EXPLANATORY STATEMENT
(Issued by the authority of the Acting Director of the Fair Work Building Industry Inspectorate)
Fair Work (Building Industry) Act 2012
Direction to Fair Work Building Industry Inspectors
Background
By reason of section 59 of the Fair Work (Building Industry) Act 2012 (FWBI Act), the Director of the Fair Work Building Industry Inspectorate (the Director) is empowered to appoint Fair Work Building Industry Inspectors.
Subsection 59F(1) of the FWBI Act provides that the Director may, by legislative instrument, give a direction to Fair Work Building Industry Inspectors relating to the performance of their functions or the exercise of their powers. Subsection 59F(2) provides that the direction must be of a general nature only, and cannot relate to a particular case. Subsection 59F(3) provides that a Fair Work Building Industry Inspector must comply with the direction.
Consultation
No consultation was undertaken pursuant to section 17 of the Legislative Instruments Act 2003 because this Direction is unlikely to have a direct, or substantial indirect, effect on business and is unlikely to restrict competition. The Direction is of a minor nature and does not substantially alter existing arrangements.
Statement of compatibility with human rights
The Direction is compatible with the rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Direction does not engage any of the applicable rights or freedoms.
Notes on clauses
Clause 1
This clause specifies when the Direction will commence. The Direction will commence on the day after it is 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 Direction.
Clause 3
This clause requires Fair Work Building Industry Inspectors, when exercising powers or performing functions as Fair Work Building Industry Inspectors, to describe themselves as a "Fair Work Building Industry Inspector" and make sure that those who have dealings with the Office of the Fair Work Building Industry Inspectorate (the Office) are aware that the Office operates under the name “Fair Work Building & Construction” or “FWBC”.
Clause 4
This clause applies to commencing or intervening in civil proceedings in a court by a Fair Work Building Industry Inspector that relate to a building matter. The clause requires Fair Work Building Industry Inspectors, before commencing or intervening in civil proceedings, to comply with any Guidance Note concerning the litigation policy of the Director of the Fair Work Building Industry Inspectorate. It requires Fair Work Building Industry Inspectors to be satisfied that there is sufficient evidence (or, in the case of an appeal, sufficient merit), and that it is in the public interest, to commence or intervene in the civil proceedings. It also requires Fair Work Building Industry Inspectors to obtain the consent of the Director of the Fair Work Building Industry Inspectorate, or a member of the Director's staff authorised to give such consent, to commence or intervene in the civil proceedings.
Clause 5
This clause revokes the Direction to Inspectors made under subsection 57(4) of the Building and Construction Industry Improvement Act 2005 dated 28 February 2011 which is taken to continue in force as if it had been made under the FWBI Act by reason of section 2.4 of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Regulation 2012.