The National Code of Practice for the Construction Industry (the Code) establishes minimum standards businesses must meet to be eligible for Australian Government building and construction work.
The Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry (the Guidelines) support the Code, providing further detail on Code compliance requirements.
Only parties who are Code compliant can tender to undertake building and construction activities on Australian Government funded projects. This condition applies to the head contractor, subcontractors, project managers, consultants and material suppliers.
Contractors and subcontractors who engage employees will normally be parties to a workplace agreement that outlines the pay and conditions that apply. Regardless of the arrangements 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 agreement or an award that:
- is made under or recognised by an industrial law and
- concerns the relationship between an employer and their employees.
This can include collective agreements, awards, the Australian Fair Pay and Conditions standard, Individual Transitional Employment Agreements (ITEAs), Australian Workplace Agreements (AWAs) or unregistered agreements. Collective agreements can be employee or union agreements.
An unregistered agreement is an individual or collective agreement or common law agreement that has not been certified, registered or lodged under an industrial law, but is concerned with the relationship between an employer and its employees.
An unregistered agreement or side deed must comply with the workplace relations requirements of the Code and Guidelines. Additionally, an unregistered agreement must not provide for a site allowance or contain matters that would be, if they were included in a workplace agreement, prohibited content.
In some circumstances project agreements may be in place. They can only be applied to projects costing at least $25 million and approval for them must be obtained from the principal client. Project agreements are uncommon on Australian Government projects.
WHAT DO I NEED TO KNOW WHEN MAKING A WORKPLACE AGREEMENT?
Collective agreements and ITEAs must pass the no-disadvantage test. AWAs are no longer available after 28 March 2008.
An ITEA must expire no later than 31 December 2009 and may only be entered into by an employer that employed, at 1 December 2007, at least one employee on an individual agreement. The ITEA may be made with an employee on an existing individual agreement or with a new employee not previously employed by that employer.
The Workplace Authority Director determines whether an agreement passes the no-disadvantage test. Information regarding the operation of the no-disadvantage test is available through the Workplace Authority.
Principal contractors should develop management systems that ensure employers on-site 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 workplace agreement.
All entities must ensure that their workplace arrangements on Australian Government funded building and construction projects are consistent with the Code and Guidelines. In particular, section 8 of the Guidelines sets out certain workplace relations and occupational health and safety requirements, including:
- freedom of association
- right of entry
- freedom of choice in agreement making provisions and
- over-award payments.
EXTRA DEMANDS
An employer cannot be compelled to pay benefits above those prescribed in the registered agreement, relevant award or legislation. This includes contributions to industry superannuation funds, redundancy schemes, sick leave funds, 24-hour ‘top-up’ insurance schemes, ambulance cover and training levies.
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 CODE AND GUIDELINES?
The Department of Education, Employment and Workplace Relations (DEEWR) can assess your workplace arrangements for compliance with the 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 specific provisions of the Code and Guidelines. If any of your industrial instruments are not Code compliant, you will be unable to tender for Australian Government funded building and construction work.
THINGS TO REMEMBER:
- Workplace arrangements can be formal or informal but must comply with the Code and Guidelines.
- The Workplace Relations Act 1996 lists a range of prohibited content that should not appear in some workplace agreements.
- The Code and Guidelines extends this prohibition to all workplace arrangements.
- Access to work on the site should not be affected by the workplace arrangements of any other contractor.
FURTHER INFORMATION
You can download a printable version of this fact sheet here: Workplace Arrangements (PDF 160KB).
To make an enquiry or obtain copies of the Code and Guidelines, fact sheets and other reference material visit the National Code page and Fact Sheets page of the ABCC website or call the ABCC Hotline: 1800 003 338.
Department of Education, Employment and Workplace Relations
• Code Hotline: 1300 731 293
• National Code mailbox: building@dewr.gov.au
• Website: www.workplace.gov.au/building
Workplace Authority
• General enquiries: 1300 363 264
• Website: www.workplaceauthority.gov.au
The information contained in this fact sheet is correct as at 28 March 2008.
This material is for general information only. You should seek legal advice in relation to your particular circumstances. The Australian Government, its employees and agents do not accept any liability for action taken in reliance on this document and disclaim all liability arising from any error or omission. ABN 68 003 725 098
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