On 2 December 2016, the Minister for Employment, Senator the Hon Michaelia Cash, issued a new building code. The Code for the Tendering and Performance of Building Work 2016 (the Building Code) applies to companies who wish to undertake Commonwealth-funded building work.
Obtaining letters of compliance and preliminary advice
Enterprise agreements made prior to 2 December 2016 are deemed compliant with the Building Code 2016 until 28 November 2018. Enterprise agreements made from 2 December 2016 must meet the requirements of the Building Code 2016 for a contractor to be eligible to be awarded Commonwealth-funded work.
All contractors wishing to undertake Commonwealth-funded building work can apply for an ABCC Letter of Compliance to demonstrate compliance with the Building Code 2016 in respect of a particular industrial instrument or arrangement.
Funding entities and head contractors are entitled to rely on a Letter of Compliance as advice from the ABCC that the instrument or arrangement the subject of the letter meets the requirements of the Building Code 2016.
The ABCC will issue Letters of Compliance for:
- Enterprise agreements made on or after 2 December 2016 that meet Building Code 2016 requirements (an ABCC Determination);
- Enterprise agreements made before 2 December 2016 (this letter of compliance is only valid until 28 November 2018); and
- Modern Award arrangements or other lawful workplace arrangements.
The ABCC will also provide preliminary advice on whether proposed agreements meet the requirements of the Building Code 2016.
As an interim measure until letters of compliance are issued, contractors who are not covered by an enterprise agreement made on or after 2 December 2016 can use the contractor self-declaration form (linked below) to demonstrate eligibility to express interest in or tender for Commonwealth funded building work while they await advice from the ABCC.
The contractor self-declaration form cannot be used by contractors covered by an enterprise agreements made on or after 2 December 2016. Contractors with agreements made on or after 2 December 2016 will need to seek advice from the ABCC on whether their agreement meets the requirements of the Building Code 2016.
This self-declaration form can only be used for Commonwealth funded building work for which an expression of interest or tender was submitted by a contractor on or after 2 December 2016. This self-declaration form cannot be used after 28 November 2018.
Model Clauses and tender documents for contractors and subcontractors
Building contractors and building industry participants who are subcontracting Commonwealth funded building work are responsible for ensuring that all expressions of interest, tenders and contractual documentation require subcontractors to act consistently with the Building Code 2016.
Linked below are model clauses that can be used in expressions of interest or tender documentation and subcontracts issued by contractors who are subcontracting Commonwealth building work to ensure application of the Building Code.
These model clauses should be used for expressions of interest or tenders issued after 2 December 2016.
Further details on Building Code 2016 requirements will be published on the ABCC website over the coming weeks.