Above entitlement payments

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What are above-entitlement payments?

‘Above-entitlement payments’ refers to any payment or benefit that is above the amount or value of a payment or benefit required to be paid under a Commonwealth industrial instrument or industrial law within the meaning outlined in the FW Act.

What’s required of me regarding above-entitlement payments?

There are several requirements that a code covered entity must abide by in order to comply with the Code and the FW Act. We’ve outlined these for you below.

A code covered entity must not:

organise or take, or threaten to organise or take, action with intent to coerce a contractor, subcontractor or consultant into making an above-entitlement payment in respect of building work
exert undue influence or undue pressure on a contractor, subcontractor or consultant to make an above-entitlement payment in respect of building work
organise or take, or threaten to organise or take, action with intent to coerce a contractor, subcontractor or consultant into contributing to a particular fund or scheme, or supporting a particular product, service or arrangement
apply, or attempt to apply, undue influence or undue pressure on a person to contribute to a particular fund or scheme, or to support a particular product, service or arrangement.

For example, if you’re a building contractor, you are prohibited from placing undue pressure on a subcontractor to select a particular income protection insurance scheme or to make use of a particular training provider.

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Standards of conduct on site

When does the Code apply?

If you’re a building contractor or other type of building industry participant that can be required to comply with the Code by section 34 of the BCIIP Act, then you become subject to the Code from the first time you submit an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016. This makes you a ‘code covered entity’.

Are notification requirements different for Building Code 2013 and Code projects?

Yes. There are reporting requirements under the Building Code 2013 and additional reporting/notification requirements under the Code for code covered entities.

Code reporting requirements

In general industrial action (including threats) and requests or demands which appear to be for the purpose of secondary boycotts must be reported as soon as practicable, but no later than 24 hours after the code covered entity becomes aware of the action or threat.

As well as reporting industrial action, you must also, to the extent reasonably practicable, take steps to prevent/bring to an end the industrial action. A suspected breach of the Code must be reported within two working days. You must also state what steps you will take to rectify the breach and—within 14 days—report what you have done to rectify the breach.

Reports of any disputed or delayed progress payments must be made as soon as practicable after the date on which payments were due.

Details of the SOP reporting requirements can be found here.

Building Code 2013 requirements

If you’re a building contractor or building industry participant covered by the Building Code 2013, you must report actual or threatened industrial action as soon as practicable after the action or threat occurs.

You must also notify the ABCC of a breach, or a suspected breach, within 21 days of becoming aware of the breach or suspected breach. All reports/notifications can be made by emailing: codereporting@abcc.gov.au

As a head contractor, what should I do when calling for EOIs or tenders for building work on a Building Code 2013 project after 2 December 2016?

When calling for or receiving an EOI or tender on a Building Code 2013 project after 2 December 2016, you should include the following clause in the advertisement:

'By submitting an expression of interest in, or tender for, this project, you will become subject to the Code for the Tendering and Performance of Building Work 2016.’

You should also provide this information statement to respondents, to inform them that they will become code covered entities. This information statement should be provided in place of using the Building Code 2013 or Code for the Tendering and Performance of Building Work 2016 model clauses.

Please note: you should not request a Letter of Compliance from subcontractors on Building Code 2013 projects.

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Above entitlement payments

What are above-entitlement payments?

What’s required of me regarding above-entitlement payments?

Standards of conduct on site

Frequently Asked Questions

When does the Code apply?

Are notification requirements different for Building Code 2013 and Code projects?

Code reporting requirements

Building Code 2013 requirements

As a head contractor, what should I do when calling for EOIs or tenders for building work on a Building Code 2013 project after 2 December 2016?

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Above entitlement payments

What are above-entitlement payments?

What’s required of me regarding above-entitlement payments?

Standards of conduct on site

Frequently Asked Questions

When does the Code apply?

Are notification requirements different for Building Code 2013 and Code projects?

Code reporting requirements

Building Code 2013 requirements

As a head contractor, what should I do when calling for EOIs or tenders for building work on a Building Code 2013 project after 2 December 2016?