Part 1 Preliminary
1 Name
of Regulations [see Note
1]
These Regulations are the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005.
2 Commencement
[see Note 1]
These Regulations commence on the day after they
are registered.
3 Definitions
In these Regulations:
AAT means the Administrative Appeals
Tribunal.
Act means the Building and Construction Industry
Improvement Act 2005.
AS 1885.1‑1990 means AS 1885.1‑1990:
Measurement of occupational health and safety performance, Part 1: Describing
and reporting occupational injuries and disease known as the Workplace injury
and disease recording standard.
AS/NZS 4801:2001 means AS/NZS 4801:2001:
Occupational health and safety management systems — Specification with
guidance for use.
claims incident rate is the number of
standard workers’ compensation claims per 1000 employees.
lost time injury frequency rate has the
meaning given by AS 1885.1‑1990.
Occupational Health and Safety Management System,
or OHSMS, has the meaning given in the
AS/NZS 4801:2001.
OH&S means occupational health and
safety.
standard workers’ compensation claims means
the number of accepted workers’ compensation claims which resulted in a
fatality, permanent disability, or a temporary disability requiring an absence
from work of 1 or more working weeks.
Note Several other words and expressions
used in these Regulations have the meaning given in the Act. For example:
· accredited person
(subsection 35 (7))
· building
contractor (section 4)
· building work
(section 5)
· Commonwealth
authority (subsection 35 (7))
· Commonwealth
building contract (subsection 35 (7))
· constitutional
corporation (section 4)
· Federal Safety
Commissioner (section 4)
· Federal Safety
Officer (section 4)
· occupier (section
4)
· premises (section
4).
Part 2 Accreditation
scheme
Division 2.1 Accreditation scheme
4 Accreditation
scheme
For subsection 35 (1) of the Act, the
following accreditation scheme is prescribed.
Division 2.2 Accreditation authority
5 Accreditation
authority
For subsection 35 (2) of the Act, the Federal
Safety Commissioner is the accrediting authority under the accreditation
scheme.
Division 2.3 How persons are accredited under the accreditation scheme
Subdivision A Requirements for
accreditation
6 Accreditation
by the Federal Safety Commissioner
(1) The Federal Safety Commissioner may accredit a
person under the accreditation scheme if:
(a) the person is a person who, under
Subdivision B, may apply for accreditation under the accreditation scheme;
and
(b) the person (the applicant)
applies as provided for in Subdivision C; and
(c) the applicant has agreed to the pre‑accreditation
audit and audit process mentioned in Division 2.4; and
(d) the Federal Safety Commissioner is satisfied
that the applicant has appropriate OH&S policies and procedures and safe
work practices.
(2) In deciding an application, the Federal Safety
Commissioner must have regard to the following matters:
(a) whether the applicant’s OHSMS:
(i) has been certified to the AS/NZS
4801:2001; or
(ii) has been certified to the
international OHSMS standard OHSAS 18001:1999;
(b) the applicant’s experience (if any) in
dealing with construction hazards or high risk activities;
(c) the applicant’s record in relation to
workplace safety;
(d) the findings of a pre‑accreditation
audit.
(3) The Federal Safety Commissioner must also have
regard to the performance of the applicant against the following focus points:
(a) demonstrated senior management commitment to
OH&S;
(b) demonstrated effective subcontractor OH&S
management;
(c) integration of safe design principles into the
risk management process;
(d) whole of project OH&S consultation and
communication;
(e) whole of project OH&S performance
measurement;
(f) OH&S training requirements.
Subdivision B Who may apply
for accreditation under the scheme?
7 Who
may apply for accreditation?
A person (other than an individual) may apply to
the Federal Safety Commissioner for accreditation under the accreditation
scheme.
Subdivision C Application
8 Form
of application
An application must be made in a form approved by
the Federal Safety Commissioner for this regulation.
9 Matters
to accompany application
The following must accompany an application made
under regulation 7:
(a) a copy of a certificate mentioned in
paragraph 6 (2) (a);
(b) evidence of the applicant’s experience (if
any) in dealing with construction hazards or high risk activities;
(c) an indication that the applicant has agreed
to the pre‑accreditation audit and process mentioned in Division 2.4;
(d) evidence of the commitment of the applicant’s
senior management to appropriate OH&S policies and procedures and safe work
practices;
(e) evidence of the applicant’s work practices
in relation to the applicant’s building contractors and the applicant’s
building sites;
(f) evidence that the applicant integrates safe
design principles into the risk management process;
(g) evidence that the applicant has mechanisms
for effective consultation and communication of OH&S issues across an
entire project;
(h) evidence of the applicant’s capability to
collect and analyse information about, and report on, OH&S performance
across an entire project;
(i) evidence that the applicant ensures that
workers at all levels on a project are suitably trained and competent to deal
with OH&S risks associated with the project.
