Building and Construction Industry Training Fund Act 1990
An Act to improve the quality of training in the building and construction industry
[Royal Assent 20 December 1990]
[The preamble Repealed by No. 54 of 2004, s. 4, Applied:01 Mar 2005]
Be it therefore enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Building and Construction Industry Training Fund Act 1990 .
This Act commences on a day to be fixed by proclamation.
(1) [Section 3 Subsection (1) amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 3 Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –the Board means the Tasmanian Building and Construction Industry Training Board continued in existence by virtue of section 4 (1) ;[Section 3 Subsection (1) amended by No. 54 of 2004, s. 5, Applied:01 Mar 2005][Section 3 Subsection (1) amended by No. 54 of 2004, s. 5, Applied:01 Mar 2005] building or construction work –(a) includes building or construction work specified in item 2 of Schedule 2 ; but(b) does not include building or construction work specified in item 3 of Schedule 2 ;[Section 3 Subsection (1) amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Section 3 Subsection (1) amended by No. 12 of 2016, Sched. 1, Applied:01 Jan 2017] building permit has the same meaning as in the Building Act 2016 ;[Section 3 Subsection (1) amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004]collection agency means a person or body appointed under section 20 ;functions include duties;the Fund means the Building and Construction Industry Training Fund established under section 36 ;the levy means the levy payable under Part 3 ;[Section 3 Subsection (1) amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Section 3 Subsection (1) amended by No. 12 of 2016, Sched. 1, Applied:01 Jan 2017] permit authority has the same meaning as in the Building Act 2016 ;[Section 3 Subsection (1) amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Section 3 Subsection (1) amended by No. 12 of 2016, Sched. 1, Applied:01 Jan 2017] plumbing permit has the same meaning as in the Building Act 2016 ;[Section 3 Subsection (1) amended by No. 54 of 2004, s. 5, Applied:01 Mar 2005][Section 3 Subsection (1) amended by No. 54 of 2004, s. 5, Applied:01 Mar 2005] project owner, in respect of building or construction work, means –(a) the person for whose direct benefit the building or construction work is done; or(b) if the person referred to in paragraph (a) has engaged another person to carry out or cause to be carried out all of the building or construction work, the person so engaged;the regulations means the regulations made and in force under this Act;training plan means a building and construction industry training plan prepared under section 34 (1) .(2) For the purposes of the definition of building or construction work in subsection (1) , the Governor may, by order, amend Schedule 2 by declaring that any work or work of a specified class or kind –(a) shall be building or construction work; or(b) shall not be building or construction work.
PART 2 - Building and Construction Industry Training Board
Division 1 - Establishment, functions, &c., of the Board
[Section 4 Substituted by No. 54 of 2004, s. 7, Applied:01 Mar 2005](1) The Tasmanian Building and Construction Industry Training Board is established.(2) The Board –(a) is a body corporate with perpetual succession; and(b) may acquire, hold and dispose of real and personal property; and(c) may sue and be sued in its corporate name; and(d) may do and suffer all acts and things that a body corporate may by law do and suffer.
[Section 5 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] [Section 5 Substituted by No. 54 of 2004, s. 7, Applied:01 Mar 2005](1) The Board consists of the following members appointed by the Minister:(a) one person who is appointed as chairperson of the Board;(b) three persons who have knowledge and understanding of the interests of employees within the building and construction industry;(c) five persons who between them have knowledge and experience of the following:(i) residential building;(ii) non-residential building;(iii) civil construction;(iv) building services;(v) building professions.(2) Before appointing a member, the Minister is to give notice in at least 3 daily newspapers published and circulating in the State that persons interested in being members may provide written expressions of interest to the Minister within the period specified in the notice.(3) The Board is to contain, if practicable –(a) at least one member from each of the northern region, the north-western region and the southern region; and(b) a balance of genders; and(c) members with knowledge and skills in respect of –(i) all sections within the building and construction industry; and(ii) vocational education and training; and(iii) policy development and strategic planning.(4) Schedule 4 has effect in relation to membership of the Board.(5) Schedule 5 has effect in relation to meetings of the Board.
6. Board not to represent the Crown
The Board does not represent, and is not part of, the Crown.
(1) [Section 7 Subsection (1) amended by No. 31 of 2016, s. 4, Applied:01 Jan 2017] [Section 7 Subsection (1) substituted by No. 54 of 2004, s. 8, Applied:01 Mar 2005] The Board is the principal adviser to the Minister on all matters relating to workforce development in the building and construction industry and, in particular, is to advise the Minister in relation to skill requirements for the building and construction industry and the training arrangements to meet those requirements.(2) [Section 7 Subsection (2) amended by No. 54 of 2004, s. 8, Applied:01 Mar 2005] [Section 7 Subsection (2) substituted by No. 31 of 2016, s. 4, Applied:01 Jan 2017] In addition to subsection (1) , the Board has the following functions:(a) to promote training, and training pathways, in the building and construction industry;(b) to promote the Board, and its aims and activities, to the building and construction industry;(c) to liaise with appropriate training organisations and other bodies;(d) to advise on, and provide input into, the development of training, and training pathways, within the building and construction industry;(e) to review and evaluate existing training, and training pathways, within the building and construction industry;(f) to promote equality of access to training, and training pathways, within the building and construction industry;(g) to promote productivity, career opportunities and work safety within the building and construction industry through training and workforce development planning and pathways;(h) to facilitate access to employer-provided training in the building and construction industry;(i) to facilitate the equitable distribution, amongst employers in the building and construction industry, of resources relating to employment-related training;(j) to facilitate the training of builders to improve skills and knowledge within the building and construction industry.
