BUILDING AND CONSTRUCTION INDUSTRY (IMPROVING PRODUCTIVITY) BILL 2013

2013

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Building and Construction Industry

(Improving Productivity) Bill 2013

No. , 2013

(Employment)

A Bill for an Act to re-establish the Australian

Building and Construction Commissioner, and for

related purposes

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Contents

Chapter 1--Preliminary

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

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

Main object of this Act ...................................................................... 2

Simplified outline of this Act ............................................................. 3

Definitions ......................................................................................... 4

Meaning of building work ................................................................ 13

Meaning of industrial action ........................................................... 14

Meaning of protected industrial action ........................................... 16

Meaning of ancillary site ................................................................. 16

Extension of Act to Christmas Island and Cocos (Keeling)

Islands .............................................................................................. 17

Extension of Act to EEZ and waters above continental shelf .......... 17

Geographical application of offences .............................................. 17

Act to bind Crown ........................................................................... 17

Chapter 2--The Australian Building and

Construction Commissioner

Part 1--Simplified outline of this Chapter

Simplified outline of this Chapter .................................................... 19

Part 2--The Australian Building and Construction

Commissioner

ABC Commissioner and Deputy ABC Commissioners ................... 20

Functions of ABC Commissioner .................................................... 20

Minister's directions to ABC Commissioner ................................... 21

Minister may require reports ............................................................ 21

Delegation by ABC Commissioner ................................................. 22

Annual report ................................................................................... 22

Appointment .................................................................................... 23

Acting appointments ........................................................................ 24

Remuneration ................................................................................... 24

Leave of absence .............................................................................. 24

Engaging in other paid employment ................................................ 25

Disclosure of interests ...................................................................... 25

Resignation ...................................................................................... 25

Termination...................................................................................... 25

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Part 3--The Australian Building and Construction

Commission

The Australian Building and Construction Commission ................. 27

Staff ................................................................................................. 27

Persons assisting the ABC Commissioner ....................................... 27

Consultants ...................................................................................... 28

Chapter 3--The Building Code

Simplified outline of this Chapter .................................................... 29

Minister may issue Building Code ................................................... 29

Building industry participants to report on compliance with

Building Code .................................................................................. 30

Chapter 4--The Federal Safety Commissioner

Part 1--Simplified outline of this Chapter

Simplified outline of this Chapter .................................................... 31

Part 2--The Federal Safety Commissioner

Federal Safety Commissioner .......................................................... 32

Functions of Federal Safety Commissioner ..................................... 32

Minister's directions to Federal Safety Commissioner .................... 32

Delegation by Federal Safety Commissioner ................................... 33

Acting Federal Safety Commissioner .............................................. 34

Consultants ...................................................................................... 34

Part 3--WHS Accreditation Scheme for Commonwealth

building work

WHS Accreditation Scheme for Commonwealth building

work ................................................................................................. 35

Chapter 5--Unlawful action

Simplified outline of this Chapter .................................................... 37

Action to which this Chapter applies ............................................... 37

Unlawful industrial action prohibited .............................................. 37

Unlawful picketing prohibited ......................................................... 38

Injunction against unlawful industrial action or picket .................... 38

Payments relating to periods of industrial action ............................. 39

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iii

Chapter 6--Coercion, discrimination and

unenforceable agreements

Part 1--Simplified outline of this Chapter

Simplified outline of this Chapter .................................................... 40

Part 2--Coercion and discrimination

Division 1--Civil penalties

Action to which this Part applies ..................................................... 41

Coercion relating to allocation of duties etc. to particular

person ............................................................................................... 41

Coercion relating to superannuation ................................................ 42

Coercion of persons to make, vary, terminate etc. enterprise

agreements etc. ................................................................................ 42

Coverage by particular instruments ................................................. 43

Division 2--General provisions

Multiple reasons for action .............................................................. 44

Reason for action to be presumed unless proved otherwise ............. 44

Advising, encouraging, inciting or coercing action ......................... 44

Part 3--Unenforceable agreements

Project agreements not enforceable ................................................. 46

Chapter 7--Powers to obtain information

Part 1--Simplified outline of this Chapter

Simplified outline of this Chapter .................................................... 47

Part 2--Examination notices

ABC Commissioner may give examination notice .......................... 48

Offence for failing to comply with examination notice ................... 49

Payment for expenses incurred in attending an examination ........... 50

ABC Commissioner must notify Commonwealth

Ombudsman of issue of examination notice .................................... 50

Review and report by Commonwealth Ombudsman ....................... 50

Part 3--Powers of Australian Building and Construction

Inspectors and Federal Safety Officers

Division 1--Appointment of Australian Building and

Construction Inspectors

Australian Building and Construction Inspectors ............................ 53

Identity cards for inspectors ............................................................. 54

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Division 2--Appointment of Federal Safety Officers

Federal Safety Officers .................................................................... 56

Identity cards for Federal Safety Officers ........................................ 57

Division 3--Powers of authorised officers

Purposes for which powers of authorised officers may be

exercised .......................................................................................... 58

When powers of authorised officers may be exercised .................... 59

Power of authorised officers to enter premises ................................ 59

Showing identity card before entry .................................................. 61

Powers of authorised officers while on premises ............................. 61

Persons assisting authorised officers ............................................... 62

Power to ask for person's name and address ................................... 62

Power to require persons to produce records or documents ............. 63

Hindering or obstructing authorised officers ................................... 63

Power to keep records or documents ............................................... 64

Chapter 8--Enforcement

Part 1--Simplified outline of this Chapter

Simplified outline of this Chapter .................................................... 65

Part 2--Orders for contraventions of civil remedy provisions

Division 1--Obtaining an order for contravention of civil

remedy provision

Penalty etc. for contravention of civil remedy provision ................. 66

Interest up to judgement .................................................................. 68

Conduct contravening more than one civil remedy provision ......... 68

Multiple contraventions ................................................................... 68

Proceedings may be heard together ................................................. 68

Civil evidence and procedure rules for proceedings relating

to contraventions of civil remedy provisions ................................... 69

Division 2--Civil proceedings and criminal proceedings

Civil proceedings after criminal proceedings .................................. 70

Criminal proceedings during civil proceedings ............................... 70

Criminal proceedings after civil proceedings .................................. 70

Evidence given in civil proceedings not admissible in

criminal proceedings ........................................................................ 70

Civil double jeopardy ....................................................................... 71

Division 3--Miscellaneous

Ancillary contravention of civil remedy provisions ......................... 72

Exceptions etc. to civil remedy provisions--burden of proof ......... 72

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Liability of bodies corporate ............................................................ 72

Actions of building associations ...................................................... 73

Unincorporated building associations .............................................. 74

Capacity, state of mind etc. of person being coerced etc. ................ 74

Part 3--Other powers of enforcement for inspectors

Enforceable undertakings relating to contraventions of civil

remedy provisions ............................................................................ 76

Compliance notices .......................................................................... 77

100

Review of compliance notices ......................................................... 79

Chapter 9--Miscellaneous

Part 1--Simplified outline of this Chapter

101

Simplified outline of this Chapter .................................................... 80

Part 2--Provisions relating to information

Division 1--Provisions relating to requirements to provide

information

102

Self-incrimination etc. ..................................................................... 81

103

Protection from liability relating to examination notices ................. 82

104

Certain records and documents are inadmissible ............................. 82

Division 2--Protecting information acquired for the purposes of

this Act

105

Disclosure of information by the ABC Commissioner or

Federal Safety Commissioner .......................................................... 84

106

Confidentiality of information obtained under an

examination notice ........................................................................... 86

107

Reports not to include information relating to an individual's

affairs ............................................................................................... 88

Part 3--Powers of ABC Commissioner etc.

108

ABC Commissioner may publicise non-compliance ....................... 90

109

ABC Commissioner may intervene in court proceedings ................ 90

110

ABC Commissioner may make submissions in FWC

proceedings ...................................................................................... 90

111

ABC Commissioner and other inspectors may institute

proceedings under the FW Act, etc. ................................................. 91

112

General Manager of the FWC must keep ABC

Commissioner informed .................................................................. 91

Part 4--Provisions relating to courts

113

Jurisdiction of the Federal Court ...................................................... 93

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114

Exercising jurisdiction in the Fair Work Division of the

Federal Court ................................................................................... 93

115

No limitation on Federal Court's powers ......................................... 94

116

Appeals from relevant State or Territory courts .............................. 94

117

Court not to require undertaking as to damages ............................... 95

Part 5--Miscellaneous

118

ABC Commissioner etc. not liable for conduct in good faith .......... 96

119

Delegation by Minister .................................................................... 96

120

Rules and regulations ....................................................................... 97

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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 this Act receives the Royal Assent.

2. Sections 3 to

120

The later of:

(a) 1 January 2014; and

(b) the day after this Act receives the Royal

Assent.

Note:

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

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Main object of this Act

(1) The main object of this Act is to provide an improved workplace

relations framework for building work to ensure that building work

is carried out fairly, efficiently and productively for the benefit of

all building industry participants and for the benefit of the

Australian economy as a whole.

(2) This Act aims to achieve its main object by the following means:

(a) improving the bargaining framework so as to further

encourage genuine bargaining at the workplace level;

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(b) promoting respect for the rule of law;

participants;

(d) ensuring that building industry participants are accountable

for their unlawful conduct;

(e) providing effective means for investigating and enforcing this

Act, designated building laws (to the extent that those laws

relate to building work) and the Building Code;

(f) improving work health and safety in building work;

(g) encouraging the pursuit of high levels of employment in the

building industry;

(h) providing assistance and advice to building industry

participants in connection with their rights and obligations

under this Act, designated building laws and the Building

Code.

4 Simplified outline of this Act

This Act regulates certain conduct of building industry participants

who perform building work.

The Australian Building and Construction Commissioner, and

those who are part of the Australian Building and Construction

Commission, exercise powers and perform functions in relation to

building work. For example, the ABC Commissioner and other

inspectors investigate, monitor and promote compliance with this

Act, the Building Code and designated building laws. Designated

building laws are specified workplace relations laws and industrial

instruments under those laws. The Building Code is a code of

practice issued under this Act in respect of building work that

certain persons must comply with.

The Federal Safety Commissioner, and Federal Safety Officers, are

responsible for promoting work health and safety in relation to

building work. They also have a role in relation to the Work Health

and Safety Accreditation Scheme, which is a scheme prescribed by

the rules for accrediting persons who carry out building work

funded by the Commonwealth or a Commonwealth authority.

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Unlawful industrial action and unlawful picketing are prohibited by

this Act, and anyone can obtain an injunction to prevent this

happening. Other action relating to coercion and discrimination is

also prohibited by this Act.

The ABC Commissioner, inspectors and Federal Safety Officers

are given powers to obtain information. The ABC Commissioner

can demand information by giving a person an examination notice.

Inspectors and Federal Safety Officers can also enter premises for

certain purposes. There are protections for, and limitations on the

use of, information that is provided under this Act.

Inspectors and affected persons are able to apply to certain courts

when a person contravenes a civil remedy provision. The court

may order a pecuniary penalty, grant an injunction or make another

order. The ABC Commissioner and inspectors have other powers

to enforce compliance with this Act (such as being able to accept

enforceable undertakings).

The ABC Commissioner can intervene in, or institute, court or

FWC proceedings. The ABC Commissioner can also publicise

non-compliance with this Act, designated building laws and the

Building Code.

5 Definitions

In this Act:

ABC Commissioner means the Australian Building and

Construction Commissioner referred to in subsection 15(1).

accredited person means a person who is accredited under the

WHS Accreditation Scheme.

ancillary site has the meaning given by section 9.

assistant means:

(a) a Deputy ABC Commissioner; or

(b) an inspector; or

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information or produce documents under paragraph 61(2)(a)

or (b):

(i) a member of staff referred to in subsection 30(1); or

(ii) a consultant under section 32.

authorised applicant for an order relating to a contravention of a

civil remedy provision means:

(a) the ABC Commissioner or any other inspector; or

(b) a person affected by the contravention; or

paragraph.

Rules prescribing persons for the purposes of paragraph (c) may

provide that a person is prescribed only in relation to circumstances

specified in the rules.

authorised officer means an inspector or a Federal Safety Officer.

bargaining representative has the meaning given by the FW Act.

builder has the meaning given by subsection 43(8).

building agreement means an agreement that applies to building

work (whether or not it also applies to other work).

building association means an industrial association whose rules

allow membership by members of 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 Code means the code of practice referred to in section 34.

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.

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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 enterprise agreement means an enterprise agreement that

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

work).

building industry law enforcement has the meaning given by

section 106.

building industry participant means any of the following:

(a) a building employer;

(b) a building employee;

(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.

building matter means a matter that relates to a building industry

participant.

building site means a site at which building work is being or may

be performed.

building work has the meaning given by section 6.

civil penalty order means an order under paragraph 81(1)(a).

civil remedy provision means:

(a) a Grade A civil remedy provision; or

(b) a Grade B civil remedy provision.

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Commission means the Australian Building and Construction

Commission referred to in subsection 29(2).

Commissioner means the ABC Commissioner or a Deputy ABC

Commissioner.

Commonwealth authority has the meaning given by the

Commonwealth Authorities and Companies Act 1997.

