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.
See other ABCC fact sheets to determine when the National Code applies and which set of Guidelines to use.
This fact sheet applies to all projects that were the subject of an expression of interest or tender let for the first time on or after 1 August 2009.
Responsibilities of subcontractors
Subcontractors must comply with the National Code of Practice for the Construction Industry (National Code) and Australian Government Implementation Guidelines for the National Code (Guidelines):
- to work on any Australian Government funded building and construction projects
- when working on any new private project following their commitment to the National Code and Guidelines.
Subcontractors are also obliged to advise any subcontractors they engage on Australian Government funded projects that the National Code and Guidelines apply.
Achieving National Code compliance prior to commencement of a project
The head contractor will have practices in place to ensure subcontractors comply with the National Code and Guidelines. Prior to commencement on site subcontractors may be asked to:
- undertake a formal workplace arrangement assessment
- complete a ‘Declaration of Compliance’
- provide evidence that they are up-to-date with payment of employee entitlements.
Workplace arrangements
The subcontractor must ensure its workplace arrangements are National Code compliant before making an expression of interest, tendering or undertaking work for a head contractor on an Australian Government funded building and construction project.
Unregistered written agreements, that is, employment agreements that have not been approved as passing the relevant industrial law test (other than common law contracts between an employer and individual employee), will not be considered compliant with the National Code. See the Workplace Arrangements fact sheet for more information.
The Department of Education, Employment and Workplace Relations (DEEWR) can assess your workplace arrangements for compliance with the National Code and Guidelines.
Model tender and contract documentation
Model clauses have been prepared by DEEWR for use within tender and contract documents. Subcontractors should use these clauses when preparing tenders and contracts for building and construction projects covered by the National Code and Guidelines.
The booklet Model Tender and Contract Documentation is available through the ABCC and DEEWR websites.
Declaration of Compliance
A Declaration of Compliance can be found in the Model Tender and Contract Documentation booklet. The head contractor may ask the subcontractor to submit a Declaration of Compliance as a means of confirming their commitment to comply with the National Code and Guidelines.
The subcontractor should also ask any subcontractor they intend to engage for the project to complete this document.
Establishing National Code compliance on site
In order for on-site conduct to be National Code compliant, subcontractors must ensure:
- freedom of association, that is, whether or not to belong to a union or employer association, is a matter of choice of the employee or employer
- their employee records are not provided to any third party
- compliance with occupational health and safety obligations is in accordance with the relevant state and federal laws
- threatened or actual industrial action on a project is reported to the funding entity
- no attempt is made to unduly influence any subcontractors to have particular workplace arrangements or to make over-award payments
- they make payments in a timely manner and settle disputes over payments in a reasonable, timely and cooperative way
- they advise the head contractor of any significant disputes or disagreements regarding workplace relations or OHS
- they notify the Code Monitoring Group (CMG) of any alleged breaches of the National Code within 21 days.
Sanctions
Sanctions can be applied where a party has failed to meet their obligations under the National Code and Guidelines.
Sanctions can include a formal warning and, in more serious cases, a preclusion from tendering for Australian Government funded construction projects.
Sanctions applied under the National Code and Guidelines are in accordance with decisions advised by the CMG.
For more information see the A Guide to Sanctions fact sheet (available at www.deewr.gov.au/building).