BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT BILL 2005

i Building and Construction Industry Improvement Bill 2005 No. , 2005

Contents

Chapter 1--Preliminary

Short title.......................................................................................1

Commencement .............................................................................2

Definitions.....................................................................................2

Definition of building work ............................................................5

Definition of office.........................................................................7

Extension to Christmas Island.........................................................8

Act to bind Crown..........................................................................8

Chapter 6--Industrial action etc.

Part 1--Preliminary

Definitions.....................................................................................9

Part 2--Unlawful industrial action

Definition of unlawful industrial action ........................................13

Unlawful industrial action prohibited............................................13

Part 3--Protected action

Division 1--Exceptions to protected action

Action before nominal expiry date................................................14

Part 4--Miscellaneous

136

Payments in relation to periods of building industrial action ..........15

Chapter 12--Enforcement

Part 1--Contravention of civil penalty provisions

226

Definitions...................................................................................16

227

Penalties etc. for contravention of civil penalty provision ..............16

228

Multiple proceedings for same conduct.........................................18

229

Evidence given in proceedings for penalty not admissible in

criminal proceedings ....................................................................19

Chapter 13--Miscellaneous

252

Jurisdiction of courts ....................................................................20

255

Regulations..................................................................................21

Chapter 1 Preliminary

Section 2

2 Building and Construction Industry Improvement Bill 2005 No. , 2005

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Sections 4 to

9 March 2005.

3. Chapter 6

9 March 2005.

4. Chapters 12

and 13

The day on which this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

4 Definitions

In this Act, unless the contrary intention appears:

AIRC means the Australian Industrial Relations Commission

established by section 8 of the Workplace Relations Act.

award has the meaning given by section 4 of the Workplace

Relations Act.

Preliminary Chapter 1

Section 4

Building and Construction Industry Improvement Bill 2005 No. , 2005 3

building association means an industrial association whose

eligibility rules allow membership by at least one of the following

groups:

(a) building employers;

(b) building employees;

whether or not those rules also allow membership by other persons.

building certified agreement means a certified agreement that

applies to building work (whether or not it also applies to other

work).

building contractor means a person who has entered into, or who

has offered to enter into, a contract for services under which the

person:

(a) carries out building work; or

(b) arranges for building work to be carried out.

building employee means:

(a) a person whose employment consists of, or includes, building

work; or

(b) a person who accepts an offer of engagement as an employee

for work that consists of, or includes, building work.

building employer means an employer who employs, or offers to

employ, building employees.

building industry participant means any of the following:

(a) a building employee;

(b) a building employer;

(d) a person who enters into a contract with a building contractor

under which the building contractor agrees to carry out

building work or to arrange for building work to be carried

out;

(e) a building association;

(f) an officer, delegate or other representative of a building

association;

(g) an employee of a building association.

Chapter 1 Preliminary

Section 4

4 Building and Construction Industry Improvement Bill 2005 No. , 2005

building work has the meaning given by section 5.

certified agreement has the meaning given by section 4 of the

Workplace Relations Act.

Note:

Part XV of the Workplace Relations Act extends the circumstances in

which agreements can be certified under Part VIB of that Act.

civil penalty provision means section 74.

Commonwealth place means a place referred to in paragraph 52(i)

of the Constitution, other than the seat of government.

conduct includes an omission.

constitutional corporation means:

(a) a corporation to which paragraph 51(xx) of the Constitution

applies; or

(b) a body corporate that is incorporated in a Territory.

eligibility rules means rules that relate to the conditions of

eligibility for membership.

employee has the meaning given by section 4 of the Workplace

Relations Act.

employer has the meaning given by section 4 of the Workplace

Relations Act.

Federal Court means the Federal Court of Australia.

industrial association has the same meaning as in Part XA of the

Workplace Relations Act.

industrial body means:

(a) the AIRC; or

(b) a court or commission, however designated, exercising under

an industrial law powers and functions corresponding to

those conferred on the AIRC by the Workplace Relations

Act.

industrial dispute (except in subsection 72(4) of this Act) has the

meaning given by section 4 of the Workplace Relations Act (as

affected by Part XV of that Act).

Preliminary Chapter 1

Section 5

Building and Construction Industry Improvement Bill 2005 No. , 2005 5

industrial instrument means an award or agreement, however

designated, that:

(a) is made under or recognised by an industrial law; and

(b) deals with the relationship between employers and

employees, concerns the relationship between an employer

and the employer's employees, or provides for the prevention

or settlement of a dispute between an employer and the

employer's employees.

industrial law means:

(a) this Act or the Workplace Relations Act; or

(b) a law, however designated, of the Commonwealth or of a

State or Territory that regulates the relationships between

employers and employees or provides for the prevention or

settlement of disputes between employers and employees.

office, in relation to an organisation or industrial association or a

branch of an organisation or industrial association, has the meaning

given by section 6.

officer, in relation to an organisation or industrial association,

means a person who holds an office in the organisation or

association.

organisation has the meaning given by section 4 of the Workplace

Relations Act.

