building and construction industry (improving productivity

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 i

Contents

Chapter 1—Preliminary 1 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 2 3 Main object of this Act ...................................................................... 2 4 Simplified outline of this Act ............................................................ 3 5 Definitions ......................................................................................... 4 6 Meaning of building work ............................................................... 13 7 Meaning of industrial action ........................................................... 14 8 Meaning of protected industrial action ........................................... 16 9 Meaning of ancillary site ................................................................. 16 10 Extension of Act to Christmas Island and Cocos (Keeling)

Islands.............................................................................................. 17 11 Extension of Act to EEZ and waters above continental shelf .......... 17 12 Geographical application of offences .............................................. 17 13 Act to bind Crown ........................................................................... 17

Chapter 2—The Australian Building and

Construction Commissioner 19

Part 1—Simplified outline of this Chapter 19 14 Simplified outline of this Chapter .................................................... 19

Part 2—The Australian Building and Construction

Commissioner 20 15 ABC Commissioner and Deputy ABC Commissioners ................... 20 16 Functions of ABC Commissioner .................................................... 20 17 Minister’s directions to ABC Commissioner ................................... 21 18 Minister may require reports ........................................................... 21 19 Delegation by ABC Commissioner ................................................. 22 20 Annual report ................................................................................... 22 21 Appointment .................................................................................... 23 22 Acting appointments ........................................................................ 24 23 Remuneration .................................................................................. 24 24 Leave of absence ............................................................................. 24 25 Engaging in other paid employment ................................................ 25 26 Disclosure of interests ..................................................................... 25 27 Resignation ...................................................................................... 25 28 Termination ..................................................................................... 25

ii Building and Construction Industry (Improving Productivity) Bill 2013 No. , 2013

Part 3—The Australian Building and Construction

Commission 27 29 The Australian Building and Construction Commission ................. 27 30 Staff ................................................................................................. 27 31 Persons assisting the ABC Commissioner ....................................... 27 32 Consultants ...................................................................................... 28

Chapter 3—The Building Code 29 33 Simplified outline of this Chapter .................................................... 29 34 Minister may issue Building Code................................................... 29 35 Building industry participants to report on compliance with

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

Chapter 4—The Federal Safety Commissioner 31


Part 2—The Federal Safety Commissioner 32 37 Federal Safety Commissioner .......................................................... 32 38 Functions of Federal Safety Commissioner ..................................... 32 39 Minister’s directions to Federal Safety Commissioner .................... 32 40 Delegation by Federal Safety Commissioner................................... 33 41 Acting Federal Safety Commissioner .............................................. 34 42 Consultants ...................................................................................... 34

Part 3—WHS Accreditation Scheme for Commonwealth

building work 35 43 WHS Accreditation Scheme for Commonwealth building

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

Chapter 5—Unlawful action 37 44 Simplified outline of this Chapter .................................................... 37 45 Action to which this Chapter applies ............................................... 37 46 Unlawful industrial action prohibited .............................................. 37 47 Unlawful picketing prohibited ......................................................... 38 48 Injunction against unlawful industrial action or picket .................... 38 49 Payments relating to periods of industrial action ............................. 39

No. , 2013 Building and Construction Industry (Improving Productivity) Bill 2013 iii

Chapter 6—Coercion, discrimination and

unenforceable agreements 40


Part 2—Coercion and discrimination 41

Division 1—Civil penalties 41 51 Action to which this Part applies ..................................................... 41 52 Coercion relating to allocation of duties etc. to particular

person .............................................................................................. 41 53 Coercion relating to superannuation ................................................ 42 54 Coercion of persons to make, vary, terminate etc. enterprise

agreements etc. ................................................................................ 42 55 Coverage by particular instruments ................................................. 43

Division 2—General provisions 44 56 Multiple reasons for action .............................................................. 44 57 Reason for action to be presumed unless proved otherwise ............. 44 58 Advising, encouraging, inciting or coercing action ......................... 44

Part 3—Unenforceable agreements 46 59 Project agreements not enforceable ................................................. 46

Chapter 7—Powers to obtain information 47


Part 2—Examination notices 48 61 ABC Commissioner may give examination notice .......................... 48 62 Offence for failing to comply with examination notice ................... 49 63 Payment for expenses incurred in attending an examination ........... 50 64 ABC Commissioner must notify Commonwealth

Ombudsman of issue of examination notice .................................... 50 65 Review and report by Commonwealth Ombudsman ....................... 50

Part 3—Powers of Australian Building and Construction

Inspectors and Federal Safety Officers 53

Division 1—Appointment of Australian Building and

Construction Inspectors 53 66 Australian Building and Construction Inspectors ............................ 53 67 Identity cards for inspectors............................................................. 54

iv Building and Construction Industry (Improving Productivity) Bill 2013 No. , 2013

Division 2—Appointment of Federal Safety Officers 56 68 Federal Safety Officers .................................................................... 56 69 Identity cards for Federal Safety Officers ........................................ 57

Division 3—Powers of authorised officers 58 70 Purposes for which powers of authorised officers may be

exercised .......................................................................................... 58 71 When powers of authorised officers may be exercised .................... 59 72 Power of authorised officers to enter premises ................................ 59 73 Showing identity card before entry .................................................. 61 74 Powers of authorised officers while on premises ............................. 61 75 Persons assisting authorised officers ............................................... 62 76 Power to ask for person’s name and address ................................... 62 77 Power to require persons to produce records or documents ............. 63 78 Hindering or obstructing authorised officers ................................... 63 79 Power to keep records or documents ............................................... 64

Chapter 8—Enforcement 65


Part 2—Orders for contraventions of civil remedy provisions 66

Division 1—Obtaining an order for contravention of civil

remedy provision 66 81 Penalty etc. for contravention of civil remedy provision ................. 66 82 Interest up to judgement .................................................................. 68 83 Conduct contravening more than one civil remedy provision ......... 68 84 Multiple contraventions ................................................................... 68 85 Proceedings may be heard together ................................................. 68 86 Civil evidence and procedure rules for proceedings relating

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

Division 2—Civil proceedings and criminal proceedings 70 87 Civil proceedings after criminal proceedings .................................. 70 88 Criminal proceedings during civil proceedings ............................... 70 89 Criminal proceedings after civil proceedings .................................. 70 90 Evidence given in civil proceedings not admissible in

criminal proceedings ....................................................................... 70 91 Civil double jeopardy ...................................................................... 71

Division 3—Miscellaneous 72 92 Ancillary contravention of civil remedy provisions ......................... 72 93 Exceptions etc. to civil remedy provisions—burden of proof.......... 72

No. , 2013 Building and Construction Industry (Improving Productivity) Bill 2013 v

94 Liability of bodies corporate ............................................................ 72 95 Actions of building associations ...................................................... 73 96 Unincorporated building associations .............................................. 74 97 Capacity, state of mind etc. of person being coerced etc. ................ 74

Part 3—Other powers of enforcement for inspectors 76 98 Enforceable undertakings relating to contraventions of civil

remedy provisions ........................................................................... 76 99 Compliance notices ......................................................................... 77 100 Review of compliance notices ......................................................... 79

Chapter 9—Miscellaneous 80


Part 2—Provisions relating to information 81

Division 1—Provisions relating to requirements to provide

information 81 102 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 84 105 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. 90 108 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 93 113 Jurisdiction of the Federal Court ..................................................... 93

vi Building and Construction Industry (Improving Productivity) Bill 2013 No. , 2013

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 96 118 ABC Commissioner etc. not liable for conduct in good faith .......... 96 119 Delegation by Minister .................................................................... 96 120 Rules and regulations ...................................................................... 97

No. , 2013 Building and Construction Industry (Improving Productivity) Bill 2013 1

