In order to be National Code compliant you must ensure that your workplace relations arrangements are consistent with the National Code and Guidelines. The National Code and Guidelines are designed to encourage a culture of 'best practice' in relation to workplace relations while remaining consistent with the Building and Construction Industry Improvement Act 2005 (BCII Act) and the Fair Work Act 2009 (FW Act).
National Code and Guidelines compliance is required through both a contractor’s workplace arrangements and the contractor’s workplace practices on building sites and construction projects.
The National Code and Guidelines set the following standards:
Industrial instruments, workplace agreements and workplace arrangements
- All parties must comply with applicable industrial instruments, legislative requirements and court and tribunal decisions and orders.
- Unregistered written workplace agreements are inconsistent with the National Code and Guidelines, other than common law agreements made between the employer and the individual employee.
- A party must not pressure or coerce another person to make, vary or extend an agreement.
- A party is prohibited from requiring or unduly influencing subcontractors to have particular workplace arrangements in place.
- The National Code is based on the primacy of enterprise-level determination of pay and conditions. The exception is where a project agreement has been agreed to by the client in accordance with the National Code and Guidelines.
- Payments to industry superannuation, redundancy and sick leave funds in excess of award and legislative requirements are matters to be decided by each employer. No party can compel or unduly influence another party to make voluntary contributions above the provisions of agreements, awards or legislation.
- A party must not engage in ‘sham’ contracting arrangements as defined in the FW Act and the Independent Contrators Act 2006.
The Department of Education, Employment and Workplace Relations (DEEWR) offers online assessment of your workplace arrangements. To find out more go to the online assessment page at www.deewr.gov.au/building or contact the DEEWR National Code Hotline on 1300 731 293.
Project agreements
- Project wide workplace agreements can be made but are subject to very strict criteria, including improved construction schedules and performance benchmarks.
- Project agreements are not generally permitted on projects worth less than $100 million.
Freedom of association
All parties have the right to freedom of association. Contractors must adopt policies that are consistent with applicable industrial law to ensure that all those working on projects covered by the National Code have the right to choose whether or not to join a union or an employer association properly respected.
Examples of practices that contravene freedom of association principles and are thereby inconsistent with the National Code and Guidelines include:
- providing the names of new staff, job applicants, contractors or subcontractors to unions other than as required by law
- ‘no ticket, no start’ signs or 'show card' days
- discriminating against or disadvantaging elected employee representatives.
- using forms requiring the employee to identify their union status employers and contractors to identify the union status of employees or subcontractors
- refusing to employ, or terminating an employee, because of their union status
- employers refusing a reasonable request from a workplace delegate to represent employees in relation to grievances and disputes or discussions with members
- the imposition, or attempted imposition, of a requirement for any contractor, subcontractor or employer to employ a non-working shop steward or job delegate or to hire an individual nominated by a union
- a requirement that a person pay a ‘bargaining fee’ however described, to an industrial association of which he/she is not a member, in respect of services provided by it.
Right of entry
Tendering parties and their subcontractors must strictly comply with their right of entry requirements in accordance with the applicable legislation, court and tribunal orders and industrial instruments.
Right of entry practices must comply with the FW Act and applicable state occupational health and safety (OHS) law. This means union officials must:
- hold a valid federal right of entry permit
- provide at least 24 hours written notice of entry, unless entry is in relation to OHS law
- show their valid federal right of entry permit upon request
- only visit during working hours and hold discussions during meal times or other breaks
- provide details of any alleged breach they are investigating, if applicable.
Dispute settlement
All parties are required to make every effort to resolve grievances or disputes with their employees and applicable unions at the enterprise level, in accordance with the procedure outlined in the relevant workplace arrangement.
Industrial impacts
Any industrial or OHS dispute that can affect the construction program or project costs must be reported to the principal client at the earliest opportunity.
Any actual or threatened industrial action flowing from the implementation of the National Code and Guidelines is to be reported by the relevant government agency to the Code Monitoring Group.
Workplace reform
The FW Act 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. Under the FW Act all parties are expected to demonstrate good faith bargaining.
Strike pay is prohibited
No payment should be made to employees for time spent engaged in unlawful industrial action. Under the FW Act it is unlawful for:
- employers to pay,
- employees to accept or seek, or
- employee organisations to seek strike pay.