2008-2009 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 (Education, Employment and Workplace Relations) A Bill for an Act to amend the Building and Construction Industry Improvement Act 2005, and for related purposes [Page Break] 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 1 3 Schedule(s) ......................................................................................... 2 Schedule 1--Amendme nts 3 Building and Construction Industry Improvement Act 2005 3 Schedule 2--Transitional and consequential provisions 50 i Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 2 Construction Industry Improvement Act 2005, and 3 for related purposes 4 The Parliament of Australia enacts: 5 1 Short title 6 This Act may be cited as the Building and Construction Industry 7 Improvement Amendment (Transition to Fair Work) Act 2009. 8 2 Commence ment 9 (1) Each provision of this Act specified in column 1 of the table 10 commences, or is taken to have commenced, in accordance with 11 column 2 of the table. Any other statement in column 2 has effect 12 according to its terms. 13 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1 A day or days to be fixed by Proclamat ion. However, if any of the provision(s) do not commence with in the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 3. Schedule 2 The day on which this Act receives the Royal Assent. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 2 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Schedule 1--Amendments 2 3 Building and Construction Industry Improvement Act 2005 4 1 Section 1 5 Omit "Building and Construction Industry Improvement Act 2005", 6 substitute "Fair Work (Building Industry) Act 2009". 7 Note: This item amends the short title of the Act. If another amendment of 8 the Act is described by reference to the Act's previous short title, that 9 other amendment has effect after the commencement of this item as an 10 amendment of the Act under its amended short title (see section 10 of 11 the Acts Interpretation Act 1901). 12 2 Section 3 13 Repeal the section, substitute: 14 3 Object of this Act 15 The object of this Act is to provide a balanced framework for 16 cooperative, productive and harmonious workplace relations in the 17 building industry by: 18 (a) ensuring compliance with workplace relations laws by all 19 building industry participants; and 20 (b) providing information, advice and assistance to all building 21 industry participants about their rights and obligations; and 22 (c) providing an effective means of enforcing those rights and 23 obligations; and 24 (d) providing appropriate safeguards on the use of enforcement 25 and investigative powers; and 26 (e) improving the level of occupational health and safety in the 27 building industry. 28 3 Subsection 4(1) 29 Insert: 30 AAT presidential member means a person who is a presidential 31 member of the Administrative Appeals Tribunal under the 32 Administrative Appeals Tribunal Act 1975. 33 4 Subsection 4(1) (definition of ABC Commissioner) Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 3 [Page Break] 1 Repeal the definition. 2 5 Subsection 4(1) (definition of ABC Inspector) 3 Repeal the definition. 4 6 Subsection 4(1) 5 Insert: 6 Advisory Board means the Fair Work Building Industry 7 Inspectorate Advisory Board referred to in section 23. 8 7 Subsection 4(1) (definition of AIRC) 9 Repeal the definition. 10 8 Subsection 4(1) (definition of bargaining representative) 11 Repeal the definition. 12 9 Subsection 4(1) (definition of building enterprise 13 agreement) 14 Repeal the definition. 15 10 Subsection 4(1) 16 Insert: 17 building matter has the meaning given by subsection 59C(3). 18 11 Subsection 4(1) (definition of civil penalty provision) 19 Repeal the definition. 20 12 Subsection 4(1) (definition of collective agreement) 21 Repeal the definition. 22 13 Subsection 4(1) (definition of Commissioner) 23 Repeal the definition. 24 14 Subsection 4(1) (definition of Commonwealth authority) 25 Repeal the definition. 26 15 Subsection 4(1) (paragraph (d) of the definition of 27 Commonwealth industrial instrument) 4 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Omit "AIRC", substitute "Australian Industrial Relations Commission". 2 16 Subsection 4(1) 3 Insert: 4 Commonwealth Ombudsman means the person for the time being 5 holding office as Ombudsman under the Ombudsman Act 1976. 6 17 Subsection 4(1) (definition of Deputy ABC Commissioner) 7 Repeal the definition. 8 18 Subsection 4(1) (paragraph (a) of the definition of 9 designated building law) 10 Omit "this Act,". 11 19 Subsection 4(1) 12 Insert: 13 Director means the Director of the Fair Work Building Industry 14 Inspectorate referred to in section 9. 15 20 Subsection 4(1) (definition of eligible condition) 16 Repeal the definition. 17 21 Subsection 4(1) (definition of employee organisation) 18 Repeal the definition. 19 22 Subsection 4(1) (definition of enterprise agreement) 20 Repeal the definition. 21 23 Subsection 4(1) 22 Insert: 23 examination has the meaning given by subsection 51(1). 24 24 Subsection 4(1) 25 Insert: 26 examination notice means an examination notice issued under 27 Division 3 of Part 1 of Chapter 7. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 5 [Page Break] 1 25 Subsection 4(1) 2 Insert: 3 Fair Work Building Industry Inspector means: 4 (a) the Director; or 5 (b) a person appointed as a Fair Work Building Industry 6 Inspector under section 59. 7 26 Subsection 4(1) 8 Insert: 9 Fair Work Inspector has the same meaning as in the FW Act. 10 27 Subsection 4(1) 11 Insert: 12 Fair Work Ombudsman has the same meaning as in the FW Act. 13 28 Subsection 4(1) (definition of full-time Commissioner) 14 Repeal the definition. 15 29 Subsection 4(1) (definition of Grade A civil penalty 16 provision) 17 Repeal the definition. 18 30 Subsection 4(1) (definition of Grade B civil penalty 19 provision) 20 Repeal the definition. 21 31 Subsection 4(1) 22 Insert: 23 Independent Assessor means the Independent Assessor--Special 24 Building Industry Powers referred to in section 36B. 25 32 Subsection 4(1) (definition of industrial body) 26 Repeal the definition. 27 33 Subsection 4(1) (definition of industrial instrument) 28 Repeal the definition. 6 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 34 Subsection 4(1) (definition of industrial law) 2 Repeal the definition. 3 35 Subsection 4(1) 4 Insert: 5 inspector means a Fair Work Building Industry Inspector. 6 36 Subsection 4(1) 7 Insert: 8 investigation means an investigation to which Part 1 of Chapter 7 9 applies. 10 37 Subsection 4(1) 11 Insert: 12 lawyer means a person who is admitted to the legal profession by a 13 Supreme Court of a State or Territory. 14 38 Subsection 4(1) 15 Insert: 16 nominated AAT presidential member means an AAT presidential 17 member in respect of whom a nomination is in force under 18 section 44 to issue examination notices under Division 3 of Part 1 19 of Chapter 7. 20 39 Subsection 4(1) 21 Insert: 22 Office means the Office of the Fair Work Building Industry 23 Inspectorate referred to in section 26J. 24 40 Subsection 4(1) (definition of part-time Commissioner) 25 Repeal the definition. 26 41 Subsection 4(1) (definition of penalty unit) 27 Repeal the definition. 28 42 Subsection 4(1) (definition of protected industrial action) Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 7 [Page Break] 1 Repeal the definition. 2 43 Subsection 4(1) 3 Insert: 4 safety net contractual entitlement has the same meaning as in the 5 FW Act. 6 44 Subsection 4(1) 7 Insert: 8 this Act includes the regulations. 9 45 Subsection 4(1) (definition of transitional award) 10 Omit "meaning given by the Workplace Relations Act", substitute 11 "same meaning as in the Fair Work (Transitional Provisions and 12 Consequential Amendments) Act 2009". 13 46 Subsection 4(1) (definition of unlawful industrial action) 14 Repeal the definition. 15 47 Subsection 4(1) (definition of Workplace Relations Act) 16 Repeal the definition. 17 48 Subparagraph 5(1)(d)(iv) 18 Repeal the subparagraph, substitute: 19 (iv) the on-site prefabrication of made-to-order components 20 to form part of any building, structure or works; 21 49 Chapter 2 22 Repeal the Chapter, substitute: 8 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Chapter 2--Fair Work Building Industry 2 Inspectorate 3 Part 1--Director 4 5 9 Establishme nt 6 There is to be a Director of the Fair Work Building Industry 7 Inspectorate. 8 10 Functions 9 The Director has the following functions: 10 (a) to promote: 11 (i) harmonious, productive and cooperative workplace 12 relations in the building industry; and 13 (ii) compliance with designated building laws and the 14 Building Code by building industry participants; 15 including by providing education, assistance and advice to 16 building industry participants; 17 (b) to monitor compliance with designated building laws and the 18 Building Code by building industry participants; 19 (c) to inquire into, and investigate, any act or practice by a 20 building industry participant that may be contrary to a 21 designated building law, a safety net contractual entitlement 22 or the Building Code; 23 (d) to commence proceedings in a court, or to make applications 24 to FWA, to enforce designated building laws and safety net 25 contractual entitlements as they relate to building industry 26 participants; 27 (e) to refer matters to relevant authorities; 28 (f) to represent building industry participants who are, or may 29 become, a party to proceedings in a court, or a party to a 30 matter before FWA, under a designated building law, if the 31 Director considers that representing the building industry 32 participants will promote compliance with designated 33 building laws; Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 9 [Page Break] 1 (g) to disseminate information about designated building laws 2 and the Building Code, and about other matters affecting 3 building industry participants, including disseminating 4 information by facilitating ongoing discussions with building 5 industry participants; 6 (h) to make submissions and provide information to the 7 Independent Assessor in accordance with this Act; 8 (i) any other functions conferred on the Director by any Act. 9 Note: The Director also has the functions of an inspector (see section 59A). 