A Bill for an Act to re-establish the Australian 1

Building and Construction Commissioner, and for 2

related purposes 3

The Parliament of Australia enacts: 4

Chapter 1—Preliminary 5

6 7

1 Short title 8

This Act may be cited as the Building and Construction Industry 9

(Improving Productivity) Act 2013. 10

Chapter 1 Preliminary

Section 2

2 Building and Construction Industry (Improving Productivity) Bill 2013 No. , 2013

2 Commencement 1

(1) Each provision of this Act specified in column 1 of the table 2

commences, or is taken to have commenced, in accordance with 3

column 2 of the table. Any other statement in column 2 has effect 4

according to its terms. 5

6

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 7

enacted. It will not be amended to deal with any later amendments of 8

this Act. 9

(2) Any information in column 3 of the table is not part of this Act. 10

Information may be inserted in this column, or information in it 11

may be edited, in any published version of this Act. 12

3 Main object of this Act 13

(1) The main object of this Act is to provide an improved workplace 14

relations framework for building work to ensure that building work 15

is carried out fairly, efficiently and productively for the benefit of 16

all building industry participants and for the benefit of the 17

Australian economy as a whole. 18

(2) This Act aims to achieve its main object by the following means: 19

(a) improving the bargaining framework so as to further 20

encourage genuine bargaining at the workplace level; 21

Preliminary Chapter 1

Section 4


(b) promoting respect for the rule of law; 1

(c) ensuring respect for the rights of building industry 2

participants; 3

(d) ensuring that building industry participants are accountable 4

for their unlawful conduct; 5

(e) providing effective means for investigating and enforcing this 6

Act, designated building laws (to the extent that those laws 7

relate to building work) and the Building Code; 8

(f) improving work health and safety in building work; 9

(g) encouraging the pursuit of high levels of employment in the 10

building industry; 11

(h) providing assistance and advice to building industry 12

participants in connection with their rights and obligations 13

under this Act, designated building laws and the Building 14

Code. 15

4 Simplified outline of this Act 16

This Act regulates certain conduct of building industry participants 17

who perform building work. 18

The Australian Building and Construction Commissioner, and 19

those who are part of the Australian Building and Construction 20

Commission, exercise powers and perform functions in relation to 21

building work. For example, the ABC Commissioner and other 22

inspectors investigate, monitor and promote compliance with this 23

Act, the Building Code and designated building laws. Designated 24

building laws are specified workplace relations laws and industrial 25

instruments under those laws. The Building Code is a code of 26

practice issued under this Act in respect of building work that 27

certain persons must comply with. 28

The Federal Safety Commissioner, and Federal Safety Officers, are 29

responsible for promoting work health and safety in relation to 30

building work. They also have a role in relation to the Work Health 31

and Safety Accreditation Scheme, which is a scheme prescribed by 32

the rules for accrediting persons who carry out building work 33

funded by the Commonwealth or a Commonwealth authority. 34


Section 5


Unlawful industrial action and unlawful picketing are prohibited by 1

this Act, and anyone can obtain an injunction to prevent this 2

happening. Other action relating to coercion and discrimination is 3

also prohibited by this Act. 4

The ABC Commissioner, inspectors and Federal Safety Officers 5

are given powers to obtain information. The ABC Commissioner 6

can demand information by giving a person an examination notice. 7

Inspectors and Federal Safety Officers can also enter premises for 8

certain purposes. There are protections for, and limitations on the 9

use of, information that is provided under this Act. 10

Inspectors and affected persons are able to apply to certain courts 11

when a person contravenes a civil remedy provision. The court 12

may order a pecuniary penalty, grant an injunction or make another 13

order. The ABC Commissioner and inspectors have other powers 14

to enforce compliance with this Act (such as being able to accept 15

enforceable undertakings). 16

The ABC Commissioner can intervene in, or institute, court or 17

FWC proceedings. The ABC Commissioner can also publicise 18

non-compliance with this Act, designated building laws and the 19

Building Code. 20

5 Definitions 21

In this Act: 22

ABC Commissioner means the Australian Building and 23

Construction Commissioner referred to in subsection 15(1). 24

accredited person means a person who is accredited under the 25

WHS Accreditation Scheme. 26

ancillary site has the meaning given by section 9. 27

assistant means: 28

(a) a Deputy ABC Commissioner; or 29

(b) an inspector; or 30


Section 5


(c) for an examination notice requiring a person to give 1

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

or (b): 3

(i) a member of staff referred to in subsection 30(1); or 4

(ii) a consultant under section 32. 5

authorised applicant for an order relating to a contravention of a 6

civil remedy provision means: 7

(a) the ABC Commissioner or any other inspector; or 8

(b) a person affected by the contravention; or 9

(c) a person prescribed by the rules for the purposes of this 10

paragraph. 11

Rules prescribing persons for the purposes of paragraph (c) may 12

provide that a person is prescribed only in relation to circumstances 13

specified in the rules. 14

authorised officer means an inspector or a Federal Safety Officer. 15

bargaining representative has the meaning given by the FW Act. 16

builder has the meaning given by subsection 43(8). 17

building agreement means an agreement that applies to building 18

work (whether or not it also applies to other work). 19

building association means an industrial association whose rules 20

allow membership by members of at least one of the following 21

groups: 22

(a) building employers; 23

(b) building employees; 24

(c) building contractors; 25

whether or not those rules also allow membership by other persons. 26

Building Code means the code of practice referred to in section 34. 27

building contractor means a person who has entered into, or who 28

has offered to enter into, a contract for services under which the 29

person: 30

(a) carries out building work; or 31

(b) arranges for building work to be carried out. 32


Section 5


building employee means: 1

(a) a person whose employment consists of, or includes, building 2

work; or 3

(b) a person who accepts an offer of engagement as an employee 4

for work that consists of, or includes, building work. 5

building employer means an employer who employs, or offers to 6

employ, building employees. 7

building enterprise agreement means an enterprise agreement that 8

applies to building work (whether or not it also applies to other 9

work). 10

building industry law enforcement has the meaning given by 11

section 106. 12

building industry participant means any of the following: 13

(a) a building employer; 14

(b) a building employee; 15

(c) a building contractor; 16

(d) a person who enters into a contract with a building contractor 17

under which the building contractor agrees to carry out 18

building work or to arrange for building work to be carried 19

out; 20

(e) a building association; 21

(f) an officer, delegate or other representative of a building 22

association. 23

building matter means a matter that relates to a building industry 24

participant. 25

building site means a site at which building work is being or may 26

be performed. 27

building work has the meaning given by section 6. 28

civil penalty order means an order under paragraph 81(1)(a). 29

civil remedy provision means: 30

(a) a Grade A civil remedy provision; or 31

(b) a Grade B civil remedy provision. 32


Section 5


Commission means the Australian Building and Construction 1

Commission referred to in subsection 29(2). 2

Commissioner means the ABC Commissioner or a Deputy ABC 3

Commissioner. 4

Commonwealth authority has the meaning given by the 5

Commonwealth Authorities and Companies Act 1997. 6

Commonwealth industrial instrument means any of the following: 7

(a) an award or transitional award (within the meaning of the 8

FW Transitional Act); 9

(b) a workplace agreement (within the meaning of the FW 10

Transitional Act); 11

(c) a pre-reform certified agreement or a pre-reform AWA 12

(within the meaning of the FW Transitional Act); 13

(d) an order of the Australian Industrial Relations Commission 14

or the FWC; 15

(e) the Australian Fair Pay and Conditions Standard (within the 16

meaning of the FW Transitional Act); 17

(f) a fair work instrument (within the meaning of the FW Act); 18

(g) the National Employment Standards (within the meaning of 19

the FW Act). 20

Commonwealth Ombudsman means the person for the time being 21

holding office as Ombudsman under the Ombudsman Act 1976. 22

Commonwealth place means a place referred to in paragraph 52(i) 23

of the Constitution, other than the seat of government. 24

compliance powers means functions and powers conferred on an 25

authorised officer. 26

compliance purposes means: 27

(a) for an inspector—the purposes referred to in 28

subsection 70(1); or 29

(b) for a Federal Safety Officer—the purposes referred to in 30

subsection 70(2). 31

conduct includes an omission. 32


Section 5


constitutional corporation means a corporation to which 1

paragraph 51(xx) of the Constitution applies. 2

constitutionally-covered entity means: 3

(a) a constitutional corporation; or 4

(b) the Commonwealth; or 5

(c) a Commonwealth authority; or 6

(d) a body corporate incorporated in a Territory; or 7

(e) an organisation. 8

copy a document includes take extracts from the document. 9

Deputy ABC Commissioner means a Deputy Australian Building 10

and Construction Commissioner referred to in subsection 15(2). 11

designated building law means: 12

(a) the Independent Contractors Act 2006, the FW Act or the 13

FW Transitional Act; or 14

(b) a Commonwealth industrial instrument. 15

designated official means any of the following: 16

(a) the ABC Commissioner; 17

(b) a Deputy ABC Commissioner; 18

(c) an inspector; 19

(d) a member of staff referred to in subsection 30(1); 20

(e) a person assisting the ABC Commissioner under section 31; 21

(f) a person engaged as a consultant under section 32; 22

(g) the General Manager of the FWC; 23

(h) the Commonwealth Ombudsman, a Deputy Commonwealth 24

Ombudsman or a member of the staff referred to in 25

subsection 31(1) of the Ombudsman Act 1976; 26

(i) a person acting under a delegation under this Act from a 27

person referred to in any of the preceding paragraphs. 28

disclose means divulge or communicate. 29

employee has its ordinary meaning, and: 30

(a) includes an individual who is usually an employee within that 31

meaning; but 32


Section 5


(b) does not include an individual on a vocational placement. 1

employer has its ordinary meaning, and includes a person that is 2

usually an employer within that meaning. 3

enterprise agreement has the same meaning as in the FW Act. 4

entrusted person has the meaning given by subsection 106(1). 5

evidential burden, in relation to a matter, means the burden of 6

adducing or pointing to evidence that suggests a reasonable 7

possibility that the matter exists or does not exist. 8

examination means an attendance by a person, before the ABC 9

Commissioner or an assistant, where the person is required as a 10

result of an examination notice to answer questions relevant to an 11

investigation. 12

examination notice means an examination notice issued under 13

Part 2 of Chapter 7. 14

Federal Circuit Court means the Federal Circuit Court of 15

Australia. 16

Federal Court means the Federal Court of Australia. 17

Federal Safety Commissioner means the Federal Safety 18

Commissioner referred to in section 37. 19

Federal Safety Officer means: 20

(a) the Federal Safety Commissioner; or 21

(b) a person appointed as a Federal Safety Officer under 22


full-time Commissioner means: 24

(a) the ABC Commissioner; or 25

(b) a Deputy ABC Commissioner appointed on a full-time basis. 26

FW Act means the Fair Work Act 2009. 27

FWC means the Fair Work Commission. 28


Section 5


FW Transitional Act means the Fair Work (Transitional 1

Provisions and Consequential Amendments) Act 2009. 2

Grade A civil remedy provision means: 3

(a) a section of this Act (other than a section that is divided into 4

subsections) that has a note at its foot stating “Grade A civil 5

penalty”; or 6

(b) a subsection of this Act that has a note at its foot stating 7

“Grade A civil penalty”. 8

Note: The maximum penalty for a Grade A civil remedy provision is 1,000 9

penalty units for bodies corporate, and otherwise 200 penalty units 10

(see subsection 81(2)). 11

Grade B civil remedy provision means: 12

(a) a section of this Act (other than a section that is divided into 13

subsections) that has a note at its foot stating “Grade B civil 14

penalty”; or 15

(b) a subsection of this Act that has a note at its foot stating 16

“Grade B civil penalty”. 17

Note: The maximum penalty for a Grade B civil remedy provision is 100 18

penalty units for bodies corporate, and otherwise 20 penalty units (see 19

subsection 81(2)). 20

independent contractor has the same meaning as in the FW Act. 21

industrial action has the meaning given by section 7. 22

industrial association means: 23

(a) an association of employees or independent contractors, or 24

both, or an association of employers, that is registered or 25

recognised as such an association (however described) under 26

a workplace law (within the meaning of the FW Act); or 27

(b) an association of employees, or independent contractors, or 28

both, a purpose of which is the protection and promotion of 29

their interests in matters concerning their employment, or 30

their interests as independent contractors; or 31

(c) an association of employers a principal purpose of which is 32

the protection and promotion of their interests in matters 33

concerning employment, independent contractors or both; 34

and includes: 35


Section 5


(d) a branch of such an association; and 1

(e) an organisation; and 2

(f) a branch of an organisation. 3

inspector means: 4

(a) the ABC Commissioner; or 5

(b) a person appointed as an Australian Building and 6

Construction Inspector under subsection 66(1). 7

land has a meaning affected by subsection 6(6). 8

lawyer means a person who is admitted to the legal profession by a 9

Supreme Court of a State or Territory. 10

lockout has the meaning given by subsection 7(3). 11

occupier has the same meaning as in the FW Act. 12

officer, in relation to an organisation or industrial association, 13

means a person who holds an office in, or is an employee of, the 14

organisation or association. 15

official employment has the meaning given by subsection 106(8). 16

organisation has the same meaning as in the Fair Work 17

(Registered Organisations) Act 2009. 18

part-time Commissioner means a Deputy ABC Commissioner 19

appointed on a part-time basis. 20

person has a meaning affected by section 96. 21

pre-construction agreement has the meaning given by 22


premises has the same meaning as in the FW Act. 24

protected industrial action has the meaning given by section 8. 25

protected information means information that: 26

(a) was disclosed or obtained under an examination notice or at 27

an examination; and 28


Section 5


(b) was obtained by an entrusted person in the course of official 1

employment; and 2

(c) relates to a person other than the entrusted person. 3

protected person has the meaning given by subsection 8(3). 4

relevant court means each of the following courts: 5

(a) the Federal Court; 6

(b) the Federal Circuit Court; 7

(c) a Supreme Court of a State or Territory; 8

(d) a District Court, or County Court, of a State. 9

relevant State or Territory court means each of the following 10

courts: 11

(a) a District, County or Local Court of a State; 12

(b) a magistrates court; 13

(c) the Industrial Relations Court of South Australia; 14

(d) the Industrial Court of New South Wales; 15

(e) any other State or Territory court that is prescribed by the 16

rules. 17

resources platform means an artificial island, installation or 18

structure attached to the seabed for the purpose of exploration for, 19

or exploitation of, resources or for other economic purposes. 20

Secretary means the Secretary of the Department. 21

single enterprise has the meaning given by subsection 59(2). 22

this Act includes the rules and the regulations. 23

unlawful industrial action: action is unlawful industrial action if: 24

(a) the action is industrial action (see section 7); and 25

(b) the action is not protected industrial action (see section 8). 26

unlawful picket has the meaning given by subsection 47(2). 27

WHS Accreditation Scheme means the Work Health and Safety 28

Accreditation Scheme referred to in section 43. 29


Section 6


6 Meaning of building work 1

(1) Subject to subsections (3), (4) and (5), building work means any of 2

the following activities: 3

(a) the construction, alteration, extension, restoration, repair, 4

demolition or dismantling of buildings, structures or works 5

that form, or are to form, part of land, whether or not the 6

buildings, structures or works are permanent; 7

(b) the construction, alteration, extension, restoration, repair, 8

demolition or dismantling of railways (not including rolling 9

stock) or docks; 10

(c) the installation in any building, structure or works of fittings 11

forming, or to form, part of land, including heating, lighting, 12

air-conditioning, ventilation, power supply, drainage, 13

sanitation, water supply, fire protection, security and 14

communications systems; 15

(d) any operation that is part of, or is preparatory to, or is for 16

rendering complete, work covered by paragraph (a), (b) or 17

(c), for example: 18

(i) site clearance, earth-moving, excavation, tunnelling and 19

boring; or 20

(ii) the laying of foundations; or 21

(iii) the erection, maintenance or dismantling of scaffolding; 22

or 23

(iv) the prefabrication of made-to-order components to form 24

part of any building, structure or works, whether carried 25

out on-site or off-site; or 26

(v) site restoration, landscaping and the provision of 27

roadways and other access works; 28

(e) transporting or supplying goods, to be used in work covered 29

by paragraph (a), (b), (c) or (d), directly to building sites 30

(including any resources platform) where that work is being 31

or may be performed; 32

but does not include any of the following: 33

(f) the drilling for, or extraction of, oil or natural gas; 34

(g) the extraction (whether by underground or surface working) 35

of minerals, including tunnelling or boring, or constructing 36

underground works, for that purpose; 37


Section 7


(h) any work that is part of a project for: 1

(i) the construction, repair or restoration of a single 2

dwelling-house; or 3

(ii) the construction, repair or restoration of any building, 4

structure or work associated with a single 5

dwelling-house; or 6

(iii) the alteration or extension of a single dwelling-house, if 7

it remains a single dwelling-house after the alteration or 8

extension. 9

(2) To avoid doubt, paragraphs (1)(f) and (g) do not prevent this Act 10

from applying to building work (within the meaning of 11

paragraphs (1)(a) to (e)) that is performed on land in which there is 12

an interest relating to the mining of oil, gas or minerals. 13

Note: This Act extends to any resources platform, and to certain ships, in the 14

