Fair Work (Building Industry) Act 2012

1 Short title

This Act may be cited as the Fair Work (Building Industry) Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1, 2 and 3 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>12</span><span> </span><span>September 2005</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>4 to 8</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>March 2005.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>March 2005</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>3. Chapters</span><span> </span><span>2, 3 and 4</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>12</span><span> </span><span>September 2005</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>4. Sections</span><span> </span><span>36, 37 and 38</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>March 2005.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>March 2005</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>5. Sections</span><span> </span><span>39 and 40</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>12</span><span> </span><span>September 2005</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>6. Sections</span><span> </span><span>41 and 42</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>March 2005.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>March 2005</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>7. Chapter</span><span> </span><span>6</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>12</span><span> </span><span>September 2005</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>8.</span><span> </span><span>Chapters</span><span> </span><span>7 and 8</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day on which this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>12</span><span> </span><span>September 2005</span></p></td></tr></tbody></table>

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 contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative, productive and harmonious workplace relations in the building industry by: (a) ensuring compliance with workplace relations laws by all building industry participants; and (b) providing information, advice and assistance to all building industry participants about their rights and obligations; and (c) providing an effective means of enforcing those rights and obligations; and (d) providing appropriate safeguards on the use of enforcement and investigative powers; and (e) improving the level of occupational health and safety in the building industry.

4 Definitions

(1) In this Act, unless the contrary intention appears:

AAT presidential member means a person who is a presidential member of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

accreditation scheme means the accreditation scheme referred to in section 35.

Advisory Board means the Fair Work Building Industry Inspectorate Advisory Board referred to in section 23.

Australian Fair Pay and Conditions Standard has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

AWA has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

award has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

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 Code means the code of practice referred to in section 27.

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 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 matter has the meaning given by subsection 59C(3).

building work has the meaning given by section 5.

Commonwealth industrial instrument means any of the following:

(a) an award or transitional award;
(b) a workplace agreement;
(c) a pre‑reform certified agreement or a pre‑reform AWA;
(d) an order of the Australian Industrial Relations Commission;
(e) the Australian Fair Pay and Conditions Standard;
(f) a fair work instrument;
(g) the National Employment Standards.

Commonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976.

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.

CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.

designated building law means:

(a) the Independent Contractors Act 2006, the FW Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or
(b) a Commonwealth industrial instrument.

Director means the Director of the Fair Work Building Industry Inspectorate referred to in section 9.

eligibility rules means rules that relate to the conditions of eligibility for membership.

examination has the meaning given by subsection 51(1).

examination notice means an examination notice issued under Division 3 of Part 1 of Chapter 7.

Fair Work Building Industry Inspector means:

(a) the Director; or
(b) a person appointed as a Fair Work Building Industry Inspector under section 59.

Fair Work Inspector has the same meaning as in the FW Act.

fair work instrument has the same meaning as in the FW Act.

Fair Work Ombudsman has the same meaning as in the FW Act.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

Federal Safety Commissioner means the Federal Safety Commissioner referred to in section 29.

Federal Safety Officer means a Federal Safety Officer referred to in section 60.

FW Act means the Fair Work Act 2009.

FWC means the Fair Work Commission.

Independent Assessor means the Independent Assessor—Special Building Industry Powers referred to in section 36B.

independent contractor has the same meaning as in the FW Act.

industrial association means:

(a) an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law (within the meaning of the FW Act); or
(b) an association of employees, or independent contractors, or both, a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or
(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment, independent contractors or both;

and includes: (d) a branch of such an association; and (e) an organisation; and (f) a branch of an organisation.

inspector means a Fair Work Building Industry Inspector.

investigation means an investigation to which Part 1 of Chapter 7 applies.

lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.

National Employment Standards has the same meaning as in the FW Act.

nominated AAT presidential member means an AAT presidential member in respect of whom a nomination is in force under section 44 to issue examination notices under Division 3 of Part 1 of Chapter 7.

occupier has the same meaning as in the FW 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.

Office means the Office of the Fair Work Building Industry Inspectorate referred to in section 26J.

officer, in relation to an organisation or industrial association, means a person who holds an office in the organisation or association.

organisation has the same meaning as in the Fair Work (Registered Organisations) Act 2009.

premises has the same meaning as in the FW Act.

pre‑reform AWA has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

pre‑reform certified agreement has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

safety net contractual entitlement has the same meaning as in the FW Act.