The Board has the following powers:and may do everything necessary or convenient for it to do in, or in connection with, the performance of its functions.(a) to collect the levy;(b) to control and administer the Fund;(c) to develop and implement a training plan in respect of each financial year;(d) to appoint such sub-committees as may be necessary to assist it in the performance of its functions –
8A. Board to convene industry forum
[Section 8A Inserted by No. 54 of 2004, s. 9, Applied:01 Mar 2005](1) The Board is to hold a public meeting at least once in each calendar year for interested members of the building and construction industry –(a) to consider issues that relate to the development of skills within the industry; and(b) to provide advice on those issues to the Board.(2) The Board is to give not less than 2 weeks' notice of the public meeting in at least 3 daily newspapers published and circulating in the State.
[Section 9 Substituted by No. 54 of 2004, s. 10, Applied:01 Mar 2005] The Board may delegate any of its functions or powers under this Act other than this power of delegation.
Division 1A - Committees
[Section 9A of Part 2 Inserted by No. 54 of 2004, s. 11, Applied:01 Mar 2005](1) The Board may establish one or more committees to advise and assist the Board in the performance and exercise of its functions and powers under this Act.(2) A committee consists of such persons as the Board appoints.(3) A member of the Board may be a member of a committee.(4) A member of a committee is entitled to be reimbursed for such expenses as the Minister determines.(5) A member of a committee holds office on such conditions in relation to matters not provided for by this Act as are specified in his or her instrument of appointment.(6) At any time, the Board may abolish a committee.(7) The Board is to inform the Minister in writing if any committee is established, or abolished, under this section.
[Section 9B of Part 2 Inserted by No. 54 of 2004, s. 11, Applied:01 Mar 2005](1) A committee must keep accurate minutes of its meetings.(2) Except as otherwise provided by the Board, a committee may regulate its own proceedings.
Division 2 - Accounts of the Board
(1) The Board shall keep proper accounts and records in relation to its administration of this Act and shall keep separate accounts for the provision of training.(2) [Section 10 Subsection (2) omitted by No. 50 of 2008, Sched. 2, Applied:01 Jul 2010] . . . . . . . .(3) [Section 10 Subsection (3) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] [Section 10 Subsection (3) amended by No. 50 of 2008, Sched. 1, Applied:01 Mar 2009] The accounts of the Board are subject to the Audit Act 2008 and are also subject to an internal audit as provided by the Treasurer's Instructions made under the Financial Management Act 2016 .(4) [Section 10 Subsection (4) omitted by No. 50 of 2008, Sched. 2, Applied:01 Jul 2010] . . . . . . . .
Division 3 - Control of the Board
[Section 10A Inserted by No. 54 of 2004, s. 12, Applied:01 Mar 2005](1) The Minister may direct that the Board exercise or perform any of its powers or functions, including the power of delegation.(2) A direction given under subsection (1) may include any conditions that the Minister thinks fit.(3) The Board must comply with a direction given by the Minister.
(1) If the Minister is satisfied that the Board has failed to comply with any provision of this Act or a training plan, the Minister may do one or more of the following:(a) [Section 11 Subsection (1) amended by No. 54 of 2004, s. 13, Applied:01 Mar 2005] direct the Board in writing to comply with that plan;(b) censure the Board in accordance with section 12 ;(c) [Section 11 Subsection (1) amended by No. 54 of 2004, s. 13, Applied:01 Mar 2005] dismiss the members of the Board and appoint new members of the Board;(d) [Section 11 Subsection (1) amended by No. 54 of 2004, s. 13, Applied:01 Mar 2005] appoint an administrator in accordance with section 13 .(2) [Section 11 Subsection (2) amended by No. 54 of 2004, s. 13, Applied:01 Mar 2005] If the Minister is satisfied that the Board has failed to comply with a direction given under subsection (1) (a) or section 10A , the Minister may do any one or more of the things specified in subsection (1) (b) , (c) or (d) .
(1) The Minister shall, before exercising the powers conferred by section 11 –(a) give the Board notice in writing of the intended action and the reasons for it; and(b) consider any submissions, whether oral or in writing, made to the Minister by the Board within 7 days after the giving of the notice or any further time specified in the notice.(2) If the Minister proposes to censure or dismiss the Board or appoint an administrator of the Board, the Minister shall –(a) give notice in writing of the censure, dismissal or appointment to the Board; and(b) cause to be laid on the table of each House ofParliament within 7 sitting days of that House after the notice is given to the Board –(i) a copy of the notice; and(ii) a report of the circumstances leading to the action; and(iii) a copy of any written submission made by the Board relating to that action.