10 11 Minister's directions 11 (1) The Minister may, by legislative instrument, give directions to the 12 Director about: 13 (a) the policies, programs and priorities of the Director; and 14 (b) the manner in which the Director is to perform the functions 15 or exercise the powers of the Director. 16 (2) The Minister must not give a direction under subsection (1) about a 17 particular case. 18 (3) The Director must comply with a direction under subsection (1). 19 (4) Despite anything in section 44 of the Legislative Instruments Act 20 2003, section 42 of that Act applies to a direction under 21 subsection (1) of this section. 22 12 Minister may require reports 23 (1) The Minister may, in writing, direct the Director to give the 24 Minister specified reports relating to the Director's functions and 25 powers. 26 Note: See also section 66, which restricts the disclosure of personal 27 information in a report. 28 (2) The Director must comply with the direction. 10 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 13 Delegation by the Director 2 General power to delegate 3 (1) Subject to subsections (2) and (3), the Director may, in writing, 4 delegate all or any of the Director's functions or powers under any 5 Act to: 6 (a) a member of staff referred to in subsection 26K(1); or 7 (b) an inspector. 8 Functions and powers that must not be delegated 9 (2) The Director must not delegate his or her functions or powers: 10 (a) as an inspector; or 11 (b) under section 45 (which deals with applying for an 12 examination notice); or 13 (c) under subsection 50(3) or (4) (which deal with varying the 14 time for compliance with an examination notice). 15 Functions and powers that may only be delegated to SES 16 employees 17 (3) The Director must not delegate his or her functions or powers 18 under the following provisions to anyone other than a member of 19 staff referred to in subsection 26K(1) who is an SES employee: 20 (a) subsection 51(2) (which deals with conducting an 21 examination); 22 (b) subsection 51(4) (which deals with administering an oath or 23 affirmation at an examination). 24 Delegate subject to direction 25 (4) In performing functions or exercising powers under a delegation, 26 the delegate must comply with any directions of the Director. 27 Details of delegation must be published 28 (5) As soon as practicable after delegating any function or power 29 under this section, the Director must publish details of the 30 delegation. 31 Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 11 [Page Break] 1 14 Annual report 2 (1) The Director must, as soon as practicable after the end of each 3 financial year, prepare and give to the Minister, for presentation to 4 the Parliament, a report on the performance of the Director's 5 functions and the exercise of the Director's powers during that 6 year. 7 Note 1: See also section 34C of the Acts Interpretation Act 1901, which 8 contains extra rules about annual reports. 9 Note 2: See also section 66, which restricts the disclosure of personal 10 information in a report. 11 (2) The report must include: 12 (a) details of directions given by the Minister during the 13 financial year under section 11 or 12; and 14 (b) details of delegations by the Director under section 13 during 15 the financial year; and 16 (c) details of recommendations made to the Director by the 17 Advisory Board during the financial year. 18 15 Appointment 19 (1) The Director is to be appointed by the Minister by written 20 instrument. 21 (2) The appointment is to be on a full-time basis. 22 (3) The Minister must not appoint a person as the Director unless the 23 Minister is satisfied that the person: 24 (a) has suitable qualifications or experience; and 25 (b) is of good character. 26 (4) The Director holds office for the period specified in the instrument 27 of appointment. The period must not exceed 5 years. 28 (5) The Director holds office on the terms and conditions (if any) in 29 relation to matters not covered by this Act that are determined by 30 the Minister. 31 16 Acting appointments 32 (1) The Minister may, by written instrument, appoint a person to act as 33 the Director: 12 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 (a) during a vacancy in the office of Director (whether or not an 2 appointment has previously been made to the office); or 3 (b) during any period, or during all periods, when the Director: 4 (i) is absent from duty or from Australia; or 5 (ii) is, for any reason, unable to perform the duties of the 6 office. 7 (2) Anything done by or in relation to a person purporting to act under 8 an appointment is not invalid merely because: 9 (a) the occasion for the appointment had not arisen; or 10 (b) there was a defect or irregularity in connection with the 11 appointment; or 12 (c) the appointment had ceased to have effect; or 13 (d) the occasion to act had not arisen or had ceased. 14 Note: See sections 20 and 33A of the Acts Interpretation Act 1901. 15 17 Remuneration 16 (1) The Director is to be paid the remuneration that is determined by 17 the Remuneration Tribunal. If no determination of that 18 remuneration by the Tribunal is in operation, the Director is to be 19 paid the remuneration that is prescribed by the regulations. 20 (2) The Director is to be paid the allowances that are prescribed by the 21 regulations. 22 (3) This section has effect subject to the Remuneration Tribunal Act 23 1973. 24 18 Leave of absence 25 (1) The Director has the recreation leave entitlements that are 26 determined by the Remuneration Tribunal. 27 (2) The Minister may grant the Director leave of absence, other than 28 recreation leave, on the terms and conditions as to remuneration or 29 otherwise that the Minister determines. 30 19 Engaging in other paid employment 31 The Director must not engage in paid employment outside the 32 duties of his or her office without the Minister's approval. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 13 [Page Break] 1 20 Disclosure of interests 2 The Director must give written notice to the Minister of all 3 material personal interests that the Director has or acquires and that 4 conflict or could conflict with the proper performance of the 5 Director's functions. 6 21 Resignation 7 (1) The Director may resign his or her appointment by giving the 8 Minister a written resignation. 9 (2) The resignation takes effect on the day it is received by the 10 Minister or, if a later day is specified in the resignation, on that 11 later day. 12 22 Termination 13 (1) The Minister may terminate the appointment of the Director for 14 misbehaviour or physical or mental incapacity. 15 (2) The Minister must terminate the appointment of the Director if: 16 (a) the Director: 17 (i) becomes bankrupt; or 18 (ii) applies to take the benefit of any law for the relief of 19 bankrupt or insolvent debtors; or 20 (iii) compounds with his or her creditors; or 21 (iv) makes an assignment of his or her remuneration for the 22 benefit of his or her creditors; or 23 (b) the Director is absent, except on leave of absence, for 14 24 consecutive days or for 28 days in any 12 months; or 25 (c) the Director engages, except with the Minister's approval, in 26 paid employment outside the duties of his or her office (see 27 section 19); or 28 (d) the Director fails, without reasonable excuse, to comply with 29 section 20. 14 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Part 2--Fair Work Building Industry Inspectorate 2 Advisory Board 3 4 23 Establishme nt 5 The Fair Work Building Industry Inspectorate Advisory Board is 6 established by this section. 7 24 Role 8 The Advisory Board is to make recommendations to the Director 9 about: 10 (a) policies to guide the performance of the Director's functions 11 and the exercise of the Director's powers; and 12 (b) the priorities of, and the programs to be implemented by, the 13 Director; and 14 (c) any matter that the Minister requests the Advisory Board to 15 consider. 16 25 Membe rship 17 The Advisory Board consists of the following members: 18 (a) the Director; 19 (b) the Fair Work Ombudsman; 20 (c) one member who has experience or background in employee 21 representation in the building industry; 22 (d) one member who has experience or background in employer 23 representation in the building industry; 24 (e) no more than 3 other members. 25 26 Appointment of me mbers 26 (1) A member of the Advisory Board (other than the Director or the 27 Fair Work Ombudsman) is to be appointed by the Minister by 28 written instrument. 