Bills Digest no. 143 2006–07
Building and Construction Industry Improvement Amendment
(OHS) Bill 2007
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
-
change the process of appointing Federal Safety
Officers
-
extend the application of the Australian
Government Building and Construction Industry Occupational Health
and Safety Accreditation Scheme ( the Scheme ) administered by the
Office of the Federal Safety Commissioner to cover situations where
building work is indirectly funded by the Commonwealth or a
Commonwealth authority. The Scheme was designed to allow the
Government to use its influence as a client and as the provider of
capital to improve the construction industry s occupational health
and safety (OHS) performance .(1)
-
ensure that persons are accredited under the
Scheme at the time of entering into a contract for building work
funded by the Commonwealth or a Commonwealth authority, and that
the Commonwealth or a Commonwealth authority takes appropriate
steps to see that such persons are also accredited while the
building work is being carried out
-
extend the accreditation requirement to direct
and indirect funding arrangements and pre-construction agreements
as defined, and widen the definition of builder
-
clarify that subsection 35(4) of the Act only
overrides Commonwealth provisions to the extent of any
inconsistency, and
-
allow the Federal Safety Commissioner and
persons working in the Office of the Federal Safety Commissioner to
disclose protected information gathered on the Scheme to the
Minister.
When introducing the Bill, Dr Sharman Stone,
MP, Minister for Workforce Participation stated:
The Building and Construction Industry
Improvement Amendment (OHS) Bill 2007 reinforces the government s
commitment to improving the occupational health and safety
performance of the building and construction industry.
In 2002-03, when Commissioner Cole reported on
the Royal Commission into the Building and Construction Industry,
the industry was one of the most dangerous to work in. There were
37 compensated fatalities in the industry, which comprised almost
one-fifth (18 per cent) of all compensated workplace fatalities for
the year. The industry also had the third highest incidence of
workplace injuries with more than 12,500 compensated injuries, or
34 injuries per day.
Occupational health and safety is a significant
issue for all of us. It affects us, our families and our friends.
The construction industry has traditionally been a poor performer
in the area of health and safety. This government has taken the
opportunity provided it to change this.(2)
The Bill is characterised as a response to
recommendations made by the Final
Report of the Royal Commission into the
Building and Construction Industry tabled in March 2003.
Volume 6 deals with OHS issues.
The background to the Royal Commission process
is dealt with at length by Peter Prince and Jacob Varghese Building
and Construction Industry Improvement Bill 2003 and Building and
Construction Industry Improvement Consequential and Transitional)
Bill 2003 , Bills Digest Nos. 129 130 2003-04.
The Australian Labor Party reportedly
announced its intention recently to abolish the Australian Building
and Construction Industry Commission. Building companies expressed
their opposition to the proposal.(3)
The Explanatory Memorandum states that the
measures in this Bill would have no significant impact on
Commonwealth expenditure.(4)
Item 1 amends existing
section 34 of the Act to enable the Federal Safety Commissioner,
rather than the Secretary, to appoint consultants and determine the
terms and conditions of their engagement. The Federal Safety
Commissioner may then appoint the person as a Federal Safety
Officer if satisfied that it is an appropriate appointment (see
existing section 60).
Currently, a person needs to be engaged by the
Secretary as a consultant to the Federal Safety Commissioner prior
to being appointed to the position of Federal Safety Officer. The
Explanatory Memorandum describes this appointment process as
cumbersome .(5)
Item 2 would repeal the
existing Part 2 of Chapter 4 and replace it with a proposed
Part 2 of Chapter 4.
Terms are defined in proposed
subsection 35(8). A builder is defined to mean a person
who carries out any of the building work. The Explanatory
Memorandum states that it is intended that regulations under
subsection 35(4) will be made to limit the accreditation
requirement to head contractors.(6)
Existing subsection 35(4) prohibits the
Commonwealth or a Commonwealth authority from entering into a
contract for building work with an unaccredited person but does not
extend to building work indirectly funded by the
Commonwealth or a Commonwealth authority. It also does not
require an accredited person to carry out the actual building
work.
