1Construction Industry Training Fund Act 1993

South Australia Construction Industry Training Fund Act 1993 An Act to establish a fund to be used to improve the quality of training in the building and construction industry; to establish the Construction Industry Training Board to administer the fund and to co-ordinate appropriate training; to provide for the imposition and collection of a levy for the purposes of the fund; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 3A Objects Part 2—The Construction Industry Training Board 4 Constitution of the Board 5 Composition of the Board 6 Immunity of members 7 Procedures of the Board 8 Disclosure of interest 9 Members' duties of honesty, care and diligence etc 10 Allowances and expenses Part 3—Operations of the Board Division 1—Functions and powers 11 Functions 12 Powers of the Board 13 Committees 14 Delegations 15 Common seal and execution of documents Division 2—Accounts, audits and reports 16 Accounts and audit 17 Annual report 17A Reports to Minister Division 3—Administration 18 Staff and resources 19 Collection agencies Part 4—Levies 20 Imposition of levy 21 Rate of levy 22 Estimated value of building or construction work 23 Exemptions 24 Liability of project owner to pay levy 25 Penalties for late payment of levy 26 Notice of variation 27 Adjustment of amount paid 28 Cancellation of project 29 Recovery of levy etc 30 Offence to provide false information Part 5—The Construction Industry Training Fund 31 Construction Industry Training Fund 31A Minister may present Board with statement of priorities Part 6—Training Plan 32 Training Plan Part 7—Miscellaneous 32A Board may conduct activities under other name 33 Authorised officers 34 Powers of entry and inspection 35 Contracts to evade levy void 36 Prosecution 37 Regulations 38 Review of Act Schedule 1—Building or construction work under the Act 1 Building or construction work 2 Exclusions 3 Definitions Schedule 1A—Value of building or construction work 1 Estimated value 2 Fixtures etc Schedule 4—Public accountability of Board 1 Powers of Minister 2 Notice or proposal 3 Appointment and powers of administrator 4 Expenses of administration 5 Liability for losses incurred during administration 6 Termination of administration Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Construction Industry Training Fund Act 1993. 3—Interpretation (1) In this Act, unless the contrary intention appears— agricultural land means land wholly or mainly used for agricultural or horticultural purposes, animal husbandry, or other similar purposes; the Board means the Construction Industry Training Board constituted under this Act; building approval in respect of building or construction work, means building consent under section 102(1)(b) of the Planning, Development and Infrastructure Act 2016; building or construction work—see Schedule 1; collection agency means a person or body appointed under section 19; the Fund means the Construction Industry Training Fund established under Part 5; government authority means— (a) the Crown; or (b) an agency or instrumentality of the Crown; or (c) a local council; or (d) a body, or body of a prescribed class, prescribed by regulation for the purposes of this definition; local council means a council under the Local Government Act 1999 and includes a subsidiary of a council under that Act; project owner in respect of building and construction work, means— (a) in the case of a government project—the government authority responsible for delivering the project; or (b) in any other case— (i) the person or body (other than an employee) engaged to deliver (including through the use of one or more subcontractors) all, or substantially all, of the construction project; or (ii) if at the time the levy under Part 4 is payable no such person or body has been engaged to deliver all, or substantially all, of the project—the person for whose direct benefit the building or construction work exists on its completion; Training Plan means the Training Plan prepared by the Board under section 32, as in force from time to time. (2) The following constitute sectors of the building and construction industry for the purposes of this Act: (a) the housing sector; (b) the commercial sector; (c) the civil sector; (d) such other sectors (if any) as the regulations may prescribe. (3) A sector will be constituted by such parts of the building and construction industry as the regulations may prescribe. 3A—Objects The objects of this Act include to— (a) promote industry supported access to training opportunities for people entering the building and construction industry; and (b) support high quality training that improves the skills level of the building and construction workforce, and responds to changing industry practices; and (c) encourage innovative training options that flexibly meet the needs of the building and construction workforce and industry; and (d) ensure the Fund is appropriately administered and an appropriate focus on awareness of, and compliance with, levy payment obligations is maintained; and (e) improve access to training for groups under represented in the building and construction industry, including women, Aboriginal and Torres Strait Islanders and adult workers; and (f) promote the use of evidence and data to inform decisions around funding, research