10 Further
information
(1) For the purposes of making a decision under subregulation 12 (1), the Federal
Safety Commissioner may, by notice in writing, request further information
from the applicant.
(2) The notice must set out:
(a) the information sought; and
(b) the date by which the information is to be
provided to the Federal Safety Commissioner.
(3) The information must be provided within the period
specified in the notice.
(4) The Federal Safety Commissioner is not required to
consider an application while waiting for the information to be provided.
(5) If the information is not provided within the period
specified in the notice, the application is taken to have been withdrawn.
Division 2.4 Pre‑accreditation audits
11 Pre‑accreditation
audit and the audit process
(1) For paragraph 6 (1) (c), the applicant
must agree to be audited for the purpose of the Federal Safety Commissioner
determining if he or she is satisfied that the applicant has appropriate
OH&S policies and procedures and safe work practices (see paragraph 6
(1) (d)).
(2) For paragraph 6 (1) (c), the audit
process that the applicant must agree to is as follows:
(a) if the applicant is a constitutional
corporation — a Federal Safety Officer (FSO) will carry out
the audit exercising the powers set out in section 63 of the Act (the section 63
powers) in relation to the premises mentioned in section 63 of the
Act;
(b) if the applicant is not a constitutional
corporation — an FSO will carry out the audit exercising equivalent powers to the section 63 powers in
relation to the following premises:
(i) premises or building sites over
which the applicant exercises control (as long as the premises are not premises
covered by subsection 63 (4) of the Act);
(ii) premises or building sites that
the occupier agrees to the FSO entering for the purposes of exercising the powers.
Note See Chapter 7 of the Building and
Construction Industry Improvement Regulations 2005 for matters relating to
the exercise of section 63 powers.
Division 2.5 Decision on an application
12 Federal
Safety Commissioner to decide application
(1) The Federal Safety Commissioner must decide an
application for accreditation, including:
(a) the period of accreditation (which must not
be longer than 3 years); and
(b) whether or not the applicant is to be
accredited subject to a condition.
(2) As soon as
practicable after deciding an application, the Federal Safety Commissioner must
notify the applicant in writing of the decision.
(3) The notice must set out:
(a) the decision; and
(b) if the applicant is successful:
(i) the date from which the applicant
is accredited; and
(ii) the period of accreditation; and
(c) if the applicant is successful, the
conditions on the accreditation operating at
accreditation (see Division 2.6); and
(d) if the applicant is unsuccessful:
(i) the reasons for the decision; and
(ii) a statement of the applicant’s
review rights under Division 2.8.
13 Period
of accreditation
(1) If the period of accreditation commenced before 31
July 2006, the period of accreditation ends 12 months after the date on which
the period of accreditation commenced.
Note The period of accreditation
commenced on the date notified under paragraph 12 (3) (b).
(2) The period must not be extended.
(3) If the period of accreditation commences on or after
31 July 2006, and before 1 October 2006, the period of accreditation
ends at the end of 31 July 2007.
Note The period of accreditation commences
on the date notified under paragraph 12 (3) (b).
(4) If the period of accreditation commences on or after
1 October 2006, the period of accreditation is the period determined
by the Federal Safety Commissioner under subregulation 12 (1).
Note The period of accreditation
commences on the date notified under paragraph 12 (3) (b).
(5) The period under subregulation (3) or (4) must not
be extended.
Note At the end of the period of
accreditation, to remain accredited, an accredited person must apply for a new
accreditation.
Division 2.6 Conditions on accreditation
14 Conditions
that apply to all accredited persons
(1) The following conditions apply to an accredited
person:
(a) the person has at all times appropriate
OH&S policies and procedures and safe work practices;
(b) the person agrees to the post‑accreditation
audits and the audit process mentioned in regulation 16;
(c) the person agrees to comply with the
reporting requirements notified to the person under subregulation (2);
(d) the person complies with the conditions of
accreditation.
(2) The Federal Safety Commissioner must notify the
person in writing of the reporting requirements that the person must comply
with.
15 Federal
Safety Commissioner may impose further conditions
(1) On or after the
accreditation of a person, the Federal Safety Commissioner may, by
notice in writing, impose on the accredited person a further condition of
accreditation.
