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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Building
and Construction Industry Improvement Bill
2003
No. ,
2003
(Employment and Workplace
Relations)
A Bill for an Act to improve
workplace relations practices in the building and construction industry, and for
related purposes
Contents
A Bill for an Act to improve workplace relations
practices in the building and construction industry, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Building and Construction Industry
Improvement Act 2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
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 on which this Act receives the Royal Assent |
|
|
2. Sections 3 to 255 |
A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
|
3. Schedule 1 |
A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version 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 investigation and enforcement of
relevant laws;
(f) improving occupational 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 relevant industrial
laws.
In this Act, unless the contrary intention appears:
ABC Commissioner means the Australian Building and
Construction Commissioner referred to in section 11.
ABC Inspector means an Australian Building and Construction
Inspector referred to in section 235.
accreditation scheme means the accreditation scheme referred
to in section 50.
AIRC means the Australian Industrial Relations Commission
established by section 8 of the Workplace Relations Act.
allowable award matters means matters covered by subsection
51(2).
AWA has the meaning given by section 4 of the Workplace
Relations Act.
Note: Part XV of the Workplace Relations Act extends
the circumstances in which AWAs can be made.
award has the meaning given by section 4 of the
Workplace Relations Act.
bargaining services (except in Chapter 7) means services
provided by (or on behalf of) a building association in relation to an
agreement, or a proposed agreement, under Part VIB of the Workplace
Relations Act (including the negotiation, making, certification, operation,
extension, variation or termination of the agreement).
bargaining services fee (except in Chapter 7) means a
fee (however described) payable:
(a) to a building association; or
(b) to someone else in lieu of a building association;
wholly or partly for the provision, or purported provision, of bargaining
services, but does not include membership dues.
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
eligibility rules allow membership by 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 award means an award that applies to building work
(whether or not it also applies to other work).
building certified agreement means a certified agreement that
applies to building work (whether or not it also applies to other
work).
Building Code means the code of practice referred to in
section 26.
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 industrial dispute means an industrial dispute that
relates to building employees, whether or not the dispute also relates to other
employees.
building industry participant means any of the
following:
(a) a building employee;
(b) a building employer;
(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;
(g) an employee of a building association.
building work has the meaning given by
section 5.
certified agreement has the meaning given by section 4
of the Workplace Relations Act.
Note: Part XV of the Workplace Relations Act extends
the circumstances in which agreements can be certified under Part VIB of
that Act.
certify, in relation to an agreement, means certify under
Part VIB of the Workplace Relations Act.
Note: Part XV of the Workplace Relations Act extends
the circumstances in which agreements can be certified under Part VIB of
that Act.
civil penalty provision means:
(a) a Grade A civil penalty provision; or
(b) a Grade B civil penalty provision.
Commissioner means the ABC Commissioner or a Deputy ABC
Commissioner.
Commonwealth authority means:
(a) a body corporate established for a public purpose by or under a law of
the Commonwealth; or
(b) a body corporate:
(i) incorporated under a law of the Commonwealth or a State or Territory;
and
(ii) in which the Commonwealth has a controlling interest.
Commonwealth building employee organisation means an
organisation of employees (within the meaning of the Workplace Relations Act)
whose eligibility rules allow membership by building employees (whether or not
those rules also allow other persons to be members).
Commonwealth building employer organisation means an
organisation of employers (within the meaning of the Workplace Relations Act)
whose eligibility rules allow membership by building employers (whether or not
those rules also allow other persons to be members).
Commonwealth building organisation means:
(a) a Commonwealth building employee organisation; or
(b) a Commonwealth building employer organisation.
Commonwealth industrial instrument means:
(a) an award or certified agreement; or
(b) an order of the AIRC under this Act or the Workplace Relations
Act.
Commonwealth place means a place referred to in paragraph
52(i) of the Constitution, other than the seat of government.
conduct includes an omission.
constitutional corporation means:
(a) a corporation to which paragraph 51(xx) of the Constitution applies;
or
(b) a body corporate that is incorporated in a Territory.
demarcation dispute has the meaning given by section 4
of the Workplace Relations Act.
Deputy ABC Commissioner means a Deputy Australian Building
and Construction Commissioner referred to in section 11.
Deputy Industrial Registrar means a Deputy Industrial
Registrar appointed under section 75 of the Workplace Relations
Act.
designated building law means:
(a) this Act or the Workplace Relations Act; or
(b) a Commonwealth industrial instrument.
eligibility rules means rules that relate to the conditions
of eligibility for membership.
eligible condition means a condition relating to:
(a) the times or days when work is to be performed; or
(b) inclement weather procedures; or
(c) any other matter prescribed by the regulations for the purposes of
this paragraph.
employee has the meaning given by section 4 of the
Workplace Relations Act.
employee organisation means an organisation of employees
within the meaning of the Workplace Relations Act.
employer has the meaning given by section 4 of the
Workplace Relations Act.
Federal Court means the Federal Court of Australia.
Federal Safety Commissioner means the Federal Safety
Commissioner referred to in section 31.
Federal Safety Officer means a Federal Safety Officer
referred to in section 238.
Full Bench has the meaning given by section 4 of the
Workplace Relations Act.
full-time Commissioner means:
(a) the ABC Commissioner; or
(b) a Deputy ABC Commissioner appointed on a full-time basis.
Grade A civil penalty 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”.
Grade B civil penalty 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”.
industrial association has the same meaning as in
Part XA of the Workplace Relations Act.
industrial body means:
(a) the AIRC; or
(b) a court or commission, however designated, exercising under an
industrial law powers and functions corresponding to those conferred on the AIRC
by the Workplace Relations Act.
industrial dispute (except in Chapter 7) has the meaning
given by section 4 of the Workplace Relations Act (as affected by
Part XV of that Act).
industrial instrument means an award or agreement, however
designated, that:
(a) is made under or recognised by an industrial law; and
(b) deals with the relationship between employers and employees, concerns
the relationship between an employer and the employer’s employees, or
provides for the prevention or settlement of a dispute between an employer and
the employer’s employees.
industrial law means:
(a) this Act or the Workplace Relations Act; or
(b) a law, however designated, of the Commonwealth or of a State or
Territory that regulates the relationships between employers and employees or
provides for the prevention or settlement of disputes between employers and
employees.
Industrial Registrar means the Industrial Registrar appointed
under section 67 of the Workplace Relations Act.
Note: See also section 245, which allows delegation by
the Industrial Registrar.
Industrial Registry means the Australian Industrial Registry
established under section 62 of the Workplace Relations Act.
negotiating party has the same meaning as in Division 8
of Part VIB of the Workplace Relations Act.
objectionable provision has the meaning given by
section 7.
occupier has the meaning given by section 4 of the
Workplace Relations Act.
office, in relation to an organisation or industrial
association or a branch of an organisation or industrial association, has the
meaning given by section 6.
officer, in relation to an organisation or industrial
association, means a person who holds an office in the organisation or
association.
OHS law means a law of a State or Territory that is
prescribed for the purposes of this definition.
organisation has the meaning given by section 4 of the
Workplace Relations Act.
part-time Commissioner means a Deputy ABC Commissioner
appointed on a part-time basis.
pattern bargaining has the meaning given by
section 8.
penalty unit has the meaning given by section 4AA of the
Crimes Act 1914.
premises has the meaning given by section 4 of the
Workplace Relations Act.
President has the meaning given by section 4 of the
Workplace Relations Act.
Presidential Member has the meaning given by section 4
of the Workplace Relations Act.
Registrar has the meaning given by section 4 of the
Workplace Relations Act.
registry means the Principal Registry, or another registry,
established under section 64 of the Workplace Relations Act.
State award has the meaning given by section 4 of the
Workplace Relations Act.
State employment agreement has the meaning given by
section 4 of the Workplace Relations Act.
State industrial authority has the meaning given by
section 4 of the Workplace Relations Act.
State industrial instrument means an industrial instrument
that is made under or recognised by an industrial law of a State.
State industrial law means an industrial law of a
State.
statutory freedom of association statement means the
statement set out in Schedule 1.
unlawful action damages means compensation ordered under
section 227 for a contravention of section 74.
unlawful industrial action has the meaning given by
section 73.
Workplace Relations Act means the Workplace Relations Act
1996.
(1) Subject to subsections (2), (3) and (4), 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;
(ii) the laying of foundations;
(iii) the erection, maintenance or dismantling of scaffolding;
(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;
(v) site restoration, landscaping and the provision of roadways and other
access works;
but does not include any of the following:
(e) the drilling for, or extraction of, oil or natural gas;
(f) the extraction (whether by underground or surface working) of
minerals, including tunnelling or boring, or constructing underground works, for
that purpose;
(g) 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) Paragraph (1)(g) 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.
(3) Subject to subsection (4), building work includes
any activity that is prescribed by the regulations for the purposes of this
subsection.
(4) Building work does not include any activity that is
prescribed by the regulations for the purposes of this subsection.
(5) In this section:
land includes land beneath water.
(1) In this Act, office, in relation to an association,
means:
(a) an office of president, vice president, secretary or assistant
secretary of the association; or
(b) the office of a voting member of a collective body of the association,
being a collective body that has power in relation to any of the following
functions:
(i) the management of the affairs of the association;
(ii) the determination of policy for the association;
(iii) the making, alteration or rescission of rules of the
association;
(iv) the enforcement of rules of the association, or the performance of
functions in relation to the enforcement of such rules; or
(c) an office the holder of which is, under the rules of the association,
entitled to participate directly in any of the functions referred to in
subparagraphs (b)(i) and (iv), other than an office the holder of which
participates only in accordance with directions given by a collective body or
another person for the purpose of implementing:
(i) existing policy of the association; or
(ii) decisions concerning the association; or
(d) an office the holder of which is, under the rules of the association,
entitled to participate directly in any of the functions referred to in
subparagraphs (b)(ii) and (iii); or
(e) the office of a person holding (whether as trustee or otherwise)
property:
(i) of the association; or
(ii) in which the association has a beneficial interest.
In this subsection, association means an organisation or
branch of an organisation, or an industrial association or branch of an
industrial association.
(2) In this Act, a reference to an office in an organisation
or industrial association includes a reference to an office in a branch of the
organisation or association.
(1) Each of the following provisions (however it is described in the
document concerned) is an objectionable provision:
(a) a provision that requires or permits any conduct that would contravene
Chapter 7 or that would (if Part 2 of that Chapter were disregarded)
contravene that Chapter;
(b) a provision that directly or indirectly requires a person:
(i) to encourage another person to become, or remain, a member of a
building association; or
(ii) to discourage another person from becoming, or remaining, a member of
a building association;
(c) a provision that indicates support for persons being members of a
building association;
(d) a provision that indicates opposition to persons being members of a
building association;
(e) a provision that requires or permits payment of a bargaining services
fee to a building association;
(f) a provision that requires or permits an officer or employee of a union
(within the meaning of Chapter 9) to exercise rights of a kind covered by
that Chapter.
(2) For the purpose of determining whether a provision is an objectionable
provision, it does not matter whether that provision is void because of
section 69.
(3) In this section:
permits includes:
(a) purports to permit; and
(b) has the effect of permitting; and
(c) purports to have the effect of permitting.
requires includes:
(a) purports to require; and
(b) has the effect of requiring; and
(c) purports to have the effect of requiring.
(1) Subject to this section, pattern bargaining means a
course of conduct or bargaining, or the making of claims, by a person
that:
(a) involves seeking common wages or other common conditions of employment
(other than in an award or State award); and
(b) extends beyond a single business.
(2) Conduct by a person is not pattern bargaining to the extent to which
the person is genuinely trying to reach agreement on the matters that are the
subject of the conduct.
(3) A party to a proposed agreement in relation to a single business, or
part of a single business, does not engage in pattern bargaining merely because
the party is seeking the inclusion in the proposed agreement of terms and
conditions which give effect to a Full Bench decision establishing national
standards.
(4) Conduct by a person (the first person) is not pattern
bargaining if:
(a) the conduct occurs in relation to a proposed agreement between the
first person and a second person under which the second person would carry out
building work or arrange for building work to be carried out; and
(b) the conduct is engaged in solely for the purpose of encouraging the
second person to have particular eligible conditions in an agreement that covers
employees of the second person.
(5) In this section:
genuinely trying to reach agreement has the same meaning as
in section 170MW of the Workplace Relations Act, as affected by
section 62 of this Act.
single business has the same meaning as in Part VIB of
the Workplace Relations Act.
(6) In applying section 62, for the purposes of this section, to a
proposed agreement that is not under Part VIB of the Workplace Relations
Act, references in section 62 to a negotiating party are to be read as
references to a proposed party to the proposed agreement.
(1) This Act extends to Christmas Island.
(2) This Act applies in relation to Christmas Island with such
modifications as are prescribed by the regulations.
(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.
(1) There is to be an Australian Building and Construction Commissioner
(the ABC Commissioner).
(2) The ABC Commissioner is to be assisted by such number of Deputy
Australian Building and Construction Commissioners (Deputy ABC
Commissioners) as are appointed from time to time.
The ABC Commissioner has the following functions:
(a) monitoring and promoting appropriate standards of conduct by building
industry participants, including by:
(i) monitoring and promoting compliance with this Act and the Workplace
Relations Act; and
(ii) monitoring and promoting compliance with the Building Code;
and
(iii) referring matters to other relevant agencies and bodies;
(b) investigating suspected contraventions, by building industry
participants, of:
(i) this Act, the Workplace Relations Act or an award, certified
agreement, AWA or order of the AIRC; and
(ii) the Building Code;
(c) instituting, or intervening in, proceedings in accordance with this
Act;
(d) providing assistance and advice to building industry participants
regarding their rights and obligations under this Act and the Workplace
Relations Act;
(e) providing representation to a building industry participant who is, or
might become, a party to a proceeding under this Act or the Workplace Relations
Act, if the ABC Commissioner considers that providing the representation would
promote the enforcement of this Act or the Workplace Relations Act;
(f) disseminating information about this Act, the Workplace Relations Act
and the Building Code, and about other matters affecting building industry
participants, including disseminating information by facilitating ongoing
discussions with building industry participants;
(g) any other functions conferred on the ABC Commissioner by this Act or
by another Act;
(h) any other functions conferred on the ABC Commissioner by the
regulations.
(1) The Minister may, by notice published in the Gazette, give
directions specifying the manner in which the ABC Commissioner must exercise or
perform the powers or functions of the ABC Commissioner under this
Act.
(2) The Minister must not give a direction under subsection (1) about
a particular case.
(3) The ABC Commissioner must comply with the directions.
(4) A direction by the Minister is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901.
(1) The Minister may, in writing, direct the ABC Commissioner to give the
Minister specified reports relating to the ABC Commissioner’s
functions.
Note: See also section 243, which restricts the
disclosure of personal information in a report.
(2) The ABC Commissioner must comply with the direction.
(1) The ABC Commissioner may, in writing, delegate all or any of his or
her powers and functions under this Act to:
(a) a Deputy ABC Commissioner; or
(b) an ABC Inspector; or
(c) an SES employee or acting SES employee; or
(d) a person prescribed by the regulations for the purposes of this
paragraph.
(2) Powers or functions under section 230 may only be delegated to a
Deputy ABC Commissioner.
(3) In exercising powers or functions under a delegation, the delegate
must comply with any directions of the ABC Commissioner.
(4) As soon as practicable after delegating any power or function under
this section, the ABC Commissioner must publish details of the
delegation.
(1) As soon as practicable after the end of each financial year, the ABC
Commissioner must prepare and give to the Minister a report on the operations of
the ABC Commissioner during that year.
(2) The report must include:
(a) details of the number, and type, of matters that were investigated by
the ABC Commissioner during the financial year; and
(b) details of assistance provided during the financial year to building
employees and building contractors in connection with the recovery of unpaid
entitlements; and
(c) details of assessments conducted under section 77 during the
financial year.
Note: See also section 243, which restricts the
disclosure of personal information in a report.
(3) The report must also include:
(a) details of directions given by the Minister during the financial year
under section 13 or 14; and
(b) details of delegations by the ABC Commissioner under section 15
during the financial year.
(4) The Minister must cause a copy of the report to be laid before each
House of the Parliament within 15 sitting days of that House after its receipt
by the Minister.
(1) A Commissioner is to be appointed by the Minister by written
instrument.
(2) The appointment:
(a) is to be on a full-time basis for the ABC Commissioner; and
(b) is to be on a full-time basis or part-time basis for a Deputy ABC
Commissioner.
(3) The Minister must not appoint a person as a Commissioner unless the
Minister is satisfied that the person:
(a) has suitable qualifications or experience; and
(b) is of good character.
(4) A Commissioner holds office for the period specified in the instrument
of appointment. The period must not exceed 5 years.
(5) A Commissioner holds office on the terms and conditions (if any) in
relation to matters not covered by this Act that are determined by the
Minister.
(1) The Minister may appoint a person to act as the ABC
Commissioner:
(a) during a vacancy in the office of ABC Commissioner (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the ABC Commissioner is
absent from duty or from Australia, or is, for any reason, unable to perform the
duties of the office.
(2) Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) A Commissioner is to be paid the remuneration that is determined by
the Remuneration Tribunal. If no determination of that remuneration by the
Tribunal is in operation, a Commissioner is to be paid the remuneration that is
prescribed.
(2) A Commissioner is to be paid the allowances that are
prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) A full-time Commissioner has the recreation leave entitlements that
are determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time Commissioner leave of absence,
other than recreation leave, on the terms and conditions as to remuneration or
otherwise that the Minister determines.
(3) The Minister may grant a part-time Commissioner leave of absence
(including recreation leave) on the terms and conditions as to remuneration or
otherwise that the Minister determines.
(1) A full-time Commissioner must not engage in paid employment outside
the duties of his or her office without the Minister’s
approval.
(2) A part-time Commissioner must not engage in any paid employment that
conflicts or may conflict with the proper performance of the
Commissioner’s duties.
A Commissioner must give written notice to the Minister of all
interests (financial or otherwise) that the Commissioner has or acquires and
that could conflict with the proper performance of the Commissioner’s
functions.
A Commissioner may resign his or her appointment by giving the Minister a
written resignation.
(1) The Minister may terminate the appointment of a Commissioner
if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(b) the Commissioner fails, without reasonable excuse, to comply with
section 21 or 22; or
(c) the Commissioner is a full-time Commissioner and is absent from duty,
except on leave of absence, for 14 consecutive days or for 28 days in any 12
months.
(2) Subject to subsections (3) and (4), the Minister may terminate
the appointment of a Commissioner on the ground of misbehaviour or physical or
mental incapacity.
(3) If a Commissioner:
(a) is an eligible employee for the purposes of the Superannuation Act
1976; and
(b) has not reached his or her maximum retiring age within the meaning of
that Act;
his or her appointment cannot be terminated on the ground of physical or
mental incapacity unless the CSS Board has given a certificate under
section 54C of that Act.
(4) If a Commissioner:
(a) is a member of the superannuation scheme established by deed under the
Superannuation Act 1990; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground of physical or
mental incapacity unless the PSS Board has given a certificate under
section 13 of that Act.
(1) The staff required to assist the ABC Commissioner in the performance
of the ABC Commissioner’s functions are to be persons engaged under the
Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the ABC Commissioner and the APS employees so assisting the ABC
Commissioner together constitute a Statutory Agency; and
(b) the ABC Commissioner is the Head of that Statutory Agency.
(3) The ABC Commissioner may, on behalf of the Commonwealth, engage
persons having suitable qualifications and experience as consultants to the ABC
Commissioner. The terms and conditions of the engagement of a person are such as
are determined by the ABC Commissioner in writing.
Note: See also section 71 of the Public Service Act
1999, which makes provision for State employees to perform services in an
Agency (as defined in that Act).
(1) The Minister may issue one or more documents that together constitute
a code of practice (the Building Code) that is to be complied with
by persons in respect of building work.
(2) Without limiting subsection (1), the Minister may issue one or
more documents in relation to occupational 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.
(4) Before exercising powers under this section, the Minister must take
into account any relevant recommendations of the Federal Safety Commissioner in
relation to occupational health and safety matters.
(5) The Minister must make the Building Code publicly available.
(1) The ABC Commissioner must give the Minister a written report, at least
annually, on the extent to which the Building Code is being complied
with.
(2) The Minister may notify the ABC Commissioner in writing of particular
occupational health and safety matters that need not be covered in the
report.
(3) The Minister must cause a copy of each report to be laid before each
House of the Parliament within 15 sitting days of that House after its receipt
by the Minister.
If the ABC Commissioner considers that it is in the public interest to do
so, the ABC Commissioner may publish details of non-compliance with the Building
Code, including the names of the persons who have failed to comply.
(1) The Federal Safety Commissioner must give the Minister a written
report, at least annually, on the extent to which the Building Code is being
complied with in relation to occupational health and safety matters.
(2) The Minister must cause a copy of each report to be laid before each
House of the Parliament within 15 sitting days of that House after its receipt
by the Minister.
(1) This section applies to a person who is required to comply with the
Building Code in respect of particular building work.
(2) The ABC Commissioner may, by notice in writing, direct the person to
give a written report to the ABC Commissioner, within the period specified in
the direction, containing specified information about the extent to which the
person complied with the Building Code in respect of that building work. The
specified period must be at least 14 days.
(3) The person must comply with the requirement.
Note: Grade B civil penalty.
(4) The ABC Commissioner must give a copy of the report to the Federal
Safety Commissioner.
There is to be a Federal Safety Commissioner.
The Federal Safety Commissioner has the following functions:
(a) promoting occupational health and safety in relation to building
work;
(b) monitoring and promoting compliance with the Building Code, so far as
the Code deals with occupational health and safety;
(c) disseminating information about the Building Code, so far as the Code
deals with occupational health and safety;
(d) performing functions as the accreditation authority for the purposes
of the accreditation scheme;
(e) promoting the benefits of the accreditation scheme and disseminating
information about the accreditation scheme;
(f) referring matters to other relevant agencies and bodies;
(g) any other functions conferred on the Federal Safety Commissioner by
this Act or by another Act;
(h) any other functions conferred on the Federal Safety Commissioner by
the regulations.
(1) The Minister may, by notice published in the Gazette, give
directions specifying the manner in which the Federal Safety Commissioner must
exercise or perform the powers or functions of the Federal Safety Commissioner
under this Act.
(2) The Minister must not give a direction under subsection (1) about
a particular case.
(3) The Federal Safety Commissioner must comply with the
directions.
(4) A direction by the Minister is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901.
(1) The Minister may, in writing, direct the Federal Safety Commissioner
to give the Minister specified reports relating to the Federal Safety
Commissioner’s functions.
Note: See also section 243, which restricts the
disclosure of personal information in a report.
(2) The Federal Safety Commissioner must comply with the
direction.
(1) The Federal Safety Commissioner may, in writing, delegate all or any
of his or her powers and functions under this Act to:
(a) a Federal Safety Officer; or
(b) an SES employee or acting SES employee; or
(c) a person prescribed by the regulations for the purposes of this
paragraph.
(2) In exercising powers or functions under a delegation, the delegate
must comply with any directions of the Federal Safety Commissioner.
(3) As soon as practicable after delegating any power or function under
this section, the Federal Safety Commissioner must publish details of the
delegation.
(1) As soon as practicable after the end of each financial year, the
Federal Safety Commissioner must prepare and give to the Minister a report on
the operations of the Federal Safety Commissioner during that year.
(2) The report must include details of the number, and type, of matters
that were investigated by the Federal Safety Commissioner during the financial
year.
Note: See also section 243, which restricts the
disclosure of personal information in a report.
(3) The report must also include:
(a) details of directions given by the Minister during the financial year
under section 33 or 34; and
(b) details of delegations by the Federal Safety Commissioner under
section 35 during the financial year.
(4) The Minister must cause a copy of the report to be laid before each
House of the Parliament within 15 sitting days of that House after its receipt
by the Minister.
(1) The Federal Safety Commissioner is to be appointed by the Minister by
written instrument. The appointment is to be on a full-time basis.
(2) The Minister must not appoint a person as the Federal Safety
Commissioner unless the Minister is satisfied that the person:
(a) has suitable qualifications or experience; and
(b) is of good character.
(3) The Federal Safety Commissioner holds office for the period specified
in the instrument of appointment. The period must not exceed 5 years.
(4) The Federal Safety Commissioner holds office on the terms and
conditions (if any) in relation to matters not covered by this Act that are
determined by the Minister.
(1) The Minister may appoint a person to act as the Federal Safety
Commissioner:
(a) during a vacancy in the office of Federal Safety Commissioner (whether
or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Federal Safety
Commissioner is absent from duty or from Australia, or is, for any reason,
unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The Federal Safety Commissioner is to be paid the remuneration that is
determined by the Remuneration Tribunal. If no determination of that
remuneration by the Tribunal is in operation, the Federal Safety Commissioner is
to be paid the remuneration that is prescribed.