and education; and (g) provide relevant and timely advice to the Minister on skills shortages and the building and construction workforce supply requirements of the State. Part 2—The Construction Industry Training Board 4—Constitution of the Board (1) The Construction Industry Training Board continues in existence. Note— See also section 32A. (2) The Board— (a) is a body corporate with perpetual succession and a common seal; and (b) is capable of suing and being sued in its corporate name; and (c) has the functions and powers assigned or conferred by or under this Act. (3) The Board is not part of the Crown, nor is it an agency or instrumentality of the Crown. (4) On the commencement of this Act, the incorporation of the Construction Industry Training Council (S.A.) Incorporated under the Associations Incorporation Act 1985 is terminated. (5) A reference in an instrument to the Construction Industry Training Council (S.A.) Incorporated will, where the context admits, be construed as a reference to the Board. 5—Composition of the Board (1) Subject to this section, the Board consists of up to 12 members appointed by the Governor on the nomination of the Minister, who collectively have skills, knowledge and experience that the Minister considers appropriate to enable the members to carry out the functions of the Board, of whom— (a) 4 persons are appointed to represent the interests of employers in the building and construction industry; and (b) 4 persons are appointed to represent the interests of employees in the building and construction industry. (1aaa) An employee or officer of an organisation, or of a branch or division of an organisation, must not be appointed as a member, or as a deputy of a member, of the Board while that organisation, branch or division (as the case requires) is under administration pursuant to the Fair Work (Registered Organisations) Act 2009 of the Commonwealth in respect of its operations in the State. (1aa) Before nominating a person referred to in subsection (1)(a) and (b), the Minister must— (a) consult with the bodies prescribed by the regulations for the purposes of nominations of the relevant kind; and (b) comply with any other requirements set out by the regulations. (1ab) A person nominated by the Minister for the purposes of subsection (1) (other than for the purposes of subsection (1)(a) or (b)) must, in the opinion of the Minister, be independent of the building and construction industry. (1a) The Governor must appoint 1 of the members (not being a member of a kind referred to in subsection (1)(a) or (b)) to be the presiding member of the Board. (1b) The Minister must, before nominating a person for appointment to the Board under subsection (1), consult with the presiding member of the Board (unless the office of presiding member is vacant). (1c) The Minister must, in making nominations for appointment to the Board (other than for the purposes of subsection (1)(a) or (b)), seek to ensure that the membership of the Board comprises persons who together have the knowledge, skills and experience necessary to enable the Board to carry out its functions effectively. (1d) The Minister must, before nominating a person for appointment as a member of the Board (other than as a nomination for the purposes of subsection (1)(a) or (b), or to fill a casual vacancy on the Board), call for expressions of interest under a scheme determined by the Minister for the purposes of this subsection. (1e) However, the Minister need not comply with subsection (1d) in relation to the nomination of a person for appointment if— (a) the Minister has previously called for expressions of interest in relation to the appointment of a member of the Board of the relevant kind; and (b) the person nominated expressed interest in relation to such an appointment. (2) A member of the Board is to be appointed for a term (not exceeding three years) specified in the instrument of appointment and is, on the expiration of a term of office, eligible for reappointment. (3) The Governor may, on the nomination of the Minister, appoint a suitable person as a deputy of a member of the Board, and the deputy may act as a member of the Board in the absence of that member (however, a person cannot be appointed as a deputy of both a member referred to in subsection (1)(a) and a member referred to in subsection (1)(b)). (3a) To avoid doubt, nothing prevents a person from being the deputy of more than 1 member of the Board. (4) Without derogating from the other provisions of this Act, the Governor may remove a member of the Board from office for— (a) misconduct; or (b) incapacity to carry out satisfactorily duties of office; or (c) failure to carry out satisfactorily duties of office. (5) The office of a member of the Board becomes vacant if the member— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Minister; or (d) is convicted of an indictable offence; or (e) becomes bankrupt or applies to take the benefit of a law for the relief of insolvent debtors; or (ea) is, or becomes, an employee or officer of an organisation, or of a branch or division of an organisation, while that organisation, branch or division (as the case requires) is under administration pursuant to the Fair Work (Registered Organisations) Act 2009 of the Commonwealth in respect of its operations in the