13. Appointment and powers of administrator
(1) [Section 13 Subsection (1) amended by No. 54 of 2004, s. 14, Applied:01 Mar 2005] The Minister may, by order published in the Gazette, appoint an administrator to administer the affairs and activities of the Board if the Minister, after complying with sections 11 and 12 , is satisfied that–(a) the Board has failed to perform a duty arising from a provision of this Act or a training plan; or(b) it is in the interests of the building and construction industry that an administrator be appointed.(2) An appointment of an administrator, unless sooner revoked under subsection (7) or terminated in accordance with the regulations, remains in force for a period of one year.(3) [Section 13 Subsection (3) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A State Service officer or State Service employee may hold office as administrator of the Board in conjunction with State Service employment.(4) On the appointment of an administrator, the Minister shall serve on the Board a copy of the instrument of the appointment and on the service of the copy of that instrument –(a) the functions of the Board shall be performed, and the powers of the Board may be exercised, by the administrator in the name and on behalf of the Board until the administrator's office is vacated under this section; and(b) the members of the Board cease to hold office; and(c) the administrator shall assume, and be responsible for, the management of the Board; and(d) any delegation made by the Board under section 9 ceases to have effect.(5) Subject to this section, an administrator –(a) shall, as soon as practicable after appointment as such, take into the custody or under the control of the administrator all the property and things in action to which the Board is, or appears to be, entitled; and(b) shall, subject to and in accordance with any direction given to the administrator by the Minister, perform the functions and exercise the powers of the Board in such manner as the administrator thinks fit.(6) An administrator of the Board shall be deemed to have vacated office as such –(a) when the administrator dies; or(b) if the administrator becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of the remuneration or estate of the administrator for their benefit; or(c) if the administrator is convicted in Tasmania of a crime or an offence which is punishable by imprisonment for a period of not less than 12 months, or if the administrator is convicted elsewhere than in Tasmania of an offence which, if committed in Tasmania, would be a crime or an offence so punishable; or(d) [Section 13 Subsection (6) amended by No. 54 of 2004, s. 14, Applied:01 Mar 2005] if the administrator resigns office as such by writing under the hand of the administrator addressed to the Minister; or(e) [Section 13 Subsection (6) amended by No. 54 of 2004, s. 14, Applied:01 Mar 2005] if the appointment of the administrator is revoked by the Minister under subsection (7) .(7) [Section 13 Subsection (7) amended by No. 54 of 2004, s. 14, Applied:01 Mar 2005] The Minister may, for any reason that the Minister considers sufficient, revoke the appointment of an administrator appointed under this section.(8) [Section 13 Subsection (8) amended by No. 54 of 2004, s. 14, Applied:01 Mar 2005] Where the office of administrator is deemed to have been vacated under subsection (6) , the Minister may, by instrument in writing, appoint another person to fill the vacancy.(9) [Section 13 Subsection (9) amended by No. 54 of 2004, s. 14, Applied:01 Mar 2005] An administrator shall be paid such remuneration, allowances and expenses (if any) as the Minister may determine.(10) [Section 13 Subsection (10) amended by No. 1 of 2016, Sched. 1, Applied:08 Apr 2016] [Section 13 Subsection (10) amended by No. 54 of 2004, s. 14, Applied:01 Mar 2005] [Section 13 Subsection (10) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Notwithstanding subsection (9) , where a State Service officer or State Service employee is appointed as administrator under this section, the administrator is entitled to receive, by way of remuneration, allowances and expenses, such amounts (if any) as the Minister, on the recommendation of the Minister administering the State Service Act 2000 , may determine.
14. Expenses of administration
(1) The expenses of and incidental to the administration of the Board by an administrator appointed under section 13 are payable by the Board.(2) [Section 14 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The remuneration, allowances and expenses (if any) of an administrator of the Board who is not a State Service officer or State Service employee are expenses referred to in subsection (1) .
15. Liability for losses incurred during administration
An administrator of the Board is not liable for any loss incurred by the Board during office as such unless the loss was attributable to –(a) wilful misconduct; or(b) gross negligence; or(c) wilful failure to comply with any provision of this Act.
16. Termination of administration
[Section 16 Amended by No. 54 of 2004, s. 15, Applied:01 Mar 2005] If the Minister is satisfied that the appointment of an administrator should be revoked, the Minister may declare that the appointment shall be revoked and on any such revocation–(a) the Board shall be reconstituted as provided by section 5 and in accordance with the regulations; and(b) the Board shall again perform its functions and exercise its powers as provided by this Act.
Nothing done by the Board is in any way affected by the dismissal of the members of the Board under section 12 or the appointment of an administrator under section 13 .[Section 18 Repealed by No. 54 of 2004, s. 16, Applied:01 Mar 2005] . . . . . . . .
Division 4 - Administration
(1) The Board may appoint any employees and engage any consultants it considers necessary for the administration of this Act.(2) [Section 19 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The employees of the Board and consultants to the Board are not subject to the State Service Act 2000 .
(1) The Board may appoint such persons or bodies to be collection agencies for the purposes of this Act as the Board thinks fit.(2) A collection agency shall collect the levy and pay it to the Board.(3) A collection agency is entitled to receive from the Board the remuneration agreed between the Board and the agency for the carrying out of the agency's functions under this section.
PART 3 - Building and Construction Industry Training Levy
[Section 21 Substituted by No. 54 of 2004, s. 17, Applied:01 Mar 2005] Subject to this Act, a levy is imposed in respect of the value of building or construction work which commences after the commencement of this Act.
