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This is a Bill, not an Act. For current law, see the Acts databases.
BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT AMENDMENT (TRANSITION TO FAIR WORK) BILL 2011
2010-2011
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 2011
No. , 2011
(Tertiary Education, Skills, Jobs and Workplace Relations)
A Bill for an Act to amend the Building and
Construction Industry Improvement Act 2005, and
for related purposes
i Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill
2011 No. , 2011
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments
3
Building and Construction Industry Improvement Act 2005
3
Schedule 2--Transitional and consequential provisions
51
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 1
A Bill for an Act to amend the Building and
1
Construction Industry Improvement Act 2005, and
2
for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Building and Construction Industry
6
Improvement Amendment (Transition to Fair Work) Act 2011.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Schedule 2
The day this Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 3
Schedule 1--Amendments
1
2
Building and Construction Industry Improvement Act 2005
3
1 Section 1
4
Omit "Building and Construction Industry Improvement Act 2005",
5
substitute "Fair Work (Building Industry) Act 2011".
6
Note:
This item amends the short title of the Act. If another amendment of the Act is
7
described by reference to the Act's previous short title, that other amendment has effect
8
after the commencement of this item as an amendment of the Act under its amended
9
short title (see section 10 of the Acts Interpretation Act 1901).
10
2 Section 3
11
Repeal the section, substitute:
12
3 Object of this Act
13
The object of this Act is to provide a balanced framework for
14
cooperative, productive and harmonious workplace relations in the
15
building industry by:
16
(a) ensuring compliance with workplace relations laws by all
17
building industry participants; and
18
(b) providing information, advice and assistance to all building
19
industry participants about their rights and obligations; and
20
(c) providing an effective means of enforcing those rights and
21
obligations; and
22
(d) providing appropriate safeguards on the use of enforcement
23
and investigative powers; and
24
(e) improving the level of occupational health and safety in the
25
building industry.
26
3 Subsection 4(1)
27
Insert:
28
AAT presidential member means a person who is a presidential
29
member of the Administrative Appeals Tribunal under the
30
Administrative Appeals Tribunal Act 1975.
31
4 Subsection 4(1) (definition of ABC Commissioner)
32
Schedule 1 Amendments
4 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
Repeal the definition.
1
5 Subsection 4(1) (definition of ABC Inspector)
2
Repeal the definition.
3
6 Subsection 4(1)
4
Insert:
5
Advisory Board means the Fair Work Building Industry
6
Inspectorate Advisory Board referred to in section 23.
7
7 Subsection 4(1) (definition of AIRC)
8
Repeal the definition.
9
8 Subsection 4(1) (definition of bargaining representative)
10
Repeal the definition.
11
9 Subsection 4(1) (definition of building enterprise
12
agreement)
13
Repeal the definition.
14
10 Subsection 4(1)
15
Insert:
16
building matter has the meaning given by subsection 59C(3).
17
11 Subsection 4(1) (definition of civil penalty provision)
18
Repeal the definition.
19
12 Subsection 4(1) (definition of collective agreement)
20
Repeal the definition.
21
13 Subsection 4(1) (definition of Commissioner)
22
Repeal the definition.
23
14 Subsection 4(1) (definition of Commonwealth authority)
24
Repeal the definition.
25
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 5
15 Subsection 4(1) (paragraph (d) of the definition of
1
Commonwealth industrial instrument)
2
Omit "AIRC", substitute "Australian Industrial Relations Commission".
3
16 Subsection 4(1)
4
Insert:
5
Commonwealth Ombudsman means the person for the time being
6
holding office as Ombudsman under the Ombudsman Act 1976.
7
17 Subsection 4(1) (definition of Deputy ABC Commissioner)
8
Repeal the definition.
9
18 Subsection 4(1) (paragraph (a) of the definition of
10
designated building law)
11
Omit "this Act,".
12
19 Subsection 4(1)
13
Insert:
14
Director means the Director of the Fair Work Building Industry
15
Inspectorate referred to in section 9.
16
20 Subsection 4(1) (definition of eligible condition)
17
Repeal the definition.
18
21 Subsection 4(1) (definition of employee organisation)
19
Repeal the definition.
20
22 Subsection 4(1) (definition of enterprise agreement)
21
Repeal the definition.
22
23 Subsection 4(1)
23
Insert:
24
examination has the meaning given by subsection 51(1).
25
24 Subsection 4(1)
26
Insert:
27
Schedule 1 Amendments
6 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
examination notice means an examination notice issued under
1
Division 3 of Part 1 of Chapter 7.
2
25 Subsection 4(1)
3
Insert:
4
Fair Work Building Industry Inspector means:
5
(a) the Director; or
6
(b) a person appointed as a Fair Work Building Industry
7
Inspector under section 59.
8
26 Subsection 4(1)
9
Insert:
10
Fair Work Inspector has the same meaning as in the FW Act.
11
27 Subsection 4(1)
12
Insert:
13
Fair Work Ombudsman has the same meaning as in the FW Act.
14
28 Subsection 4(1) (definition of full-time Commissioner)
15
Repeal the definition.
16
29 Subsection 4(1) (definition of Grade A civil penalty
17
provision)
18
Repeal the definition.
19
30 Subsection 4(1) (definition of Grade B civil penalty
20
provision)
21
Repeal the definition.
22
31 Subsection 4(1)
23
Insert:
24
Independent Assessor means the Independent Assessor--Special
25
Building Industry Powers referred to in section 36B.
26
32 Subsection 4(1) (definition of industrial body)
27
Repeal the definition.
28
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 7
33 Subsection 4(1) (definition of industrial instrument)
1
Repeal the definition.
2
34 Subsection 4(1) (definition of industrial law)
3
Repeal the definition.
4
35 Subsection 4(1)
5
Insert:
6
inspector means a Fair Work Building Industry Inspector.
7
36 Subsection 4(1)
8
Insert:
9
investigation means an investigation to which Part 1 of Chapter 7
10
applies.
11
37 Subsection 4(1)
12
Insert:
13
lawyer means a person who is admitted to the legal profession by a
14
Supreme Court of a State or Territory.
15
38 Subsection 4(1)
16
Insert:
17
nominated AAT presidential member means an AAT presidential
18
member in respect of whom a nomination is in force under
19
section 44 to issue examination notices under Division 3 of Part 1
20
of Chapter 7.
21
39 Subsection 4(1)
22
Insert:
23
Office means the Office of the Fair Work Building Industry
24
Inspectorate referred to in section 26J.
25
40 Subsection 4(1) (definition of part-time Commissioner)
26
Repeal the definition.
27
41 Subsection 4(1) (definition of penalty unit)
28
Schedule 1 Amendments
8 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
Repeal the definition.
1
42 Subsection 4(1) (definition of protected industrial action)
2
Repeal the definition.
3
43 Subsection 4(1)
4
Insert:
5
safety net contractual entitlement has the same meaning as in the
6
FW Act.
7
44 Subsection 4(1)
8
Insert:
9
this Act includes the regulations.
10
45 Subsection 4(1) (definition of transitional award)
11
Omit "meaning given by the Workplace Relations Act", substitute
12
"same meaning as in the Fair Work (Transitional Provisions and
13
Consequential Amendments) Act 2009".
14
46 Subsection 4(1) (definition of unlawful industrial action)
15
Repeal the definition.
16
47 Subsection 4(1) (definition of Workplace Relations Act)
17
Repeal the definition.
18
48 Subparagraph 5(1)(d)(iv)
19
Repeal the subparagraph, substitute:
20
(iv) the on-site prefabrication of made-to-order components
21
to form part of any building, structure or works;
22
49 Chapter 2
23
Repeal the Chapter, substitute:
24
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 9
Chapter 2--Fair Work Building Industry
1
Inspectorate
2
Part 1--Director
3
4
9 Establishment
5
There is to be a Director of the Fair Work Building Industry
6
Inspectorate.