Commonwealth industrial instrument means any of the following:

(a) an award or transitional award (within the meaning of the

FW Transitional Act);

(b) a workplace agreement (within the meaning of the FW

Transitional Act);

(within the meaning of the FW Transitional Act);

(d) an order of the Australian Industrial Relations Commission

or the FWC;

(e) the Australian Fair Pay and Conditions Standard (within the

meaning of the FW Transitional Act);

(f) a fair work instrument (within the meaning of the FW Act);

(g) the National Employment Standards (within the meaning of

the FW Act).

Commonwealth Ombudsman means the person for the time being

holding office as Ombudsman under the Ombudsman Act 1976.

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

of the Constitution, other than the seat of government.

compliance powers means functions and powers conferred on an

authorised officer.

compliance purposes means:

(a) for an inspector--the purposes referred to in

subsection 70(1); or

(b) for a Federal Safety Officer--the purposes referred to in

subsection 70(2).

conduct includes an omission.

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constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

constitutionally-covered entity means:

(a) a constitutional corporation; or

(b) the Commonwealth; or

(d) a body corporate incorporated in a Territory; or

(e) an organisation.

copy a document includes take extracts from the document.

Deputy ABC Commissioner means a Deputy Australian Building

and Construction Commissioner referred to in subsection 15(2).

designated building law means:

(a) the Independent Contractors Act 2006, the FW Act or the

FW Transitional Act; or

(b) a Commonwealth industrial instrument.

designated official means any of the following:

(a) the ABC Commissioner;

(b) a Deputy ABC Commissioner;

(d) a member of staff referred to in subsection 30(1);

(e) a person assisting the ABC Commissioner under section 31;

(f) a person engaged as a consultant under section 32;

(g) the General Manager of the FWC;

(h) the Commonwealth Ombudsman, a Deputy Commonwealth

Ombudsman or a member of the staff referred to in

subsection 31(1) of the Ombudsman Act 1976;

(i) a person acting under a delegation under this Act from a

person referred to in any of the preceding paragraphs.

disclose means divulge or communicate.

employee has its ordinary meaning, and:

(a) includes an individual who is usually an employee within that

meaning; but

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(b) does not include an individual on a vocational placement.

employer has its ordinary meaning, and includes a person that is

usually an employer within that meaning.

enterprise agreement has the same meaning as in the FW Act.

entrusted person has the meaning given by subsection 106(1).

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

examination means an attendance by a person, before the ABC

Commissioner or an assistant, where the person is required as a

result of an examination notice to answer questions relevant to an

investigation.

examination notice means an examination notice issued under

Part 2 of Chapter 7.

Federal Circuit Court means the Federal Circuit Court of

Australia.

Federal Court means the Federal Court of Australia.

Federal Safety Commissioner means the Federal Safety

Commissioner referred to in section 37.

Federal Safety Officer means:

(a) the Federal Safety Commissioner; or

(b) a person appointed as a Federal Safety Officer under

subsection 68(1).

full-time Commissioner means:

(a) the ABC Commissioner; or

(b) a Deputy ABC Commissioner appointed on a full-time basis.

FW Act means the Fair Work Act 2009.

FWC means the Fair Work Commission.

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FW Transitional Act means the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

Grade A civil remedy provision means:

(a) a section of this Act (other than a section that is divided into

subsections) that has a note at its foot stating "Grade A civil

penalty"; or

(b) a subsection of this Act that has a note at its foot stating

"Grade A civil penalty".

Note:

The maximum penalty for a Grade A civil remedy provision is 1,000

penalty units for bodies corporate, and otherwise 200 penalty units

(see subsection 81(2)).

Grade B civil remedy provision means:

(a) a section of this Act (other than a section that is divided into

subsections) that has a note at its foot stating "Grade B civil

penalty"; or

(b) a subsection of this Act that has a note at its foot stating

"Grade B civil penalty".

Note:

The maximum penalty for a Grade B civil remedy provision is 100

penalty units for bodies corporate, and otherwise 20 penalty units (see

subsection 81(2)).

independent contractor has the same meaning as in the FW Act.

industrial action has the meaning given by section 7.

industrial association means:

(a) an association of employees or independent contractors, or

both, or an association of employers, that is registered or

recognised as such an association (however described) under

a workplace law (within the meaning of the FW Act); or

(b) an association of employees, or independent contractors, or

both, a purpose of which is the protection and promotion of

their interests in matters concerning their employment, or

their interests as independent contractors; or

the protection and promotion of their interests in matters

concerning employment, independent contractors or both;

and includes:

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(d) a branch of such an association; and

(e) an organisation; and

(f) a branch of an organisation.

inspector means:

(a) the ABC Commissioner; or

(b) a person appointed as an Australian Building and

Construction Inspector under subsection 66(1).

land has a meaning affected by subsection 6(6).

lawyer means a person who is admitted to the legal profession by a

Supreme Court of a State or Territory.

lockout has the meaning given by subsection 7(3).

occupier has the same meaning as in the FW Act.

officer, in relation to an organisation or industrial association,

means a person who holds an office in, or is an employee of, the

organisation or association.

official employment has the meaning given by subsection 106(8).

organisation has the same meaning as in the Fair Work

(Registered Organisations) Act 2009.

part-time Commissioner means a Deputy ABC Commissioner

appointed on a part-time basis.

person has a meaning affected by section 96.

pre-construction agreement has the meaning given by

subsection 43(8).

premises has the same meaning as in the FW Act.

protected industrial action has the meaning given by section 8.

protected information means information that:

(a) was disclosed or obtained under an examination notice or at

an examination; and

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(b) was obtained by an entrusted person in the course of official

employment; and

protected person has the meaning given by subsection 8(3).

relevant court means each of the following courts:

(a) the Federal Court;

(b) the Federal Circuit Court;

(d) a District Court, or County Court, of a State.

relevant State or Territory court means each of the following

courts:

(a) a District, County or Local Court of a State;

(b) a magistrates court;

(d) the Industrial Court of New South Wales;

(e) any other State or Territory court that is prescribed by the

rules.

resources platform means an artificial island, installation or

structure attached to the seabed for the purpose of exploration for,

or exploitation of, resources or for other economic purposes.

Secretary means the Secretary of the Department.

single enterprise has the meaning given by subsection 59(2).

this Act includes the rules and the regulations.

unlawful industrial action: action is unlawful industrial action if:

(a) the action is industrial action (see section 7); and

(b) the action is not protected industrial action (see section 8).

unlawful picket has the meaning given by subsection 47(2).

WHS Accreditation Scheme means the Work Health and Safety

Accreditation Scheme referred to in section 43.

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6 Meaning of building work

(1) Subject to subsections (3), (4) and (5), building work means any of

the following activities:

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

demolition or dismantling of buildings, structures or works

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; or

(ii) the laying of foundations; or

(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; or

(v) site restoration, landscaping and the provision of

roadways and other access works;

(e) transporting or supplying goods, to be used in work covered

by paragraph (a), (b), (c) or (d), directly to building sites

(including any resources platform) where that work is being

or may be performed;

but does not include any of the following:

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

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

of minerals, including tunnelling or boring, or constructing

underground works, for that purpose;

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(h) 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.

(2) To avoid doubt, paragraphs (1)(f) and (g) do not prevent this Act

from applying to building work (within the meaning of

paragraphs (1)(a) to (e)) that is performed on land in which there is

an interest relating to the mining of oil, gas or minerals.

Note:

This Act extends to any resources platform, and to certain ships, in the

exclusive economic zone or in the waters above the continental shelf

(see section 11).

(3) Paragraph (1)(h) 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.

(4) Subject to subsection (5), building work includes any activity that

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

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

the rules for the purposes of this subsection.

(6) In this Act:

land includes land beneath water.

7 Meaning of industrial action

(1) Industrial action is action of any of the following kinds:

(a) the performance of building work by an employee in a

manner different from that in which it is customarily

performed, or the adoption of a practice in relation to

building work by an employee, the result of which is a

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

the work;

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

work by an employee or on the acceptance of or offering for

building work by an employee;

(i) by employees to attend work, where that work is

building work; or

(ii) to perform any building work at all by employees who

attend work, where that work is building work;

(d) the lockout of employees from their work by their employer,

where that work is building work.

Note:

In Automotive, Food, Metals, Engineering, Printing and Kindred

Industries Union v The Age Company Limited, PR946290, the Full

Bench of the Australian Industrial Relations Commission considered

the nature of industrial action and noted that action will not be

industrial in character if it stands completely outside the area of

disputation and bargaining.

(2) However, industrial action does not include the following:

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

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

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

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

employer;

(i) the action was based on a reasonable concern of 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 and appropriate for the

employee to perform.

When there is a lockout

(3) There is a lockout of employees from their work by an employer if

the employer prevents the employees from performing work under

their contracts of employment without terminating those contracts.

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Burden of proof on employee taking action based on concern to

health or safety

(4) Whenever a person seeks to rely on paragraph (2)(c), the person

has the burden of proving the paragraph applies.

8 Meaning of protected industrial action

(1) Action is protected industrial action if the action is protected

industrial action within the meaning of the FW Act.

(2) However, action is not protected industrial action if the action is

protected industrial action (within the meaning of the FW Act) for

a proposed enterprise agreement but:

(a) the action is engaged in in concert with one or more persons

who are not protected persons; or

(b) the organisers include one or more persons who are not

protected persons.

(3) The following persons are protected persons:

(a) an employee organisation (within the meaning of the FW

Act) that is a bargaining representative for the proposed

enterprise agreement;

(b) a member of such an organisation who is employed by the

employer and who will be covered by the proposed enterprise

agreement;

(d) an employee who is a bargaining representative for the

proposed enterprise agreement.

9 Meaning of ancillary site

A site is an ancillary site if the site is:

(a) a site from which goods are transported or supplied, or

building industry participants are transported, directly to a

building site; or

(b) a site where a building industry participant, who is

performing building work, or managing building work that is

Preliminary Chapter 1

Section 10

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Building and Construction Industry (Improving Productivity) Bill 2013

being performed, on a building site, does work relating to the

building work.

10 Extension of Act to Christmas Island and Cocos (Keeling) Islands

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

Territory of Cocos (Keeling) Islands.

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

to the Territory of Cocos (Keeling) Islands with any modifications

that are prescribed by the rules.

11 Extension of Act to EEZ and waters above continental shelf

(1) This Act extends to or in relation to:

(a) any resources platform in the exclusive economic zone or in

the waters above the continental shelf; and

(b) any ship, in the exclusive economic zone or in the waters

above the continental shelf, that is travelling to or from (or

both to and from) an Australian port.

Extensions prescribed by rules

(2) Without limiting subsection (1), if the rules prescribe further

extensions of this Act, or specified provisions of this Act, to or in

relation to the exclusive economic zone or to the waters above the

continental shelf, then this Act extends accordingly.

12 Geographical application of offences

Division 14 (standard geographical jurisdiction) of the Criminal

Code does not apply in relation to an offence against this Act.

Note:

The extended geographical application that section 11 gives to this

Act will apply to the offences in this Act.

13 Act to bind Crown

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

The Australian Building and Construction Commissioner Chapter 2

Simplified outline of this Chapter Part 1

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Building and Construction Industry (Improving Productivity) Bill 2013

Chapter 2--The Australian Building and

Construction Commissioner

Part 1--Simplified outline of this Chapter

14 Simplified outline of this Chapter

Many of the functions and powers under this Act are conferred on

the Australian Building and Construction Commissioner (or the

ABC Commissioner) and those who are part of the Australian

Building and Construction Commission.

The Commissioner is appointed under and the Commission is

established by this Chapter. This Chapter also includes the terms

and conditions of the Commissioner, the staff of the Commission,

and the people who assist the Commissioner.

Chapter 2 The Australian Building and Construction Commissioner

Part 2 The Australian Building and Construction Commissioner

Section 15

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Part 2--The Australian Building and Construction

Commissioner

15 ABC Commissioner and Deputy ABC Commissioners

(1) There is to be an Australian Building and Construction

Commissioner.

(2) The ABC Commissioner is to be assisted by the number of Deputy

Australian Building and Construction Commissioners appointed

from time to time.

16 Functions of ABC Commissioner

The ABC Commissioner has the following functions:

(a) monitoring and promoting appropriate standards of conduct

by building industry participants, including by:

(i) monitoring and promoting compliance with this Act,

designated building laws and the Building Code by

building industry participants; and

(ii) referring matters to other relevant agencies and bodies;

(b) investigating suspected contraventions, by building industry

participants, of this Act, designated building laws or the

Building Code;

this Act;

(d) providing assistance and advice to building industry

participants regarding their rights and obligations under this

Act, designated building laws and the Building Code;

(e) providing representation to a building industry participant

who is, or might become, a party to a proceeding under this

Act, a designated building law or the Building Code, if the

ABC Commissioner considers that providing the

representation would promote the enforcement of this Act,

the law or the Code;

The Australian Building and Construction Commissioner Chapter 2

The Australian Building and Construction Commissioner Part 2

Section 17

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(f) disseminating information about this Act, designated building

laws and the Building Code, and about other matters

affecting building industry participants, including

disseminating information by facilitating ongoing discussions

with building industry participants;

(g) any other functions conferred on the ABC Commissioner by

this Act or by another Act.