(2) The Federal Safety Commissioner is to be paid the allowances that are
prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) The Federal Safety Commissioner has the recreation leave entitlements
that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Federal Safety Commissioner leave of
absence, other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
The Federal Safety Commissioner must not engage in paid employment
outside the duties of his or her office without the Minister’s
approval.
The Federal Safety Commissioner must give written notice to the
Minister of all interests (financial or otherwise) that the Federal
Safety Commissioner has or acquires and that could conflict with the proper
performance of the Federal Safety Commissioner’s functions.
The Federal Safety Commissioner may resign his or her appointment by
giving the Minister a written resignation.
(1) The Minister may terminate the appointment of the Federal Safety
Commissioner if:
(a) the Federal Safety Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(b) the Federal Safety Commissioner fails, without reasonable excuse, to
comply with section 41 or 42; or
(c) the Federal Safety Commissioner is absent from duty, except on leave
of absence, for 14 consecutive days or for 28 days in any 12 months.
(2) Subject to subsections (3) and (4), the Minister may terminate
the appointment of a Federal Safety Commissioner on the ground of misbehaviour
or physical or mental incapacity.
(3) If the Federal Safety Commissioner:
(a) is an eligible employee for the purposes of the Superannuation Act
1976; and
(b) has not reached his or her maximum retiring age within the meaning of
that Act;
his or her appointment cannot be terminated on the ground of physical or
mental incapacity unless the CSS Board has given a certificate under
section 54C of that Act.
(4) If the Federal Safety Commissioner:
(a) is a member of the superannuation scheme established by deed under the
Superannuation Act 1990; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground of physical or
mental incapacity unless the PSS Board has given a certificate under
section 13 of that Act.
(1) The staff necessary to assist the Federal Safety Commissioner are to
be persons engaged under the Public Service Act 1999 and made available
by the Secretary of the Department.
(2) The Federal Safety Commissioner may, on behalf of the Commonwealth,
engage persons having suitable qualifications and experience as consultants to
the Federal Safety Commissioner. The terms and conditions of the engagement of a
person are such as are determined by the Federal Safety Commissioner in
writing.
In this Part, building OHS action means:
(a) a failure or refusal by an employee to attend for building work;
or
(b) a failure or refusal to perform any work at all by an employee who
attends for building work;
where:
(c) the failure or refusal is based on a reasonable concern by the
employee about an imminent risk to his or her health or safety arising from
conditions at the workplace; and
(d) at least one of the following applies:
(i) the employer is a constitutional corporation;
(ii) the employer is the Commonwealth;
(iii) the refusal or failure occurs in a Territory or Commonwealth
place.
(1) This section applies to an employee who engages in building OHS
action.
Non-entitlement period before referral
(2) A period is a pre-referral non-entitlement period for
the employee to the extent that all the following conditions are satisfied in
respect of the period:
(a) during the period, the employee engaged in building OHS
action;
(b) during the period, the employee failed to comply with a relevant
dispute resolution procedure that applied to the situation giving rise to the
building OHS action;
(c) the period did not occur after the situation was referred to a
relevant authority under an OHS law.
Note: The relevant law could be a law of the Commonwealth or
of a State or Territory.
(3) The employer must not make a payment to the employee in relation to a
pre-referral non-entitlement period.
Note: Grade A civil penalty.
(4) The employee must not accept a payment from the employer if the
employer would contravene subsection (3) in making the payment.
Note: Grade A civil penalty.
Non-entitlement period after referral
(5) If the employee engages in building OHS action after the situation
giving rise to the action is referred to a relevant authority under an OHS law,
then the employer must not make a payment to the employee in relation to a
period that:
(a) is after the referral; and
(b) during which the employee engages in building OHS action;
unless:
(c) before the payment is made, a prohibition notice has been issued in
respect of the situation and the employee complied with the relevant dispute
resolution procedure at all times after the referral and before the issue of the
prohibition notice; or
(d) both of the following conditions are satisfied:
(i) the building OHS action ceased before the payment is made and before
the relevant authority began an inspection, at the workplace, of the
situation;
(ii) the employee complied with the relevant dispute resolution procedure
at all times after the referral and before the building OHS action
ceased.
Note: Grade A civil penalty.
(6) The employee must not accept a payment from the employer if the
employer would contravene subsection (5) in making the payment.
Note: Grade A civil penalty.
Compliance with dispute resolution procedure
(7) For the purposes of this section, the employee’s non-compliance
with a relevant dispute resolution procedure is to be disregarded to the extent
that the non-compliance was due to circumstances outside the employee’s
control.
Definition
(8) In this section:
prohibition notice means a prohibition notice issued under an
OHS law.
If an employee engages, or threatens to engage, in building OHS action,
then the employer must notify the ABC Commissioner in writing of the action or
threat within 72 hours after the employer becomes aware of the action or
threat.
Note: Grade B civil penalty.
If an employer makes a payment to an employee in respect of a period
during which the employee engaged in building OHS action, then the employer
must, within 72 hours, notify the ABC Commissioner in writing that the payment
was made.
Note: Grade B civil penalty.
Accreditation scheme
(1) The regulations may prescribe an accreditation scheme for persons who
wish to enter into Commonwealth building contracts with the Commonwealth or
Commonwealth authorities.
(2) The regulations must provide for the Federal Safety Commissioner to be
the accrediting authority under the scheme.
(3) The regulations may prescribe fees for applications made under the
regulations.
Commonwealth building contracts not to be entered into with persons who
are not accredited
(4) The Commonwealth or a Commonwealth authority must not enter into a
Commonwealth building contract with a person or persons unless the person, or
each of the persons, is an accredited person at the time the contract is entered
into. This subsection does not apply to contracts prescribed by the
regulations.
(5) Subsection (4) overrides:
(a) any Commonwealth provision enacted before the commencement of this
section; and
(b) any Commonwealth provision enacted after the commencement of this
section, unless the provision expressly refers to this section.
(6) A contravention of subsection (4) in respect of a contract does
not affect the validity of the contract.
(7) In this section:
accredited person means a person who is accredited under the
accreditation scheme.
Commonwealth authority means a Commonwealth authority within
the meaning of the Commonwealth Authorities and Companies Act
1997.
Commonwealth building contract means a contract under which a
person agrees with the Commonwealth or a Commonwealth authority to carry out
building work or arrange for building work to be carried out.
Commonwealth provision means a provision of a law of the
Commonwealth.
Building industrial dispute normally limited to allowable award
matters
(1) For the following purposes of the Workplace Relations Act, an
industrial dispute that is a building industrial dispute is taken to include
only matters covered by subsections (2) and (3):
(a) dealing with an industrial dispute by arbitration;
(b) preventing or settling an industrial dispute by making an award or
order;
(c) maintaining the settlement of an industrial dispute by varying an
award or order.
Allowable award matters
(2) For the purposes of subsection (1), the matters are as
follows:
(a) classifications of employees;
(b) ordinary time hours of work, rest breaks, notice periods and
variations to working hours;
(c) rates of pay generally (such as hourly rates and annual salaries),
rates of pay for juniors, trainees or apprentices, and rates of pay for
employees under the supported wage system;
(d) incentive-based payments and piece rates;
(e) annual leave and leave loadings;
(f) personal/carer’s leave, including sick leave, family leave,
bereavement leave and compassionate leave;
(g) ceremonial leave for Aboriginal and Torres Strait Islander people, and
other like forms of leave, to meet cultural obligations;
(h) parental leave, including maternity and adoption leave;
(i) observance of days declared by the Government of a State or Territory
to be observed generally within that State or Territory, or a region of that
State or Territory, as public holidays by employees who work in that State,
Territory or region, and entitlements of employees to payment in respect of
those days;
(j) monetary allowances for:
(i) expenses incurred in the course of employment; or
(ii) responsibilities or skills that are not taken into account in rates
of pay for employees; or
(iii) disabilities associated with the performance of particular tasks or
work in particular conditions or locations;
(k) the maximum number of hours per week that an employee can be required
to work overtime;
(l) loadings for working overtime or for casual or shift work;
(m) penalty rates;
(n) payments in relation to a termination that is:
(i) on the initiative of the employer; and
(ii) on the grounds of operational requirements;
(o) stand-down provisions;
(p) dispute settling procedures;
(q) type of employment, such as full-time employment, casual employment,
regular part-time employment and shift work;
(r) superannuation;
(s) bonuses for outworkers;
(t) pay (other than bonuses) and conditions for outworkers, but only to
the extent necessary to ensure that their overall pay (other than bonuses) and
conditions of employment are fair and reasonable in comparison with the pay and
conditions of employment specified in a relevant award or awards for employees
who perform the same kind of work at an employer’s business or commercial
premises.
(3) The AIRC’s power to make an award dealing with matters covered
by subsection (2) is limited to making a minimum rates award that provides
for basic minimum entitlements.
Matters that are not allowable award matters
(4) Matters that are not covered by subsection (2) include, but are
not limited to, the following:
(a) transfers between locations;
(b) training or education (except in relation to leave and allowances for
trainees or apprentices);
(c) recording of the hours employees work, or the times of their arrival
or departure from work;
(d) the times or days when work counts as ordinary time or overtime, or
when rostered days off (RDOs) may be taken;
(e) payments of accident make up pay by employers;
(f) rights of an organisation to participate in, or represent, the
employer or employee in the whole or part of a dispute settling procedure,
unless the organisation is the representative of the employer’s or
employee’s choice;
(g) transfers from one type of employment to another type of
employment;
(h) the number or proportion of employees that an employer may employ in a
particular type of employment or in a particular classification;
(i) prohibitions (directly or indirectly) on an employer employing
employees in a particular type of employment or in a particular
classification;
(j) the maximum or minimum hours of work for regular part-time
employees.
(5) The AIRC’s power to make an award dealing with matters covered
by paragraph (2)(r) does not include the power to specify a particular
superannuation fund or scheme.
Other provisions that AIRC may include in an award
(6) Paragraph (4)(j) does not prevent the AIRC from including in an
award:
(a) provisions setting a minimum number of consecutive hours that an
employer may require a regular part-time employee to work; or
(b) provisions facilitating a regular pattern in the hours worked by
regular part-time employees.
(7) The AIRC may include in an award provisions that are incidental to an
allowable award matter provided for in the award and are essential for the
purpose of making a particular provision operate in a practical way.
(8) The AIRC may include machinery provisions in awards, such as
definitions, titles and commencement provisions.
Exceptional matters
(9) Subsection (1) does not exclude a matter (the exceptional
matter) from an industrial dispute if the AIRC is satisfied of all the
following:
(a) a party to the dispute has made a genuine attempt to reach agreement
on the exceptional matter;
(b) there is no reasonable prospect of agreement being reached on the
exceptional matter by conciliation, or further conciliation, by the
AIRC;
(c) it is appropriate to settle the exceptional matter by
arbitration;
(d) the issues involved in the exceptional matter are exceptional
issues;
(e) a harsh or unjust outcome would apply if the industrial dispute were
not to include the exceptional matter.
(10) For the purpose of applying the Workplace Relations Act in relation
to a building industrial dispute, the definition of exceptional matters
order in section 4 of that Act has effect as if it referred to
subsection (9) of this section (instead of subsection 89A(7) of that
Act).
(11) An order under section 120A of the Workplace Relations Act in
relation to a building industrial dispute may only be made by a Full
Bench.
Anti-discrimination clause
(12) Nothing in this section prevents the AIRC from including a model
anti-discrimination clause in an award.
Note: A model anti-discrimination clause was established by
the AIRC in the Full Bench decision dated 9 October 1995 (print
M5600).
Provisions permitted by section 113A and subsection 143(1C) of the
Workplace Relations Act
(13) Nothing in this section prevents the AIRC from including in an award
provisions that are permitted by section 113A, and subsection 143(1C), of
the Workplace Relations Act.
Statutory freedom of association statement
(14) Nothing in this section prevents the AIRC from including the
statutory freedom of association statement in a document given to a Registrar
under paragraph 143(1)(b) of the Workplace Relations Act. The statement does not
form part of an award.
Interpretation
(15) In this section:
outworker means an employee who, for the purposes of the
business of the employer, performs work at private residential premises or at
other premises that are not business or commercial premises of the
employer.
In applying section 88B of the Workplace Relations Act in relation
to a building industrial dispute, the AIRC must also have regard to the
desirability of minimising the number, and complexity, of
allowances.
(1) Before certifying a building agreement, the AIRC must hold a hearing
in relation to the certification.
(2) At least 7 days before the hearing, the Industrial Registrar must give
the ABC Commissioner a copy of each document that is lodged with the AIRC in
relation to the certification.
(1) The AIRC must not certify a building agreement that includes any
matter that does not pertain to the employment relationship between the employer
and employees who will be subject to the agreement.
(2) Subsection (1) does not apply if the matter:
(a) is incidental to a matter that pertains to that employment
relationship; and
(b) is essential for the purpose of making a particular provision of the
agreement operate in a practical way.
(3) This section has effect subject to section 58.
Period other than 3 years
(1) The AIRC must not certify a building agreement if the nominal expiry
date specified in the agreement is a date other than the third anniversary of
the starting date of the agreement.
(2) Subsection (1) does not apply if:
(a) the specified date is earlier than that third anniversary;
and
(b) the AIRC is satisfied that the earlier date is justified by special
circumstances.
Retrospective payments
(3) The AIRC must not certify a building agreement if the agreement
imposes obligations on the employer to make payments in respect of any period
before the starting date of the agreement.
(4) Subsection (3) does not apply if the AIRC is satisfied that the
employer unreasonably delayed the making of the agreement.
Definition
(5) In this section:
starting date means:
(a) for an agreement under section 170LK or 170LL of the Workplace
Relations Act—the date on which the agreement is made; or
(b) for an agreement under section 170LJ of the Workplace Relations
Act—the date of approval under subsection 170LJ(2) of that Act;
or
(c) for an agreement under Division 3 of Part VIB of the
Workplace Relations Act—the date of approval under subsection 170LR(1) of
that Act.
The AIRC must not certify a building agreement unless it is satisfied
that the agreement did not result from pattern bargaining.
The AIRC must not certify a building agreement if the AIRC is satisfied
that the agreement contains objectionable provisions.
The AIRC must not certify a building agreement unless the agreement
contains the statutory freedom of association statement.
The AIRC must not certify a building agreement unless a notice has been
given in respect of the agreement under section 170MI of the Workplace
Relations Act.
Note: See also section 64.
Before certifying a building agreement that makes provision for a matter
by applying, adopting or incorporating the provisions of another document, the
AIRC must consider the terms of those provisions in the other document for the
purpose of assessing whether the agreement, as a whole, meets the requirements
for certification.
Paragraph 45(1)(eaa) of the Workplace Relations Act has effect in
relation to building agreements as if that paragraph also referred to the ground
that, under this Act, the AIRC should have refused to certify the
agreement.
In the application of section 170MW of the Workplace Relations Act
in relation to a proposed building agreement, the following conduct of a
negotiating party (the first party) is to be regarded as
indicating that the party is genuinely trying to reach an agreement:
(a) agreeing to meet face to face at reasonable times proposed by another
negotiating party;
(b) attending meetings that the first party has agreed to
attend;
(c) complying with negotiating procedures agreed to by the first
party;
(d) disclosing relevant information, as appropriate, taking into account
the employer’s need to protect the employer’s commercial
interests;
(e) disclosing in writing any direct or indirect financial benefit that
has been, or is to be, provided, in relation to the proposed agreement, to the
first party by a third party, for example any commission or other income that
may be derived by the first party arising from a term proposed for the
agreement;
(f) stating a position on matters at issue, and explaining that
position;
(g) considering and responding to proposals made by another negotiating
party;
(h) adhering to commitments given to another negotiating party or parties
in respect of:
(i) meetings; and
(ii) responses to matters raised during bargaining;
(i) dedicating sufficient resources and personnel to the bargaining
process;
(j) not capriciously adding or withdrawing items for bargaining;
(k) not refusing or failing to meet with one or more of the other
negotiating parties;
(l) in or in connection with the bargaining process, not refusing or
failing to meet with a person who is entitled to represent an employee or with a
person who is a representative chosen by a negotiating party to represent it in
the bargaining process.
(1) Before an employer makes a building agreement under
section 170LJ, or Division 3 of Part VIB, of the Workplace
Relations Act, the employer must take reasonable steps to ensure that all
affected employees of the employer have an opportunity to make representations
to the employer about the proposed agreement.
Note: Section 170LJ, and Division 3 of
Part VIB, of the Workplace Relations Act deal with agreements between an
employer and an employee organisation.
(2) In this section:
affected employee means an employee whose employment will be
covered by the agreement.
(1) A union-related initiation notice under section 170MI of the
Workplace Relations Act has no effect unless:
(a) in the period of 21 days before the notice date, all the affected
employees were given an opportunity to vote on a proposal that the notice be
given and a majority of those who cast a valid vote voted in favour of the
proposal; and
(b) the notice includes details of that vote.
(2) Voting must comply with the following requirements in order to be
taken into account for the purposes of subsection (1):
(a) if there are at least 10 affected employees who, at the commencement
of voting, are entitled to vote—the voting must be by secret
ballot;
(b) the voting process must be fair;
(c) at least 24 hours before the start of voting, all the affected
employees must be notified of the subject matter of the voting, the proposed
timing and the proposed voting method;
(d) if the regulations prescribe additional requirements that are to be
complied with in respect of the voting—those requirements must be complied
with.
(3) In this section:
affected employee means a person who is an employee of the
employer concerned and whose employment will be covered by the
agreement.
notice date means:
(a) the day on which the notice is given; or
(b) if the notice is given to different persons on different
days—the later or latest of those days.
union-related initiation notice means:
(a) a notice by an employee organisation in relation to a proposed
building agreement; or
(b) a notice by an employer who intends to make a building agreement under
section 170LJ, or Division 3 of Part VIB, of the Workplace
Relations Act.
(1) A person referred to in paragraph 170MI(1)(c) of the Workplace
Relations Act who wishes to:
(a) initiate a bargaining period under section 170MI of that Act for
a proposed building agreement; or
(b) give notice to an employer under section 170MO of that Act of an
intention to take building industrial action;
without disclosing the person’s identity to the person’s
employer, may appoint an agent to initiate the bargaining period, or give the
notice, on the person’s behalf.
(2) If a person has appointed an agent under subsection (1), the
person’s notice to the AIRC under subsection 170MI(2) of the Workplace
Relations Act must be accompanied by a document containing the person’s
name.
(3) The regulations may make provision in relation to the qualifications
and appointment of agents appointed under this section.
(4) In this section:
building industrial action has the same meaning as in
Chapter 6.
Disclosure by AIRC prohibited
(1) The AIRC must not disclose information that the AIRC knows, or has
reasonable grounds to believe, will identify a person who has appointed an agent
under section 65 as:
(a) a person who has initiated a bargaining period under
section 170MI of the Workplace Relations Act; or
(b) a person who has given notice to an employer under section 170MO
of the Workplace Relations Act.
(2) Each of the following is an exception to the prohibition in
subsection (1):
(a) the disclosure is required or permitted by this Act or by another Act,
or by regulations made under this Act or under another Act;
(b) the person whose identity is disclosed has, in writing, authorised the
disclosure.
Disclosure by individual prohibited
(3) A person must not disclose protected information that the person
knows, or has reasonable grounds to believe, will identify another person as a
person referred to in paragraph (1)(a) or (b).
Penalty: Imprisonment for 12 months.
(4) Each of the following is an exception to the prohibition in
subsection (3):
(a) the disclosure is made by a person in the course of performing
functions or duties:
(i) as a Registry official; or
(ii) of, or on behalf of, an authorised ballot agent;
(b) the disclosure is required or permitted by this Act or by another Act,
or by regulations made under an Act;
(c) the person whose identity is disclosed has, in writing, authorised the
disclosure.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (4): see subsection 13.3(3) of the Criminal
Code.
(5) In this section:
authorised ballot agent has the same meaning as in
Division 2 of Part 3 of Chapter 6.
protected information, in relation to a person, means
information that the person acquired:
(a) in the course of performing functions or duties as a Registry
official; or
(b) in the course of performing functions or duties as, or on behalf of,
an authorised ballot agent; or
(c) from a person referred to in paragraph (a) or (b) who acquired
the information as mentioned in paragraph (a) or (b).
Registry official means:
(a) the Industrial Registrar; or
(b) a member of the staff of the Industrial Registry (including a Deputy
Industrial Registrar).
(1) If, on application by the ABC Commissioner or any other person, the
Federal Court is satisfied that a person or industrial association (the
defendant) is engaging, has engaged or is proposing to engage in
pattern bargaining in respect of building employees, 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 Court cannot grant an injunction, or interim injunction,
unless:
(a) the defendant is an organisation or a constitutional corporation;
or
(b) the conduct concerned is, was or would be:
(i) conduct that adversely affects a constitutional corporation in its
capacity as a building industry participant; or
(ii) conduct carried out with intent to adversely affect a constitutional
corporation in its capacity as a building industry participant; or
(iii) conduct occurring in connection with the negotiation of an agreement
under Division 2 of Part VIB of the Workplace Relations Act;
or
(iv) conduct occurring in relation to an industrial dispute that the
parties are seeking to resolve by an agreement under Division 3 of
Part VIB of the Workplace Relations Act; or
(v) conduct occurring in a Territory or Commonwealth place; or
(c) some or all of the employees referred to in subsection (1) are
employees, or prospective employees, of a constitutional corporation.
(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;
(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) This section has effect despite anything in section 170MT of the
Workplace Relations Act.
(1) If:
(a) an agreement is entered into with the intention of securing standard
employment conditions for building employees in respect of building work that
they carry out at a particular building site or sites; and
(b) not all the employees are employed by the same employer; and
(c) either:
(i) a party to the agreement is an organisation and at least some of the
employees are members of that organisation; or
(ii) a party to the agreement is a constitutional corporation and at least
some of the employees are employees of that corporation; and
(d) the agreement is not certified;
then the agreement is unenforceable to the extent to which it relates to
building employees.
(2) In determining for the purposes of this section whether employees are
employed by the same employer, section 170LB of the Workplace Relations Act
is to be disregarded.
Note: See also sections 56 and 67, which deal with
pattern bargaining.
(1) A provision of a building certified agreement or building award is
void to the extent that it is an objectionable provision.
(2) A provision of an industrial instrument, or an agreement or
arrangement (whether written or unwritten), is void to the extent that it
requires or permits, or has the effect of requiring or permitting, any conduct
that would contravene Chapter 7.
(1) Where, on application by a person mentioned in subsection (2),
the AIRC is satisfied that a building award contains objectionable provisions,
the AIRC must vary the award so as to remove the objectionable
provisions.
(2) The application may be made by:
(a) an organisation or party bound by the award; or
(b) an employee whose employment is subject to the award; or
(c) the ABC Commissioner.
(3) Where, on application by a person mentioned in subsection (4),
the AIRC is satisfied that a building certified agreement contains objectionable
provisions, the AIRC must vary the agreement so as to remove the objectionable
provisions.
(4) The application may be made by:
(a) a person bound by the certified agreement; or
(b) an employee whose employment is subject to the certified agreement;
or
(c) the ABC Commissioner.
(1) Part VIII of the Workplace Relations Act applies in relation to a
building award, building certified agreement or building order as if:
(a) references in that Part to a magistrates court included references to
the Federal Magistrates Court; and
(b) references in subsections 178(4) and (4A) of that Act to $1,000 were
references to 100 penalty units; and
(c) references in subsection 178(4) of that Act to $2,000 were references
to 200 penalty units; and
(d) references in subsections 178(4) and (4A) of that Act to $5,000 were
references to 500 penalty units; and
(e) references in subsection 178(4) of that Act to $10,000 were references
to 1,000 penalty units; and
(f) the reference in paragraph 179D(2)(a) of that Act to $5,000 were a
reference to $25,000.
(2) In this section:
building order means:
(a) an order of the AIRC under this Act; or
(b) an order of the AIRC under the Workplace Relations Act, being an order
that is binding on a building employer or building employee (whether or not it
is also binding on other persons).
(1) In this Chapter, unless the contrary intention appears:
building industrial action means:
(a) the performance of building work in a manner different from that in
which it is customarily performed, or the adoption of a practice in relation to
building work, the result of which is a restriction or limitation on, or a delay
in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly,
by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with
an industrial dispute (within the meaning of Chapter 7); or
(b) a ban, limitation or restriction on the performance of building work,
or on acceptance of or offering for building work, in accordance with the terms
and conditions prescribed by an industrial instrument or by an order of an
industrial body; or
(c) a ban, limitation or restriction on the performance of building work,
or on acceptance of or offering for building work, that is adopted in connection
with an industrial dispute (within the meaning of Chapter 7); or
(d) a failure or refusal by persons to attend for building work or a
failure or refusal to perform any work at all by persons who attend for building
work;
but does not include:
(e) action by employees that is authorised or agreed to, in advance and in
writing, by the employer of the employees; or
(f) action by an employer that is authorised or agreed to, in advance and
in writing, by or on behalf of employees of the employer; or
(g) action by an employee if:
(i) the action was based on a reasonable concern by 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 for the employee to perform.
