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Building and Construction Industry (Improving Productivity) Bill 2013

2013

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Building and Construction Industry (Improving Productivity) Bill 2013

 

No.      , 2013

 

(Employment)

 

 

 

A Bill for an Act to re-establish the Australian Building and Construction Commissioner, and for related purposes

   

   

   



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

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 1—Simplified outline of this Chapter                                                            31

36.......... Simplified outline of this Chapter...................................................... 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

Chapter 6—Coercion, discrimination and unenforceable agreements       40

Part 1—Simplified outline of this Chapter                                                            40

50.......... Simplified outline of this Chapter...................................................... 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 1—Simplified outline of this Chapter                                                            47

60.......... Simplified outline of this Chapter...................................................... 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

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 1—Simplified outline of this Chapter                                                            65

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

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 1—Simplified outline of this Chapter                                                            80

101........ Simplified outline of this Chapter...................................................... 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

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

 



A Bill for an Act to re-establish the Australian Building and Construction Commissioner, and for related purposes

The Parliament of Australia enacts:

Chapter 1 Preliminary

   

   

1   Short title

                   This Act may be cited as the Building and Construction Industry (Improving Productivity) Act 2013 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 120

The later of:

(a) 1 January 2014; and

(b) the day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Main object of this Act

             (1)  The main object of this Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.

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

                     (a)  improving the bargaining framework so as to further encourage genuine bargaining at the workplace level;

                     (b)  promoting respect for the rule of law;

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

                     (d)  ensuring that building industry participants are accountable for their unlawful conduct;

                     (e)  providing effective means for investigating and enforcing this Act, designated building laws (to the extent that those laws relate to building work) and the Building Code;

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

                     (g)  encouraging the pursuit of high levels of employment in the building industry;

                     (h)  providing assistance and advice to building industry participants in connection with their rights and obligations under this Act, designated building laws and the Building Code.

4   Simplified outline of this Act

This Act regulates certain conduct of building industry participants who perform building work.

The Australian Building and Construction Commissioner, and those who are part of the Australian Building and Construction Commission, exercise powers and perform functions in relation to building work. For example, the ABC Commissioner and other inspectors investigate, monitor and promote compliance with this Act, the Building Code and designated building laws. Designated building laws are specified workplace relations laws and industrial instruments under those laws. The Building Code is a code of practice issued under this Act in respect of building work that certain persons must comply with.

The Federal Safety Commissioner, and Federal Safety Officers, are responsible for promoting work health and safety in relation to building work. They also have a role in relation to the Work Health and Safety Accreditation Scheme, which is a scheme prescribed by the rules for accrediting persons who carry out building work funded by the Commonwealth or a Commonwealth authority.

Unlawful industrial action and unlawful picketing are prohibited by this Act, and anyone can obtain an injunction to prevent this happening. Other action relating to coercion and discrimination is also prohibited by this Act.

The ABC Commissioner, inspectors and Federal Safety Officers are given powers to obtain information. The ABC Commissioner can demand information by giving a person an examination notice. Inspectors and Federal Safety Officers can also enter premises for certain purposes. There are protections for, and limitations on the use of, information that is provided under this Act.

Inspectors and affected persons are able to apply to certain courts when a person contravenes a civil remedy provision. The court may order a pecuniary penalty, grant an injunction or make another order. The ABC Commissioner and inspectors have other powers to enforce compliance with this Act (such as being able to accept enforceable undertakings).

The ABC Commissioner can intervene in, or institute, court or FWC proceedings. The ABC Commissioner can also publicise non-compliance with this Act, designated building laws and the Building Code.

5   Definitions

                   In this Act:

ABC Commissioner means the Australian Building and Construction Commissioner referred to in subsection 15(1).

accredited person means a person who is accredited under the WHS Accreditation Scheme.

ancillary site has the meaning given by section 9.

assistant means:

                     (a)  a Deputy ABC Commissioner; or

                     (b)  an inspector; or

                     (c)  for an examination notice requiring a person to give information or produce documents under paragraph 61(2)(a) or (b):

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

                             (ii)  a consultant under section 32.

authorised applicant for an order relating to a contravention of a civil remedy provision means:

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

                     (b)  a person affected by the contravention; or

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

Rules prescribing persons for the purposes of paragraph (c) may provide that a person is prescribed only in relation to circumstances specified in the rules.

authorised officer means an inspector or a Federal Safety Officer.

bargaining representative has the meaning given by the FW Act.