17 Minister's directions to ABC Commissioner

(1) The Minister may, by legislative instrument, give written directions

to the ABC Commissioner specifying the manner in which the

ABC Commissioner must exercise the powers or perform the

functions of the ABC Commissioner under this Act.

(2) The Minister must not give a direction under subsection (1) about a

particular case.

(3) The ABC Commissioner must comply with a direction under

subsection (1).

(4) Despite anything in section 44 of the Legislative Instruments Act

2003, section 42 of that Act (disallowance of legislative

instruments) applies to a direction under subsection (1) of this

section.

18 Minister may require reports

(1) The Minister may, in writing, direct the ABC Commissioner to

give the Minister specified reports relating to the ABC

Commissioner's functions and powers.

Note:

See also section 107, which restricts the disclosure of personal

information in a report.

(2) The ABC Commissioner must comply with the direction.

(3) A direction under subsection (1) is not a legislative instrument.

Chapter 2 The Australian Building and Construction Commissioner

Part 2 The Australian Building and Construction Commissioner

Section 19

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

19 Delegation by ABC Commissioner

(1) The ABC Commissioner may, in writing, delegate all or any of his

or her powers and functions under this Act (other than his or her

functions or powers as an inspector) to:

(a) a Deputy ABC Commissioner; or

(b) an inspector; or

(d) a person (whether or not an SES employee) prescribed by the

rules for the purposes of this paragraph.

(2) Powers or functions under section 61 (ABC Commissioner may

give examination notice) may only be delegated to:

(a) a Deputy ABC Commissioner; or

(b) if no Deputy ABC Commissioner is currently appointed--an

SES employee or acting SES employee.

(3) In exercising powers or performing functions under a delegation,

the delegate must comply with any directions of the ABC

Commissioner.

(4) As soon as practicable after delegating any power or function

under this section, the ABC Commissioner must publish details of

the delegation.

(5) The ABC Commissioner may give a direction for the purposes of

subsection (3).

(6) A written direction under subsection (5) that is of general

application is a legislative instrument.

(7) A written direction under subsection (5) that relates to a particular

case is not a legislative instrument.

20 Annual report

(1) As soon as practicable after the end of each financial year, the

ABC Commissioner must prepare and give to the Minister a report

on the operations of the ABC Commissioner during that year.

(2) The report must include:

The Australian Building and Construction Commissioner Chapter 2

The Australian Building and Construction Commissioner Part 2

Section 21

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Building and Construction Industry (Improving Productivity) Bill 2013

(a) details of the number, and type, of matters that were

investigated by the ABC Commissioner during the financial

year; and

(b) details of assistance and advice provided during the financial

year to building industry participants; and

complied with during the financial year.

Note:

See also section 107, which restricts the disclosure of personal

information in a report.

(3) The report must also include:

(a) details of directions given by the Minister during the

financial year under section 17 or 18; and

(b) details of delegations by the ABC Commissioner under

section 19 during the financial year.

(4) The Minister may notify the ABC Commissioner in writing of

particular work health and safety matters that need not be covered

in the paragraph (2)(c) part of the report.

(5) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

its receipt by the Minister.

21 Appointment

(1) A Commissioner is to be appointed by the Minister by written

instrument.

(2) The appointment:

(a) is to be on a full-time basis for the ABC Commissioner; and

(b) is to be on a full-time basis or part-time basis for a Deputy

ABC Commissioner.

(3) The Minister must not appoint a person as a Commissioner unless

the Minister is satisfied that the person:

(a) has suitable qualifications or experience; and

(b) is of good character.

Chapter 2 The Australian Building and Construction Commissioner

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Section 22

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(4) A Commissioner holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

(5) A Commissioner holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined

by the Minister.

22 Acting appointments

The Minister may, by written instrument, appoint a person to act as

the ABC Commissioner:

(a) during a vacancy in the office of ABC Commissioner

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when the ABC

Commissioner:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

23 Remuneration

(1) A Commissioner is to be paid the remuneration that is determined

by the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, a Commissioner is to

be paid the remuneration that is prescribed by the rules.

(2) A Commissioner is to be paid the allowances that are prescribed by

the rules.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

24 Leave of absence

(1) A full-time Commissioner has the recreation leave entitlements

that are determined by the Remuneration Tribunal.

The Australian Building and Construction Commissioner Chapter 2

The Australian Building and Construction Commissioner Part 2

Section 25

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(2) The Minister may grant a full-time Commissioner leave of

absence, other than recreation leave, on the terms and conditions as

to remuneration or otherwise that the Minister determines.

(3) The Minister may grant a part-time Commissioner leave of absence

(including recreation leave) on the terms and conditions as to

remuneration or otherwise that the Minister determines.

25 Engaging in other paid employment

(1) A full-time Commissioner must not engage in paid employment

outside the duties of his or her office without the Minister's

approval.

(2) A part-time Commissioner must not engage in any paid

employment that conflicts or may conflict with the proper

performance of the Commissioner's duties.

26 Disclosure of interests

A Commissioner must give written notice to the Minister of all

material personal interests that the Commissioner has or acquires

and that conflict or could conflict with the proper performance of

the Commissioner's functions.

27 Resignation

(1) A Commissioner may resign his or her appointment by giving the

Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

28 Termination

(1) The Minister may terminate the appointment of a Commissioner:

(a) for misbehaviour; or

(b) if the Commissioner is unable to perform the duties of his or

her office because of physical or mental incapacity.

Chapter 2 The Australian Building and Construction Commissioner

Part 2 The Australian Building and Construction Commissioner

Section 28

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

(2) The Minister must terminate the appointment of a Commissioner

if:

(a) the Commissioner:

(i) becomes bankrupt; or

(ii) takes steps to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with one or more of his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of one or more of his or her creditors; or

(b) for a full-time Commissioner:

(i) the Commissioner is absent from duty, except on leave

of absence, for 14 consecutive days or for 28 days in

any 12 months; or

(ii) the Commissioner engages, except with the Minister's

approval, in paid employment outside the duties of his

or her office (see subsection 25(1)); or

paid employment that conflicts or could conflict with the

proper performance of his or her duties (see

subsection 25(2)); or

(d) in any case--the Commissioner fails, without reasonable

excuse, to comply with section 26 (disclosure of interests).

The Australian Building and Construction Commissioner Chapter 2

The Australian Building and Construction Commission Part 3

Section 29

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Part 3--The Australian Building and Construction

Commission

29 The Australian Building and Construction Commission

(1) This section applies to the body, known as the Office of the Fair

Work Building Industry Inspectorate, that was established by

section 26J of the Fair Work (Building Industry) Act 2012 (as in

force before the commencement of this section).

(2) That body continues in existence by force of this section, under and

subject to the provisions of this Act, under the name of the

Australian Building and Construction Commission.

30 Staff

(1) The staff of the Commission are to be persons engaged under the

Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the ABC Commissioner and the staff of the Commission

together constitute a Statutory Agency; and

(b) the ABC Commissioner is the Head of that Statutory Agency.

31 Persons assisting the ABC Commissioner

The ABC Commissioner may also be assisted:

(a) by employees of Agencies (within the meaning of the Public

Service Act 1999); or

(b) by officers or employees of a State or Territory; or

Commonwealth, a State or a Territory;

whose services are made available to the ABC Commissioner in

connection with the performance of any of his or her functions.

Note 1:

For example, State or Territory employees could be made available to

assist the ABC Commissioner in providing education in a particular

region.

Chapter 2 The Australian Building and Construction Commissioner

Part 3 The Australian Building and Construction Commission

Section 32

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Note 2:

See also section 71 of the Public Service Act 1999, which makes

provision for State employees to perform services in an Agency (as

defined in that Act).

32 Consultants

(1) The ABC Commissioner may, on behalf of the Commonwealth,

engage persons having suitable qualifications and experience as

consultants to the ABC Commissioner.

(2) The terms and conditions of the engagement of a person are those

determined by the ABC Commissioner in writing.

The Building Code Chapter 3

Section 33

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Building and Construction Industry (Improving Productivity) Bill 2013

Chapter 3--The Building Code

33 Simplified outline of this Chapter

The Minister may issue a Building Code under this Chapter. The

Building Code is a code of practice that certain persons (such as

constitutional corporations and the Commonwealth) must comply

with in respect of building work.

The ABC Commissioner can require a person to report on his or

her compliance with the Building Code.

34 Minister may issue Building Code

(1) The Minister may, by legislative instrument, issue one or more

documents that together constitute a code of practice that is to be

complied with by persons in respect of building work.

Note:

The code is called the Building Code (see the definition of Building

Code in section 5).

(2) Without limiting subsection (1), the Minister may issue one or

more documents under that subsection in relation to work health

and safety matters relating to building work.

(3) The Building Code cannot require a person to comply with the

Code in respect of particular building work (the current work)

unless:

(a) the person is a building contractor that is a constitutional

corporation; or

(b) the person is a building industry participant and the current

work is to be carried out in a Territory or Commonwealth

place; or

authority.

Chapter 3 The Building Code

Section 35

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

35 Building industry participants to report on compliance with

Building Code

(1) The ABC Commissioner may give a written notice to a person who

is required to comply with the Building Code in respect of

particular building work.

Note:

See subsection 34(3) for the persons who are required to comply with

the Building Code.

(2) The notice may direct the person to give a written report to the

ABC Commissioner containing specified information about the

extent to which the person complied with the Building Code in

respect of that building work.

(3) The person must comply with the notice within the period specified

by the notice. The period must be at least 14 days.

Note:

Grade B civil penalty.

(4) A notice under subsection (1) is not a legislative instrument.

The Federal Safety Commissioner Chapter 4

Simplified outline of this Chapter Part 1

Section 36

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Building and Construction Industry (Improving Productivity) Bill 2013

Chapter 4--The Federal Safety

Commissioner

Part 1--Simplified outline of this Chapter

36 Simplified outline of this Chapter

The Federal Safety Commissioner is an SES position in the

Department. The Commissioner has 2 main functions: in relation to

work health and safety in building work and the Work Health and

Safety Accreditation Scheme.

The Work Health and Safety Accreditation Scheme is a scheme

prescribed by the rules. Any person who wishes to carry out

building work funded by the Commonwealth or a Commonwealth

authority must be accredited by the Federal Safety Commissioner

in accordance with the scheme.

Chapter 4 The Federal Safety Commissioner

Part 2 The Federal Safety Commissioner

Section 37

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Part 2--The Federal Safety Commissioner

37 Federal Safety Commissioner

(1) The Secretary must, by writing, designate a position in the

Department as the position of Federal Safety Commissioner.

Note:

For creation of positions, see section 77 of the Public Service Act

1999.

(2) That position can only be occupied by an SES employee.

(3) The Federal Safety Commissioner is the SES employee who

occupies, or the acting SES employee who is acting in, that

position.

(4) An instrument under subsection (1) is not a legislative instrument.

38 Functions of Federal Safety Commissioner

The Federal Safety Commissioner has the following functions:

(a) promoting work health and safety in relation to building work

undertaken by a constitutional corporation, the

Commonwealth or a Commonwealth authority;

(b) performing functions as the accreditation authority for the

purposes of the WHS Accreditation Scheme;

and disseminating information about the WHS Accreditation

Scheme;

(d) referring matters to other relevant agencies and bodies;

(e) any other functions conferred on the Federal Safety

Commissioner by this Act or by another Act.

39 Minister's directions to Federal Safety Commissioner

(1) The Minister may, by legislative instrument, give written directions

to the Federal Safety Commissioner specifying the manner in

which the Federal Safety Commissioner must exercise the powers

The Federal Safety Commissioner Chapter 4

The Federal Safety Commissioner Part 2

Section 40

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Building and Construction Industry (Improving Productivity) Bill 2013

or perform the functions of the Federal Safety Commissioner under

this Act.

(2) The Minister must not give a direction under subsection (1) about a

particular case.

(3) The Federal Safety Commissioner must comply with a direction

under subsection (1).

(4) Despite anything in section 44 of the Legislative Instruments Act

2003, section 42 of that Act (disallowance of legislative

instruments) applies to a direction under subsection (1) of this

section.

40 Delegation by Federal Safety Commissioner

(1) The Federal Safety Commissioner may, in writing, delegate all or

any of his or her powers and functions under this Act to:

(a) a Federal Safety Officer; or

(b) an SES employee or acting SES employee; or

rules for the purposes of this paragraph.

(2) In exercising powers or performing functions under a delegation,

the delegate must comply with any directions of the Federal Safety

Commissioner.

(3) As soon as practicable after delegating any power or function

under this section, the Federal Safety Commissioner must publish

details of the delegation.

(4) The Federal Safety Commissioner may give a direction for the

purposes of subsection (2).

(5) A written direction under subsection (4) that is of general

application is a legislative instrument.

(6) A written direction under subsection (4) that relates to a particular

case is not a legislative instrument.

Chapter 4 The Federal Safety Commissioner

Part 2 The Federal Safety Commissioner

Section 41

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

41 Acting Federal Safety Commissioner

(1) If an SES employee, or acting SES employee, is acting in the

position of Federal Safety Commissioner:

(a) the employee has and may exercise all the powers, and is to

perform all the functions and duties, of the occupier of the

position of Federal Safety Commissioner; and

(b) this Act, and any other law of the Commonwealth, applies in

relation to the employee as if the employee were the occupier

of the position of Federal Safety Commissioner.