29 Note: A member of the Advisory Board is eligible for re-appointment (see 30 subsection 33(4A) of the Acts Interpretation Act 1901). Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 15 [Page Break] 1 (2) The Minister must not appoint a person as a member unless the 2 Minister is satisfied that the person has knowledge of, or 3 experience in, one or more of the following fields: 4 (a) workplace relations; 5 (b) law; 6 (c) business, industry or commerce. 7 (3) A member appointed by the Minister holds office on a part-time 8 basis. 9 (4) A member appointed by the Minister holds office for the period 10 specified in the instrument of appointment. The period must not 11 exceed 3 years. 12 26A Chair 13 (1) The Minister must appoint a member (other than the Director or 14 the Fair Work Ombudsman) to be the Chair of the Advisory Board. 15 (2) The Minister may, by written instrument, appoint a member (other 16 than the Director or the Fair Work Ombudsman) to act as the 17 Chair: 18 (a) during a vacancy in the office of Chair (whether or not an 19 appointment has previously been made to the office); or 20 (b) during any period, or during all periods, when the Chair: 21 (i) is absent from duty or from Australia; or 22 (ii) is, for any reason, unable to perform the duties of the 23 office. 24 Note: See sections 20 and 33A of the Acts Interpretation Act 1901. 25 26B Remune ration of me mbe rs 26 (1) A member appointed by the Minister is to be paid the remuneration 27 that is determined by the Remuneration Tribunal. If no 28 determination of that remuneration by the Tribunal is in operation, 29 the member is to be paid the remuneration that is prescribed by the 30 regulations. 31 (2) A member appointed by the Minister is to be paid the allowances 32 that are prescribed by the regulations. 16 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 (3) This section has effect subject to the Remuneration Tribunal Act 2 1973. 3 26C Leave of me mbe rs 4 (1) The Minister may grant the Chair leave of absence on the terms 5 and conditions that the Minister determines. 6 (2) The Chair may grant leave of absence to any other member on the 7 terms and conditions that the Chair determines. 8 (3) The Chair must notify the Minister if the Chair grants to a member 9 leave of absence for a period that exceeds 6 months. 10 26D Resignation of me mbers 11 (1) A member appointed by the Minister may resign his or her 12 appointment by giving the Minister a written resignation. 13 (2) The resignation takes effect on the day it is received by the 14 Minister or, if a later day is specified in the resignation, on that 15 later day. 16 26E Te rmination of appointment 17 (1) The Minister may terminate the appointment of a member (other 18 than the Director or the Fair Work Ombudsman) for misbehaviour 19 or physical or mental incapacity. 20 (2) The Minister must terminate the appointment of a member (other 21 than the Director or the Fair Work Ombudsman) if: 22 (a) the member: 23 (i) becomes bankrupt; or 24 (ii) applies to take the benefit of any law for the relief of 25 bankrupt or insolvent debtors; or 26 (iii) compounds with his or her creditors; or 27 (iv) makes an assignment of his or her remuneration for the 28 benefit of his or her creditors; or 29 (b) the member is absent, except on leave of absence, from 3 30 consecutive meetings of the Advisory Board. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 17 [Page Break] 1 26F Othe r terms and conditions 2 A member (other than the Director or the Fair Work Ombudsman) 3 holds office on the terms and conditions (if any) in relation to 4 matters not covered by this Act that are determined by the 5 Minister. 6 26G Meetings 7 (1) The Chair must convene: 8 (a) such meetings of the Advisory Board as are, in his or her 9 opinion, necessary for the performance of its role; and 10 (b) at least 2 meetings of the Advisory Board in each financial 11 year; and 12 (c) such meetings of the Advisory Board as are requested by the 13 Director. 14 (2) The quorum for a meeting is the Chair, the Director and the Fair 15 Work Ombudsman. 16 (3) A question arising at a meeting of the Advisory Board is to be 17 decided by a majority of the votes of the members present and 18 voting. 19 (4) The Chair must preside at all meetings. 20 (5) At a meeting, the Chair has a deliberative vote and, in the event of 21 an equality of votes, has a casting vote. 22 26H Decisions without meetings 23 (1) The Advisory Board is taken to have made a decision at a meeting 24 if: 25 (a) without meeting, a majority of the members indicate 26 agreement with the decision; and 27 (b) that agreement is indicated in accordance with the method 28 determined by the Advisory Board under subsection (2); and 29 (c) all the members were informed of the proposed decision, or 30 reasonable efforts were made to inform all the members of 31 the proposed decision. 32 (2) Subsection (1) applies only if the Advisory Board: 18 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 (a) has determined that it may make decisions of that kind 2 without meeting; and 3 (b) has determined the method by which members are to indicate 4 agreement with proposed decisions. 5 (3) The Advisory Board must keep a record of decisions made in 6 accordance with this section. 7 Part 3--Office of the Fair Work Building Industry 8 Inspectorate 9 10 26J Office of the Fair Work Building Industry Inspectorate 11 The Office of the Fair Work Building Industry Inspectorate is 12 established by this section. 13 26K Staff 14 (1) The staff of the Office are to be persons engaged under the Public 15 Service Act 1999. 16 (2) For the purposes of the Public Service Act 1999: 17 (a) the Director and the staff of the Office together constitute a 18 Statutory Agency; and 19 (b) the Director is the Head of that Statutory Agency. 20 26L Pe rsons assisting the Director 21 The Director may also be assisted: 22 (a) by employees of Agencies (within the meaning of the Public 23 Service Act 1999); or 24 (b) by officers and employees of a State or Territory; or 25 (c) by officers and employees of authorities of the 26 Commonwealth, a State or a Territory; 27 whose services are made available to the Director in connection 28 with the performance of any of his or her functions. 29 Note: For example, State or Territory employees could be made av ailable to 30 assist the Director in providing education in a particular region. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 19 [Page Break] 1 26M Consultants 2 The Director may, on behalf of the Commonwealth, engage 3 persons having suitable qualifications and experience as 4 consultants to the Director. The terms and conditions of the 5 engagement of a person are such as are determined by the Director 6 in writing. 7 Note: See also section 71 of the Public Service Act 1999, which makes 8 provision for State employees to perform services in an A gency (as 9 defined in that Act). 10 50 Section 28 11 Repeal the section. 12 51 Chapters 5 and 6 13 Repeal the Chapters. 14 52 Part 1 of Chapter 7 15 Repeal the Part, substitute: 16 Part 1--Powers to obtain information etc. 17 Division 1--Preliminary 18 36 Definitions 19 Building project 20 (1) For the purposes of this Part, a building project is a project that 21 consists of, or includes, building work. 22 Interested person 23 (2) For the purposes of this Part, each of the following is an interested 24 person in relation to a building project: 25 (a) the Minister; 26 (b) a person prescribed by the regulations for the purposes of this 27 paragraph. 20 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 36A Application of this Part 2 General 3 (1) This Part applies to an investigation by the Director into a 4 suspected contravention, by a building industry participant, of a 5 designated building law or a safety net contractual entitlement. 6 Limitation on Director's powers 7 (2) However, the Director may exercise powers under this Part in 8 relation to a suspected contravention by a building industry 9 participant of a safety net contractual entitlement only if the 10 Director reasonably believes that the building industry participant 11 has contravened a provision or term referred to in subsection 12 706(2) of the FW Act. 13 Division 2--Role of the Independent Assessor 14 Subdivision A--Establishment and appointment etc. of the 15 Independent Assessor 16 36B Establishment 17 There is to be an Independent Assessor--Special Building Industry 18 Powers. 19 36C Functions and powe rs 20 The Independent Assessor has the functions and powers conferred 21 on him or her by or under this Act. 22 36D Minister may require reports 23 (1) The Minister may, in writing, direct the Independent Assessor to 24 give the Minister specified reports relating to the Independent 25 Assessor's functions and powers. 26 (2) The Independent Assessor must comply with the direction. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 21 [Page Break] 1 37 Appointment 2 (1) The Independent Assessor is to be appointed by the 3 Governor-General by written instrument. 4 (2) The appointment is to be on a part-time basis. 5 (3) Before the Governor-General appoints a person as the Independent 6 Assessor, the Minister must be satisfied that the person: 7 (a) has suitable qualifications or experience; and 8 (b) is of good character. 