(2) If the Federal
Safety Commissioner imposes a further condition under subregulation (1) after
accreditation, the Federal Safety Commissioner must give the person notice in
writing of the imposition of the condition and the terms of the condition.
(3) The notice must also include a statement:
(a) setting out
the reason that the condition was imposed; and
(b) as to the
person’s review rights under Division 2.8.
16 Audit
process
For paragraph 14 (1) (b), the audit
process the accredited person must agree to is as follows:
(a) if the person is a constitutional
corporation or an accredited person undertaking building work in a Territory —
a Federal Safety Officer (FSO) will carry out the audit
exercising the powers set out in section 63 of the Act (the section 63
powers) in relation to the premises mentioned in section 63 of the Act;
(b) if the person is not a person mentioned in
paragraph (a) — an FSO will carry out the audit exercising equivalent powers to the section 63 powers in
relation to the following premises:
(i) premises or building sites over
which the applicant exercises control (as long as the premises are not premises
covered by subsection 63 (4) of the Act);
(ii) premises or building sites that
the occupier agrees to the FSO entering for the
purposes of exercising the powers.
Note See Chapter 7 of the Building and
Construction Industry Improvement Regulations 2005 for matters relating to
the exercise of section 63 powers.
Division 2.7 Breach of conditions on accreditation
17 Breach
of conditions
(1) If an accredited person breaches a condition of
accreditation, the Federal Safety Commissioner may do any or all of the
following in respect of the breach:
(a) impose a
further condition of accreditation;
(b) suspend the
person’s accreditation;
(c) if the
Federal Safety Commissioner is satisfied that the person’s work practices are
not safe, revoke the person’s accreditation.
(2) If:
(a) the Federal
Safety Commissioner does a thing mentioned in paragraph (1) (a) or (b) in
respect of a breach (the first breach); and
(b) the Federal
Safety Commissioner later becomes satisfied that the person’s work practices
are not safe (either because of the first breach or because of another breach
of a condition of accreditation);
the Commissioner may revoke the
person’s accreditation even if the period for fulfilling any condition or the
period of any suspension has not ended.
18 Notices
under this Division
(1) If the Federal Safety Commissioner imposes on a
person a further condition of accreditation under
paragraph 17 (1) (a), the Federal Safety Commissioner
must give the person notice in writing of the imposition of the condition and
the terms of the condition.
(2) If the Federal Safety Commissioner suspends the
person’s accreditation under paragraph 17 (1) (b),
the Commissioner must give the person notice in writing of the
suspension, the date that the suspension takes effect and the period of the
suspension.
(3) If the Federal Safety Commissioner revokes the
person’s accreditation under paragraph 17 (1) (c)
or subregulation 17 (2), the Commissioner must give the person notice in
writing of the revocation and the date from which the revocation takes effect.
(4) A notice under this regulation must also include a
statement:
(a) setting out the reason that the condition
was imposed or that the accreditation was suspended or revoked, as the case may
be; and
(b) as to the person’s review rights under
Division 2.8.
Division 2.8 Review of decisions
Subdivision A Reviewable
decisions
19 Reviewable
decisions
The decisions in the table are reviewable
decisions.
|
Item
|
Decision
|
Provisions
|
|
1
|
To refuse to accredit a person
|
subregulation 12 (1)
|
|
1A
|
To determine a period of less than 3 years’
accreditation
|
subregulation 12 (1)
|
|
2
|
To impose a condition of accreditation
|
subregulation 15 (1)
or paragraph 17 (1) (a)
|
|
3
|
To suspend an accredited person’s accreditation
|
paragraph 17 (1) (b)
|
|
4
|
To revoke an accredited person’s accreditation
|
paragraph 17 (1) (c)
or subregulation 17 (2)
|
Subdivision B Internal review
of decisions
20 Internal
review of decisions
(1) A person whose interests are affected by a reviewable
decision may request a reconsideration of the decision.
(2) The person’s request must be made by written notice
given to the Federal Safety Commissioner within 28 days after the day on which
the person first received the notice of the decision.
(3) The notice must set out the reasons for making the
request.
(4) The Federal Safety Commissioner must, as soon as
practicable after receiving a notice under subregulation (2), cause the
decision to be reviewed by a person (the reviewer) specified in
subregulation (5) or (6).
(5) If the Federal Safety Commissioner made the
decision — a person:
(a) to whom the Federal Safety Commissioner’s
powers under the accreditation scheme are delegated; and
(b) who was not involved in making the decision.
