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Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009

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5889

2008-2009

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009

 

 

(1)     Schedule 1, item 2, page 3 (line 27), omit “.”, substitute:

             ; and (f)  promoting respect for the rule of law; and

                     (g)  ensuring respect for the rights of the building industry participants; and

                     (h)  encouraging the pursuit of high levels of employment in the building industry.

[objects]

(2)     Schedule 1, item 6, page 4 (lines 4 to 7), item to be opposed .

[advisory board]

(3)     Schedule 1, item 31, page 6 (lines 21 to 24), item to be opposed .

[remove Independent Assessor]

(4)     Schedule 1, item 41, page 7 (lines 26 and 27), item to be opposed .

[retain definition of penalty unit]

(5)     Schedule 1, item 48, page 8 (lines 17 to 20), item to be opposed .

[retain existing definition of building work ]

(6)     Schedule 1, item 49, page 9 (line 21), omit “, a safety net contractual entitlement”.

[functions not to include oversight of safety net entitlements

(7)     Schedule 1, item 49, page 9 (lines 24 and 25), omit “and safety net contractual entitlements”.

[functions not to include oversight of safety net entitlements

(8)     Schedule 1, item 49, page 10 (lines 11 to 15), omit subsection 11(1), substitute:

             (1)  The Minister may, by legislative instrument, give directions to the Director about the manner in which the Director is to perform the functions or exercise the powers of the Director.

[remove ministerial power to give directions

 on policies, programs and priorities]

(9)     Schedule 1, item 49, page 12 (line 15), omit “; and”, substitute “.”.

[consequential-advisory board]

(10)   Schedule 1, item 49, page 12 (lines 16 and 17), omit paragraph 14(2)(c).

[advisory board]

(11)   Schedule 1, item 49, page 15 (line 1) to page 19 (line 6), Part 2 of Chapter 2 to be opposed .

[advisory board]

(12)   Schedule 1, item 51, page 20 (lines 12 and 13), omit the item, substitute:

51  Chapters 5 and 6

Repeal the Chapters, substitute:

Chapter 5—Industrial action etc.

35A  Unlawful industrial action prohibited

                   A person must not engage in industrial action which is not protected industrial action.

Note:          This section is a civil penalty provision.

35B  Injunction against unlawful industrial action

             (1)  If, on application by the Director or any other person, an appropriate court is satisfied that unlawful industrial action is:

                     (a)  occurring; or

                     (b)  threatened, impending or probable;

then the court may grant an injunction in such terms as the court considers appropriate.

             (2)  If, in the opinion of the court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1).

             (3)  The power of the court to grant an injunction restraining a person (the defendant ) from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the court that the defendant intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the defendant has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind.

             (4)  In this section:

appropriate court means the Federal Court, the Federal Magistrates Court, a Supreme Court of a State or Territory, or a District Court, or County Court, of a State.

(13)   Schedule 1, item 52, page 20 (lines 18 to 27), clause 36 to be opposed .

[remove Independent Assessor]

(14)   Schedule 1, item 52, page 21 (line 13) to page 28 (line 16), Division 2 of Part 1 of Chapter 7 to be opposed .

[remove Independent Assessor]

(15)   Schedule 1, item 52, page 29 (lines 15 to 24), subsection 45(2) to be opposed .

[remove Independent Assessor]

(16)   Schedule 1, item 52, page 30 (lines 34 to 36), section 46 to be opposed .

[remove sunset provision]

(17)   Schedule 1, item 52, page 31 (lines 7 to 9), omit paragraph 47(1)(b).

[remove Independent Assessor]

(18)   Schedule 1, item 52, page 34 (lines 24 to 29), omit subsection 51(6), substitute:

Director may require certain undertakings

             (6)  The Director may require the person and if represented, the person’s lawyer, to undertake, until the investigation is concluded or a proceeding is initiated as a result of the investigation (whichever occurs first):

                     (a)  not to disclose information or answers given at the examination; or

                     (b)  not to discuss matters relating to the examination with any other person.

             (7)  An undertaking given in accordance with a requirement under subsection (6) does not prevent a person disclosing information to, or discussing matters with, a lawyer engaged by the person for the purpose of obtaining professional legal advice.

[Director may require certain undertakings]

(19)   Schedule 1, item 55, page 35 (lines 26 to 32), omit subsection 52(2), substitute:

             (2)  This Part does not require a person to give information, produce a document or answer questions if to do so would disclose information that is the subject of legal professional privilege.

[remove information exemption re: public interest immunity]

(20)   Schedule 1, items 57 and 58, page 36 (lines 3 to 6), items to be opposed .

[retain existing provision ousting public interest]

(21)   Schedule 1, page 43 (after line 2), after item 73, insert:

73A  At the end of Chapter 7

Add:

Part 3—Contravention of civil penalty provision

63A  Definitions

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

appropriate court means the Federal Court, the Federal Magistrates Court, a Supreme Court of a State or Territory or a District Court, or County Court, of a State.

civil penalty provision means section 35A.

pecuniary penalty order means an order under paragraph 63B(1)(a).

person , in relation to a contravention of a civil penalty provision, includes an industrial association.

             (2)  For the purposes of this Part, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. For this purpose, a person is involved in a contravention of a civil penalty provision if, and only if, the person:

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

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

                     (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

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

63B  Penalties etc. for contravention of civil penalty provision

             (1)  An appropriate court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant ) who has contravened a civil penalty provision:

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

                     (b)  an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;

                     (c)  any other order that the court considers appropriate.

             (2)  The maximum pecuniary penalty is 1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units.

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

                     (a)  injunctions (including interim injunctions); and

                     (b)  any other orders that the court considers necessary to stop the conduct or remedy its effects, including orders for the sequestration of assets.

             (4)  The power of the court to grant an injunction restraining the defendant from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the court that the defendant intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the defendant has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind.

             (5)  A pecuniary penalty is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.

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

                     (a)  the Director;

                     (b)  a Fair Work Building Industry Inspector;

                     (c)  a person affected by the contravention;

                     (d)  a person prescribed by the regulations for the purposes of this paragraph.

             (7)  A regulation prescribing persons for the purposes of paragraph (6)(d) may provide that a person is prescribed only in relation to circumstances specified in the regulation.

63C  Multiple proceedings for same conduct

             (1)  A court must not make a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

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

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

             (3)  Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether an order under this Part has been made against the person.

63D  Evidence given in proceedings for penalty not admissible in criminal proceedings

                   Evidence of information given by an individual, or evidence of production of documents by an individual, is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

(22)   Schedule 1, item 74, page 44 (lines 18 to 23), subsection 64(5) to be opposed .

[advisory board]

(23)   Schedule 1, item 84, page 47 (lines 20 and 21), omit the item, substitute:

84  Section 70

Repeal the section.

[building association responsible for conduct of members etc.]

(24)   Schedule 1, item 94, page 49 (line 8), omit paragraph (k).

[remove Independent Assessor]