State; or (f) is removed from office by the Governor. (5a) The appointment of a person as a deputy of a member is, by force of this subsection, revoked if the person is, or becomes, an employee or officer of an organisation, or of a branch or division of an organisation, while that organisation, branch or division (as the case requires) is under administration pursuant to the Fair Work (Registered Organisations) Act 2009 of the Commonwealth in respect of its operations in the State. (6) On the office of a member becoming vacant, a person may be appointed in accordance with this section to the vacant office. (6a) However, if— (a) the office of a member of the Board becomes vacant before the expiry of the term of appointment specified in the member's instrument of appointment; and (b) a person had been appointed to be the deputy of that member, the person who had been appointed to be the deputy of the member may act as a member of the Board in respect of the vacant office— (c) for the balance of the term of appointment referred to in paragraph (a); or (d) until a person is appointed to the vacant office under this section, whichever first occurs (and a reference in this Act to a member of the Board will be taken to include, unless the contrary intention appears, a reference to a person acting as a member under this subsection). (7) An act of the Board is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member. 6—Immunity of members (1) A member of the Board incurs no liability for anything done honestly and with reasonable care and diligence in the performance or purported performance of functions or duties under this Act. (2) Any liability that would, but for this section, attach to a member attaches instead to the Board. 7—Procedures of the Board (1) A quorum of the Board consists of one half of the members of the Board (ignoring any fraction resulting from the division) plus 1. (2) The presiding member of the Board will preside at meetings of the Board or, in the absence of that member, a member chosen by those present will preside. (3) A decision supported by the majority of the votes cast by members present at a meeting of the Board is a decision of the Board. (4) Each member present at a meeting of the Board has 1 vote on any question arising for decision and, if the votes are equal, the member presiding at the meeting may exercise a casting vote. (6) A person nominated by the Minister may attend any meeting of the Board (however the person is not a member of the Board, is not entitled to vote on any question before the Board and cannot otherwise compromise the independence of the Board). (8) The Board must have accurate minutes kept of its proceedings. (9) Subject to this Act, the Board may determine its own proceedings. 8—Disclosure of interest (1) A member of the Board who has a direct or indirect personal or pecuniary interest in a matter decided or under consideration by the Board— (a) must disclose the nature of the interest to the Board; and (b) must not take part in any deliberations or decisions of the Board on the matter. Maximum penalty: $10 000. (1a) A member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of this section by reason only of the fact that the member has an interest in a matter that is shared in common with those engaged in or associated with the construction industry generally, or a substantial section of those engaged in or associated with the construction industry. (2) It is a defence to a charge of an offence against subsection (1) to prove that the defendant was not, at the time of the alleged offence, aware of their interest in the matter. (3) A disclosure under this section must be recorded in the minutes of the Board. (4) If a member makes a disclosure of interest in respect of a contract or proposed contract— (a) the contract is not liable to be avoided by the Board on the ground of the fiduciary relationship between the member and the Board; and (b) the member is not liable to account to the Board for profits derived from the contract. 9—Members' duties of honesty, care and diligence etc (1) A member of the Board must at all times act honestly in the performance of the functions of their office, whether within or outside the State. Maximum penalty: $10 000. (2) A member of the Board must at all times exercise a reasonable degree of care and diligence in the performance of their functions, whether within or outside the State. Maximum penalty: $10 000. (3) A member or former member of the Board must not, whether within or outside the State, make improper use of information acquired by virtue of their position as such a member to gain, directly or indirectly, an advantage for themself or for any other person or to cause detriment to the Board. Maximum penalty: $20 000. (4) A member of the Board must not, whether within or outside the State, make improper use of their position as a member to gain, directly or indirectly, an advantage for themself or for any other person or to cause detriment to the Board. Maximum penalty: $20 000. (5) This section has effect in addition to, and not in derogation of, any Act or law relating to the criminal or civil liability of a member of the governing body of a corporation and does not prevent the institution of any criminal or civil proceedings in respect of such a liability. (6) For the purposes of section 6, a person will not be taken to have acted honestly if the act constituted or involved contravention by the person of subsection (3) or (4) of this section. 