Secretary means the Secretary of the Department.

this Act includes the regulations.

transitional award has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

workplace agreement means a workplace agreement within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, and includes an AWA.

(2) In this Act, unless the contrary intention appears: (a) a reference to employee has its ordinary meaning; and (b) a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning; and (c) a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement; and (d) a reference to employer has its ordinary meaning; and (e) a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.

5 Definition of building work

(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 on‑site prefabrication of made‑to‑order components to form part of any building, structure or works; (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.

6 Definition of office

(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.

7 Extension to Christmas Island

(1) This Act extends to the Territory of Christmas Island. (2) This Act applies in relation to the Territory of Christmas Island with such modifications as are prescribed by the regulations.

8 Act to bind Crown

(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.

Chapter 2—Fair Work Building Industry Inspectorate

Part 1—Director

9 Establishment

There is to be a Director of the Fair Work Building Industry Inspectorate.

10 Functions

The Director has the following functions: (a) to promote: (i) harmonious, productive and cooperative workplace relations in the building industry; and (ii) compliance with designated building laws and the Building Code by building industry participants; including by providing education, assistance and advice to building industry participants; (b) to monitor compliance with designated building laws and the Building Code by building industry participants; (c) to inquire into, and investigate, any act or practice by a building industry participant that may be contrary to a designated building law, a safety net contractual entitlement or the Building Code; (d) to commence proceedings in a court, or to make applications to the FWC, to enforce designated building laws and safety net contractual entitlements as they relate to building industry participants; (e) to refer matters to relevant authorities; (f) to represent building industry participants who are, or may become, a party to proceedings in a court, or a party to a matter before the FWC, under a designated building law, if the Director considers that representing the building industry participants will promote compliance with designated building laws; (g) to disseminate information about designated building laws and the Building Code, and about other matters affecting building industry participants, including disseminating information by facilitating ongoing discussions with building industry participants; (h) to make submissions and provide information to the Independent Assessor in accordance with this Act; (i) any other functions conferred on the Director by any Act.

Note: The Director also has the functions of an inspector (see section 59A).

11 Minister’s directions

(1) The Minister may, by legislative instrument, give directions to the Director about: (a) the policies, programs and priorities of the Director; and (b) the manner in which the Director is to perform the functions or exercise the powers of the Director. (2) The Minister must not give a direction under subsection (1) about a particular case. (3) The Director must comply with a direction under subsection (1). (4) Despite anything in regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a direction under subsection (1) of this section.

12 Minister may require reports

(1) The Minister may, in writing, direct the Director to give the Minister specified reports relating to the Director’s functions and powers.

Note: See also section 66, which restricts the disclosure of personal information in a report.

(2) The Director must comply with the direction. (3) A direction under subsection (1) is not a legislative instrument.

13 Delegation by the Director

General power to delegate (1) Subject to subsections (2) and (3), the Director may, in writing, delegate all or any of the Director’s functions or powers under any Act to: (a) a member of staff referred to in subsection 26K(1); or (b) an inspector. Functions and powers that must not be delegated (2) The Director must not delegate his or her functions or powers: (a) as an inspector; or (b) under section 45 (which deals with applying for an examination notice); or (c) under subsection 50(3) or (4) (which deal with varying the time for compliance with an examination notice). Functions and powers that may only be delegated to SES employees (3) The Director must not delegate his or her functions or powers under the following provisions to anyone other than a member of staff referred to in subsection 26K(1) who is an SES employee: (a) subsection 51(2) (which deals with conducting an examination); (b) subsection 51(4) (which deals with administering an oath or affirmation at an examination). Delegate subject to direction (4) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Director. Details of delegation must be published (5) As soon as practicable after delegating any function or power under this section, the Director must publish details of the delegation.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

14 Annual report

(1) The Director must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the performance of the Director’s functions and the exercise of the Director’s powers during that year.

Note 1: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

Note 2: See also section 66 of this Act, which restricts the disclosure of personal information in a report.

(2) The report must include: (a) details of directions given by the Minister during the financial year under section 11 or 12; and (b) details of delegations by the Director under section 13 during the financial year; and (c) details of recommendations made to the Director by the Advisory Board during the financial year.

15 Appointment

(1) The Director is to be appointed by the Minister by written instrument. (2) The appointment is to be on a full‑time basis. (3) The Minister must not appoint a person as the Director unless the Minister is satisfied that the person: (a) has suitable qualifications or experience; and (b) is of good character. (4) The Director holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. (5) The Director holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

16 Acting appointments

The Minister may, by written instrument, appoint a person to act as the Director: (a) during a vacancy in the office of Director (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Director: (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

17 Remuneration

(1) The Director 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 Director is to be paid the remuneration that is prescribed by the regulations. (2) The Director is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973.

