Queensland’s Best Practice Principles
The Queensland government’s Procurement Policy (QPP) is an overarching policy for the procurement of goods and services by Queensland state government agencies. The most recent iteration of this policy, QPP 2021, commenced on 1 February 2021.
Sitting within the QPP, the Queensland government has published a series of interrelated policy statements and guidelines covering different aspects of procurement.
One of these guidelines is the Best Practice Principles (BPPs). The BPPs provide a set of criteria that tender respondents must address in responding to tenders for building projects to which the BPPs apply. All government agencies covered by the Queensland Procurement Policy must apply the BPPs to major projects of $100 million or more and to other projects below that threshold as declared by the Queensland government.
The BPPs are also supported by a document called the Best Practice Industry Conditions (BPIC) which may apply on a project-by-project basis. This document takes the form of a draft enterprise agreement and contains specific employment conditions.
Noting that the BPPs are broad policy objectives, how they are incorporated into building projects can differ on a case by case basis. Below, the ABCC examines how the BPPs apply on the Centenary Bridge Upgrade Project.
Centenary Bridge Upgrade Project
The Centenary Bridge Upgrade Project is a $244 million Brisbane based road and bridge project, partly funded by both the Commonwealth government and the Queensland government.
On 7 May 2021, the Queensland government released the tender package for that project to pre-qualified tenderers. This is the most recent project to which Queensland’s BPPs will apply.
The tender package for this project includes an iteration of the BPIC, called the ‘Best Practice Industry Conditions for Transport Civil Construction Projects’ or ‘Transport BPIC’. It also includes a document titled “Expression of Interest Centenary Bridge Upgrade Project” (EOI). Tenderers who respond to the EOI are required to complete a form (EOA Schedule 4) in which they agree to apply the Queensland Government’s Code of Practice for the Building and Construction Industry to any project to which it applies, regardless of whether or not their tender for the Centenary Bridge Project is successful.
The ABCC has assessed the tender package and does not consider that the package or the Transport BPIC breach the law or the Code for the Tendering and Procurement of2016 (Code). That is, the mere promulgation of these documents is not unlawful. However, contractors should be wary of the legal risks they face in tendering for projects to which the BPPs, in their current form, apply.
Centenary Bridge Procurement Documents
The Queensland government’s procurement for the Centenary Bridge Upgrade Project will be undertaken in two stages. At Stage One, applicants will be shortlisted against “non-price selection criteria”. The shortlisted applicants will then be invited to progress to an RFT as Stage Two of the process. Stage Two involves both non-price selection criteria and price-based selection criteria.
The tender package describes a series of Key Result Areas (KRAs) that comprise the non-price selection criteria. The KRAs expound upon the Queensland Government's policy objectives. Tender applicants are required to address how they will meet the KRAs through a series of selection criteria questions.
Of concern, KRA one provides that tender respondents should address the Queensland government on how it will ensure that the wages and entitlements set out in the BPICs will be implemented on the project by the tender respondent. KRA one is set out as follows:
Best Practice Industry Conditions
The document titled - The Best Practice Industry Conditions for Transport Civil Construction Projects (“Transport BPIC”) is applicable to this project and is relevant to the on-site works and personnel. The following information is also relevant to the BPIC:
- The Best Practice Principles in the Queensland Procurement Policy 2021 set an expectation that projects will implement best practice industrial relations to ensure a skilled workforce is attracted and retained for the life of a project’s delivery.
- The Transport BPIC is an expression of government policy to achieve these aims. Such terms and conditions promote best practice industrial relations by facilitating a detailed focus on all aspects of the employment relationship and achieving the goals of the project in a positive, collaborative and productive way. This includes facilitating the adoption of practices to support the implementation of the highest possible levels of health and safety practices, procedures and training.
- The Transport BPIC is provided as guidance for Applicants.
- The Applicant will be required to consider in its Stage 2 RFT, if shortlisted:
- How the Applicant intends to achieve the intent and outcomes of the Best Practice Industry Conditions on this Project
- If appropriate, alternate ways to progress best practice industry relations on this Project; and
- Outline how it will take the Transport BPIC into account when selecting and engaging Reputable Suppliers including sub-contractors on this Project.
- Although the Transport BPIC is set out in the form of an agreement, Applicants are not required to enter into an agreement or require their subcontractors to enter into an agreement. An enterprise agreement with the named employee organisations is not a mandatory requirement. Applicants are able to demonstrate the intent and outcomes of the Transport BPIC in any manner the Applicant chooses to nominate.
- Where a particular supplier of training or superannuation is referred to in the Transport BPIC, this entitlement or obligation relates to that supplier or any suitable equivalent which the Tenderer may choose to nominate.
- Nothing in the Transport BPIC requires an Applicant to make any commitment that would breach any laws, for example the Building Code.
Although this KRA sets out some appropriate caveats, such as “Nothing in the Transport BPIC requires an Applicant to make any commitment that would breach any laws”, it also states that the Transport BPIC, which contains specific wages and entitlements, “is applicable to this project and is relevant to the on-site works and personnel.”
The Centenary Bridge procurement documents encourages tenderers to either adopt the terms in the BPIC or to propose ways in which the tenderer would provide terms and conditions of employment that met or exceeded the terms in the BPIC.
The BPPs, the Transport BPIC and the law
Provisions of the Fair Work Act 2009 (FW Act) described below apply to any person. Provisions of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) described below apply to “building industry participants”. This term includes “building contractors” as well as any “person who enters into a contract with aunder which the building contractor agrees to carry out building work or to arrange for building work to be carried out”.