Note: See also subsection (2), which deals with the
burden of proof of the exception in paragraph (g) of this
definition.
constitutionally-connected action means building industrial
action that satisfies at least one of the following conditions:
(a) the action is taken by an organisation;
(b) the action is taken by a constitutional corporation, or adversely
affects a constitutional corporation in its capacity as a building industry
participant;
(c) the action is taken in connection with an industrial
dispute;
(d) the action relates to work that is regulated by an award or certified
agreement;
(e) the action relates to the negotiation or proposed negotiation of an
agreement under Division 2 of Part VIB of the Workplace Relations
Act;
(f) the action occurs in a Territory or Commonwealth place.
excluded action means:
(a) building industrial action that is protected action for the purposes
of the Workplace Relations Act (as affected by Division 1 of Part 3 of
this Chapter); or
(b) building industrial action that is AWA industrial action for the
purposes of Division 8 of Part VID of the Workplace Relations
Act.
industrially-motivated means motivated by one or more of the
following purposes, or by purposes that include one or more of the following
purposes:
(a) supporting or advancing claims against an employer in respect of the
employment of employees of that employer;
(b) supporting or advancing claims by an employer in respect of the
employment of employees of that employer;
(c) advancing industrial objectives of an industrial
association;
(d) disrupting the performance of work.
The employer referred to in paragraphs (a) and (b) need not be the
employer whose employees do the work to which the action relates.
(2) Whenever a person seeks to rely on paragraph (g) of the
definition of building industrial action in subsection (1),
that person has the burden of proving that paragraph (g) applies.
(3) For the purposes of this Chapter:
(a) conduct is capable of constituting building industrial action even if
the conduct relates to part only of the duties that persons are required to
perform in the course of their employment; and
(b) a reference to building industrial action includes a reference to a
course of conduct consisting of a series of building industrial
actions.
Building industrial action is unlawful industrial action
if:
(a) the action is industrially-motivated; and
(b) the action is constitutionally-connected action; and
(c) the action is not excluded action.
A person must not engage in unlawful industrial action.
Note: Grade A civil penalty.
(1) If, on application by the ABC Commissioner or any other person, an
appropriate court is satisfied that unlawful industrial action is 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.
(1) Within 14 days after an employer becomes aware that unlawful
industrial action by employees of the employer has come to an end, the employer
must give written notice to the ABC Commissioner.
Note: Grade B civil penalty.
(2) The notice must be in the form prescribed by the regulations and must
contain the particulars required by the form.
(3) The ABC Commissioner may, by written notice, require an employer who
has given a notice under this section to provide additional information to the
ABC Commissioner regarding the damage (if any) that the employer suffered as a
result of the unlawful industrial action.
(4) The employer must provide the information within the time required by
the notice.
Note: Grade B civil penalty.
(1) The ABC Commissioner may, in writing, nominate an ABC Inspector to
assess the maximum amount that could be ordered to be paid to a person under
paragraph 227(1)(b) in respect of an alleged contravention of section 74
that is specified in the nomination.
(2) After assessing the amount, the ABC Inspector may issue a certificate
that specifies:
(a) the amount assessed; and
(b) the person who suffered the damage; and
(c) the alleged contravention.
(3) If, in proceedings under section 227, the alleged contravention
specified in the certificate is found to have occurred, then the certificate is
prima facie evidence that the amount specified in the certificate is the amount
of damage suffered, as a result of the contravention, by the person specified in
the certificate.
(4) A document that purports to be a certificate issued under this section
is to be taken to be such a certificate, unless the contrary is
proved.
(1) Building industrial action is not protected action for the purposes of
the Workplace Relations Act if:
(a) the action is engaged in for the purposes of supporting or advancing
claims made in respect of a proposed building agreement; and
(b) any of those claims relates to a matter that does not pertain to the
employment relationship between the employer and employees who will be subject
to the agreement.
(2) Subsection (1) does not apply if the matter referred to in
paragraph (1)(b):
(a) is incidental to a matter that pertains to that employment
relationship; and
(b) is essential for the purpose of making a particular provision of the
agreement operate in a practical way.
(1) Building industrial action in relation to a proposed building
agreement is not protected action for the purposes of the Workplace Relations
Act if:
(a) the action is engaged in in concert with one or more persons who are
not protected persons for the action; or
(b) the organisers include one or more persons who are not protected
persons for the action.
(2) In this section:
protected person means:
(a) an employee organisation that is a negotiating party to the proposed
agreement; or
(b) a member of such an organisation who is employed by the employer and
whose employment will be subject to the proposed agreement; or
(c) an officer or employee of such an organisation acting in that
capacity; or
(d) an employee who is a negotiating party to the proposed
agreement.
Building industrial action is not protected action for the purposes of
the Workplace Relations Act if:
(a) the action is engaged in for the purpose of supporting or advancing
claims:
(i) against an employer; or
(ii) by an employer;
in respect of employees whose employment is, in any respect, subject to a
building certified agreement; and
(b) the action is taken before the nominal expiry date of that
agreement.
Exception to protected action
(1) Building industrial action in relation to a proposed building
agreement is not protected action for the purposes of the Workplace Relations
Act to the extent that the action continues beyond the 14th day after the day
(the notified day) notified by a person (the notifying
person) in relation to the proposed agreement under subsection 170MO(5)
of the Workplace Relations Act.
(2) Subsection (1) does not apply to building industrial action
that:
(a) occurs after the 35th day after the notified day; and
(b) is covered by a certificate issued by the AIRC under
subsection (3).
Note: The mere fact that industrial action is covered by a
certificate does not mean that it will be protected action. For example, it
might be disqualified by another provision of this Part.
(3) The AIRC, on application by the notifying person, may issue a
certificate to the effect that specified building industrial action during a
specified period is building industrial action to which this subsection applies.
In deciding whether to issue a certificate, the AIRC must have regard to the
following matters:
(a) the matters that are at issue between the negotiating
parties;
(b) the merits of the negotiating parties’ cases;
(c) the interests of the negotiating parties and the public
interest;
(d) the anticipated effect of any building industrial action on third
parties;
(e) whether any negotiating party has failed to genuinely try to reach
agreement;
(f) the extent to which the conduct of the negotiating parties during the
bargaining period has been reasonable;
(g) any principles formulated by a Full Bench for the purposes of this
subsection.
(4) The period specified in a certificate cannot be longer than 14 days.
However, the AIRC (on application by the notifying person) may issue a further
certificate or certificates under subsection (3) in respect of building
industrial action in relation to the same proposed agreement.
(5) An application for a certificate under subsection (3) cannot be
made:
(a) earlier than the 35th day after the notified day; or
(b) earlier than the 21st day after the last day of a period specified in
a previous certificate under that subsection in respect of building industrial
action in relation to the same proposed agreement; or
(c) at a time when a suspension of the relevant bargaining period is in
effect under section 170MW of the Workplace Relations Act.
(6) Section 170MO of the Workplace Relations Act does not apply to
action that is covered by a certificate under subsection (3) of this
section.
Building industrial action in relation to a proposed building agreement
is not protected action under subsection 170ML(2) of the Workplace Relations Act
unless:
(a) the action was authorised under Division 2 of this Part;
or
(b) the action is covered by paragraph 170ML(2)(f) of the Workplace
Relations Act.
Note: Section 114 sets out the requirements for
authorisation under Division 2 of this Part.
(1) In this section, negotiations has the same meaning as in
Division 8 of Part VIB of the Workplace Relations Act.
(2) If the AIRC has:
(a) made an order in relation to negotiations; or
(b) given a direction in relation to negotiations or to a matter that
arose during negotiations;
engaging in building industrial action by a person who is a member of a
Commonwealth building employee organisation that is a negotiating party is not
protected action unless, before the person begins to engage in the action, the
organisation has complied with the order or direction so far as it applies to
the organisation.
(3) If the AIRC has:
(a) made an order in relation to negotiations; or
(b) given a direction in relation to negotiations or to a matter that
arose during negotiations;
engaging in building industrial action by a building employee who is a
negotiating party is not protected action unless, before the employee begins to
engage in the action, the employee has complied with the order or direction in
so far as it applies to him or her.
(4) Subsections 170MP(1) and (2) of the Workplace Relations Act do not
apply in relation to building industrial action.
Organising building industrial action is not protected action for the
purposes of the Workplace Relations Act if the building industrial action (if
engaged in) would be excluded from protected action by this
Division.
Object
(1) The object of this Division is to establish a transparent process
which allows employees directly concerned to choose, by means of a fair and
democratic secret ballot, whether to authorise building industrial action
supporting or advancing claims by Commonwealth building employee organisations,
or by employees.
Overview of Division
(2) Under section 82, building industrial action in relation to a
proposed building agreement is not protected action under subsection 170ML(2) of
the Workplace Relations Act unless it has been authorised in advance by a secret
ballot held under this Division (a protected action ballot). This
Division establishes the steps that Commonwealth building employee
organisations, or employees, who wish to organise or engage in protected action
must take in order to:
(a) obtain an order from the AIRC that will authorise a protected action
ballot to be held; and
(b) hold a protected action ballot that may authorise the building
industrial action.
Note: Building industrial action does not have to have been
authorised by a protected action ballot if the action is in response to a
building employer lockout (see paragraph 82(b)).
In this Division:
AEC means the Australian Electoral Commission.
applicant means an applicant for a ballot order.
applicant’s agent means an agent appointed by an
employee, or by a group of employees, under subsection 87(6).
authorised ballot agent, in relation to a protected action
ballot, means the person authorised by the AIRC in the ballot order to conduct
the ballot.
authorised independent adviser, in relation to a protected
action ballot, means the person authorised by the AIRC in the ballot order to be
the independent adviser for the ballot.
ballot order means an order made under section 98
requiring a protected action ballot to be held.
bargaining period has the meaning given by subsection
170MI(1) of the Workplace Relations Act.
declaration envelope means an envelope in the form prescribed
by the regulations on which a voter is required to make a declaration containing
the prescribed information.
declaration voting has the meaning given by subsection
99(3).
joint applicant means a person who is participating, or has
participated, in making a joint application under section 91.
old IR agreement has the meaning given by section 4 of
the Workplace Relations Act.
party, in relation to an application for a ballot order,
means either of the following:
(a) the applicant;
(b) the building employer of the relevant employees.
prescribed number, in relation to relevant employees,
means:
(a) if there are less than 80 relevant employees—2; or
(b) if there are not less than 80, but not more than 5,000, relevant
employees—5% of the number of such employees; or
(c) if there are more than 5,000 relevant employees—250.
proposed agreement, in respect of a bargaining period, means
the proposed building agreement in respect of whose negotiation the bargaining
period has been initiated.
protected action ballot means a ballot under this
Division.
relevant employee, in relation to proposed building
industrial action against a building employer in respect of a proposed
agreement, means:
(a) if a Commonwealth building employee organisation is a negotiating
party to the agreement—any member of the organisation who is employed by
the building employer and whose employment will be subject to the agreement;
and
(b) if an employee is a negotiating party to the agreement—any
employee who is a negotiating party to the agreement;
but does not include an employee who is a party to an AWA whose nominal
expiry date has not passed.
roll of voters means a list compiled:
(a) by the AIRC under section 102; or
(b) by an authorised ballot agent in compliance with an order of the AIRC
under section 102.
When application can be made
(1) A person referred to in subsection (4) may, during a bargaining
period for the negotiation of a proposed agreement under Division 2 or 3 of
Part VIB of the Workplace Relations Act, apply to the AIRC for an order for
a ballot to be held to determine whether proposed building industrial action has
the support of relevant employees.
Note: For the duration of a bargaining period, see
sections 170MK of the Workplace Relations Act (when it begins) and 170MV of
that Act (when it ends).
(2) However, if there are one or more existing agreements, the application
must be made not more than 30 days before:
(a) if there is only one existing agreement—the nominal expiry date
of the existing agreement; or
(b) if there are 2 or more existing agreements—whichever is the last
occurring of the nominal expiry dates of those existing agreements.
(3) For the purposes of subsection (2), an existing
agreement is:
(a) a certified agreement applying to relevant employees; or
(b) an old IR agreement applying to relevant employees.
Who can apply
(4) The following people may apply:
(a) if the bargaining period was initiated by a Commonwealth building
employee organisation—that organisation;
(b) if the bargaining period was initiated by an employee or
employees—any employee who is a negotiating party to the proposed
agreement, or a group of such employees acting jointly.
Note: For joint applications, see
section 91.
Employee applications need support of prescribed number of
employees
(5) An employee, or a group of employees acting jointly, cannot make an
application unless the application has the support of at least the prescribed
number of relevant employees.
Note: Prescribed number is defined in
section 86.
Employee applicants can appoint agent
(6) A person or persons referred to in paragraph (4)(b) who wish to
make an application under this section without disclosing their identities to
their building employer may appoint an agent to represent them for all purposes
connected with the application.
(1) The application must include the following:
(a) the question or questions to be put to the relevant employees in the
ballot, including the nature of the proposed building industrial
action;
(b) details of the types of employees who are to be balloted;
(c) any details prescribed by the regulations for the purposes of this
paragraph.
(2) The application may include the name of a person nominated by the
applicant to conduct the ballot.
Note: The question of who conducts the ballot is ultimately
decided by the AIRC—see paragraph 99(1)(e) and
section 116.
(1) The application must be accompanied by:
(a) a copy of the notice given under subsection 170MI(2) of the Workplace
Relations Act to initiate the relevant bargaining period; and
(b) a copy of the particulars that accompanied that notice as required by
section 170MJ of that Act; and
(c) a declaration by the applicant under subsection (4) of this
section.
(2) If the applicant is a Commonwealth building employee organisation, the
application must be accompanied by a written notice showing that the application
has been duly authorised by a committee of management of the organisation or by
someone authorised by such a committee to authorise the application.
(3) If the applicant is an employee, or a group of employees, represented
by an applicant’s agent, the application must be accompanied by a document
containing the name of the employee, or each of those employees.
(4) The applicant’s declaration must state that the building
industrial action to which the application relates is not for the purpose of
supporting or advancing claims to include an objectionable provision in the
proposed agreement.
(5) The declaration must be in the form prescribed by the
regulations.
The applicant must give a copy of the application (but not the material
referred to in section 89) to:
(a) the other party; and
(b) any person nominated in the application to conduct the
ballot;
within 24 hours after lodging the application with the AIRC.
(1) If the bargaining period for the proposed agreement was initiated by
an employee, 2 or more employees who are negotiating parties may make a joint
application for a ballot order.
(2) An employee who has participated in making a joint application may
withdraw his or her name from the application before the application is
determined but cannot do so after the application is determined by the
AIRC.
(3) If employees have made a joint application, the name of another
employee who is a negotiating party may, before the application is determined,
be joined to the application if the other applicants consent.
(4) The regulations may:
(a) in the case of a provision of this Act permitting an applicant for a
ballot order to do any thing—specify how the provision is to apply to
joint applicants; and
(b) in the case of a provision of this Act requiring an applicant for a
ballot order to be given notice, or otherwise informed, of any
thing—specify how the requirement is to be fulfilled in relation to joint
applicants.
If:
(a) an application for a ballot order is lodged with the AIRC;
and
(b) the AIRC considers that notifying the parties, or a person who may
become the authorised ballot agent, of the procedure to be followed by the AIRC
in dealing with that application will not delay, and may expedite, the
determination of the application;
the AIRC may notify the parties or person concerned accordingly.
(1) In exercising its powers under this Division, the AIRC:
(a) must act as quickly as is practicable; and
(b) must, as far as is reasonably possible, determine all applications
made under this Division within 2 working days of the AIRC after the application
is made.
Note: In exercising its powers, the AIRC is also required to
act according to equity, good conscience and the substantial merits of the case,
without regard to technicalities and legal forms (see paragraph 110(2)(c) of the
Workplace Relations Act). It is not bound by the rules of evidence, and may
inform itself in any manner it considers just (see paragraph 110(2)(b) of that
Act).
(2) However, the AIRC must not determine an application for a ballot order
until it is satisfied that:
(a) the applicant has complied with section 90; and
(b) the persons referred to in subsections 94(1) and (2) have had a
reasonable opportunity to make submissions in relation to the
application.
(3) Paragraph 111(1)(g) of the Workplace Relations Act does not apply to a
proceeding under this Division.
Note: Paragraph 111(1)(g) of the Workplace Relations Act
allows the AIRC to dismiss, refrain from further hearing etc. matters or parts
of matters.
(1) A party or a relevant employee may make submissions, and may apply for
directions, relating to:
(a) an application for a ballot order; or
(b) any aspect of the conduct of a protected action ballot.
Note: See also paragraph 111(1)(s), and subsection 111(2),
of the Workplace Relations Act (which give the AIRC the power to summon before
it anyone it considers would help in the hearing or determination of a
proceeding).
(2) A person nominated in an application to conduct a ballot may make
submissions, and apply for directions, relating to the application.
(3) An authorised ballot agent may make submissions, and apply for
directions, relating to any aspect of a protected action ballot.
(4) In spite of subsection 93(3), the AIRC may decline to consider a
person’s submission if the AIRC is satisfied that the submission is
vexatious, frivolous, misconceived or lacking in substance.
(1) The AIRC may give directions, by order, in connection with:
(a) an application for a ballot order; or
(b) any aspect of the conduct of a protected action ballot.
(2) Without limiting subsection (1), the AIRC may give directions
aimed at ensuring that a protected action ballot is conducted
expeditiously.
(3) In deciding whether to give directions under this section, and the
content of any such directions, the AIRC must have regard to the desirability of
the ballot results being available to the parties within 10 days after the
ballot order is made.
(1) If:
(a) more than one application for a ballot order is before the AIRC for
determination; and
(b) the applications relate to building industrial action by employees of
the same building employer or by employees at the same place of work;
and
(c) the AIRC considers that determining the applications at the same time
will not unreasonably delay the determination of any of the
applications;
the AIRC may determine the applications at the same time.
(2) If:
(a) the AIRC has made an order requiring a ballot to be held in relation
to building industrial action by employees of a building employer, or by
employees at a place of work; and
(b) the AIRC proposes to make another order requiring a ballot to be held
in relation to building industrial action against that building employer, or at
the same place of work; and
(c) the AIRC considers that the level of disruption of the building
employer’s business, or at the place of work (as the case requires), could
be reduced if the ballots were held at the same time; and
(d) the AIRC considers that requiring the ballots to be held at the same
time will not unreasonably delay the conduct of either ballot;
the AIRC may make, or vary, the relevant orders so as to require the
ballots to be held at the same time.
AIRC must be satisfied of various matters
(1) The AIRC must grant an application for a ballot order if, and must not
grant the application unless, it is satisfied that:
(a) during the bargaining period, the applicant genuinely tried to reach
agreement with the building employer of relevant employees; and
(b) the applicant is genuinely trying to reach agreement with the building
employer.
Note 1: An application for a ballot order must comply with
the requirements set out in Subdivision B.
Note 2: To work out when a bargaining period began, see
section 170MK of the Workplace Relations Act.
When AIRC has discretion to refuse application
(2) Despite subsection (1), the AIRC may refuse the application if it
is satisfied:
(a) that granting the application would be inconsistent with the object of
this Division (see section 85); or
(b) that the applicant, or a relevant employee, has at any time
contravened a provision of this Division or an order made, or direction given,
under this Division.
Note: Orders that can be made under this Division are orders
under sections 98 and 101 and paragraph 102(1)(b).
If the AIRC grants the application, the AIRC must order the applicant to
hold a protected action ballot.
(1) An order for a protected action ballot to be held must specify the
following:
(a) the name of:
(i) if the applicant is a Commonwealth building employee
organisation—the organisation; or
(ii) if the applicant is an employee, or a group of employees, represented
by an applicant’s agent—the applicant’s agent; or
(iii) if the applicant is an employee, or a group of employees, not
represented by an applicant’s agent—the employee or
employees;
(b) the types of employees who are to be balloted;
(c) the voting method;
(d) the timetable for the ballot;
(e) the name of the person authorised by the AIRC to conduct the
ballot;
(f) the name of the person (if any) authorised by the AIRC to be the
independent adviser for the ballot;
(g) the question or questions to be put to the relevant employees in the
ballot, including the nature of the proposed building industrial
action.
Note 1: Section 116 specifies who may be authorised by
the AIRC to conduct protected action ballots.
Note 2: Section 117 specifies who may be authorised by
the AIRC to be the independent adviser for a protected action
ballot.
(2) The order must specify a postal ballot as the voting method
unless:
(a) the order specifies another voting method; and
(b) the AIRC is satisfied that the other voting method is more efficient
and expeditious than a postal ballot.
(3) If the order specifies a postal ballot as the voting method, it must
specify that the voting must take place by way of declaration voting. A person
votes by way of declaration voting if the person:
(a) marks his or her vote on a ballot paper; and
(b) places the ballot paper in a declaration envelope; and
(c) seals that envelope and signs his or her name in the space provided on
the back flap of that envelope; and
(d) places that envelope in an outer envelope that is addressed to the
authorised ballot agent; and
(e) posts the outer envelope so that it reaches the authorised ballot
agent before voting in the ballot ends.
(4) If the order specifies an attendance ballot as the voting method, it
must specify that the voting must take place during the voters’ meal-time
or other breaks, or outside their hours of employment.
(5) If the AIRC is satisfied that there are exceptional circumstances
justifying the percentage referred to in paragraph 114(5)(a) being lower than
40%, the order may specify a lower percentage.
Note: Subsection 114(1) requires a certain percentage of
people on the roll to have voted in the ballot in order for the ballot to
operate as an authorisation of building industrial action.
(6) If the AIRC is satisfied, in relation to the proposed building
industrial action that is the subject of the order, that there are exceptional
circumstances justifying the period of written notice referred to in paragraph
170MO(2)(b) of the Workplace Relations Act being longer than 3 days, the order
may specify a longer period, of up to 7 days.
The President may develop guidelines in relation to appropriate
timetables for the conduct of protected action ballots. The President may
consult the AEC, and any other person, in developing guidelines.
(1) The AIRC may order the building employer of the relevant employees, or
the applicant, or both, to provide:
(a) a list of employees of the type described in the application;
and
(b) any other information that it is reasonable for the AIRC to require in
order to assist in the compilation of a roll of voters for the proposed
ballot.
(2) The order may require the list, or other information, to be provided
to the AIRC or to the authorised ballot agent.
(3) The order may require the list, or other information, to be provided
in whatever form the AIRC considers appropriate.
If the AIRC makes a ballot order, it must:
(a) compile a list of the names of the persons who are eligible to be
included on the roll of voters for the ballot and provide that list, as the roll
of voters, to the authorised ballot agent; or
(b) order, by separate order, the authorised ballot agent to compile the
roll of voters for the ballot.
(1) A person is eligible to be included on the roll of voters for the
ballot if, and only if:
(a) if the applicant is a Commonwealth building employee
organisation—the person:
(i) was a member of the organisation on the day the ballot order was made;
and
(ii) was employed by the building employer on the day the ballot order was
made; and
(iii) will be subject to the agreement in respect of whose negotiation the
bargaining period was initiated; or
(b) if the applicant is an employee, or a group of employees—the
person:
(i) was employed by the building employer on the day the ballot order was
made; and
(ii) will be subject to the agreement in respect of whose negotiation the
bargaining period was initiated.
(2) A person is not eligible to be included on the roll of voters for the
ballot if, on the day the ballot order was made, the person was a party to an
AWA whose nominal expiry date had not passed.
(1) If:
(a) a person requests the authorised ballot agent to include the
person’s name on the roll of voters for a protected action ballot;
and
(b) the ballot agent is satisfied that the person is eligible to be
included on the roll; and
(c) the voting in the ballot has not yet ended;
the ballot agent must add the person’s name to the roll.
(2) If:
(a) a person applies to the AIRC for a declaration that the person is
eligible to be included on the roll of voters for the ballot; and
(b) the AIRC is satisfied that the person is eligible to be included on
the roll; and
(c) the voting in the ballot has not yet ended;
the AIRC must make the declaration and direct the authorised ballot agent
to include the person’s name on the roll.
(3) If:
(a) a party, the authorised ballot agent, or a person whose name is on the
roll of voters for a protected action ballot, applies to the AIRC for a
declaration that a person whose name has been included on the roll of voters for
the ballot is not eligible to be so included; and
(b) the voting in the ballot:
(i) in the case of a postal ballot—has not yet finished;
and
(ii) in any other case—has not yet started; and
(c) the AIRC is satisfied that the person is not eligible to be so
included;
the AIRC must make the declaration and direct the authorised ballot agent
to remove the person’s name from the roll.
