Building and Construction Industry (Improving Productivity) (Federal Safety Officers) General Directions 2017

Federal Safety Officer (FSO): An individual appointed under section 68 of the Act to exercise monitoring and investigatory powers in the building and construction industry. The Directions govern how these officers perform their functions.

Act: The Building and Construction Industry (Improving Productivity) Act 2016 - the primary Commonwealth statute regulating industrial relations and work health and safety in the building and construction industry. The FSO powers derive from that Act.

Accreditation Scheme Rules: Defined as the Fair Work (Building Industry - Accreditation Scheme) Regulation 2016, continued in force by transitional provisions. These rules establish the accreditation framework for building industry participants; FSOs may audit compliance.

FSO Code of Conduct: A code dated 1 January 2015 issued by the Federal Safety Commissioner. Section 5(1) requires all FSOs to comply with this code when performing functions. The code is not reproduced in the Directions but is incorporated by reference.

APS Code of Conduct: The code of conduct under the Public Service Act 1999. Section 5(2) extends this code to FSOs who are not APS employees and not otherwise bound, as if their FSO service were APS employment. This imposes duties of honesty, care, diligence, respect, and avoidance of conflicts.

Identity card: Under section 69 of the Act, FSOs must be issued identity cards and must carry them at all times when exercising powers. Section 7 of the Directions adds detailed custodial requirements: the card must be kept in the issued wallet, secured when not in use, not used by any other person, and lost or stolen cards must be immediately reported.

Entry onto premises: The Directions distinguish between two types of entry. Under section 8, entry under paragraph 72(2)(a) (with consent) or subparagraph 72(2)(b)(i) (under a monitoring warrant) requires five business days’ notice to the Commissioner and potential consultation. Under section 11, entry under subparagraph 72(2)(b)(ii) (entry to premises where the FSO believes a person has information relevant to compliance - effectively a compliance‑specific entry power) requires the same notice but also disclosure of the identity of the person(s) believed to have the information. Before interviewing a person under subsection 74(2), similar notification and consultation steps apply.

Notice to produce documents: Section 9 requires pre‑clearance before serving a section 77 notice on a person to produce records or documents. The FSO must notify the Commissioner of the person and what documents are sought, and consult if required.

Taking samples: Section 10 requires consultation with the Commissioner before taking samples under paragraph 74(1)(f) of the Act.

Emergency situations: Section 12 imposes a duty on FSOs who become aware of circumstances representing an immediate threat to health or safety on premises where building work is carried out to immediately notify the Commissioner (or other persons as requested). This does not override any statutory duty to report to emergency services but adds an internal notification.

Conflicts of interest: Section 13 requires immediate disclosure of any direct or indirect pecuniary interest or fact that could cause the FSO to fail to properly exercise powers or create a reasonable belief of such failure. Examples include the FSO (or their employer) having provided WHS services to the person being audited, or having a material ownership interest in a company being audited.

Validity saving clause: Section 14 provides that non‑compliance with the Directions does not affect the validity of any action or decision. This effectively shields enforcement actions from challenge based purely on procedural non‑compliance by the FSO with these internal directions.

The primary persons affected are Federal Safety Officers themselves, who must follow the Directions as a condition of their appointment and good standing. The Directions directly govern their daily work: when they can enter sites, what they must do before serving document notices, how they handle their identity cards, how they manage conflicts, and to whom they report emergencies. An FSO who fails to comply faces potential internal disciplinary action (including under the APS Code of Conduct or FSO Code of Conduct), but the Directions themselves do not impose penalties - they guide conduct.

Indirectly, the Directions affect all persons and entities subject to monitoring or investigation under the Act: building industry participants (contractors, subcontractors, developers, unions, employer associations), their employees, and site occupiers. When an FSO enters a building site or requests documents, the procedural steps required by these Directions may affect the timing and manner of that interaction. For example, the five business day notice to the Commissioner before entry (unless overridden) means that, in practice, the Commissioner’s office will have advance warning of proposed entries, potentially allowing political or strategic input before an FSO acts. For the person being inspected, this may mean that an inspection happens only after internal clearance, reducing surprise but also creating a window for evidence to be altered if the subject becomes aware. However, section 14 cuts off any right to challenge the inspection based on the FSO’s failure to follow these steps.

