Transitional Arrangements – interaction between Building Code 2013 and Building Code 2016

The Building Code 2013 continues to operate in relation to building work to which it applied prior to 2 December 2016.

The Building Code 2016 applies to contractors who submit an EOI or tender for Commonwealth funded building work on or after 2 December 2016.

The following scenarios have been developed to help contractors to understand the interaction between the two Building Codes.  For the purpose of these scenarios, “Building Code 2013 projects” are projects where the head contractor submitted their tender prior to 2 December 2016. 

I am a head contractor on a Building Code 2013 project.  What happens if I engage subcontractors to undertake building work on that project post 2 December?

Subcontractors who express interest in or tender for the project post 2 December 2016 become subject to the Building Code 2016 (code covered entities).  The Building Code 2013 continues to apply to you as the head contractor for the life of the project. 

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

When calling for an EOI or tender on a Building Code 2013 project post 2 December 2016, you should do the following:

  • 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."
 

  • provide this information statement (PDF - 71KB | Word - 70KB) to respondents when calling for or receiving expressions of interest or tenders on or after 2 December 2016 to inform them 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.

As a head contractor, what are my obligations in relation to subcontractor compliance onsite on a Building Code 2013 project?

Head contractor requirements on a Building Code 2013 project are the same as on a private project with respect to subcontractor compliance.  This means that you are no longer required to ensure subcontractor compliance on a Building Code 2013 project.

The ABCC will monitor compliance of subcontractors on Building Code 2013 projects.

What if I bid for Commonwealth funded building work after 2 December 2016 and therefore become a code covered entity. Do my obligations change on my Building Code 2013 projects?

No.  Your obligations on existing Building Code 2013 projects don’t change once you become a code covered entity.  However you will be required to comply with the Building Code 2016 on any new projects, including private projects that you express interest in or tender for after becoming a code covered entity.

I am a subcontractor who is a code covered entity on a Building Code 2013 project (i.e. I submitted my tender for this project post 2 December 2016).  What happens if I further subcontract building work on this project?

Subcontractors* tendering post 2 December 2016 become subject to the 2016 Code on that project and future projects (code covered entities).  The ABCC will monitor your compliance with the 2016 Code, which sets out the obligations on code covered entities.

As a code covered entity you are also required to ensure any subcontractors you engage comply with the Building Code 2016.  When further subcontracting the work you should:

  • only engage subcontractors who meet the eligibility requirements (section 23);
  • use Model Clause Type C (PDF - 113KB | Word - 187KB) in your tender and contract documentation;
  • request a Letter of Compliance from the subcontractor;
  • ensure as far as reasonably practicable that contractors who you engage take remedial action to rectify non-compliant behaviour.

I am a head contractor on a Building Code 2016 project (a code covered entity).  What happens if I engage subcontractors* to undertake building work on that project?

Subcontractors tendering post 2 December 2016 become subject to the 2016 Code on that project and future projects (code covered entities).

As a code covered entity you are required to ensure any subcontractors you engage comply with the 2016 Code. When subcontracting the work you should:

  • only engage subcontractors who meet the eligibility requirements (section 23);
  • use Model Clause Type B (PDF - 125KB | Word - 190KB) in your tender and contract documentation;
  • request a Letter of Compliance from the subcontractor;
  • only enter a contract in respect of building work with a code covered entity that only uses products that comply with the relevant Australian standards published by, or on behalf of, Standards Australia.
  • require subcontractors:
    • to advise you, prior to entering into a contract with them, 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; or
      • 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; and
    • to update the advice referred above every six months for the duration of the contract between the you and the subcontractor.
  • ensure that all subcontractors on site comply with the WRMP that applies to the building work.
  • ensure as far as reasonably practicable that contractors who you engage take remedial action to rectify non-compliant behaviour.

The ABCC has developed a table (PDF - 100 KB | Word - 27 KB) which includes scenarios to assist stakeholders to understand the interaction between the two Building Codes. This table includes hyperlinks to the appropriate documentation required when calling for EOIs or tenders or when engaging subcontractors.


*The code may require a person to comply with it in respect of building work only if the person is a building contractor that is a constitutional corporation or a building industry participant carrying out work in a Territory or Commonwealth place. The definition of building industry participant includes building contractors.

Contractors engaging subcontractors who are not constitutional corporations or are not carrying out work in a Territory or Commonwealth place must ensure that any agreement entered into in relation to building work with the subcontractor requires the subcontractor to act consistently with the Building Code 2016 in respect of building work that is the subject of the agreement.


 

Need more information?

For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry@abcc.gov.au.