EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 337

 

 

Issued by the authority of the Minister for Employment and Workplace Relations

 

Building and Construction Industry Improvement Act 2005

 

Building and Construction Industry Improvement Amendment Regulations 2006 (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 (the Principal Regulations) relate to any matters under the Act other than the Scheme.

 

The Regulations amend the Principal Regulations to allow for the FSC and persons working in the Office of the FSC to disclose information on the OHS performance of contractors accredited under the Scheme:

• to any person, if the FSC believes it to be in the public interest; and
• to other government agencies, including Federal, State and Territory OHS regulators.

The Regulations also amend provisions of the Principal Regulations to prescribe the types of litigation about which industry participants are required to notify the Australian Building and Construction Commissioner (ABC Commissioner).

 

Disclosure by the FSC

Section 65 of the Act restricts what a person may do with protected information that the person has obtained for the purposes of the Act during the course of employment by the Commonwealth or a Commonwealth authority. Subsections 65(3) and 65(4) of the Act permit disclosure of protected information where the disclosure is for the purposes of the Act or made in the course of the person’s official employment. However, disclosure is also permitted if made in accordance with regulations made for the purpose of subsections 65(3) or 65(4).

 

The Regulations prescribe additional exceptions to the prohibition on the disclosure of protected information defined by the Act to allow the FSC to disclose information about the Scheme that would promote best practice in OHS in the building and construction industry.

 

Notification Requirements

Regulation 8.1 of the Principal Regulations formerly operated so that building industry participants were required to inform the ABC Commissioner of all court applications under the Act and the Workplace Relations Act 1996 in which they were involved. This included informing the ABC Commissioner about matters that were unrelated to building work and unrelated to the ABC Commissioner’s role. The requirement in its previous form imposed an unnecessary burden on building industry participants. They had to unnecessarily devote time and resources providing the ABC Commissioner with information that the ABC Commissioner did not need. Equally, the ABC Commissioner had to unnecessarily devote time to dealing with this information, which he/she could not use.

 

The Regulations amend the Principal Regulations so that notification to the ABC Commissioner is only required where the relevant proceedings relate to building work (as defined in section 5 of the Act).

 

Consultation in relation to the Regulations was undertaken by the Office of the FSC with selected government departments and agencies, private companies and industry associations.

 

The Act specifies no conditions that needed 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.