The Federal Safety Commissioner’s office is also directly affected: it must receive and process notifications, consult with FSOs when required, and issue case‑specific directions where it wishes to vary the standard procedures. The Directions create a centralised oversight function, removing some operational autonomy from field FSOs.

The Accreditation Scheme Rules are referenced: FSOs may audit compliance with those rules, and the Directions’ validity saving clause extends to actions made under those rules.

In a broader sense, the building and construction industry as a whole is affected by the efficiency and consistency of FSO actions. The Directions are presented as part of an “Improving Productivity” framework. By imposing notification and consultation requirements, they add a procedural step that could slow down enforcement. On the other hand, standardised procedures may reduce arbitrary or rogue actions by individual FSOs, lowering the risk for businesses of unpredictable or harassing inspections. The net effect on productivity depends on whether the bureaucratic filter improves the quality of enforcement or simply delays it. Given the non‑compliance clause, the Directions provide little external accountability.

Duties on Federal Safety Officers:

• Comply with the FSO Code of Conduct (section 5(1)).
• If not an APS employee, comply with the APS Code of Conduct as if an APS employee (section 5(2)).
• Keep identity card in the issued wallet, secure when not in use, not allow others to use it, report loss or theft immediately (section 7).
• Notify the Commissioner in writing at least five business days before entering premises under paragraph 72(2)(a) or subparagraph 72(2)(b)(i), and consult if the Commissioner requires it (section 8).
• Notify the Commissioner before serving a notice to produce documents under section 77, specifying the person and documents sought, and consult if required (section 9).
• Consult the Commissioner before taking samples under paragraph 74(1)(f) (section 10).
• Before entering premises under subparagraph 72(2)(b)(ii), give five business days’ notice with location, date, time, and identity of the person believed to have information; consult if required (section 11(1)).
• Before interviewing a person under subsection 74(2), notify the Commissioner of the intention, identify persons and subject matter, and consult if required (section 11(2)).
• Immediately notify the Commissioner of any immediate health or safety threat on premises (section 12).
• Immediately disclose any direct or indirect pecuniary interest or fact that could impair proper exercise of powers or create a reasonable belief of impairment (section 13).

Rights of Federal Safety Officers:

• The Directions do not confer new rights; they channel existing statutory powers. An FSO retains the right to enter, require documents, take samples, and interview, subject to these procedural steps. The Commissioner can issue case‑specific directions that override the standard notification requirements, which could speed up an FSO’s actions.
• A failure to comply with the Directions does not invalidate the FSO’s actions, so the FSO’s authority is not undone by procedural error (section 14). This is more a protection for the FSO’s decisions than a right.

Duties and rights of persons subject to inspection:

• The Directions do not impose duties on third parties. However, the underlying Act may require a person to allow entry, produce documents, answer questions, etc. This instrument does not affect those substantive obligations.
• A person cannot rely on an FSO’s breach of the Directions to challenge the validity of an entry, search, or seizure. That is a significant limitation on the rights of inspected persons. The Directions create internal standards but explicitly deny them enforceability by third parties. Therefore, no private right of action or defence arises from non‑compliance.

No duty to notify affected persons: The Directions require notification to the Commissioner, not to the occupier or affected party. So a building company is not entitled to advance notice of an entry - only the Commissioner gets the notice. The five‑day notice to the Commissioner does not translate to five days’ notice to the business. This is a subtle but important point.

The General Directions themselves do not create penalties. They are directions to FSOs, not prohibitions with sanctions. Enforcement of these Directions is internal to the Office of the Federal Safety Commissioner. An FSO who fails to comply may face disciplinary action under the APS Code of Conduct (if applicable) or under the FSO Code of Conduct. That could include reprimand, suspension, or termination of appointment. But the Directions do not prescribe specific penalties.