exclusive economic zone or in the waters above the continental shelf 15

(see section 11). 16

(3) Paragraph (1)(h) does not apply if the project is part of a 17

multi-dwelling development that consists of, or includes, the 18

construction of at least 5 single dwelling-houses. 19

(4) Subject to subsection (5), building work includes any activity that 20

is prescribed by the rules for the purposes of this subsection. 21

(5) Building work does not include any activity that is prescribed by 22

the rules for the purposes of this subsection. 23

(6) In this Act: 24

land includes land beneath water. 25

7 Meaning of industrial action 26

(1) Industrial action is action of any of the following kinds: 27

(a) the performance of building work by an employee in a 28

manner different from that in which it is customarily 29

performed, or the adoption of a practice in relation to 30

building work by an employee, the result of which is a 31

restriction or limitation on, or a delay in, the performance of 32

the work; 33


Section 7


(b) a ban, limitation or restriction on the performance of building 1

work by an employee or on the acceptance of or offering for 2

building work by an employee; 3

(c) a failure or refusal: 4

(i) by employees to attend work, where that work is 5

building work; or 6

(ii) to perform any building work at all by employees who 7

attend work, where that work is building work; 8

(d) the lockout of employees from their work by their employer, 9

where that work is building work. 10

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred 11

Industries Union v The Age Company Limited, PR946290, the Full 12

Bench of the Australian Industrial Relations Commission considered 13

the nature of industrial action and noted that action will not be 14

industrial in character if it stands completely outside the area of 15

disputation and bargaining. 16

(2) However, industrial action does not include the following: 17

(a) action by employees that is authorised or agreed to, in 18

advance and in writing, by the employer of the employees; 19

(b) action by an employer that is authorised or agreed to, in 20

advance and in writing, by, or on behalf of, employees of the 21

employer; 22

(c) action by an employee if: 23

(i) the action was based on a reasonable concern of the 24

employee about an imminent risk to his or her health or 25

safety; and 26

(ii) the employee did not unreasonably fail to comply with a 27

direction of his or her employer to perform other 28

available work, whether at the same or another 29

workplace, that was safe and appropriate for the 30

employee to perform. 31

When there is a lockout 32

(3) There is a lockout of employees from their work by an employer if 33

the employer prevents the employees from performing work under 34

their contracts of employment without terminating those contracts. 35


Section 8


Burden of proof on employee taking action based on concern to 1

health or safety 2

(4) Whenever a person seeks to rely on paragraph (2)(c), the person 3

has the burden of proving the paragraph applies. 4

8 Meaning of protected industrial action 5

(1) Action is protected industrial action if the action is protected 6

industrial action within the meaning of the FW Act. 7

(2) However, action is not protected industrial action if the action is 8

protected industrial action (within the meaning of the FW Act) for 9

a proposed enterprise agreement but: 10

(a) the action is engaged in in concert with one or more persons 11

who are not protected persons; or 12

(b) the organisers include one or more persons who are not 13

protected persons. 14

(3) The following persons are protected persons: 15

(a) an employee organisation (within the meaning of the FW 16

Act) that is a bargaining representative for the proposed 17

enterprise agreement; 18

(b) a member of such an organisation who is employed by the 19

employer and who will be covered by the proposed enterprise 20

agreement; 21

(c) an officer of such an organisation acting in that capacity; 22

(d) an employee who is a bargaining representative for the 23

proposed enterprise agreement. 24

9 Meaning of ancillary site 25

A site is an ancillary site if the site is: 26

(a) a site from which goods are transported or supplied, or 27

building industry participants are transported, directly to a 28

building site; or 29

(b) a site where a building industry participant, who is 30

performing building work, or managing building work that is 31


Section 10


being performed, on a building site, does work relating to the 1

building work. 2

10 Extension of Act to Christmas Island and Cocos (Keeling) Islands 3

(1) This Act extends to the Territory of Christmas Island and to the 4

Territory of Cocos (Keeling) Islands. 5

(2) This Act applies in relation to the Territory of Christmas Island and 6

to the Territory of Cocos (Keeling) Islands with any modifications 7

that are prescribed by the rules. 8

11 Extension of Act to EEZ and waters above continental shelf 9

(1) This Act extends to or in relation to: 10

(a) any resources platform in the exclusive economic zone or in 11

the waters above the continental shelf; and 12

(b) any ship, in the exclusive economic zone or in the waters 13

above the continental shelf, that is travelling to or from (or 14

both to and from) an Australian port. 15

Extensions prescribed by rules 16

(2) Without limiting subsection (1), if the rules prescribe further 17

extensions of this Act, or specified provisions of this Act, to or in 18

relation to the exclusive economic zone or to the waters above the 19

continental shelf, then this Act extends accordingly. 20

12 Geographical application of offences 21

Division 14 (standard geographical jurisdiction) of the Criminal 22

Code does not apply in relation to an offence against this Act. 23

Note: The extended geographical application that section 11 gives to this 24

Act will apply to the offences in this Act. 25

13 Act to bind Crown 26

(1) This Act binds the Crown in each of its capacities. 27


Section 13


(2) Nothing in this Act renders the Commonwealth or a State or 1

Territory liable to be prosecuted for an offence. 2

The Australian Building and Construction Commissioner Chapter 2

Simplified outline of this Chapter Part 1

Section 14


Chapter 2—The Australian Building and 1

Construction Commissioner 2

Part 1—Simplified outline of this Chapter 3

4

14 Simplified outline of this Chapter 5

Many of the functions and powers under this Act are conferred on 6

the Australian Building and Construction Commissioner (or the 7

ABC Commissioner) and those who are part of the Australian 8

Building and Construction Commission. 9

The Commissioner is appointed under and the Commission is 10

established by this Chapter. This Chapter also includes the terms 11

and conditions of the Commissioner, the staff of the Commission, 12

and the people who assist the Commissioner. 13

Chapter 2 The Australian Building and Construction Commissioner

Part 2 The Australian Building and Construction Commissioner

Section 15


Part 2—The Australian Building and Construction 1

Commissioner 2

3

15 ABC Commissioner and Deputy ABC Commissioners 4

(1) There is to be an Australian Building and Construction 5

Commissioner. 6

(2) The ABC Commissioner is to be assisted by the number of Deputy 7

Australian Building and Construction Commissioners appointed 8

from time to time. 9

16 Functions of ABC Commissioner 10

The ABC Commissioner has the following functions: 11

(a) monitoring and promoting appropriate standards of conduct 12

by building industry participants, including by: 13

(i) monitoring and promoting compliance with this Act, 14

designated building laws and the Building Code by 15

building industry participants; and 16

(ii) referring matters to other relevant agencies and bodies; 17

(b) investigating suspected contraventions, by building industry 18

participants, of this Act, designated building laws or the 19

Building Code; 20

(c) instituting, or intervening in, proceedings in accordance with 21

this Act; 22

(d) providing assistance and advice to building industry 23

participants regarding their rights and obligations under this 24

Act, designated building laws and the Building Code; 25

(e) providing representation to a building industry participant 26

who is, or might become, a party to a proceeding under this 27

Act, a designated building law or the Building Code, if the 28

ABC Commissioner considers that providing the 29

representation would promote the enforcement of this Act, 30

the law or the Code; 31


The Australian Building and Construction Commissioner Part 2

Section 17


(f) disseminating information about this Act, designated building 1

laws and the Building Code, and about other matters 2

affecting building industry participants, including 3

disseminating information by facilitating ongoing discussions 4

with building industry participants; 5

(g) any other functions conferred on the ABC Commissioner by 6

this Act or by another Act. 7

17 Minister’s directions to ABC Commissioner 8

(1) The Minister may, by legislative instrument, give written directions 9

to the ABC Commissioner specifying the manner in which the 10

ABC Commissioner must exercise the powers or perform the 11

functions of the ABC Commissioner under this Act. 12

(2) The Minister must not give a direction under subsection (1) about a 13

particular case. 14

(3) The ABC Commissioner must comply with a direction under 15

subsection (1). 16

(4) Despite anything in section 44 of the Legislative Instruments Act 17

2003, section 42 of that Act (disallowance of legislative 18

instruments) applies to a direction under subsection (1) of this 19

section. 20

18 Minister may require reports 21

(1) The Minister may, in writing, direct the ABC Commissioner to 22

give the Minister specified reports relating to the ABC 23

Commissioner’s functions and powers. 24

Note: See also section 107, which restricts the disclosure of personal 25

information in a report. 26

(2) The ABC Commissioner must comply with the direction. 27

(3) A direction under subsection (1) is not a legislative instrument. 28



Section 19


19 Delegation by ABC Commissioner 1

(1) The ABC Commissioner may, in writing, delegate all or any of his 2

or her powers and functions under this Act (other than his or her 3

functions or powers as an inspector) to: 4


(b) an inspector; or 6

(c) an SES employee or acting SES employee; or 7

(d) a person (whether or not an SES employee) prescribed by the 8

rules for the purposes of this paragraph. 9

(2) Powers or functions under section 61 (ABC Commissioner may 10

give examination notice) may only be delegated to: 11


(b) if no Deputy ABC Commissioner is currently appointed—an 13

SES employee or acting SES employee. 14

(3) In exercising powers or performing functions under a delegation, 15

the delegate must comply with any directions of the ABC 16

Commissioner. 17

(4) As soon as practicable after delegating any power or function 18

under this section, the ABC Commissioner must publish details of 19

the delegation. 20

(5) The ABC Commissioner may give a direction for the purposes of 21

subsection (3). 22

(6) A written direction under subsection (5) that is of general 23

application is a legislative instrument. 24

(7) A written direction under subsection (5) that relates to a particular 25

case is not a legislative instrument. 26

20 Annual report 27

(1) As soon as practicable after the end of each financial year, the 28

ABC Commissioner must prepare and give to the Minister a report 29

on the operations of the ABC Commissioner during that year. 30

(2) The report must include: 31



Section 21


(a) details of the number, and type, of matters that were 1

investigated by the ABC Commissioner during the financial 2

year; and 3

(b) details of assistance and advice provided during the financial 4

year to building industry participants; and 5

(c) details of the extent to which the Building Code was 6

complied with during the financial year. 7

Note: See also section 107, which restricts the disclosure of personal 8

information in a report. 9

(3) The report must also include: 10

(a) details of directions given by the Minister during the 11

financial year under section 17 or 18; and 12

(b) details of delegations by the ABC Commissioner under 13

section 19 during the financial year. 14

(4) The Minister may notify the ABC Commissioner in writing of 15

particular work health and safety matters that need not be covered 16

in the paragraph (2)(c) part of the report. 17

(5) The Minister must cause a copy of the report to be laid before each 18

House of the Parliament within 15 sitting days of that House after 19

its receipt by the Minister. 20

21 Appointment 21

(1) A Commissioner is to be appointed by the Minister by written 22

instrument. 23

(2) The appointment: 24

(a) is to be on a full-time basis for the ABC Commissioner; and 25

(b) is to be on a full-time basis or part-time basis for a Deputy 26

ABC Commissioner. 27

(3) The Minister must not appoint a person as a Commissioner unless 28

the Minister is satisfied that the person: 29

(a) has suitable qualifications or experience; and 30

(b) is of good character. 31



Section 22


(4) A Commissioner holds office for the period specified in the 1

instrument of appointment. The period must not exceed 5 years. 2

(5) A Commissioner holds office on the terms and conditions (if any) 3

in relation to matters not covered by this Act that are determined 4

by the Minister. 5

22 Acting appointments 6

The Minister may, by written instrument, appoint a person to act as 7

the ABC Commissioner: 8

(a) during a vacancy in the office of ABC Commissioner 9

(whether or not an appointment has previously been made to 10

the office); or 11

(b) during any period, or during all periods, when the ABC 12

Commissioner: 13

(i) is absent from duty or from Australia; or 14

(ii) is, for any reason, unable to perform the duties of the 15

office. 16

Note: For rules that apply to acting appointments, see section 33A of the 17

Acts Interpretation Act 1901. 18

23 Remuneration 19

(1) A Commissioner is to be paid the remuneration that is determined 20

by the Remuneration Tribunal. If no determination of that 21

remuneration by the Tribunal is in operation, a Commissioner is to 22

be paid the remuneration that is prescribed by the rules. 23

(2) A Commissioner is to be paid the allowances that are prescribed by 24

the rules. 25

(3) This section has effect subject to the Remuneration Tribunal Act 26

1973. 27

24 Leave of absence 28

(1) A full-time Commissioner has the recreation leave entitlements 29

that are determined by the Remuneration Tribunal. 30



Section 25


(2) The Minister may grant a full-time Commissioner leave of 1

absence, other than recreation leave, on the terms and conditions as 2

to remuneration or otherwise that the Minister determines. 3

(3) The Minister may grant a part-time Commissioner leave of absence 4

(including recreation leave) on the terms and conditions as to 5

remuneration or otherwise that the Minister determines. 6

25 Engaging in other paid employment 7

(1) A full-time Commissioner must not engage in paid employment 8

outside the duties of his or her office without the Minister’s 9

approval. 10

(2) A part-time Commissioner must not engage in any paid 11

employment that conflicts or may conflict with the proper 12

performance of the Commissioner’s duties. 13

26 Disclosure of interests 14

A Commissioner must give written notice to the Minister of all 15

material personal interests that the Commissioner has or acquires 16

and that conflict or could conflict with the proper performance of 17

the Commissioner’s functions. 18

27 Resignation 19

(1) A Commissioner may resign his or her appointment by giving the 20

Minister a written resignation. 21

(2) The resignation takes effect on the day it is received by the 22

Minister or, if a later day is specified in the resignation, on that 23

later day. 24

28 Termination 25

(1) The Minister may terminate the appointment of a Commissioner: 26

(a) for misbehaviour; or 27

(b) if the Commissioner is unable to perform the duties of his or 28

her office because of physical or mental incapacity. 29



Section 28


(2) The Minister must terminate the appointment of a Commissioner 1

if: 2

(a) the Commissioner: 3

(i) becomes bankrupt; or 4

(ii) takes steps to take the benefit of any law for the relief of 5

bankrupt or insolvent debtors; or 6

(iii) compounds with one or more of his or her creditors; or 7

(iv) makes an assignment of his or her remuneration for the 8

benefit of one or more of his or her creditors; or 9

(b) for a full-time Commissioner: 10

(i) the Commissioner is absent from duty, except on leave 11

