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Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2012

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT AMENDMENT (TRANSITION TO FAIR WORK) BILL 2011

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Bill Shorten MP)



AMENDMENTS TO THE BUILDING AND CONSTRUCTION INDUSTRY IMPROVEMENT AMENDMENT (TRANSITION TO FAIR WORK) BILL 2011

OUTLINE

The Government will move amendments to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011. These amendments would provide that where the Director or an Inspector of the Fair Work Building Industry Inspectorate (the Building Inspectorate) intervenes in civil court proceedings that:

·          arise under a designated building law;

·          involve a building industry participant in relation to a particular matter; and

·          the matter is subsequently settled and discontinued by the parties,

the Director or Inspector is prohibited from continuing to further participate in the proceedings in relation to the settled matter.

The amendments would also prohibit the Director or an Inspector of the Building Inspectorate from:

·          instituting proceedings; or

·          continuing a proceeding where the Director or Inspector was a joint applicant,

in relation to a settled matter.

FINANCIAL IMPACT STATEMENT

The measures proposed in this Bill are budget neutral.

 

NOTES ON AMENDMENTS

1.       In these notes on amendments, the following abbreviations are used:

the Bill

Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011

the Act

Building and Construction Industry Improvement Act 2005

Inspector

Fair Work Building Industry Inspector

FW Act

Fair Work Act 2009

Director

Director of the Fair Work Building Industry Inspectorate



Amendment 1 - Schedule 1, item 94, page 48 (line 19 and 20)

1.                         This item would omit item 94 of Schedule 1 to the Bill and insert a new item 94 into Schedule 1 to the Bill.

2.                         New item 94 repeals section 73 of the Act. Section 73 is no longer necessary because Inspectors will have the power to institute proceedings by virtue of section 59C.  Subsection 59C(1) gives inspectors the same functions and powers of a Fair Work Inspector.  These powers include the power to bring proceedings for a contravention of a civil remedy provision provided in section 539 of the FW Act as well as powers under the Independent Contractors Act 2006 .  

3.                         This item also inserts a new section 73 which provides that the Director or an Inspector must not participate in a building proceeding before a court in certain circumstances.

4.                         The amendment applies to a building proceeding before a court in which the Director or an Inspector is a party (either as a joint applicant or an intervener) that is settled between the parties and discontinued. The Director or an Inspector must not continue to participate in the proceedings to the extent that it relates to settled matters (subsections 73(1) and (2)). 

5.                         Subsection 73(3) provides that a reference in subparagraph 73(1)(b)(i) to parties to the proceeding does not include the Director or an Inspector.

6.                         Subsection 73(4) defines building proceeding for the purposes of the amendments.

Amendment 2 - Schedule 1, page 48 (after line 20)

7.                         This item inserts new item 94A into Schedule 1 of the Bill.

8.                         New item 94A repeals section 73A of the Act. Section 73A is no longer necessary because Inspectors will have the power to institute proceedings by virtue of section 59C.  Subsection 59C(1) gives Inspectors the same functions and powers of a Fair Work Inspector.  These powers include the power to bring proceedings for a contravention of a civil remedy provision provided in section 539 of the FW Act as well as powers under the Independent Contractors Act 2006 .  

9.                         This item also inserts a new section 73A which provides that the Director or an Inspector must not institute a  building proceeding before a court if the conduct giving rise to the proceeding was the subject of settled matters.



 

10.                     The amendment applies to a building proceeding (to which the Director or an Inspector was not a party and had not intervened) that are settled between the parties and discontinued. 

 

11.                     Subsection 73A(3) clarifies that building proceeding has the same meaning as in subsection 73(4).