9 (4) The Independent Assessor holds office for the period specified in 10 the instrument of appointment. The period must not exceed 5 years. 11 (5) The Independent Assessor holds office on the terms and conditions 12 (if any) in relation to matters not covered by this Act that are 13 determined by the Governor-General. 14 37A Acting appointme nts 15 (1) The Minister may, by written instrument, appoint a person to act as 16 the Independent Assessor: 17 (a) during a vacancy in the office of Independent Assessor 18 (whether or not an appointment has previously been made to 19 the office); or 20 (b) during any period, or during all periods, when the 21 Independent Assessor: 22 (i) is absent from duty or from Australia; or 23 (ii) is, for any reason, unable to perform the duties of the 24 office. 25 (2) Anything done by or in relation to a person purporting to act under 26 an appointment is not invalid merely because: 27 (a) the occasion for the appointment had not arisen; or 28 (b) there was a defect or irregularity in connection with the 29 appointment; or 30 (c) the appointment had ceased to have effect; or 31 (d) the occasion to act had not arisen or had ceased. 32 Note: See sections 20 and 33A of the Acts Interpretation Act 1901. 22 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 37B Remune ration 2 (1) The Independent Assessor is to be paid the remuneration that is 3 determined by the Remuneration Tribunal. If no determination of 4 that remuneration by the Tribunal is in operation, the Independent 5 Assessor is to be paid the remuneration that is prescribed by the 6 regulations. 7 (2) The Independent Assessor is to be paid the allowances that are 8 prescribed by the regulations. 9 (3) This section has effect subject to the Remuneration Tribunal Act 10 1973. 11 37C Leave of absence 12 (1) The Independent Assessor has the recreation leave entitlements 13 that are determined by the Remuneration Tribunal. 14 (2) The Minister may grant the Independent Assessor leave of absence, 15 other than recreation leave, on the terms and conditions as to 16 remuneration or otherwise that the Minister determines. 17 37D Engaging in other paid employme nt 18 The Independent Assessor must not engage in any paid 19 employment that conflicts or may conflict with the proper 20 performance of the Independent Assessor's functions. 21 37E Disclosure of interests 22 The Independent Assessor must give written notice to the Minister 23 of all material personal interests that the Independent Assessor has 24 or acquires and that conflict or could conflict with the proper 25 performance of the Independent Assessor's functions. 26 37F Resignation 27 (1) The Independent Assessor may resign his or her appointment by 28 giving the Governor-General a written resignation. 29 (2) The resignation takes effect on the day it is received by the 30 Governor-General or, if a later day is specified in the resignation, 31 on that later day. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 23 [Page Break] 1 37G Termination 2 (1) The Governor-General may terminate the appointment of the 3 Independent Assessor for misbehaviour or physical or mental 4 incapacity. 5 (2) The Governor-General must terminate the appointment of the 6 Independent Assessor if: 7 (a) the Independent Assessor: 8 (i) becomes bankrupt; or 9 (ii) applies to take the benefit of any law for the relief of 10 bankrupt or insolvent debtors; or 11 (iii) compounds with his or her creditors; or 12 (iv) makes an assignment of his or her remuneration for the 13 benefit of his or her creditors; or 14 (b) the Independent Assessor is absent, except on leave of 15 absence, for 14 consecutive days or for 28 days in any 12 16 months; or 17 (c) the Independent Assessor engages in paid employment that, 18 in the Minister's opinion, conflicts or may conflict with the 19 proper performance of his or her functions (see section 37D); 20 or 21 (d) the Independent Assessor fails, without reasonable excuse, to 22 comply with section 37E. 23 Subdivision B--Determinations by Independent Assessor 24 38 Application of this Subdivision 25 This Subdivision applies in relation to a building project if the 26 building work that the project consists of, or includes, begins on or 27 after the commencement of this Subdivision. 28 39 Independent Assessor may determine that powe rs to obtain 29 information do not apply in relation to particular 30 building project 31 (1) The Independent Assessor may, in accordance with this 32 Subdivision, make a written determination that section 45 does not 33 apply in relation to one or more building projects. 24 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Note 1: Section 45 provides for the Director to make an application to a 2 nominated AAT presidential member for the issue of an examination 3 notice in relation to a person in respect of an investigation. 4 Note 2: A determination can be varied or revoked on application by an 5 interested person (see subsection 33(3) of the Acts Interpretation Act 6 1901) or on request by the Director (see section 43 of this Act). 7 (2) The Independent Assessor may make a determination under 8 subsection (1) in relation to a building project only on application 9 under section 40 by an interested person in relation to the building 10 project. 11 (3) The Independent Assessor must not make a determination under 12 subsection (1) in relation to a particular building project unless the 13 Independent Assessor is satisfied, in relation to that building 14 project, that: 15 (a) it would be appropriate to make the determination, having 16 regard to: 17 (i) the object of this Act; and 18 (ii) any matters prescribed by the regulations; and 19 (b) it would not be contrary to the public interest to make the 20 determination. 21 (4) A determination under subsection (1) is not a legislative 22 instrument. 23 40 Inte rested person may apply for determination 24 (1) Subject to subsection (5), an interested person in relation to a 25 building project (or 2 or more such interested persons acting 26 jointly) may apply in writing to the Independent Assessor for a 27 determination that section 45 does not apply in relation to the 28 building project. 29 Note: Section 45 provides for the Director to make an application to a 30 nominated AAT presidential member for the issue of an examination 31 notice in relation to a person in respect of an investigation. 32 (2) An application under subsection (1) must: 33 (a) state the grounds on which the application is made; and 34 (b) if a form is prescribed by the regulations--be in that form; 35 and 36 (c) include any other information prescribed by the regulations. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 25 [Page Break] 1 (3) An application under subsection (1) may relate to more than one 2 building project. 3 (4) An application under subsection (1) may be made at any time: 4 (a) before or after the relevant building project has commenced; 5 or 6 (b) after the relevant building project is completed. 7 (5) If an interested person has made an application (the original 8 application) under subsection (1) in relation to a building project, 9 the interested person may not make a further application under that 10 subsection, in relation to the same building project and on the same 11 grounds as the original application, unless the interested person 12 becomes aware of new information in relation to the building 13 project. 14 41 Consideration of application for determination 15 Opportunity for Director to make submissions in relation to 16 application 17 (1) If the Independent Assessor receives an application for a 18 determination from an interested person (the applicant) under 19 section 40, the Independent Assessor must: 20 (a) as soon as practicable after receiving the application, give the 21 Director a copy of the application; and 22 (b) give the Director a reasonable opportunity to make 23 submissions in relation to the application. 24 Independent Assessor may request further information 25 (2) The Independent Assessor may request the applicant or the 26 Director to give the Independent Assessor further information in 27 relation to the application. 28 (3) If a request for further information is made under subsection (2), 29 the applicant or the Director (as the case requires) must give the 30 further information to the Independent Assessor: 31 (a) as soon as practicable after receiving the request; and 32 (b) if the request specifies that the information must be given in 33 writing--in writing. 26 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Decision by Independent Assessor 2 (4) The Independent Assessor must decide whether or not to make the 3 determination. In making the decision, the Independent Assessor 4 must have regard to: 5 (a) the application and any further information given to the 6 Independent Assessor under subsection (3); and 7 (b) any submissions made by the Director. 8 (5) As soon as practicable after the Independent Assessor makes a 9 decision under subsection (4), the Independent Assessor must give 10 written notice of the decision to: 11 (a) the applicant; and 12 (b) the Director. 13 42 Publication and period of effect of determination 14 (1) As soon as practicable after making a determination under 15 subsection 39(1), the Independent Assessor must: 16 (a) give a copy of the determination to: 17 (i) the applicant for the determination; and 18 (ii) the Director; and 19 (b) arrange for a copy of the determination to be published in the 20 Gazette. 