7
10 Functions
8
The Director has the following functions:
9
(a)
to
promote:
10
(i) harmonious, productive and cooperative workplace
11
relations in the building industry; and
12
(ii) compliance with designated building laws and the
13
Building Code by building industry participants;
14
including by providing education, assistance and advice to
15
building industry participants;
16
(b) to monitor compliance with designated building laws and the
17
Building Code by building industry participants;
18
(c) to inquire into, and investigate, any act or practice by a
19
building industry participant that may be contrary to a
20
designated building law, a safety net contractual entitlement
21
or the Building Code;
22
(d) to commence proceedings in a court, or to make applications
23
to FWA, to enforce designated building laws and safety net
24
contractual entitlements as they relate to building industry
25
participants;
26
(e) to refer matters to relevant authorities;
27
(f) to represent building industry participants who are, or may
28
become, a party to proceedings in a court, or a party to a
29
matter before FWA, under a designated building law, if the
30
Director considers that representing the building industry
31
participants will promote compliance with designated
32
building laws;
33
Schedule 1 Amendments
10 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
(g) to disseminate information about designated building laws
1
and the Building Code, and about other matters affecting
2
building industry participants, including disseminating
3
information by facilitating ongoing discussions with building
4
industry participants;
5
(h) to make submissions and provide information to the
6
Independent Assessor in accordance with this Act;
7
(i) any other functions conferred on the Director by any Act.
8
Note:
The Director also has the functions of an inspector (see section 59A).
9
11 Minister's directions
10
(1) The Minister may, by legislative instrument, give directions to the
11
Director about:
12
(a) the policies, programs and priorities of the Director; and
13
(b) the manner in which the Director is to perform the functions
14
or exercise the powers of the Director.
15
(2) The Minister must not give a direction under subsection (1) about a
16
particular case.
17
(3) The Director must comply with a direction under subsection (1).
18
(4) Despite anything in section 44 of the Legislative Instruments Act
19
2003, section 42 of that Act applies to a direction under
20
subsection (1) of this section.
21
12 Minister may require reports
22
(1) The Minister may, in writing, direct the Director to give the
23
Minister specified reports relating to the Director's functions and
24
powers.
25
Note:
See also section 66, which restricts the disclosure of personal
26
information in a report.
27
(2) The Director must comply with the direction.
28
(3) A direction under subsection (1) is not a legislative instrument.
29
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 11
13 Delegation by the Director
1
General power to delegate
2
(1) Subject to subsections (2) and (3), the Director may, in writing,
3
delegate all or any of the Director's functions or powers under any
4
Act to:
5
(a) a member of staff referred to in subsection 26K(1); or
6
(b)
an
inspector.
7
Functions and powers that must not be delegated
8
(2) The Director must not delegate his or her functions or powers:
9
(a) as an inspector; or
10
(b) under section 45 (which deals with applying for an
11
examination notice); or
12
(c) under subsection 50(3) or (4) (which deal with varying the
13
time for compliance with an examination notice).
14
Functions and powers that may only be delegated to SES
15
employees
16
(3) The Director must not delegate his or her functions or powers
17
under the following provisions to anyone other than a member of
18
staff referred to in subsection 26K(1) who is an SES employee:
19
(a) subsection 51(2) (which deals with conducting an
20
examination);
21
(b) subsection 51(4) (which deals with administering an oath or
22
affirmation at an examination).
23
Delegate subject to direction
24
(4) In performing functions or exercising powers under a delegation,
25
the delegate must comply with any directions of the Director.
26
Details of delegation must be published
27
(5) As soon as practicable after delegating any function or power
28
under this section, the Director must publish details of the
29
delegation.
30
Note:
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
31
Schedule 1 Amendments
12 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
14 Annual report
1
(1) The Director must, as soon as practicable after the end of each
2
financial year, prepare and give to the Minister, for presentation to
3
the Parliament, a report on the performance of the Director's
4
functions and the exercise of the Director's powers during that
5
year.
6
Note 1:
See also section 34C of the Acts Interpretation Act 1901, which
7
contains extra rules about annual reports.
8
Note 2:
See also section 66 of this Act, which restricts the disclosure of
9
personal information in a report.
10
(2) The report must include:
11
(a) details of directions given by the Minister during the
12
financial year under section 11 or 12; and
13
(b) details of delegations by the Director under section 13 during
14
the financial year; and
15
(c) details of recommendations made to the Director by the
16
Advisory Board during the financial year.
17
15 Appointment
18
(1) The Director is to be appointed by the Minister by written
19
instrument.
20
(2) The appointment is to be on a full-time basis.
21
(3) The Minister must not appoint a person as the Director unless the
22
Minister is satisfied that the person:
23
(a) has suitable qualifications or experience; and
24
(b) is of good character.
25
(4) The Director holds office for the period specified in the instrument
26
of appointment. The period must not exceed 5 years.
27
(5) The Director holds office on the terms and conditions (if any) in
28
relation to matters not covered by this Act that are determined by
29
the Minister.
30
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 13
16 Acting appointments
1
The Minister may, by written instrument, appoint a person to act as
2
the Director:
3
(a) during a vacancy in the office of Director (whether or not an
4
appointment has previously been made to the office); or
5
(b) during any period, or during all periods, when the Director:
6
(i) is absent from duty or from Australia; or
7
(ii) is, for any reason, unable to perform the duties of the
8
office.
9
Note:
For rules that apply to acting appointments, see section 33A of the
10
Acts Interpretation Act 1901.
11
17 Remuneration
12
(1) The Director is to be paid the remuneration that is determined by
13
the Remuneration Tribunal. If no determination of that
14
remuneration by the Tribunal is in operation, the Director is to be
15
paid the remuneration that is prescribed by the regulations.
16
(2) The Director is to be paid the allowances that are prescribed by the
17
regulations.
18
(3) This section has effect subject to the Remuneration Tribunal Act
19
1973.
20
18 Leave of absence
21
(1) The Director has the recreation leave entitlements that are
22
determined by the Remuneration Tribunal.
23
(2) The Minister may grant the Director leave of absence, other than
24
recreation leave, on the terms and conditions as to remuneration or
25
otherwise that the Minister determines.
26
19 Engaging in other paid employment
27
The Director must not engage in paid employment outside the
28
duties of his or her office without the Minister's approval.
29
Schedule 1 Amendments
14 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
20 Disclosure of interests
1
The Director must give written notice to the Minister of all
2
material personal interests that the Director has or acquires and that
3
conflict or could conflict with the proper performance of the
4
Director's functions.
5
21 Resignation
6
(1) The Director may resign his or her appointment by giving the
7
Minister a written resignation.
8
(2) The resignation takes effect on the day it is received by the
9
Minister or, if a later day is specified in the resignation, on that
10
later day.
11
22 Termination
12
(1) The Minister may terminate the appointment of the Director for
13
misbehaviour or physical or mental incapacity.
14
(2) The Minister must terminate the appointment of the Director if:
15
(a)
the
Director:
16
(i) becomes bankrupt; or
17
(ii) applies to take the benefit of any law for the relief of
18
bankrupt or insolvent debtors; or
19
(iii) compounds with his or her creditors; or
20
(iv) makes an assignment of his or her remuneration for the
21
benefit of his or her creditors; or
22
(b) the Director is absent, except on leave of absence, for 14
23
consecutive days or for 28 days in any 12 months; or
24
(c) the Director engages, except with the Minister's approval, in
25
paid employment outside the duties of his or her office (see
26
section 19); or
27
(d) the Director fails, without reasonable excuse, to comply with
28
section 20.
29
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 15
Part 2--Fair Work Building Industry Inspectorate
1
Advisory Board
2
3
23 Establishment
4
The Fair Work Building Industry Inspectorate Advisory Board is
5
established by this section.
6
24 Role
7
The Advisory Board is to make recommendations to the Director
8
about:
9
(a) policies to guide the performance of the Director's functions
10
and the exercise of the Director's powers; and
11
(b) the priorities of, and the programs to be implemented by, the
12
Director; and
13
(c) any matter that the Minister requests the Advisory Board to
14
consider.
15
25 Membership
16
The Advisory Board consists of the following members:
17
(a)
the
Director;
18
(b) the Fair Work Ombudsman;
19
(c) one member who has experience or background in employee
20
representation in the building industry;
21
(d) one member who has experience or background in employer
22
representation in the building industry;
23
(e) no more than 3 other members.
