Construction Industry Training Fund Act 1993

This Act may be cited as the Construction Industry

Training Fund Act 1993.

In this Act, unless the contrary intention appears—

agricultural land means land wholly or mainly used for agricultural or horticultural purposes, animal husbandry, or other similar purposes;

the Board means the Construction Industry

Training Board constituted under this Act;

building approval in respect of building or construction work, means building consent under section 102(1)(b) of the

Planning, Development and Infrastructure

Act 2016;

building or construction work—see

Schedule

1;

collection agency means a person or body appointed under section 19;

the Fund means the Construction Industry

Training Fund established under

Part

5;

government authority means—

the Crown; or

an agency or instrumentality of the Crown; or

a local council; or

a body, or body of a prescribed class, prescribed by regulation for the purposes of this definition;

local council means a council under the

Local Government Act 1999 and includes a subsidiary of a council under that Act;

project owner in respect of building and construction work, means—

in the case of a government project—the government authority responsible for delivering the project; or

in any other case—

the person or body (other than an employee) engaged to deliver (including through the use of one or more subcontractors) all, or substantially all, of the construction project; or

if at the time the levy under Part 4 is payable no such person or body has been engaged to deliver all, or substantially all, of the project—the person for whose direct benefit the building or construction work exists on its completion;

Training Plan means the Training Plan prepared by the Board under section 32, as in force from time to time.

The following constitute sectors of the building and construction industry for the purposes of this Act:

the housing sector;

the commercial sector;

the civil sector;

such other sectors (if any) as the regulations may prescribe.

A sector will be constituted by such parts of the building and construction industry as the regulations may prescribe.

The objects of this Act include to—

promote industry supported access to training opportunities for people entering the building and construction industry; and

support high quality training that improves the skills level of the building and construction workforce, and responds to changing industry practices; and

encourage innovative training options that flexibly meet the needs of the building and construction workforce and industry; and

ensure the Fund is appropriately administered and an appropriate focus on awareness of, and compliance with, levy payment obligations is maintained; and

improve access to training for groups under represented in the building and construction industry, including women, Aboriginal and Torres

Strait Islanders and adult workers; and

promote the use of evidence and data to inform decisions around funding, research and education; and

provide relevant and timely advice to the Minister on skills shortages and the building and construction workforce supply requirements of the State.

The Construction Industry Training Board continues in existence.

[Note: Note

See also section 32A.]

The Board—

is a body corporate with perpetual succession and a common seal;

and

is capable of suing and being sued in its corporate name;

and

has the functions and powers assigned or conferred by or under this

Act.

The Board is not part of the Crown, nor is it an agency or instrumentality of the Crown.

On the commencement of this Act, the incorporation of the

Construction Industry Training Council (S.A.) Incorporated under the

Associations Incorporation Act 1985 is terminated.

A reference in an instrument to the Construction Industry Training

Council (S.A.) Incorporated will, where the context admits, be construed as a reference to the Board.

Subject to this section, the Board consists of up to

12 members appointed by the Governor on the nomination of the Minister, who collectively have skills, knowledge and experience that the Minister considers appropriate to enable the members to carry out the functions of the

Board, of whom—

4 persons are appointed to represent the interests of employers in the building and construction industry; and

4 persons are appointed to represent the interests of employees in the building and construction industry.

An employee or officer of an organisation, or of a branch or

division of an organisation, must not be appointed as a member, or as a deputy of a member, of the Board while that organisation, branch or division (as the case requires) is under administration pursuant to the

Fair Work (Registered Organisations)

Act 2009 of the Commonwealth in respect of its operations in the State.

Before nominating a person referred to in subsection (1)(a) and (b), the Minister must—

consult with the bodies prescribed by the regulations for the purposes of nominations of the relevant kind; and

comply with any other requirements set out by the regulations.

A person nominated by the Minister for the purposes of subsection (1) (other than for the purposes of subsection (1)(a) or (b)) must, in the opinion of the

Minister, be independent of the building and construction industry.

