If you’re a code covered entity on Commonwealth funded building work (because you expressed interest in or tendered for the work on or after 2 December 2016), you must meet certain requirements of the Code when engaging a subcontractor on that project.

Subcontractors tendering for Commonwealth funded building work on or after 2 December 2016 become subject to the Code for that project and for future projects. This makes them a code covered entity too.

As a code covered entity, it’s your responsibility to ensure that any subcontractor you engage for Commonwealth funded building work complies with the requirements of the Code while performing that work.

These requirements vary depending on whether the project is directly or indirectly funded by the Commonwealth. To help you meet the requirements that will apply to you and your subcontractors, we’ve detailed the process below.

Engaging subcontractors on all Commonwealth funded building projects

If you are a code covered entity on a Commonwealth funded building project, you should:

  • ensure that any request for expressions of interest or tender (howsoever described) for building work requires a person responding to the tender to comply with the Code
    • you can use Model Clause Type B—available here: (Word - 190KB | PDF - 125KB)—in your tender and contract documentation
  • only engage subcontractors who meet the eligibility requirements of the Code at the time they lodge an expression of interest or tender
    • you can use Model Clause Type B—available here: (Word - 190KB | PDF - 125KB)—in your tender and contract documentation
    • you can request a Letter of Compliance or Self-Declaration —as applicable based on the proof of eligibility assessment tool.
    • You can check the ABCC website for whether a subcontractor is subject to an exclusion sanction
  • ensure that all subcontractors on site comply with any WRMP applicable to the building work
  • ensure, as far as reasonably practicable, that contractors who you engage take remedial action to rectify non-compliant behaviour.

If you are a code covered entity on a directly funded Commonwealth project, you must:

  • require subcontractors to advise you, prior to entering into a contract, whether the subcontractor has, within the preceding three year period:
    • had an adverse decision direction or order made by a court or tribunal for a breach of a designated building law, work health and safety law or the Migration Act 1958
    • been required to pay any amounts under an adjudication certificate (provided in accordance with a law relating to the security of payments that are due to persons in respect of building work) or owed any unsatisfied judgement debts (including by any related entity) to a building contractor or building industry participant
  • require the subcontractor to update the details referred to above every six months for the duration of your contract with the subcontractor
  • ensure compliance by subcontractors with rules about only using products on the project that comply with relevant Australian standards:
    • Your contract with the funding entity (or the contractor that engaged you on the project) will state that you must use only products that comply with the relevant Australian standards published by, or on behalf of, Standards Australia.
    • You will be able to meet this obligation if you enter a contract with a subcontractor in which they agree to this same requirement. Relevant contract clauses are contained in the Model Clauses Type B .

Please note that while the Australian standards requirement isn’t mandatory for indirectly Commonwealth funded building work, it is best practice and may be a requirement in your contract with the funding recipient (or relevant contractor).

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