Section 14 explicitly provides that non‑compliance with these General Directions does not affect the validity of any action or decision made by an FSO under the Act, rules made under the Act, or the Accreditation Scheme Rules. This means a person aggrieved by an FSO’s entry or document request cannot seek to have that action quashed or evidence excluded solely because the FSO failed to notify the Commissioner or consult. The clause removes any collateral enforcement mechanism through the courts or tribunals. The only avenue for challenging an FSO’s action would be through judicial review on other grounds (e.g., lack of statutory power, bad faith, procedural fairness under the Act itself, but not under these Directions). This significantly limits the practical enforceability of the Directions.

The underlying Act does contain penalties for obstructing an FSO, for failing to produce records, or for giving false information. Those penalties apply regardless of whether the FSO complied with these Directions. So even if an FSO breaches these Directions, the person inspected still must comply with lawful requests under the Act. The Directions do not affect that.

There is no mechanism for third parties to complain to the Commissioner about FSO non‑compliance, though nothing prevents a complaint. Given section 14, the Commissioner has little incentive to act on complaints that do not affect validity. The Directions are essentially a self‑regulatory code for the Commissioner’s office.

In terms of enforcement by the Commissioner, the Directions empower the Commissioner to require consultation and to issue case‑specific directions. If an FSO fails to comply, the Commissioner can take internal action, but there is no external oversight body or penalty regime tied to these Directions.

The practical upshot: these Directions are binding as a matter of administrative law (section 14 says they are directions) but unenforceable by anyone other than the Commissioner internally. They create a weak accountability mechanism.

The Directions are made under subsection 68(5) of the Building and Construction Industry (Improving Productivity) Act 2016 (the Act). They operate within the framework of that Act, supplementing its provisions on FSO conduct. They do not alter any substantive provisions of the Act relating to powers of entry, document production, or sampling; they merely add procedural steps.

The Directions expressly incorporate two external codes: the FSO Code of Conduct (dated 1 January 2015) and the APS Code of Conduct under the Public Service Act 1999. Section 5(2) extends the APS Code to FSOs who are not APS employees and not otherwise bound, creating a dual code regime. That means an FSO who is a private contractor, for example, must comply with the same standards of behaviour as a public servant. The APS Code imposes duties of honesty, care, diligence, respect, and avoidance of conflicts. Breach of the APS Code can lead to sanctions under the Public Service Act for APS employees; for non‑APS FSOs, the Directions make compliance mandatory but the sanctions would presumably be contractual or under the FSO Code.

The Directions reference the Accreditation Scheme Rules (the Fair Work (Building Industry - Accreditation Scheme) Regulation 2016). These rules govern the accreditation of building industry participants. FSOs may audit compliance with those rules, and section 14 of the Directions extends the validity saving clause to actions under those rules. This means an FSO’s failure to follow these Directions does not invalidate an accreditation decision based on an audit.

Section 6 of the Directions states that they do not limit any other confidentiality or privacy obligations imposed on FSOs. That would include obligations under the Privacy Act 1988 (if applicable), the secrecy provisions in the Act, and any common law duties. So the Directions are subordinate to stricter confidentiality regimes.

The Directions potentially interact with work health and safety (WHS) laws. Section 12 imposes a duty on FSOs to notify the Commissioner of immediate health or safety threats. This does not override obligations under state or territory WHS legislation to report to emergency services or the regulator. It adds an internal notification requirement.

There is no reference to the Fair Work Act 2009 or other industrial laws, but the primary Act deals with building industry industrial relations. The Directions are limited to the safety monitoring functions of FSOs.

The Legislation Act 2003 governs the registration and tabling of this instrument; its commencement and publication are noted.

Overall, the Directions are a procedural overlay on the Act. They do not repeal, amend, or override any other Commonwealth, state, or territory law. They layer internal governance on top of existing legal obligations.