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

unlawful industrial action has the meaning given by section 73.

Workplace Relations Act means the Workplace Relations Act

1996.

5 Definition of building work

(1) Subject to subsections (2), (3) and (4), building work means any of

the following activities:

(a) the construction, alteration, extension, restoration, repair,

demolition or dismantling of buildings, structures or works

Chapter 1 Preliminary

Section 5

6 Building and Construction Industry Improvement Bill 2005 No. , 2005

that form, or are to form, part of land, whether or not the

buildings, structures or works are permanent;

(b) the construction, alteration, extension, restoration, repair,

demolition or dismantling of railways (not including rolling

stock) or docks;

forming, or to form, part of land, including heating, lighting,

air-conditioning, ventilation, power supply, drainage,

sanitation, water supply, fire protection, security and

communications systems;

(d) any operation that is part of, or is preparatory to, or is for

rendering complete, work covered by paragraph (a), (b) or

(c), for example:

(i) site clearance, earth-moving, excavation, tunnelling and

boring;

(ii) the laying of foundations;

(iii) the erection, maintenance or dismantling of scaffolding;

(iv) the prefabrication of made-to-order components to form

part of any building, structure or works, whether carried

out on-site or off-site;

(v) site restoration, landscaping and the provision of

roadways and other access works;

but does not include any of the following:

(e) the drilling for, or extraction of, oil or natural gas;

(f) the extraction (whether by underground or surface working)

of minerals, including tunnelling or boring, or constructing

underground works, for that purpose;

(g) any work that is part of a project for:

(i) the construction, repair or restoration of a

single-dwelling house; or

(ii) the construction, repair or restoration of any building,

structure or work associated with a single-dwelling

house; or

(iii) the alteration or extension of a single-dwelling house, if

it remains a single-dwelling house after the alteration or

extension.

Preliminary Chapter 1

Section 6

Building and Construction Industry Improvement Bill 2005 No. , 2005 7

(2) Paragraph (1)(g) does not apply if the project is part of a

multi-dwelling development that consists of, or includes, the

construction of at least 5 single-dwelling houses.

(3) Subject to subsection (4), building work includes any activity that

is prescribed by the regulations for the purposes of this subsection.

(4) Building work does not include any activity that is prescribed by

the regulations for the purposes of this subsection.

(5) In this section:

land includes land beneath water.

6 Definition of office

(1) In this Act, office, in relation to an association, means:

(a) an office of president, vice president, secretary or assistant

secretary of the association; or

(b) the office of a voting member of a collective body of the

association, being a collective body that has power in relation

to any of the following functions:

(i) the management of the affairs of the association;

(ii) the determination of policy for the association;

(iii) the making, alteration or rescission of rules of the

association;

(iv) the enforcement of rules of the association, or the

performance of functions in relation to the enforcement

of such rules; or

association, entitled to participate directly in any of the

functions referred to in subparagraphs (b)(i) and (iv), other

than an office the holder of which participates only in

accordance with directions given by a collective body or

another person for the purpose of implementing:

(i) existing policy of the association; or

(ii) decisions concerning the association; or

(d) an office the holder of which is, under the rules of the

association, entitled to participate directly in any of the

functions referred to in subparagraphs (b)(ii) and (iii); or

Chapter 1 Preliminary

Section 9

8 Building and Construction Industry Improvement Bill 2005 No. , 2005

(e) the office of a person holding (whether as trustee or

otherwise) property:

(i) of the association; or

(ii) in which the association has a beneficial interest.

In this subsection, association means an organisation or branch of

an organisation, or an industrial association or branch of an

industrial association.

(2) In this Act, a reference to an office in an organisation or industrial

association includes a reference to an office in a branch of the

organisation or association.

9 Extension to Christmas Island

(1) This Act extends to the Territory of Christmas Island.

(2) This Act applies in relation to the Territory of Christmas Island

with such modifications as are prescribed by the regulations.

(3) In this section:

modifications includes additions, omissions and substitutions.

10 Act to bind Crown

(1) This Act binds the Crown in each of its capacities.

(2) Nothing in this Act renders the Commonwealth or a State or

Territory liable to be prosecuted for an offence.

