EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 127
Issued by the authority of the Minister for Employment and Workplace Relations.
Building and Construction Industry Improvement Act 2005
Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2007 (No. 1)
The Building and Construction Industry Improvement Act 2005 (the Act) provides for improved workplace relations practices in the building and construction industry.
Section 78 of the Act provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005 (the Accreditation Regulations) established an Occupational Health and Safety (OHS) accreditation scheme, administered by the Federal Safety Commissioner (FSC), for persons who wish to enter into building contracts with the Commonwealth or Commonwealth authorities. The scheme is known as the Australian Government Building and Construction Occupational Health and Safety Accreditation Scheme (the Scheme). The Building and Construction Industry Improvement Regulations 2005 relate to any matters under the Act other than the Scheme.
The Regulations amend the Accreditation Regulations to modify the application of the Scheme in circumstances where the contracting person is not the actual builder.
Subsection 35(4) of the Act provides that the Commonwealth or Commonwealth authority must not enter into a Commonwealth building contract with persons who are not accredited under the Scheme. This requirement does not apply to contracts prescribed by the Accreditation Regulations.
Subsection 35(4) of the Act formerly operated to require that the Commonwealth or Commonwealth authority ensured that the person who it entered into a Commonwealth building contract with was accredited under the Scheme. However, in situations where the person who entered into a contract with the Commonwealth or Commonwealth authority did not perform the building work, but instead arranged for the building work to be carried out by a third party, the Scheme, in its previous form, did not operate to require that third party to be accredited.
The Regulations rectify this, by providing that a person does not necessarily have to be accredited under the Scheme when they agree to enter into a contract, provided that the contract ensures that the person only engages accredited persons to carry out that building work and the contract is approved by the Federal Safety Commissioner before it is signed on behalf of the Commonwealth or a Commonwealth authority. These changes ensure that persons such as developers and consortiums, who do not undertake building work, do not require Scheme accreditation.
Section 30 of the Act lists the functions of the Federal Safety Commissioner. Paragraph 30(h) provides that the Federal Safety Commissioner has the functions conferred by the Accreditation Regulations. The Regulations also provide the Federal Safety Commissioner with an additional function of approving contracts as mentioned above.
Consultation in relation to the Regulations was undertaken with the Office of the Federal Safety Commissioner.
The Act does not impose any conditions that need to be satisfied before the power to make the Regulations was exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Overview
The Building and Construction Industry Improvement Act 2005 was enacted by the Australian Parliament to enhance workplace relations practices within the building and construction industry. The Act aims to improve the quality and safety of building and construction work by establishing a framework for better regulation and management of occupational health and safety. As part of this legislative framework, the Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2007 were introduced to refine the operational aspects of the accreditation scheme established under the Act. These amendments address a specific issue where the previous scheme did not adequately require the accreditation of third-party builders engaged by contracting entities, thus ensuring that all parties involved in Commonwealth building contracts adhere to the required safety standards. The regulations were designed to ensure that developers and consortiums, who may not perform the building work themselves but engage others to do so, are not required to be accredited, provided they comply with the new stipulations regarding the engagement of accredited builders and obtain approval from the Federal Safety Commissioner for their contracts.
Scope and Application
The Building and Construction Industry Improvement Act 2005 applies to persons and entities involved in entering into building contracts with the Commonwealth or Commonwealth authorities. Specifically, the Act is concerned with improving workplace relations practices in the building and construction industry. The geographic or jurisdictional reach of the Act is national, as it pertains to the Commonwealth of Australia. The Act's scope is further defined by the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005, which establish the Occupational Health and Safety (OHS) accreditation scheme for persons entering into building contracts with the Commonwealth. The Accreditation Scheme is administered by the Federal Safety Commissioner. The Act also includes the Building and Construction Industry Improvement Regulations 2005, which relate to matters under the Act other than the Scheme. The Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2007 (No. 1) extend the application of the Scheme to ensure that third parties performing building work under contracts with the Commonwealth or Commonwealth authorities are also accredited, provided that the contracting person ensures only accredited persons carry out the work and the contract is approved by the Federal Safety Commissioner.
Key Provisions
The main operative sections of the Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2007 (No. 1) (the Regulations) are designed to modify the application of the Australian Government Building and Construction Occupational Health and Safety Accreditation Scheme (the Scheme) by allowing certain contracting persons who do not perform the actual building work to enter into Commonwealth building contracts without themselves being accredited under the Scheme. This is achieved through amendments to the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005 (the Accreditation Regulations). Specifically, Regulation 3 amends the Accreditation Regulations by providing that a person who agrees to enter into a contract for building work with the Commonwealth or a Commonwealth authority does not necessarily have to be accredited under the Scheme, provided that the contract includes provisions ensuring that the person only engages accredited persons to carry out the building work and that the contract is approved by the Federal Safety Commissioner before it is signed on behalf of the Commonwealth or a Commonwealth authority (Regulation 3(1)). This amendment aims to accommodate situations where developers or consortiums, who do not directly undertake the building work, are involved in the contracting process.
The Regulations impose certain obligations and requirements on parties involved in Commonwealth building contracts. For example, any person who agrees to enter into such a contract must ensure that their contract stipulates the engagement of accredited persons for the actual building work. Furthermore, the contract must be submitted to and approved by the Federal Safety Commissioner before it is signed on behalf of the Commonwealth or a Commonwealth authority (Regulation 3(2)). This ensures that the safety and health standards set by the Scheme are upheld even when the contracting party is not directly performing the work. The Federal Safety Commissioner, as defined in Section 30 of the Building and Construction Industry Improvement Act 2005, has the functions conferred by the Accreditation Regulations and is tasked with approving these contracts as per the new requirements outlined in the Regulations.
Breaches of the Building and Construction Industry Improvement Act 2005 and its associated Regulations can lead to serious consequences. Under Section 35 of the Act, the Commonwealth or a Commonwealth authority must not enter into a Commonwealth building contract with persons who are not accredited under the Scheme, unless the contract has been approved by the Federal Safety Commissioner in accordance with the Regulations. Failure to comply with this requirement can result in legal penalties. While the specific penalties are not detailed in the Explanatory Statement, it is clear that such breaches could be subject to enforcement actions under the Act, potentially leading to civil or criminal consequences depending on the nature and severity of the breach. The Act's provisions are designed to uphold occupational health and safety standards in the building and construction industry, ensuring that all involved parties adhere to the necessary safety requirements.