18 Leave of absence

(1) The Director has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Minister may grant the Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

19 Engaging in other paid employment

The Director must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

20 Disclosure of interests

The Director must give written notice to the Minister of all material personal interests that the Director has or acquires and that conflict or could conflict with the proper performance of the Director’s functions.

21 Resignation

(1) The Director may resign his or her appointment by giving the Minister a written resignation. (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

22 Termination

(1) The Minister may terminate the appointment of the Director for misbehaviour or physical or mental incapacity. (2) The Minister must terminate the appointment of the Director if: (a) the Director: (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 Director is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (c) the Director engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 19); or (d) the Director fails, without reasonable excuse, to comply with section 20.

Part 2—Fair Work Building Industry Inspectorate Advisory Board

23 Establishment

The Fair Work Building Industry Inspectorate Advisory Board is established by this section.

24 Role

The Advisory Board is to make recommendations to the Director about: (a) policies to guide the performance of the Director’s functions and the exercise of the Director’s powers; and (b) the priorities of, and the programs to be implemented by, the Director; and (c) any matter that the Minister requests the Advisory Board to consider.

25 Membership

The Advisory Board consists of the following members: (a) the Director; (b) the Fair Work Ombudsman; (c) one member who has experience or background in employee representation in the building industry; (d) one member who has experience or background in employer representation in the building industry; (e) no more than 3 other members.

26 Appointment of members

(1) A member of the Advisory Board (other than the Director or the Fair Work Ombudsman) is to be appointed by the Minister by written instrument.

Note: A member of the Advisory Board is eligible for reappointment (see section 33AA of the Acts Interpretation Act 1901).

(2) The Minister must not appoint a person as a member unless the Minister is satisfied that the person has knowledge of, or experience in, one or more of the following fields: (a) workplace relations; (b) law; (c) business, industry or commerce. (3) A member appointed by the Minister holds office on a part‑time basis. (4) A member appointed by the Minister holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

26A Chair

(1) The Minister must appoint a member (other than the Director or the Fair Work Ombudsman) to be the Chair of the Advisory Board. (2) The Minister may, by written instrument, appoint a member (other than the Director or the Fair Work Ombudsman) to act as the Chair: (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chair: (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to perform the duties of the office.

Note: See sections 20 and 33A of the Acts Interpretation Act 1901.

26B Remuneration of members

(1) A member appointed by the Minister 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 member is to be paid the remuneration that is prescribed by the regulations. (2) A member appointed by the Minister is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973.

26C Leave of members

(1) The Minister may grant the Chair leave of absence on the terms and conditions that the Minister determines. (2) The Chair may grant leave of absence to any other member on the terms and conditions that the Chair determines. (3) The Chair must notify the Minister if the Chair grants to a member leave of absence for a period that exceeds 6 months.

26D Resignation of members

(1) A member appointed by the Minister may resign his or her appointment by giving the Minister a written resignation. (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

26E Termination of appointment

(1) The Minister may terminate the appointment of a member (other than the Director or the Fair Work Ombudsman) for misbehaviour or physical or mental incapacity. (2) The Minister must terminate the appointment of a member (other than the Director or the Fair Work Ombudsman) if: (a) the member: (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 member is absent, except on leave of absence, from 3 consecutive meetings of the Advisory Board.

26F Other terms and conditions

A member (other than the Director or the Fair Work Ombudsman) holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

26G Meetings

(1) The Chair must convene: (a) such meetings of the Advisory Board as are, in his or her opinion, necessary for the performance of its role; and (b) at least 2 meetings of the Advisory Board in each financial year; and (c) such meetings of the Advisory Board as are requested by the Director. (2) The quorum for a meeting is the Chair, the Director and the Fair Work Ombudsman. (3) A question arising at a meeting of the Advisory Board is to be decided by a majority of the votes of the members present and voting. (4) The Chair must preside at all meetings. (5) At a meeting, the Chair has a deliberative vote and, in the event of an equality of votes, has a casting vote.

26H Decisions without meetings

(1) The Advisory Board is taken to have made a decision at a meeting if: (a) without meeting, a majority of the members indicate agreement with the decision; and (b) that agreement is indicated in accordance with the method determined by the Advisory Board under subsection (2); and (c) all the members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision. (2) Subsection (1) applies only if the Advisory Board: (a) has determined that it may make decisions of that kind without meeting; and (b) has determined the method by which members are to indicate agreement with proposed decisions. (3) The Advisory Board must keep a record of decisions made in accordance with this section.