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

building agreement means an agreement that applies to building work (whether or not it also applies to other work).

building association means an industrial association whose rules allow membership by members of at least one of the following groups:

                     (a)  building employers;

                     (b)  building employees;

                     (c)  building contractors;

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

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

building contractor means a person who has entered into, or who has offered to enter into, a contract for services under which the person:

                     (a)  carries out building work; or

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

building employee means:

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

                     (b)  a person who accepts an offer of engagement as an employee for work that consists of, or includes, building work.

building employer means an employer who employs, or offers to employ, building employees.

building enterprise agreement means an enterprise agreement that applies to building work (whether or not it also applies to other work).

building industry law enforcement has the meaning given by section 106.

building industry participant means any of the following:

                     (a)  a building employer;

                     (b)  a building employee;

                     (c)  a building contractor;

                     (d)  a person who enters into a contract with a building contractor under which the building contractor agrees to carry out building work or to arrange for building work to be carried out;

                     (e)  a building association;

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

building matter means a matter that relates to a building industry participant.

building site means a site at which building work is being or may be performed.

building work has the meaning given by section 6.

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

civil remedy provision means:

                     (a)  a Grade A civil remedy provision; or

                     (b)  a Grade B civil remedy provision.

Commission means the Australian Building and Construction Commission referred to in subsection 29(2).

Commissioner means the ABC Commissioner or a Deputy ABC Commissioner.

Commonwealth authority has the meaning given by the Commonwealth Authorities and Companies Act 1997 .

Commonwealth industrial instrument means any of the following:

                     (a)  an award or transitional award (within the meaning of the FW Transitional Act);

                     (b)  a workplace agreement (within the meaning of the FW Transitional Act);

                     (c)  a pre-reform certified agreement or a pre-reform AWA (within the meaning of the FW Transitional Act);

                     (d)  an order of the Australian Industrial Relations Commission or the FWC;

                     (e)  the Australian Fair Pay and Conditions Standard (within the meaning of the FW Transitional Act);

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

                     (g)  the National Employment Standards (within the meaning of the FW Act).

Commonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976 .

Commonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government.

compliance powers means functions and powers conferred on an authorised officer.

compliance purposes means:

                     (a)  for an inspector—the purposes referred to in subsection 70(1); or

                     (b)  for a Federal Safety Officer—the purposes referred to in subsection 70(2).

conduct includes an omission.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutionally-covered entity means:

                     (a)  a constitutional corporation; or

                     (b)  the Commonwealth; or

                     (c)  a Commonwealth authority; or

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

                     (e)  an organisation.

copy a document includes take extracts from the document.

Deputy ABC Commissioner means a Deputy Australian Building and Construction Commissioner referred to in subsection 15(2).

designated building law means:

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

                     (b)  a Commonwealth industrial instrument.

designated official means any of the following:

                     (a)  the ABC Commissioner;

                     (b)  a Deputy ABC Commissioner;

                     (c)  an inspector;

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

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

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

                     (g)  the General Manager of the FWC;

                     (h)  the Commonwealth Ombudsman, a Deputy Commonwealth Ombudsman or a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976 ;

                      (i)  a person acting under a delegation under this Act from a person referred to in any of the preceding paragraphs.

disclose means divulge or communicate.

employee has its ordinary meaning, and:

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

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

employer has its ordinary meaning, and includes a person that is usually an employer within that meaning.

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

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

evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

examination means an attendance by a person, before the ABC Commissioner or an assistant, where the person is required as a result of an examination notice to answer questions relevant to an investigation.

examination notice means an examination notice issued under Part 2 of Chapter 7.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

Federal Safety Commissioner means the Federal Safety Commissioner referred to in section 37.

Federal Safety Officer means:

                     (a)  the Federal Safety Commissioner; or

                     (b)  a person appointed as a Federal Safety Officer under subsection 68(1).

full-time Commissioner means:

                     (a)  the ABC Commissioner; or

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

FW Act means the Fair Work Act 2009 .