Based solely on the provided source, there is no amendment history. The instrument is dated 7 June 2017 and appears to be the original version. It has a commencement clause stating it commences the day after registration on the Federal Register of Legislation. There are no amending instruments cited, no schedules of amendments, and no sunset or review provisions within the text. The instrument is entitled 2017 and has not been updated by any subsequent general directions listed.

It is possible that amendments have been made outside this document - for example, by subsequent instruments under the same provision - but the user’s source does not indicate any. As an analyst, I cannot assume amendments exist. The Directions are static from the date of making. Practitioners should check the Federal Register of Legislation for the current compilation, but that is not part of the source.

The lack of amendment history may indicate that the Directions have been stable since commencement, or that they were viewed as a one‑off codification of existing practice. The reference to the FSO Code of Conduct dated 1 January 2015 suggests the Directions were issued two and a half years after that code, perhaps to formalise enforcement of that code.

If amendments were made, they would likely appear as separate General Directions instruments. The power under subsection 68(5) allows the Commissioner to issue general directions from time to time. A later instrument could vary or revoke these Directions.

Given the source, the safest answer: no amendments are present in the text. The Directions have never been amended according to the provided document.

The provided source contains no reference to any litigation, case law, or judicial decisions concerning these General Directions. There is no mention of any court or tribunal proceedings, no interpretation notes, no appeals. As an analyst, I cannot invent cases. It is possible that these Directions have never been directly litigated, or that any litigation was based on the underlying Act rather than the Directions themselves. The Directions operate as internal guidance, and section 14 insulates decisions from challenge based on non‑compliance, which reduces the incentive to litigate the Directions.

If litigation has occurred, it would likely be collateral: for example, a person challenging an FSO’s entry might argue the Directions were not followed to cast doubt on the FSO’s conduct, but section 14 expressly negates that argument. So the Directions are designed to be litigation‑proof on their own terms.

The absence of litigation history in the source means no case has interpreted these Directions, clarified their scope, or found them invalid. They remain largely untested in court.

Practitioners cannot rely on any judicial gloss; the text is the only authority. Should future litigation arise, it would likely focus on the meaning of “immediate threat”, “reasonable belief” in conflict, or the extent of the Commissioner’s discretion to override notification requirements. But none of that is in the source.

Thus, the litigation history is nil as far as the source shows.

Several features in these Directions are traps for the unwary, both for FSOs and for persons subject to inspection.

The non‑compliance clause (section 14) is the biggest gotcha. A person who suspects an FSO entered a site without giving the Commissioner five days’ notice, or failed to consult before taking samples, might assume that makes the FSO’s actions invalid. It does not. Section 14 explicitly says failure to comply does not affect validity. This means a person cannot raise these procedural failures as a defence to an enforcement action, cannot suppress evidence obtained during an unlawful procedure, and cannot seek damages for trespass based on a breach of these Directions. The only potential remedy would be if the underlying entry itself lacked statutory authority, but the Directions do not affect that authority. So these Directions create a false sense of procedural protection for inspected persons.

The five‑business‑day notice to the Commissioner is not notice to the inspected person. An FSO could give the Commissioner notice on Monday, get approval by Wednesday, and enter on the following Monday. The person being inspected may have no advance warning. The Directions do not require the FSO to notify the occupier. This undermines any claim that the Directions provide fairness to businesses.

Emergency situations trigger immediate notification, but only to the Commissioner. Section 12 says the FSO must immediately notify the Commissioner (or others as requested) of circumstances representing an immediate threat. It does not say the FSO must take any action to mitigate the threat, though other laws may require it. A person on site might assume the FSO will call emergency services; the Directions only mandate a call to the Commissioner. This could be critical if the FSO delays.

Conflicts of interest are broadly defined and include the FSO’s employer. If the FSO is employed by a WHS consultancy that has provided services to the company being audited, that is an example of a conflict requiring disclosure. Many private sector safety officers engaged as contractors could have such conflicts. The Directions require immediate disclosure and presumably recusal per the Act or Code, but the Directions themselves do not forbid the FSO from proceeding. The Commissioner might allow it.

