EXPLANATORY STATEMENT
(Issued by the authority of the Australian Building and Construction Commissioner)
Building and Construction Industry Improvement Act 2005
Direction to Inspectors
Background
By reason of subsection 57(1) of the Building and Construction Industry Improvement Act 2005 (BCII Act), the Australian Building and Construction Commissioner is empowered to appoint Australian Building and Construction Inspectors (ABC Inspectors).
By reason of subsection 700(1) of the Fair Work Act 2009 (FW Act), the Fair Work Ombudsman is empowered to appoint Fair Work Inspectors.
From 1 March 2011, the Fair Work Ombudsman has appointed a number of ABC Inspectors as Fair Work Inspectors.
Under subsection 57(4) of the BCII Act, ABC Inspectors, in the performance of their functions or the exercise of their powers as ABC Inspectors, are required to comply with Directions made by the Australian Building and Construction Commissioner.
Consultation
No consultation was undertaken pursuant to section 17 of the Legislative Instruments Act 2003 because these Directions are unlikely to have a direct, or substantial indirect, effect on business and are unlikely to restrict competition. The Directions are technical in nature and do not substantially alter existing arrangements.
Notes on clauses
Clause 1
This clause specifies when the Directions will commence. The Directions will commence on the day that they are registered on the Federal Register of Legislative Instruments.
Clause 2
This clause is a formal definitions provision. It provides definitions for commonly used words and phrases in the Directions.
Clause 3
This clause applies to litigation action commenced or intervened in by Fair Work Inspectors who are also appointed as ABC Inspectors. The clause requires such Fair Work Inspectors, before commencing or intervening in litigation, to comply with relevant Guidance Notes, be satisfied that there is sufficient evidence and it is the public interest to commence litigation, and obtain the consent of the Australian Building and Construction Commissioner or an authorised Senior Executive Service member of the staff of the Office of the Australian Building and Construction Commissioner.
Overview
The Building and Construction Industry Improvement Act 2005, enacted by the Australian Parliament, was introduced to address issues of non-compliance and poor practices within the building and construction industry. This Act empowered the Australian Building and Construction Commissioner to appoint Australian Building and Construction Inspectors, tasked with enforcing the provisions of the Act. The 2011 legislative instrument F2011L00468, issued by the Australian Building and Construction Commissioner, provides directions to these Inspectors, particularly those who have also been appointed as Fair Work Inspectors under the Fair Work Act 2009. The Directions aim to ensure that Inspectors comply with specific procedural requirements when initiating or intervening in litigation, including adherence to Guidance Notes, verification of sufficient evidence, consideration of the public interest, and obtaining necessary consent from the Commissioner or an authorised senior executive. These Directions are designed to maintain the integrity and effectiveness of enforcement actions within the industry.
Scope and Application
The Building and Construction Industry Improvement Act 2005 applies to various entities and individuals within the building and construction industry, including employers, employees, contractors, and subcontractors. The Act has a broad jurisdictional reach as it applies at the national level across Australia, overseen by the Australian Building and Construction Commissioner. The scope of the Act encompasses conduct and transactions related to workplace practices, ensuring compliance with building and construction industry regulations. However, certain exclusions and exemptions may apply based on specific circumstances or thresholds outlined in the Act. The Act’s application can be further refined through subordinate instruments, which may extend or restrict its application to certain sectors or types of activities within the industry. These Directions, issued under the Act, mandate that Fair Work Inspectors, who are also appointed as ABC Inspectors, must adhere to specific procedures before initiating or intervening in litigation, including complying with relevant Guidance Notes, ensuring sufficient evidence, and obtaining necessary consents from the Commissioner or authorised personnel.
Key Provisions
The primary operative sections of these Directions, as outlined in Clause 3, mandate that Fair Work Inspectors who are also appointed as Australian Building and Construction Inspectors must adhere to specific procedures before initiating or intervening in litigation. These include following relevant Guidance Notes, ensuring there is sufficient evidence, confirming that it is in the public interest to commence litigation, and obtaining the consent of the Australian Building and Construction Commissioner or an authorised Senior Executive Service member of the Office of the Australian Building and Construction Commissioner. The Directions, which come into effect on the day they are registered on the Federal Register of Legislative Instruments, are intended to regulate the actions of these dual-role inspectors, ensuring that their litigation activities are both legally sound and in the public interest.
The Act imposes several obligations on the parties or entities it governs, particularly on the Fair Work Inspectors who also serve as Australian Building and Construction Inspectors. Firstly, they are required to comply with any Directions issued by the Australian Building and Construction Commissioner. This includes adhering to the Guidance Notes relevant to their dual roles and ensuring they have sufficient evidence to support any litigation they are involved in. Additionally, they must seek and obtain the consent of the Australian Building and Construction Commissioner or an authorised Senior Executive Service member before proceeding with litigation, thereby ensuring that the decision to litigate is both legally justified and in the public interest. These obligations are designed to maintain a high standard of accountability and transparency in the activities of these inspectors.
Any breach of the provisions outlined in these Directions could lead to civil or criminal consequences. While the specific penalties are not detailed within the explanatory statement, breaches of similar provisions in related legislation typically result in fines and other penalties. For instance, under the Building and Construction Industry Improvement Act 2005, individuals or entities found to be in breach of the Act's provisions may face substantial fines. The maximum penalties can vary depending on the specific breach, but they are intended to be sufficiently stringent to deter non-compliance. Given the importance of the roles of the inspectors involved, the consequences for failing to adhere to these Directions are likely to be significant.