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.
Overview
The Fair Work (Building Industry) Act 2012 was enacted to address issues within the building industry, particularly concerning workplace relations and ensuring fair practices. The Act was introduced by the Australian Parliament to provide a comprehensive framework for improving productivity, fairness, and efficiency in the building industry. The policy objective was to create a more robust and transparent regulatory environment, aiming to protect the rights of workers while also ensuring that industry practices are fair and efficient. This legislation aimed to fill a gap by replacing the outdated Building and Construction Industry Improvement Act 2005, thereby modernising the regulatory approach to the building industry. Under this Act, the Fair Work Building Industry Inspectorate was empowered to issue directions to inspectors, ensuring that they adhere to certain standards and policies when performing their duties.
Scope and Application
The Fair Work (Building Industry) Act 2012 applies to the building and construction industry, regulating the conduct of Fair Work Building Industry Inspectors, who are empowered by the Director of the Fair Work Building Industry Inspectorate to enforce the provisions of this Act. The Inspectors must comply with the directions given by the Director, which include ensuring that they identify themselves appropriately and adhere to the litigation policy set forth in any Guidance Notes provided by the Director. The Act applies to civil proceedings related to building matters and requires Inspectors to verify the sufficiency of evidence, the public interest, and obtain consent from the Director before initiating or intervening in such proceedings. This legislation operates at the Commonwealth level and extends its reach to all entities and persons involved in the building industry across Australia. The Act also revokes any prior conflicting directions under the Building and Construction Industry Improvement Act 2005, ensuring a streamlined regulatory framework under the Fair Work (Building Industry) Act 2012.
Key Provisions
The Fair Work (Building Industry) Act 2012 Direction to Fair Work Building Industry Inspectors outlines key provisions for Inspectors when exercising their powers and performing their functions. Section 3 of the Direction requires Inspectors to identify themselves as such and ensure that any parties interacting with the Office of the Fair Work Building Industry Inspectorate are aware that the Office operates under the names “Fair Work Building & Construction” or “FWBC” (Clause 3). Section 4 of the Direction governs the circumstances under which Inspectors may commence or intervene in civil proceedings relating to building matters. Inspectors must adhere to any relevant Guidance Notes concerning the litigation policy of the Director, and must be satisfied that there is sufficient evidence or merit, and that it is in the public interest, to proceed with the proceedings. Additionally, Inspectors must obtain the consent of the Director or an authorised member of the Director’s staff before taking such action (Clause 4).
The obligations imposed on parties by this Act require Fair Work Building Industry Inspectors to follow specific protocols when exercising their powers and performing their duties. Inspectors must clearly identify themselves as such and ensure that any relevant parties are aware of the operational identity of the Office of the Fair Work Building Industry Inspectorate. Furthermore, Inspectors must adhere to any Guidance Notes provided by the Director regarding litigation policies and must ensure they have sufficient evidence or merit to justify commencing or intervening in civil proceedings. Inspectors must also obtain the necessary consent from the Director or an authorised member of the Director’s staff before taking any such legal action.
In terms of consequences for non-compliance, the Act does not explicitly state offences, penalties, or specific civil or criminal consequences for breach. However, Inspectors who fail to comply with the Direction may face disciplinary actions or other measures as deemed appropriate by the Director of the Fair Work Building Industry Inspectorate. Non-compliance with the requirements to identify themselves correctly or to follow the prescribed protocols for commencing or intervening in civil proceedings could potentially lead to such actions, although the specific penalties or consequences are not detailed within the provided text.