What essential service exemptions are available?

The ABC Commissioner may grant an exemption from the Code to a building contractor or building industry participant under either section 6A or section 6B of the Code if certain conditions are satisfied.

When can an exemption be granted for essential service providers under section 6A?

The ABC Commissioner may grant a section 6A exemption if satisfied that:

  • the building work being performed involves providing essential services related to supply of electricity, natural gas, water, waste water or telecommunications; and
  • granting the exemption would be appropriate having regard to:
    • promoting an improved workplace relations framework for building work; and
    • promoting compliance with the Code, the FW Act and designated building laws; and
    • encouraging the development of safe, healthy, fair, lawful and productive building sites for the benefit of all building industry participants.

Is there another exemption available for essential services infrastructure under section 6B?

The Code (Section 6B) provides that a building contractor or a building industry participant may apply to the ABC Commissioner for an exemption for essential services infrastructure. This is known as an infrastructure exemption.

Essential services infrastructure means systems or networks:

  • to which consumers can connect for supply of electricity, natural gas, water, waste water, or telecommunications that:
    • are important for the life, the personal safety or health, or the welfare, of the population or a significant part of it; or
    • make a significant contribution to the Australian economy or an important part of it.

When must an infrastructure exemption be granted?

The ABC Commissioner must grant an infrastructure exemption under 6B if satisfied that:

  • the principal business of the building contractor or building industry participant involves performing work for the provision of essential services related to supply of electricity, natural gas, water, waste water, or telecommunications; and
  • the principal building work of the building contractor or building industry participant involves performing work for the provision of essential services infrastructure.

What does an exemption apply to?

The Code provides that an exemption granted under either section 6A or 6B must be issued in writing.

An exemption granted under section 6A may apply either:

  • to building work performed by the building contractor or building industry participant for a period of time; or
  • to a project specified in the exemption.

An exemption granted under section 6B may apply either:

  • to a building contractor or building industry participant for the period of time specified in the exemption; or
  • if no period is specified, until it is revoked.

Can an exemption be revoked?

The Code provides that the ABC Commissioner must revoke an infrastructure exemption (a section 6B exemption) if:

  • the Commissioner is satisfied that the principal business of the building contractor or building industry participant no longer involves performing work for the provision of essential services; or
  • the Commissioner is satisfied that the principal building work of the building contractor or building industry participant no longer involves performing work for the provision of essential services infrastructure.

What is the effect of an exemption?

Effect of an exemption on a code covered entity

If an exemption is granted to a building contractor or a building industry participant that is a code covered entity, the effect of an exemption is that the entity is deemed not to be a code covered entity for the duration of the period or the project specified in the exemption (section 6A exemption) or while the exemption applies (section 6B infrastructure exemption).

This means they do not have to comply with the requirements of the Code while the exemption applies.

For example:

  • The building contractor or building industry participant isn’t required to meet the requirements of the Code when it expresses interest in, tenders for or is awarded building work that comprises the project subject to the exemption, or for the duration of the exemption.
  • In particular, the contractor or building industry participant isn’t required to meet the requirements of Section 11 of the Code when tendering for Commonwealth funded building work. This means the contractor or building industry participant will not need to produce an ABCC Determination of Compliance or Self-Declaration form
  • If the building contractor or building industry participant is a head contractor on Commonwealth funded building work that is otherwise subject to the Code:
    • it isn’t required to submit a WRMP as part of its tender, nor comply with any applicable WRMP onsite
    • it isn’t required to ensure that its subcontractors (if any) comply with the Code.

It’s important to note that any code covered entity that deals with a building contractor or building industry participant that has an applicable exemption is still required to comply with the requirements of the Code.

Effect of an exemption on a non-code covered entity

If an exemption is granted to a building contractor or building industry participant that is not a code covered entity the effect of an exemption is that they do not become a code covered entity when they express interest in or tender for work covered by the exemption.

How do I apply for an exemption?

To apply for an exemption, you need to submit an application in writing to essentialservices@abcc.gov.au.