(4) If a person’s name is removed from the roll of voters for a
postal ballot after the person has cast a vote, the authorised ballot agent must
take reasonable steps to ensure that the person’s ballot paper is not
included in the count of the votes.
Variation sought by applicant
(1) An applicant for a ballot order may apply to the AIRC, at any time
before the order expires, to vary the ballot order.
Variation sought by ballot agent
(2) The authorised ballot agent for a particular ballot may apply to the
AIRC, at any time before voting has ended, to vary:
(a) the voting method specified in the ballot order; or
(b) the timetable for the ballot specified in the ballot order.
Note: See also sections 94 and 95 (parties etc. may
make submissions and AIRC may give directions).
(1) If a ballot has not been held within the period specified in the
ballot order, the order expires at the end of that period.
(2) An applicant for a ballot order may apply to the AIRC, at any time
before the order expires, to revoke the ballot order.
(3) If the applicant makes an application under subsection (2), the
AIRC must revoke the order.
A Commonwealth building employee organisation or a person to whom an
order or a direction under this Division is expressed to apply must comply with
the order or direction.
Note: Grade A civil penalty.
As soon as practicable after making a ballot order, the AIRC must ensure
that a copy of the order is given to each party and to the authorised ballot
agent.
A ballot is not a protected action ballot unless it is conducted by the
authorised ballot agent for the ballot.
The ballot paper must be in the prescribed form and must include the
following:
(a) the name of the applicant or the applicant’s agent (as the case
requires);
(b) the types of employees who are to be balloted;
(c) the name of the ballot agent authorised to conduct the
ballot;
(d) the question or questions to be put to the relevant employees in the
ballot, including the nature of the proposed building industrial
action;
(e) a statement that the voter’s vote is secret and that the voter
is free to choose whether or not to support the proposed building industrial
action;
(f) instructions to the voter on how to complete the ballot
paper.
A person cannot vote in a protected action ballot unless the
person’s name is on the roll of voters for the ballot.
As soon as practicable after the end of the voting, the authorised ballot
agent must, in writing:
(a) make a declaration of the results of the ballot; and
(b) inform the parties and the Industrial Registrar of the
result.
Report by authorised ballot agent
(1) As soon as practicable after the end of the voting, the authorised
ballot agent must give the Industrial Registrar a written report about the
conduct of the ballot.
Note: Grade B civil penalty.
(2) A report under subsection (1) must set out details of:
(a) any complaints made to the authorised ballot agent about the conduct
of the ballot; and
(b) any irregularities in relation to the conduct of the ballot that have
come to the attention of the authorised ballot agent.
(3) Subsection (2) does not limit subsection (1).
Report by authorised independent adviser
(4) As soon as practicable after the end of the voting, the authorised
independent adviser (if any) must give the Industrial Registrar a written report
about the conduct of the ballot.
Note: Grade B civil penalty.
(5) A report under subsection (4) must set out details of:
(a) any complaints made to the authorised independent adviser about the
conduct of the ballot; and
(b) any irregularities in relation to the conduct of the ballot that have
come to the attention of the authorised independent adviser.
(6) Subsection (5) does not limit subsection (4).
Definitions
(7) In this section:
conduct, in relation to a protected action ballot, includes,
but is not limited to, the compilation of the roll of voters for the
ballot.
irregularity, in relation to the conduct of a protected
action ballot, includes an act or omission by means of which the full and free
recording of votes by all persons entitled to record votes and by no other
persons is, or is attempted to be, prevented or hindered.
(1) Building industrial action is authorised under this Division
if:
(a) the action was the subject of a protected action ballot; and
(b) at least the prescribed percentage of persons on the roll of voters
for the ballot voted in the ballot; and
(c) more than 50% of the votes validly cast were votes approving the
action; and
(d) if there is only one existing agreement—the action commences
during the 30-day period beginning on whichever is the later of the
following:
(i) the date of the declaration of the results of the ballot;
(ii) the nominal expiry date of the existing agreement; and
(e) if there are 2 or more existing agreements—the action commences
during the 30-day period beginning on whichever is the later of the
following:
(i) the date of the declaration of the results of the ballot;
(ii) whichever is the last occurring of the nominal expiry dates of those
existing agreements; and
(f) if there is no existing agreement—the action commences during
the 30-day period beginning on the date of the declaration of the results of the
ballot.
Note: Building industrial action must be authorised under
this Division if it is to be protected action for the purposes of the Workplace
Relations Act—see section 82 of this Act.
(2) However, the action is not authorised to the extent that it occurs
after the end of the bargaining period referred to in section 87.
(3) The AIRC may, by order, extend the 30-day period mentioned in
paragraph (1)(d), (e) or (f) by up to 30 days if the building employer and
the applicant for the ballot order jointly apply to the AIRC for the period to
be extended.
(4) The AIRC must not make an order under subsection (3) extending
the 30-day period if that period has previously been extended.
(5) For the purposes of subsection (1), the prescribed
percentage is:
(a) 40%; or
(b) if the ballot order specifies a lower percentage—that
percentage.
(6) For the purposes of subsection (1), an existing agreement
is:
(a) a certified agreement applying to relevant employees; or
(b) an old IR agreement applying to relevant
employees.
(1) The Industrial Registrar must, in relation to each protected action
ballot that has been held, keep a record of:
(a) the questions put to voters in the ballot; and
(b) the results of the ballot declared by the authorised ballot agent
under section 112.
(2) The Industrial Registrar must, as soon as practicable after being
notified of the results of a ballot by the authorised ballot agent under
section 112, publish the results.
(1) In a ballot order, the AIRC may name as the authorised ballot
agent:
(a) the AEC; or
(b) another person.
(2) The AIRC must not name a person other than the AEC as the authorised
ballot agent for the ballot unless the AIRC is satisfied that the
person:
(a) is capable of ensuring the secrecy and security of votes cast in the
ballot; and
(b) is capable of ensuring that the ballot will be fair and democratic;
and
(c) will conduct the ballot expeditiously; and
(d) is otherwise a fit and proper person to conduct the ballot.
(3) The AIRC must not name the applicant as the authorised ballot agent
for the ballot unless:
(a) the applicant nominates another person to be the authorised
independent adviser for the ballot; and
(b) the AIRC names the other person as the authorised independent adviser
for the ballot.
Note: Section 117 specifies who may be authorised by
the AIRC to be the independent adviser for a protected action
ballot.
(4) If the AIRC is satisfied that a person is not sufficiently independent
of the applicant, the AIRC must not name the person as the authorised ballot
agent for the ballot unless:
(a) the applicant nominates a third person as the authorised independent
adviser for the ballot; and
(b) the AIRC names the third person as the authorised independent adviser
for the ballot.
Note: Section 117 specifies who may be authorised by
the AIRC to be the independent adviser for a protected action
ballot.
(5) The regulations may prescribe:
(a) conditions that a person must meet in order to satisfy the AIRC that
the person is a fit and proper person to conduct a ballot; and
(b) factors to be taken into account by the AIRC in determining whether a
person is a fit and proper person to conduct a ballot.
(1) In a ballot order, the AIRC may name a person nominated by the
applicant as the authorised independent adviser.
(2) The AIRC must not name a person as the authorised independent adviser
for the ballot unless the AIRC is satisfied that the person:
(a) is sufficiently independent of the applicant; and
(b) is capable of giving the authorised ballot agent:
(i) advice that is; and
(ii) recommendations that are;
directed towards ensuring that the ballot will be fair and
democratic.
(3) The regulations may prescribe factors to be taken into account by the
AIRC in determining whether a person is capable of giving an authorised ballot
agent:
(a) advice that is; and
(b) recommendations that are;
directed towards ensuring that a protected action ballot will be fair and
democratic.
(1) The applicant for a ballot order is liable for the cost of holding the
ballot.
(2) If the application for the ballot order was made by joint applicants,
each applicant is jointly and severally liable for the cost of holding the
ballot.
(3) Subsections (1) and (2) have effect subject to subsections 119(3)
and (6).
Authorised ballot agent someone other than the AEC
(1) If:
(a) the authorised ballot agent for the ballot is not the AEC;
and
(b) the applicant notifies the Industrial Registrar of the cost incurred
by the applicant in relation to the holding of the ballot; and
(c) does so within a reasonable time after the completion of the
ballot;
the Industrial Registrar must determine how much (if any) of that cost was
reasonably and genuinely incurred by the applicant in holding the
ballot.
(2) If subsection (1) applies, the Commonwealth is liable to pay to
the authorised ballot agent 80% of the amount determined under that
subsection.
(3) The applicant is, to the extent of the Commonwealth’s liability
under subsection (2), discharged from liability under section 118 for
the cost of holding the ballot.
(4) The regulations may prescribe matters to be taken into account by the
Industrial Registrar in determining whether costs are reasonably and genuinely
incurred by the applicant in holding the ballot.
Authorised ballot agent the AEC
(5) If the authorised ballot agent for the ballot is the AEC, the AEC must
certify, within a reasonable time after the completion of the ballot, the amount
of the reasonable costs charged by the AEC to the applicant in relation to
holding the ballot.
(6) The applicant is, to the extent of 80% of the amount certified under
subsection (5), discharged from liability under section 118 for the
cost of holding the ballot.
(1) The AIRC must not disclose information that the AIRC knows, or has
reasonable grounds to believe, will identify a person as:
(a) an applicant who is represented by an applicant’s agent;
or
(b) a relevant employee who was one of the prescribed number of employees
supporting an application for a ballot order (as required by subsection 87(5));
or
(c) a person whose name appears on the roll of voters for a protected
action ballot; or
(d) a person who is a party to an AWA.
(2) Each of the following is an exception to the prohibition in
subsection (1):
(a) the disclosure is required or permitted by this Act or by another Act,
or by regulations made under this Act or under another Act;
(b) the person whose identity is disclosed has, in writing, authorised the
disclosure.
(1) A person must not disclose protected information that the person
knows, or has reasonable grounds to believe, will identify another person as a
person referred to in paragraph 120(1)(a), (b), (c) or (d).
Penalty: Imprisonment for 12 months.
(2) Each of the following is an exception to the prohibition in
subsection (1):
(a) the disclosure is made by a person in the course of performing
functions or duties:
(i) as a Registry official; or
(ii) of, or on behalf of, an authorised ballot agent; or
(iii) as an authorised independent adviser;
(b) the disclosure is required or permitted by this Act or by another Act,
or by regulations made under this Act or under another Act;
(c) the person whose identity is disclosed has, in writing, authorised the
disclosure.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
(3) In this section:
protected information, in relation to a person, means
information that the person acquired:
(a) in the course of performing functions or duties as a Registry
official; or
(b) in the course of performing functions or duties as, or on behalf of,
an authorised ballot agent; or
(c) from a person referred to in paragraph (a) or (b) who acquired
the information as mentioned in paragraph (a) or (b).
Registry official means:
(a) the Industrial Registrar; or
(b) a member of the staff of the Industrial Registry (including a Deputy
Industrial Registrar).
(1) If:
(a) the results of a protected action ballot as declared by the authorised
ballot agent purported to authorise particular building industrial action;
and
(b) an organisation or person, acting in good faith on the declared ballot
results, organised or engaged in that building industrial action; and
(c) it is subsequently determined that the action was not authorised by
the ballot; and
(d) the action would have been protected action if it had been authorised
by the ballot;
no action lies against the organisation or person under any law (whether
written or unwritten) in force in a State or Territory in respect of the action
unless the action involved:
(e) personal injury; or
(f) wilful or reckless destruction of, or damage to, property;
or
(g) the unlawful taking, keeping or use of property.
(2) Subsection (1) does not prevent an action for defamation being
brought in respect of anything that occurred in the course of building
industrial action.
(1) An order of the AIRC that a person hold a protected action ballot, and
any order or decision of the AIRC in connection with the order:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed, set aside
or called in question in any court on any ground; and
(c) is not subject to mandamus, prohibition, certiorari or injunction, or
the making of a declaratory or other order, in any court on any
ground;
unless subsection (2) applies to the order or decision.
(2) This subsection applies to an order for a protected action ballot, or
to an order or decision of the AIRC in connection with the order, if:
(a) in proceedings relating to the order or decision, as the case
requires, a person claims that another person or persons:
(i) contravened this Division, or an order of the AIRC under this
Division, if the contravention is not merely a technical breach; or
(ii) misled the AIRC (whether by a false statement or by an omission) in
such a way as to affect the order or decision; and
(b) the court is satisfied that there are reasonable grounds for the
claim.
(1) If a protected action ballot has been conducted, or has purportedly
been conducted:
(a) the declaration of the results of the ballot is final and conclusive;
and
(b) the declaration of the results of the ballot must not be quashed or
set aside by any court on any ground; and
(c) the conduct of the ballot, and the declaration of the results of the
ballot, must not be challenged, appealed against, reviewed or called in
question, as applicable, in any court on any ground; and
(d) the conduct of the ballot, and the declaration of the results of the
ballot, are not subject to mandamus, prohibition, certiorari or injunction, or
the making of a declaratory or other order, as applicable, in any court
on any ground;
unless subsection (2) applies to the conduct or declaration.
(2) This subsection applies to the conduct of a protected action ballot,
and to the declaration of the results of a ballot, if:
(a) in proceedings relating to the conduct or declaration, as the case
requires, a person claims that another person or persons:
(i) contravened this Division, or an order of the AIRC under this
Division, if the contravention is not merely a technical breach; or
(ii) acted fraudulently in relation to the conduct or declaration;
or
(iii) acted in such a way as to cause an irregularity in relation to the
conduct or declaration, being an irregularity that affected the outcome of the
ballot; and
(b) the court is satisfied that there are reasonable grounds for the
claim.
(3) In this section:
conduct, in relation to a protected action ballot, includes,
but is not limited to, the compilation of the roll of voters for the
ballot.
irregularity, in relation to the conduct or declaration of a
protected action ballot, includes an act or omission by means of
which:
(a) the full and free recording of votes by all persons entitled to record
votes and by no other persons; or
(b) a correct ascertainment or declaration of the results of the
voting;
is, or is attempted to be, prevented or hindered.
(1) An authorised ballot agent commits an offence if:
(a) the ballot agent conducts a protected action ballot; and
(b) the ballot agent does not ensure that the following are kept for one
year after the completion of the ballot:
(i) the roll of voters;
(ii) all ballot papers, envelopes and other documents and records relevant
to the ballot.
Penalty: 60 penalty units.
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if the authorised ballot agent has
a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter mentioned in subsection (3), see subsection 13.3(3) of the
Criminal Code.
(1) If the AEC is the authorised ballot agent for a protected action
ballot, it is a function of the AEC to conduct the ballot.
(2) If the AEC is:
(a) the ballot agent nominated in an application for a ballot order;
or
(b) the authorised ballot agent for such a ballot;
the AEC cannot make a submission or an application to the AIRC seeking to
cease having that status in relation to the ballot.
Paragraphs (d) and (e) of the definition of prescribed
premises in subsection 134(5) of the Workplace Relations
Act have effect in relation to a building industrial dispute as if those
paragraphs referred to this Division in the same way as they refer to
sections 135 and 136 of that Act.
(1) The AIRC must not order a vote of members of a Commonwealth building
employee organisation under subsection 135(1) of the Workplace Relations Act
if:
(a) the organisation has initiated a bargaining period (within the meaning
of section 170MI of that Act) for a building certified agreement with a
particular building employer; and
(b) the members are employees of the building employer whose employment
will be subject to the agreement.
(2) Subsection 135(2) of the Workplace Relations Act does not apply in
relation to the members of a Commonwealth building employee
organisation.
(3) Subsections 135(2B) and 136(1), (2), (3), (4), (5), (6) and (7) of the
Workplace Relations Act do not apply in relation to building industrial
action.
(4) Section 170MQ of the Workplace Relations Act does not apply in
relation to building industrial action.
(1) Paragraph 170MO(2)(b) of the Workplace Relations Act applies in
relation to an intention to take building industrial action as if the period of
written notice required by that paragraph were:
(a) 3 working days’ written notice; or
(b) if a ballot order made under section 98 of this Act in respect of
the action specifies a higher number of days—that number of days’
written notice.
Note: For the maximum number of days the ballot order can
specify, see subsection 99(6) of this Act.
(2) A written notice or other notification under section 170MO of the
Workplace Relations Act, in respect of an intention to take building industrial
action, cannot be given:
(a) if the notification relates to action that must, in order to be
protected action, be authorised by a protected action ballot—before the
declaration of the results of the ballot (see section 112 of this Act);
or
(b) if the notification relates to a lockout by a building employer
(whether the notification is to be given by the building employer, a
Commonwealth building employee organisation or an employee)—before the
start of the bargaining period.
(3) Subsection 170MO(6) of the Workplace Relations Act does not apply in
relation to notice or notification of an intention to take building industrial
action.
Subsection 178(1) of the Workplace Relations Act does not apply to an
order of the AIRC made under this Division.
Note: Breaches of orders made under this Division are dealt
with by civil penalties imposed under this Act.
Sections 345 and 346 of Schedule 1B to the Workplace Relations
Act do not apply to protected action ballots.
Note: The right to vote in protected action ballots is
provided for in this Division.
Subsections 317(2), (3) and (4) of the Workplace Relations Act apply in
relation to protected action ballots.
The regulations may make provision in relation to the following
matters:
(a) the qualifications and appointment of applicants’
agents;
(b) procedures to be followed in relation to the conduct of a ballot, or
class of ballot, under this Division;
(c) the qualifications, appointment, powers and duties of
scrutineers;
(d) the powers and duties of authorised independent advisers;
(e) the manner in which ballot results are to be published under
section 115.
(1) If it appears to the AIRC that building industrial action is
happening, or is threatened, impending or probable, in relation to:
(a) an industrial dispute; or
(b) the negotiation or proposed negotiation of an agreement under
Division 2 of Part VIB of the Workplace Relations Act; or
(c) work that is regulated by an award or a certified agreement;
the AIRC may, by order, give directions that the building industrial action
stop or not occur.
(2) The AIRC may make such an order of its own motion, or on the
application of:
(a) the ABC Commissioner; or
(b) a party to the industrial dispute (if any); or
(c) a person who is directly affected, or who is likely to be directly
affected, by the building industrial action; or
(d) an organisation of which a person referred to in paragraph (c) is
a member.
(3) The AIRC must, as far as practicable, hear and determine an
application for an order under subsection (1) within 48 hours.
(4) The AIRC may make an interim order directing that building industrial
action stop or not occur if:
(a) an application has been made for an order under subsection (1) in
respect of the building industrial action; and
(b) the AIRC:
(i) is satisfied that the building industrial action is not, or would not
be, protected action; or
(ii) has not formed a view in that regard; and
(c) the AIRC is satisfied:
(i) that it will be unable to determine the application within 48 hours of
the making of the application; or
(ii) that the building industrial action has not commenced, but is likely
to commence not later than 48 hours after the making of the application, and
that it will be unable to determine the application before the building
industrial action commences.
(5) An interim order ceases to have effect if the application is
determined.
(6) In considering whether or not to make an interim order under
subsection (4), the AIRC must have regard to, but is not limited by, the
following:
(a) the damage to industry that will be caused by the building industrial
action;
(b) the time that will be needed to determine the application;
(c) whether the building industrial action has escalated since the
application was made;
(d) whether the building industrial action forms part of a sequence of
related building industrial action that the AIRC is satisfied is not, or may not
be, protected action;
(e) if the building industrial action has not commenced—the time
when it is likely to commence;
(f) whether notice of the building industrial action required to be given
by or under the Workplace Relations Act has been given.
(7) In considering whether to make an order under subsection (1) or
an interim order under subsection (4), the AIRC must have regard
to:
(a) whether a person or organisation engaging in the building industrial
action is a person whose employment is subject to, or is an organisation that is
bound by, a certified agreement that has not yet reached its nominal expiry
date; and
(b) the undesirability of the occurrence of building industrial action
that is not protected action.
(8) If an order can be made by the AIRC under this section in relation to
building industrial action, then an order cannot be made by the AIRC in relation
to that building industrial action under section 127 of the Workplace
Relations Act
(9) Subject to subsection (8), the powers conferred on the AIRC by
subsections (1) and (4) are in addition to, and not in derogation of, the
powers conferred on the AIRC by the rest of this Act or by the Workplace
Relations Act.
(10) A person or organisation to whom an order under subsection (1)
or (4) is expressed to apply must comply with the order.
(11) An order under subsection (1) or (4) does not apply to action
that is protected action for the purposes of the Workplace Relations Act (as
affected by Part 3 of this Chapter).
(12) The Federal Court may, on the application of:
(a) the ABC Commissioner; or
(b) a person or organisation affected by an order under
subsection (1) or (4);
grant an injunction on such terms as the Court considers appropriate if it
is satisfied that another person or organisation:
(c) has engaged in conduct that constitutes a contravention of
subsection (10); or
(d) is proposing to engage in conduct that would constitute such a
contravention.
(13) If, in the opinion of the Federal Court it is desirable to do so, the
Court may grant an interim injunction pending determination of an application
under subsection (12).
(14) If the ABC Commissioner is not a party to proceedings (the
original proceedings) in which an injunction is granted under
subsection (12) or (13), the ABC Commissioner may nevertheless:
(a) apply for a variation of the injunction; or
(b) apply for action to be taken in respect of a breach of the
injunction.
Before applying, the ABC Commissioner must give notice to the parties to
the original proceedings. This subsection does not, by implication, affect the
rights of parties to the original proceedings.
(1) If an employee engages, or threatens to engage, in notifiable
industrial action, then the employer must notify the ABC Commissioner in writing
of the action or threat within 72 hours after the employer becomes aware of the
action or threat.
Note: Grade B civil penalty.
(2) In this section:
notifiable industrial action means building industrial action
that:
(a) is industrially-motivated; and
(b) constitutionally-connected.
(1) Part VIIIA of the Workplace Relations Act applies in relation to
building work with the following modifications:
(a) references in that Part to industrial action are to be read as
references to building industrial action that is industrially-motivated and
constitutionally-connected;
(b) the reference in paragraph 187AD(1)(a) of the Workplace Relations Act
to $10,000 is to be read as a reference to:
(i) 1,000 penalty units if the person is a body corporate; and
(ii) 200 penalty units in other cases.
(2) Part VIIIA of the Workplace Relations Act does not apply to
building work except as provided by this section.
If:
(a) a claim is made to an employer for the employer to make a payment;
and
(b) the making of the payment would contravene section 187AA of the
Workplace Relations Act (as applied by section 136 of this Act);
then the employer must notify the ABC Commissioner in writing of the claim
within 72 hours after the claim is made.
Note: Grade A civil penalty.
(1) If an employee party gives a notice under section 170MO of the
Workplace Relations Act in relation to a proposed building agreement, then no
further notice can be given by any employee party under that section in relation
to that proposed agreement. For this purpose, employee party means
an employee or an employee organisation.
(2) If an employer gives a notice under section 170MO of the
Workplace Relations Act in relation to a proposed building agreement, then no
further notice can be given by the employer under that section in relation to
that proposed agreement.
Section 166A of the Workplace Relations Act does not apply in
relation to a building industrial dispute if the organisation referred to in
that section is a Commonwealth building employee organisation.
Note: Section 166A of the Workplace Relations Act
restricts the taking of action in tort in relation to certain conduct relating
to an industrial dispute.
The Federal Court, in exercising powers under any law of the
Commonwealth, must not grant an interlocutory injunction to prevent a person
from instituting or pursuing an action, in relation to building industrial
action, under any law in force in a State or Territory.
In addition to the objects set out in section 3, this Chapter has
the following objects:
(a) to ensure that building industry participants are free to become, or
not become, members of building associations;
(b) to ensure that building industry participants are not discriminated
against or victimised because they are, or are not, members or officers of
building associations;
(c) to provide effective relief to building industry participants who are
prevented or inhibited from exercising their rights to freedom of
association;
(d) to provide effective remedies to penalise and deter persons who engage
in conduct which prevents or inhibits building industry participants from
exercising their rights to freedom of association.
(1) In this Chapter, unless the contrary intention appears:
bargaining services means:
(a) services provided by (or on behalf of) a building association in
relation to an agreement, or a proposed agreement, under Part VIB of the
Workplace Relations Act (including the negotiation, making, certification,
operation, extension, variation or termination of the agreement); or
(b) services provided by (or on behalf of) a building association in
relation to a State employment agreement or proposed State employment agreement
(including the negotiation, making, certification, operation, extension,
variation or termination of the agreement).
bargaining services fee means a fee (however described)
payable:
(a) to a building association; or
(b) to someone else in lieu of a building association;
wholly or partly for the provision, or purported provision, of bargaining
services, but does not include membership dues.
building employment means employment as a building
employee.
industrial action means:
(a) the performance of work in a manner different from that in which it is
customarily performed, or the adoption of a practice in relation to work, the
result of which is a restriction or limitation on, or a delay in, the
performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly,
by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with
an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or on
acceptance of or offering for work, in accordance with the terms and conditions
prescribed by an industrial instrument or by an order of an industrial body;
or
(c) a ban, limitation or restriction on the performance of work, or on
acceptance of or offering for work, that is adopted in connection with an
industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or
refusal to perform any work at all by persons who attend for work;
but does not include:
(e) action by employees that is authorised or agreed to, in advance and in
writing, by the employer of the employees; or
(f) action by an employer that is authorised or agreed to, in advance and
in writing, by or on behalf of employees of the employer; or
(g) action by an employee if:
(i) the action was based on a reasonable concern by 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 for the employee to perform.
