On Monday 25 July 2022, Government registered a legislative instrument called the Code for the Tendering and Performance of Building Work Amendment Instrument 2022 (Amended Code).

The Amended Code will take effect from 26 July 2022.

Overview

The Amended Code removes most substantive requirements from the Code. However, it leaves in place:

  • The obligation on code covered entities to undertake Labour Market Testing;
  • The obligations on Funding Entities:
    • To ensure that before a contract is entered into in respect of Commonwealth funded building work, the preferred tenderer provides the following information:
    • (a) the extent to which domestically sourced and manufactured building materials will be used to undertake the building work;
    • (b) whether the building materials to be used to undertake the building work comply with relevant Australian standards published by, or on behalf of, Standards Australia;
    • (c) the preferred tenderer’s assessment of the whole-of-life costs of the project to which the building work relates;
    • (d) the impact on jobs of the project to which the building work relates; and
    • (e) whether the project to which the building work relates will contribute to skills growth.
    • To only enter into a contract in respect of Commonwealth funded building work with a code covered entity that only uses products in building work that comply with the relevant Australian standards published by, or on behalf of, Standards Australia.
    • To read about how the changes to the Code will affect funding entities, view this factsheet.
  • Code Exemptions.  

All other substantive requirements are removed.

Further details will be provided in due course.

Please note: From 26 July 2022, the ABCC will no longer issue Determinations of Compliance. Code covered contractors should no longer seek Determinations of Compliance from potential subcontractors.

Should contractors refuse to engage a subcontractor on the basis that the subcontractor is covered by an enterprise agreement that was not compliant with the former Code, the contractor risks contravening the adverse action provisions of the Fair Work Act 2009 (Cth) (FWA), as this refusal to engage the subcontractor would not have the protection of the Code as a law of the Commonwealth under section 342(3) of the FWA.