Part 3—Office of the Fair Work Building Industry Inspectorate

26J Office of the Fair Work Building Industry Inspectorate

The Office of the Fair Work Building Industry Inspectorate is established by this section.

26K Staff

(1) The staff of the Office are to be persons engaged under the Public Service Act 1999. (2) For the purposes of the Public Service Act 1999: (a) the Director and the staff of the Office together constitute a Statutory Agency; and (b) the Director is the Head of that Statutory Agency.

26L Persons assisting the Director

The Director may also be assisted: (a) by employees of Agencies (within the meaning of the Public Service Act 1999); or (b) by officers and employees of a State or Territory; or (c) by officers and employees of authorities of the Commonwealth, a State or a Territory; whose services are made available to the Director in connection with the performance of any of his or her functions.

Note: For example, State or Territory employees could be made available to assist the Director in providing education in a particular region.

26M Consultants

The Director may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the Director. The terms and conditions of the engagement of a person are such as are determined by the Director 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).

Chapter 3—The Building Code

27 Minister to issue Building Code

(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 under that subsection 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) A document issued under subsection (1) is a legislative instrument.

Chapter 4—Occupational health and safety

29 Federal Safety Commissioner

(1) The Secretary must, by writing, designate a position in the Department as the position of Federal Safety Commissioner.

Note: For creation of positions, see section 77 of the Public Service Act 1999.

(2) That position can only be occupied by an SES employee. (3) The Federal Safety Commissioner is the SES employee who occupies that position. (4) An instrument under subsection (1) is not a legislative instrument.

30 Functions of 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.

31 Minister’s directions to Federal Safety Commissioner

(1) The Minister may give written directions to the Federal Safety Commissioner 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 a direction under subsection (1). (4) A direction under subsection (1) is a legislative instrument. (5) Despite anything in regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a direction under subsection (1) of this section.

32 Delegation by Federal Safety Commissioner

(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.

33 Acting Federal Safety Commissioner

If an SES employee is acting in the position of Federal Safety Commissioner: (a) the SES employee has and may exercise all the powers, and is to perform all the functions and duties, of the occupier of the position of Federal Safety Commissioner; and (b) this Act, and any other law of the Commonwealth, applies in relation to the SES employee as if the SES employee were the occupier of the position of Federal Safety Commissioner.

34 Consultants

(1) The Federal Safety Commissioner may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the Federal Safety Commissioner. (2) The terms and conditions of the engagement of a person are such as are determined by the Federal Safety Commissioner in writing.

35 Accreditation scheme

Accreditation scheme (1) The regulations may prescribe an accreditation scheme for persons who wish to carry out building work funded by the Commonwealth or a Commonwealth authority. (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 work to be carried out by accredited persons (4) The Commonwealth or a Commonwealth authority must not fund building work unless: (a) contracts for the building work entered into with builders will be entered into with builders who are accredited persons; and (b) at the time of the funding, the Commonwealth or Commonwealth authority, as the case may be, takes appropriate steps to ensure that builders will be accredited persons when they carry out the building work. This subsection does not apply to building work prescribed by the regulations. (5) For the purposes of this section, the Commonwealth or a Commonwealth authority funds building work if it: (a) pays for, or otherwise funds or finances, the building work (whether directly or indirectly); or (b) facilitates the carrying out of the building work by entering into, or otherwise funding or financing (whether directly or indirectly), a pre‑construction agreement that relates to the building work. (6) If another Commonwealth provision is inconsistent with subsection (4), subsection (4) prevails to the extent of the inconsistency unless the other provision expressly refers to this section. (7) Failure to comply with subsection (4) does not affect the validity of anything done by the Commonwealth or a Commonwealth authority in relation to building work. (8) In this section:

accredited person means a person who is accredited under the accreditation scheme.

builder, in relation to building work, means a person who carries out any of the building work.

Commonwealth authority means a Commonwealth authority within the meaning of the Commonwealth Authorities and Companies Act 1997.

Commonwealth provision means a provision of a law of the Commonwealth.

pre‑construction agreement means an agreement to lease or transfer land, a building or a part of a building on the condition, or on conditions that include the condition, that building work will be carried out on the land, the building or the part of the building.

Chapter 7—Enforcement