An Act to improve workplace relations practices in the building
and construction industry, and for related purposes
Chapter 1—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Building
and Construction Industry Improvement Act 2005.
2 Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1, 2 and 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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12 September 2005
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2. Sections 4 to 8
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9 March 2005.
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9 March 2005
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3. Chapters 2, 3 and 4
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The day on which this Act receives the Royal Assent.
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12 September 2005
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4. Sections 36, 37 and 38
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9 March 2005.
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9 March 2005
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5. Sections 39 and 40
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The day on which this Act receives the Royal Assent.
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12 September 2005
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6. Sections 41 and 42
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9 March 2005.
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9 March 2005
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7. Chapter 6
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The day on which this Act receives the Royal Assent.
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12 September 2005
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8. Chapters 7 and 8
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The day on which this Act receives the Royal Assent.
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12 September 2005
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Note: This table
relates only to the provisions of this Act as originally passed by the
Parliament and assented to. It will not be expanded to deal with provisions
inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3 Main object of Act
(1) The main object of this Act is to provide
an improved workplace relations framework for building work to ensure that building
work is carried out fairly, efficiently and productively for the benefit of all
building industry participants and for the benefit of the Australian economy as
a whole.
(2) This Act aims to achieve its main object
by the following means:
(a) improving the bargaining framework
so as to further encourage genuine bargaining at the workplace level;
(b) promoting respect for the rule of
law;
(c) ensuring respect for the rights of
building industry participants;
(d) ensuring that building industry participants
are accountable for their unlawful conduct;
(e) providing effective means for
investigation and enforcement of relevant laws;
(f) improving occupational health and
safety in building work;
(g) encouraging the pursuit of high
levels of employment in the building industry;
(h) providing assistance and advice to
building industry participants in connection with their rights and obligations
under relevant industrial laws.
4 Definitions
(1) In this Act, unless the contrary
intention appears:
ABC Commissioner means the Australian
Building and Construction Commissioner referred to in section 9.
ABC Inspector means an Australian Building
and Construction Inspector referred to in section 57.
accreditation scheme means the accreditation
scheme referred to in section 35.
AIRC means the Australian Industrial
Relations Commission established by section 8 of the Workplace Relations
Act.
Australian Fair Pay and Conditions Standard has
the same meaning as in the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009.
AWA has the same meaning as in the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009.
award has the same meaning as in the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009.
bargaining representative has the same
meaning as in the FW Act.
building association means an industrial
association whose eligibility rules allow membership by at least one of the
following groups:
(a) building employers;
(b) building employees;
(c) building contractors;
whether or not those rules also allow membership by other
persons.
Building Code means the code of practice
referred to in section 27.
building contractor means a person who has
entered into, or who has offered to enter into, a contract for services under
which the person:
(a) carries out building work; or
(b) arranges for building work to be
carried out.
building employee
means:
(a) a person whose employment consists
of, or includes, building work; or
(b) a person who accepts an offer of
engagement as an employee for work that consists of, or includes, building
work.
building employer means an employer who
employs, or offers to employ, building employees.
building enterprise agreement means an
enterprise agreement that applies to building work (whether or not it also
applies to other work).
building industry participant means any of
the following:
(a) a building employee;
(b) a building employer;
(c) a building contractor;
(d) a person who enters into a
contract with a building contractor under which the building contractor agrees
to carry out building work or to arrange for building work to be carried out;
(e) a building association;
(f) an officer, delegate or other
representative of a building association;
(g) an employee of a building
association.
building work has the meaning given by
section 5.
civil penalty provision means:
(a) a Grade A civil penalty provision;
or
(b) a Grade B civil penalty provision.
collective agreement has the meaning given by
the Workplace Relations Act.
Commissioner means the ABC Commissioner or a
Deputy ABC Commissioner.
Commonwealth authority (except in section 35)
means:
(a) a body corporate established for a
public purpose by or under a law of the Commonwealth; or
(b) a
body corporate:
(i) incorporated under a
law of the Commonwealth or a State or Territory; and
(ii) in which the
Commonwealth has a controlling interest.
Commonwealth industrial instrument means any
of the following:
(a) an award or transitional award;
(b) a workplace agreement;
(c) a pre‑reform certified
agreement or a pre‑reform AWA;
(d) an order of the AIRC;
(e) the Australian Fair Pay and
Conditions Standard;
(f) a fair work instrument;
(g) the National Employment Standards.
Commonwealth place means a place referred to in
paragraph 52(i) of the Constitution, other than the seat of government.
conduct includes an omission.
constitutional corporation means:
(a) a corporation to which paragraph
51(xx) of the Constitution applies; or
(b) a body corporate that is
incorporated in a Territory.
Deputy ABC Commissioner means a Deputy
Australian Building and Construction Commissioner referred to in section 9.
designated building law means:
(a) this Act, the Independent
Contractors Act 2006, the FW Act or the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009; or
(b) a Commonwealth industrial
instrument.
eligibility rules means rules that relate to
the conditions of eligibility for membership.
eligible condition means a condition relating
to:
(a) the times or days when work is to
be performed; or
(b) inclement weather procedures; or
(c) any other matter prescribed by the
regulations for the purposes of this paragraph.
employee organisation means an organisation
of employees.
enterprise agreement has the same meaning as
in the FW Act.
fair work instrument has the same meaning as
in the FW Act.
Federal Court means the Federal Court of
Australia.
Federal Safety Commissioner means the Federal
Safety Commissioner referred to in section 29.
Federal Safety Officer means a Federal Safety
Officer referred to in section 60.
full‑time Commissioner means:
(a) the ABC Commissioner; or
(b) a Deputy ABC Commissioner
appointed on a full‑time basis.
FWA has the same meaning as in the FW Act.
FW Act means the Fair Work Act 2009.
Grade A civil penalty provision means:
(a) a section of this Act (other than
a section that is divided into subsections) that has a note at its foot stating
“Grade A civil penalty”; or
(b) a subsection of this Act that has
a note at its foot stating “Grade A civil penalty”.
Grade B civil penalty provision means:
(a) a section of this Act (other than
a section that is divided into subsections) that has a note at its foot stating
“Grade B civil penalty”; or
(b) a subsection of this Act that has
a note at its foot stating “Grade B civil penalty”.
independent contractor has the same meaning
as in the FW Act.
industrial association means:
(a) an association of employees or
independent contractors, or both, or an association of employers, that is registered
or recognised as such an association (however described) under a workplace law
(within the meaning of the FW Act); or
(b) an association of employees, or
independent contractors, or both, a purpose of which is the protection and
promotion of their interests in matters concerning their employment, or their
interests as independent contractors (as the case may be); or
(c) an association of employers a
principal purpose of which is the protection and promotion of their interests
in matters concerning employment, independent contractors or both;
and includes:
(d) a branch of such an association;
and
(e) an organisation; and
(f) a branch of an organisation.
industrial body has the same meaning as in
the FW Act.
industrial instrument means an award or agreement,
however designated, that:
(a) is made under or recognised by an
industrial law; and
(b) deals with the relationship
between employers and employees, concerns the relationship between an employer
and the employer’s employees, or provides for the prevention or settlement of a
dispute between an employer and the employer’s employees.
industrial law means:
(a) this Act, the FW Act or the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009; or
(b) a law, however designated, of the
Commonwealth or of a State or Territory that regulates the relationships
between employers and employees or provides for the prevention or settlement of
disputes between employers and employees.
National Employment Standards has the same
meaning as in the FW Act.
occupier has the same meaning as in the FW
Act.
office, in relation to an organisation or
industrial association or a branch of an organisation or industrial
association, has the meaning given by section 6.
officer, in relation to an organisation or
industrial association, means a person who holds an office in the organisation
or association.
organisation has the same meaning as in the
Fair Work (Registered Organisations) Act 2009.
part‑time Commissioner means a Deputy
ABC Commissioner appointed on a part‑time basis.
penalty unit has the meaning given by section 4AA
of the Crimes Act 1914.
premises has the same meaning as in the FW
Act.
pre‑reform AWA has the same meaning as
in the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009.
pre‑reform certified agreement has the
same meaning as in the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009.
protected industrial action has the same
meaning as in the FW Act.
Secretary means the Secretary of the Department.
transitional award has the meaning given by
the Workplace Relations Act.
unlawful industrial action has the meaning
given by section 37.
workplace agreement means a workplace
agreement within the meaning of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009, and includes an AWA.
Workplace Relations Act means the Workplace
Relations Act 1996.
(2) In this Act, unless the contrary
intention appears:
(a) a reference to employee
has its ordinary meaning; and
(b) a reference to employee
with its ordinary meaning includes a reference to an individual who is usually
an employee with that meaning; and
(c) a reference to employee
with its ordinary meaning does not include a reference to an individual on a
vocational placement; and
(d) a reference to employer
has its ordinary meaning; and
(e) a reference to employer with
its ordinary meaning includes a reference to a person or entity that is usually
an employer with that meaning.
5 Definition of building work
(1) Subject to subsections (2), (3) and
(4), building work means any of the following activities:
(a) the construction, alteration,
extension, restoration, repair, demolition or dismantling of buildings,
structures or works that form, or are to form, part of land, whether or not the
buildings, structures or works are permanent;
(b) the construction, alteration,
extension, restoration, repair, demolition or dismantling of railways (not
including rolling stock) or docks;
(c) the installation in any building,
structure or works of fittings forming, or to form, part of land, including
heating, lighting, air‑conditioning, ventilation, power supply, drainage,
sanitation, water supply, fire protection, security and communications systems;
(d) any operation that is part of, or
is preparatory to, or is for rendering complete, work covered by paragraph (a),
(b) or (c), for example:
(i) site clearance, earth‑moving,
excavation, tunnelling and boring;
(ii) the laying of
foundations;
(iii) the erection,
maintenance or dismantling of scaffolding;
(iv) the prefabrication of
made‑to‑order components to form part of any building, structure or
works, whether carried out on‑site or off‑site;
(v) site restoration,
landscaping and the provision of roadways and other access works;
but does not include any of the following:
(e) the drilling for, or extraction
of, oil or natural gas;
(f) the extraction (whether by
underground or surface working) of minerals, including tunnelling or boring, or
constructing underground works, for that purpose;
(g) any work that is part of a project
for:
(i) the construction,
repair or restoration of a single‑dwelling house; or
(ii) the construction,
repair or restoration of any building, structure or work associated with a
single‑dwelling house; or
(iii) the alteration or
extension of a single‑dwelling house, if it remains a single‑dwelling
house after the alteration or extension.