Theand provide that it is unlawful for a person:
- to coerce or apply undue pressure on another person to make, vary or terminate an enterprise agreement (section 54, BCIIP Act)
- to take action against a building employer because they are covered or not covered (or proposed to be covered/not covered) by a (section 55, BCIIP Act)
- to take against another person because they have a workplace right or seek to exercise a workplace right (section 340, FW Act)
- to threaten, organise or take action with intent to coerce the other person to exercise, or not exercise a workplace right, or exercise the workplace right in a particular way (section 343, FW Act)
- (if an employer) to exert undue influence or undue pressure on an employee in relation to a decision by the employee to agree to or to terminate, an individual flexibility arrangement (s 344, FW Act)
- (if an employer) to induce an employee to become, not become, remain or cease to be an offer or member of an industrial association (including a union) (section 350, FW Act) and
- to discriminate against an employer because they are covered or not covered by a particular type of workplace instrument or an enterprise agreement that does not cover an employee organisation (section 354, FW Act).
The Centenary Bridge procurement documents encourage tenderers to either adopt the terms in the BPIC or to propose ways in which the tenderer would provide terms and conditions of employment that met or exceeded the terms in the BPIC. These documents, on their own, do not constitute ‘coercion’ or ‘undue influence’ because this encouragement does not effectively negate the choice of tenderers to make, vary or terminate any industrial agreements.
It would be unlawful for:
- any person to coerce or apply undue influence on a tender respondent to, for example, make a new enterprise agreement or vary an existing enterprise agreement, in such a way that it actually negates choices or attempts to, or imposes undue influence on a person to do so;
- any person to discriminate or take other adverse action against a tender respondent, because they do not have an enterprise agreement or do not have an enterprise agreement in the same terms as the Transport BPIC;
- an employer to place undue pressure on an employee who has an individual flexibility arrangement to terminate that arrangement because it was not consistent with the Transport BPIC and/or to enter into a new arrangement which was consistent with the Transport BPIC; or
- an employer to offer to pay an employee an additional sum of money (including to a fund such as a redundancy fund or a training fund) if (and only if) they become a member of a particular union and/or disclose to the employer that they are a member of a particular union.
The Centenary Bridge Upgrade Project also asks tenderers to demonstrate how they will engage ‘Reputable Suppliers’. ‘Reputable Suppliers’ are defined in the package by as suppliers who are preferred by TMR due to certain “Reputable Attributes: including (among other criteria):
‘a commitment to using best endeavours to engage subcontractors who provide terms and conditions of employment, including specific pay rates, for its personnel who will perform work under the Contract, which are equivalent to the Transport BPIC’.
This passage infers that tender applicants that are able to demonstrate how they will engage subcontractors that will pay wages and entitlements at or above the rates described in the Transport BPIC, or who are otherwise “preferred” by TMR will be preferred over those applicants who do not.
As described above, it would be unlawful for a contractor to “threaten, organise or take action with intent to coerce the other person to exercise, or not exercise a workplace right, or exercise the workplace right in a particular way” (section 343, FW Act).
This would prevent the successful tenderer from imposing contractual or other requirements on subcontractors or tender respondents to alter their registered enterprise agreement or provide for conditions in accordance with the Transport BPIC. Similarly it would be unlawful for the Queensland Government to be involved in such conduct (section 550, FW Act).
It would also be unlawful for the successful tenderer to discriminate against an employer because their employees are covered or not covered (or it is proposed that their employees will, or will not, be covered) by a particular type of workplace instrument (section 354, FW Act). The preferred tenderer cannot refuse to engage a potential subcontractor on the basis of the terms and conditions it pays its workers under a lawfully made enterprise agreement or pursuant to a modern award.
In responding to the Centenary Bridge Upgrade tender, contractors cannot require subcontractors to exceed the terms and conditions of their lawful agreements. The Building Code also prohibits contractors from monitoring or auditing the enterprise agreements of its subcontractors (see s11(3)(k)/11(4) of the Code).
Centenary Bridge Draft Contract
In July 2021, the Queensland Government released draft amendments to its General Conditions of Contract (the Contract) which relate to building and construction work procurement.
The draft amendments cover how the government would contractually require a contractor to apply the Best Practice Principles (BPP) and supporting document the Best Practice Industry Conditions (BPIC).
The ABCC has assessed the Contract in its current form and provides additional advice to contractors available here.
Role of the ABCC
The ABC Commissioner has statutory functions under section 16 of the Building and Construction Industry (Improving Productivity) Act 2016, which include:
- monitoring and promoting appropriate standards of conduct by building industry participants, including by:
- monitoring and promoting compliance with this Act, designated building laws and the Building Code by building industry participants; investigating suspected contraventions, by building industry participants, of this Act, designated building laws or the Building Code;
- ensuring building employers and building contractors comply with their obligations under this Act, designated building laws and the Building Code;
- providing assistance and advice to building industry participants regarding their rights and obligations under this Act, designated building laws and the Building Code; and
- disseminating information about this Act, designated building laws and the Building Code, and about other matters affecting building industry participants, including disseminating information by facilitating ongoing discussions with building industry participants.
The information set out above has been prepared by the ABCC to address issues, questions and concerns raised by a significant number of building industry participants in Queensland about the application of Queensland’s Best Practice Principles and in particular how they intersect with the Building Code 2016.
We encourage stakeholders to contact the ABCC with any other questions or concerns they have regarding their obligations under FW Act, BCIIP Act or. We thank you for your continued engagement on this issue.
You can also find more information on our website at www.abcc.gov.au or by contacting the ABCC hotline on 1800 003 338.