The Governor must appoint 1 of the members (not being a member of a kind referred to in subsection (1)(a) or (b)) to be the presiding member of the

Board.

The Minister must, before nominating a person for appointment to the Board under subsection (1), consult with the presiding member of the Board (unless the office of presiding member is vacant).

The Minister must, in making nominations for appointment to the

Board (other than for the purposes of subsection (1)(a) or (b)), seek to ensure that the membership of the Board comprises persons who together have the knowledge, skills and experience necessary to enable the Board to carry out its functions effectively.

The Minister must, before nominating a person for appointment as a member of the Board (other than as a nomination for the purposes of subsection (1)(a) or (b), or to fill a casual vacancy on the

Board), call for expressions of interest under a scheme determined by the

Minister for the purposes of this subsection.

However, the Minister need not comply with subsection (1d) in relation to the nomination of a person for appointment if—

the Minister has previously called for expressions of interest in relation to the appointment of a member of the Board of the relevant kind;

and

the person nominated expressed interest in relation to such an appointment.

A member of the Board is to be appointed for a term (not exceeding three years) specified in the instrument of appointment and is, on the expiration of a term of office, eligible for reappointment.

The Governor may, on the nomination of the Minister, appoint a suitable person as a deputy of a member of the Board, and the deputy may act as a member of the Board in the absence of that member (however, a person cannot be appointed as a deputy of both a member referred to in subsection (1)(a) and a member referred to in subsection (1)(b)).

To avoid doubt, nothing prevents a person from being the deputy of more than 1 member of the Board.

Without derogating from the other provisions of this Act, the

Governor may remove a member of the Board from office for—

misconduct; or

incapacity to carry out satisfactorily duties of office;

or

failure to carry out satisfactorily duties of office.

The office of a member of the Board becomes vacant if the member—

dies; or

completes a term of office and is not reappointed; or

resigns by written notice to the Minister; or

is convicted of an indictable offence; or

becomes bankrupt or applies to take the benefit of a law for the relief of insolvent debtors; or

is, or becomes, an employee or officer of an organisation, or of a branch or division of an organisation, while that organisation, branch or

division (as the case requires) is under administration pursuant to the

Fair Work (Registered Organisations)

Act 2009 of the Commonwealth in respect of its operations in the State; or

is removed from office by the Governor.

The appointment of a person as a deputy of a member is, by force of this subsection, revoked if the person is, or becomes, an employee or officer of an organisation, or of a branch or division of an organisation, while that organisation, branch or division (as the case requires) is under administration pursuant to the Fair Work (Registered

Organisations) Act 2009 of the Commonwealth in respect of its operations in the State.

On the office of a member becoming vacant, a person may be appointed in accordance with this section to the vacant office.

However, if—

the office of a member of the Board becomes vacant before the expiry of the term of appointment specified in the member's instrument of appointment; and

a person had been appointed to be the deputy of that member, the person who had been appointed to be the deputy of the member may act as a member of the Board in respect of the vacant office—

for the balance of the term of appointment referred to in paragraph (a); or

until a person is appointed to the vacant office under this section, whichever first occurs (and a reference in this Act to a member of the Board will be taken to include, unless the contrary intention appears, a reference to a person acting as a member under this subsection).

An act of the Board is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

A member of the Board incurs no liability for anything done honestly and with reasonable care and diligence in the performance or purported performance of functions or duties under this Act.

Any liability that would, but for this section, attach to a member attaches instead to the Board.

A quorum of the Board consists of one half of the members of the

Board (ignoring any fraction resulting from the division) plus 1.

The presiding member of the Board will preside at meetings of the

Board or, in the absence of that member, a member chosen by those present will preside.

A decision supported by the majority of the votes cast by members present at a meeting of the Board is a decision of the Board.

Each member present at a meeting of the Board has 1 vote on any question arising for decision and, if the votes are equal, the member presiding at the meeting may exercise a casting vote.