Note: See also subsection (2), which deals with the
burden of proof of the exception in paragraph (g) of this
definition.
industrial dispute means:
(a) an industrial dispute (including a threatened, impending or probable
industrial dispute) that is about matters pertaining to the relationship between
employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of
the kind referred to in paragraph (a); or
(c) a dispute arising between 2 or more industrial associations, or within
an industrial association, as to the rights, status or functions of members of
the associations or association in relation to the employment of those members;
or
(d) a dispute arising between employers and employees, or between members
of different industrial associations, as to the demarcation of functions of
employees or classes of employees; or
(e) a dispute about the representation under an industrial law of the
industrial interests of employees by an industrial association of
employees.
officer, in relation to a building association,
includes:
(a) a delegate or other representative of the association; and
(b) an employee of the association.
threat means a threat of any kind, whether direct or indirect
and whether express or implied.
(2) In any proceedings under section 227 in respect of a
contravention of this Chapter, the burden of proving the exception in
paragraph (g) of the definition of industrial action in
subsection (1) lies on the person who is seeking to rely on the
exception.
(3) For the purposes of this Chapter:
(a) conduct is capable of constituting industrial action even if the
conduct relates to part only of the duties that persons are required to perform
in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of
conduct consisting of a series of industrial actions.
Parts 3 to 7 of this Chapter apply only to the extent provided in
this Part.
This Chapter applies to:
(a) conduct by an organisation; and
(b) conduct by an officer of an organisation acting in that capacity;
and
(c) conduct carried out with a purpose or intent relating to a
person’s membership or non-membership of an organisation.
(1) This Chapter applies to conduct carried out with a purpose or intent
relating to a person’s participation, or non-participation, in action that
would be covered by the definition of industrial action in
subsection 4(1) of the Workplace Relations Act if, in that definition:
(a) paragraphs (e) and (f) required an authorisation or agreement to
be in advance and in writing; and
(b) the words “and appropriate” were omitted from
subparagraph (g)(ii).
(2) For the purposes of this Chapter, a person who seeks to rely on
paragraph (g) of the definition (as modified by subsection (1)) has
the burden of proving that paragraph (g) applies.
(1) This Chapter applies to conduct carried out with a purpose or intent
relating to a person’s participation or non-participation (in any
capacity) in:
(a) any proceedings under this Act or the Workplace Relations Act;
or
(b) any other activity provided for by this Act or the Workplace Relations
Act.
(2) This Chapter applies to conduct carried out with a purpose or intent
relating to:
(a) the fact that an award, a certified agreement or an AWA applies to a
person’s employment; or
(b) the fact that a person is bound by an award, a certified agreement or
an AWA.
This Chapter applies to the following conduct:
(a) conduct by a constitutional corporation;
(b) conduct against a constitutional corporation;
(c) conduct that adversely affects a constitutional corporation in its
capacity as a building industry participant;
(d) conduct carried out with intent to adversely affect a constitutional
corporation in its capacity as a building industry participant;
(e) conduct that directly affects a person in the capacity of:
(i) an employee, or prospective employee, of a constitutional corporation;
or
(ii) a contractor, or prospective contractor, of a constitutional
corporation;
(f) conduct carried out with intent to directly affect a person in the
capacity of:
(i) an employee, or prospective employee, of a constitutional corporation;
or
(ii) a contractor, or prospective contractor, of a constitutional
corporation;
(g) conduct that consists of advising, encouraging or inciting a
constitutional corporation:
(i) to take, or not to take, particular action in relation to another
person; or
(ii) to threaten to take, or not to take, particular action in relation to
another person.
This Chapter applies to the following conduct:
(a) conduct by the Commonwealth or a Commonwealth authority;
(b) conduct that affects, or is carried out with intent to affect, the
Commonwealth, or a Commonwealth authority, in its relationships with its
employees or contractors;
(c) conduct that affects, or is carried out with intent to affect, a
person in the capacity of an employee or contractor of the Commonwealth or of a
Commonwealth authority.
This Chapter applies to conduct in a Territory or Commonwealth
place.
(1) This Chapter applies to conduct in Victoria.
(2) This section has effect only for so long, and in so far, as the
Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to
the Parliament of the Commonwealth a matter or matters that result in the
Parliament of the Commonwealth having sufficient legislative power for this
section so to have effect.
A building industry participant must not organise or take, or threaten to
organise or take, any action against another building industry participant with
intent to coerce the other building industry participant or a third building
industry participant:
(a) to become, or not become, an officer or member of a building
association; or
(b) to remain, or cease to be, an officer or member of a building
association.
Note: Grade A civil penalty.
A building industry participant must not make a false or misleading
representation about:
(a) another building participant’s obligation:
(i) to be, or become, an officer or member of a building association;
or
(ii) not to be, not to become or to cease to be, an officer or member of a
building association; or
(b) another building participant’s obligation to disclose whether
the other building industry participant, or a third building industry
participant, is, or has been, an officer or member of a building association or
of a particular building association; or
(c) the need for another building participant to be, or not to be, an
officer or member of a building association, or of a particular building
association, in order for the other participant to obtain the benefit of an
industrial instrument.
Note 1: Grade A civil penalty.
Note 2: A representation that describes a building site as a
“no ticket, no start” site or a “union site” could be
false or misleading.
A building industry participant must not organise or take, or threaten to
organise or take, industrial action against another building industry
participant for the reason that, or for reasons that include the reason that, a
person:
(a) is, has been, proposes to become or has at any time proposed to
become, an officer or member of a building association; or
(b) is not, or does not propose to become, an officer or member of a
building association.
Note: Grade A civil penalty.
(1) A building employer must not, for a prohibited reason, or for reasons
that include a prohibited reason, do or threaten to do any of the
following:
(a) dismiss a building employee;
(b) injure a building employee in his or her employment;
(c) alter the position of a building employee to the employee’s
prejudice;
(d) refuse to employ another person as a building employee;
(e) discriminate against another person in the terms or conditions on
which the employer offers to employ the other person as a building
employee.
Note: Grade A civil penalty.
(2) A person must not, for a prohibited reason, or for reasons that
include a prohibited reason, do or threaten to do any of the
following:
(a) terminate a contract for services that he or she has entered into with
a building contractor;
(b) injure the building contractor in relation to the terms and conditions
of the contract for services;
(c) alter the position of the building contractor to the building
contractor’s prejudice;
(d) refuse to engage another person as a building contractor;
(e) discriminate against another person in the terms or conditions on
which the person offers to engage the other person as a building
contractor.
Note: Grade A civil penalty.
(1) Conduct referred to in subsection 154(1) or (2) is for a
prohibited reason if it is carried out because the building
employee, building contractor or other person concerned:
(a) is, has been, proposes to become or has at any time proposed to become
an officer, delegate or member of a building association; or
(b) is not, or does not propose to become, a member of a building
association; or
(c) in the case of a refusal to engage another person as a building
contractor—has one or more employees who are not, or do not propose to
become, members of a building association; or
(d) has not paid, or does not propose to pay, a fee (however described) to
a building association; or
(e) has refused or failed to join in industrial action; or
(f) in the case of a building employee—has refused or failed to
agree or consent to, or vote in favour of, the making of an agreement to which a
building association of which the employee is a member would be a party;
or
(g) has made, proposes to make or has at any time proposed to make an
application to an industrial body for an order under an industrial law for the
holding of a secret ballot; or
(h) has participated in, proposes to participate in or has at any time
proposed to participate in a secret ballot ordered by an industrial body under
an industrial law; or
(i) is entitled to the benefit of an industrial instrument or an order of
an industrial body; or
(j) has made or proposes to make any inquiry or complaint to a person or
body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial
instrument; or
(k) has participated in, proposes to participate in or has at any time
proposed to participate in a proceeding under an industrial law; or
(l) has given or proposes to give evidence in a proceeding under an
industrial law; or
(m) in the case of a building employee, or a building contractor, who is a
member of a building association that is seeking better industrial
conditions—is dissatisfied with his or her conditions; or
(n) in the case of a building employee or a building contractor—has
absented himself or herself from work without leave if:
(i) the absence was for the purpose of carrying out duties or exercising
rights as an officer of a building association; and
(ii) the building employee or building contractor applied for leave before
absenting himself or herself and leave was unreasonably refused or withheld;
or
(o) as an officer or member of a building association, has done, or
proposes to do, an act or thing for the purpose of furthering or protecting the
industrial interests of the building association, being an act or thing that
is:
(i) lawful; and
(ii) within the limits of an authority expressly conferred on the building
employee, building contractor or other person by the building association under
its rules; or
(p) in the case of a building employee or building contractor—has
not paid, has not agreed to pay, or does not propose to pay, a bargaining
services fee.
(2) If:
(a) a threat is made to engage in conduct referred to in subsection 154(1)
or (2); and
(b) one of the prohibited reasons in subsection (1) of this section
refers to a person doing or proposing to do a particular act, or not doing or
proposing not to do a particular act; and
(c) the threat is made with the intent of dissuading or preventing the
person from doing the act, or coercing the person to do the act, as the case
requires;
the threat is taken to have been made for that prohibited reason.
A building employer, or a person who has engaged a building contractor,
must not (whether by threats or promises or otherwise) induce a building
employee, or the building contractor, (as the case requires):
(a) to become an officer or member of a building association; or
(b) to remain an officer or member of a building association; or
(c) not to become an officer or member of a building association;
or
(d) to cease to be an officer or member of a building
association.
Note: Grade A civil penalty.
A building employee or building contractor must not cease work in the
service of his or her employer, or of the person who engaged the building
contractor, (as the case requires) because the employer or person:
(a) is an officer or member of a building association; or
(b) is entitled to the benefit of an industrial instrument or an order of
an industrial body; or
(c) has made or proposes to make any inquiry or complaint to a person or
body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial
instrument; or
(d) has participated in, proposes to participate in or has at any time
proposed to participate in any proceedings under an industrial law; or
(e) has given evidence in a proceeding under an industrial law.
Note: Grade A civil penalty.
(1) A building association, or an officer or member of a building
association, must not organise or take, or threaten to organise or take,
industrial action against a building employer because the employer is an officer
or member of a building association.
Note: Grade A civil penalty.
(2) A building association, or an officer or member of a building
association, must not organise or take, or threaten to organise or take,
industrial action against a building employer with intent to coerce the
employer:
(a) to become an officer or member of a building association; or
(b) to remain an officer or member of a building association; or
(c) not to become an officer or member of a building association;
or
(d) to cease to be an officer or member of a building association;
or
(e) to pay a fee (however described) to a building association.
Note: Grade A civil penalty.
(3) A building association, or an officer or member of a building
association, must not:
(a) advise, encourage or incite a building employer; or
(b) organise or take, or threaten to organise or take, industrial action
against a building employer with intent to coerce the employer;
to take action in relation to a person that would, if taken, contravene
subsection 154(1).
Note: Grade A civil penalty.
(4) A building association, or an officer or member of a building
association, must not, because a member of the association has refused or failed
to comply with a direction given by the association:
(a) advise, encourage or incite a building employer; or
(b) organise or take, or threaten to organise or take, industrial action
against a building employer with intent to coerce the employer;
to prejudice the member in the member’s employment or possible
employment.
Note: Grade A civil penalty.
(1) A building association, or an officer or member of a building
association, must not take, or threaten to take, action having the effect,
directly or indirectly, of prejudicing a person in the person’s building
employment, or prospective building employment, with intent:
(a) to coerce the person to join in industrial action; or
(b) to dissuade or prevent the person from making an application to an
industrial body for an order under an industrial law for the holding of a secret
ballot.
Note: Grade A civil penalty.
(2) A building association, or an officer or member of a building
association, must not:
(a) take, or threaten to take, action having the effect, directly or
indirectly, of prejudicing a person in the person’s building employment or
prospective building employment; or
(b) advise, encourage or incite a person to take action having the effect,
directly or indirectly, of prejudicing another person in the other
person’s building employment or prospective building employment;
for any of the following reasons, or for reasons that include any of the
following reasons:
(c) the person has not paid, has not agreed to pay, or does not propose to
pay, a bargaining services fee;
(d) the person is, has been, proposes to become or has at any time
proposed to become an officer or member of a building association;
(e) the person is not, or does not propose to become, a member of a
building association;
(f) the person has not paid, has not agreed to pay, or does not propose to
pay, a fee (however described) to a building association;
(g) the person has refused or failed to join in industrial
action;
(h) the person has made or proposes to make any inquiry or complaint to a
person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial
instrument.
Note: Grade A civil penalty.
A building association, or an officer or member of a building
association, must not impose, or threaten to impose, a penalty, forfeiture or
disability of any kind on a member of the association:
(a) with intent to coerce the member to join in industrial action;
or
(b) because the member has refused or failed to join in industrial action;
or
(c) because the member has made, proposes to make or has at any time
proposed to make an application to an industrial body for an order under an
industrial law for the holding of a secret ballot; or
(d) because the member has participated in, proposes to participate in or
has at any time proposed to participate in a secret ballot ordered by an
industrial body under an industrial law; or
(e) because the member has made or proposes to make any inquiry or
complaint to a person or body having the capacity under an industrial law to
seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial
instrument; or
(f) because the member has refused or failed to agree or consent to, or
vote in favour of, the making of an agreement to which the building association
would be a party; or
(g) because the member has participated in, proposes to participate in or
has at any time proposed to participate in a proceeding under an industrial law;
or
(h) because the member has given or proposes to give evidence in a
proceeding under an industrial law.
Note: Grade A civil penalty.
(1) In this section:
discriminatory action, in relation to an eligible person,
means:
(a) a refusal to make use of, or to agree to make use of, services offered
by the eligible person; or
(b) a refusal to supply, or to agree to supply, goods or services to the
eligible person; or
(c) threatening to refuse as mentioned in paragraph (a) or
(b).
eligible person means a person who is not a building
employee, but who:
(a) is eligible to become a member of a building association; or
(b) would be eligible to become a member of a building association if he
or she were a building employee.
(2) A building association, or an officer or member of a building
association, must not:
(a) advise, encourage or incite a person (whether an employer or not) to
take discriminatory action against an eligible person because the eligible
person, or any person employed or engaged by the eligible person:
(i) is, has been, proposes to become or has at any time proposed to
become, a member of a building association; or
(ii) is not, or proposes not to become, a member of a building
association; or
(iii) is a member of a building association who has refused or failed to
comply with a direction given by the association; or
(iv) has not paid, or does not propose to pay, a fee (however described)
to a building association; or
(v) has made or proposes to make any inquiry or complaint to a person or
body having the capacity under an industrial law to seek:
(A) compliance with that law; or
(B) the observance of a person’s rights under an industrial
instrument; or
(b) take, or threaten to take, industrial action against a person (whether
an employer or not) with intent to coerce the person to take discriminatory
action against an eligible person because the eligible person, or any person
employed or engaged by the eligible person:
(i) is, has been, proposes to become or has at any time proposed to
become, a member of a building association; or
(ii) is not, or proposes not to become, a member of a building
association; or
(iii) is a member of a building association who has refused or failed to
comply with a direction given by the association; or
(iv) has not paid, or does not propose to pay, a fee (however described)
to a building association; or
(v) has made or proposes to make any inquiry or complaint to a person or
body having the capacity under an industrial law to seek:
(A) compliance with that law; or
(B) the observance of a person’s rights under an industrial
instrument; or
(c) take, or threaten to take, industrial action against an eligible
person with intent to coerce the eligible person, or any person employed or
engaged by the eligible person:
(i) to become, or to remain, a member of a building association;
or
(ii) not to become, or not to remain, a member of a building association;
or
(iii) to comply with a direction given by the association.
Note: Grade A civil penalty.
(3) For the avoidance of doubt, nothing in subsection (2) prevents a
building association from entering into an agreement or arrangement with another
person for the supply of goods or services to members of the building
association (including the supply on particular terms or conditions).
(4) A building association, or an officer or member of a building
association, must not:
(a) advise, encourage or incite a person (whether an employer or not) to
take discriminatory action against an eligible person for a prohibited reason;
or
(b) take, or threaten to take, industrial action against a person (whether
an employer or not) with intent to coerce the person to take discriminatory
action against an eligible person for a prohibited reason; or
(c) take, or threaten to take, industrial action against an eligible
person for a prohibited reason.
Note: Grade A civil penalty.
(5) Conduct mentioned in subsection (4) is carried out for a
prohibited reason if it is carried out because the eligible person
concerned has not paid, has not agreed to pay, or does not propose to pay, a
bargaining services fee.
A building association, or an officer or member of a building
association, must not:
(a) advise, encourage or incite a person; or
(b) organise or take, or threaten to organise or take, industrial action
against a person with intent to coerce the person;
to take action in relation to another person that would, if taken,
contravene subsection 154(2).
Note: Grade A civil penalty.
(1) A building association, or an officer or member of a building
association, must not demand (whether orally or in writing) payment of a
bargaining services fee from a building industry participant.
Note: Grade A civil penalty.
(2) Nothing in this section prevents a building association from demanding
payment of a bargaining services fee that is payable to the association under a
contract for the provision of bargaining services.
(3) In this section:
demand includes:
(a) purport to demand; and
(b) have the effect of demanding; and
(c) purport to have the effect of demanding.
A building association, or an officer or member of a building
association, must not take, or threaten to take, action against a building
industry participant with intent to coerce the participant, or another building
industry participant, to pay a bargaining services fee.
Note: Grade A civil penalty.
To avoid doubt, nothing in this Part prevents a building association from
entering into a contract for the provision of bargaining services with a person
who is not a member of the association.
A building industry participant must not make a false or misleading
representation about:
(a) another building industry participant’s liability to pay a
bargaining services fee; or
(b) another building industry participant’s obligation to enter into
an agreement to pay a bargaining services fee; or
(c) another building industry participant’s obligation to become a
member of a building association.
Note: Grade A civil penalty.
(1) To the extent that this Chapter relies on section 147, 149 or 150
for its application, it is not intended to exclude or limit the concurrent
operation of any law of a State or Territory.
(2) This section has effect subject to section 168.
(1) This section applies to conduct of a person or building association
if:
(a) the conduct contravenes a provision of this Chapter; and
(b) the conduct also contravenes a provision of an industrial law of a
State or Territory, being a provision that deals with discrimination, or
preference, in employment; and
(c) this Chapter would not apply to the conduct if sections 147, 149
and 150 were omitted.
(2) If an application is made under section 227 in respect of the
conduct, an application cannot be made, under the industrial law of the State or
Territory, in respect of that conduct.
(3) Subsection (2) does not preclude a person or building
association being prosecuted for an offence, or any applications being made in
connection with such a prosecution.
(4) If an application is made under the industrial law of the State or
Territory in respect of the conduct, an application cannot be made under
section 227 in respect of that conduct.
(5) Subsection (4) does not preclude an application being made under
section 227 if the application under the industrial law of the State or
Territory was made in connection with the prosecution of the person or building
association for an offence.
If any person is entitled to make an application under section 227
in respect of conduct that constitutes a contravention of this Chapter, then no
person is entitled to make an application under Part XA of the Workplace
Relations Act in respect of that conduct.
(1) If:
(a) in an application under section 227 relating to a person’s
or a building association’s conduct, it is alleged that the conduct was,
or is being, carried out for a particular reason or with a particular intent;
and
(b) for the person or building association to carry out the conduct for
that reason or with that intent would constitute a contravention of this
Chapter;
it is presumed, in proceedings under section 227 arising from the
application, that the conduct was, or is being, carried out for that reason or
with that intent, unless the person or building association proves
otherwise.
(2) This section does not apply in relation to the granting of an interim
injunction under section 227.
(1) A person’s rights under this Chapter do not depend on whether
the person is the holder of a conscientious objection certificate in force under
section 180 of Schedule 1B to the Workplace Relations Act.
(2) This section is enacted for the avoidance of doubt.
(1) A person (the first person) must not organise or take
action, or threaten to organise or take action, with intent to coerce another
person (the second person):
(a) to employ, or not employ, a person as a building employee;
or
(b) to engage, or not engage, a person as a building contractor;
or
(c) to allocate, or not allocate, particular responsibilities to a
building employee or building contractor; or
(d) to designate a building employee or building contractor as having, or
not having, particular duties or responsibilities.
Note: Grade A civil penalty.
(2) Subsection (1) does not apply unless:
(a) the first person is an organisation or a constitutional corporation;
or
(b) the second person is a constitutional corporation; or
(c) the conduct occurs in a Territory or Commonwealth place.
(1) A person must not:
(a) take or threaten to take any action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person, or to apply undue pressure to another
person, to agree, or not to agree:
(c) to make, vary or terminate, or extend the nominal expiry date of, a
building agreement under Division 2 or 3 of Part VIB of the Workplace
Relations Act; or
(d) to approve any of the things mentioned in
paragraph (c).
Note: Grade A civil penalty.
(2) Subsection (1) does not apply to action that is protected action
for the purposes of the Workplace Relations Act (as affected by Division 1
of Part 3 of Chapter 6 of this Act).
(3) An employer must not coerce, or attempt to coerce, an employee of the
employer:
(a) not to make a request as mentioned in subsection 170LK(4) of the
Workplace Relations Act in relation to a building agreement that the employer
proposes to make; or
(b) to withdraw such a request.
Note: Grade A civil penalty.
(4) An employer must not apply, or attempt to apply, undue pressure to an
employee of the employer:
(a) not to make a request as mentioned in subsection 170LK(4) of the
Workplace Relations Act in relation to a building agreement that the employer
proposes to make; or
(b) to withdraw such a request.
Note: Grade A civil penalty.
(5) Section 170NC of the Workplace Relations Act does not apply if
the agreement referred to in that section is a building agreement.
(1) A person (the first person) must not discriminate
against another person (the second person) on the ground
that:
(a) the employment of the second person’s building employees is
covered, or is not covered, by:
(i) a particular kind of industrial instrument; or
(ii) an industrial instrument made with a particular person; or
(b) it is proposed that the employment of the second person’s
building employees be covered, or not be covered, by:
(i) a particular kind of industrial instrument; or
(ii) an industrial instrument made with a particular person.
Note: Grade A civil penalty.
(2) Subsection (1) does not apply to conduct that is protected action
for the purposes of the Workplace Relations Act (as affected by Division 1
of Part 3 of Chapter 6 of this Act).
(3) Subsection (1) does not apply to conduct by the first person
if:
(a) the conduct occurs in relation to:
(i) a proposed agreement between the first person and the second person
under which the second person would carry out building work or arrange for
building work to be carried out; or
(ii) a proposed variation of an agreement between the first person and the
second person under which the second person carries out building work or
arranges for building work to be carried out; and
(b) the conduct is engaged in solely for the purpose of encouraging the
second person to have particular eligible conditions in an industrial instrument
that covers employees of the second person.
(4) Subsection (1) does not apply unless:
(a) the industrial instrument referred to in that section is an award,
certified agreement or AWA; or
(b) the first person is an organisation or a constitutional corporation;
or
(c) the second person is a constitutional corporation; or
(d) the conduct occurs in a Territory or Commonwealth place.
(1) A person (the first person) must not:
(a) take, or threaten to take, any action (the relevant
action); or
(b) refrain, or threaten to refrain, from taking action (the
relevant action);
with intent:
(c) to coerce a building employee to nominate a particular superannuation
fund or scheme to receive the employee’s superannuation contributions;
or
(d) to coerce a building employer to pay the employer’s
superannuation contributions in respect of building employees to a particular
superannuation fund or scheme.
Note: Grade A civil penalty.
(2) Subsection (1) does not apply if the relevant action is, or would
be, protected action for the purposes of the Workplace Relations Act (as
affected by Division 1 of Part 3 of Chapter 6).
(3) Subsection (1) does not apply unless:
(a) the first person is an organisation or a constitutional corporation;
or
(b) paragraph (1)(d) applies and the building employer referred to in
that paragraph is a constitutional corporation; or
(c) paragraph (1)(d) applies and the building employer referred to in
that paragraph is the Commonwealth or a Commonwealth authority; or
(d) the relevant action occurs, or would occur, in a Territory or
Commonwealth place.
Sections 127A, 127B and 127C of the Workplace Relations Act apply in
relation to a contract for the performance of building work as if references in
sections 127A and 127B of that Act to the Federal Court included references
to the Federal Magistrates Court.