(2) Paragraph (1)(g) does not apply if
the project is part of a multi‑dwelling development that consists of, or
includes, the construction of at least 5 single‑dwelling houses.
(3) Subject to subsection (4), building
work includes any activity that is prescribed by the regulations for
the purposes of this subsection.
(4) Building work does not
include any activity that is prescribed by the regulations for the purposes of
this subsection.
(5) In this section:
land includes land beneath water.
6 Definition of office
(1) In this Act, office, in
relation to an association, means:
(a) an office of president, vice
president, secretary or assistant secretary of the association; or
(b) the office of a voting member of a
collective body of the association, being a collective body that has power in
relation to any of the following functions:
(i) the management of the
affairs of the association;
(ii) the determination of
policy for the association;
(iii) the making, alteration
or rescission of rules of the association;
(iv) the enforcement of
rules of the association, or the performance of functions in relation to the
enforcement of such rules; or
(c) an office the holder of which is,
under the rules of the association, entitled to participate directly in any of
the functions referred to in subparagraphs (b)(i) and (iv), other than an
office the holder of which participates only in accordance with directions
given by a collective body or another person for the purpose of implementing:
(i) existing policy of the
association; or
(ii) decisions concerning
the association; or
(d) an office the holder of which is,
under the rules of the association, entitled to participate directly in any of
the functions referred to in subparagraphs (b)(ii) and (iii); or
(e) the office of a person holding
(whether as trustee or otherwise) property:
(i) of the association; or
(ii) in which the association
has a beneficial interest.
In this subsection, association means an
organisation or branch of an organisation, or an industrial association or
branch of an industrial association.
(2) In this Act, a reference to an office
in an organisation or industrial association includes a reference to an office
in a branch of the organisation or association.
7 Extension to Christmas Island
(1) This Act extends to the Territory of
Christmas Island.
(2) This Act applies in relation to the
Territory of Christmas Island with such modifications as are prescribed by the
regulations.
(3) In this section:
modifications includes additions, omissions
and substitutions.
8 Act to bind Crown
(1) This Act binds the Crown in each of its
capacities.
(2) Nothing in this Act renders the
Commonwealth or a State or Territory liable to be prosecuted for an offence.
Chapter 2—Australian
Building and Construction Commissioner
Part 1—Australian
Building and Construction Commissioner
9 ABC Commissioner and Deputy ABC Commissioners
(1) There is to be an Australian Building and
Construction Commissioner (the ABC Commissioner).
(2) The ABC Commissioner is to be assisted by
such number of Deputy Australian Building and Construction Commissioners (Deputy
ABC Commissioners) as are appointed from time to time.
10 Functions of ABC Commissioner
The ABC Commissioner has the following
functions:
(a) monitoring and promoting
appropriate standards of conduct by building industry participants, including
by:
(i) monitoring and
promoting compliance with this Act, the Independent Contractors Act 2006,
the FW Act and the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009; and
(ii) monitoring and
promoting compliance with the Building Code; and
(iii) referring matters to
other relevant agencies and bodies;
(b) investigating suspected
contraventions, by building industry participants, of:
(i) this Act, the Independent
Contractors Act 2006, the FW Act, the Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009 or a Commonwealth industrial
instrument; and
(ii) the Building Code;
(c) instituting, or intervening in,
proceedings, or making submissions, in accordance with this Act;
(d) providing assistance and advice to
building industry participants regarding their rights and obligations under
this Act, the Independent Contractors Act 2006, the FW Act and the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009;
(e) providing representation to a
building industry participant who is, or might become, a party to a proceeding
under this Act, the Independent Contractors Act 2006, the FW Act or the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009, if
the ABC Commissioner considers that providing the representation would promote
the enforcement of this Act, the Independent Contractors Act 2006, the
FW Act or the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009;
(f) disseminating information about
this Act, the Independent Contractors Act 2006, the FW Act, the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009 and
the Building Code, and about other matters affecting building industry
participants, including disseminating information by facilitating ongoing
discussions with building industry participants;
(g) any other functions conferred on
the ABC Commissioner by this Act or by another Act;
(h) any other functions conferred on
the ABC Commissioner by the regulations.
11 Minister’s directions to ABC Commissioner
(1) The Minister may give written directions
to the ABC Commissioner specifying the manner in which the ABC Commissioner
must exercise or perform the powers or functions of the ABC Commissioner under
this Act.
(2) The Minister must not give a direction
under subsection (1) about a particular case.
(3) The ABC Commissioner must comply with a
direction under subsection (1).
(4) A direction under subsection (1) is
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
(5) Despite anything in section 44 of
the Legislative Instruments Act 2003, section 42 of that Act
applies to a direction under subsection (1) of this section.
12 Minister may require reports
(1) The Minister may, in writing, direct the
ABC Commissioner to give the Minister specified reports relating to the ABC
Commissioner’s functions.
Note: See also section 66, which restricts the
disclosure of personal information in a report.
(2) The ABC Commissioner must comply with the
direction.
13 Delegation by ABC Commissioner
(1) The ABC Commissioner may, in writing,
delegate all or any of his or her powers and functions under this Act to:
(a) a Deputy ABC Commissioner; or
(b) an ABC Inspector; or
(c) an SES employee or acting SES
employee; or
(d) a person prescribed by the
regulations for the purposes of this paragraph.
(2) Powers or functions under section 52 may
only be delegated to a Deputy ABC Commissioner.
(3) In exercising powers or functions under a
delegation, the delegate must comply with any directions of the ABC
Commissioner.
(4) As soon as practicable after delegating
any power or function under this section, the ABC Commissioner must publish
details of the delegation.
14 Annual report
(1) As soon as practicable after the end of
each financial year, the ABC Commissioner must prepare and give to the Minister
a report on the operations of the ABC Commissioner during that year.
(2) The report must include:
(a) details of the number, and type,
of matters that were investigated by the ABC Commissioner during the financial
year; and
(b) details of assistance provided
during the financial year to building employees and building contractors in
connection with the recovery of unpaid entitlements; and
(c) details of the extent to which the
Building Code was complied with during the financial year.
Note: See also section 66, which restricts the
disclosure of personal information in a report.
(3) The report must also include:
(a) details of directions given by the
Minister during the financial year under section 11 or 12; and
(b) details of delegations by the ABC
Commissioner under section 13 during the financial year.
(4) The Minister may notify the ABC
Commissioner in writing of particular occupational health and safety matters
that need not be covered in the paragraph (2)(c) part of the report.
(5) The Minister must cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after its receipt by the Minister.
Part 2—Administrative provisions
15 Appointment
(1) A Commissioner is to be appointed by the
Minister by written instrument.
(2) The appointment:
(a) is to be on a full‑time
basis for the ABC Commissioner; and
(b) is to be on a full‑time
basis or part‑time basis for a Deputy ABC Commissioner.
(3) The Minister must not appoint a person as
a Commissioner unless the Minister is satisfied that the person:
(a) has suitable qualifications or
experience; and
(b) is of good character.
(4) A Commissioner holds office for the
period specified in the instrument of appointment. The period must not exceed 5
years.
(5) A Commissioner holds office on the terms
and conditions (if any) in relation to matters not covered by this Act that are
determined by the Minister.
16 Acting ABC Commissioner
(1) The Minister may appoint a person to act
as the ABC Commissioner:
(a) during a vacancy in the office of
ABC Commissioner (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all
periods, when the ABC Commissioner is absent from duty or from Australia, or
is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
17 Remuneration
(1) A Commissioner is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, a
Commissioner is to be paid the remuneration that is prescribed.
(2) A Commissioner is to be paid the
allowances that are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
18 Application of the Judges’ Pensions Act to a former
Judge of the Federal Court who becomes the ABC Commissioner
(1) If:
(a) a person is or has been the ABC
Commissioner; and
(b) the person is a former Judge of
the Federal Court; and
(c) the person ceased to hold office
as such a Judge immediately before the beginning of the person’s term of
appointment, or first term of appointment, as the ABC Commissioner;
the provisions of the Judges’ Pensions Act 1968
(including provisions relating to spouses and children) apply to and in
relation to the person as though:
(d) the ABC Commissioner were or had
been a Judge; and
(e) the person’s service as the ABC
Commissioner were service as a Judge; and
(f) the appropriate current judicial
salary of the person were the salary for the time being payable to a Judge,
other than the Chief Judge, of the Federal Court.
(2) Pensions or other benefits paid as a result
of this section are payable out of the Consolidated Revenue Fund, which is
appropriated accordingly.
19 Application of the Judges’ Pensions Act to a former
member of the AIRC who becomes the ABC Commissioner
(1) If:
(a) a person is or has been the ABC
Commissioner; and
(b) the person is a former member of
the AIRC to whom the Judges’ Pensions Act 1968 applied; and
(c) the person ceased to hold office
as such a member immediately before the beginning of the person’s term of
appointment, or first term of appointment, as the ABC Commissioner;
the provisions of the Judges’ Pensions Act 1968
(including provisions relating to spouses and children) apply to and in
relation to the person as though:
(d) the ABC Commissioner were or had
been a Judge; and
(e) the person’s service as the ABC
Commissioner were service as a Judge; and
(f) the appropriate current judicial
salary of the person were the salary that would have been the person’s
appropriate current judicial salary if the person had remained such a member.
(2) Pensions or other benefits paid as a
result of this section are payable out of the Consolidated Revenue Fund, which
is appropriated accordingly.
20 Leave
(1) A full‑time Commissioner has the
recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time
Commissioner leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Minister determines.
(3) The Minister may grant a part‑time
Commissioner leave of absence (including recreation leave) on the terms and
conditions as to remuneration or otherwise that the Minister determines.
21 Engaging in other paid employment etc.
(1) A full‑time Commissioner must not
engage in paid employment outside the duties of his or her office without the
Minister’s approval.
(2) A part‑time Commissioner must not
engage in any paid employment that conflicts or may conflict with the proper
performance of the Commissioner’s duties.
22 Disclosure of interests
A Commissioner must give written notice
to the Minister of all interests (financial or otherwise) that the
Commissioner has or acquires and that could conflict with the proper
performance of the Commissioner’s functions.
23 Resignation
A Commissioner may resign his or her
appointment by giving the Minister a written resignation.