The identity card must be kept in the “wallet in which it was issued”. This is oddly specific. If the wallet is lost or damaged, the FSO must not replace it with a generic wallet without Commissioner approval? The language is mandatory: “must keep the identity card in the wallet in which it was issued”. Non‑compliance is a breach, but again, section 14 protects decisions.

Pre‑notification requirements are subject to case‑specific directions. The Commissioner can override the five‑day notice requirement for a particular case. This means the procedural protections are not uniform; the Commissioner can accelerate an entry without notice to anyone (except perhaps the FSO). This is a centralised control mechanism.

No obligation to update or publish the Directions. They are static unless amended. The old FSO Code of Conduct (2015) may have been superseded but is still referenced.

Interview notification requirements under section 11(2) require identification of the person to be interviewed and the subject matter before interviewing. This gives the Commissioner a chance to veto or shape interviews, potentially compromising the independence and surprise element.

The Directions apply only to FSOs under the Commonwealth Act. State WHS inspectors have their own rules; these Directions do not apply to them.

For Federal Safety Officers, compliance requires a systematic approach to each planned exercise of power.

Step 1: Before any entry, document request, or sampling, check if the action falls under sections 8, 9, 10, or 11 of the Directions. For entries under paragraph 72(2)(a) or subparagraph 72(2)(b)(i), follow section 8. For entries under subparagraph 72(2)(b)(ii), follow section 11(1). For document notices, follow section 9. For sampling, follow section 10. For interviews under subsection 74(2), follow section 11(2).

Step 2: Prepare a written notification to the Federal Safety Commissioner. For entries, include location, date, and approximate time. For entries under subparagraph 72(2)(b)(ii), also include the identity of the person(s) believed to have information. For document notices, specify the person and the documents to be sought. For interviews, identify the persons and subject matter. For sampling, notify intention before taking steps.

Step 3: Send the notification at least five business days before the proposed action. Business days likely exclude weekends and public holidays as defined in the Acts Interpretation Act 1901. Ensure the Commissioner receives it in time.

Step 4: If the Commissioner requires consultation, engage promptly. The Commissioner may ask for a conference, provide directions, or vary the timeline. Document these consultations. The Directions do not prescribe a form; written records are prudent.

Step 5: Comply with any case‑specific direction issued under subsection 68(5). This may override the standard notification requirements entirely, so follow the specific direction.

Step 6: Before entering, ensure you are carrying your identity card in the issued wallet. The card must be produced on request under section 69(4). Keep it secured when not in use. Notify the Commissioner immediately if lost or stolen. Do not let anyone else use it.

Step 7: On site, if you become aware of an immediate health or safety threat, notify the Commissioner immediately. Also comply with any other legal duties to report to emergency services or WHS regulators. Do not delay.

Step 8: Before taking any enforcement decision (entry, seizure, interview), consider whether you have any conflict of interest. If you or your employer have provided WHS services to the person or have a material interest in the company, disclose immediately to the Commissioner. Withdraw from the action if directed or if the conflict cannot be managed. The examples in section 13 are not exhaustive.

Step 9: Throughout, comply with the FSO Code of Conduct and, if not already an APS employee, the APS Code of Conduct. This includes being honest, careful, diligent, respectful, and avoiding misuse of information. Handle information confidentially as per section 105 of the Act and other privacy laws.

Step 10: Record all notifications, consultations, and directions received. Even though section 14 protects validity, you want a clear record for internal compliance and to defend against any allegations of misconduct. The Directions do not require record‑keeping, but it is prudent to document.

For persons subject to inspection, compliance with the Directions is not your responsibility. However, you should be aware that an FSO’s failure to follow these Directions does not invalidate the inspection. You must still comply with lawful directions under the Act. If you suspect non‑compliance, you can complain to the Commissioner, but you cannot refuse entry or documents based on it. Do not assume the FSO has given proper notice; assume the FSO has full authority. Seek legal advice before challenging any action. The Directions are not a shield.