence to sustain a complaint of a breach, the Senior Investigations Officer shall prepare a report to the Assistant Director BISPI recommending prosecution action. The Director, Compliance and Eduction Directorate will have final endorsement of any prosecution.

In the event of a prosecution being approved, a legal brief is prepared by the Senior Investigations Officer and referred to the prosecutor. In all instances, the complainant is advised in writing of the outcome.

If a decision is taken to close the file, the complainant is notified of this decision in writing.

Offences coming under other jurisdictions

In the course of an investigation it may become clear that the offence that has been committed is outside the jurisdiction of the Industrial Inspector. The complaint may be more properly investigated by one of following agencies:

Office of the Employment Advocate

The WA Industrial Relations Act 1979 provides power for an Industrial Inspector to investigate and prosecute offences against the freedom of association provisions involving federally covered employees. However, when there is a complaint about breaches of right of entry under the Federal Act, the investigation should be referred to the Office of the Employment Advocate.

Police Service

When a complaint or an investigation reveals a breach of the criminal code, the matter will be referred to the Assistant Director, who is in liaison with the Regional Coordinator for the Police Service. Through this channel BISPI has necessary contacts in the police service to facilitate the reporting of criminal matters.

WorkSafe

Complaints about safety and health should be referred to the relevant WorkSafe Inspector.

Underpayment of wages

BISPI Industrial Inspectors will investigate breaches of award conditions. However, any complaints of underpayments of wages need to be made through the department's normal complaint channels. Click here.

Freedom of Association

State

It is an offence under the WA Industrial Relations Act 1979 to do the following things on the basis of membership or non-membership of a union:

• Refuse employment to people.
• Intimidate or harm or damage the interests of workers performing work, whether as employees or contractors. The harm or damages includes such things as being sacked, demoted, failing to get a promotion that was reasonably expected, reduced pay or conditions, employment position affected negatively in someway.
• Threaten that workers will be harmed or damaged.
• Threaten someone or to get someone else whether, by threats or promises, to harm or damage the interests of workers.
• Directly or indirectly hinder or prevent the employment of a person or the promotion of an employee.
• Threaten that discriminatory action, such as refusing to use the services, receive goods or services from or supply goods or services to, will or may be taken against a person.
• Threaten that the free and lawful trade of a person's trade, profession or occupation will be interfered with.
• Advise, encourage or incite another person to take discriminatory action against other people.

It is an offence under the WA Industrial Relations Act 1979 to do the following things on the basis of membership or non-membership of a union or an employer association:

• Treat workers, whether they are employees or contractors, better or worse in their employment.
• Conspire with other people to treat workers, whether they are employees or contractors, less or more favourably.
• Take or threaten to take industrial action against employers to make them take discriminatory action against other people.

Penalties for offences against these provisions are severe with maximum penalties of $5,000 for individuals and $10,000 for corporations or unions.

If officers or members of unions or officers of corporations are found guilty of an offence, the unions or corporation, except if they can show they have taken reasonable steps to prevent such offences, will also be guilty of an offence.

Agreements or awards that have clauses that say workers should or should not be members of the union or have preference to union member clauses have no effect because they are against the law.

Federal

The Federal Freedom of Association laws under section 285 of the Workplace Relations Act 1996 provide for similar offences to those under the State system.

Right of entry

Union Right of Entry Provisions

The Labour Relations Reform Act 2002 amends union official's right to entry provisions previously contained in the Industrial Relations Act 1979 and the Building Trades Construction Award.

New right of entry legislative provisions

An Authorised Representative may enter during working hours any premises where relevant employees work for the purposes of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions or to investigate any suspected breach of the IR Act 1979, the LSL Act 1958, the MCE Act and the OHS Act 1984.

Notice Period Requirements

An authorised representative is under no obligation to provide notice to the occupier to hold discussion or investigate breaches on sites covered by the Building Trades (Construction) Award 1987, as a consequence of Clause 40 of the award not requiring union officials to provide a notice period prior to exercising right of entry.

Suspension or revocation of an authorised representative's right of entry authority

Any person may make application to the Western Australian Industrial Relations Commission to have an authorised representative's permit suspended or revoked under two circumstances:

• An authorised representative acts in an improper manner whilst exercising right of entry. The term 'improper manner' is not defined in the legislation. 'Improper manner' would likely include any breach of Western Australian law or conduct outside accepted industry practices or standards of reasonable behaviour.

• An authorised representative unduly intentionally and unduly hinders the work of an employee or employer during working time. The actions of an authorised representative must not deliberately and unnecessarily disrupt the work of any employee or employer.

Civil penalties

The legislation provides scope for individuals to be prosecuted under the following circumstances.

• An occupier - if an occupier refuses or intentionally hinders or delays the entry of an authorised union official entering under these provisions
• Any person - if they intentionally and unduly hinders or obstructs an authorised union official whilst exercising their powers of entry.
• Any person who purports to exercise powers of right of entry when that person is not the holder of a current authorisation from the WAIRC.

Routine inspections

BISPI carries out routine inspection of time and wages records within the building and construction industry and related industries. These are usually carried out through campaigns consisting of awareness raising about employment obligations as well as compliance checks through inspection of time and wages records.

Particular occupations or trades are targeted for a campaign of compliance and education. After consulting the relevant union and employer organisations about the particular campaign, employers in the targeted occupation or trade are written to explaining the purpose of the campaign and providing information about obligations on keeping time and wages records and the relevant awards.

A random sample of employers is chosen to have their time and wages records checked.

Current campaigns are:

Plastering - December to March 2002

Glazing - February to April 2002

Earth Moving - dates to be advised

Further information

The Building Industry and Special Projects Inspectorate (BISPI) provides advice to employers and employees on award and industrial law rights and obligations. It also monitors compliance with awards and industrial laws and investigates complaints by employers and employees of breaches.

BISPI helpline - 1800 306 002

Criminal behaviour

BISPI does not investigate complaints of criminal behaviour such as threats and intimidation, trespass or fraud and secret commissions. These are matters for the WA Police Service to investigate.

BISPI does have a protocol with the WA Police Service that allows BISPI to facilitate the laying of complaints by people in the building industry about criminal behaviour to the police.

Other useful links

Workcover

http://www.workcover.wa.gov.au/