Building Industry Act 1985

No. 92, 1985

Compilation No.   3

Compilation date: 21 October 2016

Includes amendments up to: Act No. 61, 2016

Registered: 1 November 2016

About this compilation

This compilation

This is a compilation of the Building Industry Act 1985 that shows the text of the law as amended and in force on 21 October 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Interpretation 1

3A Application of Criminal Code 3

4 Application to Commission for declaration in relation to Federation 4

5 Orders by Minister in relation to Federation 6

6 Powers and procedure of Commission 9

7 Effect on Federation of cancellation of registration 10

8 Limitation on coverage of work by Federation 10

9 Minister may allocate coverage of Federation work to other organizations 12

10 Commission may allocate coverage of Federation work to other organizations 13

11 Proceedings under subsection 139(1) of the Conciliation and Arbitration Act 14

12 Evidence of declaration 15

13 Orders by the Minister 15

14 Regulations 15

15 Cessation of Act 15

Endnotes 16

Endnote 1—About the endnotes 16

Endnote 2—Abbreviation key 18

Endnote 3—Legislation history 19

Endnote 4—Amendment history 20

An Act relating to the building industry
1 Short title

This Act may be cited as the Building Industry Act 1985.
2 Commencement

This Act shall come into operation on the day on which it receives the Royal Assent.
3 Interpretation 1

In this Act, unless the contrary intention appears:

award means an award made under the Conciliation and Arbitration Act, an order made by the Commission under that Act, an industrial agreement made pursuant to that Act or a memorandum certified in accordance with section 28 of that Act.

branch includes any part of the organization established under the rules of the organization.

Commission means the Australian Conciliation and Arbitration Commission.

Conciliation and Arbitration Act means the Conciliation and Arbitration Act 1904.

Federation:

 a

(a) subject to the following paragraphs, means the organization registered under the Conciliation and Arbitration Act by the name ‘The Australian Building Construction Employees’ and Builders Labourers’ Federation’ or, if the name of that organization is changed, that organization under the new name;

 b

if the registration of the organization referred to in paragraph (a) is cancelled under section 5, means, in relation to a time after the cancellation:

 i

the association that was registered as that organization; or

 ii

if the name of that association is changed or all or a substantial number of the members of that association form a new association in or in connection with the industry or a part of the industry in or in connection with which that association was formed—that association under the new name or the new association, as the case may be; or

 c

if the registration of the organization referred to in paragraph (a) is cancelled as mentioned in paragraph (b) and the association that constitutes the Federation by virtue of paragraph (b) becomes registered, by whatever name, as an organization under section 132 of the Conciliation and Arbitration Act, means, in relation to a time after the registration of that association under that section, that association as so registered.

Full Bench means a Full Bench of the Commission constituted in accordance with section 17 of the Conciliation and Arbitration Act.

industrial action means:

 a

the performance of work (being work the terms and conditions of which are prescribed, wholly or partly, by an award) in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to such work, where the performance of the work in that manner or the adoption of that practice results in a restriction or limitation on, or a delay in, the performance of the work;

 b

a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award;

 c

a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work; or

 d

action that hinders or prevents a person from performing work;

but does not include the performance of work in a manner, the adoption of a practice, a ban, limitation or restriction, a failure or refusal, or action, that is authorised by the employer of the persons concerned.

organization means an organization registered under the Conciliation and Arbitration Act.

Registrar means the Industrial Registrar or a Deputy Industrial Registrar appointed under the Conciliation and Arbitration Act.

undertaking includes any promise, commitment, pledge or other assurance and also includes a statement of intention or policy.

 2

Conduct is capable of constituting industrial action notwithstanding that the conduct concerned relates to part only of the duties that persons are required to perform in the course of their employment.