FWC means the Fair Work Commission.

FW Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .

Grade A civil remedy provision means:

                     (a)  a section of this Act (other than a section that is divided into subsections) that has a note at its foot stating “Grade A civil penalty”; or

                     (b)  a subsection of this Act that has a note at its foot stating “Grade A civil penalty”.

Note:          The maximum penalty for a Grade A civil remedy provision is 1,000 penalty units for bodies corporate, and otherwise 200 penalty units (see subsection 81(2)).

Grade B civil remedy provision means:

                     (a)  a section of this Act (other than a section that is divided into subsections) that has a note at its foot stating “Grade B civil penalty”; or

                     (b)  a subsection of this Act that has a note at its foot stating “Grade B civil penalty”.

Note:          The maximum penalty for a Grade B civil remedy provision is 100 penalty units for bodies corporate, and otherwise 20 penalty units (see subsection 81(2)).

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

industrial action has the meaning given by section 7.

industrial association means:

                     (a)  an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law (within the meaning of the FW Act); or

                     (b)  an association of employees, or independent contractors, or both, a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors; or

                     (c)  an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment, independent contractors or both;

and includes:

                     (d)  a branch of such an association; and

                     (e)  an organisation; and

                      (f)  a branch of an organisation.

inspector means:

                     (a)  the ABC Commissioner; or

                     (b)  a person appointed as an Australian Building and Construction Inspector under subsection 66(1).

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

lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.

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

occupier has the same meaning as in the FW Act.

officer , in relation to an organisation or industrial association, means a person who holds an office in, or is an employee of, the organisation or association.

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

organisation has the same meaning as in the Fair Work (Registered Organisations) Act 2009 .

part-time Commissioner means a Deputy ABC Commissioner appointed on a part-time basis.

person has a meaning affected by section 96.

pre-construction agreement has the meaning given by subsection 43(8).

premises has the same meaning as in the FW Act.

protected industrial action has the meaning given by section 8.

protected information means information that:

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

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

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

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

relevant court means each of the following courts:

                     (a)  the Federal Court;

                     (b)  the Federal Circuit Court;

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

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

relevant State or Territory court means each of the following courts:

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

                     (b)  a magistrates court;

                     (c)  the Industrial Relations Court of South Australia;

                     (d)  the Industrial Court of New South Wales;

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

resources platform means an artificial island, installation or structure attached to the seabed for the purpose of exploration for, or exploitation of, resources or for other economic purposes.

Secretary means the Secretary of the Department.

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

this Act includes the rules and the regulations.

unlawful industrial action : action is unlawful industrial action if:

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

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

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

WHS Accreditation Scheme means the Work Health and Safety Accreditation Scheme referred to in section 43.

6   Meaning of building work

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

                     (a)  the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent;

                     (b)  the construction, alteration, extension, restoration, repair, demolition or dismantling of railways (not including rolling stock) or docks;

                     (c)  the installation in any building, structure or works of fittings forming, or to form, part of land, including heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems;

                     (d)  any operation that is part of, or is preparatory to, or is for rendering complete, work covered by paragraph (a), (b) or (c), for example:

                              (i)  site clearance, earth-moving, excavation, tunnelling and boring; or

                             (ii)  the laying of foundations; or

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

                            (iv)  the prefabrication of made-to-order components to form part of any building, structure or works, whether carried out on-site or off-site; or

                             (v)  site restoration, landscaping and the provision of roadways and other access works;

                     (e)  transporting or supplying goods, to be used in work covered by paragraph (a), (b), (c) or (d), directly to building sites (including any resources platform) where that work is being or may be performed;

but does not include any of the following:

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

                     (g)  the extraction (whether by underground or surface working) of minerals, including tunnelling or boring, or constructing underground works, for that purpose;

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

                              (i)  the construction, repair or restoration of a single dwelling-house; or

                             (ii)  the construction, repair or restoration of any building, structure or work associated with a single dwelling-house; or

                            (iii)  the alteration or extension of a single dwelling-house, if it remains a single dwelling-house after the alteration or extension.