24
26 Appointment of members
25
(1) A member of the Advisory Board (other than the Director or the
26
Fair Work Ombudsman) is to be appointed by the Minister by
27
written instrument.
28
Note:
A member of the Advisory Board is eligible for reappointment (see
29
section 33AA of the Acts Interpretation Act 1901).
30
Schedule 1 Amendments
16 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
(2) The Minister must not appoint a person as a member unless the
1
Minister is satisfied that the person has knowledge of, or
2
experience in, one or more of the following fields:
3
(a)
workplace
relations;
4
(b)
law;
5
(c) business, industry or commerce.
6
(3) A member appointed by the Minister holds office on a part-time
7
basis.
8
(4) A member appointed by the Minister holds office for the period
9
specified in the instrument of appointment. The period must not
10
exceed 3 years.
11
26A Chair
12
(1) The Minister must appoint a member (other than the Director or
13
the Fair Work Ombudsman) to be the Chair of the Advisory Board.
14
(2) The Minister may, by written instrument, appoint a member (other
15
than the Director or the Fair Work Ombudsman) to act as the
16
Chair:
17
(a) during a vacancy in the office of Chair (whether or not an
18
appointment has previously been made to the office); or
19
(b) during any period, or during all periods, when the Chair:
20
(i) is absent from duty or from Australia; or
21
(ii) is, for any reason, unable to perform the duties of the
22
office.
23
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
24
26B Remuneration of members
25
(1) A member appointed by the Minister is to be paid the remuneration
26
that is determined by the Remuneration Tribunal. If no
27
determination of that remuneration by the Tribunal is in operation,
28
the member is to be paid the remuneration that is prescribed by the
29
regulations.
30
(2) A member appointed by the Minister is to be paid the allowances
31
that are prescribed by the regulations.
32
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 17
(3) This section has effect subject to the Remuneration Tribunal Act
1
1973.
2
26C Leave of members
3
(1) The Minister may grant the Chair leave of absence on the terms
4
and conditions that the Minister determines.
5
(2) The Chair may grant leave of absence to any other member on the
6
terms and conditions that the Chair determines.
7
(3) The Chair must notify the Minister if the Chair grants to a member
8
leave of absence for a period that exceeds 6 months.
9
26D Resignation of members
10
(1) A member appointed by the Minister may resign his or her
11
appointment by giving the Minister a written resignation.
12
(2) The resignation takes effect on the day it is received by the
13
Minister or, if a later day is specified in the resignation, on that
14
later day.
15
26E Termination of appointment
16
(1) The Minister may terminate the appointment of a member (other
17
than the Director or the Fair Work Ombudsman) for misbehaviour
18
or physical or mental incapacity.
19
(2) The Minister must terminate the appointment of a member (other
20
than the Director or the Fair Work Ombudsman) if:
21
(a)
the
member:
22
(i) becomes bankrupt; or
23
(ii) applies to take the benefit of any law for the relief of
24
bankrupt or insolvent debtors; or
25
(iii) compounds with his or her creditors; or
26
(iv) makes an assignment of his or her remuneration for the
27
benefit of his or her creditors; or
28
(b) the member is absent, except on leave of absence, from 3
29
consecutive meetings of the Advisory Board.
30
Schedule 1 Amendments
18 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
26F Other terms and conditions
1
A member (other than the Director or the Fair Work Ombudsman)
2
holds office on the terms and conditions (if any) in relation to
3
matters not covered by this Act that are determined by the
4
Minister.
5
26G Meetings
6
(1) The Chair must convene:
7
(a) such meetings of the Advisory Board as are, in his or her
8
opinion, necessary for the performance of its role; and
9
(b) at least 2 meetings of the Advisory Board in each financial
10
year; and
11
(c) such meetings of the Advisory Board as are requested by the
12
Director.
13
(2) The quorum for a meeting is the Chair, the Director and the Fair
14
Work Ombudsman.
15
(3) A question arising at a meeting of the Advisory Board is to be
16
decided by a majority of the votes of the members present and
17
voting.
18
(4) The Chair must preside at all meetings.
19
(5) At a meeting, the Chair has a deliberative vote and, in the event of
20
an equality of votes, has a casting vote.
21
26H Decisions without meetings
22
(1) The Advisory Board is taken to have made a decision at a meeting
23
if:
24
(a) without meeting, a majority of the members indicate
25
agreement with the decision; and
26
(b) that agreement is indicated in accordance with the method
27
determined by the Advisory Board under subsection (2); and
28
(c) all the members were informed of the proposed decision, or
29
reasonable efforts were made to inform all the members of
30
the proposed decision.
31
(2) Subsection (1) applies only if the Advisory Board:
32
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 19
(a) has determined that it may make decisions of that kind
1
without meeting; and
2
(b) has determined the method by which members are to indicate
3
agreement with proposed decisions.
4
(3) The Advisory Board must keep a record of decisions made in
5
accordance with this section.
6
Part 3--Office of the Fair Work Building Industry
7
Inspectorate
8
9
26J Office of the Fair Work Building Industry Inspectorate
10
The Office of the Fair Work Building Industry Inspectorate is
11
established by this section.
12
26K Staff
13
(1) The staff of the Office are to be persons engaged under the Public
14
Service Act 1999.
15
(2) For the purposes of the Public Service Act 1999:
16
(a) the Director and the staff of the Office together constitute a
17
Statutory Agency; and
18
(b) the Director is the Head of that Statutory Agency.
19
26L Persons assisting the Director
20
The Director may also be assisted:
21
(a) by employees of Agencies (within the meaning of the Public
22
Service Act 1999); or
23
(b) by officers and employees of a State or Territory; or
24
(c) by officers and employees of authorities of the
25
Commonwealth, a State or a Territory;
26
whose services are made available to the Director in connection
27
with the performance of any of his or her functions.
28
Note:
For example, State or Territory employees could be made available to
29
assist the Director in providing education in a particular region.
30
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20 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
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26M Consultants
1
The Director may, on behalf of the Commonwealth, engage
2
persons having suitable qualifications and experience as
3
consultants to the Director. The terms and conditions of the
4
engagement of a person are such as are determined by the Director
5
in writing.
6
Note:
See also section 71 of the Public Service Act 1999, which makes
7
provision for State employees to perform services in an Agency (as
8
defined in that Act).
9
50 Section 28
10
Repeal the section.
11
51 Chapters 5 and 6
12
Repeal the Chapters.
13
52 Part 1 of Chapter 7
14
Repeal the Part, substitute:
15
Part 1--Powers to obtain information etc.
16
Division 1--Preliminary
17
36 Definitions
18
Building project
19
(1) For the purposes of this Part, a building project is a project that
20
consists of, or includes, building work.
21
Interested person
22
(2) For the purposes of this Part, each of the following is an interested
23
person in relation to a building project:
24
(a)
the
Minister;
25
(b) a person prescribed by the regulations for the purposes of this
26
paragraph.
27
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No. , 2011 21
36A Application of this Part
1
General
2
(1) This Part applies to an investigation by the Director into a
3
suspected contravention, by a building industry participant, of a
4
designated building law or a safety net contractual entitlement.
5
Limitation on Director's powers
6
(2) However, the Director may exercise powers under this Part in
7
relation to a suspected contravention by a building industry
8
participant of a safety net contractual entitlement only if the
9
Director reasonably believes that the building industry participant
10
has contravened a provision or term referred to in subsection
11
706(2) of the FW Act.
12
Division 2--Role of the Independent Assessor
13
Subdivision A--Establishment and appointment etc. of the
14
Independent Assessor
15
36B Establishment
16
There is to be an Independent Assessor--Special Building Industry
17
Powers.
18
36C Functions and powers
19
The Independent Assessor has the functions and powers conferred
20
on him or her by or under this Act.
21
36D Minister may require reports
22
(1) The Minister may, in writing, direct the Independent Assessor to
23
give the Minister specified reports relating to the Independent
24
Assessor's functions and powers.
25
(2) The Independent Assessor must comply with the direction.
26
(3) A direction under subsection (1) is not a legislative instrument.
