Providing voluntary paid leave to employees

The Code does not prohibit an employer from voluntarily providing additional paid leave to its employees. There must be no element of bargaining or ‘agreement’ between the Code covered entity and those that receive additional paid leave for this to be a compliant measure under the Code. 

Making one off (ex gratia) payments to employees 

The Code does not prohibit an employer from voluntarily making one-off (ex gratia) payments that result in the employee being paid in excess of their entitlements under an enterprise agreement. 

However, the Code has certain restrictions regarding ‘bargaining’ and making an ‘agreement’ that will not be registered by the Fair Work Commission. Accordingly, there must be no element of bargaining or ‘agreement’ between the Code covered entity and those that receive the additional payment. 

Applying for an enterprise agreement assessment? 

To be eligible to tender for Commonwealth funded building work, you must not be covered by an enterprise agreement that fails to meet the requirements of section 11 of the Code. The ABCC issues Letters of Compliance as evidence that an enterprise agreement has been assessed as compliant. 

The ABCC can also conduct a preliminary assessment prior to the agreement being approved by the Fair Work Commission.  

If you wish to vary an existing enterprise agreement to accommodate your COVID-19 response, the ABCC can expedite the assessment of your agreement. Submissions should: 

  • note that the changes are sought in response to COVID-19; and
  • where the enterprise agreement variation has been approved by the Fair Work Commission, refer to the ABCC EA number that was allocated to you for any previous assessment provided.

The preliminary assessment of proposed individual clause variations can be provided in two working days. 

Do drug and alcohol testing requirements still apply? 

The minimum fitness for work testing requirements set out in the Code continue to apply. 

If you have particular concerns with how drug and alcohol testing processes are being implemented during the COVID-19 outbreak you should contact the ABCC to work out how those concerns can be managed. 

Code covered entities must comply with work health and safety laws that apply to the entity in relation to building work. 

Reporting disputed or delayed progress payments 

Subcontractors deserve to be paid on time. During this challenging period their livelihood depends on it more than ever.

There are a number of requirements placed on code covered entities that are intended to ensure progress payments are made in a timely manner.

Code covered entities must continue to report any disputed or delayed progress payments to the ABCC and relevant funding entity (if any) as soon as practicable after the date on which the payment falls due.

You can report to the ABCC by completing and submitting the Reporting form for Respondents and Mandatory Reporting.

Assistance for subcontractors owed money 

If you’re a subcontractor who’s owed money, we can help you identify if the contractor who owes you a progress payment is a code covered entity.

Following this, we can help with the following situations:

  • Subcontractors being unduly pressured, influenced or coerced not to exercise their rights under security of payment laws.
  • Subcontractors not being paid monies in a timely manner that are legally due and payable; for example, where subcontractors have: 
    • submitted a valid progress payment claim* and have not been paid in accordance with a payment schedule* or a notice of dispute*
    • submitted a valid progress payment claim*, and a payment schedule or notice of dispute* has not been submitted in response, and the amount in the payment claim has not been paid by the payment date
    • not been paid in accordance with an adjudicator’s determination
    • not been paid an amount certified by a Principal (or Superintendent) under a contract
    • a documented dispute settlement process is not being complied with
    • Security of payment laws have not been complied with.

*A “payment claim”, a “payment schedule” and a “notice of dispute” are terms defined under security of payment laws. These laws differ in each region. 

If any of the situations outlined above apply to you, please report it to the ABCC by submitting the Reporting form for Claimants.