Eligibility to tender

The Building Code 2016 (the Code) sets out two eligibility requirements for contractors seeking to express interest in or tender for Commonwealth funded building work. These criteria relate to compliance with section 11 and exclusion sanctions.

Compliance with Section 11 of the Code

Section 11 of the Code provides that a code covered entity must not be covered by an enterprise agreement in respect of building work which includes certain types of clauses.

Contractors* become code covered entities from the first time they submit an expression of interest or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016.

To demonstrate compliance with section 11 of the Code, contractors require either a Letter of Compliance, or an appropriate Self-Declaration.

The evidence required of each contractor is different depending on:

  • the type of industrial arrangement(s) the contractor operates under, for example a modern award or enterprise agreement;
  • when the arrangement was made; and
  • when the contractor has/is tendering for Commonwealth funded building work. 

A proof of eligibility table has been developed which explains the necessary evidence for a contractor to demonstrate compliance with section 11 of the Code including links to Self-Declaration forms.

*The Building Code 2016 only applies to contractors that are constitutional corporations or where the work is being carried in a Territory or Commonwealth place.

Letters of Compliance, Self-Declarations, Exemptions and Preliminary Advice

Letters of Compliance

The ABCC issues Letters of Compliance for enterprise agreements made on or after 25 April 2014 that meet Building Code 2016 requirements (an ABCC Determination). Contractors requiring an ABCC Letter of Compliance must apply to the ABCC to have their enterprise agreement assessed, and to subsequently be issued with an ABCC Letter of Compliance. For more information please see ‘Applying for a Letter of Compliance or Preliminary Advice’ below.

Please note: Transitional Letters of Compliance and DEEWR issued Letters of Compliance are not valid to demonstrate a contractor’s compliance with the requirements of section 11. For more information please see ‘Transitional ABCC Letters of Compliance’ below.

Self-Declarations

Self-Declarations provide a streamlined form of evidence for those situations where a Letter of Compliance is not required.

Contractors do not need a Letter of Compliance and may instead rely on a Self-Declaration if they operate exclusively under one of the following industrial arrangements:

  • a modern award or other lawful workplace arrangement, such as a common law contract; or
  • an enterprise agreement that was made before 25 April 2014 and has not since been varied in accordance with section 207 of the Fair Work Act 2009.

Please note: During the transitional period (17 February 2017 to 31 August 2017) some contractors were able to use Self-Declaration B, D or E to express interest in or tender for Commonwealth funded building work. As of 1 September, these have been rescinded and are no longer valid. Contractors who previously relied on these Self-Declarations require a Letter of Compliance from 1 September 2017. 

A proof of eligibility table has been developed which explains the necessary evidence for a contractor to demonstrate compliance with section 11 of the Code including links to Self-Declaration forms.

Exemptions

Exemptions may also apply in the following circumstances:

  • to the awarding, before 29 November 2018, of building work relating to an expression of interest or tender lodged by the contractor in the period beginning 2 December 2016 and ending on 16 February 2017 (unless the contractor is also covered by a non-compliant agreement made on or after 2 December 2016);
  • to an enterprise agreement made before 2 December 2016, that applies to the contractor or related entity in respect only of building work relating to an expression of interest or tender lodged by the contractor before 2 December 2016. 

A proof of eligibility table has been developed which explains the necessary evidence for a contractor to demonstrate compliance with section 11 of the Code.

Preliminary Advice

The ABCC provides preliminary advice on whether a proposed enterprise agreement i.e. a draft enterprise agreement that has not been approved by the Fair Work Commission, if made and approved in a certain form, would become an enterprise agreement that meets the requirements of section 11 of the Code. For more information please refer to ‘Applying for a Letter of Compliance or Preliminary Advice’ below.

The ABCC also provides advice on whether individual clauses meet the requirements of section 11 of the Code. A quicker turnaround is provided on individual clauses as they are much faster to assess than whole agreements. Individual clauses can be submitted to clauseadvice [at] abcc.gov.au.

Applying for a Letter of Compliance or Preliminary Advice

To streamline the assessment process, the ABCC has introduced a two-step process which requires stakeholders to undertake a preliminary review of any proposed agreement before submitting it to the ABCC for consideration. Commence your preliminary review.

Guidance Material

The ABCC’s guidance material contains advice on whether clauses meet the requirements of section 11 of the Code. Stakeholders must utilise this guidance material to conduct a preliminary review of their proposed agreement before submitting it to the ABCC for assessment.

If clauses in an agreement do not meet the requirements of the Code based on the advice in the guidance material, this is a clear indication of the advice the ABCC would give about an agreement, namely, that the ABCC could not issue a Letter of Compliance for that agreement.

As well as providing the industry with immediate access to extensive advice from the ABCC on Code compliance, the guidance material has the additional benefit of streamlining the assessment process by allowing stakeholders to conduct a preliminary review of their agreement before submitting it the ABCC.

Application process

If you have completed a preliminary review of your proposed agreement and consider it likely to be compliant with the requirements under section 11 of the Code you may submit your agreement to the ABCC for assessment using the Advice request/Letter of Compliance Form.

Timeframe for receiving a Letter of Compliance or Preliminary Advice

Timeframes

The time to assess an agreement varies based on a number of factors including the agreement’s length and the extent to which it is compliant with the Code. Agreements that are compliant or mostly compliant are much quicker to assess. This is why it is critical to conduct a preliminary review of your agreement using the guidance material before you submit it to the ABCC.  

Progress of Enterprise Agreements

The ABCC understands that the progress of your enterprise agreement assessment is important to you.  The ABCC has a dedicated hotline you can call regarding information on the progress of your enterprise agreement.  Please contact 1800 003 338 between 8.30am and 5pm AEST and a dedicated case manager will talk with you about your assessment status.

Transitional ABCC Letters of Compliance

Transitional ABCC Letters of Compliance for enterprise agreements made before 2 December 2016 are no longer valid as evidence to express interest in, tender for or be awarded a contract for Commonwealth funded building work.

You can identify when a Letter of Compliance is a transitional Letter of Compliance and no longer valid because it states you are eligible to tender until 29 November 2018. Letters of compliance issued by DEEWR are also no longer valid as evidence of eligibility to tender.

If you have such a transitional letter or DEEWR issued letter, you will instead need to apply for an ABCC Letter of Compliance or complete the appropriate Self-Declaration as outlined above.

Sanctions

Section 23 of the Code provides that to be eligible to be awarded Commonwealth funded building work, a contractor must not be subject to an exclusion sanction.

While the ABCC generally seeks voluntary rectification by contractors of breaches in the first instance, the Code provides that the ABC Commissioner may refer breaches to the Minister for Employment with recommendations, if any, that a sanction should be imposed. The Minister in turn can choose to impose an exclusion sanction, or a formal warning.

An exclusion sanction means a period during which a contractor is not permitted to express interest in, tender for, or be awarded, Commonwealth funded building work. Details of current exclusion sanctions are published on our Current sanctions page.

Frequently Asked Questions, Resources and Contacts

The ABCC had developed a comprehensive list of frequently asked questions regarding enterprise agreements. There is also a dedicated resources page which contains key documents, legislation, forms and key contact information.

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Need more information?

For further information or assistance contact the ABCC Hotline on 1800 003 338.