27
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37 Appointment
1
(1) The Independent Assessor is to be appointed by the
2
Governor-General by written instrument.
3
(2) The appointment is to be on a part-time basis.
4
(3) Before the Governor-General appoints a person as the Independent
5
Assessor, the Minister must be satisfied that the person:
6
(a) has suitable qualifications or experience; and
7
(b) is of good character.
8
(4) The Independent Assessor holds office for the period specified in
9
the instrument of appointment. The period must not exceed 5 years.
10
(5) The Independent Assessor holds office on the terms and conditions
11
(if any) in relation to matters not covered by this Act that are
12
determined by the Governor-General.
13
37A Acting appointments
14
The Minister may, by written instrument, appoint a person to act as
15
the Independent Assessor:
16
(a) during a vacancy in the office of Independent Assessor
17
(whether or not an appointment has previously been made to
18
the office); or
19
(b) during any period, or during all periods, when the
20
Independent Assessor:
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:
For rules that apply to acting appointments, see section 33A of the
25
Acts Interpretation Act 1901.
26
37B Remuneration
27
(1) The Independent Assessor is to be paid the remuneration that is
28
determined by the Remuneration Tribunal. If no determination of
29
that remuneration by the Tribunal is in operation, the Independent
30
Assessor is to be paid the remuneration that is prescribed by the
31
regulations.
32
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(2) The Independent Assessor is to be paid the allowances that are
1
prescribed by the regulations.
2
(3) This section has effect subject to the Remuneration Tribunal Act
3
1973.
4
37C Leave of absence
5
The Minister may grant the Independent Assessor leave of absence
6
on the terms and conditions that the Minister determines.
7
37D Engaging in other paid employment
8
The Independent Assessor must not engage in any paid
9
employment that, in the Minister's opinion, conflicts or may
10
conflict with the proper performance of the Independent Assessor's
11
functions.
12
37E Disclosure of interests
13
The Independent Assessor must give written notice to the Minister
14
of all material personal interests that the Independent Assessor has
15
or acquires and that conflict or could conflict with the proper
16
performance of the Independent Assessor's functions.
17
37F Resignation
18
(1) The Independent Assessor may resign his or her appointment by
19
giving the Governor-General a written resignation.
20
(2) The resignation takes effect on the day it is received by the
21
Governor-General or, if a later day is specified in the resignation,
22
on that later day.
23
37G Termination
24
(1) The Governor-General may terminate the appointment of the
25
Independent Assessor for misbehaviour or physical or mental
26
incapacity.
27
(2) The Governor-General must terminate the appointment of the
28
Independent Assessor if:
29
(a) the Independent Assessor:
30
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24 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
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(i) becomes bankrupt; or
1
(ii) applies to take the benefit of any law for the relief of
2
bankrupt or insolvent debtors; or
3
(iii) compounds with his or her creditors; or
4
(iv) makes an assignment of his or her remuneration for the
5
benefit of his or her creditors; or
6
(b) the Independent Assessor is absent, except on leave of
7
absence, for 14 consecutive days or for 28 days in any 12
8
months; or
9
(c) the Independent Assessor engages in paid employment that,
10
in the Minister's opinion, conflicts or may conflict with the
11
proper performance of his or her functions (see section 37D);
12
or
13
(d) the Independent Assessor fails, without reasonable excuse, to
14
comply with section 37E.
15
Subdivision B--Determinations by Independent Assessor
16
38 Application of this Subdivision
17
This Subdivision applies in relation to a building project if the
18
building work that the project consists of, or includes, begins on or
19
after the commencement of this Subdivision.
20
39 Independent Assessor may determine that powers to obtain
21
information do not apply in relation to particular
22
building project
23
(1) The Independent Assessor may, in accordance with this
24
Subdivision, make a written determination that section 45 does not
25
apply in relation to one or more building projects.
26
Note 1:
Section 45 provides for the Director to make an application to a
27
nominated AAT presidential member for the issue of an examination
28
notice in relation to a person in respect of an investigation.
29
Note 2:
A determination can be varied or revoked on application by an
30
interested person (see subsection 33(3) of the Acts Interpretation Act
31
1901) or on request by the Director (see section 43 of this Act).
32
(2) The Independent Assessor may make a determination under
33
subsection (1) in relation to a building project only on application
34
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under section 40 by an interested person in relation to the building
1
project.
2
(3) The Independent Assessor must not make a determination under
3
subsection (1) in relation to a particular building project unless the
4
Independent Assessor is satisfied, in relation to that building
5
project, that:
6
(a) it would be appropriate to make the determination, having
7
regard to:
8
(i) the object of this Act; and
9
(ii) any matters prescribed by the regulations; and
10
(b) it would not be contrary to the public interest to make the
11
determination.
12
(4) A determination under subsection (1) is not a legislative
13
instrument.
14
40 Interested person may apply for determination
15
(1) Subject to subsection (5), an interested person in relation to a
16
building project (or 2 or more such interested persons acting
17
jointly) may apply in writing to the Independent Assessor for a
18
determination that section 45 does not apply in relation to the
19
building project.
20
Note:
Section 45 provides for the Director to make an application to a
21
nominated AAT presidential member for the issue of an examination
22
notice in relation to a person in respect of an investigation.
23
(2) An application under subsection (1) must:
24
(a) state the grounds on which the application is made; and
25
(b) if a form is prescribed by the regulations--be in that form;
26
and
27
(c) include any other information prescribed by the regulations.
28
(3) An application under subsection (1) may relate to more than one
29
building project.
30
(4) An application under subsection (1) may be made at any time:
31
(a) before or after the relevant building project has commenced;
32
or
33
(b) after the relevant building project is completed.
34
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26 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
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(5) If an interested person has made an application (the original
1
application) under subsection (1) in relation to a building project,
2
the interested person may not make a further application under that
3
subsection, in relation to the same building project and on the same
4
grounds as the original application, unless the interested person
5
becomes aware of new information in relation to the building
6
project.
7
41 Consideration of application for determination
8
Opportunity for Director to make submissions in relation to
9
application
10
(1) If the Independent Assessor receives an application for a
11
determination from an interested person (the applicant) under
12
section 40, the Independent Assessor must:
13
(a) as soon as practicable after receiving the application, give the
14
Director a copy of the application; and
15
(b) give the Director a reasonable opportunity to make
16
submissions in relation to the application.
17
Independent Assessor may request further information
18
(2) The Independent Assessor may request the applicant or the
19
Director to give the Independent Assessor further information in
20
relation to the application.
21
(3) If a request for further information is made under subsection (2),
22
the applicant or the Director (as the case requires) must give the
23
further information to the Independent Assessor:
24
(a) as soon as practicable after receiving the request; and
25
(b) if the request specifies that the information must be given in
26
writing--in writing.
27
Decision by Independent Assessor
28
(4) The Independent Assessor must decide whether or not to make the
29
determination. In making the decision, the Independent Assessor
30
must have regard to:
31
(a) the application and any further information given to the
32
Independent Assessor under subsection (3); and
33
(b) any submissions made by the Director.
34
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No. , 2011 27
(5) As soon as practicable after the Independent Assessor makes a
1
decision under subsection (4), the Independent Assessor must give
2
written notice of the decision to:
3
(a) the applicant; and
4
(b)
the
Director.
5
42 Publication and period of effect of determination
6
(1) As soon as practicable after making a determination under
7
subsection 39(1), the Independent Assessor must:
8
(a) give a copy of the determination to:
9
(i) the applicant for the determination; and
10
(ii) the Director; and
11
(b) arrange for a copy of the determination to be published in the
12
Gazette.
13
(2) A determination under subsection 39(1) takes effect on the day on
14
which it is published in the Gazette.
15
43 Director may request Independent Assessor to reconsider
16
determination
17
(1) The Director may request the Independent Assessor to reconsider a
18
determination (the original determination) made under subsection
19
39(1) in relation to a building project.
20
(2) A request under subsection (1):
21
(a) may be made at any time after the original determination is
22
made; and
23
(b) must be in writing and set out the reasons for the request.