21 (2) A determination under subsection 39(1) takes effect on the day on 22 which it is published in the Gazette. 23 43 Director may request Independent Assessor to reconsider 24 determination 25 (1) The Director may request the Independent Assessor to reconsider a 26 determination (the original determination) made under subsection 27 39(1) in relation to a building project. 28 (2) A request under subsection (1): 29 (a) may be made at any time after the original determination is 30 made; and 31 (b) must be in writing and set out the reasons for the request. 32 (3) If the Independent Assessor receives a request under 33 subsection (1), the Independent Assessor must: Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 27 [Page Break] 1 (a) reconsider the original determination; and 2 (b) make a determination affirming or revoking the original 3 determination, or varying the original determination in such 4 manner as the Independent Assessor considers appropriate. 5 (4) As soon as practicable after making a determination under 6 subsection (3), the Independent Assessor must give written notice 7 of that determination to: 8 (a) the Director; and 9 (b) the applicant for the original determination. 10 (5) The Independent Assessor must, as soon as practicable after 11 making a determination under subsection (3) revoking or varying 12 the original determination, arrange for a copy of the determination 13 to be published in the Gazette. 14 (6) A determination under subsection (3) revoking or varying the 15 original determination takes effect on the day on which it is 16 published in the Gazette. 17 Division 3--Examination notices 18 44 Minister may nominate AAT presidential me mbe rs to issue 19 examination notices 20 (1) The Minister may, by writing, nominate an AAT presidential 21 member to issue examination notices under this Division. 22 (2) The Minister may nominate an AAT presidential member who is a 23 Judge to issue examination notices under this Division only if the 24 Judge has consented, by writing, to the nomination. 25 (3) A nomination ceases to have effect if: 26 (a) the nominated AAT presidential member ceases to be an 27 AAT presidential member; or 28 (b) the Minister, by writing, withdraws the nomination. 29 (4) A nominated AAT presidential member has, in performing a 30 function of or connected with issuing an examination notice under 31 this Division, the same protection and immunity as a Justice of the 32 High Court has in relation to proceedings in the High Court. 28 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 45 Director may apply to nominated AAT presidential me mber for 2 examination notice 3 General requirements 4 (1) If the Director believes on reasonable grounds that a person: 5 (a) has information or documents relevant to an investigation; or 6 (b) is capable of giving evidence that is relevant to an 7 investigation; 8 the Director may apply, in writing, to a nominated AAT 9 presidential member for the issue of an examination notice 10 requiring the person: 11 (c) to give the information to the Director; or 12 (d) to produce the documents to the Director; or 13 (e) to attend before the Director to answer questions relevant to 14 the investigation. 15 Application not permitted if determination by Independent 16 Assessor is in force 17 (2) The Director may not make an application under subsection (1) in 18 relation to an investigation (regardless of when the suspected 19 contravention to which the investigation relates occurred) if the 20 investigation is connected with a building project in relation to 21 which a determination under subsection 39(1) is in force. 22 Note: Subsection 39(1) provides for the Independent Assessor to make a 23 determination that section 45 does not apply in relation to certain 24 building projects. 25 Form and content of application 26 (3) An application for an examination notice must: 27 (a) if a form is prescribed by the regulations--be in that form; 28 and 29 (b) include any information prescribed by the regulations. 30 (4) An application for an examination notice must not relate to more 31 than one person, but may relate to more than one investigation. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 29 [Page Break] 1 Application must be accompanied by affidavit 2 (5) An application for an examination notice must be accompanied by 3 an affidavit by the Director including the following: 4 (a) the name of the person in relation to whom the application 5 relates; 6 (b) details of the investigation (or investigations) to which the 7 application relates; 8 (c) a statement that the investigation (or investigations) are not 9 connected with a building project in relation to which a 10 determination under subsection 39(1) is in force; 11 (d) the grounds on which the Director believes the person has 12 information or documents, or is capable of giving evidence, 13 relevant to the investigation (or investigations) referred to in 14 paragraph (b); 15 (e) details of other methods used to attempt to obtain the 16 information, documents or evidence; 17 (f) the number (if any) of previous applications for an 18 examination notice that the Director has made in relation to 19 the person in respect of the investigation (or investigations) 20 referred to in paragraph (b); 21 (g) information about whether the Director has made, or expects 22 to make, any other applications for an examination notice in 23 relation to the investigation (or investigations) referred to in 24 paragraph (b) and, if so, the persons in relation to whom 25 those applications relate. 26 Further information 27 (6) A nominated AAT presidential member to whom an application for 28 an examination notice is made may request the Director to give the 29 presidential member further information in relation to the 30 application. 31 (7) If a request for further information is made under subsection (6), 32 the Director must give the further information in writing as soon as 33 practicable after receiving the request. 34 46 Sunset provision 35 The Director may not make an application under section 45 after 36 the end of 5 years after the day on which that section commences. 30 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 47 Issue of examination notice 2 (1) A nominated AAT presidential member to whom an application for 3 an examination notice has been made must issue the examination 4 notice if the presidential member is satisfied of the following: 5 (a) that the Director has commenced the investigation (or 6 investigations) to which the application relates; 7 (b) that the investigation (or investigations) are not connected 8 with a building project in relation to which a determination 9 under subsection 39(1) is in force; 10 (c) that there are reasonable grounds to believe that the person to 11 whom the application relates has information or documents, 12 or is capable of giving evidence, relevant to the investigation 13 (or investigations); 14 (d) that any other method of obtaining the information, 15 documents or evidence: 16 (i) has been attempted and has been unsuccessful; or 17 (ii) is not appropriate; 18 (e) that the information, documents or evidence would be likely 19 to be of assistance in the investigation (or investigations); 20 (f) that, having regard to all the circumstances, it would be 21 appropriate to issue the examination notice; 22 (g) any other matter prescribed by the regulations. 23 (2) A nominated AAT presidential member must not issue an 24 examination notice except in the circumstances referred to in 25 subsection (1). 26 (3) An examination notice must not be issued in relation to more than 27 one person, but may be issued in relation to more than one 28 investigation. 29 (4) If: 30 (a) an application for an examination notice is made in relation 31 to more than one investigation; and 32 (b) the nominated AAT presidential member to whom the 33 application is made is not satisfied of the matters referred to 34 in subsection (1) in relation to each of those investigations; 35 the nominated AAT presidential member must issue the 36 examination notice in relation to the investigation (or 37 investigations) in relation to which the nominated AAT Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 31 [Page Break] 1 presidential member is satisfied of the matters referred to in 2 subsection (1). 3 48 Form and content of examination notice 4 An examination notice: 5 (a) must be in accordance with the form prescribed by the 6 regulations; and 7 (b) if the notice requires a person to give information to the 8 Director--must specify the time by which, and the manner 9 and form in which, the information is to be given; and 10 (c) if the notice requires a person to produce documents to the 11 Director--must specify the time by which, and the manner in 12 which, the documents are to be produced; and 13 (d) if the notice requires a person to attend before the Director to 14 answer questions relevant to an investigation--must specify 15 the time and place for the attendance; and 16 (e) must be signed by the nominated AAT presidential member 17 who issued it; and 18 (f) must include any other information prescribed by the 19 regulations. 