(2) Anything done by or in relation to a person purporting to act in the

position of Federal Safety Commissioner is not invalid merely

because the occasion to act had not arisen or had ceased.

42 Consultants

(1) The Federal Safety Commissioner may, on behalf of the

Commonwealth, engage persons having suitable qualifications and

experience as consultants to the Federal Safety Commissioner.

(2) The terms and conditions of the engagement of a person are those

determined by the Federal Safety Commissioner in writing.

The Federal Safety Commissioner Chapter 4

WHS Accreditation Scheme for Commonwealth building work Part 3

Section 43

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Part 3--WHS Accreditation Scheme for

Commonwealth building work

43 WHS Accreditation Scheme for Commonwealth building work

Accreditation scheme

(1) The rules may prescribe an accreditation scheme, to be known as

the Work Health and Safety Accreditation Scheme, for persons

who wish to carry out building work funded by the Commonwealth

or a Commonwealth authority.

(2) The rules must provide for the Federal Safety Commissioner to be

the accrediting authority under the scheme.

(3) The rules may prescribe fees for applications made under the rules.

Commonwealth building work to be carried out by accredited

persons

(4) The Commonwealth or a Commonwealth authority must not fund

building work unless:

(a) contracts for the building work will be entered into with

builders who are accredited persons; and

(b) at the time of the funding, the Commonwealth or

Commonwealth authority takes appropriate steps to ensure

that builders will be accredited persons when they carry out

the building work.

This subsection does not apply to building work prescribed by the

rules.

(5) For the purposes of this section, the Commonwealth or a

Commonwealth authority funds building work if it:

(a) pays for, or otherwise funds or finances, the building work

(whether directly or indirectly); or

(b) facilitates the carrying out of the building work by entering

into, or otherwise funding or financing (whether directly or

Chapter 4 The Federal Safety Commissioner

Part 3 WHS Accreditation Scheme for Commonwealth building work

Section 43

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

indirectly), a pre-construction agreement that relates to the

building work.

(6) If another provision of a law of the Commonwealth is inconsistent

with subsection (4), subsection (4) prevails to the extent of the

inconsistency unless the other provision expressly refers to this

section.

(7) Failure to comply with subsection (4) does not affect the validity of

anything done by the Commonwealth or a Commonwealth

authority in relation to building work.

Definitions

(8) In this Act:

builder, in relation to building work, means a person who carries

out any of the building work.

pre-construction agreement means an agreement to lease or

transfer land, a building or a part of a building on the condition, or

on conditions that include the condition, that building work will be

carried out on the land, the building or the part of the building.

Unlawful action Chapter 5

Section 44

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Chapter 5--Unlawful action

44 Simplified outline of this Chapter

Anyone can apply for an injunction under this Chapter to restrain a

person from organising or engaging in unlawful industrial action or

an unlawful picket that relates to building work. The unlawful

industrial action or picket must also relate to a

constitutionally-covered entity (such as if the action is taken by or

against a constitutionally-covered entity).

Unlawful industrial action includes bans on working, employees

failing to attend work and employers locking out employees.

The provisions of the FW Act relating to strike pay also apply in

relation to unlawful industrial action.

45 Action to which this Chapter applies

This Chapter applies to the following action:

(a) action taken by a constitutionally-covered entity;

(b) action that affects, is capable of affecting or is taken with

intent to affect the activities, functions, relationships or

business of a constitutionally-covered entity;

action taken with intent to coerce, a constitutionally-covered

entity:

(i) to take, or not take, particular action in relation to

another person; or

(ii) to threaten to take, or not take, particular action in

relation to another person.

46 Unlawful industrial action prohibited

A person must not organise or engage in unlawful industrial action.

Note:

Grade A civil penalty.

Chapter 5 Unlawful action

Section 47

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

47 Unlawful picketing prohibited

(1) A person must not organise or engage in an unlawful picket.

Note:

Grade A civil penalty.

(2) An unlawful picket is action:

(a) that:

(i) has the purpose of preventing or restricting a person

from accessing or leaving a building site or an ancillary

site; or

(ii) directly prevents or restricts a person accessing or

leaving a building site or an ancillary site; or

(iii) would reasonably be expected to intimidate a person

accessing or leaving a building site or an ancillary site;

and

(b) that:

(i) is motivated for the purpose of supporting or advancing

claims against a building industry participant in respect

of the employment of employees or the engagement of

contractors by the building industry participant; or

(ii) is motivated for the purpose of advancing industrial

objectives of a building association; or

(iii) is unlawful (apart from this section).

Note:

See also Division 2 of Part 2 of Chapter 6 (reason for action and

coercion).

48 Injunction against unlawful industrial action or picket

(1) Any person may apply to a relevant court for an injunction under

this section.

Note:

An authorised applicant may also apply under section 81 for an

injunction.

(2) The court may grant an injunction in the terms the court considers

appropriate if the court is satisfied that unlawful industrial action,

or an unlawful picket, is:

(a) occurring; or

(b) threatened, impending or probable; or

Unlawful action Chapter 5

Section 49

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Building and Construction Industry (Improving Productivity) Bill 2013

(3) The court may grant an interim injunction pending determination

of an application under subsection (1) if the court is satisfied that it

is desirable to do so.

(4) 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.

49 Payments relating to periods of industrial action

Division 9 of Part 3-3 of the FW Act (payment relating to periods

of industrial action) applies in relation to industrial action relating

to building work with the following modifications:

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

as references to industrial action within the meaning of this

Act to which this Chapter applies under section 45;

(b) references in that Division to protected industrial action are

to be read as references to protected industrial action within

the meaning of this Act;

which any of items 21 to 24 of the table set out in section 539

of the FW Act relates is a body corporate--then, for the

purposes of subsection 539(2) and paragraph 546(2)(b) of

that Act, the pecuniary penalty must not be more than 1,000

penalty units.

Chapter 6 Coercion, discrimination and unenforceable agreements

Part 1 Simplified outline of this Chapter

Section 50

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Chapter 6--Coercion, discrimination and

unenforceable agreements

Part 1--Simplified outline of this Chapter

50 Simplified outline of this Chapter

It is unlawful for a person to do something (or threaten to do

something) intending to coerce another person:

(a)

to employ a person, engage a contractor or allocate

duties or responsibilities relating to building work; or

(b)

in relation to the choice of superannuation fund for the

superannuation contributions of a building employee; or

(c)

to agree to make, vary or terminate a Commonwealth

industrial instrument relating to building work.

It is also unlawful for a person to take action against a building

employer because building employees are or are not covered by a

Commonwealth industrial instrument.

However, action is only unlawful if the action is connected to a

constitutionally-covered entity.

A court can make an order under Chapter 8 if a person is alleged to

have taken unlawful action. Division 3 of Part 2 of Chapter 8 has

rules relating to coercion. There are also rules relating to a person's

reasons for action and to coercion in Division 2 of Part 2 of this

Chapter.

An agreement (other than a Commonwealth industrial instrument)

may be unenforceable if building employees who are not all

employed in a single enterprise enter into the agreement to secure

standard employment conditions in respect of building work that

the employees carry out at a particular building site or sites.

Coercion, discrimination and unenforceable agreements Chapter 6

Coercion and discrimination Part 2

Civil penalties Division 1

Section 51

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Part 2--Coercion and discrimination

Division 1--Civil penalties

51 Action to which this Part applies

This Part applies to the following action:

(a) action taken by a constitutionally-covered entity;

(b) action that affects, is capable of affecting or is taken with

intent to affect the activities, functions, relationships or

business of a constitutionally-covered entity;

action taken with intent to coerce, a constitutionally-covered

entity:

(i) to take, or not take, particular action in relation to

another person; or

(ii) to threaten to take, or not take, particular action in

relation to another person.

52 Coercion relating to allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take,

any action against another person with intent to coerce the other

person, or a third person, to:

(a) employ, or not employ, a particular person as a building

employee; or

(b) engage, or not engage, a particular independent contractor as

a building contractor; or

a building employee or building contractor; or

(d) designate a building employee or building contractor as

having, or not having, particular duties or responsibilities.

Note 1:

See also Division 2 (reason for action and coercion).

Note 2:

Grade A civil penalty.

Chapter 6 Coercion, discrimination and unenforceable agreements

Part 2 Coercion and discrimination

Division 1 Civil penalties

Section 53

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

53 Coercion relating to superannuation

(1) A person must not:

(a) organise or take, or threaten to organise or take, any action;

(b) refrain, or threaten to refrain, from taking action;

with intent:

superannuation fund or scheme to receive the employee's

superannuation contributions; or

(d) to coerce a building employer to pay to a particular

superannuation fund or scheme the employer's

superannuation contributions for building employees.

Note 1:

See also Division 2 (reason for action and coercion).

Note 2:

Grade A civil penalty.

(2) Subsection (1) does not apply to protected industrial action.

54 Coercion of persons to make, vary, terminate etc. enterprise

agreements etc.

(1) A person must not:

(a) organise or take, or threaten to organise or take, any action;

(b) refrain, or threaten to refrain, from taking any action;

with intent to coerce another person, or with intent to apply undue

pressure to another person, to agree, or not to agree:

(d) to approve any of the things mentioned in paragraph (c).

Note 1:

See also Division 2 (reason for action and coercion).

Note 2:

Grade A civil penalty.

(2) Subsection (1) does not apply to protected industrial action.

(3) An employer must not coerce, or attempt to coerce, an employee of

the employer in relation to who is to be, or is not to be, the

Coercion, discrimination and unenforceable agreements Chapter 6

Coercion and discrimination Part 2

Civil penalties Division 1

Section 55

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

employee's bargaining representative for a proposed enterprise

agreement.

Note:

Grade A civil penalty.

(4) An employer must not apply, or attempt to apply, undue pressure

to an employee of the employer in relation to who is to be, or is not

to be, the employee's bargaining representative for a proposed

enterprise agreement.

Note:

Grade A civil penalty.

(5) To the extent that section 343 of the FW Act relates to:

(a) the making, varying or terminating of an enterprise

agreement; or

(b) the appointment, or termination of appointment, of a

bargaining representative for a proposed enterprise

agreement;

that section does not apply if the agreement is a building enterprise

agreement.

55 Coverage by particular instruments

(1) A person must not take action against a building employer because:

(a) building employees of the building employer are covered, or

not covered, by a Commonwealth industrial instrument; or

(b) it is proposed that building employees of the building

employer be covered, or not be covered, by a Commonwealth

industrial instrument.

Note 1:

See also Division 2 (reason for action).

Note 2:

Grade A civil penalty.

(2) Subsection (1) does not apply to protected industrial action.

Chapter 6 Coercion, discrimination and unenforceable agreements

Part 2 Coercion and discrimination

Division 2 General provisions

Section 56

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Division 2--General provisions

56 Multiple reasons for action

For the purposes of section 47 (unlawful picketing prohibited) and

this Part, a person takes action for a particular reason if the reasons

for the action include that reason.

57 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of section 47

(unlawful picketing prohibited) or a civil remedy provision in

this Part, it is alleged that a person took, or is taking, action

for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would

constitute a contravention of the section or provision;

it is presumed, in proceedings arising from the application, that the

action was, or is being, taken for that reason or with that intent,

unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to an interim injunction.

58 Advising, encouraging, inciting or coercing action

(1) If:

(a) for a particular reason (the first person's reason), a person

advises, encourages or incites, or takes any action with intent

to coerce, a second person to take action; and

(b) the action, if taken by the second person for the first person's

reason, would contravene section 47 (unlawful picketing

prohibited) or a civil remedy provision in this Part;

the first person is taken to have contravened the section or

provision.

Note:

See also section 97 (capacity, state of mind etc. of person being

coerced etc.).

Chapter 6 Coercion, discrimination and unenforceable agreements

Part 3 Unenforceable agreements

Section 59

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Part 3--Unenforceable agreements

59 Project agreements not enforceable

(1) An agreement is unenforceable to the extent that it relates to

building employees if:

(a) the agreement is entered into with the intention of securing

standard employment conditions for building employees in

respect of building work that they carry out at a particular

building site or sites; and

(b) not all the employees are employed in a single enterprise; and

least some of the employees are employees of that

corporation; and

(d) the agreement is not a Commonwealth industrial instrument.

(2) A single enterprise is:

(a) a business, project or undertaking that is carried on by an

employer; or

(b) the activities carried on by:

(i) the Commonwealth, a State or a Territory; or

(ii) a body, association, office or other entity established for

a public purpose by or under a law of the

Commonwealth, a State or a Territory; or

(iii) any other body in which the Commonwealth, a State or

a Territory has a controlling interest.

Powers to obtain information Chapter 7

Simplified outline of this Chapter Part 1

Section 60

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Chapter 7--Powers to obtain information

Part 1--Simplified outline of this Chapter

60 Simplified outline of this Chapter

The ABC Commissioner may require a person to give information,

produce documents or answer questions relating to an investigation

of a suspected contravention of this Act or a designated building

law by a building industry participant. The Commissioner does this

by giving a person an examination notice. The Commonwealth

Ombudsman oversees the exercise of this power. A person who

attends an examination may be entitled to have paid any expenses

incurred in attending the examination.