24
(3) If the Independent Assessor receives a request under
25
subsection (1), the Independent Assessor must:
26
(a) reconsider the original determination; and
27
(b) make a determination affirming or revoking the original
28
determination, or varying the original determination in such
29
manner as the Independent Assessor considers appropriate.
30
(4) As soon as practicable after making a determination under
31
subsection (3), the Independent Assessor must give written notice
32
of that determination to:
33
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28 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
(a) the Director; and
1
(b) the applicant for the original determination.
2
(5) The Independent Assessor must, as soon as practicable after
3
making a determination under subsection (3) revoking or varying
4
the original determination, arrange for a copy of the determination
5
to be published in the Gazette.
6
(6) A determination under subsection (3) revoking or varying the
7
original determination takes effect on the day on which it is
8
published in the Gazette.
9
Division 3--Examination notices
10
44 Minister may nominate AAT presidential members to issue
11
examination notices
12
(1) The Minister may, by writing, nominate an AAT presidential
13
member to issue examination notices under this Division.
14
(2) The Minister may nominate an AAT presidential member who is a
15
Judge to issue examination notices under this Division only if the
16
Judge has consented, by writing, to the nomination.
17
(3) A nomination ceases to have effect if:
18
(a) the nominated AAT presidential member ceases to be an
19
AAT presidential member; or
20
(b) the Minister, by writing, withdraws the nomination.
21
(4) A nominated AAT presidential member has, in performing a
22
function of or connected with issuing an examination notice under
23
this Division, the same protection and immunity as a Justice of the
24
High Court has in relation to proceedings in the High Court.
25
45 Director may apply to nominated AAT presidential member for
26
examination notice
27
General requirements
28
(1) If the Director believes on reasonable grounds that a person:
29
(a) has information or documents relevant to an investigation; or
30
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 29
(b) is capable of giving evidence that is relevant to an
1
investigation;
2
the Director may apply, in writing, to a nominated AAT
3
presidential member for the issue of an examination notice
4
requiring the person:
5
(c) to give the information to the Director; or
6
(d) to produce the documents to the Director; or
7
(e) to attend before the Director to answer questions relevant to
8
the investigation.
9
Application not permitted if determination by Independent
10
Assessor is in force
11
(2) The Director may not make an application under subsection (1) in
12
relation to an investigation (regardless of when the suspected
13
contravention to which the investigation relates occurred) if the
14
investigation is connected with a building project in relation to
15
which a determination under subsection 39(1) is in force.
16
Note:
Subsection 39(1) provides for the Independent Assessor to make a
17
determination that section 45 does not apply in relation to certain
18
building projects.
19
Form and content of application
20
(3) An application for an examination notice must:
21
(a) if a form is prescribed by the regulations--be in that form;
22
and
23
(b) include any information prescribed by the regulations.
24
(4) An application for an examination notice must not relate to more
25
than one person, but may relate to more than one investigation.
26
Application must be accompanied by affidavit
27
(5) An application for an examination notice must be accompanied by
28
an affidavit by the Director including the following:
29
(a) the name of the person in relation to whom the application
30
relates;
31
(b) details of the investigation (or investigations) to which the
32
application relates;
33
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30 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
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(c) a statement that the investigation (or investigations) are not
1
connected with a building project in relation to which a
2
determination under subsection 39(1) is in force;
3
(d) the grounds on which the Director believes the person has
4
information or documents, or is capable of giving evidence,
5
relevant to the investigation (or investigations) referred to in
6
paragraph (b);
7
(e) details of other methods used to attempt to obtain the
8
information, documents or evidence;
9
(f) the number (if any) of previous applications for an
10
examination notice that the Director has made in relation to
11
the person in respect of the investigation (or investigations)
12
referred to in paragraph (b);
13
(g) information about whether the Director has made, or expects
14
to make, any other applications for an examination notice in
15
relation to the investigation (or investigations) referred to in
16
paragraph (b) and, if so, the persons in relation to whom
17
those applications relate.
18
Further information
19
(6) A nominated AAT presidential member to whom an application for
20
an examination notice is made may request the Director to give the
21
presidential member further information in relation to the
22
application.
23
(7) If a request for further information is made under subsection (6),
24
the Director must give the further information in writing as soon as
25
practicable after receiving the request.
26
46 Sunset provision
27
The Director may not make an application under section 45 after
28
the end of 3 years after the day on which that section commences.
29
47 Issue of examination notice
30
(1) A nominated AAT presidential member to whom an application for
31
an examination notice has been made must issue the examination
32
notice if the presidential member is satisfied of the following:
33
(a) that the Director has commenced the investigation (or
34
investigations) to which the application relates;
35
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 31
(b) that the investigation (or investigations) are not connected
1
with a building project in relation to which a determination
2
under subsection 39(1) is in force;
3
(c) that there are reasonable grounds to believe that the person to
4
whom the application relates has information or documents,
5
or is capable of giving evidence, relevant to the investigation
6
(or investigations);
7
(d) that any other method of obtaining the information,
8
documents or evidence:
9
(i) has been attempted and has been unsuccessful; or
10
(ii) is not appropriate;
11
(e) that the information, documents or evidence would be likely
12
to be of assistance in the investigation (or investigations);
13
(f) that, having regard to all the circumstances, it would be
14
appropriate to issue the examination notice;
15
(g) any other matter prescribed by the regulations.
16
(2) A nominated AAT presidential member must not issue an
17
examination notice except in the circumstances referred to in
18
subsection (1).
19
(3) An examination notice must not be issued in relation to more than
20
one person, but may be issued in relation to more than one
21
investigation.
22
(4)
If:
23
(a) an application for an examination notice is made in relation
24
to more than one investigation; and
25
(b) the nominated AAT presidential member to whom the
26
application is made is not satisfied of the matters referred to
27
in subsection (1) in relation to each of those investigations;
28
the nominated AAT presidential member must issue the
29
examination notice in relation to the investigation (or
30
investigations) in relation to which the nominated AAT
31
presidential member is satisfied of the matters referred to in
32
subsection (1).
33
48 Form and content of examination notice
34
An examination notice:
35
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32 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
(a) must be in accordance with the form prescribed by the
1
regulations; and
2
(b) if the notice requires a person to give information to the
3
Director--must specify the time by which, and the manner
4
and form in which, the information is to be given; and
5
(c) if the notice requires a person to produce documents to the
6
Director--must specify the time by which, and the manner in
7
which, the documents are to be produced; and
8
(d) if the notice requires a person to attend before the Director to
9
answer questions relevant to an investigation--must specify
10
the time and place for the attendance; and
11
(e) must be signed by the nominated AAT presidential member
12
who issued it; and
13
(f) must include any other information prescribed by the
14
regulations.
15
49 Director must notify Commonwealth Ombudsman of issue of
16
examination notice
17
As soon as practicable after an examination notice has been issued,
18
the Director must:
19
(a) notify the Commonwealth Ombudsman that the examination
20
notice has been issued; and
21
(b) give the Commonwealth Ombudsman a copy of:
22
(i) the examination notice; and
23
(ii) the affidavit that accompanied the application for the
24
examination notice; and
25
(iii) any other information in relation to the examination
26
notice that was given to the nominated AAT presidential
27
member who issued the notice.
28
50 Director may give examination notice to person in relation to
29
whom it is issued and vary time for compliance
30
Director may give examination notice to person in relation to
31
whom it is issued
32
(1) If a nominated AAT presidential member issues an examination
33
notice, the Director may give the notice to the person in relation to
34
whom it is issued.
35
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Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 33
(2) If an examination notice is not given to the person in relation to
1
whom it is issued within 3 months after the day on which it was
2
issued, the notice ceases to have effect at the end of that period.
3
Director may vary time for compliance with examination notice
4
(3)
If:
5
(a) the Director gives an examination notice to a person under
6
subsection (1); and
7
(b) the time specified in the notice under paragraph 48(b), (c) or
8
(d) is not at least 14 days after the notice is given to the
9
person;
10
the Director must, at the same time as the examination notice is
11
given to the person, also give notice to the person of a time later
12
than the time specified in the notice.