10—Allowances and expenses (1) A member of the Board is entitled to receive— (a) reimbursement of expenses reasonably incurred by the member in the performance of their functions under the Act; and (b) such remuneration and allowances as may be approved by the Minister. (2) The allowances and expenses received by each member of the Board under subsection (1) must— (a) be included in the annual report of the Board prepared under section 17; and (b) be published on a website maintained by the Board to which the public has access free of charge. Part 3—Operations of the Board Division 1—Functions and powers 11—Functions The functions of the Board are— (a) to act as a principal adviser to the Minister and the Minister for Employment, Education and Training of the Commonwealth on any matter relating to training in the building and construction industry and in particular to provide advice in relation to— (i) skill requirements for the building and construction industry and the training arrangements to meet those requirements; and (ii) pre-employment and training programmes; and (iii) any other matter referred to the Board for advice by either of those Ministers; (b) to administer the Construction Industry Training Fund; (ba) to oversee revenue collection for the Fund (including by ensuring compliance with the levy scheme); (c) to prepare the Training Plan in accordance with this Act; (d) generally to co-ordinate training and personnel development within the building and construction industry; (e) to promote increased productivity, career opportunities, personal satisfaction and occupational health and safety within the building and construction industry through training; (f) to review and evaluate employment related training programmes to ensure that they meet the training and skill requirements of the building and construction industry, and to support appropriate training programmes in the building and construction industry; (g) to ensure a more equitable distribution of effort amongst employers in relation to employment related training in the building and construction industry; (h) to initiate, carry out, support or promote research into the training and personnel needs of the building and construction industry and to develop and implement policies, plans and programmes to meet those needs; (i) to liaise with educational, professional and training bodies (in either the public or private sectors) in relation to training and personnel development within the building and construction industry; (j) to promote, undertake or support programmes designed to facilitate the international exchange of information relevant to training or personnel development within the building and construction industry; (k) to perform any functions that are necessary or convenient for or incidental to the performance of functions referred to above. 12—Powers of the Board Subject to any limitation imposed by or under this Act, the Board has all the powers of a natural person. 13—Committees (1) For the purposes, or in the course, of performing its functions, the Board may establish such committees (which may, but need not, consist of or include members of the Board) as the Board thinks fit. (2) The Board must establish and maintain a committee in relation to each sector of the building and construction industry. (3) The functions of a committee established under subsection (2) are— (a) to represent the interests of its particular sector in relation to the management of the Fund; and (aa) to make representations to the Board in relation to the Training Plan; and (b) to advise the Board on the allocation of money from the Fund for the benefit of its particular sector; and (c) to advise the Board on any other matter relevant to its particular sector; and (d) to carry out other functions determined by the Board. (3a) The Board must establish and maintain a cross-sector planning committee. (3b) The functions of the committee established under subsection (3a) are— (a) to advise the Board on issues and trends that affect the building and construction industry as a whole; and (b) to advise the Board on the allocation of money from the Fund for the benefit of a section of the building and construction workforce, or the building and construction workforce as a whole; and (c) to represent the interests of professions and small businesses that provide important inputs to the building and construction industry; and (d) to make representations to the Board in relation to the Training Plan; and (e) to carry out other functions determined by the Board. (4) Subject to the regulations, a member of a committee holds office at the pleasure of the Board. (5) A member of a Committee is entitled to receive reimbursement, allowances and expenses approved by the Minister. (6) The allowances and expenses received by each committee member under subsection (5) must— (a) be included in the annual report of the Board prepared under section 17; and (b) be published on a website maintained by the Board to which the public has access free of charge. 