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Building and Construction Industry (Improving Productivity) Bill 2013

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2013-2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

Building and Construction Industry (Improving Productivity) Bill 2013

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

(Circulated with the authority of the

Minister for Employment,

Senator the Hon. Eric Abetz)



 

 



AMENDMENTS TO THE BUILDING AND CONSTRUCTION INDUSTRY (IMPROVING PRODUCTIVITY) BILL 2013

OUTLINE

The Building and Construction Industry (Improving Productivity) Bill 2013 (the Bill) fulfils the Government’s election commitment to re-establish the Australian Building and Construction Commission (ABCC).

The Bill was referred to both the Senate Standing Committee on Education and Employment’s Legislation Committee and References Committee. The Legislation Committee’s report was tabled on 2 December 2013. The Reference Committee’s report was tabled on 27 March 2014.

The amendments to the Bill that the Government will move:

·          clarify the application of the Bill to building work carried out on resources platforms and ships in the exclusive economic zone or waters above the continental shelf

·          clarify that ‘building work’ includes the transportation of building employees and building contractors to perform building work

·          provide additional matters that the Building Code may provide for to allow the Building Code to contain an effective monitoring, compliance and enforcement regime

·          enable the Building Code to confer functions on the ABC Commissioner so that the ABC Commissioner can effectively exercise powers and perform functions in relation to the Building Code, and

·          ensure that action which is authorised by or under the Building Code is not subject to the prohibitions contained in clause 54 of the Bill relating to coercion and undue pressure.

The development of some of these amendments arose out of consultation with stakeholders on the Bill and from issues raised in submissions to the Legislation Committee.

 

FINANCIAL IMPACT STATEMENT

The Government has committed to providing an additional $35 million over four years for the re-established ABCC.

The amendment to the Bill will have no additional financial impacts.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

See Statement of Compatibility with Human Rights at the end of this explanatory memorandum.



NOTES ON AMENDMENTS

 

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

 

Fair Work Act

 

 

Fair Work Act 2009

 

EEZ

 

 

Exclusive Economic Zone

 

ABC Commissioner

 

 

Australian Building and Construction Commissioner



Item 1 - Clause 5, page 12 (line 19)

1.                         This item amends the definition of resources platform to provide that the definition is not dependent on whether a platform is attached to the seabed.

2.                         This amendment responds to issues raised by stakeholders regarding the application of the Bill to the offshore mining sector. For example, in its submission to the Senate Standing Committees on Education and Employment Legislation Committee the Australian Mines and Metals Association noted that:

While it is likely that fixed platforms, FLNGs [Floating Liquefied Natural Gas units] and FPSOs [Floating Production Storage and Offloading units] would be regarded as “structures” and that most subsea installations will be regarded as either a “structure” or “works”, it may be difficult to determine whether the building, structure or works form part of land. [1]

Item 2 - Clause 5, page 12 (after line 21), after the definition of Secretary

3.                         This item inserts a definition of ship into the Bill to clarify the extension of the Bill to the EEZ and waters above the continental shelf. The amendment provides that ship has the same meaning as in the Fair Work Act. The definition of ship in the Fair Work Act is broad and includes a barge, lighter, hulk or other vessel.

4.                         This amendment addresses concerns about the application of the Bill to the offshore mining sector, specifically any potential ambiguity around what types of vessels are ‘ships’ for the purposes of the Bill, and creates consistency with the Fair Work Act.

Item 3 - Clause 6, page 13 (lines 8 to 15)

5.                         This item amends the definition of building work to clarify that the definition covers the construction, alteration, extension, restoration, repair, demolition or dismantling of resources platforms as well as the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works on resources platforms . This would include the commissioning and decommissioning work on such platforms.

6.                         This item also amends the definition of building work to clarify the definition covers the installation of fittings in resources platforms .

7.                         These amendments address concerns about the application of the Bill to the offshore mining sector by clarifying that the definition of building work is not dependent on whether or not there is an attachment to land (for example, in respect of construction work on resources platforms floating within the exclusive economic zone). 

Item 4 - Clause 6, page 13 (after line 32), after paragraph (1)(e)

8.                         This item amends clause 6 to provide that the transporting of building employees or building contractors to engage in building work covered by paragraphs (a), (b), (c) or (d) of clause 6, directly to building sites where that work is being or may be performed, is building work for the purposes of the Bill. This definition applies where the transport is organised by or on behalf of the relevant building employer or the person who engaged the building contractors.