13
(4) The Director may, at any time after giving an examination notice to
14
the person in relation to whom it is issued, give notice to the person
15
of a time later than the time:
16
(a) specified in the notice under paragraph 48(b), (c) or (d); or
17
(b) notified under subsection (3).
18
(5) A later time notified under subsection (3) or (4) must be at least 14
19
days after the examination notice is given to the person.
20
(6) If the person is notified of a later time under subsection (3) or (4),
21
the examination notice has effect as if the later time (or the latest of
22
those times) were the time specified in the examination notice.
23
Director must give copy of notice varying time to Commonwealth
24
Ombudsman
25
(7) If a notice under subsection (3) or (4) is given to a person, the
26
Director must, as soon as practicable after giving the notice, give a
27
copy of the notice to the Commonwealth Ombudsman.
28
51 Conduct of examination etc.
29
Application of section
30
(1) This section applies if a person is required by an examination
31
notice to attend before the Director to answer questions relevant to
32
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34 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
an investigation. An attendance before the Director for this purpose
1
is called an examination.
2
Director to conduct examination
3
(2) The Director must conduct the examination of the person.
4
Representation by lawyer
5
(3) The person may, if he or she so chooses, be represented at the
6
examination by a lawyer of the person's choice.
7
Oath or affirmation
8
(4) The Director may require the information or answers given by the
9
person at the examination to be verified by, or given on, oath or
10
affirmation, and either orally or in writing. For that purpose, the
11
Director may administer the oath or affirmation.
12
(5) The oath or affirmation is an oath or affirmation that information
13
or answers are, or will be, true.
14
Director must not require person to give certain undertakings
15
(6) The Director must not require the person to undertake:
16
(a) not to disclose information or answers given at the
17
examination; or
18
(b) not to discuss matters relating to the examination with any
19
other person.
20
53 Part 2 of Chapter 7 (heading)
21
Repeal the heading.
22
54 Division 1 of Part 2 of Chapter 7 (heading)
23
Repeal the heading.
24
55 Section 52
25
Repeal the section, substitute:
26
52 Offence--failure to comply with examination notice
27
(1) A person commits an offence if:
28
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No. , 2011 35
(a) the person has been given an examination notice under
1
section 50; and
2
(b) the person fails:
3
(i) to give the required information by the time, and in the
4
manner and form, specified in the notice; or
5
(ii) to produce the required documents by the time, and in
6
the manner, specified in the notice; or
7
(iii) to attend to answer questions at the time and place
8
specified in the notice; or
9
(iv) to take an oath or make an affirmation, if required to do
10
so under subsection 51(4); or
11
(v) to answer questions relevant to the investigation while
12
attending as required by the notice.
13
Penalty: Imprisonment for 6 months.
14
Note:
A court may impose a maximum fine of 30 penalty units instead of, or
15
in addition to, a term of imprisonment. A body corporate that is
16
convicted of an offence may be fined up to 5 times that maximum
17
fine. (See subsections 4B(2) and (3) of the Crimes Act 1914.)
18
(2) This Part does not require a person to give information, produce a
19
document or answer questions if to do so would disclose
20
information that:
21
(a) is the subject of legal professional privilege; or
22
(b) would be protected by public interest immunity.
23
Note:
A defendant bears an evidential burden in relation to the matters in
24
this subsection (see subsection 13.3(3) of the Criminal Code).
25
56 Section 53 (heading)
26
Repeal the heading, substitute:
27
53 Certain excuses not available in relation to examination notices
28
57 Subsection 53(1)
29
Omit "section 52", substitute "an examination notice".
30
58 Paragraph 53(1)(b)
31
Omit "liability; or", substitute "liability.".
32
59 Paragraph 53(1)(c)
33
Schedule 1 Amendments
36 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
Repeal the paragraph.
1
60 Paragraph 53(2)(c)
2
Omit "52(6)", substitute "52(1)".
3
61 Section 54
4
Omit "section 52", substitute "an examination notice".
5
62 After section 54
6
Insert:
7
54A Review and report by Commonwealth Ombudsman
8
Director to give report etc. to Commonwealth Ombudsman
9
(1) As soon as practicable after an examination of a person is
10
completed, the Director must give the Commonwealth
11
Ombudsman:
12
(a) a report about the examination; and
13
(b) a video recording of the examination; and
14
(c) a transcript of the examination.
15
(2) The report required under paragraph (1)(a) must include:
16
(a) a copy of the examination notice under which the
17
examination was conducted; and
18
(b) the following information:
19
(i) the time and place at which the examination was
20
conducted;
21
(ii) the name of each person who was present at the
22
examination;
23
(iii) any other information prescribed by the regulations.
24
Review of exercise of powers under this Division
25
(3) The Commonwealth Ombudsman:
26
(a) must review the exercise of powers under this Division by
27
the Director and any person assisting the Director; and
28
(b) may do anything incidental or conducive to the performance
29
of that function.
30
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 37
(4) The Commonwealth Ombudsman's powers under the Ombudsman
1
Act 1976 extend to a review by the Ombudsman under this section
2
as if the review were an investigation by the Ombudsman under
3
that Act.
4
(5) The exercise of those powers in relation to a review by the
5
Ombudsman under this section is taken, for all purposes, to be an
6
exercise of powers under the Ombudsman Act 1976.
7
Commonwealth Ombudsman to report to Parliament
8
(6) As soon as practicable after the end of each financial year, the
9
Commonwealth Ombudsman must prepare and present to the
10
Parliament a report about examinations conducted under this
11
Division during that year. The report must include the results of
12
reviews conducted under this section during that year.
13
(7) The Commonwealth Ombudsman may prepare and present to the
14
Parliament such other reports about the results of reviews
15
conducted under this section as the Commonwealth Ombudsman
16
considers appropriate.
17
63 Subsection 55(1) (heading)
18
Repeal the heading, substitute:
19
Director may keep documents
20
64 Subsection 55(1)
21
Omit "ABC Commissioner", substitute "Director".
22
65 Subsection 55(1)
23
Omit "section 52", substitute "an examination notice".
24
66 Paragraphs 55(2)(a) to (d)
25
Repeal the paragraphs, substitute:
26
(a)
the
Director;
27
(b)
an
inspector;
28
(c) a member of staff referred to in subsection 26K(1);
29
(d) a person assisting the Director under section 26L;
30
(e) a person engaged as a consultant under section 26M.
31
Schedule 1 Amendments
38 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
67 Subsection 55(4)
1
Omit "ABC Commissioner" (wherever occurring), substitute
2
"Director".
3
68 Section 56 (heading)
4
Repeal the heading, substitute:
5
56 Director may make and keep copies of documents
6
69 Section 56
7
Omit "ABC Commissioner", substitute "Director".
8
70 Section 56
9
Omit "section 52", substitute "an examination notice".
10
71 At the end of Division 1 of Part 2 of Chapter 7
11
Add:
12
57 Secrecy provisions
13
(1) The operation of this Division is not limited by any secrecy
14
provision of any other law (whether enacted before or after the
15
commencement of this section), except to the extent that the
16
secrecy provision expressly excludes the operation of this section.
17
(2) For the purposes of subsection (1), secrecy provision means a
18
provision that prohibits the communication or divulging of
19
information.
20
58 Payment for expenses incurred in attending an examination
21
(1) Subject to subsection (2), a person who attends an examination as
22
required by an examination notice is entitled to be paid fees and
23
allowances, fixed by or calculated in accordance with the
24
regulations, for reasonable expenses (including legal expenses)
25
incurred by the person in attending the examination.
26
(2) The person is not entitled to be paid for expenses under this section
27
unless the person:
28
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 39
(a) applies, in writing, to the Director for payment of the
1
expenses within 3 months after the examination is completed;
2
and
3
(b) provides to the Director sufficient evidence to establish that
4
the person incurred the expenses.
5
(3) An application under paragraph (2)(a) must:
6
(a) if a form is prescribed by the regulations--be in that form;
7
and
8
(b) include any information prescribed by the regulations.