 3

A reference in this Act to industrial action shall be read as including a reference to a course of conduct consisting of a series of industrial actions.
3A Application of Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
4 Application to Commission for declaration in relation to Federation 1

If, on application by the Minister, the Commission is satisfied that:

 a

the Federation or a prescribed person has, whether before or after the commencement of this Act, engaged in industrial action that constituted a contravention of, was in support of a claim that constituted a contravention of, or was inconsistent with the intent of:

 i

an undertaking given to the Commission, to the Registrar or to the Federal Court of Australia on behalf of the Federation;

 ii

an undertaking relating to the performance of work, to claims concerning the terms and conditions of employment, or to the prevention or settlement of industrial disputes, given on behalf of the Federation to a party to a proceeding before the Commission, the Registrar or the Federal Court of Australia to which the Federation was a party; or

 iii

an agreement relating to the performance of work, to claims concerning the terms and conditions of employment or to the prevention or settlement of industrial disputes in the building industry or a part of the building industry;

 b

the Federation or a prescribed person has, whether before or after the commencement of this Act, engaged in conduct that prevented or seriously hindered the achievement of an object of the Conciliation and Arbitration Act; or

 c

the Federation or a prescribed person has, whether before or after the commencement of this Act, engaged in conduct that is inimical to the prevention and settlement of industrial disputes by means of conciliation and arbitration;

the Commission shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing.

 2

(2) In relation to a time before the commencement of this Act, being a time after the registration under the Conciliation and Arbitration Act of the organization known as The Australian Building Construction Employees’ and Builders Labourers’ Federation was cancelled and before the association that had been registered as that organization again became registered as an organization under that Act, the reference in subparagraph (1)(a)(i) to an undertaking given on behalf of the Federation shall be construed as a reference to an undertaking given on behalf of that association.

 3

For the purposes of this section, any industrial action or any conduct that has been or is engaged in by members of the Federation shall be deemed to have been engaged in by the Federation if:

 a

it is proved that the Federation or a prescribed person instigated or encouraged that industrial action or that conduct; or

 b

in a case to which paragraph (a) does not apply—the Federation does not prove that the Federation or a prescribed person took all reasonable steps to prevent that industrial action or that conduct.

 4

For the purposes of this section, the person or group of persons referred to in any one of the following paragraphs constitutes or constitute a prescribed person:

 a

the committee of management of the Federation;

 b

the committee of management of a branch of the Federation;

 c

an officer, employee or agent of the Federation in the performance of duties as such an officer, employee or agent;

 d

a member of the Federation in the performance of the function of dealing with an employer on behalf of members of the Federation.

 5

In the hearing of an application by the Minister under this section, the Commission may have regard to:

 a

any evidence given or statements made in any other proceedings before the Commission, whether constituted as a Full Bench or otherwise, and any findings made by the Commission in any such proceedings;

 b

any evidence given or statements made in any proceedings before the Registrar and any findings made by the Registrar in any such proceedings;

 c

any evidence given in any proceedings before the Federal Court of Australia and any findings made by that Court in any such proceedings; and

 d

any evidence given in any proceedings of a Royal Commission that was appointed to inquire into the activities of the Federation and any report made by such a Royal Commission.

 6

Where an application is made by the Minister under this section, the Commission shall hear and determine the application as quickly as is appropriate having regard to all the circumstances.
5 Orders by Minister in relation to Federation 1

Where the Commission makes a declaration under the Minister may, if the Minister is of the opinion that it is desirable to do so having regard to the public interest in securing the prevention and settlement by conciliation and arbitration of industrial disputes extending beyond the limits of any one State or in maintaining peace, order and good government in a Territory:section 4,

a

by order in writing, direct the Registrar to cancel the registration of the Federation under the Conciliation and Arbitration Act; or

 b

by order in writing, terminate, or suspend to the extent specified in the order, any of the rights, privileges or capacities of the Federation or of all or any of its members, as such members, under the Conciliation and Arbitration Act or under the rules of the Federation (other than rules relating to the industry in or in connection with which the Federation is registered under the Conciliation and Arbitration Act or rules relating to the conditions of eligibility for membership of the Federation).

 2

Where the Minister makes an order under paragraph (1)(b) in relation to the Federation, the Minister may make such further order or orders in writing as is or are necessary to give effect to the first-mentioned order.