In addition to the objects set out in section 3, this Chapter has
the following objects:
(a) to establish a framework that balances:
(i) the right of unions to represent their members in the workplace, hold
discussions with potential members and investigate suspected breaches of
industrial laws and industrial instruments; and
(ii) the right of occupiers of premises and employers to conduct their
businesses without undue interference or harassment;
(b) to ensure that permits to enter premises and inspect records are only
held by persons who understand their rights and obligations under this Chapter
and who are fit and proper persons to exercise those rights;
(c) to ensure that occupiers of premises and employers understand their
rights and obligations under this Chapter;
(d) to ensure that permits are suspended or revoked where rights granted
under this Chapter are misused.
In this Chapter, unless the contrary intention appears:
affected employee means:
(a) in relation to the entry onto premises under section 188 to
investigate a suspected breach—an employee for whom all the following are
satisfied:
(i) the employee carries out building work on the premises;
(ii) the employee is a member of the permit holder’s
union;
(iii) the suspected breach relates to, or affects, the employee or the
building work; and
(b) in relation to the entry onto premises under section 197 to hold
discussions—an employee for whom all the following are
satisfied:
(i) the employee carries out building work on the premises;
(ii) the employee is a member of the permit holder’s union or is
eligible to become a member of that union;
(iii) the employee is one of the employees with whom the discussions are
to be held.
affected employer means an employer of affected
employees.
authority documents, in relation to the entry onto premises
by a permit holder, means:
(a) if the permit holder entered the premises in reliance on an entry
notice:
(i) the permit holder’s permit; and
(ii) the entry notice; or
(b) if the permit holder entered the premises in reliance on an exemption
certificate:
(i) the permit holder’s permit; and
(ii) the exemption certificate; or
(c) if the permit holder entered the premises in reliance on an order of
the AIRC:
(i) the permit holder’s permit; and
(ii) the order.
Commonwealth union means a Commonwealth building employee
organisation.
entry notice means an entry notice in the form approved under
section 179.
exemption certificate means an exemption certificate under
section 191.
official, in relation to a union, means an officer or
employee of the union.
permit means a permit under this Chapter.
permit holder means a person who holds a permit under this
Chapter.
permit holder’s union, in relation to a permit, means
the union for which the permit was issued.
State industrial instrument means a State award or a State
employment agreement.
State union means an association of employees, or of
employees and independent contractors:
(a) that is registered or recognised as such under a State industrial law;
and
(b) whose eligibility rules allow building employees to be members of the
association (whether or not those rules also allow other persons to be
members).
union means a Commonwealth union or a State union.
(1) The Registrar must, in writing, approve a form of entry notice for the
purposes of this section.
(2) The form:
(a) must require the following matters to be specified by the person using
the form:
(i) the premises that are proposed to be entered;
(ii) the union in respect of which the relevant entry permit was
issued;
(iii) any other matters prescribed by the regulations; and
(b) must include any other information prescribed by the
regulations.
(3) Subsection (2) does not, by implication, limit the matters that
may be contained in, or required by, the form.
(1) A union may apply to the Industrial Registrar for the issue of a
permit to an official of the union. The application must be in
writing.
(2) The Industrial Registrar may issue a permit to the official named in
the application.
(3) The permit:
(a) must include any conditions that are imposed by the Industrial
Registrar under section 181; and
(b) must include any conditions that are applicable under section 185
at the time of issue.
(4) The regulations may make provision in relation to the following
matters:
(a) the form of an application for a permit;
(b) the declarations and other documents that must accompany the
application;
(c) verification, by statutory declaration, of those documents;
(d) the form of a permit.
Note: Under the Criminal Code and the Statutory
Declarations Act 1959, penalties apply to false statements
etc.
(1) At the time of issuing a permit, the Industrial Registrar may impose
conditions that limit the circumstances in which the permit has
effect.
Note: For example, the conditions could limit the premises
to which the permit applies or the time of day when the permit
operates.
(2) In deciding whether to impose conditions, the Industrial Registrar
must have regard to the matters specified in subsection 182(2).
Official not a fit and proper person
(1) The Industrial Registrar must not issue a permit to an official unless
the Industrial Registrar is satisfied that the official is a fit and proper
person to hold the permit.
(2) For the purposes of subsection (1), the Industrial Registrar must
have regard to the following matters:
(a) whether the official has received appropriate training about the
rights and responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an
industrial law;
(c) whether the official has ever been convicted of an offence against a
law of the Commonwealth, a State, a Territory or a foreign country,
involving:
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional
damage or destruction of property;
(d) whether the official, or any other person, has ever been ordered to
pay a penalty under this Act or any other industrial law in respect of conduct
of the official;
(e) whether any permit issued to the official under this Chapter, or under
the Workplace Relations Act, has been revoked or suspended or made subject to
conditions;
(f) whether a court, or other person or body, under a State industrial
law, has cancelled, suspended or imposed conditions on a right of entry for
industrial purposes that the official had under that law;
(g) whether a court, or other person or body, under a State industrial
law, has disqualified the official from exercising, or applying for, a right of
entry for industrial purposes under that law;
(h) any other matters that the Industrial Registrar considers
relevant.
Banning order or disqualification applies under this
Chapter
(3) The Industrial Registrar must not issue a permit to an
official:
(a) during a disqualification period specified by the Industrial Registrar
under section 184; or
(b) if the issue is prevented by an AIRC order under section 185 or
209.
Disqualification etc. applies under State industrial law
(4) The Industrial Registrar must not issue a permit to an official at a
time when:
(a) a suspension, imposed by a court or other person or body, applies
under a State industrial law to a right of entry for industrial purposes that
the official has under that law; or
(b) a disqualification, imposed by a court or other person or body,
prevents the official from exercising, or applying for, a right of entry for
industrial purposes under a State industrial law.
Unless earlier revoked, a permit expires at the earlier of the following
times:
(a) at the end of the third anniversary of the date of issue; or
(b) when the permit holder ceases to be an official of the union that
applied for the permit.
(1) The ABC Commissioner, or a person prescribed by the regulations, may
apply to the Industrial Registrar to take action under this section against a
permit holder. The application must be made in accordance with the
regulations.
(2) On application made under subsection (1), the Industrial
Registrar may do any of the following in relation to one or more permits held by
the permit holder:
(a) revoke the permit (whether or not the permit is already
suspended);
(b) suspend the permit for a specified period;
(c) impose conditions on the permit (whether or not the permit is already
suspended).
(3) In exercising powers under subsection (2), the Industrial
Registrar must have regard to the matters specified in subsection
182(2).
Industrial Registrar must revoke or suspend in certain
circumstances
(4) If the Industrial Registrar is satisfied that any of the things
mentioned in subsection (5) has happened since the first of the permits was
issued, then the Industrial Registrar must take the following action in relation
to each permit held by the permit holder:
(a) if the permit expires before the end of the minimum disqualification
period—the Industrial Registrar must revoke the permit;
(b) if the permit does not expire before the end of the minimum
disqualification period—the Industrial Registrar must either:
(i) revoke the permit; or
(ii) suspend the permit for a period that does not end earlier than the
end of the minimum disqualification period.
The Industrial Registrar must also specify a disqualification period for
the purposes of section 182. The disqualification period cannot be shorter
than the minimum disqualification period.
(5) The things are:
(a) the permit holder was found, in proceedings under this Act, to have
contravened section 207;
(b) the permit holder, or another person, was ordered to pay a penalty
under this Act in respect of a contravention of this Chapter by the permit
holder;
(c) the permit holder gave an entry notice for frivolous or vexatious
reasons, or in frivolous or vexatious circumstances;
(d) a court, or other person or body, under a State industrial law,
cancelled or suspended a right of entry for industrial purposes that the permit
holder had under that law;
(e) a court, or other person or body, under a State industrial law,
disqualified the permit holder from exercising, or applying for, a right of
entry for industrial purposes under that law;
(f) the permit holder otherwise acted improperly in relation to the
exercise of rights under this Chapter.
Definitions
(6) In this section:
acted improperly includes:
(a) exercising rights under this Chapter in a vexatious, unreasonable or
inappropriate manner; and
(b) making unreasonable, vexatious or inappropriate use of information
obtained by the permit holder as a result of exercising rights under this
Chapter.
minimum disqualification period, in relation to action by the
Industrial Registrar under subsection (4) (the current
action), means:
(a) if the Industrial Registrar has never previously taken action against
the permit holder under that subsection—the period of 3 months starting
when the current action is taken; or
(b) if the Industrial Registrar has previously taken action against the
permit holder under that subsection on only one occasion—the period of 12
months starting when the current action is taken; or
(c) if the Industrial Registrar has previously taken action against the
permit holder under that subsection on at least 2 occasions—the period of
5 years starting when the current action is taken.
(1) If the AIRC is satisfied that a union, or any official of a union, has
abused the rights conferred by this Chapter, then the AIRC may make whatever
orders it considers appropriate to restrict the rights of the union, or
officials of the union, under this Chapter.
(2) The AIRC may make the orders:
(a) of its own motion; or
(b) on application by the ABC Commissioner.
(3) The orders may include:
(a) an order that revokes or suspends some or all of the permits that have
been issued in respect of the union; and
(b) an order that imposes limiting conditions on some or all of the
permits that have been issued in respect of the union or that might in future be
issued in respect of the union; and
(c) an order that bans, for a specified period, the issue of permits in
respect of the union, either generally or to specified persons.
For the purposes of this subsection, limiting condition means
a condition that limits the circumstances in which a permit has
effect.
(4) A union, or an official of a union, who is subject to an order under
this section must comply with the order.
Note: Grade A civil penalty.
(5) The powers of the AIRC under this section are exercisable
by:
(a) the President; or
(b) a Presidential Member assigned by the President for the purposes of
the matter concerned; or
(c) a Full Bench, if the President so directs.
(1) If any of the following happens to a permit, then the permit holder
must within 7 days return the permit to the Industrial Registrar:
(a) the permit is revoked;
(b) the permit expires;
(c) the permit is suspended;
(d) conditions are imposed on the permit after it is issued.
Note: Grade B civil penalty.
(2) In the case of a suspended permit, the Industrial Registrar must, on
application by the permit holder or the permit holder’s union, return the
permit to the permit holder after the end of the suspension period if the
Industrial Registrar is satisfied that the permit is then still in
force.
Note: In the meantime the permit might have been revoked or
might have expired.
If conditions are imposed on a permit by the Industrial Registrar under
section 184 or by the AIRC under section 185, then the permit ceases
to have effect until the Industrial Registrar endorses those conditions on the
permit.
Right of entry for breach of Commonwealth industrial law
etc.
(1) If a permit holder for a Commonwealth union suspects, on reasonable
grounds, that a breach has occurred, or is occurring, of:
(a) this Act or the Workplace Relations Act; or
(b) an award or a certified agreement or an order of the AIRC under this
Act or the Workplace Relations Act, being an award, certified agreement or order
that is binding on the permit holder’s union;
then, for the purpose of investigating the suspected breach, the permit
holder may, during working hours, enter premises if:
(c) building work is being carried out on the premises by one or more
employees who are members of the permit holder’s union; and
(d) the suspected breach relates to, or affects, that building work or any
of those employees.
Right of entry for breach of State industrial law etc.
(2) If a permit holder for a State union suspects, on reasonable grounds,
that a breach has occurred, or is occurring, of:
(a) a State industrial law; or
(b) a State industrial instrument that is binding on the permit
holder’s union;
then, for the purpose of investigating the suspected breach, the permit
holder may, during working hours, enter premises if:
(c) building work is being carried out on the premises by one or more
employees who are members of the permit holder’s union; and
(d) the suspected breach relates to, or affects, that building work or any
of those employees; and
(e) at least one of the following applies:
(i) the employer of the employees is a constitutional
corporation;
(ii) the premises are in a Territory or Commonwealth place.
(1) This section applies if a permit holder has entered premises under
section 188 for the purpose of investigating a suspected breach.
Inspection of work etc. and interviewing employees
(2) While on the premises, the permit holder may, for the purpose of
investigating the suspected breach:
(a) during working hours, inspect or view any work, material, machinery,
or appliance, that is relevant to the suspected breach; and
(b) during working hours, interview the following persons about the
suspected breach:
(i) employees who are members of the permit holder’s union;
or
(ii) employees who are eligible to become members of the permit
holder’s union.
(3) For the avoidance of doubt, a refusal or failure by a person to
participate in an interview under this section is not to be treated as conduct
covered by section 149.1 of the Criminal Code.
Inspection of records while on the premises
(4) While on the premises, the permit holder may, for the purpose of
investigating the suspected breach, require an affected employer to allow the
permit holder, during working hours, to inspect and make copies of, any records
relevant to the suspected breach (other than non-member records) that:
(a) are kept on the premises by the employer; or
(b) are accessible from a computer that is kept on the premises by the
employer.
Inspection of records at later time
(5) The permit holder may, for the purpose of investigating the suspected
breach, by notice in writing, require an affected employer, on a later day or
days specified in the notice:
(a) to produce, or allow access to, all records, or particular records,
relevant to the suspected breach (other than non-member records), either at the
premises or at another place that is agreed between the permit holder and the
employer; and
(b) to allow the permit holder, during working hours, to inspect and make
copies of, any of those records.
The permit holder may give the notice while on the premises or within 5
days after the day on which the permit holder entered the premises.
(6) A day specified in a notice to an employer under subsection (5)
cannot be earlier than 14 days after the notice is given to the
employer.
(7) Before issuing a requirement to an affected employer under
subsection (4) or (5), the permit holder must produce the permit
holder’s authority documents for inspection by the employer.
(8) If a permit holder:
(a) has given a notice to an employer under subsection (5) requiring
the employer to produce, or allow access to, records at the premises;
and
(b) has given a copy of the notice to the ABC Commissioner;
then the permit holder is entitled to enter the premises during working
hours for the purpose of inspecting and copying the records in accordance with
the notice.
Application to AIRC for access to non-member records
(9) The permit holder may, for the purposes of investigating the suspected
breach, apply to the AIRC for either or both of the following orders:
(a) an order to allow the permit holder to enter the premises and to
inspect and make copies of non-member records that are relevant to the suspected
breach;
(b) an order to require an affected employer to produce, or allow access
to, such records for inspection and copying.
(10) The AIRC may make such an order if it is satisfied that the order is
necessary to investigate the suspected breach. Before doing so, the AIRC must
have regard to the conditions (if any) that apply to the permit holder’s
permit.
(11) An application for an order under subsection (9):
(a) must be in accordance with the regulations; and
(b) must set out the grounds on which the application is made.
Definitions
(12) In this section:
non-member record means a record that:
(a) relates to the employment of a person who is not a member of the
permit holder’s union; and
(b) does not also relate to the employment of a person who is a member of
the permit holder’s union.
record relevant to the suspected breach means a
record:
(a) that is relevant to the suspected breach; and
(b) that is of the following kind:
(i) a time sheet;
(ii) a pay sheet;
(iii) any other record or document, other than an AWA, an ancillary
document (within the meaning of Part VID of the Workplace Relations Act) or
a record or document that shows some or all of the content of an AWA or of an
ancillary document.
(1) Section 188 does not authorise entry to premises
unless:
(a) the conditions in subsection (2) of this section are satisfied;
or
(b) the conditions in subsection (3) of this section are
satisfied.
(2) The conditions are that:
(a) the permit holder gave an entry notice to the occupier of the premises
at least 24 hours, but not more than 14 days, before the entry; and
(b) the permit holder gave a copy of the entry notice to the ABC
Commissioner at least 24 hours, but not more than 14 days, before the entry;
and
(c) the entry notice specifies section 188 as the section that
authorises the entry; and
(d) the entry notice specifies particulars of the suspected breach or
breaches; and
(e) the entry is on a day specified in the entry notice.
(3) The conditions are:
(a) the entry is on a day specified in an exemption certificate under
section 191 and the premises are the premises specified in the exemption
certificate; and
(b) the permit holder gave a copy of the exemption certificate to the
occupier of the premises not more than 14 days before the entry; and
(c) the permit holder gave a copy of the exemption certificate to the ABC
Commissioner not more than 14 days before the entry.
(4) Conduct after entry is not authorised by section 189 unless the
conduct is for the purpose of investigating a suspected breach identified in the
permit holder’s authority documents.
(1) A union may apply to the Industrial Registrar for an exemption
certificate in respect of the entry onto premises under section 188 to
investigate a suspected breach.
(2) If the Industrial Registrar is satisfied that there are reasonable
grounds for believing that advance notice of entry onto the premises under
section 188 might result in the destruction, concealment or alteration of
relevant evidence, then the Industrial Registrar must issue an exemption
certificate in respect of entry onto those premises.
(3) An exemption certificate must:
(a) specify the premises to which it applies; and
(b) specify the union to which it relates; and
(c) specify the day or days on which it operates; and
(d) specify particulars of the suspected breach or breaches to which it
relates; and
(e) specify section 188 as the section that authorises the
entry.
(4) The regulations may make provision in relation to the following
matters:
(a) the form of an application for an exemption certificate;
(b) the form of an exemption certificate.
(1) This Part does not authorise a permit holder to enter, or remain on,
premises if the permit holder fails to produce the permit holder’s
authority documents for inspection when requested to do so by an affected
employer or by the occupier of the premises.
(2) This Part does not authorise a permit holder to enter, or remain on,
premises if:
(a) an affected employer or the occupier of the premises requests the
permit holder to comply with an occupational health and safety requirement that
applies to the premises; and
(b) the request is a reasonable request; and
(c) the permit holder fails to comply with the request.
(3) This Part does not authorise a permit holder to enter, or remain on,
premises if:
(a) an affected employer or the occupier of the premises asks the permit
holder to do either or both of the following:
(i) to conduct interviews in a particular room or area of the
premises;
(ii) to take a particular route to reach a particular room or area of the
premises; and
(b) the request is a reasonable request; and
(c) the permit holder fails to comply with the request.
Note: The AIRC may make an order under section 206 if
the request is unreasonable.
(4) For the purposes of subsection (3), if an affected employer or
the occupier requests the permit holder to hold discussions in a particular room
or area, or to take a particular route to reach a particular room or area, the
request is not unreasonable only because it is not the room, area or route that
the permit holder would have chosen.
This Part does not authorise a person to enter any part of premises that
is used for residential purposes.
(1) A permit holder’s rights under this Part in respect of a permit
are subject to any conditions that apply to the permit.
(2) Subsection (1) does not apply to rights of a permit holder under
an order by the AIRC under section 189.
If a person:
(a) is authorised by section 188 to enter premises to investigate a
suspected breach and to do other things for the purpose of investigating the
suspected breach; or
(b) would be so authorised if:
(i) the person held a permit that is not subject to any conditions;
and
(ii) sections 190, 192 and 193 were omitted;
then the person has no right under any other industrial law (other than an
OHS law), or any State industrial instrument, to enter those premises to
investigate that suspected breach or to do those other things for the purpose of
investigating the suspected breach.
Whenever it is relevant to determine whether a permit holder had
reasonable grounds for suspecting a breach, as mentioned in section 188,
the burden of proving the existence of reasonable grounds lies on the person
asserting the existence of those grounds.
Employees covered by Commonwealth industrial instrument
(1) A permit holder for a Commonwealth union may enter premises for the
purposes of holding discussions with any eligible employees who wish to
participate in those discussions. For this purpose, eligible
employee means any employee who:
(a) on the premises, carries out building work that is covered by an
award, or certified agreement, that is binding on the permit holder’s
union; and
(b) is a member of the permit holder’s union or is eligible to
become a member of that union.
Employees covered by State industrial instrument
(2) A permit holder for a State union may enter premises for the purposes
of holding discussions with any eligible employees who wish to participate in
those discussions. For this purpose, eligible employee means any
employee who:
(a) on the premises, carries out building work that is covered by a State
industrial instrument that is binding on the permit holder’s union;
and
(b) is a member of the permit holder’s union or is eligible to
become a member of that union.
(3) Subsection (2) does not authorise the permit holder to enter
premises unless at least one of the following paragraphs applies:
(a) the employer of the employees is a constitutional corporation and the
proposed discussions relate to employment issues or industrial issues;
(b) the premises are in a Territory or Commonwealth place.
The permit holder may only enter the premises under section 197
during working hours and may only hold the discussions during the
employees’ meal-time or other breaks.
This Part does not authorise entry to premises, or subsequent conduct on
the premises, if all of the following conditions are satisfied:
(a) no more than 20 employees are employed to work at the
premises;
(b) all the employees at the premises are employed by an employer who is
the holder of a conscientious objection certificate in force under
section 180 of Schedule 1B to the Workplace Relations Act, that has
been endorsed by a Registrar as provided in section 285C of the Workplace
Relations Act;
(c) none of the employees employed at the premises is a member of a
union.
(1) This Part does not authorise entry to premises, or subsequent conduct
on the premises, unless all the following conditions are satisfied:
(a) the permit holder gave an entry notice to the occupier of the premises
at least 24 hours, but not more than 14 days, before the entry;
(b) the permit holder gave a copy of the entry notice to the ABC
Commissioner at least 24 hours, but not more than 14 days, before the
entry;
(c) the entry notice specifies section 197 as the section that
authorises the entry;
(d) the entry is on a day specified in the entry notice.
(2) This Part does not authorise entry to premises, or subsequent conduct
on the premises, if:
(a) the conduct is for the purposes of recruitment, but the entry notice
does not specify recruitment as a purpose of entry; or
(b) the conduct is for the purposes of recruitment and a permit holder for
the union entered the premises in the preceding 6 months for that
purpose.
(3) In this section:
recruitment means encouraging employees to become members of
the permit holder’s union.
This Part does not authorise a person to enter any part of premises that
is used for residential purposes.
(1) This Part does not authorise a permit holder to enter, or remain on,
premises if the permit holder fails to produce the permit holder’s
authority documents for inspection when requested to do so by an affected
employer or by the occupier of the premises.
(2) This Part does not authorise a permit holder to enter, or remain on,
premises if:
(a) an affected employer or the occupier of the premises requests the
permit holder to comply with an occupational health and safety requirement that
applies to the premises; and
(b) the request is a reasonable request; and
(c) the permit holder fails to comply with the request.
(3) This Part does not authorise a permit holder to enter, or remain on,
premises if:
(a) an affected employer or the occupier of the premises asks the permit
holder to do either or both of the following:
(i) to hold discussions in a particular room or area of the
premises;
(ii) to take a particular route to reach a particular room or area of the
premises; and
(b) the request is a reasonable request; and
(c) the permit holder fails to comply with the request.
Note: The AIRC may make an order under section 206 if
the request is unreasonable.
(4) For the purposes of subsection (3), if an affected employer or
the occupier requests the permit holder to hold discussions in a particular room
or area, or to take a particular route to reach a particular room or area, the
request is not unreasonable only because it is not the room, area or route that
the permit holder would have chosen.
A permit holder’s rights under this Part in respect of a permit are
subject to any conditions that apply to the permit.
If a person:
(a) is authorised by this Part to enter premises and hold discussions with
employees (either generally or in relation to particular matters); or
(b) would be so authorised if:
(i) the person held a permit that is not subject to any conditions;
and
(ii) sections 198, 199, 200, 201 and 202 were omitted;
then the person has no right under any other industrial law (other than an
OHS law), or any State industrial instrument, to enter those premises and hold
those discussions with those employees.
(1) A permit holder exercising, or seeking to exercise, rights under
section 188, 189 or 197 must not intentionally hinder or obstruct any
person, or otherwise act in an improper manner.
Note: Grade A civil penalty.
(2) A person must not refuse or unduly delay entry to premises by a permit
holder who is entitled to enter the premises under section 188, subsection
189(8) or (9) or section 197.
Note: Grade A civil penalty.
(3) An employer must not refuse or fail to comply with a requirement under
subsection 189(4) or (5).
Note: Grade A civil penalty.
(4) A person must not otherwise intentionally hinder or obstruct a permit
holder exercising rights under section 188, 189 or 197.
Note: Grade A civil penalty.
(5) To avoid doubt, a failure to agree on a place as mentioned in
paragraph 189(5)(a) does not constitute hindering or obstructing a permit holder
exercising rights under section 189.
(6) Without limiting subsection (4), that subsection:
(a) extends to hindering or obstructing that occurs after the entry notice
is given but before the permit holder enters the premises; and
(b) applies whether or not the person who is hindering or obstructing
knows at the time which permit holder will be exercising the rights in respect
of the entry notice.
Note: For example, if an entry notice is given to the
occupier and a person then destroys, conceals or manufactures evidence relating
to the suspected breach, that conduct would amount to hindering or
obstructing.
(1) If the AIRC is satisfied that:
(a) an affected employer or the occupier of premises has made a request to
a permit holder as mentioned in section 192 or 202; and
(b) the request is not a reasonable request;
then the AIRC may make whatever orders it considers appropriate in respect
of the rights of the union, or officials of the union, to investigate breaches
as mentioned in section 188, or to hold discussions with employees as
mentioned in section 197, as the case requires.