20 49 Director must notify Commonwealth Ombudsman of issue of 21 examination notice 22 As soon as practicable after an examination notice has been issued, 23 the Director must: 24 (a) notify the Commonwealth Ombudsman that the examination 25 notice has been issued; and 26 (b) give the Commonwealth Ombudsman a copy of: 27 (i) the examination notice; and 28 (ii) the affidavit that accompanied the application for the 29 examination notice; and 30 (iii) any other information in relation to the examination 31 notice that was given to the nominated AAT presidential 32 member who issued the notice. 32 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 50 Director may give examination notice to pe rson in relation to 2 whom it is issued and vary time for compliance 3 Director may give examination notice to person in relation to 4 whom it is issued 5 (1) If a nominated AAT presidential member issues an examination 6 notice, the Director may give the notice to the person in relation to 7 whom it is issued. 8 (2) If an examination notice is not given to the person in relation to 9 whom it is issued within 3 months after the day on which it was 10 issued, the notice ceases to have effect at the end of that period. 11 Director may vary time for compliance with examination notice 12 (3) If: 13 (a) the Director gives an examination notice to a person under 14 subsection (1); and 15 (b) the time specified in the notice under paragraph 48(b), (c) or 16 (d) is not at least 14 days after the notice is given to the 17 person; 18 the Director must, at the same time as the examination notice is 19 given to the person, also give notice to the person of a time later 20 than the time specified in the notice. 21 (4) The Director may, at any time after giving an examination notice to 22 the person in relation to whom it is issued, give notice to the person 23 of a time later than the time: 24 (a) specified in the notice under paragraph 48(b), (c) or (d); or 25 (b) notified under subsection (3). 26 (5) A later time notified under subsection (3) or (4) must be at least 14 27 days after the examination notice is given to the person. 28 (6) If the person is notified of a later time under subsection (3) or (4), 29 the examination notice has effect as if the later time (or the latest of 30 those times) were the time specified in the examination notice. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 33 [Page Break] 1 Director must give copy of notice varying time to Commonwealth 2 Ombudsman 3 (7) If a notice under subsection (3) or (4) is given to a person, the 4 Director must, as soon as practicable after giving the notice, give a 5 copy of the notice to the Commonwealth Ombudsman. 6 51 Conduct of examination etc. 7 Application of section 8 (1) This section applies if a person is required by an examination 9 notice to attend before the Director to answer questions relevant to 10 an investigation. An attendance before the Director for this purpose 11 is called an examination. 12 Director to conduct examination 13 (2) The Director must conduct the examination of the person. 14 Representation by lawyer 15 (3) The person may, if he or she so chooses, be represented at the 16 examination by a lawyer of the person's choice. 17 Oath or affirmation 18 (4) The Director may require the information or answers given by the 19 person at the examination to be verified by, or given on, oath or 20 affirmation, and either orally or in writing. For that purpose, the 21 Director may administer the oath or affirmation. 22 (5) The oath or affirmation is an oath or affirmation that information 23 or answers are, or will be, true. 24 Director must not require person to give certain undertakings 25 (6) The Director must not require the person to undertake: 26 (a) not to disclose information or answers given at the 27 examination; or 28 (b) not to discuss matters relating to the examination with any 29 other person. 30 53 Part 2 of Chapter 7 (heading) 34 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Repeal the heading. 2 54 Division 1 of Part 2 of Chapter 7 (heading) 3 Repeal the heading. 4 55 Section 52 5 Repeal the section, substitute: 6 52 Offence--failure to comply with examination notice 7 (1) A person commits an offence if: 8 (a) the person has been given an examination notice under 9 section 50; and 10 (b) the person fails: 11 (i) to give the required information by the time, and in the 12 manner and form, specified in the notice; or 13 (ii) to produce the required documents by the time, and in 14 the manner, specified in the notice; or 15 (iii) to attend to answer questions at the time and place 16 specified in the notice; or 17 (iv) to take an oath or make an affirmation, if required to do 18 so under subsection 51(4); or 19 (v) to answer questions relevant to the investigation while 20 attending as required by the notice. 21 Penalty: Imprisonment for 6 months. 22 Note: A court may impose a maximum fine of 30 penalty units instead of, or 23 in addition to, a term of imprisonment. A body corporate that is 24 convicted of an offence may be fined up to 5 times that maximum 25 fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.) 26 (2) This Part does not require a person to give information, produce a 27 document or answer questions if to do so would disclose 28 information that: 29 (a) is the subject of legal professional privilege; or 30 (b) would be protected by public interest immunity. 31 Note: A defendant bears an evidential burden in relation to the matters in 32 this subsection (see subsection 13.3(3) of the Criminal Code). 33 56 Subsection 53(1) 34 Omit "section 52", substitute "an examination notice". Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 35 [Page Break] 1 Note: The heading to section 53 is altered by omitting "section 52 requirements" and 2 substituting "examination notices". 3 57 Paragraph 53(1)(b) 4 Omit "liability; or", substitute "liability.". 5 58 Paragraph 53(1)(c) 6 Repeal the paragraph. 7 59 Paragraph 53(2)(c) 8 Omit "52(6)", substitute "52(1)". 9 60 Section 54 10 Omit "section 52", substitute "an examination notice". 11 61 After section 54 12 Insert: 13 54A Review and report by Commonwealth Ombudsman 14 Director to give report etc. to Commonwealth Ombudsman 15 (1) As soon as practicable after an examination of a person is 16 completed, the Director must give the Commonwealth 17 Ombudsman: 18 (a) a report about the examination; and 19 (b) a video recording of the examination; and 20 (c) a transcript of the examination. 21 (2) The report required under paragraph (1)(a) must include: 22 (a) a copy of the examination notice under which the 23 examination was conducted; and 24 (b) the following information: 25 (i) the time and place at which the examination was 26 conducted; 27 (ii) the name of each person who was present at the 28 examination; 29 (iii) any other information prescribed by the regulations. 36 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Review of exercise of powers under this Division 2 (3) The Commonwealth Ombudsman: 3 (a) must review the exercise of powers under this Division by 4 the Director and any person assisting the Director; and 5 (b) may do anything incidental or conducive to the performance 6 of that function. 7 (4) The Commonwealth Ombudsman's powers under the Ombudsman 8 Act 1976 extend to a review by the Ombudsman under this section 9 as if the review were an investigation by the Ombudsman under 10 that Act. 11 (5) The exercise of those powers in relation to a review by the 12 Ombudsman under this section is taken, for all purposes, to be an 13 exercise of powers under the Ombudsman Act 1976. 14 Commonwealth Ombudsman to report to Parliament 15 (6) As soon as practicable after the end of each financial year, the 16 Commonwealth Ombudsman must prepare and present to the 17 Parliament a report about examinations conducted under this 18 Division during that year. The report must include the results of 19 reviews conducted under this section during that year. 20 (7) The Commonwealth Ombudsman may prepare and present to the 21 Parliament such other reports about the results of reviews 22 conducted under this section as the Commonwealth Ombudsman 23 considers appropriate. 24 62 Subsection 55(1) 25 Omit "ABC Commissioner", substitute "Director". 26 Note: The heading to subsection 55(1) is altered by omitting "ABC Commissioner" and 27 substituting "Director". 28 63 Subsection 55(1) 29 Omit "section 52", substitute "an examination notice". 30 64 Paragraphs 55(2)(a) to (d) 31 Repeal the paragraphs, substitute: 32 (a) the Director; 33 (b) an inspector; Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 37 [Page Break] 1 (c) a member of staff referred to in subsection 26K(1); 2 (d) a person assisting the Director under section 26L; 3 (e) a person engaged as a consultant under section 26M. 4 65 Subsection 55(4) 5 Omit "ABC Commissioner" (wherever occurring), substitute 6 "Director". 7 66 Section 56 8 Omit "ABC Commissioner", substitute "Director". 9 Note: The heading to section 56 is altered by omitting "ABC Commissioner" and substituting 10 "Director". 11 67 Section 56 12 Omit "section 52", substitute "an examination notice". 13 68 At the end of Division 1 of Part 2 of Chapter 7 14 Add: 15 57 Secrecy provisions 16 (1) The operation of this Division is not limited by any secrecy 17 provision of any other law (whether enacted before or after the 18 commencement of this section), except to the extent that the 19 secrecy provision expressly excludes the operation of this section. 