of absence, for 14 consecutive days or for 28 days in 12

any 12 months; or 13

(ii) the Commissioner engages, except with the Minister’s 14

approval, in paid employment outside the duties of his 15

or her office (see subsection 25(1)); or 16

(c) for a part-time Commissioner—the Commissioner engages in 17

paid employment that conflicts or could conflict with the 18

proper performance of his or her duties (see 19

subsection 25(2)); or 20

(d) in any case—the Commissioner fails, without reasonable 21

excuse, to comply with section 26 (disclosure of interests). 22


The Australian Building and Construction Commission Part 3

Section 29


Part 3—The Australian Building and Construction 1

Commission 2

3

29 The Australian Building and Construction Commission 4

(1) This section applies to the body, known as the Office of the Fair 5

Work Building Industry Inspectorate, that was established by 6

section 26J of the Fair Work (Building Industry) Act 2012 (as in 7

force before the commencement of this section). 8

(2) That body continues in existence by force of this section, under and 9

subject to the provisions of this Act, under the name of the 10

Australian Building and Construction Commission. 11

30 Staff 12

(1) The staff of the Commission are to be persons engaged under the 13

Public Service Act 1999. 14

(2) For the purposes of the Public Service Act 1999: 15

(a) the ABC Commissioner and the staff of the Commission 16

together constitute a Statutory Agency; and 17

(b) the ABC Commissioner is the Head of that Statutory Agency. 18

31 Persons assisting the ABC Commissioner 19

The ABC Commissioner may also be assisted: 20

(a) by employees of Agencies (within the meaning of the Public 21

Service Act 1999); or 22

(b) by officers or employees of a State or Territory; or 23

(c) by officers or employees of authorities of the 24

Commonwealth, a State or a Territory; 25

whose services are made available to the ABC Commissioner in 26

connection with the performance of any of his or her functions. 27

Note 1: For example, State or Territory employees could be made available to 28

assist the ABC Commissioner in providing education in a particular 29

region. 30


Part 3 The Australian Building and Construction Commission

Section 32


Note 2: See also section 71 of the Public Service Act 1999, which makes 1

provision for State employees to perform services in an Agency (as 2

defined in that Act). 3

32 Consultants 4

(1) The ABC Commissioner may, on behalf of the Commonwealth, 5

engage persons having suitable qualifications and experience as 6

consultants to the ABC Commissioner. 7

(2) The terms and conditions of the engagement of a person are those 8

determined by the ABC Commissioner in writing. 9

The Building Code Chapter 3

Section 33


Chapter 3—The Building Code 1

2 3


The Minister may issue a Building Code under this Chapter. The 5

Building Code is a code of practice that certain persons (such as 6

constitutional corporations and the Commonwealth) must comply 7

with in respect of building work. 8

The ABC Commissioner can require a person to report on his or 9

her compliance with the Building Code. 10

34 Minister may issue Building Code 11

(1) The Minister may, by legislative instrument, issue one or more 12

documents that together constitute a code of practice that is to be 13

complied with by persons in respect of building work. 14

Note: The code is called the Building Code (see the definition of Building 15

Code in section 5). 16

(2) Without limiting subsection (1), the Minister may issue one or 17

more documents under that subsection in relation to work health 18

and safety matters relating to building work. 19

(3) The Building Code cannot require a person to comply with the 20

Code in respect of particular building work (the current work) 21

unless: 22

(a) the person is a building contractor that is a constitutional 23

corporation; or 24

(b) the person is a building industry participant and the current 25

work is to be carried out in a Territory or Commonwealth 26

place; or 27

(c) the person is the Commonwealth or a Commonwealth 28

authority. 29

Chapter 3 The Building Code

Section 35


35 Building industry participants to report on compliance with 1

Building Code 2

(1) The ABC Commissioner may give a written notice to a person who 3

is required to comply with the Building Code in respect of 4

particular building work. 5

Note: See subsection 34(3) for the persons who are required to comply with 6

the Building Code. 7

(2) The notice may direct the person to give a written report to the 8

ABC Commissioner containing specified information about the 9

extent to which the person complied with the Building Code in 10

respect of that building work. 11

(3) The person must comply with the notice within the period specified 12

by the notice. The period must be at least 14 days. 13

Note: Grade B civil penalty. 14

(4) A notice under subsection (1) is not a legislative instrument. 15

The Federal Safety Commissioner Chapter 4


Section 36


Chapter 4—The Federal Safety 1

Commissioner 2


4


The Federal Safety Commissioner is an SES position in the 6

Department. The Commissioner has 2 main functions: in relation to 7

work health and safety in building work and the Work Health and 8

Safety Accreditation Scheme. 9

The Work Health and Safety Accreditation Scheme is a scheme 10

prescribed by the rules. Any person who wishes to carry out 11

building work funded by the Commonwealth or a Commonwealth 12

authority must be accredited by the Federal Safety Commissioner 13

in accordance with the scheme. 14

Chapter 4 The Federal Safety Commissioner

Part 2 The Federal Safety Commissioner

Section 37


Part 2—The Federal Safety Commissioner 1

2

37 Federal Safety Commissioner 3

(1) The Secretary must, by writing, designate a position in the 4

Department as the position of Federal Safety Commissioner. 5

Note: For creation of positions, see section 77 of the Public Service Act 6

1999. 7

(2) That position can only be occupied by an SES employee. 8

(3) The Federal Safety Commissioner is the SES employee who 9

occupies, or the acting SES employee who is acting in, that 10

position. 11

(4) An instrument under subsection (1) is not a legislative instrument. 12

38 Functions of Federal Safety Commissioner 13

The Federal Safety Commissioner has the following functions: 14

(a) promoting work health and safety in relation to building work 15

undertaken by a constitutional corporation, the 16

Commonwealth or a Commonwealth authority; 17

(b) performing functions as the accreditation authority for the 18

purposes of the WHS Accreditation Scheme; 19

(c) promoting the benefits of the WHS Accreditation Scheme 20

and disseminating information about the WHS Accreditation 21

Scheme; 22

(d) referring matters to other relevant agencies and bodies; 23

(e) any other functions conferred on the Federal Safety 24

Commissioner by this Act or by another Act. 25

39 Minister’s directions to Federal Safety Commissioner 26

(1) The Minister may, by legislative instrument, give written directions 27

to the Federal Safety Commissioner specifying the manner in 28

which the Federal Safety Commissioner must exercise the powers 29


The Federal Safety Commissioner Part 2

Section 40


or perform the functions of the Federal Safety Commissioner under 1

this Act. 2

(2) The Minister must not give a direction under subsection (1) about a 3

particular case. 4

(3) The Federal Safety Commissioner must comply with a direction 5

under subsection (1). 6

(4) Despite anything in section 44 of the Legislative Instruments Act 7

2003, section 42 of that Act (disallowance of legislative 8

instruments) applies to a direction under subsection (1) of this 9

section. 10

40 Delegation by Federal Safety Commissioner 11

(1) The Federal Safety Commissioner may, in writing, delegate all or 12

any of his or her powers and functions under this Act to: 13

(a) a Federal Safety Officer; or 14

(b) an SES employee or acting SES employee; or 15

(c) a person (whether or not an SES employee) prescribed by the 16

rules for the purposes of this paragraph. 17

(2) In exercising powers or performing functions under a delegation, 18

the delegate must comply with any directions of the Federal Safety 19

Commissioner. 20

(3) As soon as practicable after delegating any power or function 21

under this section, the Federal Safety Commissioner must publish 22

details of the delegation. 23

(4) The Federal Safety Commissioner may give a direction for the 24

purposes of subsection (2). 25






Part 2 The Federal Safety Commissioner

Section 41


41 Acting Federal Safety Commissioner 1

(1) If an SES employee, or acting SES employee, is acting in the 2

position of Federal Safety Commissioner: 3

(a) the employee has and may exercise all the powers, and is to 4

perform all the functions and duties, of the occupier of the 5

position of Federal Safety Commissioner; and 6

(b) this Act, and any other law of the Commonwealth, applies in 7

relation to the employee as if the employee were the occupier 8

of the position of Federal Safety Commissioner. 9

(2) Anything done by or in relation to a person purporting to act in the 10

position of Federal Safety Commissioner is not invalid merely 11

because the occasion to act had not arisen or had ceased. 12

42 Consultants 13

(1) The Federal Safety Commissioner may, on behalf of the 14

Commonwealth, engage persons having suitable qualifications and 15

experience as consultants to the Federal Safety Commissioner. 16

(2) The terms and conditions of the engagement of a person are those 17

determined by the Federal Safety Commissioner in writing. 18


WHS Accreditation Scheme for Commonwealth building work Part 3

Section 43


Part 3—WHS Accreditation Scheme for 1

Commonwealth building work 2

3

43 WHS Accreditation Scheme for Commonwealth building work 4

Accreditation scheme 5

(1) The rules may prescribe an accreditation scheme, to be known as 6

the Work Health and Safety Accreditation Scheme, for persons 7

who wish to carry out building work funded by the Commonwealth 8

or a Commonwealth authority. 9

(2) The rules must provide for the Federal Safety Commissioner to be 10

the accrediting authority under the scheme. 11

(3) The rules may prescribe fees for applications made under the rules. 12

Commonwealth building work to be carried out by accredited 13

persons 14

(4) The Commonwealth or a Commonwealth authority must not fund 15

building work unless: 16

(a) contracts for the building work will be entered into with 17

builders who are accredited persons; and 18

(b) at the time of the funding, the Commonwealth or 19

Commonwealth authority takes appropriate steps to ensure 20

that builders will be accredited persons when they carry out 21

the building work. 22

This subsection does not apply to building work prescribed by the 23

rules. 24

(5) For the purposes of this section, the Commonwealth or a 25

Commonwealth authority funds building work if it: 26

(a) pays for, or otherwise funds or finances, the building work 27

(whether directly or indirectly); or 28

(b) facilitates the carrying out of the building work by entering 29

into, or otherwise funding or financing (whether directly or 30


Part 3 WHS Accreditation Scheme for Commonwealth building work

Section 43


indirectly), a pre-construction agreement that relates to the 1

building work. 2

(6) If another provision of a law of the Commonwealth is inconsistent 3

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

inconsistency unless the other provision expressly refers to this 5

section. 6

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

anything done by the Commonwealth or a Commonwealth 8

authority in relation to building work. 9

Definitions 10

(8) In this Act: 11

builder, in relation to building work, means a person who carries 12

out any of the building work. 13

pre-construction agreement means an agreement to lease or 14

transfer land, a building or a part of a building on the condition, or 15

on conditions that include the condition, that building work will be 16

carried out on the land, the building or the part of the building. 17

Unlawful action Chapter 5

Section 44


Chapter 5—Unlawful action 1

2 3


Anyone can apply for an injunction under this Chapter to restrain a 5

person from organising or engaging in unlawful industrial action or 6

an unlawful picket that relates to building work. The unlawful 7

industrial action or picket must also relate to a 8

constitutionally-covered entity (such as if the action is taken by or 9

against a constitutionally-covered entity). 10

Unlawful industrial action includes bans on working, employees 11

failing to attend work and employers locking out employees. 12

The provisions of the FW Act relating to strike pay also apply in 13

relation to unlawful industrial action. 14

45 Action to which this Chapter applies 15

This Chapter applies to the following action: 16

(a) action taken by a constitutionally-covered entity; 17

(b) action that affects, is capable of affecting or is taken with 18

intent to affect the activities, functions, relationships or 19

business of a constitutionally-covered entity; 20

(c) action that consists of advising, encouraging or inciting, or 21

action taken with intent to coerce, a constitutionally-covered 22

entity: 23

(i) to take, or not take, particular action in relation to 24

another person; or 25

(ii) to threaten to take, or not take, particular action in 26

relation to another person. 27

46 Unlawful industrial action prohibited 28

A person must not organise or engage in unlawful industrial action. 29

Note: Grade A civil penalty. 30

Chapter 5 Unlawful action

Section 47


47 Unlawful picketing prohibited 1

(1) A person must not organise or engage in an unlawful picket. 2


(2) An unlawful picket is action: 4

(a) that: 5

(i) has the purpose of preventing or restricting a person 6

from accessing or leaving a building site or an ancillary 7

site; or 8

(ii) directly prevents or restricts a person accessing or 9

leaving a building site or an ancillary site; or 10

(iii) would reasonably be expected to intimidate a person 11

accessing or leaving a building site or an ancillary site; 12

and 13

(b) that: 14

(i) is motivated for the purpose of supporting or advancing 15

claims against a building industry participant in respect 16

of the employment of employees or the engagement of 17

contractors by the building industry participant; or 18

(ii) is motivated for the purpose of advancing industrial 19

objectives of a building association; or 20

(iii) is unlawful (apart from this section). 21

Note: See also Division 2 of Part 2 of Chapter 6 (reason for action and 22

coercion). 23

48 Injunction against unlawful industrial action or picket 24

(1) Any person may apply to a relevant court for an injunction under 25

this section. 26

Note: An authorised applicant may also apply under section 81 for an 27

injunction. 28

(2) The court may grant an injunction in the terms the court considers 29

appropriate if the court is satisfied that unlawful industrial action, 30

or an unlawful picket, is: 31

(a) occurring; or 32

(b) threatened, impending or probable; or 33

Unlawful action Chapter 5

Section 49


(c) being organised. 1

(3) The court may grant an interim injunction pending determination 2

of an application under subsection (1) if the court is satisfied that it 3

is desirable to do so. 4

(4) The power of the court to grant an injunction restraining a person 5

(the defendant) from engaging in conduct may be exercised: 6

(a) whether or not it appears to the court that the defendant 7

intends to engage again, or to continue to engage, in conduct 8

of that kind; and 9

(b) whether or not the defendant has previously engaged in 10

conduct of that kind; and 11

(c) whether or not there is an imminent danger of substantial 12

damage to any person if the defendant engages in conduct of 13

that kind. 14

49 Payments relating to periods of industrial action 15

Division 9 of Part 3-3 of the FW Act (payment relating to periods 16

of industrial action) applies in relation to industrial action relating 17

to building work with the following modifications: 18

(a) references in that Division to industrial action are to be read 19

as references to industrial action within the meaning of this 20

Act to which this Chapter applies under section 45; 21

(b) references in that Division to protected industrial action are 22

to be read as references to protected industrial action within 23

the meaning of this Act; 24

(c) if the person who contravenes a civil remedy provision to 25

which any of items 21 to 24 of the table set out in section 539 26