 3

Where the Minister makes an order or orders under paragraph (1)(b), or under that paragraph and under subsection (2):

 a

the Registrar shall forthwith consider whether any alterations need to be made to the rules of the Federation (other than rules relating to the industry in or in connection with which the Federation is registered under the Conciliation and Arbitration Act or rules relating to the conditions of eligibility for membership of the Federation) for the purpose of giving effect to the order or orders; and

 b

if the Registrar determines that any such alterations need to be made, the Registrar shall certify in writing the alterations so determined and, upon the Registrar so certifying:

 i

those rules shall be deemed to be altered accordingly; and

 ii

no further alterations to those rules may be made if the making of those alterations would be inconsistent with the order or orders made by the Minister.

 4

(4) Except for the purposes of the application of the provisions of paragraph (1)(b) or of subsection (2) or (3) in or in relation to a Territory, a reference in those provisions to the Federation shall be construed as a reference to the organization registered under the Conciliation and Arbitration Act by the name ‘The Australian Building Construction Employees’ and Builders Labourers’ Federation’ or, if the name of that organization is changed, that organization under the new name.

 5

The making of an order or orders by the Minister in relation to the Federation under paragraph (1)(b) does not prevent the Minister from making an order in relation to the Federation under paragraph (1)(a).

 6

Where the Minister, by order under subsection (1), directs the Registrar to cancel the registration of the Federation under the Conciliation and Arbitration Act, the Minister may, by that order or by a later order in writing, specify a condition or conditions with which the Federation is required to comply before it may be registered under section 132 of the Conciliation and Arbitration Act.

 7

Notwithstanding anything in the Minister under subsection (1), the Federation is not entitled to be registered under section 132 of the Conciliation and Arbitration Act unless:section 132 of the Conciliation and Arbitration Act, where the registration of the Federation is cancelled in accordance with a direction given by

a

if the Minister has, in accordance with subsection (6), specified a condition or conditions in relation to the Federation—the Minister declares, by order in writing, that that condition has, or those conditions have, been complied with; or

 b

in a case to which paragraph (a) does not apply—the Minister declares, by order in writing, that the Federation may apply to be registered under section 132 of the Conciliation and Arbitration Act.

 8

Where a declaration has been made under paragraph (7)(a) or (b), the Minister may also, by order in writing, declare that, for the purpose of any application by the Federation to be registered under section 132 of the Conciliation and Arbitration Act, a provision or provisions of the Conciliation and Arbitration Act, or of regulations in force under that Act, specified in the order does not or do not apply to or in relation to the Federation.

 9

Where:

 a

the registration of the Federation is cancelled in accordance with a direction given by the Minister under subsection (1);

 b

after the cancellation, the Federation becomes registered as an organization under section 132 of the Conciliation and Arbitration Act;

 c

the Minister has, in accordance with subsection (6), specified a condition or conditions in relation to the Federation; and

 d

on application by the Minister, the Commission is satisfied that the Federation has ceased to comply with that condition or any one or more of those conditions;

the Commission shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing.

 10

Where a declaration is made by the Commission under subsection (9), subsection (1) has effect in like manner as it has effect in relation to a declaration made by the Commission under section 4.

 11

A person shall not contravene or fail to comply with an order made by the Minister under paragraph (1)(b) or subsection (2).

Penalty: 100 penalty units.

 12

The Federal Court of Australia may, upon application by the Minister, grant such injunctions as it thinks necessary for the purpose of ensuring compliance with this section.
6 Powers and procedure of Commission 1

The powers of the Commission under this Act are exercisable by a Full Bench and not otherwise.

 2

The provisions of the Conciliation and Arbitration Act, and of the regulations in force under that Act, with respect to the procedure and powers of the Commission in relation to proceedings before the Commission under that Act apply, so far as they are capable of application, to and in relation to proceedings before the Commission under this Act.

 3

On an application under section 4 or 5:

 a

the Commission shall give the Federation an opportunity of being heard; and

 b

the Minister, the Federation and any person granted leave to intervene may be represented by counsel or solicitor.
7 Effect on Federation of cancellation of registration 1

If the registration of the Federation under the Conciliation and Arbitration Act is cancelled under section 5, the following provisions of this section have effect.

 2

Subsection 143(5) of the Conciliation and Arbitration Act does not apply in relation to the Federation or to its members but subsections 143(4) and (6) of that Act apply.

 3

Any award that would, but for this subsection, apply to the Federation or to its members ceases to have any force or effect in relation to the Federation and its members.