A person nominated by the Minister may attend any meeting of the

Board (however the person is not a member of the Board, is not entitled to vote on any question before the Board and cannot otherwise compromise the independence of the Board).

The Board must have accurate minutes kept of its proceedings.

Subject to this Act, the Board may determine its own proceedings.

A member of the Board who has a direct or indirect personal or pecuniary interest in a matter decided or under consideration by the

Board—

must disclose the nature of the interest to the Board;

and

must not take part in any deliberations or decisions of the Board on the matter. Maximum penalty: $10 000.

A member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of this section by reason only of the fact that the member has an interest in a matter that is shared in common with those engaged in or associated with the construction industry generally, or a substantial section of those engaged in or associated with the construction industry.

It is a defence to a charge of an offence against subsection (1) to prove that the defendant was not, at the time of the alleged offence, aware of their interest in the matter.

A disclosure under this section must be recorded in the minutes of the Board.

If a member makes a disclosure of interest in respect of a contract or proposed contract—

the contract is not liable to be avoided by the Board on the ground of the fiduciary relationship between the member and the Board;

and

the member is not liable to account to the Board for profits derived from the contract.

A member of the Board must at all times act honestly in the performance of the functions of their office, whether within or outside the

State. Maximum penalty: $10 000.

A member of the Board must at all times exercise a reasonable degree of care and diligence in the performance of their functions, whether within or outside the State. Maximum penalty: $10 000.

A member or former member of the Board must not, whether within or outside the State, make improper use of information acquired by virtue of their position as such a member to gain, directly or indirectly, an advantage for themself or for any other person or to cause detriment to the

Board. Maximum penalty: $20 000.

A member of the Board must not, whether within or outside the

State, make improper use of their position as a member to gain, directly or indirectly, an advantage for themself or for any other person or to cause detriment to the Board. Maximum penalty: $20 000.

This section has effect in addition to, and not in derogation of, any Act or law relating to the criminal or civil liability of a member of the governing body of a corporation and does not prevent the institution of any criminal or civil proceedings in respect of such a liability.

For the purposes of section 6, a person will not be taken to have acted honestly if the act constituted or involved contravention by the person of subsection (3) or

of this section.

A member of the Board is entitled to receive—

reimbursement of expenses reasonably incurred by the member in the performance of their functions under the Act; and

such remuneration and allowances as may be approved by the

Minister.

The allowances and expenses received by each member of the Board under subsection (1) must—

be included in the annual report of the Board prepared under section 17; and

be published on a website maintained by the Board to which the public has access free of charge.

The functions of the Board are—

to act as a principal adviser to the Minister and the Minister for

Employment, Education and Training of the Commonwealth on any matter relating to training in the building and construction industry and in particular to provide advice in relation to—

skill requirements for the building and construction industry and the training arrangements to meet those requirements; and

pre-employment and training programmes; and

any other matter referred to the Board for advice by either of those Ministers;

to administer the Construction Industry Training

Fund;

to oversee revenue collection for the Fund (including by ensuring compliance with the levy scheme);

to prepare the Training Plan in accordance with this

Act;

generally to co-ordinate training and personnel development within the building and construction industry;

to promote increased productivity, career opportunities, personal satisfaction and occupational health and safety within the building and construction industry through training;

to review and evaluate employment related training programmes to ensure that they meet the training and skill requirements of the building and construction industry, and to support appropriate training programmes in the building and construction industry;

to ensure a more equitable distribution of effort amongst employers in relation to employment related training in the building and construction industry;

to initiate, carry out, support or promote research into the training and personnel needs of the building and construction industry and to develop and implement policies, plans and programmes to meet those needs;

to liaise with educational, professional and training bodies (in either the public or private sectors) in relation to training and personnel development within the building and construction industry;

to promote, undertake or support programmes designed to facilitate the international exchange of information relevant to training or personnel development within the building and construction industry;

to perform any functions that are necessary or convenient for or incidental to the performance of functions referred to above.

Subject to any limitation imposed by or under this Act, the Board has all the powers of a natural person.