Industrial action etc. Chapter 6

Preliminary Part 1

Section 72

Building and Construction Industry Improvement Bill 2005 No. , 2005 9

Chapter 6--Industrial action etc.

Part 1--Preliminary

72 Definitions

(1) In this Chapter, unless the contrary intention appears:

building industrial action means:

(a) the performance of building work in a manner different from

that in which it is customarily performed, or the adoption of a

practice in relation to building work, the result of which is a

restriction or limitation on, or a delay in, the performance of

the work, where:

(i) the terms and conditions of the work are prescribed,

wholly or partly, by an industrial instrument or an order

of an industrial body; or

(ii) the work is performed, or the practice is adopted, in

connection with an industrial dispute (within the

meaning of subsection (4)); or

(b) a ban, limitation or restriction on the performance of building

work, or on acceptance of or offering for building work, in

accordance with the terms and conditions prescribed by an

industrial instrument or by an order of an industrial body; or

work, or on acceptance of or offering for building work, that

is adopted in connection with an industrial dispute (within

the meaning of subsection (4)); or

(d) a failure or refusal by persons to attend for building work or a

failure or refusal to perform any work at all by persons who

attend for building work;

but does not include:

(e) action by employees that is authorised or agreed to, in

advance and in writing, by the employer of the employees; or

(f) action by an employer that is authorised or agreed to, in

advance and in writing, by or on behalf of employees of the

employer; or

Chapter 6 Industrial action etc.

Part 1 Preliminary

Section 72

10 Building and Construction Industry Improvement Bill 2005 No. , 2005

(g) action by an employee if:

(i) the action was based on a reasonable concern by the

employee about an imminent risk to his or her health or

safety; and

(ii) the employee did not unreasonably fail to comply with a

direction of his or her employer to perform other

available work, whether at the same or another

workplace, that was safe for the employee to perform.

Note:

See also subsection (2), which deals with the burden of proof of the

exception in paragraph (g) of this definition.

constitutionally-connected action means building industrial action

that satisfies at least one of the following conditions:

(a) the action is taken by an organisation;

(b) the action is taken by a constitutional corporation, or

adversely affects a constitutional corporation in its capacity

as a building industry participant;

(d) the action relates to work that is regulated by an award or

certified agreement;

(e) the action relates to the negotiation or proposed negotiation

of an agreement under Division 2 of Part VIB of the

Workplace Relations Act;

(f) the action occurs in a Territory or Commonwealth place.

excluded action means:

(a) building industrial action that is protected action for the

purposes of the Workplace Relations Act (as affected by

Division 1 of Part 3 of this Chapter); or

(b) building industrial action that is AWA industrial action for

the purposes of Division 8 of Part VID of the Workplace

Relations Act.

industrially-motivated means motivated by one or more of the

following purposes, or by purposes that include one or more of the

following purposes:

(a) supporting or advancing claims against an employer in

respect of the employment of employees of that employer;

Industrial action etc. Chapter 6

Preliminary Part 1

Section 72

Building and Construction Industry Improvement Bill 2005 No. , 2005 11

(b) supporting or advancing claims by an employer in respect of

the employment of employees of that employer;

(d) disrupting the performance of work.

The employer referred to in paragraphs (a) and (b) need not be the

employer whose employees do the work to which the action

relates.

(2) Whenever a person seeks to rely on paragraph (g) of the definition

of building industrial action in subsection (1), that person has the

burden of proving that paragraph (g) applies.

(3) For the purposes of this Chapter:

(a) conduct is capable of constituting building industrial action

even if the conduct relates to part only of the duties that

persons are required to perform in the course of their

employment; and

(b) a reference to building industrial action includes a reference

to a course of conduct consisting of a series of building

industrial actions.

(4) In the definition of building industrial action in subsection (1):

industrial dispute means:

(a) an industrial dispute (including a threatened, impending or

probable industrial dispute) that is about matters pertaining to

the relationship between employers and employees; or

(b) a situation that is likely to give rise to an industrial dispute of

the kind referred to in paragraph (a); or

within an industrial association, as to the rights, status or

functions of members of the associations or association in

relation to the employment of those members; or

(d) a dispute arising between employers and employees, or

between members of different industrial associations, as to

the demarcation of functions of employees or classes of

employees; or

Industrial action etc. Chapter 6

Unlawful industrial action Part 2

Section 73

Building and Construction Industry Improvement Bill 2005 No. , 2005 13

Part 2--Unlawful industrial action

73 Definition of unlawful industrial action

Building industrial action is unlawful industrial action if:

(a) the action is industrially-motivated; and

(b) the action is constitutionally-connected action; and

74 Unlawful industrial action prohibited

A person must not engage in unlawful industrial action.