 4

The Federation is not capable of being a party to, and shall not be permitted to intervene in, a proceeding before the Commission and is not capable of being a party to an award made by the Commission and the Commission does not have any powers under the Conciliation and Arbitration Act in relation to an industrial dispute within the meaning of that Act in so far as that dispute involves members of the Federation.

 5

A person or an organization or association of employees is not entitled to be represented by an officer, employee, agent or member of the Federation in any proceedings before the Federal Court of Australia, the High Court, the Commission or the Registrar other than proceedings by the Federation for registration under section 132 of the Conciliation and Arbitration Act.
8 Limitation on coverage of work by Federation 1

Where the Commission makes a declaration under the Minister may, if the Minister is of the opinion that it is desirable to do so having regard to the public interest in securing the prevention and settlement by conciliation and arbitration of industrial disputes extending beyond the limits of any one State or in maintaining peace, order and good government in a Territory, by order in writing, declare that the rules of the Federation relating to the industry in or in connection with which the Federation is registered under the Conciliation and Arbitration Act and to the conditions of eligibility for membership of the Federation shall cease to have any effect in relation to work in a part or parts of Australia specified in the order.section 4 or under subsection 5(9),

2

Where the Minister makes an order under subsection (1):

 a

the Registrar shall forthwith determine the alterations that need to be made to the rules of the Federation for the purpose of giving effect to the order and shall record the alterations so determined in the register, and upon the certificate of registration, under the Conciliation and Arbitration Act, and, when those alterations are so recorded:

 i

those rules shall be deemed to be altered accordingly; and

 ii

no further alteration to those rules, to the extent (if any) that the alteration would relate to work in a part of Australia specified in the order, may be made without the consent in writing of the Minister; and

 b

the Federation is not entitled, for the purposes of the Conciliation and Arbitration Act, to make any claims for or on behalf of any persons, or to represent any members, in a part or parts of Australia specified in the order.

 3

At the expiration of 28 days after the making of an order under subsection (1), any award that would, but for this subsection, apply to the Federation or to its members ceases to have any effect in relation to the Federation and its members unless the Commission has, within that period, varied the award so that it ceases to apply to the Federation and to its members in relation to work performed in the part or parts of Australia specified in the order.

 4

While an order is in force under subsection (1), section 5 of the Conciliation and Arbitration Act has effect in relation to, or in relation to the employment of, an employee in a part of Australia specified in the order, or in relation to work by an employee in the service of his or her employer in such a part of Australia, as if references in that section to an organization or to a branch of an organization did not include references to the Federation or to a branch of the Federation.
9 Minister may allocate coverage of Federation work to other organizations 1

Where the Commission makes a declaration under the Minister may, by order in writing, declare that this section applies in relation to an organization of employees specified in the order in respect of work, in a part or parts of Australia specified in the order, in an industry in respect of which the Federation is or has been registered under the Conciliation and Arbitration Act.section 4 or under subsection 5(9),

2

The Minister may make different orders under subsection (1) in respect of different organizations of employees in respect of different kinds or classes of work.

 3

Where:

 a

an order is made under subsection (1) in relation to an organization of employees;

 b

under the rules of that organization, employees who are employed in work of a kind or class specified in the order are not eligible for membership of that organization; and

 c

that organization consents to the making by the Minister of a declaration under this subsection in respect of that organization;

the Minister may, by order in writing, declare that it is desirable that those employees be eligible for membership of that organization and, if such an order is made:

 d

the Registrar shall forthwith determine the alterations that need to be made to those rules in order to make those employees eligible for membership of that organization and shall record the alterations so determined in the register, and upon the certificate of registration, under the Conciliation and Arbitration Act; and

 e

when those alterations are so recorded, those rules shall be deemed to be altered accordingly.

 4

The Minister shall not make an order under this section unless the Minister is of the opinion that it is desirable to make the order having regard to the public interest in securing the prevention and settlement by conciliation and arbitration of industrial disputes extending beyond the limits of any one State or in maintaining peace, order and good government in a Territory.