24 Termination of appointment
(1) The Minister may terminate the
appointment of a Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the Commissioner fails, without
reasonable excuse, to comply with section 21 or 22; or
(c) the Commissioner is a full‑time
Commissioner and is absent from duty, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months.
(2) Subject to subsections (3), (4) and
(5), the Minister may terminate the appointment of a Commissioner on the ground
of misbehaviour or physical or mental incapacity.
(3) If a Commissioner:
(a) is an eligible employee for the
purposes of the Superannuation Act 1976; and
(b) has not reached his or her maximum
retiring age (within the meaning of that Act);
his or her appointment cannot be terminated on the ground
of physical or mental incapacity unless the Board (within the meaning of that
Act) has given a certificate under section 54C of that Act.
(4) If a
Commissioner:
(a) is a member of the superannuation
scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground
of physical or mental incapacity unless the Board (within the meaning of that
Act) has given a certificate under section 13 of that Act.
(5) If a Commissioner:
(a) is an ordinary employer‑sponsored
member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground
of physical or mental incapacity unless the Board (within the meaning of that
Act) has given an approval and certificate under section 43 of that Act.
25 Staff and consultants
(1) The staff required to assist the ABC
Commissioner in the performance of the ABC Commissioner’s functions are to be
persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the ABC Commissioner and the APS
employees so assisting the ABC Commissioner together constitute a Statutory
Agency; and
(b) the ABC Commissioner is the Head
of that Statutory Agency.
(3) The ABC Commissioner may, on behalf of
the Commonwealth, engage persons having suitable qualifications and experience
as consultants to the ABC Commissioner. The terms and conditions of the
engagement of a person are such as are determined by the ABC Commissioner in
writing.
Note: See also section 71 of the Public
Service Act 1999, which makes provision for State employees to perform
services in an Agency (as defined in that Act).
26 Office of the Australian Building and Construction
Commissioner
(1) The Office of the Australian Building and
Construction Commissioner is established by this subsection.
(2) The Office of the Australian Building and
Construction Commissioner consists of:
(a) the ABC Commissioner; and
(b) the Deputy ABC Commissioners; and
(c) the staff mentioned in subsection
25(1); and
(d) the consultants engaged under
subsection 25(3).
Chapter 3—The Building
Code
27 Minister to issue Building Code
(1) The Minister may issue one or more
documents that together constitute a code of practice (the Building Code)
that is to be complied with by persons in respect of building work.
(2) Without limiting subsection (1), the
Minister may issue one or more documents under that subsection in relation to
occupational health and safety matters relating to building work.
(3) The Building Code cannot require a person
to comply with the Code in respect of particular building work (the current
work) unless:
(a) the person is a building
contractor that is a constitutional corporation; or
(b) the person is a building industry
participant and the current work is to be carried out in a Territory or
Commonwealth place.
(4) Before exercising powers under this
section, the Minister must take into account any relevant recommendations of
the Federal Safety Commissioner in relation to occupational health and safety
matters.
(5) A document issued under subsection (1)
is a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
28 Building industry participants to report on
compliance with Code
(1) This section applies to a person who is
required to comply with the Building Code in respect of particular building
work.
(2) The ABC Commissioner may, by notice in
writing, direct the person to give a written report to the ABC Commissioner,
within the period specified in the direction, containing specified information
about the extent to which the person complied with the Building Code in respect
of that building work. The specified period must be at least 14 days.
(3) The person
must comply with the requirement.
Note: Grade B civil penalty.
(4) The ABC Commissioner must give a copy of
the report to the Federal Safety Commissioner.
Chapter 4—Occupational
health and safety
Part 1—Federal Safety
Commissioner
29 Federal Safety Commissioner
(1) The Secretary must, by writing, designate
a position in the Department as the position of Federal Safety Commissioner.
Note: For creation of positions, see section 77
of the Public Service Act 1999.
(2) That position can only be occupied by an
SES employee.
(3) The Federal Safety Commissioner is the
SES employee who occupies that position.
(4) An instrument under subsection (1)
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
30 Functions of Federal Safety Commissioner
The Federal Safety Commissioner has the
following functions:
(a) promoting occupational health and
safety in relation to building work;
(b) monitoring and promoting
compliance with the Building Code, so far as the Code deals with occupational
health and safety;
(c) disseminating information about
the Building Code, so far as the Code deals with occupational health and
safety;
(d) performing functions as the
accreditation authority for the purposes of the accreditation scheme;
(e) promoting the benefits of the
accreditation scheme and disseminating information about the accreditation
scheme;
(f) referring matters to other
relevant agencies and bodies;
(g) any other functions conferred on
the Federal Safety Commissioner by this Act or by another Act;
(h) any other functions conferred on
the Federal Safety Commissioner by the regulations.
31 Minister’s directions to Federal Safety
Commissioner
(1) The Minister may give written directions
to the Federal Safety Commissioner specifying the manner in which the Federal
Safety Commissioner must exercise or perform the powers or functions of the
Federal Safety Commissioner under this Act.
(2) The Minister must not give a direction
under subsection (1) about a particular case.
(3) The Federal Safety Commissioner must
comply with a direction under subsection (1).
(4) A direction under subsection (1) is
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
(5) Despite anything in section 44 of
the Legislative Instruments Act 2003, section 42 of that Act
applies to a direction under subsection (1) of this section.
32 Delegation by Federal Safety Commissioner
(1) The Federal Safety Commissioner may, in
writing, delegate all or any of his or her powers and functions under this Act
to:
(a) a Federal Safety Officer; or
(b) an SES employee or acting SES
employee; or
(c) a person prescribed by the
regulations for the purposes of this paragraph.
(2) In exercising powers or functions under a
delegation, the delegate must comply with any directions of the Federal Safety
Commissioner.
(3) As soon as practicable after delegating
any power or function under this section, the Federal Safety Commissioner must
publish details of the delegation.
33 Acting Federal Safety Commissioner
If an SES employee is acting in the
position of Federal Safety Commissioner:
(a) the SES employee has and may
exercise all the powers, and is to perform all the functions and duties, of the
occupier of the position of Federal Safety Commissioner; and
(b) this Act, and any other law of the
Commonwealth, applies in relation to the SES employee as if the SES employee
were the occupier of the position of Federal Safety Commissioner.
34 Consultants
(1) The Federal Safety Commissioner may, on
behalf of the Commonwealth, engage persons having suitable qualifications and
experience as consultants to the Federal Safety Commissioner.
(2) The terms and conditions of the
engagement of a person are such as are determined by the Federal Safety
Commissioner in writing.
Part 2—Accreditation
scheme for Commonwealth building work
35 Accreditation scheme
Accreditation scheme
(1) The regulations may prescribe an
accreditation scheme for persons who wish to carry out building work funded by
the Commonwealth or a Commonwealth authority.
(2) The regulations must provide for the
Federal Safety Commissioner to be the accrediting authority under the scheme.
(3) The regulations may prescribe fees for
applications made under the regulations.
Commonwealth building work to be carried out by
accredited persons
(4) The Commonwealth or a Commonwealth authority
must not fund building work unless:
(a) contracts for the building work
entered into with builders will be entered into with builders who are
accredited persons; and
(b) at the time of the funding, the
Commonwealth or Commonwealth authority, as the case may be, takes appropriate
steps to ensure that builders will be accredited persons when they carry out
the building work.
This subsection does not apply to building work prescribed
by the regulations.
(5) For the purposes of this section, the Commonwealth
or a Commonwealth authority funds building work if it:
(a) pays for, or otherwise funds or
finances, the building work (whether directly or indirectly); or
(b) facilitates the carrying out of
the building work by entering into, or otherwise funding or financing (whether
directly or indirectly), a pre‑construction agreement that relates to the
building work.
(6) If another Commonwealth provision is
inconsistent with subsection (4), subsection (4) prevails to the
extent of the inconsistency unless the other provision expressly refers to this
section.
(7) Failure to comply with subsection (4)
does not affect the validity of anything done by the Commonwealth or a
Commonwealth authority in relation to building work.
(8) In this section:
accredited person means a person who is
accredited under the accreditation scheme.
builder, in relation to building work, means
a person who carries out any of the building work.
Commonwealth authority means a Commonwealth
authority within the meaning of the Commonwealth Authorities and Companies
Act 1997.
Commonwealth provision means a provision of a
law of the Commonwealth.
pre‑construction agreement means an
agreement to lease or transfer land, a building or a part of a building on the
condition, or on conditions that include the condition, that building work will
be carried out on the land, the building or the part of the building.
Chapter 5—Industrial
action etc.
Part 1—Preliminary
36 Definitions
(1) In this Chapter, unless the contrary
intention appears:
building industrial action means:
(a) the performance of building work
in a manner different from that in which it is customarily performed, or the
adoption of a practice in relation to building work, the result of which is a
restriction or limitation on, or a delay in, the performance of the work,
where:
(i) the terms and
conditions of the work are prescribed, wholly or partly, by an industrial
instrument or an order of an industrial body; or
(ii) the work is performed,
or the practice is adopted, in connection with an industrial dispute (within
the meaning of subsection (4)); or
(b) a ban, limitation or restriction
on the performance of building work, or on acceptance of or offering for
building work, in accordance with the terms and conditions prescribed by an
industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction
on the performance of building work, or on acceptance of or offering for
building work, that is adopted in connection with an industrial dispute (within
the meaning of subsection (4)); or
(d) a failure or refusal by persons to
attend for building work or a failure or refusal to perform any work at all by
persons who attend for building work;
but does not include:
(e) action by employees that is authorised
or agreed to, in advance and in writing, by the employer of the employees; or
(f) action by an employer that is
authorised or agreed to, in advance and in writing, by or on behalf of
employees of the employer; or
(g) action by an employee if:
(i) the action was based
on a reasonable concern by the employee about an imminent risk to his or her
health or safety; and
(ii) the employee did not
unreasonably fail to comply with a direction of his or her employer to perform
other available work, whether at the same or another workplace, that was safe
for the employee to perform.
