Fair Work (Building Industry) Act 2012 and how to make an application

The Fair Work (Building Industry) Act 2012 (the Act) establishes the Independent Assessor – Special Building Industry Powers (the Independent Assessor), who may, on application from an interested person, make a Determination that the compulsory powers to obtain information in section 45 of the Act will not apply to one or more building projects.

The Hon Donnell Ryan QC has been appointed as the inaugural Independent Assessor – Special Building Industry Powers.

Mr Ryan was appointed to the Federal Court of Australia from 1986 until his resignation in 2011. Prior to that, he was a part-time member of the Australian Law Reform Commission and also served as a judge of the Industrial Relations Court of Australia and an additional judge to the ACT Supreme Court.

  • Determination cannot be made in relation to Existing Building Projects
  • Applications for a Determination by Independent Assessor
  • Definition of ‘Interested Person’
  • Decision by Independent Assessor – notice, reapplication and reconsideration
  • Effect of a Determination by the Independent Assessor
  • How to make an application

Determination cannot be made in relation to Existing Building Projects

The capacity to make application to the Independent Assessor will not apply to projects that had on site activity commence prior to the commencement of the Act i.e. 1 June 2012.

Applications for a Determination by Independent Assessor

In relation to projects that commence after 1 June 2012, an interested person may apply in writing to the Independent Assessor for a Determination that the compulsory powers to obtain information available under the Act do not apply to a particular building project/s.

In making a Determination, the Independent Assessor must be satisfied in relation to that building project, that:

  1. it would be appropriate to make the determination, having regard to:
    • the object of the Act;
    • any matters prescribed by the Regulations; and
  2. it would not be contrary to the public interest to make the determination.

Additional matters prescribed by the Regulations that the Independent Assessor must have regard to are:

  1. the views of other interested persons in relation to the building project; and
  2. whether a building industry participant who is an interested person has complied with workplace laws in relation to the building project, including orders of a court or tribunal made in relation to the workplace laws.

When the Independent Assessor receives an application for a Determination the Independent Assessor must provide a copy of the application to the Director Fair Work Building and Construction (the Director) and give the Director a reasonable opportunity to make submissions in relation to the application. The Independent Assessor may also seek further information about the application from the applicant or Director.

Definition of ‘Interested Person’

The Act provides that an ‘interested person’ may apply to the Independent Assessor to make a Determination in relation to a building project. The Act defines ‘interested person’ to be the Minister and any other persons prescribed by the Regulations.

The Regulations prescribe all ‘building industry participants’ (as defined by the Act) who are involved in a building project  or have a member involved in a building project to which the application relates, to be ‘interested persons’. This would mean all project employers, employees, their respective associations and the client(s) in relation to the project would be able to make an application to the Independent Assessor.

Decision by Independent Assessor – notice, reapplication and reconsideration

As soon as practicable after making a decision in relation to an application for a Determination, the Independent Assessor must notify the applicant and Director in writing.

If the Independent Assessor decides not to make a Determination the original applicant(s) cannot make another application in relation to the same building project unless new information becomes available.

If the Independent Assessor decides to make a Determination they must as soon as practicable give a copy of the Determination to the applicant and the Director, and arrange for it to be published in the Gazette.

In addition, the Director may request in writing the Independent Assessor to reconsider a Determination at any time after the original determination is made setting out the reasons for the request. In this case the Independent Assessor must:

  • reconsider the original Determination,
  • make a Determination affirming, revoking or amending the original Determination,
  • advise the Director and the original applicant of the new Determination and publish the new Determination in the Gazette.

Effect of a Determination by the Independent Assessor

Where the Independent Assessor has made a Determination in relation to a building project/s the Director can not apply to an AAT presidential member for an examination notice if the investigation is connected with that project while the Determination is in force.

A Determination by the Independent Assessor in no way affects any other compliance or investigation powers of the Building Inspectorate.

How to make an application

To apply to the Independent Assessor for a Determination that compulsory powers to obtain information do not apply to a specified building project/s, an ‘interested person’ must complete and submit this application form

Independent Assessor Application Form.

The Independent Assessor may seek additional information about the application from the applicant, the Director and other ‘interested persons’.

All applications should be signed and submitted to:

Independent Assessor SecretariatLocation Code: C50MA1

GPO Box 9880

CANBERRA ACT 2601