of the FW Act relates is a body corporate—then, for the 27

purposes of subsection 539(2) and paragraph 546(2)(b) of 28

that Act, the pecuniary penalty must not be more than 1,000 29

penalty units. 30

Chapter 6 Coercion, discrimination and unenforceable agreements

Part 1 Simplified outline of this Chapter

Section 50


Chapter 6—Coercion, discrimination and 1

unenforceable agreements 2


4


It is unlawful for a person to do something (or threaten to do 6

something) intending to coerce another person: 7

(a) to employ a person, engage a contractor or allocate 8

duties or responsibilities relating to building work; or 9

(b) in relation to the choice of superannuation fund for the 10

superannuation contributions of a building employee; or 11

(c) to agree to make, vary or terminate a Commonwealth 12

industrial instrument relating to building work. 13

It is also unlawful for a person to take action against a building 14

employer because building employees are or are not covered by a 15

Commonwealth industrial instrument. 16

However, action is only unlawful if the action is connected to a 17

constitutionally-covered entity. 18

A court can make an order under Chapter 8 if a person is alleged to 19

have taken unlawful action. Division 3 of Part 2 of Chapter 8 has 20

rules relating to coercion. There are also rules relating to a person’s 21

reasons for action and to coercion in Division 2 of Part 2 of this 22

Chapter. 23

An agreement (other than a Commonwealth industrial instrument) 24

may be unenforceable if building employees who are not all 25

employed in a single enterprise enter into the agreement to secure 26

standard employment conditions in respect of building work that 27

the employees carry out at a particular building site or sites. 28

Coercion, discrimination and unenforceable agreements Chapter 6

Coercion and discrimination Part 2

Civil penalties Division 1

Section 51


Part 2—Coercion and discrimination 1

Division 1—Civil penalties 2

51 Action to which this Part applies 3

This Part applies to the following action: 4

(a) action taken by a constitutionally-covered entity; 5

(b) action that affects, is capable of affecting or is taken with 6

intent to affect the activities, functions, relationships or 7

business of a constitutionally-covered entity; 8

(c) action that consists of advising, encouraging or inciting, or 9

action taken with intent to coerce, a constitutionally-covered 10

entity: 11

(i) to take, or not take, particular action in relation to 12

another person; or 13

(ii) to threaten to take, or not take, particular action in 14

relation to another person. 15

52 Coercion relating to allocation of duties etc. to particular person 16

A person must not organise or take, or threaten to organise or take, 17

any action against another person with intent to coerce the other 18

person, or a third person, to: 19

(a) employ, or not employ, a particular person as a building 20

employee; or 21

(b) engage, or not engage, a particular independent contractor as 22

a building contractor; or 23

(c) allocate, or not allocate, particular duties or responsibilities to 24

a building employee or building contractor; or 25

(d) designate a building employee or building contractor as 26

having, or not having, particular duties or responsibilities. 27

Note 1: See also Division 2 (reason for action and coercion). 28

Note 2: Grade A civil penalty. 29


Part 2 Coercion and discrimination

Division 1 Civil penalties

Section 53


53 Coercion relating to superannuation 1

(1) A person must not: 2

(a) organise or take, or threaten to organise or take, any action; 3

or 4

(b) refrain, or threaten to refrain, from taking action; 5

with intent: 6

(c) to coerce a building employee to nominate a particular 7

superannuation fund or scheme to receive the employee’s 8

superannuation contributions; or 9

(d) to coerce a building employer to pay to a particular 10

superannuation fund or scheme the employer’s 11

superannuation contributions for building employees. 12



(2) Subsection (1) does not apply to protected industrial action. 15

54 Coercion of persons to make, vary, terminate etc. enterprise 16

agreements etc. 17


(a) organise or take, or threaten to organise or take, any action; 19

or 20

(b) refrain, or threaten to refrain, from taking any action; 21

with intent to coerce another person, or with intent to apply undue 22

pressure to another person, to agree, or not to agree: 23

(c) to make, vary or terminate a building enterprise agreement; 24

or 25

(d) to approve any of the things mentioned in paragraph (c). 26




(3) An employer must not coerce, or attempt to coerce, an employee of 30

the employer in relation to who is to be, or is not to be, the 31



Civil penalties Division 1

Section 55


employee’s bargaining representative for a proposed enterprise 1

agreement. 2


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

to an employee of the employer in relation to who is to be, or is not 5

to be, the employee’s bargaining representative for a proposed 6

enterprise agreement. 7


(5) To the extent that section 343 of the FW Act relates to: 9

(a) the making, varying or terminating of an enterprise 10

agreement; or 11

(b) the appointment, or termination of appointment, of a 12

bargaining representative for a proposed enterprise 13

agreement; 14

that section does not apply if the agreement is a building enterprise 15

agreement. 16

55 Coverage by particular instruments 17

(1) A person must not take action against a building employer because: 18

(a) building employees of the building employer are covered, or 19

not covered, by a Commonwealth industrial instrument; or 20

(b) it is proposed that building employees of the building 21

employer be covered, or not be covered, by a Commonwealth 22

industrial instrument. 23

Note 1: See also Division 2 (reason for action). 24




Part 2 Coercion and discrimination

Division 2 General provisions

Section 56


Division 2—General provisions 1

56 Multiple reasons for action 2

For the purposes of section 47 (unlawful picketing prohibited) and 3

this Part, a person takes action for a particular reason if the reasons 4

for the action include that reason. 5

57 Reason for action to be presumed unless proved otherwise 6

(1) If: 7

(a) in an application in relation to a contravention of section 47 8

(unlawful picketing prohibited) or a civil remedy provision in 9

this Part, it is alleged that a person took, or is taking, action 10

for a particular reason or with a particular intent; and 11

(b) taking that action for that reason or with that intent would 12

constitute a contravention of the section or provision; 13

it is presumed, in proceedings arising from the application, that the 14

action was, or is being, taken for that reason or with that intent, 15

unless the person proves otherwise. 16

(2) Subsection (1) does not apply in relation to an interim injunction. 17

58 Advising, encouraging, inciting or coercing action 18

(1) If: 19

(a) for a particular reason (the first person’s reason), a person 20

advises, encourages or incites, or takes any action with intent 21

to coerce, a second person to take action; and 22

(b) the action, if taken by the second person for the first person’s 23

reason, would contravene section 47 (unlawful picketing 24

prohibited) or a civil remedy provision in this Part; 25

the first person is taken to have contravened the section or 26

provision. 27

Note: See also section 97 (capacity, state of mind etc. of person being 28

coerced etc.). 29



General provisions Division 2

Section 58


(2) Subsection (1) does not limit section 92 (ancillary contravention of 1

civil remedy provisions). 2


Part 3 Unenforceable agreements

Section 59


Part 3—Unenforceable agreements 1

2

59 Project agreements not enforceable 3

(1) An agreement is unenforceable to the extent that it relates to 4

building employees if: 5

(a) the agreement is entered into with the intention of securing 6

standard employment conditions for building employees in 7

respect of building work that they carry out at a particular 8

building site or sites; and 9

(b) not all the employees are employed in a single enterprise; and 10

(c) a party to the agreement is a constitutional corporation and at 11

least some of the employees are employees of that 12

corporation; and 13

(d) the agreement is not a Commonwealth industrial instrument. 14

(2) A single enterprise is: 15

(a) a business, project or undertaking that is carried on by an 16

employer; or 17

(b) the activities carried on by: 18

(i) the Commonwealth, a State or a Territory; or 19

(ii) a body, association, office or other entity established for 20

a public purpose by or under a law of the 21

Commonwealth, a State or a Territory; or 22

(iii) any other body in which the Commonwealth, a State or 23

a Territory has a controlling interest. 24

Powers to obtain information Chapter 7


Section 60


Chapter 7—Powers to obtain information 1


3


The ABC Commissioner may require a person to give information, 5

produce documents or answer questions relating to an investigation 6

of a suspected contravention of this Act or a designated building 7

law by a building industry participant. The Commissioner does this 8

by giving a person an examination notice. The Commonwealth 9

Ombudsman oversees the exercise of this power. A person who 10

attends an examination may be entitled to have paid any expenses 11

incurred in attending the examination. 12

Australian Building and Construction Inspectors and Federal 13

Safety Officers (who together are called authorised officers) are 14

appointed under this Chapter. Authorised officers have powers, 15

including the power to enter premises, the power to ask a person’s 16

name and address and the power to require persons to produce 17

records or documents. 18

Intentionally hindering or obstructing an authorised officer who is 19

exercising any of these powers is prohibited. 20

Chapter 7 Powers to obtain information

Part 2 Examination notices

Section 61


Part 2—Examination notices 1

2

61 ABC Commissioner may give examination notice 3

ABC Commissioner may require information, documents etc. 4

(1) The ABC Commissioner may give a written notice to a person if 5

the ABC Commissioner reasonably believes that the person: 6

(a) has information or documents relevant to an investigation by 7

an inspector into a suspected contravention, by a building 8

industry participant, of this Act or a designated building law; 9

or 10

(b) is capable of giving evidence that is relevant to such an 11

investigation. 12

(2) The notice may require the person: 13

(a) to give the information to the ABC Commissioner, or to an 14

assistant, by the time, and in the manner and form, specified 15

in the notice; or 16

(b) to produce the documents to the ABC Commissioner, or to an 17

assistant, by the time, and in the manner, specified in the 18

notice; or 19

(c) to attend before the ABC Commissioner, or an assistant, at 20

the time and place specified in the notice, and answer 21

questions relevant to the investigation. 22

The time specified under paragraph (a), (b) or (c) must be at least 23

14 days after the notice is given. 24

Note: See also sections 62 (offence for failing to comply with examination 25

notice), 79 (power to keep records or documents), 102 26

(self-incrimination) and 103 (protection from liability). 27

(3) The ABC Commissioner may vary a notice given to a person by 28

specifying, in writing, a later time which is at least 14 days after 29

the notice is first given to the person. This subsection does not 30

limit the application of subsection 33(3) of the Acts Interpretation 31

Act 1901. 32


Examination notices Part 2

Section 62


Legal representation 1

(4) A person attending before the ABC Commissioner, or before an 2

assistant, as mentioned in paragraph (2)(c) may be represented by a 3

lawyer if the person chooses. 4

Oath or affirmation 5

(5) The ABC Commissioner, or an assistant, may require the 6

information or answers to be verified by, or given on, oath or 7

affirmation, and either orally or in writing. For that purpose, the 8

ABC Commissioner, or an assistant, may administer the oath or 9

affirmation. 10

(6) The oath or affirmation is an oath or affirmation that the 11

information or answers are or will be true. 12

Effect of other laws 13

(7) The operation of this section is not limited by any provision of any 14

other law that prohibits the disclosure of information (whether the 15

provision is enacted before or after the commencement of this 16

section), except to the extent that the provision expressly excludes 17

the operation of this section. 18

62 Offence for failing to comply with examination notice 19

A person commits an offence if: 20

(a) the person has been given an examination notice; and 21

(b) the person fails: 22

(i) to give information or produce a document in 23

accordance with the notice; or 24

(ii) to attend to answer questions in accordance with the 25

notice; or 26

(iii) to take an oath or make an affirmation, when required to 27

do so under subsection 61(5); or 28

(iv) to answer questions relevant to the investigation while 29

attending as required by the examination notice. 30

Penalty: Imprisonment for 6 months. 31



Section 63


63 Payment for expenses incurred in attending an examination 1

(1) A person who attends an examination as required by an 2

examination notice is (subject to subsection (2)) entitled to be paid 3

fees and allowances, fixed by or calculated in accordance with the 4

rules, for reasonable expenses (other than legal expenses) incurred 5

by the person in attending the examination. 6

(2) The person is not entitled to be paid for expenses under this section 7

unless the person: 8

(a) applies, in writing, to the ABC Commissioner for payment of 9

the expenses within 3 months after the examination is 10

completed; and 11

(b) provides to the ABC Commissioner sufficient evidence to 12

establish that the person incurred the expenses. 13

(3) An application under paragraph (2)(a) must: 14

(a) if a form is prescribed by the rules—be in that form; and 15

(b) include any information prescribed by the rules. 16

64 ABC Commissioner must notify Commonwealth Ombudsman of 17

issue of examination notice 18

As soon as practicable after an examination notice has been issued, 19

the ABC Commissioner must: 20

(a) notify the Commonwealth Ombudsman that the examination 21

notice has been issued; and 22

(b) give the Commonwealth Ombudsman a copy of the 23

examination notice, and any later variation of the 24

examination notice. 25

65 Review and report by Commonwealth Ombudsman 26

ABC Commissioner to give report etc. to Commonwealth 27

Ombudsman 28

(1) As soon as practicable after an examination of a person is 29

completed, the ABC Commissioner must give the Commonwealth 30

Ombudsman: 31


Examination notices Part 2

Section 65


(a) a report about the examination; and 1

(b) a video recording of the examination; and 2

(c) a transcript of the examination. 3

(2) The report under paragraph (1)(a) must include: 4

(a) a copy of the examination notice under which the 5

examination was conducted; and 6

(b) the following information: 7

(i) the time and place at which the examination was 8

conducted; 9

(ii) the name of each person who was present at the 10

examination; 11

(iii) any other information prescribed by the rules. 12

Review of exercise of powers under this Part 13

(3) The Commonwealth Ombudsman: 14

(a) must review the exercise of powers under this Part by the 15

ABC Commissioner and any assistant; and 16

(b) may do anything incidental or conducive to the performance 17

of that function. 18

(4) The Commonwealth Ombudsman’s powers under the Ombudsman 19

Act 1976 extend to a review by the Ombudsman under this section 20

as if the review were an investigation by the Ombudsman under 21

that Act. 22

(5) The exercise of those powers in relation to a review by the 23

Ombudsman under this section is taken, for all purposes, to be an 24

exercise of powers under the Ombudsman Act 1976. 25

Commonwealth Ombudsman to report to Parliament 26

(6) As soon as practicable after the end of each financial year, the 27

Commonwealth Ombudsman must prepare and present to the 28

Parliament a report about examinations conducted during that year. 29

The report must include the results of reviews conducted under this 30

section during that year. 31



Section 65


(7) The Commonwealth Ombudsman may prepare and present to the 1

Parliament any other reports about the results of reviews conducted 2

under this section the Commonwealth Ombudsman considers 3

appropriate. 4


Powers of Australian Building and Construction Inspectors and Federal Safety Officers