[Section 22 Amended by No. 54 of 2004, s. 18, Applied:01 Mar 2005] The rate of the levy is 0·2% of the estimated value of building or construction work, or such higher percentage not exceeding 0·5% of that value, as the Minister, on the recommendation of the Board, may from time to time determine by notice published in the Gazette.
23. Estimated value of building or construction work
[Section 23 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 23 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Section 23 Substituted by No. 54 of 2004, s. 19, Applied:01 Mar 2005](1) In this section –required component means any fixtures, fittings, accessories, components, plant or equipment, other than –(a) plant or equipment installed solely for the purposes of a process that forms part of building or construction work; and(b) plant or equipment that is not installed as an integral part of a structure or building; and(c) fixtures, fittings, accessories, components, plant or equipment prescribed as being excluded.(2) The estimated value of building or construction work is –(a) the contract price of the building or construction work, being a price that includes a value for each of the following components:(i) the labour, necessary services and fees, including professional fees, payable in respect of the building or construction work;(ii) the building or construction materials;(iii) required components that are installed as part of, or in association with, the building or construction work;(iv) a profit margin that is not greater than that approved by the permit authority as reasonable;(v) any overheads;(vi) any other prescribed component; or(b) if there is no contract or the contract price does not cover the above components, the value of the building or construction work as determined by the permit authority after taking into account the value of those components; or(c) the value agreed by the Board and the project owner.(3) A person may apply to the Board to have the estimated value of building or construction work set under subsection (2) reviewed.(4) The Board must review the estimated value of building or construction work on receipt of an application under subsection (3) within 30 days after receiving the application.(5) On a review of an application, the Board may –(a) confirm the estimated value of building or construction work set under this section; or(b) vary the estimated value of building or construction work set under this section.(6) The Board must notify its decision to the applicant within 7 days after reviewing the application under subsection (5) .
24. Exemption for certain work
[Section 24 Amended by No. 54 of 2004, s. 20, Applied:01 Mar 2005] [Section 24 Amended by No. 31 of 2016, s. 5, Applied:01 Jan 2017] The levy is not payable in respect of building or construction work if the estimated value of that work does not exceed $20 000 or such other amount as may be prescribed.
25. Liability of project owner to pay levy
[Section 25 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] The project owner in respect of any building or construction work is liable to pay the levy on that building or construction work before the issue of a building permit or plumbing permit in respect of that work.[Section 26 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 26 Repealed by No. 35 of 1998, s. 3, Applied:18 Dec 1998] . . . . . . . .
A project owner shall pay the levy to the Board or a collection agency –(a) [Section 27 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] before obtaining a building permit or plumbing permit for the relevant building or construction work; or(b) [Section 27 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] if a building permit or plumbing permit is not required, before commencing that building or construction work.
28. Offence for non-payment of levy
(1) [Section 28 Subsection (1) amended by No. 54 of 2004, s. 21, Applied:01 Mar 2005] If any building or construction work is commenced before the levy due in respect of that work has been paid, the project owner is guilty of an offence and is liable on summary conviction to a penalty of the sum of –(a) [Section 28 Subsection (1) amended by No. 54 of 2004, s. 21, Applied:01 Mar 2005] twice the amount of the levy required to be paid; and(b) [Section 28 Subsection (1) amended by No. 54 of 2004, s. 21, Applied:01 Mar 2005] a fine not exceeding 50 penalty units.(2) A penalty imposed under subsection (1) does not affect the liability of a project owner for payment of the levy.
[Section 29 Amended by No. 54 of 2004, s. 22, Applied:01 Mar 2005] A project owner shall notify the Board or a collection agency within 30 days after the completion of building or construction work, if the actual value of the work exceeds by an amount of $25 000 or such other amount as may be prescribed the estimated value of the work.Penalty: A fine not exceeding the additional amount of the levy payable.
[Section 30 Amended by No. 54 of 2004, s. 23, Applied:01 Mar 2005] If the Board is satisfied that the actual value of the building or construction work on completion varies by an amount of $25 000 or such other amount as may be prescribed from the estimated value–(a) the Board shall refund to the project owner an amount equal to the excess levy paid; or(b) [Section 30 Amended by No. 54 of 2004, s. 23, Applied:01 Mar 2005] the project owner shall pay to the Board or a collection agency an amount equal to the additional levy that would have been payable if the estimated value of that work had been the actual value of that work.
(1) The project owner may notify the Board if any building or construction work or part of any building or construction work is not carried out after the levy is paid for the work.(2) On receipt of a notice under subsection (1) and on proof to the satisfaction of the Board, the Board shall refund to the project owner the amount of the levy paid in respect of the work or part of the work not carried out.
The Board may recover in any court of competent jurisdiction –(a) amounts of the levy that are due for payment; and(b) other amounts due to the Board under this Part.
33. Offence to provide false information
[Section 33 Amended by No. 54 of 2004, s. 24, Applied:01 Mar 2005] A project owner who provides to the Board or a collection agency any information or document that is false or misleading in a material particular regarding building or construction work or its value is guilty of an offence.Penalty: A fine not exceeding 3 times the amount of the levy required to be paid in respect of that work.