Note: Unreasonable requests might amount to a breach of
subsection 205(4).
(2) Without limiting subsection (1), the AIRC may order that, for a
specified period, the permit holder who was exercising or seeking to exercise
rights under section 189 or 197 is entitled to enter specified premises, or
a specified part of specified premises, for a specified period, and exercise
those rights.
(3) The powers of the AIRC under this section are exercisable
by:
(a) the President; or
(b) a Presidential Member assigned by the President for the purposes of
the matter concerned; or
(c) a Full Bench, if the President so directs.
(4) The AIRC may make an order under this section of its own motion or on
application in accordance with the regulations.
(1) A person must not, in the circumstances mentioned in
subsection (2), engage in conduct:
(a) with the intention of giving a second person the impression;
or
(b) reckless as to whether a second person would get the
impression;
that the first person, or a third person, is authorised by this Chapter to
do a particular thing.
Note: Grade A civil penalty.
(2) The circumstances are that:
(a) the first person or the third person (as the case requires) is not
authorised by this Chapter to do that thing; and
(b) the first person knows, or has reasonable grounds to believe, that the
first person or the third person (as the case requires) is not authorised by
this Chapter to do that thing.
Before the Industrial Registrar exercises any powers under this Chapter
on the application of someone other than the ABC Commissioner, the Industrial
Registrar must give the ABC Commissioner an opportunity to be heard on the
matter.
(1) In spite of section 51, the AIRC may exercise its powers under
Part VI of the Workplace Relations Act to prevent and settle industrial
disputes about the operation of this Chapter, but must not make an order for
that purpose conferring rights that are additional to, or inconsistent with,
rights exercisable under this Chapter.
(2) However, the AIRC does have power, for the purpose of preventing or
settling the industrial dispute, to:
(a) revoke or suspend a permit issued to a person under this Chapter;
or
(b) impose limiting conditions on a permit issued to a person under this
Chapter.
If the AIRC does so, it may make any order that it considers appropriate,
for the purpose of preventing or settling the industrial dispute, about the
issue of any further permit to the person, or of any permit or further permit to
any other person, under this Chapter.
(3) In this section:
limiting condition means a condition that limits the
circumstances in which a permit has effect.
(1) A Commonwealth building organisation must not make a membership
deduction out of money it holds on behalf of a member unless:
(a) the member has given a written consent to the organisation in the
prescribed form and that consent covers the deduction concerned; and
(b) the consent was given not more than 12 months before the deduction is
made; and
(c) the deduction, when added to other membership deductions previously
made by the organisation in relation to the member during the consent period,
would not be more than the annual rate of membership fees applicable to the
member at the time the consent was given.
Note: Grade A civil penalty.
(2) In this section:
consent period means the period of 12 months starting when
the consent is given.
membership deduction means a deduction in respect of an
amount that the member owes to the organisation in relation to the
member’s membership.
(1) If, at the end of a financial year, a Commonwealth building
organisation holds any money on behalf of a member or members of the
organisation, then the organisation must lodge a statement in the Industrial
Registry and with the ABC Commissioner within 90 days after the end of the
financial year. The statement must set out the total amount so held at the end
of the financial year.
Note: Grade B civil penalty.
(2) A statement lodged in the Industrial Registry may be inspected at any
registry, during office hours, by a member of the organisation.
(3) In this section:
financial year, in relation to an organisation, has the same
meaning as in Schedule 1B to the Workplace Relations Act.
(1) If a Commonwealth building organisation receives any donation greater
than $500 in a financial year, then the organisation must lodge a statement in
the Industrial Registry and with the ABC Commissioner within 90 days after the
end of the financial year.
Note: Grade B civil penalty.
(2) The statement must set out the following details for each donation
greater than $500 that was received by the organisation during the financial
year:
(a) the amount of the donation;
(b) the date on which the donation was received;
(c) the name and address of the donor;
(d) the reason or reasons why the donor made the donation;
(e) if the donor indicated that the donation was made for the benefit of a
particular branch of the organisation—the name of that branch.
(3) The organisation does not contravene subsection (1) by omitting
details required by paragraph (2)(c) or (d) if the organisation proves that
it could not find out the details, after having made reasonable
inquiries.
(4) A statement lodged in the Industrial Registry may be inspected at any
registry, during office hours, by a member of the organisation.
(5) Within 90 days after the end of each year ending on 30 June, the
Industrial Registrar must give the Minister and the ABC Commissioner a report
about the statements lodged in the Industrial Registry under this section during
that year. For each such statement, the Industrial Registrar’s report must
detail the extent to which the statement complies with this section.
(6) In this section:
financial year, in relation to an organisation, has the same
meaning as in Schedule 1B to the Workplace Relations Act.
(1) If:
(a) a person (the requester) requests another person (the
donor) to make a donation greater than $500 to the requester or to
someone else; and
(b) the requester is acting on behalf of a Commonwealth building
organisation; and
(c) at the time of the request, the donor is involved in building work as
a building client, building employer or building contractor (whether or not the
work has actually begun); and
(d) if the organisation is a Commonwealth building employee
organisation—some or all of the building work is being done, will be done,
or could be done, by persons who are members of the organisation or are eligible
to be members of the organisation; and
(e) if the organisation is a Commonwealth building employer
organisation—some or all of the building work is being done, will be done,
or could be done, by persons who are employed or engaged by persons who are
members of the organisation or are eligible to be members of the organisation;
and
(f) at the time of the request, the donor knows that the circumstances in
paragraphs (b) to (e) apply;
then the donor must give the ABC Commissioner written notice of the request
within 30 days after the request is made.
Note: Grade B civil penalty.
(2) The notice must specify the date of the request, the amount (or
minimum amount) requested and the name of the Commonwealth building
organisation.
(3) In this section:
building client means 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.
(1) For building reporting units, the Industrial Registrar must make
additional guidelines under section 255 of Schedule 1B to the
Workplace Relations Act.
(2) The additional guidelines must require the reporting unit to
disclose:
(a) commissions and other economic benefits received or receivable by the
reporting unit; and
(b) commissions and other economic benefits received or receivable by an
officer or employee of the reporting unit (in that capacity); and
(c) commissions and other economic benefits received or receivable by, or
paid or payable by:
(i) an entity that is controlled by the reporting unit; or
(ii) an entity that is controlled by a person in the capacity of an
officer or employee of the reporting unit, where that control is:
(A) for the benefit of the reporting unit or another reporting unit of the
organisation concerned; or
(B) to assist in the activities of the reporting unit or another reporting
unit of the organisation concerned; or
(C) for the benefit of an officer, employee or member of the reporting
unit or an officer, employee or member of another reporting unit of the
organisation concerned; or
(D) to assist in the activities of an officer, employee or member of the
reporting unit or an officer, employee or member of another reporting unit of
the organisation concerned.
(3) The additional guidelines must also provide the manner in which those
commissions and other economic benefits must be disclosed.
(4) The additional guidelines cannot require a reporting unit to disclose
information under paragraph (2)(c) if the disclosure of the information to
the reporting unit by the entity referred to in that paragraph would contravene
any law of the Commonwealth or of a State or Territory.
(5) Section 254 of Schedule 1B to the Workplace Relations Act
has effect in relation to a building reporting unit as if that section also
required the reporting unit to give details of:
(a) each entity in which the reporting unit has a financial interest;
and
(b) each entity in which an officer, employee or member of the reporting
unit holds a position as a trustee or director, where one of the criteria for
holding the position is that the person is an officer, employee or member of an
organisation; and
(c) each entity that is controlled by the reporting unit; and
(d) each entity that is controlled by a person acting in the capacity of
an officer or employee of the reporting unit.
(6) Within 90 days after the end of each year ending on 30 June, the
Industrial Registrar must give the Minister and the ABC Commissioner a report
about:
(a) reports lodged in that year by a building reporting unit under
section 268 of Schedule 1B to the Workplace Relations Act;
and
(b) reports received in that year by the Industrial Registrar from a
building reporting unit under section 270 of Schedule 1B to the
Workplace Relations Act.
For each such report, the Industrial Registrar’s report must detail
the extent to which the report complies with Schedule 1B to the Workplace
Relations Act (as modified by subsection (1) of this section).
(7) In this section:
building reporting unit means a reporting unit within the
meaning of section 242 of Schedule 1B to the Workplace Relations Act,
where the organisation is a Commonwealth building organisation.
(8) For the purposes of this section, a person or reporting unit
controls an entity if the person or reporting unit has the
capacity to dominate decision-making, directly or indirectly, in relation to the
financial and operating policies of the entity so as to enable the entity to
operate with the person or reporting unit in achieving the objectives of the
person or reporting unit.
(1) This section applies if:
(a) a court has made an order (the payment order) under
which a Commonwealth building organisation has been ordered to pay unlawful
action damages to a person by a specified date; and
(b) the damages are not paid in full by that date.
(2) The ABC Commissioner may apply to the Industrial Registrar for the
issue of a deregistration certificate. The application must be accompanied by a
copy of the payment order together with evidence that paragraph (1)(b)
applies.
(3) If the ABC Commissioner applies in accordance with
subsection (2), then the Industrial Registrar must immediately issue a
certificate (a deregistration certificate) in respect of the
organisation and cause the certificate to be served on the organisation in
accordance with the regulations.
(4) The Industrial Registrar cannot issue a deregistration
certificate:
(a) at a time when an appeal is pending against the payment order;
or
(b) at a time when a person has a right to lodge such an appeal,
disregarding:
(i) a right that arose because the person was granted an extension of time
for lodging an appeal; and
(ii) a right that depends on the person being granted leave to appeal or
being granted an extension of time for lodging an appeal.
(5) If an appeal against the payment order is lodged after the issue of
the deregistration certificate but before the registration is cancelled under
this section, then the deregistration certificate is treated as never having
been issued.
(6) Subject to subsections (7) and (8), the organisation’s
registration is cancelled by force of this subsection at the end of the 14th day
after the day of service of the certificate, unless the unlawful action damages
have been paid in full before the end of that 14th day.
(7) The cancellation cannot take effect at the end of that 14th day if, at
the end of that 14th day, an appeal is pending in relation to the issue of the
certificate.
(8) If:
(a) subsection (7) prevented the cancellation taking effect at the
end of the 14th day; and
(b) at the end of a later day, there is no longer any appeal pending in
relation to the issue of the certificate; and
(c) the issue of the certificate has not been overturned on
appeal;
then the cancellation takes effect at the end of that later day.
(9) In subsections (7) and (8), appeal
includes:
(a) an appeal under section 81 of the Workplace Relations Act;
and
(b) an application to the High Court under paragraph 75(v) of the
Constitution; and
(c) an application to the Federal Court under section 39B of the
Judiciary Act 1903.
(10) Section 32 of Schedule 1B to the Workplace Relations Act
applies in relation to the deregistration in the same way as it applies to a
deregistration under that Schedule.
Note: That section deals with the consequences of
deregistration.
(1) Section 28 of Schedule 1B to the Workplace Relations Act
applies in relation to a Commonwealth building organisation as if subsection
28(1) of that Schedule included the ground that:
(a) the organisation; or
(b) a substantial number of the members of the organisation; or
(c) a section or class of members of the organisation;
has or have failed to comply with an injunction, or an interim injunction,
granted under this Act.
(2) A finding of fact by the Federal Court in proceedings under this Act
for an injunction, or an interim injunction, is admissible as prima facie
evidence of that fact in an application that is made under section 28 of
Schedule 1B to the Workplace Relations Act on the ground mentioned in
subsection (1) of this section.
(1) On application by the ABC Commissioner, the Federal Court may make an
order mentioned in paragraph (2)(a), with or without an order mentioned in
paragraph (2)(b), in relation to a person who:
(a) has been found, in other proceedings, to have contravened:
(i) a civil penalty provision in this Act; or
(ii) a civil penalty provision in the Workplace Relations Act (whether or
not the contravention relates to building work); or
(b) under a State industrial law, has at any time been disqualified by a
court or other body from holding office in an industrial association.
(2) The orders are:
(a) an order that a specified disqualification period applies to the
person; and
(b) an order directing the person, during the disqualification period, not
to engage in specified conduct in relation to any Commonwealth building
organisation.
(3) In exercising its powers under this section, the Court must have
regard to the following matters:
(a) the nature of the contravention referred to in paragraph (1)(a),
or the reasons for the disqualification referred to in paragraph (1)(b), as
the case requires;
(b) the circumstances of, and the nature of the person’s involvement
in, that contravention or disqualification;
(c) the general character of the person;
(d) the fitness of the person to be involved in the management of
Commonwealth building organisations, having regard to the matter in
paragraph (1)(a) or paragraph (1)(b), as the case requires;
(e) any other matter that, in the Court’s opinion, is
relevant.
(4) If the Court orders a disqualification period, then:
(a) if the person holds any office in a Commonwealth building
organisation—the person ceases to hold that office at the start of the
disqualification period; and
(b) during the disqualification period, the person is not eligible to be a
candidate for election, or to be elected or appointed, to an office in any
Commonwealth building organisation.
(1) If:
(a) a court makes an order (the original order) under
section 227 requiring a Commonwealth building organisation to pay unlawful
action damages (the judgment debt) to a person (the judgment
creditor) by a specified date; and
(b) the damages are not paid in full by the specified date; and
(c) either before or after the time of the original order, the
organisation entered into a transaction (the designated
transaction):
(i) with intent to defeat one or more creditors of the organisation;
or
(ii) with reckless disregard of the interests of one or more creditors of
the organisation;
then the Federal Court, on application by the judgment creditor, may make
an order directing a person (the beneficiary) to pay to the
judgment creditor, in satisfaction of the unsatisfied amount of the judgment
debt, an amount not exceeding an amount that, in the Court’s opinion,
fairly represents some or all of the benefits that the beneficiary has received
because of the designated transaction.
(2) The Court cannot make an order under this section if it is satisfied
that the organisation itself is able to discharge the judgment debt.
(3) The Court cannot make an order under this section materially
prejudicing a right or interest of a person who was not a party to the
designated transaction if it is proved that:
(a) the person received no benefit because of the transaction;
or
(b) in relation to each benefit that the person received because of the
transaction:
(i) the person received the benefit in good faith; and
(ii) at the time of receiving the benefit, the person did not suspect, and
had no reasonable grounds for suspecting, that the transaction was entered into
by the organisation in the manner mentioned in paragraph (1)(c).
(4) The Court cannot make an order under this section materially
prejudicing a right or interest of a party to the designated transaction if it
is proved that:
(a) the person became a party in good faith; and
(b) at the time of becoming a party, the person did not suspect, and had
no reasonable grounds for suspecting, that the transaction was entered into by
the organisation in the manner mentioned in paragraph (1)(c); and
(c) the person provided valuable consideration under the transaction or
changed the person’s position in reliance on the transaction.
(5) If a person is required to pay an amount under this section, then the
person has the right (by force of this section) to recover that amount as a debt
from the organisation.
(6) In this section:
creditor includes a person who could reasonably have been
foreseen by the organisation as being reasonably likely to become a creditor of
the organisation.
(1) Subject to this Chapter and subsection 151(6) of Schedule 1B to
the Workplace Relations Act, the AIRC may, on the application of an eligible
person, make the following orders in relation to a demarcation dispute that
relates to building employees (whether or not the dispute also relates to other
employees):
(a) an order that an employee organisation is to have the right, to the
exclusion of another employee organisation or other employee organisations, to
represent under this Act or the Workplace Relations Act the industrial interests
of a particular class or group of employees who are eligible for membership of
the organisation;
(b) an order that an employee organisation that does not have the right to
represent under this Act or the Workplace Relations Act the industrial interests
of a particular class or group of employees is to have that right;
(c) an order that an employee organisation is not to have the right to
represent under this Act or the Workplace Relations Act the industrial interests
of a particular class or group of employees who are eligible for membership of
the organisation.
(2) On application by an eligible person, the AIRC may set aside, revoke
or vary an order made under subsection (1).
(3) In this section:
eligible person means any of the following:
(a) an organisation;
(b) an employer;
(c) the Minister;
(d) the ABC Commissioner;
(e) any person who is, or is likely to be, adversely affected (whether
directly or indirectly) by the demarcation dispute.
The AIRC must not make an order unless the AIRC is satisfied
that:
(a) the conduct, or threatened conduct, of an employee organisation to
which the order would relate, or of an officer, member or employee of the
organisation:
(i) is preventing, obstructing or restricting the performance of work;
or
(ii) is causing financial harm to any person, whether directly or
indirectly; or
(b) the consequences referred to in subparagraph (a)(i) or
(ii):
(i) have ceased, but are likely to recur; or
(ii) are imminent;
as a result of such conduct or threatened conduct.
In considering whether to make an order under section 219, the AIRC
must have regard to the wishes of the employees who are affected by the dispute
and, where the AIRC considers it appropriate, must also have regard
to:
(a) the effect of any order on the operations (including operating costs,
work practices, efficiency and productivity) of an employer who is a party to
the dispute or who is a member of an organisation that is a party to the
dispute; and
(b) any agreement or understanding of which the AIRC becomes aware that
deals with the right of an employee organisation to represent under this Act or
the Workplace Relations Act the industrial interests of a particular class or
group of employees; and
(c) the consequences of not making an order for any employer, employees or
organisation involved in the dispute; and
(d) any other order made by the AIRC, in relation to another demarcation
dispute involving the employee organisation to which the order under this
section would relate, that the AIRC considers to be relevant.
Note: Under section 135 of the Workplace Relations Act,
the AIRC may order that a vote of the members of an organisation concerned in
the dispute be taken by secret ballot for the purpose of finding out their
attitudes to the dispute.
The order may be subject to conditions or limitations.
(1) An employee organisation to which the order applies must comply with
the order.
Note: Grade A civil penalty.
(2) The Federal Court may, on application by the Minister, the ABC
Commissioner or a person affected by an order made under section 219, make
such orders as it thinks fit to ensure compliance with that order.
The powers of the AIRC under this Chapter are exercisable only by a Full
Bench or Presidential Member.
If an order can be made under this Chapter in relation to a demarcation
dispute, then an order cannot be made in relation to that dispute under
Chapter 4 of Schedule 1B to the Workplace Relations Act.
(1) In this Part, unless the contrary intention appears:
appropriate court means:
(a) for a contravention of section 74—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; or
(b) for any other contravention—the Federal Court.
pecuniary penalty order means an order under paragraph
227(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.
(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:
(a) for a Grade A civil penalty provision—1,000 penalty units if the
defendant is a body corporate and otherwise 200 penalty units; and
(b) for a Grade B civil penalty provision—100 penalty units if the
defendant is a body corporate and otherwise 20 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) If the contravention is a contravention of section 74, then 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.
(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 ABC Commissioner;
(b) a person affected by the contravention;
(c) a person prescribed by the regulations for the purposes of this
paragraph.
(7) A regulation prescribing persons for the purposes of
paragraph (6)(c) may provide that a person is prescribed only in relation
to circumstances specified in the regulation.
(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.
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.
ABC Commissioner may require information, documents etc.
(1) If the ABC Commissioner believes on reasonable grounds that a
person:
(a) has information or documents relevant to an investigation;
or
(b) is capable of giving evidence that is relevant to an
investigation;
the ABC Commissioner may, by written notice given to the person, require
the person:
(c) to give the information to the ABC Commissioner, or to an assistant,
by the time, and in the manner and form, specified in the notice; or
(d) to produce the documents to the ABC Commissioner, or to an assistant,
by the time, and in the manner, specified in the notice; or
(e) to attend before the ABC Commissioner, or an assistant, at the time
and place specified in the notice, and answer questions relevant to the
investigation.
(2) The time specified under paragraph (1)(c), (d) or (e) must be at
least 14 days after the notice is given.
Legal representation
(3) A person attending before the ABC Commissioner, or before an
assistant, as mentioned in paragraph (1)(e) may, if the person so chooses,
be represented by a person who, under the Judiciary Act 1903, is entitled
to practise as a barrister or solicitor, or both, in a federal court.
Oath or affirmation
(4) The ABC Commissioner, or an assistant, may require the information or
answers to be verified by, or given on, oath or affirmation, and either orally
or in writing. For that purpose, the ABC Commissioner, or an assistant, may
administer the oath or affirmation.
(5) The oath or affirmation is an oath or affirmation that the information
or answers are or will be true.
Offence
(6) A person commits an offence if:
(a) the person has been given a notice under subsection (1);
and
(b) the person fails:
(i) to give the required information by the time, and in the manner and
form, specified in the notice; or
(ii) to produce the required documents by the time, and in the manner,
specified in the notice; or
(iii) to attend to answer questions at the time and place specified in the
notice; or
(iv) to take an oath or make an affirmation, when required to do so under
subsection (4); or
(v) to answer questions relevant to the investigation while attending as
required by the notice.
Penalty: Imprisonment for 6 months.
Effect of other laws
(7) The operation of this section is not limited by any secrecy provision
of any other law (whether enacted before or after the commencement of this
section), except to the extent that the secrecy provision expressly excludes the
operation of this section. For this purpose, secrecy provision
means a provision that prohibits the communication or divulging of
information.
Definitions
(8) In this section:
assistant means:
(a) a Deputy ABC Commissioner; or
(b) an ABC inspector; or
(c) a person referred to in subsection 25(1) or (3) who is assisting the
ABC Commissioner.
investigation means an investigation by the ABC Commissioner
into a contravention, by a building industry participant, of a designated
building law.
Excuses that are not available
(1) A person is not excused from giving information, producing a document,
or answering a question, under section 230 on the ground that to do
so:
(a) would contravene any other law; or
(b) might tend to incriminate the person or otherwise expose the person to
a penalty or other liability; or
(c) would be otherwise contrary to the public interest.
Use/derivative use indemnity
(2) However, neither:
(a) the information or answer given or the document produced;
nor
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or answer or producing the
document;
is admissible in evidence against the person in proceedings, other
than:
(c) proceedings for an offence against subsection 230(6); or
(d) proceedings for an offence against section 137.1 or 137.2 of the
Criminal Code that relates to this Act; or
(e) proceedings for an offence against section 149.1 of the
Criminal Code that relates to this Act.
A person who, in good faith:
(a) gives information; or
(b) produces a document; or
(c) answers a question;
when requested or required to do so under section 230 is not liable
to:
(d) any proceedings for contravening any other law because of that
conduct; or
(e) civil proceedings for loss, damage or injury of any kind suffered by
another person because of that conduct.
ABC Commissioner may keep documents
(1) The ABC Commissioner may take possession of a document produced under
section 230 and keep it for as long as is necessary for the purposes of
conducting the investigation to which the document is relevant.
Certified copy to be supplied to person entitled to
document
(2) The person otherwise entitled to possession of the document is
entitled to be supplied, as soon as practicable, with a copy that is certified,
by one of the following persons, to be a true copy:
(a) the ABC Commissioner;
(b) a Deputy ABC Commissioner;
(c) an ABC inspector;
(d) a person referred to in subsection 25(1) or (3) who is assisting the
ABC Commissioner.
Certified copy to be treated as original
(3) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
Right to inspect and copy the original
(4) Until a certified copy is supplied, the ABC Commissioner must, at such
times and places as the ABC Commissioner considers appropriate, permit the
person otherwise entitled to possession of the document (or a person authorised
by that person) to inspect and make copies of all or part of the
document.
The ABC Commissioner may make and keep copies of all or part of any
documents produced under section 230.
(1) The ABC Commissioner may, by written instrument, appoint any of the
following persons as an Australian Building and Construction Inspector
(ABC Inspector):
(a) a person who is an employee of the Commonwealth or who holds an office
or appointment under a law of the Commonwealth;
(b) a person who is an employee of a State or Territory or who holds an
office or appointment under a law of a State or Territory;
(c) a consultant engaged by the ABC Commissioner under
section 25.
(2) The ABC Commissioner must not appoint a person referred to in
paragraph (1)(c) as an ABC Inspector unless the ABC Commissioner is
satisfied that the person is an appropriate person to be appointed as an ABC
Inspector.
(3) The ABC Commissioner is an ABC Inspector by force of this
subsection.
(4) In exercising powers or performing functions as an ABC Inspector, an
ABC Inspector appointed under subsection (1) must comply with any
directions of the ABC Commissioner.
(1) The ABC Commissioner must issue to an ABC Inspector appointed under
subsection 235(1) an identity card in the form prescribed by the regulations.
The identity card must contain a recent photograph of the ABC
Inspector.
(2) The Minister must issue to the ABC Commissioner an identity card in
the form prescribed by the regulations. The identity card must contain a recent
photograph of the ABC Commissioner.
(3) If a person to whom an identity card has been issued ceases to be an
ABC Inspector, the person must, within 14 days, return the identity card to the
ABC Commissioner, or the Minister, as the case requires.
(4) A person must not contravene subsection (3).
Penalty: 1 penalty unit.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) Subsection (4) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) An ABC Inspector must carry the identity card at all times when
exercising powers or performing functions as an ABC Inspector.