Note: See also subsection (2), which deals with
the burden of proof of the exception in paragraph (g) of this definition.
constitutionally‑connected action means
building industrial action that satisfies at least one of the following
conditions:
(a) the action is taken by an
organisation;
(b) the action is taken by a
constitutional corporation, or adversely affects a constitutional corporation
in its capacity as a building industry participant;
(d) the action relates to work that is
regulated by a Commonwealth industrial instrument;
(e) the action relates to the
bargaining or proposed bargaining for, or the making or proposed making of, an
enterprise agreement;
(f) the action occurs in a Territory
or Commonwealth place.
excluded action means building industrial
action that is protected industrial action (as affected by Part 3 of this
Chapter).
industrially‑motivated means motivated
by one or more of the following purposes, or by purposes that include one or
more of the following purposes:
(a) supporting or advancing claims
against an employer in respect of the employment of employees of that employer;
(b) supporting or advancing claims by
an employer in respect of the employment of employees of that employer;
(c) advancing industrial objectives of
an industrial association;
(d) disrupting the performance of
work.
The employer referred to in paragraphs (a) and (b)
need not be the employer whose employees do the work to which the action
relates.
(2) Whenever a person seeks to rely on paragraph (g)
of the definition of building industrial action in subsection (1),
that person has the burden of proving that paragraph (g) applies.
(3) For the purposes of this Chapter:
(a) conduct is capable of constituting
building industrial action even if the conduct relates to part only of the
duties that persons are required to perform in the course of their employment;
and
(b) a reference to building industrial
action includes a reference to a course of conduct consisting of a series of
building industrial actions.
(4) In the definition of building
industrial action in subsection (1):
industrial dispute means:
(a) an industrial dispute (including a
threatened, impending or probable industrial dispute) that is about matters
pertaining to the relationship between employers and employees; or
(b) a situation that is likely to give
rise to an industrial dispute of the kind referred to in paragraph (a); or
(c) a dispute arising between 2 or more
industrial associations, or within an industrial association, as to the rights,
status or functions of members of the associations or association in relation
to the employment of those members; or
(d) a dispute arising between
employers and employees, or between members of different industrial
associations, as to the demarcation of functions of employees or classes of
employees; or
(e) a dispute about the representation
of the industrial interests of employees by an industrial association of
employees.
Part 2—Unlawful industrial action
37 Definition of unlawful industrial action
Building industrial action is unlawful
industrial action if:
(a) the action is industrially‑motivated;
and
(b) the action is constitutionally‑connected
action; and
(c) the action is not excluded action.
38 Unlawful industrial action prohibited
A person must not engage in unlawful
industrial action.
Note: Grade A civil penalty.
39 Injunction against unlawful industrial action
(1) If, on application by the ABC Commissioner
or any other person, an appropriate court is satisfied that unlawful industrial
action is:
(a) occurring; or
(b) threatened, impending or probable;
then the court may grant an injunction in such terms as
the court considers appropriate.
(2) If, in the opinion of the court it is
desirable to do so, the court may grant an interim injunction pending
determination of an application under subsection (1).
(3) The power of the court to grant an
injunction restraining a person (the defendant) from engaging in
conduct may be exercised:
(a) whether or not it appears to the
court that the defendant intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the defendant has
previously engaged in conduct of that kind; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the defendant engages in
conduct of that kind.
(4) In this
section:
appropriate court means the Federal Court,
the Federal Magistrates Court, a Supreme Court of a State or Territory or a
District Court, or County Court, of a State.
Part 3—Protected
industrial action
40 Action involving extraneous participants
(1) Building industrial action in relation to
a proposed building enterprise agreement is not protected industrial action if:
(a) the
action is engaged in in concert with one or more persons who are not protected
persons for the action; or
(b) the organisers include one or more
persons who are not protected persons for the action.
(2) In this
section:
protected person means:
(a) an
employee organisation that is a bargaining representative for the proposed agreement; or
(b) a member of such an organisation
who is employed by the employer and who will be covered by the proposed
agreement; or
(c) an officer or employee of such an
organisation acting in that capacity; or
(d) an employee who is a bargaining
representative for the proposed agreement.
Part 4—Miscellaneous
42 Payments in relation to periods of building
industrial action
(1) Division 9 of Part 3‑3 of
the FW Act (which deals with payments for periods of industrial action) applies
in relation to building work with the following modifications:
(a) references in that Division to industrial action are to be read as
references to building industrial action that is industrially‑motivated
and constitutionally‑connected;
(b) if the person who contravenes a
civil remedy provision to which table item 21, 22, 23 or 24 of the table
set out in section 539 of the FW Act relates is a body corporate—then, for
the purposes of paragraph 546(2)(b) of that Act, the pecuniary penalty must not
be more than 1,000 penalty units.
(2) Division 9 of Part 3‑3 of
the FW Act (which deals with payments for periods of industrial action) does
not apply to building work except as provided by this section.
Chapter 6—Discrimination,
coercion and unfair contracts
43 Coercion in relation to
engagement etc. of building employees and building contractors
(1) A person (the first person)
must not organise or take action, or threaten to organise or take action, with
intent to coerce another person (the second person):
(a) to employ, or not employ, a person
as a building employee; or
(b) to engage, or not engage, a person
as a building contractor; or
(c) to allocate, or not allocate,
particular responsibilities to a building employee or building contractor; or
(d) to designate a building employee
or building contractor as having, or not having, particular duties or
responsibilities.
Note: Grade A civil penalty.
(2) Subsection (1) does not apply
unless:
(a) the first person is an
organisation or a constitutional corporation; or
(b) the second person is a
constitutional corporation; or
(c) the conduct occurs in a Territory
or Commonwealth place.
44 Coercion of persons to make, vary, terminate etc. enterprise agreements etc.
(1) A person must not:
(a) take or threaten to take any
action; or
(b) refrain or threaten to refrain
from taking any action;
with intent to coerce another person, or with intent to
apply undue pressure to another person, to agree, or not to agree:
(c) to make, vary or terminate, or
extend the nominal expiry date of, a building enterprise agreement; or
(d) to approve any of the things
mentioned in paragraph (c).
Note: Grade A civil penalty.
(2) Subsection (1) does not apply to
action that is protected industrial action (as affected by Part 3 of
Chapter 5 of this Act).
(3) An employer must not coerce, or attempt
to coerce, an employee of the employer in relation to who is to be, or is not
to be, the employee’s bargaining representative.
Note: Grade A civil penalty.
(4) An employer must not apply, or attempt to
apply, undue pressure to an employee of the employer in relation to who is to
be, or is not to be, the employee’s bargaining representative.
Note: Grade A civil penalty.
(5) To the extent that section 343 of
the FW Act relates to:
(a) the making, varying or terminating
of an enterprise agreement; or
(b) the appointment, or termination of
appointment, of a bargaining representative for an enterprise agreement;
that section does not apply if the agreement is a building
enterprise agreement.
45 Discrimination against employer in relation to
industrial instruments
(1) A person (the first person)
must not discriminate against another person (the second person)
on the ground that:
(a) the employment of the second
person’s building employees is covered, or is not covered, by:
(i) a particular kind of
industrial instrument; or
(ii) an industrial
instrument made with a particular person; or
(iii) a particular preserved
Australian Pay and Classification Scale; or
(iv) the Australian Fair Pay
and Conditions Standard; or
(v) the National Employment
Standards; or
(b) it is proposed that the employment
of the second person’s building employees be covered, or not be covered, by:
(i) a particular kind of
industrial instrument; or
(ii) an industrial
instrument made with a particular person; or
(iii) a particular preserved
Australian Pay and Classification Scale; or
(iv) the Australian Fair Pay
and Conditions Standard; or
(v) the National Employment
Standards.
Note: Grade A civil penalty.
(2) Subsection (1) does not apply to
conduct that is protected industrial action (as affected by Part 3 of
Chapter 5 of this Act).
(3) Subsection (1) does not apply to
conduct by the first person if:
(a) the conduct occurs in relation to:
(i) a proposed agreement
between the first person and the second person under which the second person
would carry out building work or arrange for building work to be carried out;
or
(ii) a proposed variation
of an agreement between the first person and the second person under which the
second person carries out building work or arranges for building work to be
carried out; and
(b) the conduct is engaged in solely
for the purpose of encouraging the second person to have particular eligible
conditions in an industrial instrument that covers employees of the second
person.
(4) Subsection (1) does not apply
unless:
(a) the industrial instrument referred
to in that section is an award, transitional award, workplace agreement, pre‑reform
certified agreement, pre‑reform AWA or fair work instrument; or
(b) the first person is an
organisation or a constitutional corporation; or
(c) the second person is a
constitutional corporation; or
(d) the conduct occurs in a Territory
or Commonwealth place.
46 Coercion in relation to superannuation
(1) A person (the first person)
must not:
(a) take, or threaten to take, any
action (the relevant action); or
(b) refrain, or threaten to refrain,
from taking action (the relevant action);
with intent:
(c) to coerce a building employee to
nominate a particular superannuation fund or scheme to receive the employee’s
superannuation contributions; or
(d) to coerce a building employer to
pay the employer’s superannuation contributions in respect of building
employees to a particular superannuation fund or scheme.
Note: Grade A civil penalty.
(2) Subsection (1) does not apply if the
relevant action is, or would be, protected industrial action (as affected by
Part 3 of Chapter 5).
(3) Subsection (1) does not apply
unless:
(a) the first person is an
organisation or a constitutional corporation; or
(b) paragraph (1)(d) applies and
the building employer referred to in that paragraph is a constitutional
corporation; or
(c) paragraph (1)(d) applies and
the building employer referred to in that paragraph is the Commonwealth or a
Commonwealth authority; or
(d) the relevant action occurs, or
would occur, in a Territory or Commonwealth place.
Chapter 7—Enforcement
Part 1—Contravention of
civil penalty provisions
48 Definitions
(1) In this Part, unless the contrary
intention appears:
appropriate court means:
(a) for a contravention of section 38—the
Federal Court, the Federal Magistrates Court, a Supreme Court of a State or
Territory or a District Court, or County Court, of a State; or
(b) for any other contravention—the
Federal Court.
pecuniary penalty order means an order under
paragraph 49(1)(a).
person, in relation to a contravention of a
civil penalty provision, includes an industrial association.
(2) For the purposes of this Part, a person
who is involved in a contravention of a civil penalty provision is treated as
having contravened that provision. For this purpose, a person is involved
in a contravention of a civil penalty provision if, and only if, the
person:
(a) has aided, abetted, counselled or
procured the contravention; or
(b) has induced the contravention,
whether by threats or promises or otherwise; or
(c) has been in any way, by act or
omission, directly or indirectly, knowingly concerned in or party to the
contravention; or
(d) has conspired with others to
effect the contravention.
