The new version of the Australian Government Implementation Guidelines for the National Code of Practice for the Building and Construction Industry (Guidelines) took effect on Saturday, 1 August 2009.
The 2009 Guidelines apply to all new projects where expressions of interest or tenders are called for the first time on or after 1 August 2009.
The 2009 Guidelines do not override any previous version of the Guidelines operating on existing National Code projects. This means if you are currently working under the 2006 Guidelines on a particular project, the 2006 Guidelines will continue to apply for the life of the project.
For more information see the new ABCC fact sheet Which version of the Implementation Guidelines applies to your project?
Key changes in the 2009 Guidelines are outlined in a summary below.
The ABCC website and fact sheets have also been updated to include information on both the 2006 and 2009 Guidelines and reflect the Fair Work Act 2009.
For more information see the National Code section of the ABCC website.
Key changes in the 2009 Implementation Guidelines
Scope
The 2009 Guidelines apply solely to parties who participate in on site activities. On site activities include any work performed at auxiliary or holding sites separate from the primary construction site(s).
Material suppliers are not required to be compliant for the 2009 Guidelines. Despite this change, material suppliers will need to stay compliant with any National Code projects operating under the 2006 Guidelines for the life of the project.
See Section 3.1 of the 2009 Guidelines.
Good faith bargaining
Good faith bargaining is expected on all projects applying the 2009 Guidelines. This expectation reflects the Fair Work Act 2009 which provides a framework with the flexibility to achieve a range of outcomes by promoting enterprise agreements that are tailored to suit the needs of businesses and employees.
See Section 6.9 of the 2009 Guidelines
Preference for tenderers
The 2009 Guidelines have introduced new tender evaluation criteria that may give preference to tenderers that have a demonstrated commitment to:
- adding and/or retaining trainees and apprentices,
- increasing the participation of women in all aspects of the industry, or
- promoting employment and training opportunities for Indigenous Australians in regions where significant indigenous populations exist.
The core principle underpinning decisions on government procurement will continue to be value for money.
See Section 4.2.4 of the 2009 Guidelines.
Adverse judicial decisions to be assessed by funding entities
Tenderers will be assessed on their previous performance on applying the National Code and Guidelines to Australian Government funded projects. This will include whether the tenderer has any adverse court, tribunal, or industrial relations commission/Fair Work Australia finding, order, or penalty awarded against it in the last two years.
Expressions of interest or tenders will not be considered from entities that have had judicial decisions against them, not including decisions under appeal, relating to employee entitlements and have not paid the claim.
See Sections 4.2.3 and 5.1.1 of the 2009 Guidelines.
Project Agreements
Project agreements will only be appropriate for major contracts as defined by the Funding Entity. Other than in exceptional circumstances, project agreements will not be permitted on projects worth less than $100 million.
See Section 4.3 of the 2009 Guidelines.
Unregistered Agreements
The use of unregistered written agreements, except for common law agreements made between the employer and an individual employee, are inconsistent with the National Code and Guidelines. An entity to which such an agreement applies will be deemed non-compliant with the National Code and Guidelines.
See Section 6.1.3 of the 2009 Guidelines