9
72 Division 2 of Part 2 of Chapter 7
10
Repeal the Division, substitute:
11
Part 2--Fair Work Building Industry Inspectors
12
Division 1--Appointment
13
59 Appointment
14
(1) The Director may, in writing, appoint as a Fair Work Building
15
Industry Inspector:
16
(a) a person who has been appointed, or who is employed, by the
17
Commonwealth; or
18
(b) a person who has been appointed, or who is employed, by a
19
State or Territory, or who holds an office or appointment
20
under a law of a State or Territory.
21
(2) The Director may appoint a person as an inspector only if the
22
Director is satisfied that the person is of good character.
23
(3) An inspector is appointed for the period specified in the instrument
24
of appointment. The period must not exceed 4 years.
25
Note:
An inspector is eligible for reappointment (see section 33AA of the
26
Acts Interpretation Act 1901).
27
59A Director is an inspector
28
The Director is an inspector by force of this section.
29
Schedule 1 Amendments
40 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
59B Identity cards
1
(1) The Director must issue an identity card to an inspector appointed
2
under section 59.
3
(2) The Minister must issue an identity card to the Director.
4
Form of identity card
5
(3) The identity card must:
6
(a) be in the form approved by the Director; and
7
(b) contain a recent photograph of the inspector.
8
Inspector must carry card
9
(4) An inspector must carry the identity card at all times when
10
performing functions or exercising powers as an inspector.
11
Offence
12
(5) A person commits an offence if:
13
(a) the person ceases to be an inspector; and
14
(b) the person does not, within 14 days of so ceasing, return the
15
person's identity card to the Director or the Minister (as the
16
case may be).
17
Penalty: 1 penalty unit.
18
(6) Subsection (5) is an offence of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
Defence--card lost or destroyed
21
(7) Subsection (5) does not apply if the identity card was lost or
22
destroyed.
23
Note:
A defendant bears an evidential burden in relation to the matter in this
24
subsection (see subsection 13.3(3) of the Criminal Code).
25
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 41
Division 2--Powers
1
59C Inspectors' powers under Fair Work and other Acts
2
(1) An inspector has the same functions and powers as a Fair Work
3
Inspector.
4
(2) However, the functions and powers of an inspector:
5
(a) may be performed or exercised only in relation to a building
6
matter; and
7
(b) are subject to such conditions and restrictions as are specified
8
in his or her instrument of appointment.
9
(3) A matter is a building matter if it relates to a building industry
10
participant.
11
(4) For the purposes of the performance of the functions and the
12
exercise of the powers of an inspector in relation to a building
13
matter:
14
(a) a reference in an Act to a Fair Work Inspector has effect as if
15
it were a reference to an inspector; and
16
(b) a reference in an Act to the Fair Work Ombudsman has effect
17
as if it were a reference to the Director.
18
(5) To avoid doubt, this section does not provide for the Fair Work
19
Ombudsman to give directions to an inspector under section 704 or
20
705 of the FW Act.
21
59D Director's powers under Fair Work Act
22
(1) The Director has the same functions and powers, in relation to a
23
building matter, that the Fair Work Ombudsman has under
24
section 715 of the FW Act.
25
Note:
Section 715 of the FW Act provides for the Fair Work Ombudsman to
26
accept written undertakings in relation to contraventions of that Act.
27
(2) The functions and powers conferred under subsection (1) are in
28
addition to the functions and powers the Director has because of
29
the operation of subsection 59C(4).
30
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42 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
59E Inspectors' power to monitor compliance with Building Code
1
(1) Inspectors are also to monitor compliance with the Building Code.
2
(2) For this purpose, an inspector has the functions and powers under
3
Subdivision D of Division 3 of Part 5-2 of the FW Act that he or
4
she would have if the Building Code were a fair work instrument.
5
59F General directions by the Director
6
(1) The Director may, by legislative instrument, give a direction to
7
inspectors relating to the performance of their functions or the
8
exercise of their powers as inspectors.
9
(2) The direction must be of a general nature only, and cannot relate to
10
a particular case.
11
(3) An inspector must comply with the direction.
12
59G Particular directions by the Director
13
(1) The Director may give a direction to an inspector relating to the
14
performance of the inspector's functions or the exercise of the
15
inspector's powers as an inspector.
16
(2) The inspector must comply with the direction.
17
(3) If a direction is in writing, the direction is not a legislative
18
instrument.
19
73 Division 3 of Part 2 of Chapter 7 (heading)
20
Repeal the heading, substitute:
21
Part 3--Federal Safety Officers
22
Division 1--Appointment
23
74 Before section 62
24
Insert:
25
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 43
Division 2--Powers
1
75 Subsection 62(14)
2
Repeal the subsection.
3
76 Subsection 63(14)
4
Repeal the subsection.
5
77 Section 64
6
Repeal the section, substitute:
7
64 Disclosure of information by the Director
8
Information to which this section applies
9
(1) This section applies to information (other than protected
10
information within the meaning of section 65) that is:
11
(a) information acquired by the Director in the course of
12
performing functions, or exercising powers, as the Director;
13
or
14
(b) information acquired by an inspector in the course of
15
performing functions, or exercising powers, as an inspector;
16
or
17
(c) information acquired by a member of staff referred to in
18
subsection 26K(1) in the course of performing functions, or
19
exercising powers, as a member of staff; or
20
(d) information acquired by a person in the course of assisting
21
the Director under section 26L, or in the course of
22
performing functions, or exercising powers, as a consultant
23
under section 26M; or
24
(e) information acquired by a person in the course of assisting an
25
inspector in performing functions, or exercising powers, as
26
an inspector.
27
Disclosure that is necessary or appropriate, or likely to assist
28
administration or enforcement
29
(2) The Director may disclose, or authorise the disclosure of, the
30
information if the Director reasonably believes:
31
Schedule 1 Amendments
44 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
(a) that it is necessary or appropriate to do so for the purposes of
1
the performance of the Director's functions or the exercise of
2
the Director's powers; or
3
(b) that the disclosure is likely to assist in the administration or
4
enforcement of a law of the Commonwealth, a State or a
5
Territory.
6
Disclosure to the Minister
7
(3) The Director may disclose, or authorise the disclosure of, the
8
information to the Minister if the Director reasonably believes that
9
the disclosure is likely to assist the Minister to consider a
10
complaint or issue in relation to a matter arising under this Act, the
11
FW Act or the Fair Work (Transitional Provisions and
12
Consequential Amendments) Act 2009.
13
Disclosure to the Department
14
(4) The Director may disclose, or authorise the disclosure of, the
15
information to:
16
(a) the Secretary of the Department; or
17
(b) an SES employee, or an APS employee, in the Department;
18
for the purpose of briefing, or considering briefing, the Minister if
19
the Director reasonably believes the disclosure is likely to assist the
20
Minister to consider a complaint or issue in relation to a matter
21
arising under this Act, the FW Act or the Fair Work (Transitional
22
Provisions and Consequential Amendments) Act 2009.
23
Disclosure to the Fair Work Building Industry Inspectorate
24
Advisory Board
25
(5) The Director may disclose, or authorise the disclosure of, the
26
information to the Advisory Board if the Director reasonably
27
believes that the disclosure is likely to assist the Advisory Board in
28
performing its role.
29
Interaction with section 66
30
(6) Subsections (2) to (4) have effect subject to section 66.
31
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 45
64A Disclosure of information by the Federal Safety Commissioner
1
Information to which this section applies
2
(1) This section applies to information that is:
3
(a) information acquired by the Federal Safety Commissioner in
4
the course of performing functions, or exercising powers, as
5
the Federal Safety Commissioner; or
6
(b) information acquired by a Federal Safety Officer in the
7
course of performing functions, or exercising powers, as a
8
Federal Safety Officer; or
9
(c) information acquired by an APS employee assisting the
10
Federal Safety Commissioner; or
11
(d) information acquired by a person in the course of performing
12
functions, or exercising powers, as a consultant under
13
section 34.
14
Disclosure that is necessary or appropriate, or likely to assist
15
administration or enforcement
16
(2) The Federal Safety Commissioner may disclose, or authorise the
17
disclosure of, the information if the Federal Safety Commissioner
18
reasonably believes:
19
(a) that it is necessary or appropriate to do so for the purposes of
20
the performance of the Federal Safety Commissioner's
21
functions or the exercise of the Federal Safety
22
Commissioner's powers; or
23
(b) that the disclosure is likely to assist in the administration or
24
enforcement of a law of the Commonwealth, a State or a
25
Territory.