49 Penalties etc. for contravention of civil penalty
provision
(1) An appropriate court, on application by
an eligible person, may make one or more of the following orders in relation to
a person (the defendant) who has contravened a civil penalty
provision:
(a) an order imposing a pecuniary
penalty on the defendant;
(b) an order requiring the defendant
to pay a specified amount to another person as compensation for damage suffered
by the other person as a result of the contravention;
(c) any other order that the court
considers appropriate.
(2) The maximum pecuniary penalty is:
(a) for a Grade A civil penalty
provision—1,000 penalty units if the defendant is a body corporate and
otherwise 200 penalty units; and
(b) for a Grade B civil penalty
provision—100 penalty units if the defendant is a body corporate and otherwise
20 penalty units.
(3) The orders that may be made under paragraph (1)(c)
include:
(a) injunctions (including interim
injunctions); and
(b) any other orders that the court
considers necessary to stop the conduct or remedy its effects, including orders
for the sequestration of assets.
(4) If the contravention is a contravention
of section 38, then the power of the court to grant an injunction
restraining a person (the defendant) from engaging in conduct may
be exercised:
(a) whether or not it appears to the
court that the defendant intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the defendant has
previously engaged in conduct of that kind; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the defendant engages in
conduct of that kind.
(5) A pecuniary penalty is payable to the
Commonwealth, or to some other person if the court so directs. It may be
recovered as a debt.
(6) Each of the following is an eligible
person for the purposes of this section:
(a) the ABC Commissioner;
(b) an ABC Inspector;
(c) a person affected by the
contravention;
(d) a person prescribed by the
regulations for the purposes of this paragraph.
(7) A regulation prescribing persons for the
purposes of paragraph (6)(d) may provide that a person is prescribed only
in relation to circumstances specified in the regulation.
50 Multiple proceedings for same conduct
(1) A court must not make a pecuniary penalty
order against a person for a contravention if the person has been convicted of
an offence constituted by conduct that is substantially the same as the conduct
constituting the contravention.
(2) Proceedings for a pecuniary penalty order
against a person are stayed if:
(a) criminal proceedings are started
or have already been started against the person for an offence; and
(b) the offence is constituted by
conduct that is substantially the same as the conduct alleged to constitute
the contravention.
The proceedings for the order may be resumed if the person
is not convicted of the offence. Otherwise, the proceedings for the order are
dismissed.
(3) Criminal proceedings may be started
against a person for conduct that is substantially the same as conduct
constituting a contravention of a civil penalty provision regardless of whether
an order under this Part has been made against the person.
51 Evidence given in proceedings for penalty not
admissible in criminal proceedings
Evidence of information given by an
individual, or evidence of production of documents by an individual, is not
admissible in criminal proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for a pecuniary penalty order
against the individual for a contravention of a civil penalty provision
(whether or not the order was made); and
(b) the conduct alleged to constitute
the offence is substantially the same as the conduct that was claimed to
constitute the contravention.
However, this does not apply to a criminal proceeding in
respect of the falsity of the evidence given by the individual in the
proceedings for the pecuniary penalty order.
Part 2—Compliance etc. powers
Division 1—ABC
Commissioner’s powers to obtain information etc.
52 ABC Commissioner’s powers to obtain information
etc.
ABC Commissioner may require information, documents
etc.
(1) If the ABC Commissioner believes on
reasonable grounds that a person:
(a) has information or documents
relevant to an investigation; or
(b) is capable of giving evidence that
is relevant to an investigation;
the ABC Commissioner may, by written notice given to the
person, require the person:
(c) to give the information to the ABC
Commissioner, or to an assistant, by the time, and in the manner and form,
specified in the notice; or
(d) to produce the documents to the
ABC Commissioner, or to an assistant, by the time, and in the manner, specified
in the notice; or
(e) to attend before the ABC
Commissioner, or an assistant, at the time and place specified in the notice,
and answer questions relevant to the investigation.
(2) The time specified under paragraph (1)(c),
(d) or (e) must be at least 14 days after the notice is given.
Legal representation
(3) A person attending before the ABC
Commissioner, or before an assistant, as mentioned in paragraph (1)(e)
may, if the person so chooses, be represented by a person who, under the Judiciary
Act 1903, is entitled to practise as a barrister or solicitor, or both, in
a federal court.
Oath or affirmation
(4) The ABC Commissioner, or an assistant,
may require the information or answers to be verified by, or given on, oath or
affirmation, and either orally or in writing. For that purpose, the ABC
Commissioner, or an assistant, may administer the oath or affirmation.
(5) The oath or affirmation is an oath or
affirmation that the information or answers are or will be true.
Offence
(6) A person commits an offence if:
(a) the person has been given a notice
under subsection (1); and
(b) the person fails:
(i) to give the required
information by the time, and in the manner and form, specified in the notice;
or
(ii) to produce the
required documents by the time, and in the manner, specified in the notice; or
(iii) to attend to answer
questions at the time and place specified in the notice; or
(iv) to take an oath or make
an affirmation, when required to do so under subsection (4); or
(v) to answer questions
relevant to the investigation while attending as required by the notice.
Penalty: Imprisonment for 6 months.
Effect of other laws
(7) The operation of this section is not
limited by any secrecy provision of any other law (whether enacted before or
after the commencement of this section), except to the extent that the secrecy
provision expressly excludes the operation of this section. For this purpose, secrecy
provision means a provision that prohibits the communication or
divulging of information.
Definitions
(8) In this section:
assistant means:
(a) a Deputy ABC Commissioner; or
(b) an ABC Inspector; or
(c) a person referred to in subsection
25(1) or (3) who is assisting the ABC Commissioner.
investigation means an investigation by the
ABC Commissioner into a contravention, by a building industry participant, of a
designated building law.
53 Certain excuses not available in relation to
section 52 requirements
Excuses that are not available
(1) A person is not excused from giving
information, producing a document, or answering a question, under section 52
on the ground that to do so:
(a) would contravene any other law; or
(b) might tend to incriminate the
person or otherwise expose the person to a penalty or other liability; or
(c) would be otherwise contrary to the
public interest.
Use/derivative use indemnity
(2) However, neither:
(a) the information or answer given or
the document produced; nor
(b) any information, document or thing
obtained as a direct or indirect consequence of giving the information or
answer or producing the document;
is admissible in evidence against the person in
proceedings, other than:
(c) proceedings for an offence against
subsection 52(6); or
(d) proceedings for an offence against
section 137.1 or 137.2 of the Criminal Code that relates to this
Act; or
(e) proceedings for an offence against
section 149.1 of the Criminal Code that relates to this Act.
54 Protection from liability
A person who, in good faith:
(a) gives information; or
(b) produces a document; or
(c) answers a question;
when requested or required to do so under section 52
is not liable to:
(d) any proceedings for contravening
any other law because of that conduct; or
(e) civil proceedings for loss, damage
or injury of any kind suffered by another person because of that conduct.
55 Retention and copying etc. of documents
ABC Commissioner may keep documents
(1) The ABC Commissioner may take possession
of a document produced under section 52 and keep it for as long as is
necessary for the purposes of conducting the investigation to which the
document is relevant.
Certified copy to be supplied to person entitled to
document
(2) The person otherwise entitled to
possession of the document is entitled to be supplied, as soon as practicable,
with a copy that is certified, by one of the following persons, to be a true
copy:
(a) the ABC Commissioner;
(b) a Deputy ABC Commissioner;
(c) an ABC Inspector;
(d) a person referred to in subsection
25(1) or (3) who is assisting the ABC Commissioner.
Certified copy to be treated as original
(3) The certified copy must be received in
all courts and tribunals as evidence as if it were the original.
Right to inspect and copy the original
(4) Until a certified copy is supplied, the
ABC Commissioner must, at such times and places as the ABC Commissioner
considers appropriate, permit the person otherwise entitled to possession of
the document (or a person authorised by that person) to inspect and make copies
of all or part of the document.
56 ABC Commissioner may make and keep copies of
documents
The ABC Commissioner may make and keep
copies of all or part of any documents produced under section 52.
Division 2—Powers of ABC Inspectors
57 Australian Building and Construction Inspectors
(1) The ABC Commissioner may, by written
instrument, appoint any of the following persons as an Australian Building and
Construction Inspector (ABC Inspector):
(a) a person who is an employee of the
Commonwealth or who holds an office or appointment under a law of the
Commonwealth;
(b) a person who is an employee of a
State or Territory or who holds an office or appointment under a law of a State
or Territory;
(c) a consultant engaged by the ABC
Commissioner under section 25.
(2) The ABC Commissioner must not appoint a
person referred to in paragraph (1)(c) as an ABC Inspector unless the ABC
Commissioner is satisfied that the person is an appropriate person to be
appointed as an ABC Inspector.
(3) The ABC Commissioner is an ABC Inspector
by force of this subsection.
(4) In exercising powers or performing
functions as an ABC Inspector, an ABC Inspector appointed under subsection (1)
must comply with any directions of the ABC Commissioner.
(5) If a direction under subsection (4)
is of general application, the direction is a legislative instrument for the
purposes of the Legislative Instruments Act 2003.
(6) If a direction under subsection (4)
relates to a particular case, the direction is not a legislative instrument for
the purposes of the Legislative Instruments Act 2003.
58 Identity cards for ABC Inspectors
(1) The ABC Commissioner must issue to an ABC
Inspector appointed under subsection 57(1) an identity card in the form
prescribed by the regulations. The identity card must contain a recent
photograph of the ABC Inspector.
(2) The Minister must issue to the ABC
Commissioner an identity card in the form prescribed by the regulations. The
identity card must contain a recent photograph of the ABC Commissioner.
(3) If a person to whom an identity card has
been issued ceases to be an ABC Inspector, the person must, within 14 days,
return the identity card to the ABC Commissioner, or the Minister, as the case
requires.
(4) A person must not contravene subsection (3).
Penalty: 1 penalty unit.
(5) Subsection (4) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
(6) An ABC Inspector must carry the identity
card at all times when exercising powers or performing functions as an ABC
Inspector.
59 Power to enter premises etc.
(1) An ABC Inspector may exercise powers
under this section for the following purposes (compliance purposes):
(a) ascertaining whether a designated
building law has been complied with, or is being complied with, by a building
industry participant;
(b) ascertaining whether a court order
relating to a designated building law has been complied with, or is being
complied with, by a building industry participant;
(c) ascertaining whether the Building
Code has been complied with, or is being complied with, by a building industry
participant.
