The Code is shorthand for the Code for the Tendering and Performance of2016. The Code is a code of practice which sets out the Commonwealth Government’s expected standards of conduct for all building industry participants that seek to be, or are, involved in Commonwealth funded building work.
The Code came into effect on 2 December 2016 and applies to all Commonwealth funded building work for which an EOI or tender has been submitted on or after that date.
Anyor who has tendered for or expressed interest in Commonwealth funded building work since 2 December 2016 is referred to as a ‘code covered entity’.
This term is important, because there is a range of requirements in the Code that apply to code covered entities—and failing to meet those requirements may result in thebeing excluded from tendering for or being awarded Commonwealth funded building work for up to one year.
What are the requirements of the Code?
The Code outlines a range of requirements for code covered entities.
If you’re a contractor, you should familiarise yourself with these requirements to ensure that you can and will comply.
The Code’s requirements relate to the following:
On all Commonwealth funded building work:
- Eligibility to tender requirements
- Subcontractor compliance
On Commonwealth funded building work of a certain value:
- Drug and alcohol testing
On all building work where you are a covered by the Code:
- Content of enterprise agreements
- Obligation to report on actual or threatened industrial action and certain relation action
- Security of payment
- Standards of conduct on site
- Freedom of association
- Right of entry
- Industrial action
- Sham contracting
- Compliance with laws
- Unregistered written agreements and other agreements
- Prohibited conduct
- Collusive practices
- Engagement of non-citizens and non-residents
- Above entitlement payments
- Dispute settlement
- Fitness for work (alcohol or drugs)
What about the?
Before the Code came into effect, the Building Code 2013 applied to Commonwealth funded building work. It’s important to note that the Building Code 2013 continues to apply to any building work to which it applied prior to the introduction of the Code.
What are the requirements of the Building Code 2013?
The Building Code 2013 outlines a range of requirements, including that building contractors undertaking building work to which the Building Code 2013 applies must:
- comply with all designated building industry laws, such as the and other relevant legislation, including the Competition and Consumer Act 2010
- comply with all court and tribunal decisions, directions and orders
- ensure a person engaged to undertake building work is lawfully entitled to under Australian law
- ensure that a contractor, subcontractor or consultant is not coerced, or directly or indirectly subjected to undue influence or pressure, to contribute to a particular redundancy or superannuation fund
- ensure that a contractor, subcontractor or consultant is not coerced, or directly or indirectly subjected to undue influence or pressure, to make an over-award payment
- protect freedom of association by adopting certain policies, including ensuring that people are free to:
- become, or not become, members of a building association
- be represented, or not represented, by a building association
- participate or not participate in lawful industrial activities
- comply with all right of entry laws
- report actual or threatened industrial action to the ABC Commissioner as soon as practicable after the action or threat occurs
- have a compliant WHS&R management system
- comply with all applicable security of payment laws and other requirements, ensure payments are made in a timely manner and as far as practicable ensure disputes about payments are resolved in a reasonable, timely and cooperative way
- notify the ABC Commissioner of a breach or suspected breach of the Building Code 2013 within 21 days of becoming aware of the breach.
In addition, the Building Code 2013 specifies that contractors undertaking building work to which the Building Code 2013 applies must not:
- bargain for or make unregistered agreements
- engage in sham contracting
- engage in activity that requires, or attempts to unduly influence, a subcontractor or supplier to have particular workplace arrangements in place.