Commonwealth Numbered Regulations - Explanatory Statements

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BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT (ACCREDITATION SCHEME) REGULATIONS 2005 (SLI NO 305 OF 2005)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 305

 

Issued by the authority of the Minister for Employment and Workplace Relations.

 

Building and Construction Industry Improvement Act 2005

 

Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005

 

The Building and Construction Industry Improvement Act 2005 (the Act) provides for improved workplace relations practices in the building and construction industry in the federal jurisdiction.

 

Section 78 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Chapter 4 of the Act deals with occupational health and safety (OHS).  Part 1 of Chapter 4 establishes the office of the Federal Safety Commissioner (FSC).  Part 2 provides for the establishment of an OHS accreditation scheme by regulations to be administered by the FSC. 

 

The purpose of the Regulations is to establish an OHS accreditation scheme to be administered by the Federal Safety Commissioner for persons who wish to enter into building contracts with the Commonwealth or Commonwealth authorities.  The scheme will be known as the Australian Government Building and Construction Occupational Health and Safety Accreditation Scheme (OHS accreditation scheme).  The development of such a scheme was a recommendation of the Royal Commission into the Building and Construction Industry to enable the Government to use its influence as a client and the provider of capital to improve the construction industry's OHS performance. 

 

Subsection 35(4) of the Act provides that the Commonwealth or a Commonwealth authority must not enter into a Commonwealth building contract with persons who are not accredited.  The regulations may provide exceptions to this rule.  Currently, regulation 4.2 of the Building and Construction Industry Improvement Regulations 2005 exempts all building contracts entered into before an accreditation scheme is prescribed.

 

The OHS accreditation scheme will be implemented in two stages.  Stage 1 will cover directly funded Australian Government building and construction projects with an estimated cost of $6 million or above.  Stage 2 of the OHS accreditation scheme will extend coverage to all building and construction projects funded directly or indirectly by the Australian Government.  The Regulations will implement stage 1.  The effect of the Regulations will be that after 1 March 2006 contractors will require accreditation status to contract for building work inside Australia where the value of the contract between contractor and the client Commonwealth agency will be $6 million or above. 

 

 

 

 

The Office of the Federal Safety Commissioner undertook extensive consultation with industry associations, employers and government agencies to ensure the smooth implementation of the OHS Accreditation Scheme.

 

Details of the Regulations are set out in the Attachment.

 

The Act does not impose any conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.


ATTACHMENT

 

Details of the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005

 

Part 1                          Preliminary

 

Regulation 1 -- Name of Regulations

 

Regulation 1 provides that the title of the Regulations is the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005.

 

Regulation 2 -- Commencement

 

Regulation 2 provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 -- Definitions

 

Regulation 3 sets out definitions. 

 

AS 1885.1-1990 is a standard published by Standards Australia.  AS/NZS 4801:2001 is a standard published by Standards Australia and Standards New Zealand.  The references to Australian and New Zealand standards in the Regulations are for  definitional purposes and refer to the standards as in force at the time the regulations commence.

 

The note lists several words and expressions used in the Regulations that have the same meaning as given in the Building and Construction Industry Improvement Act 2005 (BCII Act).

 

Part 2                          Accreditation scheme

 

Division 2.1                Accreditation scheme

 

Regulation 4 -- Accreditation scheme

 

Subsection 35(1) of the BCII Act provides for the establishment of an accreditation scheme by regulations for persons who wish to enter into contracts with the Commonwealth or Commonwealth authorities.  The regulation states that the following accreditation scheme is prescribed.  The scheme will be known as the Australian Government Building and Construction Occupational Health and Safety Accreditation Scheme.

 


Division 2.2                Accreditation authority

 

Regulation 5 -- Accreditation authority

 

The regulation complies with the requirements of subsection 35(2) of the BCII Act which requires the regulations to provide for the Federal Safety Commissioner (FSC) to be the accrediting authority.   

 

Division 2.3                How persons are accredited under the accreditation scheme

 

Subdivision A             Requirements for accreditation

 

Regulation 6 -- Accreditation by the Federal Safety Commissioner

 

Subregulation (1) allows the FSC to accredit a person if the person:

 

*         is entitled to apply for accreditation under Subdivision B, that is, a body corporate; and

*         if the person has applied using any form approved by the FSC; and

*         has agreed to a pre-accreditation audit conducted by a Federal Safety Officer (FSO) using his or her powers under section 63 of the BCII Act; and

*         has satisfied the FSC that they have appropriate Occupational Health and Safety (OHS) policies and procedures and safe work practices.  Appropriate OHS policies and procedures means they have demonstrated capacity to manage the hazards or risks present at their building sites and projects.

 

Subregulation (2) list a number of factors that the FSC must take into account when deciding to accredit a person including whether the person has an appropriately certified Occupational Health and Safety Management System (OHSMS). 

 

Subregulation (3) provides that the person has an appropriately certified OHSMS if it has been certified to AS/NZS 4801:2001 (a specification Standard that establishes a framework primarily for enabling independent external audits and reviews of an organisation's OHSMS) or a similar type of standard has been used by an independent person to the applicant assess the OHSMS and the FSC is satisfied that standard is comparable to AS/NZS 4801:2001.

