The National Code sets minimum standards that businesses must meet to be eligible for certain Australian Government building and construction work.The National Code Implementation Guidelines provide supporting detail on compliance requirements.
The 2012 National Code Implementation Guidelines
The May 2012 version of the Implementation Guidelines for the National Code of Practice for the Construction Industry (Guidelines) apply to all projects that were the subject of an expression of interest or tender let for the first time on or after 1 May 2012. The relevant previous version of the Guidelines continues to apply to earlier projects for the life of those projects.
The questions and answers below cover some common questions in relation to the revised Guidelines.
Questions and Answers
What projects do the May 2012 Guidelines apply to?
The Guidelines apply to all projects where an expression of interest or tender was called for the first time on or after 1 May 2012.
Do the 2012 Guidelines revoke previous versions of the Guidelines?
No.
When will a specific version of the Guidelines cease to apply?
The Guidelines that apply at the commencement of the project will continue to apply for the life of the project. For example, if the 2009 Guidelines apply to a project they will apply for the life of the project.
Will the ABCC continue to monitor against the 2009 Guidelines?
Yes. The ABCC will continue to monitor against earlier versions of the Guidelines, including 2006 and earlier Guidelines, where applicable.
Will the ABCC be assessing agreements or provisions in agreements?
No. DEEWR will continue to assess agreements for National Code compliance.
Why are the Guidelines changing?
The Guidelines have been amended and simplified to provide clearer advice to assist government agencies and the industry to comply with their obligations under the National Code. The Guidelines have been amended to reflect:
- Commonwealth Procurement Guidelines and the Government’s Fair Work Principles
- Legislative obligations under the Fair Work Act 2009 (FW Act), Independent Contractors Act 2006, Competition and Consumer Act 2010 and other relevant legislation applying to building and construction workplaces.
What has changed?
Some of the key changes include:
Interaction with State/Territory Guidelines
If both the National Guidelines and State or Territory Guidelines developed under the National Code apply to a directly or indirectly funded project, the National Guidelines will prevail to the extent of any inconsistency.
Fair Work Principles
The National Code and Guidelines are to be applied in a manner consistent with the Commonwealth Procurement Guidelines and the Fair Work Principles. The Fair Work Principles support the creation of quality jobs and decent work by ensuring that procurement decisions are consistent with the FW Act.
Project agreements
Project agreements need to be made and approved under the FW Act or relevant State industrial law in order for it to be consistent with the National Code.
Unregistered written agreements
There are now examples of unregistered agreements that are consistent with the National Code and Guidelines. Refer to section 6.1.3 of the 
2012 Guidelines for more information on the types of agreements.
Sham contracting
The Guidelines now state that engaging in sham contracting is considered to be a fundamental breach and one that may be subject to sanction.
Engagement of non-citizens/non-residents
The Guidelines clarify the obligation of employers to ensure workers are legally entitled to work in Australia.
Right of entry
The Guidelines state that organisations exercising a right of entry must do so in accordance with the Fair Work Act 2009.
Dispute settlement
The Guidelines now set out when an agreement must contain genuine dispute resolution procedures and what, at a minimum, the procedures must include. The dispute resolution obligations will apply to new agreements made under the Fair Work Act 2009 on or after 1 May 2012 and therefore will not impact existing agreements, or agreements made before 1 May 2012.