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2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT
AMENDMENT (OHS) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations, the
Honourable Joe Hockey MP)
Outline
BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT
AMENDMENT (OHS) BILL 2007
OUTLINE
The purpose of this Bill is to amend the Building and Construction Industry Improvement Act
2005 (the BCII Act) to:
· extend the application of the Australian Government Building and Construction Industry
Occupational Health and Safety Accreditation Scheme (the Scheme) administered by the
Office of the Federal Safety Commissioner to cover situations where building work is
indirectly funded by the Commonwealth or a Commonwealth authority;
· ensure that persons are accredited under the Scheme at the time of entering into a contract for
building work funded by the Commonwealth or a Commonwealth authority, and that the
Commonwealth or a Commonwealth authority takes appropriate steps to see that such
persons are also accredited while the building work is being carried out;
· extend the accreditation requirement to funding arrangements beyond those currently
contemplated by the legislation;
· clarify that subsection 35(4) of the BCII Act only overrides Commonwealth provisions to the
extent of any inconsistency;
· streamline the process of appointing Federal Safety Officers; and
· allow the Federal Safety Commissioner and persons working in the Office of the Federal
Safety Commissioner to disclose information on the Scheme to the Minister.
The BCII Act establishes the powers and functions of the Federal Safety Commissioner and
provides for the establishment of the Scheme. The BCII Act also regulates the appointment and
powers of Federal Safety Officers.
The Scheme was developed in response to a recommendation by the Royal Commission into the
Building and Construction Industry. It was designed to allow the Government to use its influence
as a client and as the provider of capital to improve the construction industry's occupational
health and safety (OHS) performance.
Currently, the scheme seeks to improve OHS standards in the building and construction industry
by requiring the accreditation of persons entering into building contracts with the
Commonwealth or Commonwealth authorities. The effect of the amendments would be that the
Commonwealth or a Commonwealth authority is required to take appropriate steps to ensure that
such persons are also accredited for the duration of the building work.
FINANCIAL IMPACT STATEMENT
The measures in this Bill would have no significant impact on Commonwealth expenditure.
House of Representatives page 1 Building and Construction Industry
Improvement Amendment (OHS) Bill 2007
Notes on Clauses
NOTES ON CLAUSES
Clause 1 Short title
1.1 The enacted Bill would be known as Building and Construction Industry Improvement
Amendment (OHS) Act 2007.
Clause 2 Commencement
1.2 Proposed section 2 specifies the commencement of various provisions of the Act. The
time of commencement for particular provisions would be set out in a table in subsection 2(1).
1.3 Items 1, 2 and 4 of the table would provide that:
· the short title and commencement provisions of the Act;
· the amendments to the BCII Act relating to the appointment of consultants to the
Federal Safety Commissioner; and
· the amendments relating to the disclosure of information to the Minister
would commence on the day on which the Act receives the Royal Assent.
1.4 Item 3 of the table would provide that the main amendment to the BCII Act contained in
item 2 would commence on a single day to be fixed by Proclamation. However, if any of the
provisions are not proclaimed to commence within six months of the Act receiving the Royal
Assent, they would commence on the first day following that period of six months. It is expected
that the main amendments would be proclaimed to commence before the expiration of the six
month period.
1.5 A legislative note below the table would indicate that the table relates only to the
provisions of this Act as originally passed by the Parliament and assented to by the
Governor-General. The table would not be expanded to deal with provisions that may be inserted
in this Act after Assent.
1.6 Subsection 2(2) would provide that Column 3 of the table contains additional information
that is not part of the Act. Information in this column could be added to or edited in any
published version of this Act.
Clause 3 Schedule(s)
1.7 This clause would provide that any Act that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule operates according to its
terms.
House of Representatives page 2 Building and Construction Industry
Improvement Amendment (OHS) Bill 2007
Schedule 1 - Amendments
Schedule 1 - Amendments
Building and Construction Industry Improvement Act 2005
Item 1 - Section 34
1.8 Currently, section 34 of the BCII Act provides that the Secretary of the Department may
engage a person with suitable qualifications and experience as a consultant to the Federal Safety
Commissioner. If satisfied that a consultant engaged under section 34 is an appropriate person to
be appointed as a Federal Safety Officer, the Federal Safety Commissioner may make that
appointment under section 60.
1.9 The combined effect of section 34 and 60 of the BCII Act is that a person needs to be
engaged by the Secretary as a consultant to the Federal Safety Commissioner prior to being
appointed to the position of Federal Safety Officer. This appointment process is cumbersome.
1.10 This item amends section 34 to enable the Federal Safety Commissioner, rather than the
Secretary, to appoint consultants and determine the terms and conditions of their engagement.
The Federal Safety Commissioner may then appoint the person as a Federal Safety Officer if
satisfied that it is an appropriate appointment.
Item 2 Part 2 of Chapter 4
1.11 Item 2 would repeal the existing Part 2 of Chapter 4 and replace it with a new Part 2 of
Chapter 4.
1.12 Subsection 35(4) currently prohibits the Commonwealth or a Commonwealth authority
from entering into a contract for building work with an unaccredited person. In its current form
the accreditation requirement contained in this section does not extend to building work
indirectly funded by the Commonwealth or a Commonwealth authority, nor does it require an
accredited person to carry out the work.