             (2)  To avoid doubt, paragraphs (1)(f) and (g) do not prevent this Act from applying to building work (within the meaning of paragraphs (1)(a) to (e)) that is performed on land in which there is an interest relating to the mining of oil, gas or minerals.

Note:          This Act extends to any resources platform, and to certain ships, in the exclusive economic zone or in the waters above the continental shelf (see section 11).

             (3)  Paragraph (1)(h) does not apply if the project is part of a multi-dwelling development that consists of, or includes, the construction of at least 5 single dwelling-houses.

             (4)  Subject to subsection (5), building work includes any activity that is prescribed by the rules for the purposes of this subsection.

             (5)  Building work does not include any activity that is prescribed by the rules for the purposes of this subsection.

             (6)  In this Act:

land includes land beneath water.

7   Meaning of industrial action

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

                     (a)  the performance of building work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

                     (b)  a ban, limitation or restriction on the performance of building work by an employee or on the acceptance of or offering for building work by an employee;

                     (c)  a failure or refusal:

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

                             (ii)  to perform any building work at all by employees who attend work, where that work is building work;

                     (d)  the lockout of employees from their work by their employer, where that work is building work.

Note:          In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

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

                     (a)  action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees;

                     (b)  action by an employer that is authorised or agreed to, in advance and in writing, by, or on behalf of, employees of the employer;

                     (c)  action by an employee if:

                              (i)  the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

                             (ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

When there is a lockout

             (3)  There is a lockout of employees from their work by an employer if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Burden of proof on employee taking action based on concern to health or safety

             (4)  Whenever a person seeks to rely on paragraph (2)(c), the person has the burden of proving the paragraph applies.

8   Meaning of protected industrial action

             (1)  Action is protected industrial action if the action is protected industrial action within the meaning of the FW Act.

             (2)  However, action is not protected industrial action if the action is protected industrial action (within the meaning of the FW Act) for a proposed enterprise agreement but:

                     (a)  the action is engaged in in concert with one or more persons who are not protected persons; or

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

             (3)  The following persons are protected persons :

                     (a)  an employee organisation (within the meaning of the FW Act) that is a bargaining representative for the proposed enterprise agreement;

                     (b)  a member of such an organisation who is employed by the employer and who will be covered by the proposed enterprise agreement;

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

                     (d)  an employee who is a bargaining representative for the proposed enterprise agreement.

9   Meaning of ancillary site

                   A site is an ancillary site if the site is:

                     (a)  a site from which goods are transported or supplied, or building industry participants are transported, directly to a building site; or

                     (b)  a site where a building industry participant, who is performing building work, or managing building work that is being performed, on a building site, does work relating to the building work.

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

             (1)  This Act extends to the Territory of Christmas Island and to the Territory of Cocos (Keeling) Islands.

             (2)  This Act applies in relation to the Territory of Christmas Island and to the Territory of Cocos (Keeling) Islands with any modifications that are prescribed by the rules.

11   Extension of Act to EEZ and waters above continental shelf

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

                     (a)  any resources platform in the exclusive economic zone or in the waters above the continental shelf; and

                     (b)  any ship, in the exclusive economic zone or in the waters above the continental shelf, that is travelling to or from (or both to and from) an Australian port.

Extensions prescribed by rules

             (2)  Without limiting subsection (1), if the rules prescribe further extensions of this Act, or specified provisions of this Act, to or in relation to the exclusive economic zone or to the waters above the continental shelf, then this Act extends accordingly.

12   Geographical application of offences

                   Division 14 (standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act.

Note:          The extended geographical application that section 11 gives to this Act will apply to the offences in this Act.

13   Act to bind Crown

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

             (2)  Nothing in this Act renders the Commonwealth or a State or Territory liable to be prosecuted for an offence.

Chapter 2 The Australian Building and Construction Commissioner

Chapter 3 The Building Code

   

   

33   Simplified outline of this Chapter

The Minister may issue a Building Code under this Chapter. The Building Code is a code of practice that certain persons (such as constitutional corporations and the Commonwealth) must comply with in respect of building work.

The ABC Commissioner can require a person to report on his or her compliance with the Building Code.