Note: Section 27 specifies the persons who can be
required to comply with the Building Code.
(2) The powers may be exercised at any time
during ordinary working hours or at any other time at which it is necessary to
do so for compliance purposes.
(3) An ABC
Inspector may, without force, enter:
(a) any premises on which the
inspector has reasonable cause to believe that building work is being carried
out, or has been carried out, being building work:
(i) to which a
Commonwealth industrial instrument applies or applied; or
(ii) to which the Building
Code applies or applied; or
(b) any premises on which the
inspector has reasonable cause to believe that there are documents relevant to
compliance purposes; or
(c) any premises on which the
inspector has reasonable cause to believe that a breach by a building industry
participant of a designated building law or the Building Code, has occurred, is
occurring or is likely to occur.
(4) Subsection (3) does not authorise
entry onto a part of premises if that part is used for residential purposes.
(5) An ABC Inspector may do any of the
following on premises referred to in subsection (3):
(a) inspect any work, material,
machinery, appliance, article or facility;
(b) as prescribed by the regulations,
take samples of any goods or substances;
(c) interview any person;
(d) inspect, and make copies of, any
document that is on the premises, or is accessible from a computer that is kept
on the premises, being a document that the inspector believes, on reasonable
grounds, to be relevant to compliance purposes;
(e) require a person who has the
custody of, or access to, a document to produce the document to the inspector
within a specified period.
(6) If a person fails to comply with a
requirement under subsection (5) to produce a document, an ABC Inspector
may, by written notice served on the person, require the person to produce the
document at a specified place within a specified period (not being less than 14
days).
(7) Where a
document is produced to an ABC Inspector under paragraph (5)(e) or subsection (6),
the inspector may:
(a) inspect and copy the document; and
(b) if the inspector gives a receipt
to the person who produced the document—retain the document for as long as
necessary for the purpose of exercising powers or performing functions as an
ABC Inspector.
(8) While an ABC Inspector retains a
document, the inspector must permit the document to be inspected and copied, at
any reasonable time, by:
(a) the person otherwise entitled to
possession of the document; or
(b) a person authorised by the person
otherwise entitled to possession of the document.
(9) An ABC Inspector may, without force,
enter business premises in which a person ordinarily performs work or conducts
business if the inspector has reasonable cause to believe that the person has
information relevant to compliance purposes.
(10) An ABC Inspector must not enter business
premises under subsection (9) if the inspector has reasonable cause to
believe that the person concerned is not in that place.
(11) An ABC Inspector who enters premises under
subsection (9) may interview the person concerned in that place.
(12) For the avoidance of doubt, a refusal or
failure by a person to participate in an interview under this section is not to
be treated as conduct covered by section 149.1 of the Criminal Code.
(13) Before entering premises under this
section, an ABC Inspector must announce that the inspector is authorised to
enter the place. If the occupier or another person who apparently represents
the occupier is present, the inspector must produce the inspector’s identity
card to that person for inspection.
(14) The occupier of premises must not refuse
or unduly delay entry to the premises by an ABC Inspector exercising powers
under this section.
Note: Grade A civil penalty.
(15) In this
section:
copy, in relation to a document, includes
take extracts from the document.
Note: The Criminal Code contains offences for
obstructing or hindering Commonwealth public officials.
Division 3—Powers of Federal Safety Officers
60 Federal Safety Officers
(1) The Federal Safety Commissioner may, by
written instrument, appoint any of the following persons as a Federal Safety
Officer:
(a) a person who is an employee of the
Commonwealth or who holds an office or appointment under a law of the
Commonwealth;
(b) a person who is an employee of a
State or Territory or who holds an office or appointment under a law of a State
or Territory;
(c) a consultant engaged under section 34.
(2) The Federal Safety Commissioner must not
appoint a person referred to in paragraph (1)(c) as a Federal Safety
Officer unless the Federal Safety Commissioner is satisfied that the person is
an appropriate person to be appointed as a Federal Safety Officer.
(3) The Federal Safety Commissioner is a
Federal Safety Officer by force of this subsection.
(4) In exercising powers or performing
functions as a Federal Safety Officer, a Federal Safety Officer appointed under
subsection (1) must comply with any directions of the Federal Safety
Commissioner.
(5) If a direction under subsection (4)
is of general application, the direction is a legislative instrument for the
purposes of the Legislative Instruments Act 2003.
(6) If a direction under subsection (4)
relates to a particular case, the direction is not a legislative instrument for
the purposes of the Legislative Instruments Act 2003.
61 Identity cards for Federal Safety Officers
(1) The Federal Safety Commissioner must
issue to a Federal Safety Officer appointed under subsection 60(1) an identity
card in the form prescribed by the regulations. The identity card must contain
a recent photograph of the Federal Safety Officer.
(2) The Minister must issue to the Federal
Safety Commissioner an identity card in the form prescribed by the regulations.
The identity card must contain a recent photograph of the Federal Safety
Commissioner.
(3) If a person to whom an identity card has
been issued ceases to be a Federal Safety Officer, the person must, within 14
days, return the identity card to the Federal Safety Commissioner, or the
Minister, as the case requires.
(4) A person must not contravene subsection (3).
Penalty: 1 penalty unit.
(5) Subsection (4) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
(6) A Federal Safety Officer must carry the
identity card at all times when exercising powers or performing functions as a
Federal Safety Officer.
62 Powers to enter premises etc. to ascertain
compliance with Building Code
(1) A Federal Safety Officer may exercise
powers under this section for the purpose (a compliance purpose)
of ascertaining whether the Building Code has been complied with, or is being
complied with, by a building industry participant.
Note: Section 27 specifies the persons who can
be required to comply with the Building Code.
(2) The powers may be exercised at any time
during ordinary working hours or at any other time at which it is necessary to
do so for a compliance purpose.
(3) A Federal Safety Officer may, without
force, enter:
(a) any premises on which the officer
has reasonable cause to believe that building work is being carried out, or has
been carried out, being building work to which the Building Code applies or
applied; or
(b) any premises on which the officer
has reasonable cause to believe that a breach by a building industry
participant of the Building Code has occurred, is occurring or is likely to
occur.
(4) Subsection (3) does not authorise
entry onto a part of premises if that part is used for residential purposes.
(5) A Federal Safety Officer may do any of
the following on premises referred to in subsection (3):
(a) inspect any work, material,
machinery, appliance, article or facility;
(b) as prescribed by the regulations,
take samples of any goods or substances;
(c) interview any person;
(d) inspect, and make copies of, any
document that is on the premises, or is accessible from a computer that is kept
on the premises, being a document that the officer believes, on reasonable
grounds, to be relevant to compliance purposes;
(e) require a person who has the
custody of, or access to, a document to produce the document to the officer
within a specified period.
(6) If a person fails to comply with a
requirement under subsection (5) to produce a document, a Federal Safety
Officer may, by written notice served on the person, require the person to
produce the document at a specified place within a specified period (not being
less than 14 days).
(7) Where a document is produced to a Federal
Safety Officer under paragraph (5)(e) or subsection (6), the officer
may:
(a) inspect and copy the document; and
(b) if the Federal Safety Officer
gives a receipt to the person who produced the document—retain the document for
as long as necessary for the purpose of exercising powers or performing
functions as a Federal Safety Officer.
(8) While a Federal Safety Officer retains a
document, the officer must permit the document to be inspected and copied, at
any reasonable time, by:
(a) the person otherwise entitled to
possession of the document; or
(b) a person authorised by the person
otherwise entitled to possession of the document.
(9) A Federal Safety Officer may, without
force, enter business premises in which a person ordinarily performs work or
conducts business if the officer has reasonable cause to believe that the
person has information relevant to compliance purposes.
(10) A Federal Safety Officer must not enter
business premises under subsection (9) if the officer has reasonable cause
to believe that the person concerned is not in that place.
(11) A Federal Safety Officer who enters
premises under subsection (9) may interview the person concerned in that
place.
(12) For the avoidance of doubt, a refusal or
failure by a person to participate in an interview under this section is not to
be treated as conduct covered by section 149.1 of the Criminal Code.
(13) Before entering premises under this
section, a Federal Safety Officer must announce that the officer is authorised
to enter the place. If the occupier or another person who apparently represents
the occupier is present, the officer must produce the officer’s identity card
to that person for inspection.
(14) The occupier of premises must not refuse
or unduly delay entry to the premises by a Federal Safety Officer exercising
powers under this section.
Note: Grade A civil penalty.
(15) In this
section:
copy, in relation to a document, includes
take extracts from the document.
Note: The Criminal Code contains offences for
obstructing or hindering Commonwealth public officials.
63 Powers to enter premises etc. to ascertain
compliance with accreditation scheme
(1) A Federal Safety Officer may exercise
powers under this section for the following purposes (compliance purposes):
(a) ascertaining whether a
constitutional corporation that is an applicant for accreditation meets the
accreditation requirements;
(b) ascertaining whether a
constitutional corporation that is an accredited person has complied, or is
complying, with conditions of the accreditation;
(c) ascertaining whether an accredited
person has complied, or is complying, with conditions of the accreditation in
respect of building work in a Territory or Commonwealth place.
(2) The powers may be exercised at any time
during ordinary working hours or at any other time at which it is necessary to
do so for compliance purposes.
(3) A Federal Safety Officer may, without
force, enter:
(a) any premises on which the officer
has reasonable cause to believe that building work is being carried out, or has
been carried out, by the applicant or accredited person referred to in subsection (1);
or
(b) any premises on which the officer
has reasonable cause to believe that there are documents relevant to compliance
purposes.
(4) Subsection (3) does not authorise
entry onto a part of premises if that part is used for residential purposes.
(5) A Federal Safety Officer may do any of
the following on premises referred to in subsection (3):
(a) inspect any work, material,
machinery, appliance, article or facility;
(b) as prescribed by the regulations,
take samples of any goods or substances;
(c) interview any person;
(d) inspect, and make copies of, any
document that is on the premises, or is accessible from a computer that is kept
on the premises, being a document that the officer believes, on reasonable
grounds, to be relevant to compliance purposes;
(e) require a person who has the
custody of, or access to, a document to produce the document to the officer
within a specified period.
