May - June 2016 Industry Update

Building Code 2013 – Enterprise Agreement Assessments

From 18 May 2016, FWBC’s compliance role expanded to include assessing each clause of new enterprise agreements made on or after 18 May 2016 for compliance against the requirements of the Building Code 2013

Contractors who want to express interest in or tender for future Commonwealth funded building work must comply with the Building Code 2013.  As such, it is imperative that contractors understand what is required to ensure their workplace arrangements are compliant. Contractors should be aware that:

  • if you make a new enterprise agreement, or vary an existing agreement, on or after 18 May 2016 you will require an FWBC letter to demonstrate that the enterprise agreement complies with the Building Code 2013 if you want to express interest in or tender for Commonwealth funded building work for which the head contract was procured after 1 June 2016;
  • if you pay in accordance with the modern award, a letter of compliance with the Building Code 2013 is not required. You may rely on the FWBC fact sheet (PDF | HTML) to demonstrate that a letter of compliance from FWBC or the Department of Employment is not required;
  • if you are only covered by enterprise agreement(s) made before 18 May 2016, an FWBC letter is not required.  You may rely on the FWBC fact sheet (PDF | HTML) to demonstrate that a letter of compliance from FWBC or the Department of Employment is not required;
  • if you are covered by an enterprise agreement made on or after 18 May 2016 that contains clauses that are inconsistent with the Building Code you will be ineligible to express interest in or tender for Commonwealth funded building work procured from 1 June 2016.

Overview of what is required as evidence of compliance with the Building Code 2013
 

Workplace arrangement Evidence of compliance from FWBC Additional tender document
Modern Award

Enterprise Agreement fact sheet (Explains that modern awards are deemed compliant)

Declaration of Code compliance (see model clauses)
Common law contract

Enterprise Agreement fact sheet (Explains that common law contracts are deemed compliant)

Declaration of Code compliance (see model clauses)
Enterprise Agreement made prior to 18 May 2016 Enterprise Agreement fact sheet (Explains that enterprise agreements made prior to 18 May 2016 are deemed compliant) Declaration of Code compliance (see model clauses)
Enterprise agreement made from 18 May 2016 FWBC letter of compliance Declaration of Code compliance (see model clauses)

Please note that FWBC does not assess enterprise agreements for compliance with the advance release Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (the 2014 Code). The Department of Employment is continuing to undertake interim assessments of enterprise agreements against the 2014 Code. Their website is http://www.employment.gov.au/building-code

For further information specifically on the assessment of enterprise agreements against the Building Code 2013, please view our FWBC Enterprise Agreement Assessments fact sheet.  If you can’t find the answer you are looking for, simply email agreementquestions[at]fwbc.gov.au and we will get back to you as soon as possible.

Enforcing compliance down the contractual chain

For directly and indirectly government funded projects, there is a requirement that building industry participants ensure that Building Code obligations are cascaded down the contractual chain.  Contractors are responsible for ensuring all contractual documentation clearly set out the requirements of the Building Code, and include the relevant clauses where applicable. Contractors may use the Model Clauses for Tender and Contract Documentation for the Building Code 2013 which have been revised and simplified to assist funding entities and funding recipients prepare tender and contract documentation. 

For further information please https://www.fwbc.gov.au/building-code.

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