 

Subdivision B                         Who may apply for accreditation under the scheme?

 

Regulation 7 -- Who may apply for accreditation?

 

Regulation 7 provides that a person other than a natural person (for example, a body corporate) may apply for accreditation.

 


Subdivision C                         Application

 

Regulation 8 -- Form of application

 

Regulation 8 requires a person to apply using any application form that has been approved by the FSC.  An application form will be available from the FSC website at www.fsc.gov.au.

 

Regulation 9 -- Matters to accompany application

 

Regulation 9 gives details of what must be included in the application including:

 

*         details of certification to AS/NZS 4801:2001 or an equivalent OHS standard.  Evidence of assessment of the applicant's OHSMS by a person who is independent of them should also be included for example, certification statements, recent audit reporting relating to the OHSMS and details of the certifying body; and

*         evidence of the applicant's senior management commitment to safe OHS practices.  This could be a statement including details of how senior management determines the organisation's current position on OHS, allocates resources, responsibilities and accountability to OHS and undertakes regular reviews of OHS; and

*         evidence of the applicant's work practices in relation to their contractors.  This could be a statement including details of how it co-ordinates the safety practise of its contractors in conformity with its own safety policy; and

*         evidence of experience in dealing with construction hazards or high risk activities which could be satisfied by the applicant providing details of experience with, for example, construction work involving the use of explosives, removal of asbestos, demolition, work from great heights or depths, construction of tunnels or construction work near chemicals, fuel or gas; and

*         details of the applicant's OHS performance history. 

 

Regulation 10 -- Further information

 

Regulation 10 allows the FSC to request from the applicant -- in the form of a notice - further information to enable him or her to make a decision regarding accreditation.

 

If the information is not provided by the applicant within the period specified in the notice the application is taken to have been withdrawn (subregulations 10(3)-(5)).

 

Division 2.4                            Pre-accreditation audits

 

Regulation 11 -- Pre-accreditation audit and the audit process

 

Subregulation 11(1) requires an applicant to agree to the conducting of a pre-accreditation audit by an FSO.

 

Subregulation 11(2) sets out the audit process that the applicant must agree to in order to be accredited.  If the applicant is a constitutional corporation (constitutional corporation is defined in section 4 of the BCII Act) the applicant must agree to an FSO carrying out an audit exercising his or her powers under section 63 of the BCII Act (paragraph 11(2)(a)). 

 

The powers available to an FSO under section 63 include entering, without force, any premises on which the officer has reasonable cause to believe that: there are documents relevant to compliance purposes; building work is being carried out, or has been carried out by the applicant.  Under this section an FSO can, among other things, inspect any work, interview any person and inspect and make copies of documents.

 

If the applicant is not a constitutional corporation the agreement will be limited to those premises controlled by the person seeking accreditation or that the occupant has agreed the FSO can enter (paragraph 11(2)(b)).

 

The reason for the different requirements for constitutional and non-constitutional corporations is that the sources of constitutional power are different in relation to those corporations.  The corporations power in clause 51(xx) of the Constitution supports the exercise of FSO's coercive powers to enter premises, inspect documents and interview witnesses.  Whereas, in the case of non-constitutional corporations there is no constitutional power to support the exercise of coercive powers by an FSO and therefore the Regulations require an applicant to agree to an FSO conducting an audit exercising equivalent powers to the powers in section 63 of the BCII Act.   

 

Division 2.5                            Decision on an application

 

Regulation 12 -- Federal Safety Commissioner to decide application

 

Subregulation 12(1) requires the FSC to determine an application and whether to impose any conditions on the accreditation.  The FSC is also required to notify the applicant of the accreditation decision 'as soon as practicable' after deciding an application (paragraph 12(1)(b) and subregulation 12(2)).

 

Subregulation 12(3) requires the notice to include details of the decision, the date from which the applicant is accredited and any conditions imposed on the accreditation.  The notice also sets out the reasons for the decisions and how the applicant can have the decision reviewed (paragraph 12(3)(d)).


Regulation 13 -- Period of accreditation

 

Subregulation 13 provides that accreditation will be for a non-extendable period of 12 months.  The note at the bottom describes that the effect of this regulation is that after 12 months an accredited person will have to apply again to be accredited rather than seek an extension of the accreditation.

 

Division 2.6                            Conditions on accreditation

 

Regulation 14 -- Conditions that apply to all accredited persons

 

Subregulation 14 lists the conditions that apply to all accredited persons.  This includes the condition that the person agrees to the reporting requirements specified by the FSC.  The FSC will require an accredited person to report on OHS performance.  For example, reports can be requested on:

*         level of conformance with procedures;

*         performance against targets;

*         non-conformance; and

*         incidents and occurrences on building sites and projects.

 

Paragraph 14(1)(d) requires an accredited person to comply with any conditions of accreditation that may be imposed on or after accreditation under regulation 15.