9.                         This amendment responds to issues raised by stakeholders regarding the application of the Bill to the offshore mining sector. 

Item 5 - Clause 6, page 14 (line 12)

10.                     This item makes a consequential amendment to reflect changed numbering in clause 6.

Item 6 - Clause 11, page 17 (after line 20), at the end of the clause

11.                     This item amends clause 11 of the Bill to provide for rules to modify the application of the Bill to the EEZ or to waters above the continental shelf.

12.                     This amendment is based on section 33 of the Fair Work Act and will allow for modification as well as extension of the Bill’s geographic application. There is stakeholder support for the Bill to contain a mechanism to provide flexibility to ensure that appropriate boundaries can be set around the scope of the Bill, in particular in relation to the coverage of supply and transport to the off-shore mining sector. [2]

13.                     The ability to modify the coverage of the Bill in these zones is necessary in light of the evolving nature of the industry and work practices in the off-shore mining sector. Any rules that are made to modify the coverage of the Bill will be subject to disallowance by Parliament. This will ensure that there is an appropriate degree of Parliamentary oversight.

Item 7 - Clause 16, page 21 (line 7), after “this Act”

14.                     This item amends clause 16 of the Bill to expressly provide that the ABC Commissioner has any other function conferred on him or her by the Building Code.

15.                     This amendment is necessary to ensure the ABC Commissioner can effectively exercise powers and perform functions in relation to the Building Code and monitor, promote and enforce compliance with the Building Code.  

16.                     Clause 34 of the Bill provides that the Building Code is a legislative instrument. As a legislative instrument, the Building Code would be subject to disallowance by Parliament. This will ensure that there is appropriate oversight of any additional functions that are conferred on the ABC Commissioner by the Building Code.

Item 8 - Clause 34, page 29 (lines 17 to 19)

17.                     This item omits the current subclause 34(2) and replaces it with an expanded list of matters that the Building Code may provide for, namely:

a)         work health and safety matters relating to building work;

b)         obligations on the Commonwealth and Commonwealth authorities in relation to building work, including in relation to the tender process for building work;

c)         monitoring of, and compliance in relation to, the Building Code, including reporting on, and sanctions for, non-compliance in relation to the Building Code;

d)        the powers, functions and duties of the ABC Commissioner in relation to the Building Code;

e)         review of decisions made under the Building Code.

18.                     This amendment will enable the Building Code to contain an effective monitoring, compliance and enforcement regime.

Item 9 - Clause 54, page 43 (after line 8), after subclause (4)

19.                     This item inserts an additional subclause to clause 54 of the Bill which provides that subclauses 54(1), (3) and (4) do not apply in relation to action that is authorised by, or under, the Building Code.

20.                     This amendment will ensure that action which is authorised or required by the Building Code is not subject to the prohibitions contained in clause 54 relating to coercion and undue pressure. This amendment ensures there is no potential for conflict between the prohibitions contained in the Bill and the obligations in the Building Code.



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Building and Construction Industry (Improving Productivity) Bill 2013

These amendments to the Building and Construction Industry (Improving Productivity) Bill 2013 (the Bill) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of amendments to the Building and Construction Industry (Improving Productivity) Bill 2013

The Building and Construction Industry (Improving Productivity) Bill 2013 (the Bill) fulfils the Government’s election commitment to re-establish the Australian Building and Construction Commission (ABCC).

 

The amendments to the Bill will:

·          clarify the application of the Bill to building work carried out on resources platforms and ships in the exclusive economic zone or waters above the continental shelf

·          ensure that the transportation of building employees and building contractors directly to building sites is covered in the same manner as the transporting and supply of goods to building sites

·          provide additional matters that the Building Code may provide for to allow the Building Code to contain an effective monitoring, compliance and enforcement regime

·          enable the Building Code to confer functions on the ABC Commissioner so that the ABC Commissioner can effectively exercise powers and perform functions in relation to the Building Code, and

·          ensure that action which is authorised by or under the Building Code is not subject to the prohibitions contained in clause 54 of the Bill relating to coercion and undue pressure.

Human Rights Implications

The amendments to the Bill are technical in nature and do not engage human rights.

Conclusion

The amendments to the Bill do not engage human rights.

Eric Abetz, Minister for Employment

 




[1] Australian Mines and Metal Association submission to the Senate Standing Committees on Education and Employment Legislation Committee, November 2013, p. 44

[2] Australian Mines and Metal Association submission to the Senate Standing Committees on Education and Employment Legislation Committee, November 2013, p. 43