PART 4 - Building and Construction Industry Training Plans
34. Building and construction industry training plans
(1) The Board shall –prepare a building and construction industry training plan for the purpose of improving the quality of training and to increase the levels of skills in the building and construction industry.(a) in respect of the financial year commencing on 1 July 1991, as soon as practicable after the commencement of this Act; and(b) in respect of each succeeding financial year, before 31 May last preceding that financial year –(2) A training plan –(a) shall set out priorities for employment related training to be funded from the Fund; and(b) shall provide for the allocation of money from the Fund for the provision of training.(3) In preparing a training plan the Board shall provide for the allocation of the resources of the Fund only in respect of skills formation accredited or approved in respect of the building and construction industry.(4) [Section 34 Subsection (4) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] [Section 34 Subsection (4) amended by No. 12 of 2007, s. 28, Applied:01 Jul 2007] [Section 34 Subsection (4) amended by No. 39 of 2004, s. 35, Applied:01 Jan 2005] [Section 34 Subsection (4) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] The Board shall cause a training plan together with such other submissions, if any, that the Board considers appropriate to be submitted to the Secretary of the responsible Department in relation to the Training and Workforce Development Act 2013 , who shall then submit the training plan and those submissions, if any, to the Minister for approval.(5) The Minister may request that a training plan be amended or revised before approval.(6) If the Minister approves a training plan –(a) the Minister shall give notice in writing of the approval to the Board; and(b) the training plan has effect from the date specified in the notice of approval; and(c) it is the duty of the Board to carry the training plan into effect.
35. Amendment of training plan
The Minister and the Board may by agreement amend a training plan.
PART 5 - Building and Construction Industry Training Fund
36. Building and Construction Industry Training Fund
(1) The Board shall establish and maintain a Fund to be called the Building and Construction Industry Training Fund.(2) The Board shall administer the Fund.(3) There shall be paid into the Fund –(a) all levies collected under this Act; and(b) all penalties collected under this Act; and(c) any money derived from the investments of the Fund; and(d) all other money received by the Board.(4) There may be paid out of the Fund –(a) all amounts necessary for the implementation of a training plan; and(b) all amounts required to be paid to collection agencies under any agreement under section 20 ; and(c) [Section 36 Subsection (4) amended by No. 54 of 2004, s. 25, Applied:01 Mar 2005] the expenses of the Board incurred in the administration of this Act; and(d) any amount required for a refund of the levy; and(e) all other costs and expenses reasonably incurred by the Board in the performance of its functions.(5) [Section 36 Subsection (5) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] For the purposes of this section, the Board, with the approval of the Treasurer, may open and maintain one or more accounts in the name of the Board with an authorised deposit-taking institution.
PART 6 - Miscellaneous and Supplemental
(1) The Board may, in writing, appoint any person to be an authorized officer for the purposes of this Act.(2) The Board shall issuean identity card to each authorized officer.(3) An identity card –(a) shall contain a photograph of the authorized officer; and(b) shall be signed by the authorized officer and a member of the Board.(4) An authorized officer shall produce an identity card upon being requested to do so in the administration of this Act but any action taken by an authorized officer is not invalidated by failure to do so.
38. Powers of entry and inspection
(1) An authorized officer of the Board may, for the purposes of this Act –(a) enter at all reasonable times, inspect and examine any site where building or construction work is being carried out; and(b) conduct any examinations and enquiries necessary to ascertain whether this Act has been complied with; and(c) require the production of any documents relevant to the payment of the levy, inspect and examine them and take copies or extracts from them.(2) A person who obstructs or hinders an authorized officer in the performance of the officer's duty is guilty of an offence.Penalty: [Section 38 Subsection (2) amended by No. 54 of 2004, s. 26, Applied:01 Mar 2005] Fine not exceeding 100 penalty units.(3) A person who gives false or misleading information to an authorized officer in the performance of the officer's duty is guilty of an offence.Penalty: A fine not exceeding 30 penalty units.
39. Immunity for members of Board
(1) An action does not lie against a member of the Board for anything done or omitted to be done in good faith in the course of giving effect to, or purporting to give effect to, the provisions of this Act.(2) An action which would, but for subsection (1) , lie against a member of the Board may be brought against the Board.
(1) The Board shall during the month of October in each year prepare and forward to the Minister a report on the performance of the functions and the exercise of the powers of the Board under this Act in respect of the preceding financial year.(2) The report shall include financial statements as to the transactions of the Board in respect of that financial year.(3) The Minister shall cause a copy of the report to be laid before each House of Parliament within 7 sitting days after receipt of the report.
41. Contracts to evade levy void
A contract, agreement or arrangement made or entered into, orally or in writing and whether before or after the commencement of this Act, so far as it has or purports to have the purpose or effect of in any way, directly or indirectly –is void, as against the Board, or in regard to any proceeding under this Act, but without affecting any validity that it may have in any other respect or for any other purpose.(a) altering the incidence of the levy; or(b) relieving any person from liability to pay the levy; or(c) defeating, evading or avoiding the levy –
(1) The Governor may, on the recommendation of the Board, make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , the regulations may provide for –(a) [Section 42 Subsection (2) amended by No. 54 of 2004, s. 27, Applied:01 Mar 2005] . . . . . . . .(b) administrative assistance to be given to the Board with the approval of the Minister by a government department or statutory authority; and(c) proceedings in respect of offences against this Act; and(d) prescribing information to be provided to the Board or collection agencies by project owners; and(e) [Section 42 Subsection (2) amended by No. 54 of 2004, s. 27, Applied:01 Mar 2005] requiring project owners to keep books and records for the purposes of determining the estimated value of building or construction work; and(f) [Section 42 Subsection (2) amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] prescribing the manner of payment of the levy and for ensuring that it is paid before a building permit or plumbing permit is issued in respect of the relevant work; and(g) prescribing procedures for giving notice to the Board and for refund of the levy paid in respect of any building or construction work that is not carried out; and(h) [Section 42 Subsection (2) amended by No. 54 of 2004, s. 27, Applied:01 Mar 2005] requiring an administrator appointed under section 13 to report to the Minister as to the administration of the Board; and(i) reconstituting the Board in accordance with section 5 on the termination of any such administration.
