Most Read Contributor in Australia, September 2016
In late March 2012 the federal government passed the
Building and Construction Industry Improvement Amendment
(Transition to Fair Work) Bill 2012. This legislation will
abolish the Office of the Australian Building and Construction
Commissioner (ABCC) and create a new agency, the
Office of the Fair Work Building Industry Inspectorate
The key changes are explained below. It is expected that the
changes will come into effect some time during 2012.
Integration into Fair Work Act scheme Building unions, their
officials, employees, employers and other participants in the
building industry will be subject to the same offences and
penalties in the Fair Work Act 2009 (Cth)
(Act) as their counterparts in other Australian
industries. There will no longer be a separate statutory regime of
more onerous offences and higher penalties for building industry
FWBI inspectors will perform the same functions and powers as a
Fair Work Inspector in relation to building matters.
In legal proceedings regarding a building matter the FWBI
Director or inspector cannot initiate or progress proceedings that
relate to matters that have settled between the other parties.
Consider, for example, a proceeding relating to alleged coercion by
a building union of a building contractor to employ a person as
union delegate in contravention of s 355 of the Act. If the
contractor and union settle that matter, the FWBI inspector cannot
later seek to prosecute the union for contravening s 355.
The new legislation also makes it clear that FWBI will not be
responsible for industrial compliance in respect of off-site
prefabrication of made-to-order components i.e. manufacturing that
takes place in permanent off-site facilities and is separate from
the building project. However, pre-fabrication of building
components that takes place on auxiliary or holding sites separate
from the primary construction site(s) will remain subject to
FWBI's compliance powers.
Safeguards for exercise of coercive powers
The FWBI Director will have the power to require a person to
provide information, documents or evidence relevant to an
investigation. A person who fails to comply with such a requirement
will remain liable to a maximum penalty of 6 months imprisonment or
$3,300 fine. However, the person would retain the right to claim
legal professional privilege or public interest immunity.
In order to exercise the coercive powers to obtain information,
documents or evidence the FWBI Director will need to satisfy a
designated presidential member of the Commonwealth Administrative
Appeals Tribunal that:
there are reasonable grounds to believe the person has
information or documents or is capable of giving evidence relevant
to the investigation;
all other methods of obtaining the material or evidence have
been tried or were not appropriate;
the information or evidence would be likely to be of assistance
to the investigation; and
it would be appropriate, having regard to all of the
circumstances, to impose the requirement.
A person who is being examined will be entitled to be
represented at the examination by a lawyer of the person's
choice. The FWBI Director cannot refuse a person representation by
a particular lawyer because that lawyer has represented or is also
representing another person who has been examined.
The FWBI Director cannot require a person to give an undertaking
not to disclose information or answers given at the examination or
to discuss matters relating to the examination with any other
person. This will mean, for example, that a person cannot be
prevented from discussing their experiences at the examination with
A person who attends a compulsory examination is entitled to
payment for reasonable expenses incurred by the person in attending
the examination. Reasonable expenses will cover matters such as
travel, accommodation and legal expenses.
The Commonwealth Ombudsman will monitor and review all
examinations and provide reports to the Parliament on the exercise
of this power.
Option to be exempt from exercise of coercive powers Interested
persons may apply for one or more building projects to be exempt
from the exercise of coercive powers. These applications will be
determined by the Independent Assessor, who must be satisfied that
it would be appropriate to make the determination, having regard to
the object of the Act and any matters prescribed by the
regulations. According to the explanatory memorandum accompanying
this legislation, such matters might include a demonstrated record
of compliance with workplace relations laws, including court or
tribunal orders, in connection with the building project.
The Independent Assessor must also be satisfied that it would
not be contrary to the public interest to make a determination.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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