1.13 New subsection 35(4) would prohibit the Commonwealth or a Commonwealth authority
from funding building work unless the contract is with builders who are accredited and would
further require that the Commonwealth or Commonwealth authority takes appropriate steps to
ensure that builders will be accredited while the work is carried out.
1.14 Some examples of steps that would be considered appropriate are placing a term in the
contract that would require the builder to maintain accreditation, or making inquiries about the
duration of the builder's accreditation.
1.15 This accreditation requirement would not apply to contracts which have been prescribed
under the regulations.
1.16 New subsection 35(5) would describe the circumstances under which the Commonwealth
or Commonwealth authority would be considered to be funding building work for the purposes
of this section. This would include occasions where the Commonwealth or Commonwealth
authority:
· directly or indirectly funds or finances the building work; or
House of Representatives page 3 Building and Construction Industry
Improvement Amendment (OHS) Bill 2007
Schedule 1 - Amendments
· facilitates the carrying out of the building work by entering into, or otherwise funding or
financing (directly or indirectly) a pre-construction agreement that relates to the building
work.
1.17 A pre-construction agreement is defined in new subsection 35(8) as an agreement to
lease or transfer land, a building, or a part of a building on the condition that building work will
be carried out on the land, the building or the part of the building.
1.18 Examples of indirectly procured building work are:
· Commonwealth-State funding agreements where the Commonwealth provides funding to
a State or a third party who then arranges for the building work to be carried out;
· works carried out by joint ventures involving the Commonwealth or Commonwealth
authorities. These may be incorporated or unincorporated;
· works carried out by a wholly owned subsidiary of a Commonwealth authority with
money loaned by the Commonwealth authority.
1.19 Current subsection 35(5) of the BCII Act overrides all Commonwealth laws except those
expressly referring to it, regardless of their relationship with subsection 35(4). New subsection
(6) would clarify that subsection 35(4) only overrides Commonwealth law to the extent of any
inconsistency, unless the other provision expressly refers to this section.
1.20 Similar to current subsection 35(6) new subsection 35(7) would provide that a
contravention of subsection 35(4) would not affect the validity of anything done by the
Commonwealth or Commonwealth authority in relation to building work.
1.21 Subsection (8) would define relevant terms used in this section. This subsection would
replicate the present definition of accredited person, Commonwealth authority and
Commonwealth provision. The definition Commonwealth building contract is no longer
necessary and would be removed. A definition of builder would be inserted.
1.22 A builder would mean a person who carries out any of the building work. To avoid the
need for future amendment of the BCII Act a broad definition of builder has been adopted that
would on its face extend the accreditation requirement beyond head contractors to persons they
contract with. However, new subsection 35(4) provides for regulations to be made to prescribe
contracts to which the accreditation requirement will not apply, and it is intended that regulations
will be made to limit the accreditation requirement to head contractors.
Item 3 After paragraph 65(5)(a)
1.23 Section 65 of the BCII Act contains provisions dealing with the protection of the
confidentiality of information. These provisions apply generally to information obtained for the
purposes of the BCII Act and in the course of official employment (`protected information') and
extend to both the Federal Safety Commissioner and the Australian Building and Construction
Commissioner (the ABC Commissioner) and related staff.
1.24 Subsection 65(2) makes it an offence for entrusted persons to make a record of, or
disclose, protected information. The maximum penalty is imprisonment for 12 months.
House of Representatives page 4 Building and Construction Industry
Improvement Amendment (OHS) Bill 2007
Schedule 1 - Amendments
1.25 Subsection 65(3) of the BCII Act contains exceptions to the prohibition in subsection
65(2) that apply in circumstances where the entrusted person is a `designated official' at the time
of the recording or disclosure. The definition of a `designated official' in section 65(8) includes
both the Federal Safety Commissioner and persons working within the Office of the Federal
Safety Commissioner.
1.26 Section 65(5) limits the information that may be disclosed to any Minister to the
disclosures that are required or authorised by sections 12 or 14 of the BCII Act. Section 12 and
14 of the BCII Act provide for the reporting to the Minister in certain circumstances. These
sections only allow the ABC Commissioner, not the Federal Safety Commissioner, to provide
reports to the Minister. Consequently the Federal Safety Commissioner cannot disclose
information to the Minister under the Act.
1.27 Item 3 would insert new paragraph 65(5)(aa) which would have the effect that the
prohibition on disclosures to the Minister do not apply in relation to the Federal Safety
Commissioner, Federal Safety Officers, an APS employee assisting the Federal Safety
Commissioner or a person engaged as a consultant under section 34 (or a person acting under a
delegation under the BCII Act from one of those persons). Those designated officials would be
able to disclose information to the Minister providing it falls within one of the existing
exceptions in subsection 65(3).
Item 4 Subsection 65(8)
1.28 Proposed item 4 contains an amendment consequential to the amendment in item 3.
Item 5 Transitional Consultants
1.29 Item 5 would contain transitional arrangements for persons who, at the time item 1
commences, are engaged as consultants under section 34 of the BCII Act. This item would
provide that such persons are engaged under section 34 of the BCII Act as amended by item 1.
House of Representatives page 5 Building and Construction Industry
Improvement Amendment (OHS) Bill 2007
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