[Section 43 Substituted by No. 54 of 2004, s. 28, Applied:01 Mar 2005] Schedule 6 has effect in respect of savings and transitional provisions consequent on the commencement of the Building and Construction Industry Training Fund Amendment Act 2004.
SCHEDULE 1[Schedule 1 Repealed by No. 54 of 2004, s. 29, Applied:01 Mar 2005]
SCHEDULE 2 - Building or Construction Work to which this Act Applies[Schedule 2 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Schedule 2 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Schedule 2 Amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] [Schedule 2 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Schedule 2 Substituted by No. 54 of 2004, s. 30, Applied:01 Mar 2005]
1. In this Schedule –building includes –(a) part of a building; and(b) a temporary building; and(c) a moveable building;structure includes –(a) a tank or other structure associated with the catchment, collection, storage or supply of water; and(b) a plant, drain, facility, system, equipment or structure associated with the drainage or treatment of sewage, effluence or stormwater; and(c) a bridge, viaduct, aqueduct or tunnel; and(d) a chimney stack or cooling tower; and(e) an aerial or mast associated with the transmission or reception of radio, television or communications; and(f) an aerial or mast associated with the absorption or reflection of lightning; and(g) a mast or tower associated with the transmission of electricity; and(h) a silo; and(i) a dock, jetty, pier, terminal, wharf, boat ramp or mooring; and(j) a pipeline including a pipeline placed in the ground; and(k) a structure, plant or facility associated with the production, storage, conveyance or distribution of oil, gas, coal or other minerals; and(l) a fence.
2. Building or construction work on a site includes the following work for that site:(a) the construction, erection, alteration, repair, renovation, demolition or removal of a building or structure;(b) the construction, alteration or repair of a road, street, parking area, footpath, thoroughfare for pedestrians or vehicles, kerbing, guttering, roundabout, median strip, road barrier or other similar road works;(c) the construction, alteration, repair, demolition or removal of –(i) a railway, bus area or tramway, or a structure, signal or platform that is connected with a railway, bus area or tramway; or(ii) a harbour, breakwater, retaining wall or marina; or(iii) a dam, weir, reservoir or other embankment or structure for the catchment, collection, storage, diversion or control of water;(d) the construction, alteration, repair or removal of an aircraft runway or a landing pad;(e) the performance of excavation work;(f) the laying of pipes and other prefabricated material in the ground;(g) the construction, erection, installation, alteration, repair, demolition or removal of any system, or plant, associated with the conveyance, collection, storage, treatment or distribution of water or gas;(h) electrical or mechanical service work including work that is related to the construction, erection, installation, alteration, repair, servicing or dismantling of a plant, plant facility or equipment;(i) the construction, erection, installation, alteration, repair, renovation, demolition or removal of –(i) a lift or escalator; or(ii) an airconditioning, ventilation or refrigeration system or equipment;(j) the construction, repair, alteration or removal of a playing field, golf course, racecourse, stadium, swimming pool or other sporting or recreational facility;(k) landscaping or the construction, alteration or removal of a park or garden;(l) the removal of asbestos from a building or from any machinery, plant or equipment located in or on a building;(m) the alteration of the surface of works referred to in paragraph (a) , (b) , (c) or (d) by painting, rendering, tarring, marking or other form of resurfacing;(n) site preparation work, including pile driving, that is preliminary work to the performance of any work in the above paragraphs;(o) other work prescribed as being building or construction work for the purposes of this Act.
3. Building or construction work does not include any of the following work:(a) if the principal business activity of a person or employee is not building or construction work, maintenance or repair work carried out –(i) by that person for his or her own benefit; or(ii) by that employee for the benefit of his or her employer;(b) the construction, alteration, repair, demolition or removal of a fence that is on, or forms part of the boundary of, agricultural land;(c) work directly associated with the care, conservation or rehabilitation of agricultural land or of land that has been agricultural land;(d) work that involves the planting, removal or maintenance of any plant or other living thing;(e) other work prescribed as not being building or construction work for the purpose of this Act.
SCHEDULE 3[Schedule 3 Amended by S.R. 1993 No. 130 ][Schedule 3 Amended by S.R. 1996 No. 143 ][Schedule 3 Amended by S.R. 1999, No. 43, Applied:12 May 1999] [Schedule 3 Amended by S.R. 2001, No. 127, Applied:24 Oct 2001] [Schedule 3 Repealed by No. 54 of 2004, s. 31, Applied:01 Mar 2005]
SCHEDULE 4 - Membership of the Board
1. Term of office[Schedule 4 Amended by No. 54 of 2004, s. 32, Applied:01 Mar 2005] A member of the Board is appointed for such term, not exceeding 3 years, as is specified in the instrument of the member's appointment and shall, if otherwise qualified, be eligible for re-appointment from time to time for a term, not exceeding 3 years, specified in the instrument of the member's re-appointment.