Proposed paragraph 35(4)(b)
prohibits the Commonwealth or a Commonwealth authority from funding
building work unless the contract is with builders who are
accredited. Proposed paragraph 35(4)(c) further
provides that the Commonwealth or Commonwealth authority must take
appropriate steps to ensure that builders will be accredited while
the work is carried out. However, this subsection does not apply to
contracts which have been prescribed under the regulations.
The Explanatory Memorandum states:
Some examples of steps that would be considered
appropriate are placing a term in the contract that would require
the builder to maintain accreditation, or making inquiries about
the duration of the builder s accreditation.(7)
The Commonwealth or Commonwealth authority
would be considered to be funding building work if it:
-
directly or indirectly pays for, funds or
finances the building work, (proposed paragraph
35(5)(a), or
-
facilitates the carrying out of the building
work by entering into, or otherwise funding or financing (directly
or indirectly) a pre-construction agreement that relates to the
building work (proposed paragraph 35(5)(b)).
A pre-construction agreement is defined in
proposed subsection 35(8) as an agreement to lease
or transfer land, a building, or a part of a building on the
condition that building work will be carried out on the land, the
building or the part of the building .
Examples given in the Explanatory Memorandum
of indirectly procured building work are:
Commonwealth-State funding agreements where the
Commonwealth provides funding to a State or a third party who then
arranges for the building work to be carried out;
works carried out by joint ventures involving the Commonwealth or
Commonwealth authorities. These may be incorporated or
unincorporated;
works carried out by a wholly owned subsidiary of a Commonwealth
authority with money loaned by the Commonwealth
authority.(8)
Proposed subsection 35(6)
clarifies that subsection 35(4) only overrides Commonwealth law to
the extent of any inconsistency, unless the other provision
expressly refers to this section.
Proposed subsection 35(7)
provides that a contravention of subsection 35(4) would not affect
the validity of anything done by the Commonwealth or Commonwealth
authority in relation to building work.
The widened application of section 35 achieved
by these amendments may mean that the Scheme has a broader impact
on the States and Territories than under the current provisions in
the Act.
Items 3 and 4 make amendments
to existing section 65 of the Act which relate to the prohibited
disclosure of ‘protected information’. It is an offence
to disclose or record protected information, carrying a penalty of
12 months imprisonment, unless certain exceptions apply to
'designated officials'. Item 3 inserts
proposed paragraph 65(5)(aa) to insert that if an
entrusted person is a ‘designated ABC official’, and
discloses information to the Minister that is not for the purpose
of reporting, then the exceptions do not apply and it is an
offence.
Item 4 amends subsection
65(8) to insert that designated ABC official does not include the
Federal Safety Commissioner (FSC) or the Office of the Federal
Safety Commissioner (OFSC) or consultants. The result of this
interwoven drafting is to allow the FSC and the staff of the OFSC
to disclose information to the Minister over and above reporting
obligations. The amendments do not change or expand any of the
powers of the Australian Building and Construction
Commissioner.
Existing section 66 of
the Act provides that any reports are not to include information
relating to an individual s affairs if an individual is named
or people would be able to work out the identity of that individual
in context.
Endnotes
- Explanatory
Memorandum, p. 1.
- House of
Representatives, Debates, 29 March, 2007, p. 11.
- Paul Heinrichs, Labor
vows to muzzle union watchdog , Sunday Age, 22 April 2007,
p. 7.
- Explanatory
Memorandum, p. 2.
- Explanatory
Memorandum, p. 3.
- Explanatory
Memorandum, p. 4.
- Explanatory
Memorandum, p. 3.
- Explanatory
Memorandum, p. 4.
Sue Harris Rimmer and Patrick O'Neill
6 June 2007 (this replaced the 8 May 2007 version of this
Digest which contained an error in relation to schedule 1 items 3
and 4)
Bills Digest Service
Parliamentary Library
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ISSN 1328-8091
© Commonwealth of Australia 2007
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Published by the Parliamentary Library, 2007.
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