 

The FSC is required to notify an accredited person of the reporting requirements (subregulation 14(2)).

 

Regulation 15 -- Federal Safety Commissioner may impose further conditions

 

Regulation 15 allows the FSC to impose a further condition on an applicant either on granting accreditation or after the grant of accreditation.  The FSC is required to give notice of the imposition of a condition and the terms of that condition imposed after accreditation (subregulation 15(2)).  For conditions imposed on accreditation paragraph 12(3)(c) requires the FSC to give notice of any condition operation at accreditation.

 

The FSC are required to give reasons for the imposition of the condition and inform the accredited person how they can seek to have that decision reviewed (subregulation 15(3))

 

Regulation 16 -- Audit process

 

Regulation 16 sets out the audit process that the applicant must agree to as a condition of accreditation.  If the accredited person is a constitutional corporation (constitutional corporation is defined in section 4 of the BCII Act) or undertaking building work in a Territory the accredited person must agree to an FSO carrying out an audit exercising his or her powers under section 63 of the BCII Act (paragraph 16(a)). 

 

The powers available to an FSO under section 63 of the BCII Act are outlined above under regulation 11.

 

If the applicant is not a constitutional corporation the agreement will be limited to those premises controlled by the accredited person or that the occupier has agreed the FSO can enter (paragraph 16(b)).

 

Division 2.7                            Breach of conditions on accreditation

 

Regulation 17 -- Breach of conditions

 

Regulation 17 lists what action the FSC can take if an accredited person breaches a condition of accreditation.  The following diagram illustrates the possible consequences following a breach of a condition:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


There will be an escalating series of actions that the FSC can take ranging from the imposing of further conditions to revocation.  Suspension will have the effect of preventing a person from tendering for any Commonwealth projects for a period of time specified by the FSC.

 

The revocation of a person's accreditation will be reserved for cases where work practices are unsafe; for example, could cause serious injury or death.  If a person's accreditation is revoked they will need to reapply for accreditation in order to contract for Australian Government work in the future.

 

Subregulation 17(2) allows the FSC to revoke accreditation at any time if satisfied that the person's work practices are not safe either because of the first breach of condition or a subsequent breach.  The FSC will be able to revoke accreditation even if a period of suspension has not ended or the fulfilling of any condition not met.

 

Regulation 18 -- Notices under this Division

 

Regulation 18 requires the FSC to give notice of his or her decision to:

 

*         impose a further condition on an accredited person (and include in the notice the terms of the condition);

*         suspend a person's accreditation (and include in the notice the date of suspension); or

*         revoke a person's accreditation (and include in the notice the date of revocation).

 

The notice will also set out the reasons for the decisions and how the person can have the decision reviewed (paragraph 18(4)(b)).

 

Division 2.8                            Review of decisions

 

Subdivision A                         Reviewable decisions

 

Regulation 19 -- Reviewable decisions

 

Regulation 19 sets out what decisions by the FSC are reviewable.

 

Regulation 20 -- Internal review of decisions

 

Regulation 20 provides for an application to be made to the FSC for review of a decision made by the FSC or delegate provided a request for review is made within 28 days after the person received notification of the decision.  

The regulation provides that after receiving a written application for a review of a decision, the FSC must provide for the decision to be reviewed by someone who was not involved in the initial decision making.

The reviewer of the decision can affirm, vary or set aside the initial decision and in the case where the reviewer sets aside the decision the reviewer may make another decision.  For example, a reviewer can decide to set aside an initial decision to suspend and impose a further condition on the person's accreditation (subregulation 20(5)).

Subregulation 20(6) details when the reviewer's decision takes effect.  If the appellant does not receive notice of the review within 90 days after his or her request has been received the initial decision is taken to have been affirmed (subregulation 20(7)).

Regulation 21 -- Notice of decisions

Regulation 21 provides that the reviewer must review the original decision within 28 days, and provide advice to the appellant of the outcome of the review and his or her further review rights.

 

Subdivision C                         AAT review of reviewable decisions

 

Regulation 22 -- AAT review

 

Regulation 22 allows an appellant not satisfied with the outcome of the internal review, to apply to Administrative Appeals Tribunal for a review of the reviewer's decision.

Division 2.9                            Exemption from suit

Regulation 23 -- Exemption from suit

Subregulation 23(1) confers limited immunity from suit for protected persons, including the FSC and FSOs, when exercising powers under the Regulations in relation to any loss or injury that may be suffered by a person in certain circumstances.

Subregulation 23(2) lists protected persons for the purposes of the regulation.

Part 3                                      Prescribed contracts

Regulation 24 -- Prescribed contracts

Regulation 24 prescribes contracts for the purposes of subsection
35 (4) of the BCII Act.

The effect of the regulation is be that if:

*         a person wishes to enter into a Commonwealth building contract with the Commonwealth or a Commonwealth authority on or after 1 March 2006; and

*         the value of the contract would be $6,000,000 or more; and

*         the contract is for building work in Australia;

the person must be an accredited person.

 

 

 

 

 

 

 


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