Part 3

Appointment of Australian Building and Construction Inspectors Division 1

Section 66


Part 3—Powers of Australian Building and 1

Construction Inspectors and Federal 2

Safety Officers 3

Division 1—Appointment of Australian Building and 4

Construction Inspectors 5

66 Australian Building and Construction Inspectors 6

(1) The ABC Commissioner may, by written instrument, appoint any 7

of the following persons as an Australian Building and 8

Construction Inspector: 9

(a) a person who is an employee of the Commonwealth or who 10

holds an office or appointment under a law of the 11

Commonwealth; 12

(b) a person who is an employee of a State or Territory or who 13

holds an office or appointment under a law of a State or 14

Territory; 15

(c) a consultant engaged by the ABC Commissioner under 16

section 32. 17

(2) The ABC Commissioner must not appoint a person referred to in 18

paragraph (1)(c) as an inspector unless the ABC Commissioner is 19

satisfied that the person is an appropriate person to be appointed as 20

an inspector. 21

(3) The ABC Commissioner is an inspector by force of this subsection. 22

(4) In exercising powers or performing functions as an inspector, an 23

inspector appointed under subsection (1) must comply with any 24

directions of the ABC Commissioner. 25

(5) The ABC Commissioner may give directions for the purposes of 26

subsection (4). 27




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

Officers

Division 1 Appointment of Australian Building and Construction Inspectors

Section 67




67 Identity cards for inspectors 3

(1) The ABC Commissioner must issue an identity card to an inspector 4

appointed under subsection 66(1). 5

(2) The Minister must issue an identity card to the ABC 6

Commissioner. 7

Form of identity card 8

(3) The identity card must: 9

(a) be in the form approved by the ABC Commissioner; and 10

(b) contain a recent photograph of the person to whom it is 11

issued. 12

Inspector must carry card 13

(4) An inspector must carry the identity card at all times when 14

performing functions or exercising powers as an inspector. 15

Note: The ABC Commissioner is an inspector (see the definition of 16

inspector in section 5). 17

Offence 18

(5) A person commits an offence of strict liability if: 19

(a) the person ceases to be an inspector; and 20

(b) the person does not, within 14 days of so ceasing, return the 21

person’s identity card to the ABC Commissioner or the 22

Minister (as the case requires). 23

Penalty: 1 penalty unit. 24

Exception—card lost or destroyed 25

(6) Subsection (5) does not apply if the identity card was lost or 26

destroyed. 27



Part 3

Appointment of Australian Building and Construction Inspectors Division 1

Section 67


Note: A defendant bears an evidential burden in relation to the matter in 1

subsection (6) (see subsection 13.3(3) of the Criminal Code). 2



Officers

Division 2 Appointment of Federal Safety Officers

Section 68


Division 2—Appointment of Federal Safety Officers 1

68 Federal Safety Officers 2

(1) The Federal Safety Commissioner may, by written instrument, 3

appoint any of the following persons as a Federal Safety Officer: 4

(a) a person who is an employee of the Commonwealth or who 5

holds an office or appointment under a law of the 6

Commonwealth; 7

(b) a person who is an employee of a State or Territory or who 8

holds an office or appointment under a law of a State or 9

Territory; 10

(c) a consultant engaged under section 42. 11

(2) The Federal Safety Commissioner must not appoint a person 12

referred to in paragraph (1)(c) as a Federal Safety Officer unless 13

the Federal Safety Commissioner is satisfied that the person is an 14

appropriate person to be appointed as a Federal Safety Officer. 15

(3) The Federal Safety Commissioner is a Federal Safety Officer by 16

force of this subsection. 17

(4) In exercising powers or performing functions as a Federal Safety 18

Officer, a Federal Safety Officer appointed under subsection (1) 19

must comply with any directions of the Federal Safety 20

Commissioner. 21

(5) The Federal Safety Commissioner may give directions for the 22

purposes of subsection (4). 23







Part 3

Appointment of Federal Safety Officers Division 2

Section 69


69 Identity cards for Federal Safety Officers 1

(1) The Federal Safety Commissioner must issue an identity card to a 2

Federal Safety Officer appointed under subsection 68(1). 3

(2) The Minister must issue an identity card to the Federal Safety 4

Commissioner. 5

Form of identity card 6

(3) The identity card must: 7

(a) be in the form approved by the Federal Safety Commissioner; 8

and 9

(b) contain a recent photograph of the person to whom it is 10

issued. 11

Federal Safety Officer must carry card 12

(4) A Federal Safety Officer must carry the identity card at all times 13

when performing functions or exercising powers as a Federal 14

Safety Officer. 15

Note: The Federal Safety Commissioner is a Federal Safety Officer (see the 16

definition of Federal Safety Officer in section 5). 17

Offence 18

(5) A person commits an offence of strict liability if: 19

(a) the person ceases to be a Federal Safety Officer; and 20

(b) the person does not, within 14 days of so ceasing, return the 21

person’s identity card to the Federal Safety Commissioner or 22

the Minister (as the case requires). 23

Penalty: 1 penalty unit. 24

Exception—card lost or destroyed 25

(6) Subsection (5) does not apply if the identity card was lost or 26

destroyed. 27





Officers

Division 3 Powers of authorised officers

Section 70


Division 3—Powers of authorised officers 1

70 Purposes for which powers of authorised officers may be 2

exercised 3

Compliance purposes for inspectors 4

(1) An inspector may exercise compliance powers (other than a power 5

under section 98 or 99) in relation to a building matter for one or 6

more of the following purposes: 7

(a) ascertaining whether this Act, a designated building law or 8

the Building Code is being, or has been, complied with; 9

(b) ascertaining whether a court order relating to this Act, a 10

designated building law or the Building Code has been 11

complied with, or is being complied with, by a building 12

industry participant; 13

(c) the purposes of a provision of the rules that confers functions 14

or powers on inspectors; 15

(d) the purposes of a provision of another Act that confers 16

functions or powers on inspectors. 17

Note: The powers in sections 98 (enforceable undertakings) and 99 18

(compliance notices) may be exercised for the purpose of remedying 19

the effects of certain contraventions. 20

Compliance purposes for Federal Safety Officers 21

(2) A Federal Safety Officer may exercise compliance powers for one 22

or more of the following purposes: 23

(a) ascertaining whether a constitutional corporation, the 24

Commonwealth or a Commonwealth authority that is an 25

applicant for accreditation meets the accreditation 26

requirements; 27

(b) ascertaining whether a constitutional corporation, the 28

Commonwealth or a Commonwealth authority that is an 29

accredited person has complied, or is complying, with 30

conditions of the accreditation; 31



Part 3

Powers of authorised officers Division 3

Section 71


(c) ascertaining whether an accredited person has complied, or is 1

complying, with conditions of the accreditation in respect of 2

building work in a Territory or Commonwealth place. 3

Functions and powers subject to terms and conditions 4

(3) The functions and powers of an authorised officer are subject to 5

any conditions and restrictions specified in his or her instrument of 6

appointment. 7

Note: Inspectors and Federal Safety Officers are authorised officers (see the 8

definition of authorised officer in section 5). 9

71 When powers of authorised officers may be exercised 10

An authorised officer may exercise compliance powers: 11

(a) at any time during working hours; or 12

(b) at any other time, if the authorised officer reasonably 13

believes that it is necessary to do so for compliance purposes. 14

72 Power of authorised officers to enter premises 15

Powers of inspectors to enter premises 16

(1) An inspector may, without force: 17

(a) enter premises, if the inspector reasonably believes that: 18

(i) this Act, a designated building law or the Building Code 19

applies to building work that is being, or applied to 20

building work that has been, performed on the premises; 21

or 22

(ii) a breach by a building industry participant of this Act, a 23

designated building law or the Building Code has 24

occurred, is occurring or is likely to occur; or 25

(b) enter business premises, if the inspector reasonably believes 26

that: 27

(i) there are records or documents relevant to compliance 28

purposes on the premises, or accessible from a computer 29

on the premises; or 30



Officers


Section 72


(ii) a person who ordinarily performs work or conducts 1

business at the premises has information relevant to 2

compliance purposes. 3

Note: Intentionally hindering or obstructing an inspector is prohibited (see 4

section 78). 5

Powers of Federal Safety Officers to enter premises 6

(2) A Federal Safety Officer may, without force: 7

(a) enter premises, if the officer reasonably believes that building 8

work is being carried out, or has been carried out by an 9

applicant or accredited person referred to in subsection 70(2); 10

or 11

(b) enter business premises, if the officer reasonably believes 12

that: 13

(i) there are records or documents relevant to compliance 14

purposes on the premises, or accessible from a computer 15

on the premises; or 16

(ii) a person who ordinarily performs work or conducts 17

business at the premises has information relevant to 18

compliance purposes. 19

Note: Intentionally hindering or obstructing a Federal Safety Officer is 20

prohibited (see section 78). 21

Limitation on authorised officers entering premises 22

(3) Despite subparagraph (1)(a)(i) and paragraph (2)(a), an authorised 23

officer must not enter a part of premises that is used for residential 24

purposes unless the officer reasonably believes that the work 25

referred to in that subparagraph or paragraph is being performed on 26

that part of the premises. 27

(4) Despite subparagraphs (1)(b)(ii) and (2)(b)(ii), an authorised 28

officer must not enter business premises under either of those 29

subparagraphs if the authorised officer reasonably believes that the 30

person concerned is not at those premises. 31



Part 3


Section 73


73 Showing identity card before entry 1

An authorised officer must, before or as soon as practicable after 2

entering premises, show his or her identity card to the occupier, or 3

another person who apparently represents the occupier, if the 4

occupier or other person is present at the premises. 5

74 Powers of authorised officers while on premises 6

Entry other than under subparagraph 72(1)(b)(ii) or (2)(b)(ii) 7

(1) An authorised officer who enters premises under 8

paragraph 72(1)(a) or (2)(a), or subparagraph 72(1)(b)(i) or 9

(2)(b)(i), may exercise one or more of the following powers while 10

on the premises: 11

(a) inspect any work, process or object; 12

(b) interview any person; 13

(c) require a person to tell the authorised officer who has custody 14

of, or access to, a record or document; 15

(d) require a person who has custody of, or access to, a record or 16

document to produce the record or document to the 17

authorised officer either while the authorised officer is on the 18

premises, or within a specified period; 19

(e) inspect, and make copies of, any record or document that: 20

(i) is on the premises; or 21

(ii) is accessible from a computer that is on the premises; 22

(f) take samples of any goods or substances in accordance with 23

any procedures prescribed by the rules. 24

Note: See also sections 79 (power to keep records or documents), 102 25

(self-incrimination) and 104 (certain records and documents are 26

inadmissible). 27

Entry under subparagraph 72(1)(b)(ii) or (2)(b)(ii) 28

(2) An authorised officer who enters premises under 29

subparagraph 72(1)(b)(ii) or (2)(b)(ii) may interview the person 30

concerned while on those premises. 31



Officers


Section 75


Refusing or failing to participate in an interview 1

(3) A refusal or failure by a person to participate in an interview under 2

this section is not to be treated as conduct covered by section 149.1 3

of the Criminal Code. 4

75 Persons assisting authorised officers 5

(1) A person may accompany an authorised officer onto premises to 6

assist the authorised officer if the ABC Commissioner or Federal 7

Safety Commissioner (as the case requires) is satisfied that: 8

(a) the assistance is necessary and reasonable; and 9

(b) the person assisting has suitable qualifications and experience 10

to properly assist the authorised officer. 11

(2) The person assisting: 12

(a) may do such things on the premises as the authorised officer 13

requires to assist the authorised officer to exercise 14

compliance powers; but 15

(b) must not do anything that the authorised officer does not 16

have power to do. 17

(3) Anything done by the person assisting is taken for all purposes to 18

have been done by the authorised officer. 19

76 Power to ask for person’s name and address 20

(1) An authorised officer may require a person to tell the authorised 21

officer the person’s name and address if the authorised officer 22

reasonably believes that the person has contravened a civil remedy 23

provision. 24

(2) If the authorised officer reasonably believes that the name or 25

address is false, the authorised officer may require the person to 26

give evidence of its correctness. 27

(3) The person must comply with a requirement under subsection (1) 28

or (2) if: 29



Part 3


Section 77


(a) the authorised officer advises the person that he or she may 1

contravene a civil remedy provision if he or she fails to 2

comply with the requirement; and 3

(b) the authorised officer shows his or her identity card to the 4

person. 5


(4) Subsection (3) does not apply if the person has a reasonable 7

excuse. 8

77 Power to require persons to produce records or documents 9

(1) An authorised officer may require a person, by notice, to produce a 10

record or document to the authorised officer. 11

Note: See also sections 79 (power to keep records or documents) and 102 12

(self-incrimination). 13

(2) The notice must: 14

(a) be in writing; and 15

(b) be served on the person; and 16

(c) require the person to produce the record or document at a 17

specified place within a specified period of at least 14 days. 18

(3) The person must comply with the notice. 19



excuse. 22

78 Hindering or obstructing authorised officers 23

A person must not intentionally hinder or obstruct an authorised 24

officer in exercising his or her compliance powers, or induce or 25

attempt to induce any other person to do so. 26




Officers


Section 79


79 Power to keep records or documents 1

(1) If a record or document is produced to an authorised officer in 2

accordance with this Division or Part 2 (examination notices), the 3

authorised officer may: 4

(a) inspect, and make copies of, the record or document; and 5

(b) keep the record or document for any period that is necessary. 6

(2) While the authorised officer keeps a record or document, he or she 7

must allow the following persons to inspect, or make copies of, the 8

record or document at all reasonable times: 9

(a) the person who produced the record or document; 10

(b) any person otherwise entitled to possession of the record or 11

document; 12

(c) a person authorised by a person referred to in paragraph (a) 13

or (b). 14

Certified copy to be supplied to person entitled to document 15

(3) A person otherwise entitled to possession of the document is 16

entitled to be supplied, as soon as practicable, with a copy that is 17

certified, by one of the following persons, to be a true copy: 18






(f) a person engaged as a consultant under section 32; 24

(g) the Federal Safety Commissioner; 25

(h) a Federal Safety Officer; 26

(i) an APS employee assisting the Federal Safety Commissioner; 27

(j) a person engaged as a consultant under section 42. 28

Treatment of certified copy 29

(4) The certified copy must be received in all courts and tribunals as 30

evidence as if it were the original. 31

Enforcement Chapter 8


Section 80


Chapter 8—Enforcement 1


3


An authorised applicant (who may be an inspector or a person 5

affected by a contravention of a civil remedy provision) may apply 6

to certain courts for an order relating to the contravention. A court 7

may make any order, such as imposing a pecuniary penalty on a 8

person or granting an injunction. This Chapter also includes 9

general rules relating to contraventions of civil remedy provisions 10

(such as who bears burdens of proof, double jeopardy, and the 11

treatment of persons and bodies that are not individuals). 12

The ABC Commissioner can accept an enforceable undertaking if 13

the Commissioner reasonably believes that a person has 14

contravened a civil remedy provision. The enforceable undertaking 15

can be enforced by certain courts. An inspector can also give a 16

compliance notice requiring a person who the inspector reasonably 17

believes has contravened a civil remedy provision to rectify the 18

contravention. Certain courts can review the compliance notice. 19

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


Part 2—Orders for contraventions of civil remedy 1

provisions 2

Division 1—Obtaining an order for contravention of civil 3

remedy provision 4

81 Penalty etc. for contravention of civil remedy provision 5

(1) A relevant court, on application by an authorised applicant, may 6

make one or more of the following orders relating to a person (the 7

defendant) who has contravened a civil remedy provision: 8

(a) an order imposing a pecuniary penalty on the defendant; 9

(b) an order requiring the defendant to pay a specified amount to 10

another person as compensation for damage suffered by the 11

other person as a result of the contravention; 12

(c) any other order that the court considers appropriate. 13

Note: An authorised applicant may not be able to make an application for an 14

order if there is an enforceable undertaking in force or a compliance 15

notice has been given (see subsections 98(4) and 99(5)). 16

Maximum penalty for civil remedy provisions 17

(2) The maximum pecuniary penalty is: 18

(a) for a Grade A civil remedy provision—1,000 penalty units if 19

the defendant is a body corporate and otherwise 200 penalty 20

units; and 21

(b) for a Grade B civil remedy provision—100 penalty units if 22

the defendant is a body corporate and otherwise 20 penalty 23

units. 24

Injunctions 25

(3) The orders that may be made under paragraph (1)(c) include: 26

(a) injunctions (including interim injunctions); and 27

(b) any other orders that the court considers necessary to stop the 28

conduct or remedy its effects, including orders for the 29

sequestration of assets. 30


Orders for contraventions of civil remedy provisions Part 2

Obtaining an order for contravention of civil remedy provision Division 1

Section 82


(4) If the contravention is a contravention of section 46 or 47 1

(unlawful industrial action and picketing prohibited), then the 2

power of the court to grant an injunction restraining a person (the 3

defendant) from engaging in conduct may be exercised: 4

(a) whether or not it appears to the court that the defendant 5

intends to engage again, or to continue to engage, in conduct 6

of that kind; and 7

(b) whether or not the defendant has previously engaged in 8

conduct of that kind; and 9

(c) whether or not there is an imminent danger of substantial 10

damage to any person if the defendant engages in conduct of 11

that kind. 12

Pecuniary penalties 13

(5) A pecuniary penalty under paragraph (1)(a) is payable to the 14