(1) An ABC Inspector may exercise powers under this section for the
following purposes (compliance purposes):
(a) ascertaining whether a designated building law has been complied with,
or is being complied with, by a building industry participant;
(b) ascertaining whether a court order relating to a designated building
law has been complied with, or is being complied with, by a building industry
participant;
(c) ascertaining whether the Building Code has been complied with, or is
being complied with, by a building industry participant;
Note: Section 26 specifies the persons who can be
required to comply with the Building Code.
(d) making an assessment referred to in section 77.
(2) The powers may be exercised at any time during ordinary working hours
or at any other time at which it is necessary to do so for compliance
purposes.
(3) An ABC Inspector may, without force, enter:
(a) any premises on which the inspector has reasonable cause to believe
that building work is being carried out, or has been carried out, being building
work:
(i) to which a Commonwealth industrial instrument applies or applied;
or
(ii) to which the Building Code applies or applied; or
(b) any premises on which the inspector has reasonable cause to believe
that there are documents relevant to compliance purposes; or
(c) any premises on which the inspector has reasonable cause to believe
that a breach by a building industry participant of a designated building law or
the Building Code, has occurred, is occurring or is likely to occur.
(4) Subsection (3) does not authorise entry onto a part of premises
if that part is used for residential purposes.
(5) An ABC Inspector may do any of the following on premises referred to
in subsection (3):
(a) inspect any work, material, machinery, appliance, article or
facility;
(b) as prescribed by the regulations, take samples of any goods or
substances;
(c) interview any person;
(d) inspect, and make copies of, any document that is on the premises, or
is accessible from a computer that is kept on the premises, being a document
that the inspector believes, on reasonable grounds, to be relevant to compliance
purposes;
(e) require a person who has the custody of, or access to, a document to
produce the document to the inspector within a specified period.
(6) If a person fails to comply with a requirement under
subsection (5) to produce a document, an ABC Inspector may, by written
notice served on the person, require the person to produce the document at a
specified place within a specified period (not being less than 14
days).
(7) Where a document is produced to an ABC Inspector under
paragraph (5)(e) or subsection (6), the inspector may:
(a) inspect and copy the document; and
(b) if the inspector gives a receipt to the person who produced the
document—retain the document for as long as necessary for the purpose of
exercising powers or performing functions as an ABC Inspector.
(8) While an ABC Inspector retains a document, the inspector must permit
the document to be inspected and copied, at any reasonable time, by:
(a) the person otherwise entitled to possession of the document;
or
(b) a person authorised by the person otherwise entitled to possession of
the document.
(9) An ABC Inspector may, without force, enter business premises in which
a person ordinarily performs work or conducts business if the inspector has
reasonable cause to believe that the person has information relevant to
compliance purposes.
(10) An ABC Inspector must not enter business premises under
subsection (9) if the inspector has reasonable cause to believe that the
person concerned is not in that place.
(11) An ABC Inspector who enters premises under subsection (9) may
interview the person concerned in that place.
(12) For the avoidance of doubt, a refusal or failure by a person to
participate in an interview under this section is not to be treated as conduct
covered by section 149.1 of the Criminal Code.
(13) Before entering premises under this section, an ABC Inspector must
announce that the inspector is authorised to enter the place. If the occupier or
another person who apparently represents the occupier is present, the inspector
must produce the inspector’s identity card to that person for
inspection.
(14) The occupier of premises must not refuse or unduly delay entry to the
premises by an ABC inspector exercising powers under this section.
Note: Grade A civil penalty.
(15) In this section:
copy, in relation to a document, includes take extracts from
the document.
Note: The Criminal Code contains offences for
obstructing or hindering Commonwealth public officials.
(1) The Federal Safety Commissioner may, by written instrument, appoint
any of the following persons as a Federal Safety Officer:
(a) a person who is an employee of the Commonwealth or who holds an office
or appointment under a law of the Commonwealth;
(b) a person who is an employee of a State or Territory or who holds an
office or appointment under a law of a State or Territory;
(c) a consultant engaged by the Federal Safety Commissioner under
section 45.
(2) The Federal Safety Commissioner must not appoint a person referred to
in paragraph (1)(c) as a Federal Safety Officer unless the Federal Safety
Commissioner is satisfied that the person is an appropriate person to be
appointed as a Federal Safety Officer.
(3) The Federal Safety Commissioner is a Federal Safety Officer by force
of this subsection.
(4) In exercising powers or performing functions as a Federal Safety
Officer, a Federal Safety Officer appointed under subsection (1) must
comply with any directions of the Federal Safety Commissioner.
(1) The Federal Safety Commissioner must issue to a Federal Safety Officer
appointed under subsection 238(1) an identity card in the form prescribed by the
regulations. The identity card must contain a recent photograph of the Federal
Safety Officer.
(2) The Minister must issue to the Federal Safety Commissioner an identity
card in the form prescribed by the regulations. The identity card must contain a
recent photograph of the Federal Safety Commissioner.
(3) If a person to whom an identity card has been issued ceases to be a
Federal Safety Officer, the person must, within 14 days, return the identity
card to the Federal Safety Commissioner, or the Minister, as the case
requires.
(4) A person must not contravene subsection (3).
Penalty: 1 penalty unit.
(5) An offence against subsection (4) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) Subsection (4) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) A Federal Safety Officer must carry the identity card at all times
when exercising powers or performing functions as a Federal Safety
Officer.
(1) A Federal Safety Officer may exercise powers under this section for
the purpose (a compliance purpose) of ascertaining whether the
Building Code has been complied with, or is being complied with, by a building
industry participant.
Note: Section 26 specifies the persons who can be
required to comply with the Building Code.
(2) The powers may be exercised at any time during ordinary working hours
or at any other time at which it is necessary to do so for a compliance
purpose.
(3) A Federal Safety Officer may, without force, enter:
(a) any premises on which the officer has reasonable cause to believe that
building work is being carried out, or has been carried out, being building work
to which the Building Code applies or applied; or
(b) any premises on which the officer has reasonable cause to believe that
a breach by a building industry participant of the Building Code has occurred,
is occurring or is likely to occur.
(4) Subsection (3) does not authorise entry onto a part of premises
if that part is used for residential purposes.
(5) A Federal Safety Officer may do any of the following on premises
referred to in subsection (3):
(a) inspect any work, material, machinery, appliance, article or
facility;
(b) as prescribed by the regulations, take samples of any goods or
substances;
(c) interview any person;
(d) inspect, and make copies of, any document that is on the premises, or
is accessible from a computer that is kept on the premises, being a document
that the officer believes, on reasonable grounds, to be relevant to compliance
purposes;
(e) require a person who has the custody of, or access to, a document to
produce the document to the officer within a specified period.
(6) If a person fails to comply with a requirement under
subsection (5) to produce a document, a Federal Safety Officer may, by
written notice served on the person, require the person to produce the document
at a specified place within a specified period (not being less than 14
days).
(7) Where a document is produced to a Federal Safety Officer under
paragraph (5)(e) or subsection (6), the officer may:
(a) inspect and copy the document; and
(b) if the Federal Safety Officer gives a receipt to the person who
produced the document—retain the document for as long as necessary for the
purpose of exercising powers or performing functions as a Federal Safety
Officer.
(8) While a Federal Safety Officer retains a document, the officer must
permit the document to be inspected and copied, at any reasonable time,
by:
(a) the person otherwise entitled to possession of the document;
or
(b) a person authorised by the person otherwise entitled to possession of
the document.
(9) A Federal Safety Officer may, without force, enter business premises
in which a person ordinarily performs work or conducts business if the officer
has reasonable cause to believe that the person has information relevant to
compliance purposes.
(10) A Federal Safety Officer must not enter business premises under
subsection (9) if the officer has reasonable cause to believe that the
person concerned is not in that place.
(11) A Federal Safety Officer who enters premises under
subsection (9) may interview the person concerned in that place.
(12) For the avoidance of doubt, a refusal or failure by a person to
participate in an interview under this section is not to be treated as conduct
covered by section 149.1 of the Criminal Code.
(13) Before entering premises under this section, a Federal Safety Officer
must announce that the officer is authorised to enter the place. If the occupier
or another person who apparently represents the occupier is present, the officer
must produce the officer’s identity card to that person for
inspection.
(14) The occupier of premises must not refuse or unduly delay entry to the
premises by a Federal Safety Officer exercising powers under this
section.
Note: Grade A civil penalty.
(15) In this section:
copy, in relation to a document, includes take extracts from
the document.
Note: The Criminal Code contains offences for
obstructing or hindering Commonwealth public officials.
(1) A Federal Safety Officer may exercise powers under this section for
the following purposes (compliance purposes):
(a) ascertaining whether a constitutional corporation that is an applicant
for accreditation meets the accreditation requirements;
(b) ascertaining whether a constitutional corporation that is an
accredited person has complied, or is complying, with conditions of the
accreditation;
(c) ascertaining whether an accredited person has complied, or is
complying, with conditions of the accreditation in respect of building work in a
Territory or Commonwealth place.
(2) The powers may be exercised at any time during ordinary working hours
or at any other time at which it is necessary to do so for compliance
purposes.
(3) A Federal Safety Officer may, without force, enter:
(a) any premises on which the officer has reasonable cause to believe that
building work is being carried out, or has been carried out, by the applicant or
accredited person referred to in subsection (1); or
(b) any premises on which the officer has reasonable cause to believe that
there are documents relevant to compliance purposes.
(4) Subsection (3) does not authorise entry onto a part of premises
if that part is used for residential purposes.
(5) A Federal Safety Officer may do any of the following on premises
referred to in subsection (3):
(a) inspect any work, material, machinery, appliance, article or
facility;
(b) as prescribed by the regulations, take samples of any goods or
substances;
(c) interview any person;
(d) inspect, and make copies of, any document that is on the premises, or
is accessible from a computer that is kept on the premises, being a document
that the officer believes, on reasonable grounds, to be relevant to compliance
purposes;
(e) require a person who has the custody of, or access to, a document to
produce the document to the officer within a specified period.
(6) If a person fails to comply with a requirement under
subsection (5) to produce a document, a Federal Safety Officer may, by
written notice served on the person, require the person to produce the document
at a specified place within a specified period (not being less than 14
days).
(7) Where a document is produced to a Federal Safety Officer under
paragraph (5)(e) or subsection (6), the officer may:
(a) inspect and copy the document; and
(b) if the Federal Safety Officer gives a receipt to the person who
produced the document—retain the document for as long as necessary for the
purpose of exercising powers or performing functions as a Federal Safety
Officer.
(8) While a Federal Safety Officer retains a document, the officer must
permit the document to be inspected and copied, at any reasonable time,
by:
(a) the person otherwise entitled to possession of the document;
or
(b) a person authorised by the person otherwise entitled to possession of
the document.
(9) A Federal Safety Officer may, without force, enter business premises
in which a person ordinarily performs work or conducts business if the officer
has reasonable cause to believe that the person has information relevant to
compliance purposes.
(10) A Federal Safety Officer must not enter business premises under
subsection (9) if the officer has reasonable cause to believe that the
person concerned is not in that place.
(11) A Federal Safety Officer who enters premises under
subsection (9) may interview the person concerned in that place.
(12) For the avoidance of doubt, a refusal or failure by a person to
participate in an interview under this section is not to be treated as conduct
covered by section 149.1 of the Criminal Code.
(13) Before entering premises under this section, a Federal Safety Officer
must announce that the officer is authorised to enter the place. If the occupier
or another person who apparently represents the occupier is present, the officer
must produce the officer’s identity card to that person for
inspection.
(14) The occupier of premises must not refuse or unduly delay entry to the
premises by a Federal Safety Officer exercising powers under this
section.
Note: Grade A civil penalty.
(15) In this section:
accreditation means accreditation under the accreditation
scheme.
accredited person means a person who is accredited under the
accreditation scheme.
copy, in relation to a document, includes take extracts from
the document.
Note: The Criminal Code contains offences for
obstructing or hindering Commonwealth public officials.
(1) This section restricts what a person (the entrusted
person) may do with protected information that the person has obtained
in the course of official employment.
Note: Although this section applies only to information that
a person obtained in the course of official employment, the obligations under
this section continue to apply after the person ceases to be in official
employment.
Recording or disclosing
(2) The entrusted person must not:
(a) make a record of protected information; or
(b) disclose protected information.
Penalty: Imprisonment for 12 months.
Permitted recording or disclosure by designated officials
(3) If the entrusted person is a designated official at the time of the
recording or disclosure, then each of the following is an exception to the
offence in subsection (2):
(a) the recording or disclosure is for the purposes of this Act;
(b) the recording or disclosure happens in the course of the performance
of the duties of the entrusted person’s official employment;
(c) in the case of a disclosure—the disclosure is to a person
appointed or employed by:
(i) the Commonwealth, a State or Territory; or
(ii) an authority of the Commonwealth, a State or Territory;
for the purpose of assisting in building industry law
enforcement;
(d) the recording or disclosure is in accordance with regulations made for
the purposes of this paragraph.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3): see subsection 13.3(3) of the Criminal
Code.
Permitted recording or disclosure by other persons
(4) If the entrusted person is not a designated official at the time of
the recording or disclosure, then each of the following is an exception to the
offence in subsection (2):
(a) the recording or disclosure is for the purposes of this Act;
(b) the recording or disclosure happens in the course of the performance
of the duties of the entrusted person’s official employment, being duties
relating to building industry law enforcement;
(c) the recording or disclosure is in accordance with regulations made for
the purposes of this paragraph.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (4): see subsection 13.3(3) of the Criminal
Code.
Disclosure to a Minister
(5) If:
(a) the entrusted person discloses protected information to any Minister;
and
(b) the disclosure is not required or authorised by section 14, 16,
34 or 36;
then the exceptions in subsections (3) and (4) of this section do not
apply to the disclosure.
Disclosure in reports under this Act
(6) If:
(a) the entrusted person discloses protected information in a report under
section 14, 16, 34 or 36; and
(b) section 243 is not complied with in respect of the disclosure of
the information in the report;
then the exceptions in subsections (3) and (4) of this section do not
apply to the disclosure.
Authorisation for purposes of Privacy Act
(7) A disclosure of personal information is taken to be authorised by law
for the purposes of paragraph (1)(d) of Information Privacy Principle 11 in
section 14 of the Privacy Act 1988 if the information is protected
information and the disclosure is made in accordance with subsection (3) or
(4) of this section.
Definitions
(8) In this section:
building industry law enforcement means enforcement of a law
of the Commonwealth, or of a State or Territory, where the enforcement is in
respect of:
(a) conduct by, or in relation to, a building industry participant in that
capacity; or
(b) conduct that is, or relates to, building work.
designated official means any of the following:
(a) the ABC Commissioner;
(b) a Deputy ABC Commissioner;
(c) an ABC Inspector;
(d) a person assisting the ABC Commissioner as mentioned in subsection
25(1);
(e) a person engaged as a consultant under subsection 25(3);
(f) the Federal Safety Commissioner;
(g) a Federal Safety Officer;
(h) a person assisting the Federal Safety Commissioner as mentioned in
subsection 45(1);
(i) a person engaged as a consultant under subsection 45(2);
(j) the Industrial Registrar;
(k) a person acting under a delegation under this Act from a person
covered by any of the above paragraphs.
disclose means divulge or communicate.
official employment means:
(a) appointment or employment by, or the performance of services
for:
(i) the Commonwealth, a State or Territory; or
(ii) an authority of the Commonwealth, a State or Territory; or
(b) appointment as an ABC inspector or Federal Safety Officer.
protected information means information that:
(a) was disclosed or obtained for the purposes of this Act; and
(b) was obtained by the entrusted person, or by any other person, in the
course of official employment; and
(c) relates to a person other than the entrusted person.
(1) Information relating to the affairs of an individual must not be
included in a report under section 14, 16, 34 or 36 if:
(a) the individual is named, or otherwise specifically identified, in the
report as the individual to whom the information relates; or
(b) it is reasonably likely that people generally (other than people to
whom the individual has disclosed information relating to the individual’s
affairs) would be able to work out the identity of the individual to whom the
information relates.
(2) For the purposes of applying paragraph (1)(b) to information
relating to a particular individual’s affairs, the context in which the
information appears, and information that is otherwise publicly available, must
be taken into account (as well as any other relevant matter).
(1) On application by an eligible person, the AIRC may set aside, revoke
or vary any order that it has made under this Act.
(2) In this section:
eligible person means:
(a) the ABC Commissioner; or
(b) a person affected by the order.
(1) The Industrial Registrar may, in writing, delegate all or any of his
or her powers and functions under this Act to a Deputy Industrial Registrar
other than powers or functions prescribed by the regulations for the purposes of
this subsection.
(2) In exercising powers or functions under a delegation, the delegate
must comply with any directions of the Industrial Registrar.
(1) The Minister may, in writing, delegate all or any of the
Minister’s powers and functions under this Act to:
(a) an SES employee or acting SES employee; or
(b) a person prescribed by the regulations for the purposes of this
paragraph;
other than powers or functions under Chapter 2 or 4 or
section 236 or 239.
(2) The Minister may, in writing, delegate all or any of the
Minister’s powers and functions under Chapter 3 to:
(a) the ABC Commissioner; or
(b) a Deputy ABC Commissioner; or
(c) the Federal Safety Commissioner.
(3) In exercising powers or functions under a delegation, the delegate
must comply with any directions of the Minister.
(1) For the purposes of this Act, the following conduct in relation to a
building association is taken to be conduct of the building
association:
(a) conduct of the committee of management of the association;
(b) conduct of an officer or agent of the association acting in that
capacity;
(c) conduct of a member, or group of members, of the association where the
conduct is authorised by:
(i) the rules of the association; or
(ii) the committee of management of the association; or
(iii) an officer or agent of the association acting in that
capacity;
(d) conduct of a member of the association, who performs the function of
dealing with an employer on behalf of the member and other members of the
association, acting in that capacity.
(2) Paragraphs (1)(c) and (d) do not apply if:
(a) a committee of management of the building association; or
(b) a person authorised by the committee; or
(c) an officer of the industrial association;
has taken reasonable steps to prevent the action.
(3) In this section:
officer, in relation to a building association,
includes:
(a) a delegate or other representative of the association; and
(b) an employee of the association.
In applying a provision of this Act that refers to:
(a) coercing a person to do a particular thing; or
(b) applying undue pressure to a person to do a particular thing;
or
(c) encouraging a person to do a particular thing; or
(d) advising a person to do a particular thing; or
(e) inciting a person to do a particular thing; or
(f) engaging in conduct with the intention of doing any of the
above;
it is not relevant whether or not that person is able, willing or eligible
to do that particular thing.
(1) The ABC Commissioner may intervene in the public interest in a
proceeding before a court in a matter that:
(a) arises under this Act; or
(b) arises under the Workplace Relations Act as affected by this
Act.
(2) If the ABC Commissioner intervenes in a proceeding under
subsection (1), the ABC Commissioner is taken to be a party to the
proceeding and has all the rights, duties and liabilities of such a
party.
The ABC Commissioner may, by giving written notice to the Industrial
Registrar, intervene in a matter before the AIRC that:
(a) arises under this Act; or
(b) arises under the Workplace Relations Act as affected by this
Act.
The Industrial Registrar must, as soon as practicable, notify the ABC
Commissioner of:
(a) every application lodged with the AIRC, or the Industrial Registrar,
under:
(i) this Act; or
(ii) the Workplace Relations Act as affected by this Act; and
(b) the outcome of each such application.
Jurisdiction where Act allows proceedings to be instituted
(1) If a provision of this Act, expressly or by implication, authorises a
proceeding to be instituted in a particular court in relation to a
matter:
(a) that provision is taken to vest that court with jurisdiction in that
matter; and
(b) in the case of a court of a State—the jurisdiction so vested is
subject to any limits to which any other jurisdiction of the court may be
subject; and
(c) in the case of the Federal Court or the Federal Magistrates
Court—the jurisdiction so vested is not limited by any limits to which the
other jurisdiction of the court may be subject; and
(d) in the case of a court of a Territory—the jurisdiction is vested
so far only as the Constitution permits.
Additional jurisdiction of Federal Magistrates Court
(2) The Federal Magistrates Court has jurisdiction in matters arising
under the Workplace Relations Act as affected by sections 71 and 176 of
this Act.
Jurisdiction in relation to modified provisions of Workplace Relations
Act
(3) If:
(a) a court has jurisdiction in relation to a matter arising under a
provision of the Workplace Relations Act; and
(b) that provision is affected by this Act;
then that jurisdiction extends to a matter arising under that provision as
affected by this Act.
Writ of mandamus etc. against officers of the Commonwealth
(4) Subsections 412(2) and (3), and subsection 415(1), of the Workplace
Relations Act extend to matters in which a writ of mandamus or prohibition, or
an injunction, is sought against an officer or officers of the Commonwealth
holding office under that Act, in relation to powers or functions under this
Act. This subsection is enacted for the avoidance of doubt.
(5) For the purposes of section 44 of the Judiciary Act 1903,
the Federal Court is taken to have jurisdiction with respect to any matter in
which a writ of mandamus or prohibition, or an injunction, is sought against an
officer or officers of the Commonwealth holding office under this Act.
Note: Section 44 of the Judiciary Act 1903 gives
the High Court of Australia power to remit a matter to a federal court that has
jurisdiction with respect to that matter.
(6) The Federal Court has jurisdiction with respect to matters remitted to
it under section 44 of the Judiciary Act 1903.
Exclusive jurisdiction of Federal Court for certain matters involving
organisations etc.
(7) Subject to this Act, the jurisdiction of the Federal Court in relation
to an act or omission for which an organisation, or member of an organisation,
is liable to be sued, or to be proceeded against for a pecuniary penalty, is
exclusive of the jurisdiction of any other court created by the Parliament or
any court of a State or Territory.
Referral of matters to Full Court of Federal Court
(8) At any stage of a proceeding in a matter in which the Federal Court
has jurisdiction under this Act, a single Judge exercising the jurisdiction of
the Federal Court:
(a) may refer a question of law for the opinion of a Full Court of the
Federal Court; and
(b) may, of the Judge’s own motion or on the application of a party,
refer the matter to a Full Court of the Federal Court to be heard and
determined.
If a Judge so refers a matter, the Full Court of the Federal Court may have
regard to any evidence given, or arguments adduced, in the proceeding before the
Judge.
(9) The Federal Court has jurisdiction with respect to matters in relation
to which questions may be referred to it under subsection (8).
If the ABC Commissioner is an applicant in proceedings under
section 67, 75, 134 or 227, then the court cannot require the ABC
Commissioner, or any other person, as a condition of granting an interim
injunction, to give undertakings as to damages.
(1) No one is liable to civil proceedings for loss, damage or injury of
any kind suffered by another person as a result of anything done, or omitted to
be done, in good faith and without negligence, by a protected person in the
exercise, or purported exercise, of functions, powers or duties under, or in
relation to, this Act.
(2) In this section:
protected person means any of the following:
(a) the ABC Commissioner;
(b) a Deputy ABC Commissioner;
(c) an ABC Inspector;
(d) a person assisting the ABC Commissioner as mentioned in subsection
25(1);
(e) a person engaged as a consultant under subsection 25(3);
(f) the Federal Safety Commissioner;
(g) a Federal Safety Officer;
(h) a person assisting the Federal Safety Commissioner as mentioned in
subsection 45(1);
(i) a person engaged as a consultant under subsection 45(2);
(j) the Industrial Registrar;
(k) a person acting under a delegation under this Act from a person
covered by any of the above paragraphs.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Without limiting subsection (1), the regulations may make
provision for, and in relation to, the following:
(a) the signing or lodging of documents that are required or permitted by
this Act to be lodged with, or given to, the ABC Commissioner, the Industrial
Registrar, the Industrial Registry or a court;
(b) the manner in which, and the time within which, applications under
this Act may be made and dealt with;
(c) the form of notices that are required or permitted to be given under
this Act;
(d) fees to be charged in relation to proceedings under this
Act;
(e) penalties for offences against the regulations, not exceeding a fine
of 10 penalty units;
(f) civil penalties for contraventions of the regulations, not
exceeding:
(i) for a body corporate—25 penalty units; or
(ii) in any other case—5 penalty units.
Note: See definition of statutory freedom of
association statement in section 4.
(1) A person who is subject to the freedom of association provisions of
the Building and Construction Industry Improvement Act 2003:
(a) can freely choose, without interference, whether to be a member, or
not be a member, of an industrial association; and
(b) should not be discriminated against, or victimised, on the ground that
the person is a member, or is not a member, of an industrial
association.
Note: The freedom of association provisions are contained in
Chapter 7 of the Building and Construction Industry Improvement Act
2003.
(2) If those rights are interfered with, the person may be able to seek a
remedy under that Act.
(3) A person who interferes with those rights may be subject to penalties
under that Act.
Note: The above statements are not enforceable provisions of
an award or certified agreement.