 5

An order made under this section after the cancellation of the registration of the Federation under section 5 continues in force notwithstanding that the Federation again becomes registered under the Conciliation and Arbitration Act.
10 Commission may allocate coverage of Federation work to other organizations 1

If, after the making by the Commission of a declaration referred to in subsection 9(1), the Minister certifies in writing that the Minister does not propose to make any orders under section 9 in consequence of that declaration in respect of a particular part of Australia, the Commission may, subject to this section, upon application by an organization of employees or by the Minister, make a declaration that this section applies in relation to an organization of employees specified in the order (whether or not the organization that made the application) in respect of work, in that part of Australia, in an industry in respect of which the Federation is or has been registered under the Conciliation and Arbitration Act and, where the Commission makes such a declaration, it shall cause the declaration to be recorded in writing.

 2

The Commission may make different declarations under subsection (1) in respect of different organizations of employees in respect of different kinds or classes of work.

 3

The Commission is not entitled to make a declaration under subsection (1) in respect of an organization of employees in respect of a kind or class of work unless the Commission is satisfied that:

 a

under the rules of that organization, employees who are employed in work of that kind or class are not eligible for membership of that organization;

 b

that organization consents to the making by the Commission of the declaration; and

 c

the Commission considers that it is desirable that those employees be eligible for membership of that organization to ensure that the objects of the Conciliation and Arbitration Act are achieved and that those employees will be effectively represented for the purposes of that Act.

 4

Where the Commission makes a declaration under subsection (1) in respect of an organization of employees:

 a

the Registrar shall forthwith determine the alterations that need to be made to the rules of that organization to make the employees concerned eligible for membership of that organization and shall record the alterations so determined in the register, and upon the certificate of registration, under the Conciliation and Arbitration Act; and

 b

when those alterations are so recorded, those rules shall be deemed to be altered accordingly.

 5

A declaration made under subsection (1) after the cancellation of the registration of the Federation under section 5 continues in force nothwithstanding that the Federation again becomes registered under the Conciliation and Arbitration Act.
11 Proceedings under subsection 139(1) of the Conciliation and Arbitration Act

Nothing in the Registrar under subsection 139(1) of the Conciliation and Arbitration Act for consent to a change in the rules of the organization in so far as they relate to conditions of eligibility for membership or the description of the industry in connection with which the organization is registered but the Registrar shall not deal with such an application to the extent (if any) to which the matter that is the subject of the application is a matter in respect of which the Registrar is taking action under paragraph 9(3)(d) or 10(4)(a) of this Act.section 9 or 10 prevents an organization of employees from making an application to

12 Evidence of declaration

A document signed by the Registrar stating that the Commission made a declaration under prima facie evidence of the matters stated in the document.section 4, subsection 5(9) or section 10 on a day specified in the document and purporting to set out the terms of the declaration is

13 Orders by the Minister

Where the Minister makes an order under this Act:

 a

(a) a copy of the order shall be published in the Gazette; and

 b

(b) the order comes into force on the day on which the copy of the order is published in the Gazette.
14 Regulations

The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

 a

required or permitted by this Act to be prescribed; or

 b

necessary or convenient to be prescribed for carrying out or giving effect to this Act.
15 Cessation of Act

This Act shall cease to be in force on a day to be fixed by Proclamation.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x /sub-subparagraph(s)
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
No. = Number(s) commenced or to be commenced

Endnote 3—Legislation history
Act Number and year Assent Commencement Application, saving and transitional provisions
Building Industry Act 1985 92, 1985 26 Aug 1985 26 Aug 1985 (s 2)
Statute Law (Miscellaneous Provisions) Act (No. 2) 1985 193, 1985 16 Dec 1985 s 16: 16 Dec 1985 (s 2(1)) Sch 1: 26 Aug 1985 (s 2(4)) s 16
Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001 142, 2001 1 Oct 2001 s 4 and Sch 1 (item 1): 2 Oct 2001 (s 2(1)) s 4
Statute Update Act 2016 61, 2016 23 Sept 2016 Sch 1 (item 69): 21 Oct 2016 (s 2(1) item 1) —

Endnote 4—Amendment history
Provision affected How affected
s. 3A ad. No. 142, 2001
s. 5 am. No. 193, 1985; No 61, 2016