Australian Building and Construction Inspectors and Federal

Safety Officers (who together are called authorised officers) are

appointed under this Chapter. Authorised officers have powers,

including the power to enter premises, the power to ask a person's

name and address and the power to require persons to produce

records or documents.

Intentionally hindering or obstructing an authorised officer who is

exercising any of these powers is prohibited.

Chapter 7 Powers to obtain information

Part 2 Examination notices

Section 61

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Part 2--Examination notices

61 ABC Commissioner may give examination notice

ABC Commissioner may require information, documents etc.

(1) The ABC Commissioner may give a written notice to a person if

the ABC Commissioner reasonably believes that the person:

(a) has information or documents relevant to an investigation by

an inspector into a suspected contravention, by a building

industry participant, of this Act or a designated building law;

(b) is capable of giving evidence that is relevant to such an

investigation.

(2) The notice may require the person:

(a) to give the information to the ABC Commissioner, or to an

assistant, by the time, and in the manner and form, specified

in the notice; or

(b) to produce the documents to the ABC Commissioner, or to an

assistant, by the time, and in the manner, specified in the

notice; or

the time and place specified in the notice, and answer

questions relevant to the investigation.

The time specified under paragraph (a), (b) or (c) must be at least

14 days after the notice is given.

Note:

See also sections 62 (offence for failing to comply with examination

notice), 79 (power to keep records or documents), 102

(self-incrimination) and 103 (protection from liability).

(3) The ABC Commissioner may vary a notice given to a person by

specifying, in writing, a later time which is at least 14 days after

the notice is first given to the person. This subsection does not

limit the application of subsection 33(3) of the Acts Interpretation

Act 1901.

Powers to obtain information Chapter 7

Examination notices Part 2

Section 62

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Legal representation

(4) A person attending before the ABC Commissioner, or before an

assistant, as mentioned in paragraph (2)(c) may be represented by a

lawyer if the person chooses.

Oath or affirmation

(5) The ABC Commissioner, or an assistant, may require the

information or answers to be verified by, or given on, oath or

affirmation, and either orally or in writing. For that purpose, the

ABC Commissioner, or an assistant, may administer the oath or

affirmation.

(6) The oath or affirmation is an oath or affirmation that the

information or answers are or will be true.

Effect of other laws

(7) The operation of this section is not limited by any provision of any

other law that prohibits the disclosure of information (whether the

provision is enacted before or after the commencement of this

section), except to the extent that the provision expressly excludes

the operation of this section.

62 Offence for failing to comply with examination notice

A person commits an offence if:

(a) the person has been given an examination notice; and

(b) the person fails:

(i) to give information or produce a document in

accordance with the notice; or

(ii) to attend to answer questions in accordance with the

notice; or

(iii) to take an oath or make an affirmation, when required to

do so under subsection 61(5); or

(iv) to answer questions relevant to the investigation while

attending as required by the examination notice.

Penalty: Imprisonment for 6 months.

Chapter 7 Powers to obtain information

Part 2 Examination notices

Section 63

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

63 Payment for expenses incurred in attending an examination

(1) A person who attends an examination as required by an

examination notice is (subject to subsection (2)) entitled to be paid

fees and allowances, fixed by or calculated in accordance with the

rules, for reasonable expenses (other than legal expenses) incurred

by the person in attending the examination.

(2) The person is not entitled to be paid for expenses under this section

unless the person:

(a) applies, in writing, to the ABC Commissioner for payment of

the expenses within 3 months after the examination is

completed; and

(b) provides to the ABC Commissioner sufficient evidence to

establish that the person incurred the expenses.

(3) An application under paragraph (2)(a) must:

(a) if a form is prescribed by the rules--be in that form; and

(b) include any information prescribed by the rules.

64 ABC Commissioner must notify Commonwealth Ombudsman of

issue of examination notice

As soon as practicable after an examination notice has been issued,

the ABC Commissioner must:

(a) notify the Commonwealth Ombudsman that the examination

notice has been issued; and

(b) give the Commonwealth Ombudsman a copy of the

examination notice, and any later variation of the

examination notice.

65 Review and report by Commonwealth Ombudsman

ABC Commissioner to give report etc. to Commonwealth

Ombudsman

(1) As soon as practicable after an examination of a person is

completed, the ABC Commissioner must give the Commonwealth

Ombudsman:

Powers to obtain information Chapter 7

Examination notices Part 2

Section 65

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(a) a report about the examination; and

(b) a video recording of the examination; and

(2) The report under paragraph (1)(a) must include:

(a) a copy of the examination notice under which the

examination was conducted; and

(b) the following information:

(i) the time and place at which the examination was

conducted;

(ii) the name of each person who was present at the

examination;

(iii) any other information prescribed by the rules.

Review of exercise of powers under this Part

(3) The Commonwealth Ombudsman:

(a) must review the exercise of powers under this Part by the

ABC Commissioner and any assistant; and

(b) may do anything incidental or conducive to the performance

of that function.

(4) The Commonwealth Ombudsman's powers under the Ombudsman

Act 1976 extend to a review by the Ombudsman under this section

as if the review were an investigation by the Ombudsman under

that Act.

(5) The exercise of those powers in relation to a review by the

Ombudsman under this section is taken, for all purposes, to be an

exercise of powers under the Ombudsman Act 1976.

Commonwealth Ombudsman to report to Parliament

(6) As soon as practicable after the end of each financial year, the

Commonwealth Ombudsman must prepare and present to the

Parliament a report about examinations conducted during that year.

The report must include the results of reviews conducted under this

section during that year.

Powers to obtain information Chapter 7

Powers of Australian Building and Construction Inspectors and Federal Safety Officers

Part 3

Appointment of Australian Building and Construction Inspectors Division 1

Section 66

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Part 3--Powers of Australian Building and

Construction Inspectors and Federal

Safety Officers

Division 1--Appointment of Australian Building and

Construction Inspectors

66 Australian Building and Construction Inspectors

(1) The ABC Commissioner may, by written instrument, appoint any

of the following persons as an Australian Building and

Construction Inspector:

(a) a person who is an employee of the Commonwealth or who

holds an office or appointment under a law of the

Commonwealth;

(b) a person who is an employee of a State or Territory or who

holds an office or appointment under a law of a State or

Territory;

section 32.

(2) The ABC Commissioner must not appoint a person referred to in

paragraph (1)(c) as an inspector unless the ABC Commissioner is

satisfied that the person is an appropriate person to be appointed as

an inspector.

(3) The ABC Commissioner is an inspector by force of this subsection.

(4) In exercising powers or performing functions as an inspector, an

inspector appointed under subsection (1) must comply with any

directions of the ABC Commissioner.

(5) The ABC Commissioner may give directions for the purposes of

subsection (4).

(6) A written direction under subsection (5) that is of general

application is a legislative instrument.

Chapter 7 Powers to obtain information

Part 3 Powers of Australian Building and Construction Inspectors and Federal Safety

Officers

Division 1 Appointment of Australian Building and Construction Inspectors

Section 67

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

(7) A written direction under subsection (5) that relates to a particular

case is not a legislative instrument.

67 Identity cards for inspectors

(1) The ABC Commissioner must issue an identity card to an inspector

appointed under subsection 66(1).

(2) The Minister must issue an identity card to the ABC

Commissioner.

Form of identity card

(3) The identity card must:

(a) be in the form approved by the ABC Commissioner; and

(b) contain a recent photograph of the person to whom it is

issued.

Inspector must carry card

(4) An inspector must carry the identity card at all times when

performing functions or exercising powers as an inspector.

Note:

The ABC Commissioner is an inspector (see the definition of

inspector in section 5).

Offence

(5) A person commits an offence of strict liability if:

(a) the person ceases to be an inspector; and

(b) the person does not, within 14 days of so ceasing, return the

person's identity card to the ABC Commissioner or the

Minister (as the case requires).

Penalty: 1 penalty unit.

Exception--card lost or destroyed

(6) Subsection (5) does not apply if the identity card was lost or

destroyed.

Chapter 7 Powers to obtain information

Part 3 Powers of Australian Building and Construction Inspectors and Federal Safety

Officers

Division 2 Appointment of Federal Safety Officers

Section 68

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Division 2--Appointment of Federal Safety Officers

68 Federal Safety Officers

(1) The Federal Safety Commissioner may, by written instrument,

appoint any of the following persons as a Federal Safety Officer:

(a) a person who is an employee of the Commonwealth or who

holds an office or appointment under a law of the

Commonwealth;

(b) a person who is an employee of a State or Territory or who

holds an office or appointment under a law of a State or

Territory;

(2) The Federal Safety Commissioner must not appoint a person

referred to in paragraph (1)(c) as a Federal Safety Officer unless

the Federal Safety Commissioner is satisfied that the person is an

appropriate person to be appointed as a Federal Safety Officer.

(3) The Federal Safety Commissioner is a Federal Safety Officer by

force of this subsection.

(4) In exercising powers or performing functions as a Federal Safety

Officer, a Federal Safety Officer appointed under subsection (1)

must comply with any directions of the Federal Safety

Commissioner.

(5) The Federal Safety Commissioner may give directions for the

purposes of subsection (4).

(6) A written direction under subsection (5) that is of general

application is a legislative instrument.

(7) A written direction under subsection (5) that relates to a particular

case is not a legislative instrument.

Powers to obtain information Chapter 7

Powers of Australian Building and Construction Inspectors and Federal Safety Officers

Part 3

Appointment of Federal Safety Officers Division 2

Section 69

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

69 Identity cards for Federal Safety Officers

(1) The Federal Safety Commissioner must issue an identity card to a

Federal Safety Officer appointed under subsection 68(1).

(2) The Minister must issue an identity card to the Federal Safety

Commissioner.

Form of identity card

(3) The identity card must:

(a) be in the form approved by the Federal Safety Commissioner;

and

(b) contain a recent photograph of the person to whom it is

issued.

Federal Safety Officer must carry card

(4) A Federal Safety Officer must carry the identity card at all times

when performing functions or exercising powers as a Federal

Safety Officer.

Note:

The Federal Safety Commissioner is a Federal Safety Officer (see the

definition of Federal Safety Officer in section 5).

Offence

(5) A person commits an offence of strict liability if:

(a) the person ceases to be a Federal Safety Officer; and

(b) the person does not, within 14 days of so ceasing, return the

person's identity card to the Federal Safety Commissioner or

the Minister (as the case requires).

Penalty: 1 penalty unit.

Exception--card lost or destroyed

(6) Subsection (5) does not apply if the identity card was lost or

destroyed.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6) (see subsection 13.3(3) of the Criminal Code).

Chapter 7 Powers to obtain information

Part 3 Powers of Australian Building and Construction Inspectors and Federal Safety

Officers

Division 3 Powers of authorised officers

Section 70

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Division 3--Powers of authorised officers

70 Purposes for which powers of authorised officers may be

exercised

Compliance purposes for inspectors

(1) An inspector may exercise compliance powers (other than a power

under section 98 or 99) in relation to a building matter for one or

more of the following purposes:

(a) ascertaining whether this Act, a designated building law or

the Building Code is being, or has been, complied with;

(b) ascertaining whether a court order relating to this Act, a

designated building law or the Building Code has been

complied with, or is being complied with, by a building

industry participant;

or powers on inspectors;

(d) the purposes of a provision of another Act that confers

functions or powers on inspectors.

Note:

The powers in sections 98 (enforceable undertakings) and 99

(compliance notices) may be exercised for the purpose of remedying

the effects of certain contraventions.

Compliance purposes for Federal Safety Officers

(2) A Federal Safety Officer may exercise compliance powers for one

or more of the following purposes:

(a) ascertaining whether a constitutional corporation, the

Commonwealth or a Commonwealth authority that is an

applicant for accreditation meets the accreditation

requirements;

(b) ascertaining whether a constitutional corporation, the

Commonwealth or a Commonwealth authority that is an

accredited person has complied, or is complying, with

conditions of the accreditation;

Powers to obtain information Chapter 7

Powers of Australian Building and Construction Inspectors and Federal Safety Officers

Part 3

Powers of authorised officers Division 3

Section 71

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

complying, with conditions of the accreditation in respect of

building work in a Territory or Commonwealth place.

Functions and powers subject to terms and conditions

(3) The functions and powers of an authorised officer are subject to

any conditions and restrictions specified in his or her instrument of

appointment.

Note:

Inspectors and Federal Safety Officers are authorised officers (see the

definition of authorised officer in section 5).

71 When powers of authorised officers may be exercised

An authorised officer may exercise compliance powers:

(a) at any time during working hours; or

(b) at any other time, if the authorised officer reasonably

believes that it is necessary to do so for compliance purposes.

72 Power of authorised officers to enter premises

Powers of inspectors to enter premises

(1) An inspector may, without force:

(a) enter premises, if the inspector reasonably believes that:

(i) this Act, a designated building law or the Building Code

applies to building work that is being, or applied to

building work that has been, performed on the premises;

(ii) a breach by a building industry participant of this Act, a

designated building law or the Building Code has

occurred, is occurring or is likely to occur; or

(b) enter business premises, if the inspector reasonably believes

that:

(i) there are records or documents relevant to compliance

purposes on the premises, or accessible from a computer

on the premises; or

Chapter 7 Powers to obtain information

Part 3 Powers of Australian Building and Construction Inspectors and Federal Safety

Officers

Division 3 Powers of authorised officers

Section 72

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

(ii) a person who ordinarily performs work or conducts

business at the premises has information relevant to

compliance purposes.