26
Disclosure to the Minister
27
(3) The Federal Safety Commissioner may disclose, or authorise the
28
disclosure of, the information to the Minister if the Federal Safety
29
Commissioner reasonably believes that the disclosure is likely to
30
assist the Minister to consider a complaint or issue in relation to a
31
matter arising under this Act.
32
Schedule 1 Amendments
46 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
Disclosure to the Department
1
(4) The Federal Safety Commissioner may disclose, or authorise the
2
disclosure of, the information to:
3
(a) the Secretary of the Department; or
4
(b) an SES employee, or an APS employee, in the Department;
5
for the purpose of briefing, or considering briefing, the Minister if
6
the Federal Safety Commissioner reasonably believes the
7
disclosure is likely to assist the Minister to consider a complaint or
8
issue in relation to a matter arising under this Act.
9
78 Section 65 (heading)
10
Repeal the heading, substitute:
11
65 Protection of confidentiality of information obtained under an
12
examination notice
13
79 Paragraph 65(3)(a)
14
Omit "this Act", substitute "the performance of the Director's functions
15
or the exercise of the Director's powers".
16
80 Paragraph 65(4)(a)
17
Omit "this Act", substitute "the performance of the Director's functions
18
or the exercise of the Director's powers".
19
81 Subsection 65(5) (heading)
20
Repeal the heading, substitute:
21
Disclosure to a Minister by a designated official
22
82 Paragraph 65(5)(aa)
23
Omit "ABC".
24
83 Subsection 65(8) (definition of designated ABC official)
25
Repeal the definition.
26
84 Subsection 65(8) (definition of designated official)
27
Repeal the definition, substitute:
28
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 47
designated official means any of the following:
1
(a)
the
Director;
2
(b)
an
inspector;
3
(c) a member of staff referred to in subsection 26K(1);
4
(d) a person assisting the Director under section 26L;
5
(e) a person engaged as a consultant under section 26M;
6
(f) the General Manager of FWA;
7
(g) a presidential member or a Registrar of the Administrative
8
Appeals Tribunal, or an officer or member of staff referred to
9
in section 24N of the Administrative Appeals Tribunal Act
10
1975;
11
(h) the Commonwealth Ombudsman, a Deputy Commonwealth
12
Ombudsman or a member of the staff referred to in
13
subsection 31(1) of the Ombudsman Act 1976;
14
(i) a person acting under a delegation under this Act from a
15
person referred to in any of the preceding paragraphs.
16
85 Subsection 65(8) (paragraph (b) of the definition of official
17
employment)
18
Omit "ABC Inspector or Federal Safety Officer", substitute "inspector".
19
86 Subsection 65(8) (paragraph (a) of the definition of
20
protected information)
21
Repeal the paragraph, substitute:
22
(a) was disclosed or obtained under an examination notice or at
23
an examination; and
24
87 Section 67
25
Repeal the section.
26
88 Section 68
27
Repeal the section, substitute:
28
68 Delegation by Minister
29
(1) The Minister may, in writing, delegate all or any of the Minister's
30
functions or powers under Chapter 3 to:
31
(a) the Director; or
32
Schedule 1 Amendments
48 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
(b) the Federal Safety Commissioner.
1
(2) In performing functions or exercising powers delegated under
2
subsection (1), the Director and the Federal Safety Commissioner
3
must comply with any directions of the Minister.
4
Note:
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
5
89 Sections 69 and 70
6
Repeal the sections.
7
90 Section 71 (heading)
8
Repeal the heading, substitute:
9
71 Director may intervene in court proceedings
10
91 Section 71
11
Omit "ABC Commissioner" (wherever occurring), substitute
12
"Director".
13
92 Section 72 (heading)
14
Repeal the heading, substitute:
15
72 Director may make submissions in FWA proceedings
16
93 Section 72
17
Omit "ABC Commissioner", substitute "Director".
18
94 Sections 73 and 73A
19
Repeal the sections.
20
95 Section 74 (heading)
21
Repeal the heading, substitute:
22
74 General Manager of FWA must keep Director informed
23
96 Section 74
24
Omit "ABC Commissioner", substitute "Director".
25
97 Section 75
26
Amendments Schedule 1
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 49
Repeal the section, substitute:
1
75 Jurisdiction of the Federal Court
2
Jurisdiction is conferred on the Federal Court in relation to any
3
matter arising under this Act.
4
98 Paragraph 75A(1)(a)
5
Repeal the paragraph.
6
99 Section 75B
7
Repeal the section.
8
100 Section 76
9
Repeal the section, substitute:
10
76 Court not to require undertaking as to damages
11
If the Director or an inspector is an applicant in court proceedings
12
under the FW Act or the Fair Work (Transitional Provisions and
13
Consequential Amendments) Act 2009, the court cannot require the
14
Director, the inspector or another person, as a condition of granting
15
an interim injunction, to give undertakings as to damages.
16
101 Section 77 (heading)
17
Repeal the heading, substitute:
18
77 Director etc. not liable for conduct in good faith
19
102 Subsection 77(2) (paragraphs (a) to (e) of the definition of
20
protected person)
21
Repeal the paragraphs, substitute:
22
(a)
the
Director;
23
(b)
an
inspector;
24
(c) a member of staff referred to in subsection 26K(1);
25
(d) a person assisting the Director under section 26L;
26
(e) a person engaged as a consultant under section 26M;
27
Schedule 1 Amendments
50 Building and Construction Industry Improvement Amendment (Transition to Fair Work)
Bill 2011 No. , 2011
103 Subsection 77(2) (paragraph (k) of the definition of
1
protected person)
2
Repeal the paragraph, substitute:
3
(k) the Independent Assessor;
4
(l) a presidential member or a Registrar of the Administrative
5
Appeals Tribunal, or an officer or member of staff referred to
6
in section 24N of the Administrative Appeals Tribunal Act
7
1975;
8
(m) the Commonwealth Ombudsman, a Deputy Commonwealth
9
Ombudsman or a member of the staff referred to in
10
subsection 31(1) of the Ombudsman Act 1976;
11
(n) a person acting under a delegation under this Act from a
12
person referred to in any of the preceding paragraphs.
13
104 Paragraphs 78(2)(a), (d) and (e)
14
Repeal the paragraphs.
15
Transitional and consequential provisions Schedule 2
Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
No. , 2011 51
Schedule 2--Transitional and consequential
1
provisions
2
3
1 Regulations may deal with transitional etc. matters
4
(1)
The Governor-General may make regulations dealing with matters of a
5
transitional, saving or application nature relating to amendments made
6
by this Act.
7
(2)
In this item:
8
amendments made by this Act includes amendments made by
9
regulations under item 2 of this Schedule.
10
2 Regulations may make consequential amendments of Acts
11
(1)
The Governor-General may make regulations amending Acts being
12
amendments that are consequential on, or that otherwise relate to, the
13
amendments made by this Act.
14
(2)
Amendments of an Act made by regulations for the purposes of this
15
item can be incorporated into a reprint or compilation of the Act as
16
provided by the Acts Publication Act 1905.
17
3 Regulations may take effect from date before registration
18
(1)
Despite subsection 12(2) of the Legislative Instruments Act 2003 and
19
subject to subitem (2), regulations made under item 1 or 2 of this
20
Schedule may be expressed to take effect from a date before the
21
regulations are registered under that Act.
22
(2) If:
23
(a) regulations made under item 1 or 2 of this Schedule are
24
expressed to take effect from a date (the registration date)
25
before the regulations are registered under the Legislative
26
Instruments Act 2003; and
27
(b) a person engaged in conduct before the registration date; and
28
(c) but for the retrospective effect of the regulations, the conduct
29
would not have contravened a provision of an Act;
30
then a court must not convict the person of an offence, or order the
31
person to pay a pecuniary penalty, in relation to the conduct on the
32
grounds that it contravened a provision of that Act.
33