2. Provisions relating to membersWhere, by or under any Act, provision is made requiring the holder of an office to devote the whole of that person's time to the duties of that person's office, that provision shall not operate to disqualify that person from holding that office and also the office of a member of the Board.
3. [Schedule 4 Amended by No. 54 of 2004, s. 32, Applied:01 Mar 2005] . . . . . . . .
4. State Service Act 2000 not to apply[Schedule 4 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The provisions of the State Service Act 2000 do not apply to, or in respect of, the appointment of a member of the Board and a member of the Board is not, as such, subject to the provisions of that Act during the member's term of office.
5. Acting members[Schedule 4 Amended by No. 54 of 2004, s. 32, Applied:01 Mar 2005](1) If a member of the Board is absent from, or is unable to perform the functions of, the office of member, the Minister may appoint another person to act in the place of that member on the Board.(2) An appointment under subclause (1) –(a) may be revoked at any time by the Minister; and(b) is revoked by the return to office of the member represented by the acting member; and(c) is revoked once the member represented by the acting member is able to perform the functions of the office of member again.(3) If a person is appointed to act as a member of the Board that person is taken to be a member of the Board.
6. Remuneration and conditions of appointment[Schedule 4 Amended by No. 54 of 2004, s. 32, Applied:01 Mar 2005](1) A member of the Board is entitled to be paid such remuneration and allowances as the Minister determines.(2) A member of the Board who is a State Service employee or a State Service officer is not entitled to remuneration or allowances under this clause except with the approval of the Minister administering the State Service Act 2000 .(3) A member of the Board holds office on such conditions in relation to matters not provided for by this Act as are specified in the member's instrument of appointment.
6A. Vacation of office[Schedule 4 Amended by No. 54 of 2004, s. 32, Applied:01 Mar 2005](1) A member of the Board vacates office if he or she –(a) dies; or(b) resigns by written notice given to the Minister and the Minister accepts the resignation; or(c) is removed from office under subclause (2) or (3) .(2) The Minister may remove a member of the Board from office if the member –(a) is absent from 3 consecutive meetings of the Board without the permission of the other members of the Board unless the member –(i) is on leave granted by the Minister; or(ii) is excused by the Minister for the member's absence from those meetings within 3 weeks after the last of those meetings; or(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer; or(d) has benefited from, or has claimed to be entitled to benefit from, the profit of, or any benefit arising from, any contract, agreement or arrangement made by or on behalf of the Board, other than a contract, agreement or arrangement for a service ordinarily supplied by the Board on the same terms as that service is supplied to other persons in the same situation; or(e) fails to disclose an interest as required under clause 3 of Schedule 5 except where the member's interest is as –(i) a member of the public; or(ii) an elector of, or ratepayer to, any municipality; or(iii) a shareholder in a company in which there were at that time more than 20 members and of which the member was not at that time a director or officer.(3) The Minister may remove a member of the Board from office if satisfied that the member is unable to perform adequately or competently the duties of office.(4) A member of the Board must not be removed from office otherwise than in accordance with this clause.
7. Filling of casual vacancies[Schedule 4 Amended by No. 54 of 2004, s. 32, Applied:01 Mar 2005] On the occurrence of a vacancy in the office of a member of the Board otherwise than by the expiration of the term for which the member was appointed, the Minister may appoint a person to the vacant office for the balance of the member's term of office.
8. Validity of proceedings, &c.(1) No act or proceeding of the Board or of any person acting pursuant to any direction of the Board is invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Board.(2) All acts and proceedings of the Board or of any person acting pursuant to any direction of the Board are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Board or that any person was disqualified from acting as, or incapable of being, a member of the Board, as valid as if the member had been duly appointed and was qualified to act as, or capable of being, a member, and as if the Board had been fully constituted.
9. PresumptionsIn any proceedings by or against the Board, unless evidence is given to the contrary, no proof shall be required of –(a) the constitution of the Board; or(b) any resolution of the Board; or(c) the appointment of any member of the Board; or(d) the presence of a quorum at any meeting of the Board.
SCHEDULE 5 - Meetings of the Board
1. Chairperson of the Board(1) [Schedule 5 Amended by No. 54 of 2004, s. 33, Applied:01 Mar 2005] The members of the Board are to elect a deputy chairperson from the members of the Board.(2) The chairperson of the Board or, in the absence of the chairperson, the deputy chairperson shall preside at any meeting of the Board at which the chairperson or, as the case may require, the deputy chairperson is present.(3) If the chairperson or deputy chairperson is not present at a meeting of the Board, the members present shall appoint a member to preside at the meeting.
2. Proceedings(1) [Schedule 5 Amended by No. 54 of 2004, s. 33, Applied:01 Mar 2005] Five members of the Board constitute a quorum of the Board.(2) The Board shall meet at least 4 times a year and at intervals of not more than 6 months.(3) [Schedule 5 Amended by No. 54 of 2004, s. 33, Applied:01 Mar 2005] If requested to do so by not less than 4 members, the presiding member shall convene a meeting of the Board to be held at a time and place determined by the presiding member.(4) A question arising at a meeting shall be determined by a majority of members present and voting on the question.(5) [Schedule 5 Amended by No. 54 of 2004, s. 33, Applied:01 Mar 2005] . . . . . . . .(6) The Board shall ensure that accurate minutes are kept of each meeting.