(6) If a person fails to comply with a
requirement under subsection (5) to produce a document, a Federal Safety
Officer may, by written notice served on the person, require the person to
produce the document at a specified place within a specified period (not being
less than 14 days).
(7) Where a document is produced to a Federal
Safety Officer under paragraph (5)(e) or subsection (6), the officer
may:
(a) inspect and copy the document; and
(b) if the Federal Safety Officer
gives a receipt to the person who produced the document—retain the document for
as long as necessary for the purpose of exercising powers or performing
functions as a Federal Safety Officer.
(8) While a Federal Safety Officer retains a
document, the officer must permit the document to be inspected and copied, at
any reasonable time, by:
(a) the person otherwise entitled to
possession of the document; or
(b) a person authorised by the person
otherwise entitled to possession of the document.
(9) A Federal Safety Officer may, without
force, enter business premises in which a person ordinarily performs work or
conducts business if the officer has reasonable cause to believe that the
person has information relevant to compliance purposes.
(10) A Federal Safety Officer must not enter
business premises under subsection (9) if the officer has reasonable cause
to believe that the person concerned is not in that place.
(11) A Federal Safety Officer who enters
premises under subsection (9) may interview the person concerned in that
place.
(12) For the avoidance of doubt, a refusal or
failure by a person to participate in an interview under this section is not to
be treated as conduct covered by section 149.1 of the Criminal Code.
(13) Before entering premises under this
section, a Federal Safety Officer must announce that the officer is authorised
to enter the place. If the occupier or another person who apparently represents
the occupier is present, the officer must produce the officer’s identity card to
that person for inspection.
(14) The occupier of premises must not refuse
or unduly delay entry to the premises by a Federal Safety Officer exercising
powers under this section.
Note: Grade A civil penalty.
(15) In this
section:
accreditation means accreditation under the
accreditation scheme.
accredited person means a person who is
accredited under the accreditation scheme.
copy, in relation to a document, includes
take extracts from the document.
Note: The Criminal Code contains offences for
obstructing or hindering Commonwealth public officials.
Chapter 8—Miscellaneous
64 Project agreements not
enforceable
If:
(a) an agreement is entered into with
the intention of securing standard employment conditions for building employees
in respect of building work that they carry out at a particular building site
or sites; and
(b) not all the employees are employed
by the same employer; and
(c) either:
(i) a party to the
agreement is an organisation and at least some of the employees are members of
that organisation; or
(ii) a party to the
agreement is a constitutional corporation and at least some of the employees
are employees of that corporation; and
(d) the agreement has not been not
approved by FWA (within the meaning of the FW Act);
then the agreement is unenforceable to the extent to which
it relates to building employees.
65 Protection of confidentiality of information
(1) This section restricts what a person (the
entrusted person) may do with protected information that the
person has obtained in the course of official employment.
Note: Although this section applies only to
information that a person obtained in the course of official employment, the
obligations under this section continue to apply after the person ceases to be
in official employment.
Recording or disclosing
(2) The
entrusted person must not:
(a) make a record of protected
information; or
(b) disclose protected information.
Penalty: Imprisonment for 12 months.
Permitted recording or disclosure by designated
officials
(3) If the entrusted person is a designated
official at the time of the recording or disclosure, then each of the following
is an exception to the offence in subsection (2):
(a) the recording or disclosure is for
the purposes of this Act;
(b) the recording or disclosure
happens in the course of the performance of the duties of the entrusted
person’s official employment;
(c) in the case of a disclosure—the
disclosure is to a person appointed or employed by:
(i) the Commonwealth, a
State or Territory; or
(ii) an authority of the
Commonwealth, a State or Territory;
for the purpose of assisting in
building industry law enforcement;
(d) the recording or disclosure is in
accordance with regulations made for the purposes of this paragraph.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal
Code.
Permitted recording or disclosure by other persons
(4) If the entrusted person is not a
designated official at the time of the recording or disclosure, then each of
the following is an exception to the offence in subsection (2):
(a) the recording or disclosure is for
the purposes of this Act;
(b) the recording or disclosure
happens in the course of the performance of the duties of the entrusted
person’s official employment, being duties relating to building industry law
enforcement;
(c) the recording or disclosure is in
accordance with regulations made for the purposes of this paragraph.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal
Code.
Disclosure to a Minister by a designated ABC official
(5) If:
(a) the entrusted person discloses
protected information to any Minister; and
(aa) the entrusted person is a designated
ABC official; and
(b) the disclosure is not required or
authorised by section 12 or 14;
then the exceptions in subsections (3) and (4) of
this section do not apply to the disclosure.
Disclosure in reports under this Act
(6) If:
(a) the entrusted person discloses
protected information in a report under section 12 or 14; and
(b) section 66 is not complied
with in respect of the disclosure of the information in the report;
then the exceptions in subsections (3) and (4) of
this section do not apply to the disclosure.
Authorisation for purposes of Privacy Act
(7) A disclosure of personal information is
taken to be authorised by law for the purposes of paragraph (1)(d) of
Information Privacy Principle 11 in section 14 of the Privacy Act 1988
if the information is protected information and the disclosure is made in
accordance with subsection (3) or (4) of this section.
Definitions
(8) In this section:
building industry law enforcement means
enforcement of a law of the Commonwealth, or of a State or Territory, where the
enforcement is in respect of:
(a) conduct by, or in relation to, a
building industry participant in that capacity; or
(b) conduct that is, or relates to,
building work.
designated ABC
official means:
(a) a person covered by paragraphs (a)
to (e) or (j) of the definition of designated official in this
subsection; or
(b) a person acting under a delegation
under this Act from a person covered by paragraph (a) of this definition.
designated official
means any of the following:
(a) the ABC Commissioner;
(b) a Deputy ABC Commissioner;
(c) an ABC Inspector;
(d) a person assisting the ABC
Commissioner as mentioned in subsection 25(1);
(e) a person engaged as a consultant
under subsection 25(3);
(f) the Federal Safety Commissioner;
(g) a Federal Safety Officer;
(h) an APS employee assisting the
Federal Safety Commissioner;
(i) a person engaged as a consultant
under section 34;
(j) the General Manager of FWA;
(k) a person acting under a delegation
under this Act from a person covered by any of the above paragraphs.
disclose means divulge or communicate.
official employment means:
(a) appointment or employment by, or
the performance of services for:
(i) the Commonwealth, a
State or Territory; or
(ii) an authority of the
Commonwealth, a State or Territory; or
(b) appointment as an ABC Inspector or
Federal Safety Officer.
protected information means information that:
(a) was disclosed or obtained for the
purposes of this Act; and
(b) was obtained by the entrusted
person, or by any other person, in the course of official employment; and
(c) relates to a person other than the
entrusted person.
66 Reports not to include information relating to an
individual’s affairs
(1) Information relating to the affairs of an
individual must not be included in a report under section 12 or 14 if:
(a) the individual is named, or
otherwise specifically identified, in the report as the individual to whom the
information relates; or
(b) it is reasonably likely that
people generally (other than people to whom the individual has disclosed
information relating to the individual’s affairs) would be able to work out the
identity of the individual to whom the information relates.
(2) For the purposes of applying paragraph (1)(b)
to information relating to a particular individual’s affairs, the context in
which the information appears, and information that is otherwise publicly
available, must be taken into account (as well as any other relevant matter).
67 ABC Commissioner to publicise non‑compliance
If the ABC Commissioner considers that
it is in the public interest to do so, the ABC Commissioner may publish details
of:
(a) non‑compliance with the
Building Code, including the names of the persons who have failed to comply;
and
(b) non‑compliance by a building
industry participant with this Act, including the names of the participants who
have failed to comply; and
(c) non‑compliance by a building
industry participant with the Independent Contractors Act 2006, the FW
Act or the Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009, including the names of the participants who have failed to
comply.
68 Delegation by Minister
(1) The Minister may, in writing, delegate
all or any of the Minister’s powers and functions under this Act to:
(a) an SES employee or acting SES
employee; or
(b) a person prescribed by the
regulations for the purposes of this paragraph;
other than powers or functions under Chapter 2 or 4
or section 58 or 61.
(2) The Minister may, in writing, delegate
all or any of the Minister’s powers and functions under Chapter 3 to:
(a) the ABC Commissioner; or
(b) a Deputy ABC Commissioner; or
(c) the Federal Safety Commissioner.
(3) In exercising powers or functions under a
delegation, the delegate must comply with any directions of the Minister.
69 Building association responsible for conduct of
members etc.
(1) For the purposes of this Act, the
following conduct in relation to a building association is taken to be conduct
of the building association:
(a) conduct of the committee of
management of the association;
(b) conduct of an officer or agent of
the association acting in that capacity;
(c) conduct of a member, or group of
members, of the association where the conduct is authorised by:
(i) the rules of the
association; or
(ii) the committee of
management of the association; or
(iii) an officer or agent of
the association acting in that capacity;
(d) conduct of a member of the
association, who performs the function of dealing with an employer on behalf of
the member and other members of the association, acting in that capacity.
(2) Paragraphs (1)(c) and (d) do not
apply if:
(a) a committee of management of the
building association; or
(b) a person authorised by the
committee; or
(c) an officer of the industrial
association;
has taken reasonable steps to prevent the action.
(3) In this section:
officer, in relation to a building
association, includes:
(a) a delegate or other representative
of the association; and
(b) an employee of the association.
70 Capacity, state of mind etc. of person being
coerced etc.
In applying a provision of this Act that
refers to:
(a) coercing a person to do a
particular thing; or
(b) applying undue pressure to a
person to do a particular thing; or
(c) encouraging a person to do a
particular thing; or
(d) advising a person to do a
particular thing; or
(e) inciting a person to do a
particular thing; or
(f) engaging in conduct with the
intention of doing any of the above;
it is not relevant whether or not that person is able, willing
or eligible to do that particular thing.
71 ABC Commissioner intervention in court proceedings
(1) The ABC Commissioner may intervene in the
public interest in a civil proceeding before a court in a matter that:
(a) arises under this Act; or
(b) arises under the Independent
Contractors Act 2006, the FW Act or the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 and involves:
(i) a building industry
participant; or
(ii) building work.
(2) If the ABC Commissioner intervenes in a
proceeding under subsection (1), the ABC Commissioner is taken to be a
party to the proceeding and has all the rights, duties and liabilities of such
a party.