(6) If the Federal Safety Commissioner did not make the
decision — either:
(a) the Federal Safety Commissioner; or
(b) a person:
(i) to whom the Federal Safety
Commissioner’s powers under the accreditation scheme are delegated; and
(ii) who was not involved in making the
decision.
(7) A person who reviews a reviewable decision under
subregulation 20 (5) or (6) may:
(a) make a decision affirming, varying or
setting aside the reviewable decision; and
(b) if the reviewer sets aside the decision, make
such other decision as the reviewer thinks appropriate.
(8) The reviewer’s decision takes effect:
(a) on the day specified in the decision on
review; or
(b) if a day is not specified — on the day
on which the decision is made.
(9) The reviewer is taken, for this Subdivision, to have
affirmed the reviewable decision if a decision is not made under
subregulation (7) within 90 days after receiving the person’s request.
21 Notice
of decisions
The reviewer of a decision under regulation 20
must give a person whose interests are affected by the decision notice in
writing within 28 days after making the decision:
(a) of the decision; and
(b) of the person’s review rights under
Subdivision C.
Note General notification requirements
are set out in section 27A of the Administrative Appeals Tribunal Act 1975.
Subdivision C AAT review of
reviewable decisions
22 AAT
review
An application may be made to the AAT for the
review of a reviewable decision that has been affirmed, varied or set aside
under Subdivision B.
Division 2.9 Federal Safety Commissioner etc not liable for conduct in
good faith
23 Federal
Safety 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 by a
protected person in the exercise, or purported exercise, of functions, powers
or duties under, or in relation to, these Regulations.
(2) In this regulation, protected person
means:
(a) the Federal Safety Commissioner; or
(b) a Federal Safety Officer; or
(c) a person acting under a delegation from the
Federal Safety Commissioner.
Part 3 Prescribed building work
24 Prescribed
building work
(1) For subsection 35 (4) of the Act, the following
building work is prescribed:
(a) building work that is carried out outside
Australia;
(b) building work under a contract:
(i) entered into on or after
1 March 2006 but before 1 October 2007; and
(ii) that has a value of less than
$6 000 000;
(c) building work:
(i) under a contract with a value of
less than $3 000 000; and
(ii) that forms part of a project that
is directly funded by the Commonwealth or a Commonwealth authority;
(d) building work which forms part of a project
that is indirectly funded by the Commonwealth or a Commonwealth authority,
unless:
(i) the building work is carried out
under a contract with a value of greater than $3 000 000; and
(ii) the contribution made to the
funding of the project by the Commonwealth or a Commonwealth authority:
(A) is at least
$5 000 000; and
(B) represents at least 50%
of the total funding; and
(C) is made on or after 1
October 2007;
(e) building work which forms part of a project
that is indirectly funded by the Commonwealth or a Commonwealth authority,
unless:
(i) the building work is carried out
under a contract with a value of greater than $3 000 000; and
(ii) the contribution made to the
funding of the project by the Commonwealth or a Commonwealth authority:
(A) is $10 000 000
or more; and
(B) is made on or after 1
October 2007;
(f) building work carried out by a
subcontractor.
(2) In this regulation:
project means building work consisting of a
number of separate contracts.
subcontractor means a builder who carries out
some or all of the building work, under a contract with another builder who:
(a) carries out some of the building work; or
(b) arranges for the building work to be carried
out.
Notes to the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005
Note 1
The Building and Construction Industry Improvement
(Accreditation Scheme) Regulations 2005 (in force under the Building and Construction Industry Improvement Act 2005) as shown in this compilation
comprise Select Legislative Instrument 2005 No. 305 amended as indicated
in the Tables below.
For all relevant information pertaining to application,
saving or transitional provisions see Table A.
Table of Instruments
|
Year and
Number
|
Date of FRLI registration
|
Date of
commencement
|
Application, saving or
transitional provisions
|
|
2005 No. 305
|
19 Dec 2005 (see F2005L04059)
|
20 Dec 2005
|
|
|
2006 No. 117
|
5 June 2006 (see F2006L01683)
|
6 June 2006
|
—
|
|
2006 No. 198
|
28 July 2006 (see F2006L02452)
|
31 July 2006
|
R. 4
|
|
2007 No. 127
|
24 May 2007 (see F2007L01468)
|
25 May 2007
|
—
|
|
2007 No. 303
|
27 Sept 2007 (see F2007L03841)
|
1 Oct 2007
|
R. 4
|
Table of
Amendments
|
ad. = added or inserted am. = amended
rep. = repealed rs. = repealed and substituted
|
|
Provision affected
|
How affected
|
|
Part 2
|
|
|
Division 2.3
|
|
|
Subdivision A
|
|
|
R. 6 .........................................
|
am. 2006 No. 198
|
|
R. 9..........................................
|
rs. 2006 No. 198
|
|
Division 2.5
|
|
|
R. 12.......................................
|
am. 2006 No. 198
|
|
R. 13.......................................
|
am. 2006 No. 198
|
|
Note to r. 13...........................