Chapter 6 Industrial action etc.

Part 3 Protected action

Division 1 Exceptions to protected action

Section 80

14 Building and Construction Industry Improvement Bill 2005 No. , 2005

Part 3--Protected action

Division 1--Exceptions to protected action

80 Action before nominal expiry date

Building industrial action is not protected action for the purposes

of the Workplace Relations Act if:

(a) the action is engaged in for the purpose of supporting or

advancing claims:

(i) against an employer; or

(ii) by an employer;

in respect of employees whose employment is, in any

respect, subject to a building certified agreement; and

(b) the action is taken before the nominal expiry date of that

agreement.

Industrial action etc. Chapter 6

Miscellaneous Part 4

Section 136

Building and Construction Industry Improvement Bill 2005 No. , 2005 15

Part 4--Miscellaneous

136 Payments in relation to periods of building industrial action

(1) Part VIIIA of the Workplace Relations Act applies in relation to

building work with the following modifications:

(a) references in that Part to industrial action are to be read as

references to building industrial action that is

industrially-motivated and constitutionally-connected;

(b) the reference in paragraph 187AD(1)(a) of the Workplace

Relations Act to 300 penalty units is to be read as a reference

to 1,000 penalty units if the person is a body corporate.

(2) Part VIIIA of the Workplace Relations Act does not apply to

building work except as provided by this section.

Chapter 12 Enforcement

Part 1 Contravention of civil penalty provisions

Section 226

16 Building and Construction Industry Improvement Bill 2005 No. , 2005

Chapter 12--Enforcement

Part 1--Contravention of civil penalty provisions

226 Definitions

(1) In this Part, unless the contrary intention appears:

appropriate court means the Federal Court, the Federal

Magistrates Court, a Supreme Court of a State or Territory or a

District Court, or County Court, of a State.

pecuniary penalty order means an order under paragraph

227(1)(a).

person, in relation to a contravention of a civil penalty provision,

includes an industrial association.

(2) For the purposes of this Part, a person who is involved in a

contravention of a civil penalty provision is treated as having

contravened that provision. For this purpose, a person is involved

in a contravention of a civil penalty provision if, and only if, the

person:

(a) has aided, abetted, counselled or procured the contravention;

(b) has induced the contravention, whether by threats or

promises or otherwise; or

indirectly, knowingly concerned in or party to the

contravention; or

(d) has conspired with others to effect the contravention.

227 Penalties etc. for contravention of civil penalty provision

(1) An appropriate court, on application by an eligible person, may

make one or more of the following orders in relation to a person

(the defendant) who has contravened a civil penalty provision:

(a) an order imposing a pecuniary penalty on the defendant;

Enforcement Chapter 12

Contravention of civil penalty provisions Part 1

Section 227

Building and Construction Industry Improvement Bill 2005 No. , 2005 17

(b) an order requiring the defendant to pay a specified amount to

another person as compensation for damage suffered by the

other person as a result of the contravention;

(2) The maximum pecuniary penalty for a civil penalty provision is

1,000 penalty units if the defendant is a body corporate and

otherwise 200 penalty units.

(3) The orders that may be made under paragraph (1)(c) include:

(a) injunctions (including interim injunctions); and

(b) any other orders that the court considers necessary to stop the

conduct or remedy its effects, including orders for the

sequestration of assets.

(4) If the contravention is a contravention of section 74, then the

power of the court to grant an injunction restraining a person (the

defendant) from engaging in conduct may be exercised:

(a) whether or not it appears to the court that the defendant

intends to engage again, or to continue to engage, in conduct

of that kind; and

(b) whether or not the defendant has previously engaged in

conduct of that kind; and

damage to any person if the defendant engages in conduct of

that kind.

(5) A pecuniary penalty is payable to the Commonwealth, or to some

other person if the court so directs. It may be recovered as a debt.

(6) Each of the following is an eligible person for the purposes of this

section:

(a) an inspector (within the meaning of the Workplace Relations

Act);

(b) a person affected by the contravention;

paragraph.

Chapter 12 Enforcement

Part 1 Contravention of civil penalty provisions

Section 228

18 Building and Construction Industry Improvement Bill 2005 No. , 2005

(7) A regulation prescribing persons for the purposes of

paragraph (6)(c) may provide that a person is prescribed only in

relation to circumstances specified in the regulation.

228 Multiple proceedings for same conduct

(1) A court must not make a pecuniary penalty order against a person

for a contravention if the person has been convicted of an offence

constituted by conduct that is substantially the same as the conduct

constituting the contravention.