72 ABC Commissioner may make submissions in FWA
proceedings
The ABC Commissioner may, by giving
written notice to the General Manager of FWA, make a submission in a matter
before FWA that arises under the FW Act or the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 and involves:
(a) a building industry participant;
or
(b) building work.
73 ABC Commissioner or ABC Inspector may institute
proceedings under the FW Act, etc.
Powers corresponding to powers of Fair Work Inspectors
under the FW Act, etc.
(1) If a provision of the FW Act, the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009 or of
an instrument under either of those Acts, authorises a Fair Work Inspector
(within the meaning of the FW Act) to:
(a) make an application to FWA; or
(b) make an application to, or
otherwise institute proceedings in, a court;
the provision is also taken to authorise the ABC
Commissioner or an ABC Inspector to make such an application, or institute such
proceedings, in any case where the application or proceedings relates to a
matter that involves:
(d) a building industry participant;
or
(e) building work.
(2) If the ABC Commissioner or an ABC
Inspector makes such an application, or institutes such proceedings, the FW
Act, the Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009 and any such instrument have effect, in relation to the
application or proceedings, as if the ABC Commissioner or the ABC Inspector
were a Fair Work Inspector (within the meaning
of the FW Act).
(3) Directions under section 704 or 705
of the FW Act do not apply to the ABC Commissioner or an ABC Inspector in
relation to such an application or such proceedings.
73A ABC Commissioner or ABC Inspector may institute
proceedings under the Independent Contractors Act 2006
(1) If a provision of the Independent Contractors
Act 2006, or of an instrument under that Act, authorises a workplace
inspector (within the meaning of that Act) to make an application to, or
otherwise institute proceedings in, a court, the provision is also taken to
authorise the ABC Commissioner or an ABC Inspector to make such an application,
or institute such proceedings, in any case where the application or proceedings
relate to a matter that involves:
(a) a building industry participant;
or
(b) building work.
(2) If the ABC Commissioner or an ABC
Inspector makes such an application, or institutes such proceedings, the Independent
Contractors Act 2006 and any such instrument have effect, in relation to
the application or proceedings, as if the ABC Commissioner or the ABC Inspector
were a workplace inspector (within the meaning of that Act).
(3) Directions under section 704 or 705
of the FW Act do not apply to the ABC Commissioner or an ABC Inspector in
relation to such an application or such proceedings.
74 General Manager of FWA must keep ABC Commissioner
informed
The General Manager of FWA must, as soon
as practicable, notify the ABC Commissioner of:
(a) every application lodged with FWA,
or the General Manager of FWA under the FW Act or the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009, where the
application relates to a matter that involves:
(i) a building industry
participant; or
(ii) building work; and
(b) the outcome of each such
application.
75 Jurisdiction of courts
Jurisdiction where Act allows proceedings to be
instituted
(1) If a provision of this Act, expressly or
by implication, authorises a proceeding to be instituted in a particular court
in relation to a matter:
(a) that provision is taken to vest
that court with jurisdiction in that matter; and
(b) in the case of a court of a
State—the jurisdiction so vested is subject to any limits to which any other
jurisdiction of the court may be subject; and
(c) in the case of the Federal Court
or the Federal Magistrates Court—the jurisdiction so vested is not limited by
any limits to which the other jurisdiction of the court may be subject; and
(d) in the case of a court of a
Territory—the jurisdiction is vested so far only as the Constitution permits.
Jurisdiction in relation to modified provisions of FW
Act
(3) If:
(a) a court has jurisdiction in
relation to a matter arising under a provision of the FW Act; and
(b) that provision is affected by this
Act;
then that jurisdiction extends to a matter arising under
that provision as affected by this Act.
Writ of mandamus etc. against officers of the
Commonwealth
(4) Paragraph 563(b) of the FW Act and
paragraph 22(b) of Schedule 17 to the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 extend to matters in
which a writ of mandamus or prohibition, or an injunction, is sought against an
officer or officers of the Commonwealth holding office under that Act, in
relation to powers or functions under this Act. This subsection is enacted for
the avoidance of doubt.
(5) For the purposes of section 44 of
the Judiciary Act 1903, the Federal Court is taken to have jurisdiction
with respect to any matter in which a writ of mandamus or prohibition, or an
injunction, is sought against an officer or officers of the Commonwealth
holding office under this Act.
Note: Section 44 of the Judiciary Act 1903 gives
the High Court of Australia power to remit a matter to a federal court that has
jurisdiction with respect to that matter.
(6) The Federal Court has jurisdiction with
respect to matters remitted to it under section 44 of the Judiciary Act
1903.
Exclusive jurisdiction of Federal Court for certain
matters involving organisations etc.
(7) Subject to this Act, the jurisdiction of
the Federal Court in relation to an act or omission for which an organisation,
or member of an organisation, is liable to be sued, or to be proceeded against
for a pecuniary penalty, is exclusive of the jurisdiction of any other court
created by the Parliament or any court of a State or Territory.
Referral of matters to Full Court of Federal Court
(8) At any stage of a proceeding in a matter
in which the Federal Court has jurisdiction under this Act, a single Judge
exercising the jurisdiction of the Federal Court:
(a) may refer a question of law for
the opinion of a Full Court of the Federal Court; and
(b) may, of the Judge’s own motion or
on the application of a party, refer the matter to a Full Court of the Federal
Court to be heard and determined.
If a Judge so refers a matter, the Full Court of the
Federal Court may have regard to any evidence given, or arguments adduced, in
the proceeding before the Judge.
(9) The Federal Court has jurisdiction with
respect to matters in relation to which questions may be referred to it under subsection (8).
75A Exercising jurisdiction in the Fair Work Division
of the Federal Court
(1) This section applies if:
(a) an application is made to the
Federal Court under this Act; or
(b) a writ of mandamus or prohibition
or an injunction is sought in the Federal Court against a person holding office
under this Act; or
(c) a declaration is sought under
section 21 of the Federal Court of Australia Act 1976 in relation
to a matter arising under this Act; or
(d) an injunction is sought under
section 23 of the Federal Court of Australia Act 1976 in relation
to a matter arising under this Act; or
(e) a prosecution is instituted in the
Federal Court under this Act; or
(f) an appeal is instituted in the
Federal Court from a judgment of the Federal Magistrates Court or a court of a
State or Territory in a matter arising under this Act; or
(g) proceedings in relation to a
matter arising under this Act are transferred to the Federal Court from the
Federal Magistrates Court; or
(h) the Federal Magistrates Court or a
court of a State or Territory states a case or reserves a question for the
consideration of the Federal Court in a matter arising under this Act; or
(i) the High Court remits a matter
arising under this Act to the Federal Court.
(2) The jurisdiction of the Federal Court is
to be exercised in the Fair Work Division of the Federal Court.
75B Exercising jurisdiction in the Fair Work Division
of the Federal Magistrates Court
(1) This section applies if:
(a) an application is made to the
Federal Magistrates Court under this Act; or
(b) an injunction is sought under
section 15 of the Federal Magistrates Act 1999 in relation to a
matter arising under this Act; or
(c) a declaration is sought under
section 16 of the Federal Magistrates Act 1999 in relation to a
matter arising under this Act; or
(d) proceedings in relation to a
matter arising under this Act are transferred to the Federal Magistrates Court
from the Federal Court; or
(e) the High Court remits a matter
arising under this Act to the Federal Magistrates Court.
(2) The jurisdiction of the Federal
Magistrates Court is to be exercised in the Fair Work Division of the Federal
Magistrates Court.
76 Court not to require undertaking as to damages
If the ABC Commissioner or an ABC
Inspector is an applicant in court proceedings under:
(a) section 39 or 49 of this Act;
or
(b) the FW Act or the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009;
then the court cannot require the ABC Commissioner, the
ABC Inspector or any other person, as a condition of granting an interim
injunction, to give undertakings as to damages.
77 ABC Commissioner etc. not liable for conduct in
good faith
(1) No one is liable to civil proceedings for
loss, damage or injury of any kind suffered by another person as a result of
anything done, or omitted to be done, in good faith and without negligence:
(a) by a protected person in the
exercise, or purported exercise, of functions, powers or duties under, or in
relation to, this Act; or
(b) by a protected person in the
exercise, or purported exercise, of functions, powers or duties under, or in
relation to, the Independent Contractors Act 2006, the FW Act or the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009, where
the exercise, or purported exercise, of the function, power or duty relates to
a matter that involves:
(i) a building industry
participant; or
(ii) building work.
(2) In this section:
protected person means any of the following:
(a) the ABC Commissioner;
(b) a Deputy ABC Commissioner;
(c) an ABC Inspector;
(d) a person assisting the ABC
Commissioner as mentioned in subsection 25(1);
(e) a person engaged as a consultant
under subsection 25(3);
(f) the Federal Safety Commissioner;
(g) a Federal Safety Officer;
(h) an APS employee assisting the
Federal Safety Commissioner;
(i) a person engaged as a consultant
under section 34;
(j) the General Manager of FWA;
(k) a person acting under a delegation
under this Act from a person covered by any of the above paragraphs.
78 Regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the
regulations may make provision for, and in relation to, the following:
(a) the signing or lodging of
documents that are required or permitted by this Act to be lodged with, or
given to, a court;
(b) the manner in which, and the time
within which, applications under this Act may be made and dealt with;
(c) the form of notices that are
required or permitted to be given under this Act;
(d) requiring a building industry
participant to notify the ABC Commissioner of:
(i) an application made to
a court under this Act, the Independent Contractors Act 2006, the FW Act
or the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009, where the application is made by, or otherwise involves, the
participant; and
(ii) the outcome of the
application;
(e) fees to be charged in relation to
proceedings under this Act;
(f) penalties for offences against
the regulations, not exceeding a fine of 10 penalty units;
(g) civil penalties for contraventions
of the regulations, not exceeding:
(i) for a body corporate—25
penalty units; or
(ii) in any other case—5
penalty units.
(3) Despite subsection 12(2) of the Legislative
Instruments Act 2003:
(a) the first regulations made for the
purposes of subsection 5(3) may be expressed to take effect from the commencement
of that subsection; and
(b) the first regulations made for the
purposes of subsection 5(4) may be expressed to take effect from the
commencement of that subsection; and
(c) the first regulations made for the
purposes of subsection 7(2) may be expressed to take effect from the
commencement of that subsection;
so long as those regulations are made within 120 days
after the commencement of this subsection.