What are the eligibility requirements for contractors?

For funding entities, the Code sets out two eligibility requirements for contractors expressing interest in or tendering for Commonwealth funded building work. These criteria relate to section 11 of the Code, and exclusion sanctions.

If you’re a funding entity, you can’t enter into contracts with building contractors or building industry participants if the eligibility criteria have not been met.

We’ve outlined these requirements for you below.

Make sure your contractors comply with Section 11

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.

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

To demonstrate compliance with section 11 of the Code, contractors can supply either of the following:

  • A Letter of Compliance.
  • An appropriate Self-Declaration.

The evidence required of each contractor differs 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
  • when the contractor has/is tendering for Commonwealth funded building work.

We’ve developed a proof of eligibility assessment tool to help you. It outlines the evidence that can be used by a contractor to demonstrate compliance with section 11 of the Code.

If a contractor is covered by an enterprise agreement that’s not compliant with the Code, that contractor won’t be able to express interest in or tender for directly Commonwealth funded building work.

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

Letters of Compliance, Self-Declarations and Exemptions

Letters of Compliance

Contractors who seek a Letter of Compliance to demonstrate eligibility to tender must apply to the ABCC to have their enterprise agreement assessed.

If they comply, they’ll be issued an ABCC Letter of Compliance.

Funding entities are entitled to rely on an ABCC Letter of Compliance as advice from the ABCC that the instrument or arrangement meets the requirements of the Code.

We issue Letters of Compliance for enterprise agreements made on or after 25 April 2014 that meet Code requirements (an ABCC determination).

Enterprise agreements made prior 25 April 2014 do not require a letter of compliance. The contractor may be able to rely on a self-declaration instead.

Review the Letter of Compliance forms.

Self-Declarations

Some contractors don’t need a Letter of Compliance. Instead, they rely on a Self-Declaration if they only operate under one of the following industrial arrangements:

  • A modern award or other lawful workplace arrangement.
  • 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.

It’s important to note that 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.

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.

We’ve developed a proof of eligibility assessment tool to help you. It outlines the evidence required for a contractor to demonstrate compliance with section 11 of the Code.

Exemptions

Exemptions can 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 on 2 December 2016 and ending on 16 February 2017.
  • To an enterprise agreement made before 2 December 2016 that applies to the contractor or related entity in respect of building work relating to an expression of interest or tender lodged by the contractor before 2 December 2016.

We’ve developed a proof of eligibility assessment tool to help you. It outlines the evidence required for a contractor to demonstrate compliance with section 11 of the Code.

Declaration of Compliance

The Declaration of Compliance starts on page six of the

. Please ensure that contractors tendering for the project complete the declaration.

The declaration requires contractors to set out—in detail—all enterprise agreements made or varied on or after 25 April 2014 that cover them or their related entities.

It also requires contractors to confirm that those enterprise agreements comply with the Code, either with an ABCC Letter of Compliance or by demonstrating that an exemption applies.

Exclusion Sanctions

The Code requires that contractors partaking in an EOI/tender process for Commonwealth funded building work must not be subject to an exclusion sanction.

The ABCC is responsible for monitoring compliance. We publish exclusion sanctions on the Sanctions page, where funding entities can confirm the sanction status of relevant respondents.

Where a WRMP is required for a project

The Model Clauses prompt funding entities to seek a WRMP from contractors during tender processes. They also indicate the requirement for the WRMP to be approved by the ABCC.

If you’re a funding entity, you must apply to the ABCC to have a WRMP approved.

You must provide to the ABCC only the WRMPs of those respondents that you seek to shortlist, or have shortlisted, as part of the tender evaluation process.

We typically receive between one and five WRMPs for assessment for each project.

Funding entities have no role in assessing WRMPs. Approval of the WRMP(s) must be sought from the ABCC and granted prior to any contract being executed.

You can submit your WRMPs to WRMPAssessments [at] abcc.gov.au. Please include all information in a single email that indicates the tender to which the WRMP(s) relate (see notification requirements below). An automated confirmation of receipt will be provided.

Once we’ve assessed your WRMPs, we’ll send you an assessment record for each WRMP submitted, indicating the approval or non-approval of the WRMP(s) and the reasons why.

If we don’t approve a WRMP, you can submit a contractor’s amended WRMP for approval.

Read more about WRMPs.

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