Note:

Intentionally hindering or obstructing an inspector is prohibited (see

section 78).

Powers of Federal Safety Officers to enter premises

(2) A Federal Safety Officer may, without force:

(a) enter premises, if the officer reasonably believes that building

work is being carried out, or has been carried out by an

applicant or accredited person referred to in subsection 70(2);

(b) enter business premises, if the officer reasonably believes

that:

(i) there are records or documents relevant to compliance

purposes on the premises, or accessible from a computer

on the premises; or

(ii) a person who ordinarily performs work or conducts

business at the premises has information relevant to

compliance purposes.

Note:

Intentionally hindering or obstructing a Federal Safety Officer is

prohibited (see section 78).

Limitation on authorised officers entering premises

(3) Despite subparagraph (1)(a)(i) and paragraph (2)(a), an authorised

officer must not enter a part of premises that is used for residential

purposes unless the officer reasonably believes that the work

referred to in that subparagraph or paragraph is being performed on

that part of the premises.

(4) Despite subparagraphs (1)(b)(ii) and (2)(b)(ii), an authorised

officer must not enter business premises under either of those

subparagraphs if the authorised officer reasonably believes that the

person concerned is not at those premises.

Powers to obtain information Chapter 7

Powers of Australian Building and Construction Inspectors and Federal Safety Officers

Part 3

Powers of authorised officers Division 3

Section 73

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

73 Showing identity card before entry

An authorised officer must, before or as soon as practicable after

entering premises, show his or her identity card to the occupier, or

another person who apparently represents the occupier, if the

occupier or other person is present at the premises.

74 Powers of authorised officers while on premises

Entry other than under subparagraph 72(1)(b)(ii) or (2)(b)(ii)

(1) An authorised officer who enters premises under

paragraph 72(1)(a) or (2)(a), or subparagraph 72(1)(b)(i) or

(2)(b)(i), may exercise one or more of the following powers while

on the premises:

(a) inspect any work, process or object;

(b) interview any person;

of, or access to, a record or document;

(d) require a person who has custody of, or access to, a record or

document to produce the record or document to the

authorised officer either while the authorised officer is on the

premises, or within a specified period;

(e) inspect, and make copies of, any record or document that:

(i) is on the premises; or

(ii) is accessible from a computer that is on the premises;

(f) take samples of any goods or substances in accordance with

any procedures prescribed by the rules.

Note:

See also sections 79 (power to keep records or documents), 102

(self-incrimination) and 104 (certain records and documents are

inadmissible).

Entry under subparagraph 72(1)(b)(ii) or (2)(b)(ii)

(2) An authorised officer who enters premises under

subparagraph 72(1)(b)(ii) or (2)(b)(ii) may interview the person

concerned while on those premises.

Chapter 7 Powers to obtain information

Part 3 Powers of Australian Building and Construction Inspectors and Federal Safety

Officers

Division 3 Powers of authorised officers

Section 75

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Refusing or failing to participate in an interview

(3) A refusal or failure by a person to participate in an interview under

this section is not to be treated as conduct covered by section 149.1

of the Criminal Code.

75 Persons assisting authorised officers

(1) A person may accompany an authorised officer onto premises to

assist the authorised officer if the ABC Commissioner or Federal

Safety Commissioner (as the case requires) is satisfied that:

(a) the assistance is necessary and reasonable; and

(b) the person assisting has suitable qualifications and experience

to properly assist the authorised officer.

(2) The person assisting:

(a) may do such things on the premises as the authorised officer

requires to assist the authorised officer to exercise

compliance powers; but

(b) must not do anything that the authorised officer does not

have power to do.

(3) Anything done by the person assisting is taken for all purposes to

have been done by the authorised officer.

76 Power to ask for person's name and address

(1) An authorised officer may require a person to tell the authorised

officer the person's name and address if the authorised officer

reasonably believes that the person has contravened a civil remedy

provision.

(2) If the authorised officer reasonably believes that the name or

address is false, the authorised officer may require the person to

give evidence of its correctness.

(3) The person must comply with a requirement under subsection (1)

or (2) if:

Powers to obtain information Chapter 7

Powers of Australian Building and Construction Inspectors and Federal Safety Officers

Part 3

Powers of authorised officers Division 3

Section 77

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(a) the authorised officer advises the person that he or she may

contravene a civil remedy provision if he or she fails to

comply with the requirement; and

(b) the authorised officer shows his or her identity card to the

person.

Note:

Grade B civil penalty.

(4) Subsection (3) does not apply if the person has a reasonable

excuse.

77 Power to require persons to produce records or documents

(1) An authorised officer may require a person, by notice, to produce a

record or document to the authorised officer.

Note:

See also sections 79 (power to keep records or documents) and 102

(self-incrimination).

(2) The notice must:

(a) be in writing; and

(b) be served on the person; and

specified place within a specified period of at least 14 days.

(3) The person must comply with the notice.

Note:

Grade B civil penalty.

(4) Subsection (3) does not apply if the person has a reasonable

excuse.

78 Hindering or obstructing authorised officers

A person must not intentionally hinder or obstruct an authorised

officer in exercising his or her compliance powers, or induce or

attempt to induce any other person to do so.

Note:

Grade A civil penalty.

Chapter 7 Powers to obtain information

Part 3 Powers of Australian Building and Construction Inspectors and Federal Safety

Officers

Division 3 Powers of authorised officers

Section 79

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

79 Power to keep records or documents

(1) If a record or document is produced to an authorised officer in

accordance with this Division or Part 2 (examination notices), the

authorised officer may:

(a) inspect, and make copies of, the record or document; and

(b) keep the record or document for any period that is necessary.

(2) While the authorised officer keeps a record or document, he or she

must allow the following persons to inspect, or make copies of, the

record or document at all reasonable times:

(a) the person who produced the record or document;

(b) any person otherwise entitled to possession of the record or

document;

or (b).

Certified copy to be supplied to person entitled to document

(3) A person otherwise entitled to possession of the document is

entitled to be supplied, as soon as practicable, with a copy that is

certified, by one of the following persons, to be a true copy:

(a) the ABC Commissioner;

(b) a Deputy ABC Commissioner;

(d) a member of staff referred to in subsection 30(1);

(e) a person assisting the ABC Commissioner under section 31;

(f) a person engaged as a consultant under section 32;

(g) the Federal Safety Commissioner;

(h) a Federal Safety Officer;

(i) an APS employee assisting the Federal Safety Commissioner;

(j) a person engaged as a consultant under section 42.

Treatment of certified copy

(4) The certified copy must be received in all courts and tribunals as

evidence as if it were the original.

Enforcement Chapter 8

Simplified outline of this Chapter Part 1

Section 80

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Chapter 8--Enforcement

Part 1--Simplified outline of this Chapter

80 Simplified outline of this Chapter

An authorised applicant (who may be an inspector or a person

affected by a contravention of a civil remedy provision) may apply

to certain courts for an order relating to the contravention. A court

may make any order, such as imposing a pecuniary penalty on a

person or granting an injunction. This Chapter also includes

general rules relating to contraventions of civil remedy provisions

(such as who bears burdens of proof, double jeopardy, and the

treatment of persons and bodies that are not individuals).

The ABC Commissioner can accept an enforceable undertaking if

the Commissioner reasonably believes that a person has

contravened a civil remedy provision. The enforceable undertaking

can be enforced by certain courts. An inspector can also give a

compliance notice requiring a person who the inspector reasonably

believes has contravened a civil remedy provision to rectify the

contravention. Certain courts can review the compliance notice.

Chapter 8 Enforcement

Part 2 Orders for contraventions of civil remedy provisions

Division 1 Obtaining an order for contravention of civil remedy provision

Section 81

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Part 2--Orders for contraventions of civil remedy

provisions

Division 1--Obtaining an order for contravention of civil

remedy provision

81 Penalty etc. for contravention of civil remedy provision

(1) A relevant court, on application by an authorised applicant, may

make one or more of the following orders relating to a person (the

defendant) who has contravened a civil remedy provision:

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

(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;

Note:

An authorised applicant may not be able to make an application for an

order if there is an enforceable undertaking in force or a compliance

notice has been given (see subsections 98(4) and 99(5)).

Maximum penalty for civil remedy provisions

(2) The maximum pecuniary penalty is:

(a) for a Grade A civil remedy provision--1,000 penalty units if

the defendant is a body corporate and otherwise 200 penalty

units; and

(b) for a Grade B civil remedy provision--100 penalty units if

the defendant is a body corporate and otherwise 20 penalty

units.

Injunctions

(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.

Enforcement Chapter 8

Orders for contraventions of civil remedy provisions Part 2

Obtaining an order for contravention of civil remedy provision Division 1

Section 82

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(4) If the contravention is a contravention of section 46 or 47

(unlawful industrial action and picketing prohibited), 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.

Pecuniary penalties

(5) A pecuniary penalty under paragraph (1)(a) is payable to the

Commonwealth, or to some other person if the court so directs. It

may be recovered as a debt.

(6) In determining a pecuniary penalty under paragraph (1)(a), the

court must take into account all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered because

of the contravention; and

(d) whether the person has previously been found by a court

(including a court in a foreign country) to have engaged in

any similar conduct.

(7) The Consolidated Revenue Fund is appropriated for the purposes

of a debt due to a person other than the Commonwealth in relation

to a penalty under paragraph (1)(a). The Financial Management

and Accountability Act 1997 does not apply in relation to those

amounts.

Chapter 8 Enforcement

Part 2 Orders for contraventions of civil remedy provisions

Division 1 Obtaining an order for contravention of civil remedy provision

Section 82

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

82 Interest up to judgement

(1) This section applies to an order (other than a civil penalty order)

under this Division in relation to an amount that a person was

required to pay to, or on behalf of, another person under this Act.

(2) In making the order the court must, on application, include an

amount of interest in the sum ordered, unless good cause is shown

to the contrary.

(3) Without limiting subsection (2), in determining the amount of

interest, the court must take into account the period between the

day the relevant cause of action arose and the day the order is

made.

83 Conduct contravening more than one civil remedy provision

(1) If conduct constitutes a contravention of 2 or more civil remedy

provisions, proceedings may be instituted under this Part against a

person in relation to the contravention of any one or more of those

provisions.

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

penalty under this Part in relation to the same conduct.

84 Multiple contraventions

(1) A relevant court may make a single civil penalty order against a

person for multiple contraventions of a civil remedy provision if

proceedings for the contraventions are founded on the same facts,

or if the contraventions form, or are part of, a series of

contraventions of the same or a similar character.

(2) However, any pecuniary penalty imposed must not exceed the sum

of the maximum penalties that could be ordered if a separate

pecuniary penalty were ordered for each of the contraventions.

85 Proceedings may be heard together

A relevant court may direct that 2 or more proceedings relating to

contraventions of civil remedy provisions are to be heard together.

Chapter 8 Enforcement

Part 2 Orders for contraventions of civil remedy provisions

Division 2 Civil proceedings and criminal proceedings

Section 87

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Division 2--Civil proceedings and criminal proceedings

87 Civil proceedings after criminal proceedings

A relevant court may not make a civil penalty order against a

person for a contravention of a civil remedy provision if the person

has been convicted of an offence constituted by conduct that is the

same, or substantially the same, as the conduct constituting the

contravention.

88 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a

contravention of a civil remedy provision are stayed if:

(a) criminal proceedings are commenced or have already been

commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

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

convicted of the offence. Otherwise, the proceedings are dismissed.

89 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for

conduct that is the same, or substantially the same, as conduct that

would constitute a contravention of a civil remedy provision

regardless of whether an order has been made under this Part

against the person in relation to the contravention.

90 Evidence given in civil proceedings not admissible in criminal

proceedings

(1) Evidence of information given, or evidence of production of

documents, by an individual is not admissible in criminal

proceedings against the individual if:

Enforcement Chapter 8

Orders for contraventions of civil remedy provisions Part 2

Civil proceedings and criminal proceedings Division 2

Section 91

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(a) the individual previously gave the information or produced

the documents in proceedings for a civil penalty order against

the individual for an alleged contravention of a civil remedy

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

(b) the conduct alleged to constitute the offence is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in

relation to the falsity of the evidence given by the individual in the

proceedings for the civil penalty order.

91 Civil double jeopardy

If a person is ordered to pay a pecuniary penalty under a civil

remedy provision in relation to particular conduct, the person is not

liable to be ordered to pay a pecuniary penalty under some other

provision of a law of the Commonwealth in relation to that

conduct.

Note:

A court may make other orders, such as an order for compensation, in

relation to particular conduct even if the court has made a civil penalty

order in relation to that conduct.