20 (2) For the purposes of subsection (1), secrecy provision means a 21 provision that prohibits the communication or divulging of 22 information. 23 58 Payment for expenses incurred in attending an examination 24 (1) Subject to subsection (2), a person who attends an examination as 25 required by an examination notice is entitled to be paid fees and 26 allowances, fixed by or calculated in accordance with the 27 regulations, for reasonable expenses (including legal expenses) 28 incurred by the person in attending the examination. 29 (2) The person is not entitled to be paid for expenses under this section 30 unless the person: 38 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 (a) applies, in writing, to the Director for payment of the 2 expenses within 3 months after the examination is completed; 3 and 4 (b) provides to the Director sufficient evidence to establish that 5 the person incurred the expenses. 6 (3) An application under paragraph (2)(a) must: 7 (a) if a form is prescribed by the regulations--be in that form; 8 and 9 (b) include any information prescribed by the regulations. 10 69 Division 2 of Part 2 of Chapter 7 11 Repeal the Division, substitute: 12 Part 2--Fair Work Building Industry Inspectors 13 Division 1--Appointment 14 59 Appointment 15 (1) The Director may, in writing, appoint as a Fair Work Building 16 Industry Inspector: 17 (a) a person who has been appointed, or who is employed, by the 18 Commonwealth; or 19 (b) a person who has been appointed, or who is employed, by a 20 State or Territory, or who holds an office or appointment 21 under a law of a State or Territory. 22 (2) The Director may appoint a person as an inspector only if the 23 Director is satisfied that the person is of good character. 24 (3) An inspector is appointed for the period specified in the instrument 25 of appointment. The period must not exceed 4 years. 26 Note: An inspector is eligible for reappointment (see subsection 33(4A) of 27 the Acts Interpretation Act 1901). 28 59A Director is an inspector 29 The Director is an inspector by force of this section. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 39 [Page Break] 1 59B Identity cards 2 (1) The Director must issue an identity card to an inspector appointed 3 under section 59. 4 (2) The Minister must issue an identity card to the Director. 5 Form of identity card 6 (3) The identity card must: 7 (a) be in the form approved by the Director; and 8 (b) contain a recent photograph of the inspector. 9 Inspector must carry card 10 (4) An inspector must carry the identity card at all times when 11 performing functions or exercising powers as an inspector. 12 Offence 13 (5) A person commits an offence if: 14 (a) the person ceases to be an inspector; and 15 (b) the person does not, within 14 days of so ceasing, return the 16 person's identity card to the Director or the Minister (as the 17 case may be). 18 Penalty: 1 penalty unit. 19 (6) Subsection (5) is an offence of strict liability. 20 Note: For strict liability, see section 6.1 of the Criminal Code. 21 Defence--card lost or destroyed 22 (7) Subsection (5) does not apply if the identity card was lost or 23 destroyed. 24 Note: A defendant bears an evidential burden in relation to the matter in this 25 subsection (see subsection 13.3(3) of the Criminal Code). 40 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Division 2--Powers 2 59C Inspectors' powe rs under Fair Work and other Acts 3 (1) An inspector has the same functions and powers as a Fair Work 4 Inspector. 5 (2) However, the functions and powers of an inspector: 6 (a) may be performed or exercised only in relation to a building 7 matter; and 8 (b) are subject to such conditions and restrictions as are specified 9 in his or her instrument of appointment. 10 (3) A matter is a building matter if it relates to a building industry 11 participant. 12 (4) For the purposes of the performance of the functions and the 13 exercise of the powers of an inspector in relation to a building 14 matter: 15 (a) a reference in an Act to a Fair Work Inspector has effect as if 16 it were a reference to an inspector; and 17 (b) a reference in an Act to the Fair Work Ombudsman has effect 18 as if it were a reference to the Director. 19 (5) To avoid doubt, this section does not provide for the Fair Work 20 Ombudsman to give directions to an inspector under section 704 or 21 705 of the FW Act. 22 59D Director's powe rs under Fair Work Act 23 (1) The Director has the same functions and powers, in relation to a 24 building matter, that the Fair Work Ombudsman has under 25 section 715 of the FW Act. 26 Note: Section 715 of the FW Act provides for the Fair Work Ombudsman to 27 accept written undertakings in relation to contraventions of that Act. 28 (2) The functions and powers conferred under subsection (1) are in 29 addition to the functions and powers the Director has because of 30 the operation of subsection 59C(4). 31 59E Inspectors' powe r to monitor compliance with Building Code 32 (1) Inspectors are also to monitor compliance with the Building Code. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 41 [Page Break] 1 (2) For this purpose, an inspector has the functions and powers under 2 Subdivision D of Division 3 of Part 5-2 of the FW Act that he or 3 she would have if the Building Code were a fair work instrument. 4 59F General directions by the Director 5 (1) The Director may, by legislative instrument, give a direction to 6 inspectors relating to the performance of their functions or the 7 exercise of their powers as inspectors. 8 (2) The direction must be of a general nature only, and cannot relate to 9 a particular case. 10 (3) An inspector must comply with the direction. 11 59G Particular directions by the Director 12 (1) The Director may give a direction to an inspector relating to the 13 performance of the inspector's functions or the exercise of the 14 inspector's powers as an inspector. 15 (2) The inspector must comply with the direction. 16 (3) If a direction is in writing, the direction is not a legislative 17 instrument. 18 70 Division 3 of Part 2 of Chapter 7 (heading) 19 Repeal the heading, substitute: 20 Part 3--Federal Safety Officers 21 Division 1--Appointment 22 71 Before section 62 23 Insert: 24 Division 2--Powers 25 72 Subsection 62(14) 26 Repeal the subsection. 42 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 73 Subsection 63(14) 2 Repeal the subsection. 3 74 Section 64 4 Repeal the section, substitute: 5 64 Disclosure of information by the Director 6 Information to which this section applies 7 (1) This section applies to information (other than protected 8 information within the meaning of section 65) that is: 9 (a) information acquired by the Director in the course of 10 performing functions, or exercising powers, as the Director; 11 or 12 (b) information acquired by an inspector in the course of 13 performing functions, or exercising powers, as an inspector; 14 or 15 (c) information acquired by a member of staff referred to in 16 subsection 26K(1) in the course of performing functions, or 17 exercising powers, as a member of staff; or 18 (d) information acquired by a person in the course of assisting 19 the Director under section 26L, or in the course of 20 performing functions, or exercising powers, as a consultant 21 under section 26M; or 22 (e) information acquired by a person in the course of assisting an 23 inspector in performing functions, or exercising powers, as 24 an inspector. 25 Disclosure that is necessary or appropriate, or likely to assist 26 administration or enforcement 27 (2) The Director may disclose, or authorise the disclosure of, the 28 information if the Director reasonably believes: 29 (a) that it is necessary or appropriate to do so for the purposes of 30 the performance of the Director's functions or the exercise of 31 the Director's powers; or 32 (b) that the disclosure is likely to assist in the administration or 33 enforcement of a law of the Commonwealth, a State or a 34 Territory. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 43 [Page Break] 1 Disclosure to the Minister 2 (3) The Director may disclose, or authorise the disclosure of, the 3 information to the Minister if the Director reasonably believes that 4 the disclosure is likely to assist the Minister to consider a 5 complaint or issue in relation to a matter arising under this Act, the 6 FW Act or the Fair Work (Transitional Provisions and 7 Consequential Amendments) Act 2009. 8 Disclosure to the Department 9 (4) The Director may disclose, or authorise the disclosure of, the 10 information to: 11 (a) the Secretary of the Department; or 12 (b) an SES employee, or an APS employee, in the Department; 13 for the purpose of briefing, or considering briefing, the Minister if 14 the Director reasonably believes the disclosure is likely to assist the 15 Minister to consider a complaint or issue in relation to a matter 16 arising under this Act, the FW Act or the Fair Work (Transitional 17 Provisions and Consequential Amendments) Act 2009. 18 Disclosure to the Fair Work Building Industry Inspectorate 19 Advisory Board 20 (5) The Director may disclose, or authorise the disclosure of, the 21 information to the Advisory Board if the Director reasonably 22 believes that the disclosure is likely to assist the Advisory Board in 23 performing its role. 24 Interaction with section 66 25 (6) Subsections (2) to (4) have effect subject to section 66. 