3. Disclosure of interests[Schedule 5 Amended by No. 54 of 2004, s. 33, Applied:01 Mar 2005](1) If a member of the Board has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the Board, the member must, as soon as practicable after the relevant facts come to the member's knowledge, disclose the nature of the interest to the Board.Penalty: Fine not exceeding 100 penalty units.(2) Unless the Board otherwise determines, a member of the Board who has made a disclosure under subclause (1) in relation to a matter must not –(a) be present during any deliberation of the Board in relation to the matter; or(b) take part in any decision of the Board in relation to the matter.(3) For the purposes of making a determination under subclause (2) , the member of the Board to whom the determination relates must not –(a) be present during any deliberation of the Board for the purpose of making the determination; or(b) take part in making the determination.(4) Subclause (1) does not apply –(a) in respect of a contract for goods or services supplied by the Board if those goods or services are ordinarily supplied by the Board and are supplied on the same terms as they are ordinarily supplied to other persons in the same situation; or(b) in respect of an interest that arises only because the member is also a State Service officer or State Service employee.
4. Annual General Meetings(1) The Board shall, in each year, hold an annual general meeting.(2) The annual general meeting shall be held on such day not later than 3 months after the close of each financial year as the Board may determine.(3) The annual general meeting shall be in addition to any other general meeting that may be held in the same year.(4) [Schedule 5 Amended by No. 54 of 2004, s. 33, Applied:01 Mar 2005] The ordinary business of the annual general meeting is to receive from the members of the Board reports on the transactions of the Board during the last preceding financial year.
5. Special General Meetings(1) The Board may, whenever it thinks fit, convene a special general meeting of the Board.(2) [Schedule 5 Amended by No. 54 of 2004, s. 33, Applied:01 Mar 2005] The Board shall, on the requisition in writing of not less than 4 members, convene a special general meeting of the Board.(3) A requisition for a special general meeting shall state the objects of the meeting, shall be signed by the requisitionists and deposited at the office of the Board and may consist of several documents in similar form, each signed by one or more of the requisitionists.(4) If the Board does not cause a special general meeting to be held within 21 days from the day on which a requisition for that meeting is deposited at the office of the Board, the requisitionists, or any of them, may convene the meeting; but any meeting so convened shall not be held after 3 months from the day of the deposit of the requisition.
6. General procedureThe procedure for the calling of, and for the conduct of business at, meetings of the Board shall, subject to any procedure that is specified in this Schedule, be as determined by the Board.
SCHEDULE 6 - Savings and Transitional[Schedule 6 Substituted by No. 54 of 2004, s. 34, Applied:01 Mar 2005]
1. InterpretationIn this Schedule –commencement day means the day on which the Building and Construction Industry Training Fund Amendment Act 2004 commences;current Act means this Act as in force immediately after the commencement of the Building and Construction Industry Training Fund Amendment Act 2004;former Act means this Act as in force immediately before the commencement day;former Board means the Tasmanian Building and Construction Industry Training Board continued under section 4 of the former Act;Management Committee means the Committee constituted under Schedule 6 to the former Act;new Board means the Tasmanian Building and Construction Industry Training Board established under section 4 of the current Act.
2. Abolition of Management Committee(1) The Management Committee is abolished.(2) The appointment of each member of the Management Committee is revoked.
3. Abolition of former Board(1) Despite the repeal of section 4 of the former Act, the former Board continues for a period of 31 days after the commencement day and is abolished at the end of that period.(2) The appointment of each member of the former Board is revoked on the day the former Board is abolished.
4. Annual report(1) In this clause –transition year means the financial year during which the commencement day falls.(2) For the purposes of the annual report required under section 40 of the current Act, the new Board is to prepare the annual report for the transition year.(3) The former Board is to provide, in respect of the portion of the transition year that precedes the commencement day, a report that includes all of the information that is required under section 40 of the current Act to be included in an annual report.(4) The former Board is to provide the report under subclause (3) to the new Board within 30 days of the commencement day.(5) The new Board is to include the report provided by the former Board under subclause (3) in the annual report for the transition year.
5. Decisions, &c., of former Board and Management Committee(1) A decision, action, policy or delegation made or done by the former Board is taken to be a decision, action, policy or delegation made or done by the new Board.(2) A decision, action, policy or delegation made or done by the Management Committee is taken to be a decision, action, policy or delegation made or done by the new Board.
6. Certain building or construction work exempt(1) If building or construction work initiated before the commencement day was exempt from the levy payable under the former Act, that building or construction work is exempt from the levy payable under the current Act to the extent the work was exempt under the former Act.(2) For the purposes of this clause, building or construction work is taken to be initiated if a contract for the undertaking of the building or construction work has been made by the parties and assessed for the purposes of the levy payable under the former Act.(3) The Minister may determine that building or construction work, or a stage of building or construction work –(a) forms part of building or construction work that was exempt from the payment of the levy under the former Act; and(b) is exempt from the payment of the levy under the current Act.