(2) Proceedings for a pecuniary penalty order against a person are

stayed if:

(a) criminal proceedings are started or have already been started

against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct alleged to constitute the contravention.

The proceedings for the order may be resumed if the person is not

convicted of the offence. Otherwise, the proceedings for the order

are dismissed.

(3) Criminal proceedings may be started against a person for conduct

that is substantially the same as conduct constituting a

contravention of a civil penalty provision regardless of whether an

order under this Part has been made against the person.

(4) If a person's conduct constitutes a contravention of a civil penalty

provision and section 170MN of the Workplace Relations Act,

proceedings relating to the contravention may be instituted under

either or both of the following provisions:

(a) section 227 of this Act;

(b) section 170NF of the Workplace Relations Act.

However, the person is not liable to more than one pecuniary

penalty in respect of the same conduct.

Enforcement Chapter 12

Contravention of civil penalty provisions Part 1

Section 229

Building and Construction Industry Improvement Bill 2005 No. , 2005 19

229 Evidence given in proceedings for penalty not admissible in

criminal proceedings

Evidence of information given by an individual, or evidence of

production of documents by an individual, is not admissible in

criminal proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a pecuniary penalty order

against the individual for a contravention of a civil penalty

provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially

the same as the conduct that was claimed to constitute the

contravention.

However, this does not apply to a criminal proceeding in respect of

the falsity of the evidence given by the individual in the

proceedings for the pecuniary penalty order.

Chapter 13 Miscellaneous

Section 252

20 Building and Construction Industry Improvement Bill 2005 No. , 2005

Chapter 13--Miscellaneous

252 Jurisdiction of courts

Jurisdiction where Act allows proceedings to be instituted

(1) If a provision of this Act, expressly or by implication, authorises a

proceeding to be instituted in a particular court in relation to a

matter:

(a) that provision is taken to vest that court with jurisdiction in

that matter; and

(b) in the case of a court of a State--the jurisdiction so vested is

subject to any limits to which any other jurisdiction of the

court may be subject; and

Court--the jurisdiction so vested is not limited by any limits

to which the other jurisdiction of the court may be subject;

and

(d) in the case of a court of a Territory--the jurisdiction is vested

so far only as the Constitution permits.

Jurisdiction in relation to modified provisions of Workplace

Relations Act

(3) If:

(a) a court has jurisdiction in relation to a matter arising under a

provision of the Workplace Relations Act; and

(b) that provision is affected by this Act;

then that jurisdiction extends to a matter arising under that

provision as affected by this Act.

Exclusive jurisdiction of Federal Court for certain matters

involving organisations etc.

(7) Subject to this Act, the jurisdiction of the Federal Court in relation

to an act or omission for which an organisation, or member of an

organisation, is liable to be sued, or to be proceeded against for a

Miscellaneous Chapter 13

Section 255

Building and Construction Industry Improvement Bill 2005 No. , 2005 21

pecuniary penalty, is exclusive of the jurisdiction of any other

court created by the Parliament or any court of a State or Territory.

Referral of matters to Full Court of Federal Court

(8) At any stage of a proceeding in a matter in which the Federal Court

has jurisdiction under this Act, a single Judge exercising the

jurisdiction of the Federal Court:

(a) may refer a question of law for the opinion of a Full Court of

the Federal Court; and

(b) may, of the Judge's own motion or on the application of a

party, refer the matter to a Full Court of the Federal Court to

be heard and determined.

If a Judge so refers a matter, the Full Court of the Federal Court

may have regard to any evidence given, or arguments adduced, in

the proceeding before the Judge.

(9) The Federal Court has jurisdiction with respect to matters in

relation to which questions may be referred to it under

subsection (8).

255 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) Without limiting subsection (1), the regulations may make

provision for, and in relation to, the following:

(a) the signing or lodging of documents that are required or

permitted by this Act to be lodged with, or given to, a court;

(b) the manner in which, and the time within which, applications

under this Act may be made and dealt with;

(d) fees to be charged in relation to proceedings under this Act.

(3) Despite subsection 12(2) of the Legislative Instruments Act 2003:

(a) the first regulations made for the purposes of subsection 5(3)

may be expressed to take effect from the commencement of

that subsection; and

Chapter 13 Miscellaneous

Section 255

22 Building and Construction Industry Improvement Bill 2005 No. , 2005

(b) the first regulations made for the purposes of subsection 5(4)

may be expressed to take effect from the commencement of

that subsection; and

may be expressed to take effect from the commencement of

that subsection;

so long as those regulations are made within 120 days after the

commencement of this subsection.

Commonwealth of Australia Bills

BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT BILL 2005