Chapter 8 Enforcement

Part 2 Orders for contraventions of civil remedy provisions

Division 3 Miscellaneous

Section 92

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Division 3--Miscellaneous

92 Ancillary contravention of civil remedy provisions

(1) A person must not:

(a) attempt to contravene a civil remedy provision; or

(b) aid, abet, counsel or procure a contravention of a civil

remedy provision; or

a civil remedy provision; or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil remedy provision; or

(e) conspire with others to effect a contravention of a civil

remedy provision.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil

remedy provision is taken to have contravened the provision.

93 Exceptions etc. to civil remedy provisions--burden of proof

If, in proceedings for a civil penalty order against a person for a

contravention of a civil remedy provision, the person wishes to rely

on any exception, exemption, excuse, qualification or justification

provided by the law creating the civil remedy provision, then the

person bears an evidential burden in relation to that matter.

94 Liability of bodies corporate

Conduct of a body corporate

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body

within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of an official of the

body, if the giving of the direction, consent or agreement is

Enforcement Chapter 8

Orders for contraventions of civil remedy provisions Part 2

Miscellaneous Division 3

Section 95

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

within the scope of the actual or apparent authority of the

official;

is taken, for the purposes of this Act, to have been engaged in also

by the body.

State of mind of a body corporate

(2) If, for the purposes of this Act, it is necessary to establish the state

of mind of a body corporate in relation to particular conduct, it is

enough to show:

(a) that the conduct was engaged in by a person referred to in

paragraph (1)(a) or (b); and

(b) that the person had that state of mind.

Meaning of state of mind

(3) The state of mind of a person includes:

(a) the knowledge, intention, opinion, belief or purpose of the

person; and

(b) the person's reasons for the intention, opinion, belief or

purpose.

95 Actions of building associations

(1) For the purposes of this Act, each of the following is taken to be

action of a building association:

(a) action taken by the committee of management of the building

association;

(b) action taken by an officer or agent of the building association

acting in that capacity;

building association if the action is authorised by:

(i) the rules of the association; or

(ii) the committee of management of the association; or

(iii) an officer or agent of the association acting in that

capacity;

(d) action taken by a member of the building association who

performs the function of dealing with an employer on behalf

Chapter 8 Enforcement

Part 2 Orders for contraventions of civil remedy provisions

Division 3 Miscellaneous

Section 96

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

of the member and other members of the association, acting

in that capacity;

(e) if the building association is an unincorporated building

association that does not have a committee of management--

action taken by a member, or group of members, of the

association.

(2) Paragraphs (1)(c) and (d) do not apply if:

(a) the committee of management of the building association; or

(b) a person authorised by the committee; or

has taken all reasonable steps to prevent the action.

(3) If, for the purposes of this Act, it is necessary to establish the state

of mind of a building association in relation to particular action, it

is enough to show:

(a) that the action was taken by a person, or a group, referred to

in any of paragraphs (1)(a) to (e); and

(b) that the person, or a person in the group, had that state of

mind.

(4) Subsections (1) to (3) have effect despite subsections 94(1) and (2)

(liabilities of bodies corporate).

96 Unincorporated building associations

For the purposes of this Act, a reference to a person includes a

reference to an unincorporated building association.

97 Capacity, state of mind etc. of person being coerced etc.

In applying a provision of this Act that refers to:

(a) coercing a person to do a particular thing; or

(b) applying undue pressure to a person to do a particular thing;

(d) advising a person to do a particular thing; or

(e) inciting a person to do a particular thing; or

Chapter 8 Enforcement

Part 3 Other powers of enforcement for inspectors

Section 98

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Part 3--Other powers of enforcement for

inspectors

98 Enforceable undertakings relating to contraventions of civil

remedy provisions

Application of this section

(1) This section applies if the ABC Commissioner reasonably believes

that a person has contravened a civil remedy provision.

Accepting an undertaking

(2) The ABC Commissioner may accept a written undertaking given

by the person in relation to the contravention, except as provided

by subsection (5).

Withdrawing or varying an undertaking

(3) The person may withdraw or vary the undertaking at any time, but

only with the ABC Commissioner's consent.

Relationship with orders in relation to contraventions of civil

remedy provisions

(4) An inspector must not apply for an order under Division 1 of Part 2

relating to a contravention of a civil remedy provision by a person

if an undertaking given by the person under this section in relation

to the contravention has not been withdrawn.

Note:

A person other than an inspector who is otherwise entitled to apply for

an order relating to the contravention may do so.

Relationship with compliance notices

(5) The ABC Commissioner must not accept an undertaking relating to

a contravention if the person has been given a notice relating to the

contravention under section 99 (compliance notices).

Enforcement Chapter 8

Other powers of enforcement for inspectors Part 3

Section 99

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Enforcement of undertakings

(6) If the ABC Commissioner considers that the person who gave the

undertaking has contravened any of its terms, the ABC

Commissioner may apply to a relevant court or a relevant State or

Territory court for an order under subsection (7).

(7) If the court is satisfied that the person has contravened a term of

the undertaking, the court may make one or more of the following

orders:

(a) an order directing the person to comply with the term of the

undertaking;

(b) an order awarding compensation for loss that a person has

suffered because of the contravention;

99 Compliance notices

Application of this section

(1) This section applies if an inspector reasonably believes that a

person has contravened one or more of the following to the extent

that the contravention relates (whether directly or indirectly) to

building work:

(a) this Act;

(b) a designated building law;

Giving a notice

(2) The inspector may (subject to subsection (4)) give the person a

notice requiring the person to do either or both of the following

within a reasonable time specified in the notice:

(a) take specified action to remedy the direct effects of the

contravention referred to in subsection (1);

(b) produce reasonable evidence of the person's compliance with

the notice.

(3) The notice must also:

Chapter 8 Enforcement

Part 3 Other powers of enforcement for inspectors

Section 99

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

(a) set out the name of the person to whom the notice is given;

and

(b) set out the name of the inspector who gave the notice; and

(d) explain that a failure to comply with the notice may

contravene a civil remedy provision; and

(e) explain that the person may apply to a relevant court or a

relevant State or Territory court for a review of the notice on

either or both of the following grounds:

(i) the person has not committed the contravention set out

in the notice;

(ii) the notice does not comply with subsection (2) or this

subsection; and

(f) set out any other matters prescribed by the rules.

Relationship with enforceable undertakings

(4) An inspector must not give a person a notice relating to a

contravention if:

(a) the person has given an undertaking under section 98 relating

to the contravention; and

(b) the undertaking has not been withdrawn.

Relationship with civil remedy provisions

(5) An inspector must not apply for an order under Division 1 of Part 2

relating to a contravention of a civil remedy provision by a person

if:

(a) the inspector has given the person a notice relating to the

contravention; and

(b) either of the following subparagraphs applies:

(i) the notice has not been withdrawn, and the person has

complied with the notice;

(ii) the person has made an application under section 100

(review of compliance notices) relating to the notice that

has not been completely dealt with.

Note:

A person other than an inspector who is otherwise entitled to apply for

an order relating to the contravention may do so.

Enforcement Chapter 8

Other powers of enforcement for inspectors Part 3

Section 100

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(6) A person who complies with a notice relating to a contravention of

a civil remedy provision is not taken:

(a) to have admitted to contravening the provision; or

(b) to have been found to have contravened the provision.

Person must comply with notice

(7) A person must comply with a notice given under this section.

Note:

Grade B civil penalty.

(8) Subsection (7) does not apply if the person has a reasonable

excuse.

100 Review of compliance notices

(1) A person who has been given a notice under section 99

(compliance notices) may apply to a relevant court or a relevant

State or Territory court for a review of the notice on either or both

of the following grounds:

(a) the person has not committed a contravention set out in the

notice;

(b) the notice does not comply with subsection 99(2) or (3).

(2) At any time after the application has been made, the court may stay

the operation of the notice on the terms and conditions that the

court considers appropriate.

(3) The court may confirm, cancel or vary the notice after reviewing it.

Chapter 9 Miscellaneous

Part 1 Simplified outline of this Chapter

Section 101

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Chapter 9--Miscellaneous

Part 1--Simplified outline of this Chapter

101 Simplified outline of this Chapter

For persons who are required by this Act to provide information,

Part 2 contains provisions relating to self-incrimination, protection

from liability for providing the information and the admissibility of

the information provided. The Part also contains rules to protect

the privacy of that information, while allowing its disclosure in

certain circumstances.

Part 3 gives some additional powers to the ABC Commissioner,

such as the ability to publicise non-compliance and to intervene in

or commence court and FWC proceedings.

Provisions relating to courts, such as the conferral of power on the

Federal Court and appeals from certain State or Territory courts,

are dealt with by Part 4.

Certain officials under this Act are protected from civil

proceedings under Part 5. That Part also allows the Minister to

delegate certain powers, and contains a rule-making and

regulation-making power.

Miscellaneous Chapter 9

Provisions relating to information Part 2

Provisions relating to requirements to provide information Division 1

Section 102

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Part 2--Provisions relating to information

Division 1--Provisions relating to requirements to provide

information

102 Self-incrimination etc.

Excuses that are not available

(1) A person is not excused from giving information, producing a

record or document, or answering a question, under an examination

notice, or under paragraph 74(1)(d) or subsection 77(1), on the

ground that to do so:

(a) would contravene any other law; or

(b) might tend to incriminate the person or otherwise expose the

person to a penalty or other liability.

Note:

However, if a person is given an examination notice, the person is

protected, by section 103, from liability for contravening the other

law.

Use/derivative use indemnity in relation to examination notices

(2) In the case of an individual who gives information, produces a

record or document, or answers a question, under an examination

notice, neither:

(a) the information or answer given or the record or document

produced; nor

(b) any information, document or thing obtained as a direct or

indirect consequence of giving the information or answer or

producing the record or document;

is admissible in evidence against the individual in proceedings,

other than:

comply with examination notice); or

(d) proceedings for an offence against section 137.1 or 137.2 of

the Criminal Code that relates to this Act (false or misleading

information or documents); or

Chapter 9 Miscellaneous

Part 2 Provisions relating to information

Division 1 Provisions relating to requirements to provide information

Section 103

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

(e) proceedings for an offence against section 149.1 of the

Criminal Code that relates to this Act (obstruction of

Commonwealth officials).

Use/derivative use indemnity in relation to other requirements

(3) In the case of an individual who gives information, produces a

record or document, or answers a question, under

paragraph 74(1)(d) or subsection 77(1), neither:

(a) the information or answer given or the record or document

produced; nor

(b) any information, document or thing obtained as a direct or

indirect consequence of giving the information or answer or

producing the record or document;

is admissible in evidence against the individual in criminal

proceedings, other than proceedings referred to in

paragraphs (2)(d) and (e) of this section.

103 Protection from liability relating to examination notices

A person who, in good faith:

(a) gives information; or

(b) produces a record or document; or

when required to do so under an examination notice is not liable to:

(d) any proceedings for contravening any other law because of

that conduct; or

(e) civil proceedings for loss, damage or injury of any kind

suffered by another person because of that conduct.

104 Certain records and documents are inadmissible

The following:

(a) any record or document inspected or copied under

paragraph 74(1)(e) of which an individual had custody, or to

which an individual had access, when it was inspected or

copied;

Miscellaneous Chapter 9

Provisions relating to information Part 2

Provisions relating to requirements to provide information Division 1

Section 104

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(b) any information, document or thing obtained as a direct or

indirect consequence of inspecting or copying a record or

document described in paragraph (a) of this section;

are not admissible in evidence in criminal proceedings against the

individual, other than:

the Criminal Code that relates to this Act (false or misleading

information or documents); or

(d) proceedings for an offence against section 149.1 of the

Criminal Code that relates to this Act (obstruction of

Commonwealth officials).

Chapter 9 Miscellaneous

Part 2 Provisions relating to information

Division 2 Protecting information acquired for the purposes of this Act

Section 105

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

Division 2--Protecting information acquired for the

purposes of this Act

105 Disclosure of information by the ABC Commissioner or Federal

Safety Commissioner

Information to which this section applies

(1) This section applies to information that is acquired by any of the

following persons in the course of performing functions, or

exercising powers, as such a person:

(a) the ABC Commissioner;

(b) a Deputy ABC Commissioner;

(d) a member of staff referred to in subsection 30(1);

(e) a person assisting the ABC Commissioner under section 31;

(f) a consultant under section 32;

(g) a person assisting an inspector;

(h) the Federal Safety Commissioner;

(i) a Federal Safety Officer;

(j) an APS employee assisting the Federal Safety Commissioner;

(k) a consultant under section 42.

However, the ABC Commissioner must not under this section

disclose, or authorise the disclosure of, protected information.

Disclosure that is necessary or appropriate, or likely to assist

administration or enforcement

(2) The ABC Commissioner or Federal Safety Commissioner may

disclose, or authorise the disclosure of, the information if the

Commissioner reasonably believes:

(a) that it is necessary or appropriate to do so for the purposes of

the performance of the Commissioner's functions or the

exercise of the Commissioner's powers; or

Miscellaneous Chapter 9

Provisions relating to information Part 2

Protecting information acquired for the purposes of this Act Division 2

Section 105

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(b) that the disclosure is likely to assist in the administration or

enforcement of a law of the Commonwealth, a State or a

Territory.