34   Minister may issue Building Code

             (1)  The Minister may, by legislative instrument, issue one or more documents that together constitute a code of practice that is to be complied with by persons in respect of building work.

Note:          The code is called the Building Code (see the definition of Building Code in section 5).

             (2)  Without limiting subsection (1), the Minister may issue one or more documents under that subsection in relation to work health and safety matters relating to building work.

             (3)  The Building Code cannot require a person to comply with the Code in respect of particular building work (the current work ) unless:

                     (a)  the person is a building contractor that is a constitutional corporation; or

                     (b)  the person is a building industry participant and the current work is to be carried out in a Territory or Commonwealth place; or

                     (c)  the person is the Commonwealth or a Commonwealth authority.

35   Building industry participants to report on compliance with Building Code

             (1)  The ABC Commissioner may give a written notice to a person who is required to comply with the Building Code in respect of particular building work.

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

             (2)  The notice may direct the person to give a written report to the ABC Commissioner containing specified information about the extent to which the person complied with the Building Code in respect of that building work.

             (3)  The person must comply with the notice within the period specified by the notice. The period must be at least 14 days.

Note:          Grade B civil penalty.

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

Chapter 4 The Federal Safety Commissioner

Chapter 5 Unlawful action

   

   

44   Simplified outline of this Chapter

Anyone can apply for an injunction under this Chapter to restrain a person from organising or engaging in unlawful industrial action or an unlawful picket that relates to building work. The unlawful industrial action or picket must also relate to a constitutionally-covered entity (such as if the action is taken by or against a constitutionally-covered entity).

Unlawful industrial action includes bans on working, employees failing to attend work and employers locking out employees.

The provisions of the FW Act relating to strike pay also apply in relation to unlawful industrial action.

45   Action to which this Chapter applies

                   This Chapter applies to the following action:

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

                     (b)  action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally-covered entity;

                     (c)  action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity:

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

                             (ii)  to threaten to take, or not take, particular action in relation to another person.

46   Unlawful industrial action prohibited

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

Note:          Grade A civil penalty.

47   Unlawful picketing prohibited

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

Note:          Grade A civil penalty.

             (2)  An unlawful picket is action:

                     (a)  that:

                              (i)  has the purpose of preventing or restricting a person from accessing or leaving a building site or an ancillary site; or

                             (ii)  directly prevents or restricts a person accessing or leaving a building site or an ancillary site; or

                            (iii)  would reasonably be expected to intimidate a person accessing or leaving a building site or an ancillary site; and

                     (b)  that:

                              (i)  is motivated for the purpose of supporting or advancing claims against a building industry participant in respect of the employment of employees or the engagement of contractors by the building industry participant; or

                             (ii)  is motivated for the purpose of advancing industrial objectives of a building association; or

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

Note:          See also Division 2 of Part 2 of Chapter 6 (reason for action and coercion).

48   Injunction against unlawful industrial action or picket

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

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

             (2)  The court may grant an injunction in the terms the court considers appropriate if the court is satisfied that unlawful industrial action, or an unlawful picket, is:

                     (a)  occurring; or

                     (b)  threatened, impending or probable; or

                     (c)  being organised.

             (3)  The court may grant an interim injunction pending determination of an application under subsection (1) if the court is satisfied that it is desirable to do so.

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

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

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

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

49   Payments relating to periods of industrial action

                   Division 9 of Part 3-3 of the FW Act (payment relating to periods of industrial action) applies in relation to industrial action relating to building work with the following modifications:

                     (a)  references in that Division to industrial action are to be read as references to industrial action within the meaning of this Act to which this Chapter applies under section 45;

                     (b)  references in that Division to protected industrial action are to be read as references to protected industrial action within the meaning of this Act;

                     (c)  if the person who contravenes a civil remedy provision to which any of items 21 to 24 of the table set out in section 539 of the FW Act relates is a body corporate—then, for the purposes of subsection 539(2) and paragraph 546(2)(b) of that Act, the pecuniary penalty must not be more than 1,000 penalty units.

Chapter 6 Coercion, discrimination and unenforceable agreements

Chapter 7 Powers to obtain information

Chapter 8 Enforcement

Chapter 9 Miscellaneous