|
rs. 2006 No. 198
|
|
Division 2.8
|
|
|
Subdivision A
|
|
|
R. 19.......................................
|
am. 2006 No. 198
|
|
Subdivision B
|
|
|
R. 20.......................................
|
rs. 2006 No. 117
|
|
Note to r. 21...........................
|
ad. 2006 No. 117
|
|
Part 3
|
|
|
Part 3......................................
|
rs. 2007 No. 303
|
|
R. 24.......................................
|
am. 2007 No. 127
|
|
|
rs. 2007 No. 303
|
Table A Application,
saving or transitional provisions
Select Legislative Instrument 2006 No. 198
4 Application
of amendments
(1) If:
(a) an accreditation under
the Building and Construction Industry Improvement (Accreditation
Scheme) Regulations 2005 was given before 31 July 2006;
and
(b) the period of
accreditation commenced before 31 July 2006;
the amendment made by item [5] of Schedule 1
applies in relation to the application, but the remainder of those Regulations, as in force immediately before 31 July 2006, is taken to apply
in relation to the application.
(2) If:
(a) either:
(i) an accreditation
under the Building and Construction Industry Improvement
(Accreditation Scheme) Regulations 2005 was given before
31 July 2006; or
(ii) an application
for accreditation under the Building and Construction Industry
Improvement (Accreditation Scheme) Regulations 2005 was
made before 31 July 2006; and
(b) the period of
accreditation did not commence before 31 July 2006;
the amendment made by item [6] of Schedule 1
applies in relation to the accreditation, but the remainder of those Regulations, as in force immediately before 31 July 2006, is taken to
apply in relation to the accreditation.
(3) If:
(a) an applicant wishes to
make an application for accreditation under the Building and
Construction Industry Improvement (Accreditation Scheme) Regulations 2005 on or after 31 July 2006 and before 1 October 2006; and
(b) the Commissioner is
satisfied that, if:
(i) the application
were made; and
(ii) the applicant
were successful;
the period of
accreditation that would be imposed would commence before 1 October 2006;
the amendment made by item [6] of Schedule 1
applies in relation to the application, but the remainder of those Regulations, as in force immediately before 31 July 2006, is taken to
apply in relation to the application.
Note An
applicant wishing to apply for accreditation should contact the Office of the
Federal Safety Commissioner first to establish whether (and how) the amendments
in Schedule 1 will apply to the application. This will allow the applicant to
identify what information must be in, or must accompany, the application.
The Federal Safety Commissioner has arrangements
in place for prospective applicants that will allow the Commissioner to
identify when the period of accreditation would commence if the applicant were
successful.
(4) If:
(a) an applicant wishes to
make an application for accreditation under the Building and
Construction Industry Improvement (Accreditation Scheme) Regulations 2005
on or after 31 July 2006; and
(b) the Commissioner is
satisfied that, if:
(i) the application
were made; and
(ii) the applicant
were successful;
the period of
accreditation that would be imposed would commence on or after 1 October
2006;
the amendments made by items [1], [2], [3],
[4], [6], [7] and [8] of Schedule 1 apply in relation to the application, but
the remainder of those Regulations, as in force
immediately before 31 July 2006, is taken to apply in relation to the
application.
Note An
applicant wishing to apply for accreditation should contact the Office of the
Federal Safety Commissioner first to establish whether (and how) the amendments
in Schedule 1 will apply to the application. This will allow the applicant to
identify what information must be in, or must accompany, the application.
The Federal Safety Commissioner has arrangements
in place for prospective applicants that will allow the Commissioner to
identify when the period of accreditation would commence if the applicant were
successful.
Select Legislative Instrument 2007 No. 303
4 Transitional
Regulation 24 of the Building and Construction
Industry Improvement (Accreditation Scheme) Regulations 2005, as in force
immediately before 1 October 2007 continues to apply to building work under a
contract entered into before 1 March 2006.