Disclosure to the Minister

(3) The ABC Commissioner or Federal Safety Commissioner may

disclose, or authorise the disclosure of, the information to the

Minister if the Commissioner reasonably believes that the

disclosure is likely to assist the Minister to consider a complaint or

issue in relation to a matter arising under:

(a) this Act; or

(b) for the ABC Commissioner--the FW Act or the FW

Transitional Act.

Disclosure to the Department

(4) The ABC Commissioner or Federal Safety Commissioner may

disclose, or authorise the disclosure of, the information to:

(a) the Secretary; or

(b) an SES employee, or an APS employee, in the Department;

for the purpose of briefing, or considering briefing, the Minister if

the Commissioner reasonably believes the disclosure is likely to

assist the Minister to consider a complaint or issue in relation to a

matter arising under:

(d) for the ABC Commissioner--the FW Act or the FW

Transitional Act.

Interaction with section 107

(5) For disclosures of information, or authorisations of disclosures of

information, by the ABC Commissioner, subsections (2) to (4)

have effect subject to section 107 (reports not to include

information relating to individual's affairs).

Chapter 9 Miscellaneous

Part 2 Provisions relating to information

Division 2 Protecting information acquired for the purposes of this Act

Section 106

Building and Construction Industry (Improving Productivity) Bill 2013

No. , 2013

106 Confidentiality of information obtained under an examination

notice

(1) This section restricts what a person (the entrusted person) may do

with protected information that the person has obtained in the

course of official employment.

Note:

Although this section applies only to information that a person

obtained in the course of official employment, the obligations under

this section continue to apply after the person ceases to be in official

employment.

Recording or disclosing

(2) The entrusted person must not:

(a) make a record of protected information; or

(b) disclose protected information.

Penalty: Imprisonment for 12 months.

Permitted recording or disclosure by designated officials

(3) If the entrusted person is a designated official at the time of the

recording or disclosure, then each of the following is an exception

to the offence in subsection (2):

(a) the recording or disclosure is for the purposes of the

performance of the ABC Commissioner's functions or the

exercise of the ABC Commissioner's powers;

(b) the recording or disclosure happens in the course of the

performance of the duties of the entrusted person's official

employment;

appointed or employed by:

(i) the Commonwealth, a State or Territory; or

(ii) an authority of the Commonwealth, a State or Territory;

for the purpose of assisting in building industry law

enforcement;

(d) the recording or disclosure is in accordance with rules made

for the purposes of this paragraph.

Miscellaneous Chapter 9

Provisions relating to information Part 2

Protecting information acquired for the purposes of this Act Division 2

Section 106

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

Permitted recording or disclosure by other persons

(4) If the entrusted person is not a designated official at the time of the

recording or disclosure, then each of the following is an exception

to the offence in subsection (2):

(a) the recording or disclosure is for the purposes of the

performance of the ABC Commissioner's functions or the

exercise of the ABC Commissioner's powers;

(b) the recording or disclosure happens in the course of the

performance of the duties of the entrusted person's official

employment that relate to building industry law enforcement;

for the purposes of this paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4) (see subsection 13.3(3) of the Criminal Code).

Disclosure to a Minister by a designated official

(5) The exception in subsection (3) does not apply to a disclosure if:

(a) the entrusted person discloses protected information to any

Minister; and

(b) the entrusted person is a designated official; and

(Minister may require reports) or 20 (annual reports).

Disclosure in reports under this Act

(6) The exception in subsection (3) does not apply to a disclosure if:

(a) the entrusted person discloses protected information in a

report under section 18 or 20; and

(b) section 107 (reports not to include information relating to an

individual's affairs) is not complied with in respect of the

disclosure of the information in the report.

Chapter 9 Miscellaneous

Part 2 Provisions relating to information

Division 2 Protecting information acquired for the purposes of this Act

Section 107

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No. , 2013

Authorisation for purposes of Privacy Act

(7) A disclosure of personal information is taken to be authorised by

law for the purposes of paragraph (1)(d) of Information Privacy

Principle 11 in section 14 of the Privacy Act 1988 if the

information is protected information and the disclosure is made in

accordance with subsection (3) or (4) of this section.

Definitions

(8) In this Act:

building industry law enforcement means enforcement of a law of

the Commonwealth, a State or a Territory where the enforcement is

in respect of:

(a) conduct by, or in relation to, a building industry participant in

that capacity; or

(b) conduct that is, or relates to, building work.

official employment means:

(a) appointment or employment by, or the performance of

services for:

(i) the Commonwealth, a State or Territory; or

(ii) an authority of the Commonwealth, a State or Territory;

(b) appointment as an inspector.

107 Reports not to include information relating to an individual's

affairs

(1) Information relating to the affairs of an individual must not be

included in a report under section 18 (Minister may require reports)

or 20 (annual reports) if:

(a) the individual is named, or otherwise specifically identified,

in the report as the individual to whom the information

relates; or

(b) it is reasonably likely that people generally (other than people

to whom the individual has disclosed information relating to

Miscellaneous Chapter 9

Provisions relating to information Part 2

Protecting information acquired for the purposes of this Act Division 2

Section 107

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Building and Construction Industry (Improving Productivity) Bill 2013

the individual's affairs) would be able to work out the

identity of the individual to whom the information relates.

(2) For the purposes of applying paragraph (1)(b) to information

relating to a particular individual's affairs, the context in which the

information appears, and information that is otherwise publicly

available, must be taken into account (as well as any other relevant

matter).

Chapter 9 Miscellaneous

Part 3 Powers of ABC Commissioner etc.

Section 108

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Part 3--Powers of ABC Commissioner etc.

108 ABC Commissioner may publicise non-compliance

If the ABC Commissioner considers that it is in the public interest

to do so, the ABC Commissioner may publish details of:

(a) non-compliance with the Building Code, including the name

of the person who has failed to comply; and

(b) non-compliance by a building industry participant with this

Act or designated building laws, including the name of the

participant who has failed to comply.

109 ABC Commissioner may intervene in court proceedings

(1) The ABC Commissioner may intervene in the public interest in a

civil proceeding before a court in a matter that:

(a) arises under this Act; or

(b) arises under the Independent Contractors Act 2006, the FW

Act or the FW Transitional Act and involves:

(i) a building industry participant; or

(ii) building work.

(2) If the ABC Commissioner intervenes in a proceeding under

subsection (1), the ABC Commissioner is taken to be a party to the

proceeding and has all the rights, duties and liabilities of such a

party.

110 ABC Commissioner may make submissions in FWC

proceedings

(1) The ABC Commissioner may intervene or make a submission in a

matter before the FWC that arises under the FW Act or the FW

Transitional Act if the matter involves:

(a) a building industry participant; or

(b) building work.

Miscellaneous Chapter 9

Powers of ABC Commissioner etc. Part 3

Section 111

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Building and Construction Industry (Improving Productivity) Bill 2013

(2) If the ABC Commissioner intervenes in a proceeding under

subsection (1), the ABC Commissioner is taken to be a party to the

proceeding and has all the rights, duties and liabilities of such a

party.

(3) The ABC Commissioner makes a submission under subsection (1)

by giving written notice to the General Manager of the FWC.

111 ABC Commissioner and other inspectors may institute

proceedings under the FW Act, etc.

(1) If a provision of the FW Act, the FW Transitional Act, or of an

instrument under either of those Acts, authorises a Fair Work

Inspector (within the meaning of the FW Act) to:

(a) make an application to the FWC; or

(b) make an application to, or otherwise institute proceedings in,

a court;

the provision is also taken to authorise an inspector to make such

an application, or institute such proceedings, in any case where the

application or proceedings relates to a matter that involves:

(d) building work.

(2) If the inspector makes an application, or institutes proceedings, the

FW Act, the FW Transitional Act and any such instrument have

effect, in relation to the application or proceedings, as if the

inspector were a Fair Work Inspector (within the meaning of the

FW Act).

(3) Directions under section 704 or 705 of the FW Act do not apply to

the inspector in relation to the application or proceedings.

112 General Manager of the FWC must keep ABC Commissioner

informed

The General Manager of the FWC must, as soon as practicable,

notify the ABC Commissioner of:

(a) every application lodged with the FWC, or the General

Manager of the FWC, under the FW Act or the FW

Miscellaneous Chapter 9

Provisions relating to courts Part 4

Section 113

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Part 4--Provisions relating to courts

113 Jurisdiction of the Federal Court

Jurisdiction is conferred on the Federal Court in relation to any

matter arising under this Act.

114 Exercising jurisdiction in the Fair Work Division of the Federal

Court

(1) This section applies if:

(a) a writ of mandamus or prohibition or an injunction is sought

in the Federal Court against a person holding office under

this Act; or

(b) a declaration is sought under section 21 of the Federal Court

of Australia Act 1976 in relation to a matter arising under this

Act; or

of Australia Act 1976 in relation to a matter arising under this

Act; or

(d) a prosecution is instituted in the Federal Court under this Act;

(e) an appeal is instituted in the Federal Court from a judgement

of the Federal Circuit Court or a court of a State or Territory

in a matter arising under this Act; or

(f) proceedings in relation to a matter arising under this Act are

transferred to the Federal Court from the Federal Circuit

Court; or

(g) the Federal Circuit Court or a court of a State or Territory

states a case or reserves a question for the consideration of

the Federal Court in a matter arising under this Act; or

(h) the High Court remits a matter arising under this Act to the

Federal Court.

(2) The jurisdiction of the Federal Court is to be exercised in the Fair

Work Division of the Federal Court.

Chapter 9 Miscellaneous

Part 4 Provisions relating to courts

Section 115

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115 No limitation on Federal Court's powers

To avoid doubt, nothing in this Act limits the Federal Court's

powers under section 21, 22 or 23 of the Federal Court of

Australia Act 1976.

116 Appeals from relevant State or Territory courts

Appeals from original decisions of relevant State or Territory

courts

(1) An appeal lies to the Federal Court from a decision of a relevant

State or Territory court exercising jurisdiction under this Act.

(2) No appeal lies from a decision of a relevant State or Territory court

exercising jurisdiction under this Act, except:

(a) if the court was exercising summary jurisdiction--an appeal,

to that court or another relevant State or Territory court of the

same State or Territory, as provided for by a law of that State

or Territory; or

(b) in any case--an appeal as provided for by subsection (1).

Appeals from appellate decisions of relevant State or Territory

courts

(3) An appeal lies to the Federal Court from a decision of a relevant

State or Territory court made on appeal from a decision that:

(a) was a decision of that court or another relevant State or

Territory court of the same State or Territory; and

(b) was made in the exercise of jurisdiction under this Act.

(4) No appeal lies from a decision to which subsection (3) applies,

except an appeal as provided for by that subsection.

Leave to appeal not required

(5) It is not necessary to obtain the leave of the Federal Court, or the

court appealed from, in relation to an appeal under subsection (1)

or (3).

Chapter 9 Miscellaneous

Part 5 Miscellaneous

Section 118

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No. , 2013

Part 5--Miscellaneous

118 ABC Commissioner etc. not liable for conduct in good faith

(1) Civil proceedings do not lie for loss, damage or injury of any kind

suffered by a person as a result of anything done, or omitted to be

done, in good faith and without negligence by a person referred to

in subsection (2):

(a) in the exercise, or purported exercise, of functions, powers or

duties under, or in relation to, this Act; or

(b) in the exercise, or purported exercise, of functions, powers or

duties under, or in relation to, the Independent Contractors

Act 2006, the FW Act or the FW Transitional Act, where the

exercise, or purported exercise, of the function, power or

duty relates to a matter that involves:

(i) a building industry participant; or

(ii) building work.

(2) The persons are:

(a) a designated official; and

(b) the Federal Safety Commissioner; and

(d) an APS employee assisting the Federal Safety Commissioner;

and

(e) a person engaged as a consultant under section 42.

119 Delegation by Minister

(1) The Minister may, in writing, delegate all or any of the Minister's

functions or powers under Chapter 3 (the Building Code) to the

ABC Commissioner.

(2) In performing functions or exercising powers delegated under

subsection (1), the ABC Commissioner must comply with any

directions of the Minister.

Note:

See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

Miscellaneous Chapter 9

Miscellaneous Part 5

Section 120

No. , 2013

Building and Construction Industry (Improving Productivity) Bill 2013

(3) The Minister may give a direction for the purposes of

subsection (2).

(4) A written direction under subsection (3) that is of general

application is a legislative instrument.

(5) A written direction under subsection (4) that relates to a particular

case is not a legislative instrument.

120 Rules and regulations

Rules

(1) The Minister may, by legislative instrument, make rules

prescribing matters:

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

rules; or

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

giving effect to this Act.

(2) Without limiting subsection (1), the rules may make provision for,

and in relation to, the following:

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

under this Act may be made and dealt with;

(b) the form of notices that are required or permitted to be given

under this Act.

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

the first rules made for the purposes of subsection 6(4) or (5)

(meaning of building work) or 10(2) (extension of Act to

Christmas Island and Cocos (Keeling) Islands) may be expressed

to take effect from the commencement of the subsection for which

the rules are made, if those rules are made within 120 days after

this subsection commences.

Regulations

(4) The Governor-General may make regulations prescribing:

(a) penalties for offences against the rules, not exceeding a fine

of 10 penalty units; or

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BUILDING AND CONSTRUCTION INDUSTRY (IMPROVING PRODUCTIVITY) BILL 2013