14—Delegations (1) The Board may delegate any of the Board's functions or powers under this Act— (a) to a committee of the Board; or (b) to a particular individual. (2) A delegation under this section— (a) may be absolute or conditional; and (b) does not derogate from the power of the Board to act in any matter; and (c) is revocable at will by the Board. (3) In any legal proceedings an apparently genuine certificate, purportedly signed by a member of the Board, containing particulars of a delegation under this section will, in the absence of proof to the contrary, be accepted as proof that the delegation was made in accordance with the particulars. (4) The Board must ensure that a list of the delegations that it makes in a particular calendar year is included in its annual report for that year. 15—Common seal and execution of documents (1) A document is duly executed by the Board if— (a) the common seal of the Board is affixed to the document in accordance with this section; or (b) the document is signed on behalf of the Board by a person or persons in accordance with authority conferred under this section. (2) The common seal of the Board must not be affixed to a document except in pursuance of a decision of the Board, and the affixing of the seal must be attested by the signatures of two members of the Board. (3) The Board may, by instrument under its common seal, authorise a member of the Board, an officer of the Board (whether nominated by name or by office or title) or any other person to execute documents on behalf of the Board subject to conditions and limitations (if any) specified in the instrument of authority. (4) Without limiting subsection (3), an authority may be given so as to authorise two or more persons to execute documents jointly on behalf of the Board. Division 2—Accounts, audits and reports 16—Accounts and audit (1) The Board must cause proper accounts to be kept of its financial affairs. (2) The Auditor-General may at anytime, and must at least once in every year, audit the accounts of the Board. 17—Annual report (1) The Board must, on or before 31 March in each year, prepare a report on its activities during the preceding calendar year. (2) A report under this section must incorporate the audited financial statements of the Board for the calendar year to which the report relates. (3) The Board must cause a copy of the report to be presented to the Minister within seven days after the report is completed. (4) The Minister must, within 12 sitting days after receipt of a report under this section, cause a copy of the report to be laid before both Houses of Parliament. 17A—Reports to Minister If the Minister requests the Board, by written notice, to provide the Minister with a report relating to any matter relevant to the operation of the Board and this Act specified in the notice, the Board must comply with the request and provide a report to the Minister within the period stated in the notice. Division 3—Administration 18—Staff and resources (1) The staff of the Board are not public service employees. (2) The Board may, under an arrangement established by the Minister administering an administrative unit of the Public Service, make use of the services or staff of that administrative unit it considers necessary for the administration of this Act. 19—Collection agencies (1) The Board may appoint such persons or bodies to be collection agencies for the purposes of this Act as the Board thinks fit. (2) Any levy collected by a collection agency must be paid to the Board in accordance with instructions issued by the Board. (3) A collection agency is entitled to receive from the Board the remuneration agreed between the Board and the agency for carrying out the agency's functions under this Act. Part 4—Levies 20—Imposition of levy (1) Subject to this Act, a levy is imposed in respect of any building or construction work which commences after the commencement of this Act. 21—Rate of levy (1) The rate of the levy is 0.25 per cent of the estimated value of building or construction work, or such other percentage not exceeding 0.5 per cent of that value as the regulations may prescribe. (2) A regulation must not be made for the purposes of subsection (1) except on a recommendation of the Board. 22—Estimated value of building or construction work The estimated value of building or construction work will be determined in accordance with Schedule 1A. 23—Exemptions (1) The levy is not payable in respect of building or construction work if the estimated value of the work does not exceed the amount prescribed by the regulations. (2) The Board must, at least once in each 3 year period following the commencement of section 17 of the Construction Industry Training Fund (Miscellaneous) Amendment Act 2024, review the amount referred to in subsection (1) and may, following a review, recommend to the Minister that the amount be adjusted. (4) Where— (a) building or construction work is to be carried out on agricultural land; and (b) some or all of the work is to be carried out by the owner of the land, or by a person who will not be employed or engaged for remuneration to perform any part of the work; and (c) the owner of the land applies for the benefit of this provision in accordance with the regulations, the estimated value of the building or construction work will, for the purposes of the calculation and imposition of the levy, be taken to be as follows: