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.
Contractors and subcontractors who have employees will normally have some type of workplace agreement that outlines their pay and conditions. No matter what type of workplace agreement is in place, employers and employees must comply with the industrial instruments and legislative requirements that are applicable to the project and the work they undertake, including meeting all applicable employee entitlements.
What is an industrial instrument?
An industrial instrument is an award or agreement that:
- is made under or recognised by an industrial law, and
- concerns the relationship between an employer and their employees.
This can include enterprise agreements, modern awards, workplace determinations, Fair Work Australia Orders, or unregistered agreements.
Contractors must have an industrial instrument that is compliant with the requirements of the National Code of Practice for the Construction Industry (National Code) and Australian Government Implementation Guidelines for the National Code (Guidelines) if they wish to be eligible for Australian Government funded work.
An unregistered written agreement is an individual or collective agreement that is not approved under an industrial law, but is concerned with the relationship between an employer and its employees and/or industrial associations. Unregistered written agreements (other than common law agreements made between the employer and an individual employee) are not considered compliant with the National Code and Guidelines. The parties to which such an agreement applies will be considered non-compliant with the National Code and Guidelines.
Some projects may have a project agreement in place. Project agreements are uncommon on Australian Government funded projects and can only apply to projects worth at least $100 million. Approval for project agreements will only be given if there is a clear and demonstrable benefit to the Australian Government.
What do I need to know when making a workplace agreement?
Enterprise agreements must pass the better off overall test. The test requires that each of the employees to be covered by the agreement are better off overall than under the relevant modern awards. The better off overall test applies to agreements made on or after 1 January 2010.
Principal contractors should develop management systems that ensure the parties working on the project are meeting the obligations contained in their respective workplace arrangements.
Work arrangements should be flexible and enable contractors to work on-site in accordance with their respective workplace agreement.
All entities must ensure that their workplace arrangements on Australian Government funded building and construction projects are consistent with the National Code and Guidelines. Workplace arrangements can include the following matters:
- freedom of association
- employee entitlements and wages
- OHS
Extra demands
An employer cannot be compelled to pay benefits above those prescribed in their registered agreement, relevant award or legislation. This includes contributions to industry superannuation funds, redundancy schemes and sick leave funds.
You cannot be made to make any voluntary contributions above the provisions of agreements, awards or legislation.
What assistance is available to help make my workplace arrangements consistent with the National Code and Guidelines?
The Department of Education, Employment and Workplace Relations (DEEWR) can assess your workplace arrangements for compliance with the National Code and Guidelines. This normally involves an assessment of industrial instruments that cover a contractor. If not compliant, DEEWR will issue a letter identifying which clauses of the industrial instrument are inconsistent with the National Code and Guidelines. If any of your industrial instruments are not National Code compliant, you will be unable to tender for Australian Government funded building and construction work.
Things to remember:
- Unregistered collective agreements will now be deemed non-compliant with the National Code and Guidelines.
- Access to work on the site should not be affected by the workplace arrangements of any other contractor.