Commonwealth, or to some other person if the court so directs. It 15

may be recovered as a debt. 16

(6) In determining a pecuniary penalty under paragraph (1)(a), the 17

court must take into account all relevant matters, including: 18

(a) the nature and extent of the contravention; and 19

(b) the nature and extent of any loss or damage suffered because 20

of the contravention; and 21

(c) the circumstances in which the contravention took place; and 22

(d) whether the person has previously been found by a court 23

(including a court in a foreign country) to have engaged in 24

any similar conduct. 25

(7) The Consolidated Revenue Fund is appropriated for the purposes 26

of a debt due to a person other than the Commonwealth in relation 27

to a penalty under paragraph (1)(a). The Financial Management 28

and Accountability Act 1997 does not apply in relation to those 29

amounts. 30



Division 1 Obtaining an order for contravention of civil remedy provision

Section 82


82 Interest up to judgement 1

(1) This section applies to an order (other than a civil penalty order) 2

under this Division in relation to an amount that a person was 3

required to pay to, or on behalf of, another person under this Act. 4

(2) In making the order the court must, on application, include an 5

amount of interest in the sum ordered, unless good cause is shown 6

to the contrary. 7

(3) Without limiting subsection (2), in determining the amount of 8

interest, the court must take into account the period between the 9

day the relevant cause of action arose and the day the order is 10

made. 11

83 Conduct contravening more than one civil remedy provision 12

(1) If conduct constitutes a contravention of 2 or more civil remedy 13

provisions, proceedings may be instituted under this Part against a 14

person in relation to the contravention of any one or more of those 15

provisions. 16

(2) However, the person is not liable to more than one pecuniary 17

penalty under this Part in relation to the same conduct. 18

84 Multiple contraventions 19

(1) A relevant court may make a single civil penalty order against a 20

person for multiple contraventions of a civil remedy provision if 21

proceedings for the contraventions are founded on the same facts, 22

or if the contraventions form, or are part of, a series of 23

contraventions of the same or a similar character. 24

(2) However, any pecuniary penalty imposed must not exceed the sum 25

of the maximum penalties that could be ordered if a separate 26

pecuniary penalty were ordered for each of the contraventions. 27

85 Proceedings may be heard together 28

A relevant court may direct that 2 or more proceedings relating to 29

contraventions of civil remedy provisions are to be heard together. 30



Obtaining an order for contravention of civil remedy provision Division 1

Section 86


86 Civil evidence and procedure rules for proceedings relating to 1

contraventions of civil remedy provisions 2

A relevant court must apply the rules of evidence and procedure 3

for civil matters when hearing proceedings for a contravention of a 4

civil remedy provision. 5



Division 2 Civil proceedings and criminal proceedings

Section 87


Division 2—Civil proceedings and criminal proceedings 1

87 Civil proceedings after criminal proceedings 2

A relevant court may not make a civil penalty order against a 3

person for a contravention of a civil remedy provision if the person 4

has been convicted of an offence constituted by conduct that is the 5

same, or substantially the same, as the conduct constituting the 6

contravention. 7

88 Criminal proceedings during civil proceedings 8

(1) Proceedings for a civil penalty order against a person for a 9

contravention of a civil remedy provision are stayed if: 10

(a) criminal proceedings are commenced or have already been 11

commenced against the person for an offence; and 12

(b) the offence is constituted by conduct that is the same, or 13

substantially the same, as the conduct alleged to constitute 14

the contravention. 15

(2) The proceedings for the order may be resumed if the person is not 16

convicted of the offence. Otherwise, the proceedings are dismissed. 17

89 Criminal proceedings after civil proceedings 18

Criminal proceedings may be commenced against a person for 19

conduct that is the same, or substantially the same, as conduct that 20

would constitute a contravention of a civil remedy provision 21

regardless of whether an order has been made under this Part 22

against the person in relation to the contravention. 23

90 Evidence given in civil proceedings not admissible in criminal 24

proceedings 25

(1) Evidence of information given, or evidence of production of 26

documents, by an individual is not admissible in criminal 27

proceedings against the individual if: 28



Civil proceedings and criminal proceedings Division 2

Section 91


(a) the individual previously gave the information or produced 1

the documents in proceedings for a civil penalty order against 2

the individual for an alleged contravention of a civil remedy 3

provision (whether or not the order was made); and 4

(b) the conduct alleged to constitute the offence is the same, or 5

substantially the same, as the conduct alleged to constitute 6

the contravention. 7

(2) However, subsection (1) does not apply to criminal proceedings in 8

relation to the falsity of the evidence given by the individual in the 9

proceedings for the civil penalty order. 10

91 Civil double jeopardy 11

If a person is ordered to pay a pecuniary penalty under a civil 12

remedy provision in relation to particular conduct, the person is not 13

liable to be ordered to pay a pecuniary penalty under some other 14

provision of a law of the Commonwealth in relation to that 15

conduct. 16

Note: A court may make other orders, such as an order for compensation, in 17

relation to particular conduct even if the court has made a civil penalty 18

order in relation to that conduct. 19



Division 3 Miscellaneous

Section 92


Division 3—Miscellaneous 1

92 Ancillary contravention of civil remedy provisions 2


(a) attempt to contravene a civil remedy provision; or 4

(b) aid, abet, counsel or procure a contravention of a civil 5

remedy provision; or 6

(c) induce (by threats, promises or otherwise) a contravention of 7

a civil remedy provision; or 8

(d) be in any way, directly or indirectly, knowingly concerned in, 9

or party to, a contravention of a civil remedy provision; or 10

(e) conspire with others to effect a contravention of a civil 11

remedy provision. 12

Civil penalty 13

(2) A person who contravenes subsection (1) in relation to a civil 14

remedy provision is taken to have contravened the provision. 15

93 Exceptions etc. to civil remedy provisions—burden of proof 16

If, in proceedings for a civil penalty order against a person for a 17

contravention of a civil remedy provision, the person wishes to rely 18

on any exception, exemption, excuse, qualification or justification 19

provided by the law creating the civil remedy provision, then the 20

person bears an evidential burden in relation to that matter. 21

94 Liability of bodies corporate 22

Conduct of a body corporate 23

(1) Any conduct engaged in on behalf of a body corporate: 24

(a) by an officer, employee or agent (an official) of the body 25

within the scope of his or her actual or apparent authority; or 26

(b) by any other person at the direction or with the consent or 27

agreement (whether express or implied) of an official of the 28

body, if the giving of the direction, consent or agreement is 29



Miscellaneous Division 3

Section 95


within the scope of the actual or apparent authority of the 1

official; 2

is taken, for the purposes of this Act, to have been engaged in also 3

by the body. 4

State of mind of a body corporate 5

(2) If, for the purposes of this Act, it is necessary to establish the state 6

of mind of a body corporate in relation to particular conduct, it is 7

enough to show: 8

(a) that the conduct was engaged in by a person referred to in 9

paragraph (1)(a) or (b); and 10

(b) that the person had that state of mind. 11

Meaning of state of mind 12

(3) The state of mind of a person includes: 13

(a) the knowledge, intention, opinion, belief or purpose of the 14

person; and 15

(b) the person’s reasons for the intention, opinion, belief or 16

purpose. 17

95 Actions of building associations 18

(1) For the purposes of this Act, each of the following is taken to be 19

action of a building association: 20

(a) action taken by the committee of management of the building 21

association; 22

(b) action taken by an officer or agent of the building association 23

acting in that capacity; 24

(c) action taken by a member, or group of members, of the 25

building association if the action is authorised by: 26

(i) the rules of the association; or 27

(ii) the committee of management of the association; or 28

(iii) an officer or agent of the association acting in that 29

capacity; 30

(d) action taken by a member of the building association who 31

performs the function of dealing with an employer on behalf 32



Division 3 Miscellaneous

Section 96


of the member and other members of the association, acting 1

in that capacity; 2

(e) if the building association is an unincorporated building 3

association that does not have a committee of management—4

action taken by a member, or group of members, of the 5

association. 6

(2) Paragraphs (1)(c) and (d) do not apply if: 7

(a) the committee of management of the building association; or 8

(b) a person authorised by the committee; or 9

(c) an officer of the building association; 10

has taken all reasonable steps to prevent the action. 11

(3) If, for the purposes of this Act, it is necessary to establish the state 12

of mind of a building association in relation to particular action, it 13

is enough to show: 14

(a) that the action was taken by a person, or a group, referred to 15

in any of paragraphs (1)(a) to (e); and 16

(b) that the person, or a person in the group, had that state of 17

mind. 18

(4) Subsections (1) to (3) have effect despite subsections 94(1) and (2) 19

(liabilities of bodies corporate). 20

96 Unincorporated building associations 21

For the purposes of this Act, a reference to a person includes a 22

reference to an unincorporated building association. 23

97 Capacity, state of mind etc. of person being coerced etc. 24

In applying a provision of this Act that refers to: 25

(a) coercing a person to do a particular thing; or 26

(b) applying undue pressure to a person to do a particular thing; 27

or 28

(c) encouraging a person to do a particular thing; or 29

(d) advising a person to do a particular thing; or 30

(e) inciting a person to do a particular thing; or 31



Miscellaneous Division 3

Section 97


(f) engaging in conduct with the intention of doing any of the 1

above; 2

it is not relevant whether or not that person is able, willing or 3

eligible to do that particular thing. 4


Part 3 Other powers of enforcement for inspectors

Section 98


Part 3—Other powers of enforcement for 1

inspectors 2

3

98 Enforceable undertakings relating to contraventions of civil 4

remedy provisions 5

Application of this section 6

(1) This section applies if the ABC Commissioner reasonably believes 7

that a person has contravened a civil remedy provision. 8

Accepting an undertaking 9

(2) The ABC Commissioner may accept a written undertaking given 10

by the person in relation to the contravention, except as provided 11

by subsection (5). 12

Withdrawing or varying an undertaking 13

(3) The person may withdraw or vary the undertaking at any time, but 14

only with the ABC Commissioner’s consent. 15

Relationship with orders in relation to contraventions of civil 16

remedy provisions 17

(4) An inspector must not apply for an order under Division 1 of Part 2 18

relating to a contravention of a civil remedy provision by a person 19

if an undertaking given by the person under this section in relation 20

to the contravention has not been withdrawn. 21

Note: A person other than an inspector who is otherwise entitled to apply for 22

an order relating to the contravention may do so. 23

Relationship with compliance notices 24

(5) The ABC Commissioner must not accept an undertaking relating to 25

a contravention if the person has been given a notice relating to the 26

contravention under section 99 (compliance notices). 27


Other powers of enforcement for inspectors Part 3

Section 99


Enforcement of undertakings 1

(6) If the ABC Commissioner considers that the person who gave the 2

undertaking has contravened any of its terms, the ABC 3

Commissioner may apply to a relevant court or a relevant State or 4

Territory court for an order under subsection (7). 5

(7) If the court is satisfied that the person has contravened a term of 6

the undertaking, the court may make one or more of the following 7

orders: 8

(a) an order directing the person to comply with the term of the 9

undertaking; 10

(b) an order awarding compensation for loss that a person has 11

suffered because of the contravention; 12

(c) any other order that the court considers appropriate. 13

99 Compliance notices 14

Application of this section 15

(1) This section applies if an inspector reasonably believes that a 16

person has contravened one or more of the following to the extent 17

that the contravention relates (whether directly or indirectly) to 18

building work: 19

(a) this Act; 20

(b) a designated building law; 21

(c) the Building Code. 22

Giving a notice 23

(2) The inspector may (subject to subsection (4)) give the person a 24

notice requiring the person to do either or both of the following 25

within a reasonable time specified in the notice: 26

(a) take specified action to remedy the direct effects of the 27

contravention referred to in subsection (1); 28

(b) produce reasonable evidence of the person’s compliance with 29

the notice. 30

(3) The notice must also: 31


Part 3 Other powers of enforcement for inspectors

Section 99


(a) set out the name of the person to whom the notice is given; 1

and 2

(b) set out the name of the inspector who gave the notice; and 3

(c) set out brief details of the contravention; and 4

(d) explain that a failure to comply with the notice may 5

contravene a civil remedy provision; and 6

(e) explain that the person may apply to a relevant court or a 7

relevant State or Territory court for a review of the notice on 8

either or both of the following grounds: 9

(i) the person has not committed the contravention set out 10

in the notice; 11

(ii) the notice does not comply with subsection (2) or this 12

subsection; and 13

(f) set out any other matters prescribed by the rules. 14

Relationship with enforceable undertakings 15

(4) An inspector must not give a person a notice relating to a 16

contravention if: 17

(a) the person has given an undertaking under section 98 relating 18

to the contravention; and 19

(b) the undertaking has not been withdrawn. 20

Relationship with civil remedy provisions 21

(5) An inspector must not apply for an order under Division 1 of Part 2 22

relating to a contravention of a civil remedy provision by a person 23

if: 24

(a) the inspector has given the person a notice relating to the 25

contravention; and 26

(b) either of the following subparagraphs applies: 27

(i) the notice has not been withdrawn, and the person has 28

complied with the notice; 29

(ii) the person has made an application under section 100 30

(review of compliance notices) relating to the notice that 31

has not been completely dealt with. 32

Note: A person other than an inspector who is otherwise entitled to apply for 33

an order relating to the contravention may do so. 34


Other powers of enforcement for inspectors Part 3

Section 100


(6) A person who complies with a notice relating to a contravention of 1

a civil remedy provision is not taken: 2

(a) to have admitted to contravening the provision; or 3

(b) to have been found to have contravened the provision. 4

Person must comply with notice 5

(7) A person must comply with a notice given under this section. 6



excuse. 9

100 Review of compliance notices 10

(1) A person who has been given a notice under section 99 11

(compliance notices) may apply to a relevant court or a relevant 12

State or Territory court for a review of the notice on either or both 13

of the following grounds: 14

(a) the person has not committed a contravention set out in the 15

notice; 16

(b) the notice does not comply with subsection 99(2) or (3). 17

(2) At any time after the application has been made, the court may stay 18

the operation of the notice on the terms and conditions that the 19

court considers appropriate. 20

(3) The court may confirm, cancel or vary the notice after reviewing it. 21

Chapter 9 Miscellaneous

Part 1 Simplified outline of this Chapter

Section 101


Chapter 9—Miscellaneous 1


3


For persons who are required by this Act to provide information, 5

Part 2 contains provisions relating to self-incrimination, protection 6

from liability for providing the information and the admissibility of 7

the information provided. The Part also contains rules to protect 8

the privacy of that information, while allowing its disclosure in 9

certain circumstances. 10

Part 3 gives some additional powers to the ABC Commissioner, 11

such as the ability to publicise non-compliance and to intervene in 12

or commence court and FWC proceedings. 13

Provisions relating to courts, such as the conferral of power on the 14

Federal Court and appeals from certain State or Territory courts, 15

are dealt with by Part 4. 16

Certain officials under this Act are protected from civil 17

proceedings under Part 5. That Part also allows the Minister to 18

delegate certain powers, and contains a rule-making and 19

regulation-making power. 20

Miscellaneous Chapter 9

Provisions relating to information Part 2

Provisions relating to requirements to provide information Division 1

Section 102


Part 2—Provisions relating to information 1

Division 1—Provisions relating to requirements to provide 2

information 3

102 Self-incrimination etc. 4

Excuses that are not available 5

(1) A person is not excused from giving information, producing a 6

record or document, or answering a question, under an examination 7

notice, or under paragraph 74(1)(d) or subsection 77(1), on the 8

ground that to do so: 9

(a) would contravene any other law; or 10

(b) might tend to incriminate the person or otherwise expose the 11

person to a penalty or other liability. 12

Note: However, if a person is given an examination notice, the person is 13

protected, by section 103, from liability for contravening the other 14

law. 15

Use/derivative use indemnity in relation to examination notices 16

(2) In the case of an individual who gives information, produces a 17

record or document, or answers a question, under an examination 18

notice, neither: 19

(a) the information or answer given or the record or document 20

produced; nor 21

(b) any information, document or thing obtained as a direct or 22

indirect consequence of giving the information or answer or 23

producing the record or document; 24

is admissible in evidence against the individual in proceedings, 25

other than: 26

(c) proceedings for an offence against section 62 (failure to 27

comply with examination notice); or 28

(d) proceedings for an offence against section 137.1 or 137.2 of 29

the Criminal Code that relates to this Act (false or misleading 30

information or documents); or 31


Part 2 Provisions relating to information

Division 1 Provisions relating to requirements to provide information

Section 103


(e) proceedings for an offence against section 149.1 of the 1

Criminal Code that relates to this Act (obstruction of 2

Commonwealth officials). 3

Use/derivative use indemnity in relation to other requirements 4