26 64A Disclosure of information by the Federal Safety Commissioner 27 Information to which this section applies 28 (1) This section applies to information that is: 29 (a) information acquired by the Federal Safety Commissioner in 30 the course of performing functions, or exercising powers, as 31 the Federal Safety Commissioner; or 44 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 (b) information acquired by a Federal Safety Officer in the 2 course of performing functions, or exercising powers, as a 3 Federal Safety Officer; or 4 (c) information acquired by an APS employee assisting the 5 Federal Safety Commissioner; or 6 (d) information acquired by a person in the course of performing 7 functions, or exercising powers, as a consultant under 8 section 34. 9 Disclosure that is necessary or appropriate, or likely to assist 10 administration or enforcement 11 (2) The Federal Safety Commissioner may disclose, or authorise the 12 disclosure of, the information if the Federal Safety Commissioner 13 reasonably believes: 14 (a) that it is necessary or appropriate to do so for the purposes of 15 the performance of the Federal Safety Commissioner's 16 functions or the exercise of the Federal Safety 17 Commissioner's powers; or 18 (b) that the disclosure is likely to assist in the administration or 19 enforcement of a law of the Commonwealth, a State or a 20 Territory. 21 Disclosure to the Minister 22 (3) The Federal Safety Commissioner may disclose, or authorise the 23 disclosure of, the information to the Minister if the Federal Safety 24 Commissioner reasonably believes that the disclosure is likely to 25 assist the Minister to consider a complaint or issue in relation to a 26 matter arising under this Act. 27 Disclosure to the Department 28 (4) The Federal Safety Commissioner may disclose, or authorise the 29 disclosure of, the information to: 30 (a) the Secretary of the Department; or 31 (b) an SES employee, or an APS employee, in the Department; 32 for the purpose of briefing, or considering briefing, the Minister if 33 the Federal Safety Commissioner reasonably believes the 34 disclosure is likely to assist the Minister to consider a complaint or 35 issue in relation to a matter arising under this Act. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 45 [Page Break] 1 75 Paragraph 65(3)(a) 2 Omit "this Act", substitute "the performance of the Director's functions 3 or the exercise of the Director's powers". 4 Note: The heading to section 65 is altered by adding at the end "obtained under an 5 examination notice". 6 76 Paragraph 65(4)(a) 7 Omit "this Act", substitute "the performance of the Director's functions 8 or the exercise of the Director's powers". 9 77 Paragraph 65(5)(aa) 10 Omit "ABC". 11 Note: The heading to subsection 65(5) is altered by omitting "ABC". 12 78 Subsection 65(8) (definition of designated ABC official) 13 Repeal the definition. 14 79 Subsection 65(8) (definition of designated official) 15 Repeal the definition, substitute: 16 designated official means any of the following: 17 (a) the Director; 18 (b) an inspector; 19 (c) a member of staff referred to in subsection 26K(1); 20 (d) a person assisting the Director under section 26L; 21 (e) a person engaged as a consultant under section 26M; 22 (f) the General Manager of FWA; 23 (g) a presidential member or a Registrar of the Administrative 24 Appeals Tribunal, or an officer or member of staff referred to 25 in section 24N of the Administrative Appeals Tribunal Act 26 1975; 27 (h) the Commonwealth Ombudsman, a Deputy Commonwealth 28 Ombudsman or a member of the staff referred to in 29 subsection 31(1) of the Ombudsman Act 1976; 30 (i) a person acting under a delegation under this Act from a 31 person referred to in any of the preceding paragraphs. 32 80 Subsection 65(8) (paragraph (b) of the definition of official 33 employment) 46 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 Omit "ABC Inspector or Federal Safety Officer", substitute "inspector". 2 81 Subsection 65(8) (paragraph (a) of the definition of 3 protected information) 4 Repeal the paragraph, substitute: 5 (a) was disclosed or obtained under an examination notice or at 6 an examination; and 7 82 Section 67 8 Repeal the section. 9 83 Section 68 10 Repeal the section, substitute: 11 68 Delegation by Minister 12 (1) The Minister may, in writing, delegate all or any of the Minister's 13 functions or powers under Chapter 3 to: 14 (a) the Director; or 15 (b) the Federal Safety Commissioner. 16 (2) In performing functions or exercising powers delegated under 17 subsection (1), the Director and the Federal Safety Commissioner 18 must comply with any directions of the Minister. 19 Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901. 20 84 Sections 69 and 70 21 Repeal the sections. 22 85 Section 71 23 Omit "ABC Commissioner" (wherever occurring), substitute 24 "Director". 25 Note: The heading to section 71 is altered by omitting "ABC Commissioner intervention" 26 and substituting "Director may intervene". 27 86 Section 72 28 Omit "ABC Commissioner", substitute "Director". 29 Note: The heading to section 72 is altered by omitting "ABC Commissioner" and substituting 30 "Director". Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 47 [Page Break] 1 87 Sections 73 and 73A 2 Repeal the sections. 3 88 Section 74 4 Omit "ABC Commissioner", substitute "Director". 5 Note: The heading to section 74 is altered by omitting "ABC Commissioner" and substituting 6 "Director". 7 89 Section 75 8 Repeal the section, substitute: 9 75 Juris diction of the Fede ral Court 10 Jurisdiction is conferred on the Federal Court in relation to any 11 matter arising under this Act. 12 90 Paragraph 75A(1)(a) 13 Repeal the paragraph. 14 91 Section 75B 15 Repeal the section. 16 92 Section 76 17 Repeal the section, substitute: 18 76 Court not to re quire undertaking as to damages 19 If the Director or an inspector is an applicant in court proceedings 20 under the FW Act or the Fair Work (Transitional Provisions and 21 Consequential Amendments) Act 2009, the court cannot require the 22 Director, the inspector or another person, as a condition of granting 23 an interim injunction, to give undertakings as to damages. 24 93 Subsection 77(2) (paragraphs (a) to (e) of the definition of 25 protected person) 26 Repeal the paragraphs, substitute: 27 (a) the Director; 28 (b) an inspector; 29 (c) a member of staff referred to in subsection 26K(1); 48 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 (d) a person assisting the Director under section 26L; 2 (e) a person engaged as a consultant under section 26M; 3 Note: The heading to section 77 is altered by omitting "ABC Commissioner" and substituting 4 "Director". 5 94 Subsection 77(2) (paragraph (k) of the definition of 6 protected person) 7 Repeal the paragraph, substitute: 8 (k) the Independent Assessor; 9 (l) a presidential member or a Registrar of the Administrative 10 Appeals Tribunal, or an officer or member of staff referred to 11 in section 24N of the Administrative Appeals Tribunal Act 12 1975; 13 (m) the Commonwealth Ombudsman, a Deputy Commonwealth 14 Ombudsman or a member of the staff referred to in 15 subsection 31(1) of the Ombudsman Act 1976; 16 (n) a person acting under a delegation under this Act from a 17 person referred to in any of the preceding paragraphs. 18 95 Paragraphs 78(2)(a), (d) and (e) 19 Repeal the paragraphs. 20 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 49 [Page Break] 1 Schedule 2--Transitional and consequential 2 provisions 3 4 1 Regulations may deal with transitional etc. matters 5 (1) The Governor-General may make regulations dealing with matters of a 6 transitional, saving or application nature relating to amendments made 7 by this Act. 8 (2) In this item: 9 amendments made by this Act includes amendments made by 10 regulations under item 2 of this Schedule. 11 2 Regulations may make consequential amendments of Acts 12 (1) The Governor-General may make regulations amending Acts being 13 amendments that are consequential on, or that otherwise relate to, the 14 amendments made by this Act. 15 (2) For the purposes of the Amendments Incorporation Act 1905, 16 amendments made by regulations for the purposes of this item are to be 17 treated as if they had been made by an Act. 18 Note: This subitem ensures that the amendments can be incorporated into a reprint of the Act. 19 3 Regulations may take effect from date before registration 20 (1) Despite subsection 12(2) of the Legislative Instruments Act 2003 and 21 subject to subitem (2), regulations made under item 1 or 2 of this 22 Schedule may be expressed to take effect from a date before the 23 regulations are registered under that Act. 24 (2) If: 25 (a) regulations made under item 1 or 2 of this Schedule are 26 expressed to take effect from a date (the registration date) 27 before the regulations are registered under the Legislative 28 Instruments Act 2003; and 29 (b) a person engaged in conduct before the registration date; and 30 (c) but for the retrospective effect of the regulations, the conduct 31 would not have contravened a provision of an Act; 50 Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 [Page Break] 1 then a court must not convict the person of an offence, or order the 2 person to pay a pecuniary penalty, in relation to the conduct on the 3 grounds that it contravened a provision of that Act. Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 No. , 2009 51