(3) In the case of an individual who gives information, produces a 5

record or document, or answers a question, under 6

paragraph 74(1)(d) or subsection 77(1), neither: 7

(a) the information or answer given or the record or document 8

produced; nor 9


indirect consequence of giving the information or answer or 11

producing the record or document; 12

is admissible in evidence against the individual in criminal 13

proceedings, other than proceedings referred to in 14

paragraphs (2)(d) and (e) of this section. 15

103 Protection from liability relating to examination notices 16

A person who, in good faith: 17

(a) gives information; or 18

(b) produces a record or document; or 19

(c) answers a question; 20

when required to do so under an examination notice is not liable to: 21

(d) any proceedings for contravening any other law because of 22

that conduct; or 23

(e) civil proceedings for loss, damage or injury of any kind 24

suffered by another person because of that conduct. 25

104 Certain records and documents are inadmissible 26

The following: 27

(a) any record or document inspected or copied under 28

paragraph 74(1)(e) of which an individual had custody, or to 29

which an individual had access, when it was inspected or 30

copied; 31



Provisions relating to requirements to provide information Division 1

Section 104



indirect consequence of inspecting or copying a record or 2

document described in paragraph (a) of this section; 3

are not admissible in evidence in criminal proceedings against the 4

individual, other than: 5

(c) proceedings for an offence against section 137.1 or 137.2 of 6

the Criminal Code that relates to this Act (false or misleading 7

information or documents); or 8

(d) proceedings for an offence against section 149.1 of the 9

Criminal Code that relates to this Act (obstruction of 10

Commonwealth officials). 11



Division 2 Protecting information acquired for the purposes of this Act

Section 105


Division 2—Protecting information acquired for the 1

purposes of this Act 2

105 Disclosure of information by the ABC Commissioner or Federal 3

Safety Commissioner 4

Information to which this section applies 5

(1) This section applies to information that is acquired by any of the 6

following persons in the course of performing functions, or 7

exercising powers, as such a person: 8






(f) a consultant under section 32; 14

(g) a person assisting an inspector; 15

(h) the Federal Safety Commissioner; 16

(i) a Federal Safety Officer; 17

(j) an APS employee assisting the Federal Safety Commissioner; 18

(k) a consultant under section 42. 19

However, the ABC Commissioner must not under this section 20

disclose, or authorise the disclosure of, protected information. 21

Disclosure that is necessary or appropriate, or likely to assist 22

administration or enforcement 23

(2) The ABC Commissioner or Federal Safety Commissioner may 24

disclose, or authorise the disclosure of, the information if the 25

Commissioner reasonably believes: 26

(a) that it is necessary or appropriate to do so for the purposes of 27

the performance of the Commissioner’s functions or the 28

exercise of the Commissioner’s powers; or 29



Protecting information acquired for the purposes of this Act Division 2

Section 105


(b) that the disclosure is likely to assist in the administration or 1

enforcement of a law of the Commonwealth, a State or a 2

Territory. 3

Disclosure to the Minister 4


disclose, or authorise the disclosure of, the information to the 6

Minister if the Commissioner reasonably believes that the 7

disclosure is likely to assist the Minister to consider a complaint or 8

issue in relation to a matter arising under: 9

(a) this Act; or 10

(b) for the ABC Commissioner—the FW Act or the FW 11

Transitional Act. 12

Disclosure to the Department 13


disclose, or authorise the disclosure of, the information to: 15

(a) the Secretary; or 16

(b) an SES employee, or an APS employee, in the Department; 17

for the purpose of briefing, or considering briefing, the Minister if 18

the Commissioner reasonably believes the disclosure is likely to 19

assist the Minister to consider a complaint or issue in relation to a 20

matter arising under: 21

(c) this Act; or 22

(d) for the ABC Commissioner—the FW Act or the FW 23

Transitional Act. 24

Interaction with section 107 25

(5) For disclosures of information, or authorisations of disclosures of 26

information, by the ABC Commissioner, subsections (2) to (4) 27

have effect subject to section 107 (reports not to include 28

information relating to individual’s affairs). 29




Section 106


106 Confidentiality of information obtained under an examination 1

notice 2

(1) This section restricts what a person (the entrusted person) may do 3

with protected information that the person has obtained in the 4

course of official employment. 5

Note: Although this section applies only to information that a person 6

obtained in the course of official employment, the obligations under 7

this section continue to apply after the person ceases to be in official 8

employment. 9

Recording or disclosing 10

(2) The entrusted person must not: 11

(a) make a record of protected information; or 12

(b) disclose protected information. 13

Penalty: Imprisonment for 12 months. 14

Permitted recording or disclosure by designated officials 15

(3) If the entrusted person is a designated official at the time of the 16

recording or disclosure, then each of the following is an exception 17

to the offence in subsection (2): 18

(a) the recording or disclosure is for the purposes of the 19

performance of the ABC Commissioner’s functions or the 20

exercise of the ABC Commissioner’s powers; 21

(b) the recording or disclosure happens in the course of the 22

performance of the duties of the entrusted person’s official 23

employment; 24

(c) in the case of a disclosure—the disclosure is to a person 25

appointed or employed by: 26

(i) the Commonwealth, a State or Territory; or 27

(ii) an authority of the Commonwealth, a State or Territory; 28

for the purpose of assisting in building industry law 29

enforcement; 30

(d) the recording or disclosure is in accordance with rules made 31

for the purposes of this paragraph. 32




Section 106




Permitted recording or disclosure by other persons 3

(4) If the entrusted person is not a designated official at the time of the 4

recording or disclosure, then each of the following is an exception 5

to the offence in subsection (2): 6

(a) the recording or disclosure is for the purposes of the 7

performance of the ABC Commissioner’s functions or the 8

exercise of the ABC Commissioner’s powers; 9

(b) the recording or disclosure happens in the course of the 10

performance of the duties of the entrusted person’s official 11

employment that relate to building industry law enforcement; 12

(c) the recording or disclosure is in accordance with rules made 13

for the purposes of this paragraph. 14



Disclosure to a Minister by a designated official 17

(5) The exception in subsection (3) does not apply to a disclosure if: 18

(a) the entrusted person discloses protected information to any 19

Minister; and 20

(b) the entrusted person is a designated official; and 21

(c) the disclosure is not required or authorised by section 18 22

(Minister may require reports) or 20 (annual reports). 23

Disclosure in reports under this Act 24

(6) The exception in subsection (3) does not apply to a disclosure if: 25

(a) the entrusted person discloses protected information in a 26

report under section 18 or 20; and 27

(b) section 107 (reports not to include information relating to an 28

individual’s affairs) is not complied with in respect of the 29

disclosure of the information in the report. 30




Section 107


Authorisation for purposes of Privacy Act 1

(7) A disclosure of personal information is taken to be authorised by 2

law for the purposes of paragraph (1)(d) of Information Privacy 3

Principle 11 in section 14 of the Privacy Act 1988 if the 4

information is protected information and the disclosure is made in 5

accordance with subsection (3) or (4) of this section. 6

Definitions 7

(8) In this Act: 8

building industry law enforcement means enforcement of a law of 9

the Commonwealth, a State or a Territory where the enforcement is 10

in respect of: 11

(a) conduct by, or in relation to, a building industry participant in 12

that capacity; or 13

(b) conduct that is, or relates to, building work. 14

official employment means: 15

(a) appointment or employment by, or the performance of 16

services for: 17

(i) the Commonwealth, a State or Territory; or 18

(ii) an authority of the Commonwealth, a State or Territory; 19

or 20

(b) appointment as an inspector. 21

107 Reports not to include information relating to an individual’s 22

affairs 23

(1) Information relating to the affairs of an individual must not be 24

included in a report under section 18 (Minister may require reports) 25

or 20 (annual reports) if: 26

(a) the individual is named, or otherwise specifically identified, 27

in the report as the individual to whom the information 28

relates; or 29

(b) it is reasonably likely that people generally (other than people 30

to whom the individual has disclosed information relating to 31




Section 107


the individual’s affairs) would be able to work out the 1

identity of the individual to whom the information relates. 2

(2) For the purposes of applying paragraph (1)(b) to information 3

relating to a particular individual’s affairs, the context in which the 4

information appears, and information that is otherwise publicly 5

available, must be taken into account (as well as any other relevant 6

matter). 7


Part 3 Powers of ABC Commissioner etc.

Section 108


Part 3—Powers of ABC Commissioner etc. 1

2

108 ABC Commissioner may publicise non-compliance 3

If the ABC Commissioner considers that it is in the public interest 4

to do so, the ABC Commissioner may publish details of: 5

(a) non-compliance with the Building Code, including the name 6

of the person who has failed to comply; and 7

(b) non-compliance by a building industry participant with this 8

Act or designated building laws, including the name of the 9

participant who has failed to comply. 10

109 ABC Commissioner may intervene in court proceedings 11

(1) The ABC Commissioner may intervene in the public interest in a 12

civil proceeding before a court in a matter that: 13

(a) arises under this Act; or 14

(b) arises under the Independent Contractors Act 2006, the FW 15

Act or the FW Transitional Act and involves: 16

(i) a building industry participant; or 17

(ii) building work. 18

(2) If the ABC Commissioner intervenes in a proceeding under 19

subsection (1), the ABC Commissioner is taken to be a party to the 20

proceeding and has all the rights, duties and liabilities of such a 21

party. 22

110 ABC Commissioner may make submissions in FWC 23

proceedings 24

(1) The ABC Commissioner may intervene or make a submission in a 25

matter before the FWC that arises under the FW Act or the FW 26

Transitional Act if the matter involves: 27

(a) a building industry participant; or 28

(b) building work. 29


Powers of ABC Commissioner etc. Part 3

Section 111


(2) If the ABC Commissioner intervenes in a proceeding under 1

subsection (1), the ABC Commissioner is taken to be a party to the 2

proceeding and has all the rights, duties and liabilities of such a 3

party. 4

(3) The ABC Commissioner makes a submission under subsection (1) 5

by giving written notice to the General Manager of the FWC. 6

111 ABC Commissioner and other inspectors may institute 7

proceedings under the FW Act, etc. 8

(1) If a provision of the FW Act, the FW Transitional Act, or of an 9

instrument under either of those Acts, authorises a Fair Work 10

Inspector (within the meaning of the FW Act) to: 11

(a) make an application to the FWC; or 12

(b) make an application to, or otherwise institute proceedings in, 13

a court; 14

the provision is also taken to authorise an inspector to make such 15

an application, or institute such proceedings, in any case where the 16

application or proceedings relates to a matter that involves: 17

(c) a building industry participant; or 18

(d) building work. 19

(2) If the inspector makes an application, or institutes proceedings, the 20

FW Act, the FW Transitional Act and any such instrument have 21

effect, in relation to the application or proceedings, as if the 22

inspector were a Fair Work Inspector (within the meaning of the 23

FW Act). 24

(3) Directions under section 704 or 705 of the FW Act do not apply to 25

the inspector in relation to the application or proceedings. 26

112 General Manager of the FWC must keep ABC Commissioner 27

informed 28

The General Manager of the FWC must, as soon as practicable, 29

notify the ABC Commissioner of: 30

(a) every application lodged with the FWC, or the General 31

Manager of the FWC, under the FW Act or the FW 32


Part 3 Powers of ABC Commissioner etc.

Section 112


Transitional Act, where the application relates to a matter 1

that involves: 2


(ii) building work; and 4

(b) the outcome of each application. 5


Provisions relating to courts Part 4

Section 113


Part 4—Provisions relating to courts 1

2

113 Jurisdiction of the Federal Court 3

Jurisdiction is conferred on the Federal Court in relation to any 4

matter arising under this Act. 5

114 Exercising jurisdiction in the Fair Work Division of the Federal 6

Court 7

(1) This section applies if: 8

(a) a writ of mandamus or prohibition or an injunction is sought 9

in the Federal Court against a person holding office under 10

this Act; or 11

(b) a declaration is sought under section 21 of the Federal Court 12

of Australia Act 1976 in relation to a matter arising under this 13

Act; or 14

(c) an injunction is sought under section 23 of the Federal Court 15

of Australia Act 1976 in relation to a matter arising under this 16

Act; or 17

(d) a prosecution is instituted in the Federal Court under this Act; 18

or 19

(e) an appeal is instituted in the Federal Court from a judgement 20

of the Federal Circuit Court or a court of a State or Territory 21

in a matter arising under this Act; or 22

(f) proceedings in relation to a matter arising under this Act are 23

transferred to the Federal Court from the Federal Circuit 24

Court; or 25

(g) the Federal Circuit Court or a court of a State or Territory 26

states a case or reserves a question for the consideration of 27

the Federal Court in a matter arising under this Act; or 28

(h) the High Court remits a matter arising under this Act to the 29

Federal Court. 30

(2) The jurisdiction of the Federal Court is to be exercised in the Fair 31

Work Division of the Federal Court. 32


Part 4 Provisions relating to courts

Section 115


115 No limitation on Federal Court’s powers 1

To avoid doubt, nothing in this Act limits the Federal Court’s 2

powers under section 21, 22 or 23 of the Federal Court of 3

Australia Act 1976. 4

116 Appeals from relevant State or Territory courts 5

Appeals from original decisions of relevant State or Territory 6

courts 7

(1) An appeal lies to the Federal Court from a decision of a relevant 8

State or Territory court exercising jurisdiction under this Act. 9

(2) No appeal lies from a decision of a relevant State or Territory court 10

exercising jurisdiction under this Act, except: 11

(a) if the court was exercising summary jurisdiction—an appeal, 12

to that court or another relevant State or Territory court of the 13

same State or Territory, as provided for by a law of that State 14

or Territory; or 15

(b) in any case—an appeal as provided for by subsection (1). 16

Appeals from appellate decisions of relevant State or Territory 17

courts 18

(3) An appeal lies to the Federal Court from a decision of a relevant 19

State or Territory court made on appeal from a decision that: 20

(a) was a decision of that court or another relevant State or 21

Territory court of the same State or Territory; and 22

(b) was made in the exercise of jurisdiction under this Act. 23

(4) No appeal lies from a decision to which subsection (3) applies, 24

except an appeal as provided for by that subsection. 25

Leave to appeal not required 26

(5) It is not necessary to obtain the leave of the Federal Court, or the 27

court appealed from, in relation to an appeal under subsection (1) 28

or (3). 29


Provisions relating to courts Part 4

Section 117


117 Court not to require undertaking as to damages 1

If the ABC Commissioner or any other inspector is an applicant in 2

court proceedings under this Act, the FW Act or the FW 3

Transitional Act, the court cannot require the ABC Commissioner, 4

the inspector or another person, as a condition of granting an 5

interim injunction, to give undertakings as to damages. 6


Part 5 Miscellaneous

Section 118


Part 5—Miscellaneous 1

2

118 ABC Commissioner etc. not liable for conduct in good faith 3

(1) Civil proceedings do not lie for loss, damage or injury of any kind 4

suffered by a person as a result of anything done, or omitted to be 5

done, in good faith and without negligence by a person referred to 6

in subsection (2): 7

(a) in the exercise, or purported exercise, of functions, powers or 8

duties under, or in relation to, this Act; or 9

(b) in the exercise, or purported exercise, of functions, powers or 10

duties under, or in relation to, the Independent Contractors 11

Act 2006, the FW Act or the FW Transitional Act, where the 12

exercise, or purported exercise, of the function, power or 13

duty relates to a matter that involves: 14


(ii) building work. 16

(2) The persons are: 17

(a) a designated official; and 18

(b) the Federal Safety Commissioner; and 19

(c) a Federal Safety Officer; and 20

(d) an APS employee assisting the Federal Safety Commissioner; 21

and 22

(e) a person engaged as a consultant under section 42. 23

119 Delegation by Minister 24

(1) The Minister may, in writing, delegate all or any of the Minister’s 25

functions or powers under Chapter 3 (the Building Code) to the 26

ABC Commissioner. 27

(2) In performing functions or exercising powers delegated under 28

subsection (1), the ABC Commissioner must comply with any 29

directions of the Minister. 30

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901. 31


Miscellaneous Part 5

Section 120


(3) The Minister may give a direction for the purposes of 1

subsection (2). 2





120 Rules and regulations 7

Rules 8

(1) The Minister may, by legislative instrument, make rules 9

prescribing matters: 10

(a) required or permitted by this Act to be prescribed by the 11

rules; or 12

(b) necessary or convenient to be prescribed for carrying out or 13

giving effect to this Act. 14

(2) Without limiting subsection (1), the rules may make provision for, 15

and in relation to, the following: 16

(a) the manner in which, and the time within which, applications 17

under this Act may be made and dealt with; 18

(b) the form of notices that are required or permitted to be given 19

under this Act. 20

(3) Despite subsection 12(2) of the Legislative Instruments Act 2003, 21

the first rules made for the purposes of subsection 6(4) or (5) 22

(meaning of building work) or 10(2) (extension of Act to 23

Christmas Island and Cocos (Keeling) Islands) may be expressed 24

to take effect from the commencement of the subsection for which 25

the rules are made, if those rules are made within 120 days after 26

this subsection commences. 27

Regulations 28

(4) The Governor-General may make regulations prescribing: 29

(a) penalties for offences against the rules, not exceeding a fine 30

of 10 penalty units; or 31


Part 5 Miscellaneous

Section 120


(b) civil penalties for contraventions of the rules, not exceeding: 1

(i) for a body corporate—25 penalty units; or 2

(ii) in any other case—5 penalty units. 3

building and construction industry (improving productivity

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