The Code for the Tendering and Performance of Building Work 2016 (Code) applies the definition of building work in the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) with two exceptions.
Building work under the Code
The definition of building work in the BCIIP Act is relatively broad. For Code purposes, it includes the following:
- Any of the following activities when relating to buildings, structures or works that, permanently or not, form part of the land:
- The same activities listed above, when relating to railways (not including rolling stock) and docks.
- The installation of fittings in any building, structure or works that form part of land, such as:
- power supply
- water supply
- fire protection
- communications systems.
- Any operation that is part of any of the work described above, including:
- site clearance, earth-moving, excavation, tunnelling or boring
- the laying of foundations
- the erection, maintenance or dismantling of scaffolding
- the on-site prefabrication of made to-order components to form part of any building, structure or works
- site restoration, landscaping or the provision of roadways and other access works.
Exclusions to the definition of building work under the Code
The Code applies the definition of building work in the BCIIP Act with two exceptions. The following types of building work are not subject to the Code:
- the off-site prefabrication of made-to-order components to form part of any building, structure or works, unless that work is performed on an auxiliary or holding site that is separate from the primary construction site or sites.
- the transportation or supply of goods to be used for any of the work mentioned above (in the BCIIP Act definition of ‘building work’), directly to building sites (including any resources platform) where that work is being or may be performed.
Contractors not performing building work
Unless a contractor is performing building work covered by the Code, the contractor would not be subject to it. For example, a consultant hired to conduct design work is not covered by the Code unless they are performing building work on site. Similarly, hiring or engaging licensed security guards to patrol and protect building sites is not considered building work.
If work performed by a contractor is ‘part of’ the building work, however, then they would be covered by the Code in respect of this work, such as for project managers and engineers. Each case is different and depends on its particular circumstances.
Building work generally doesn’t apply to residential building. The Code doesn’t apply to any work that’s part of the construction, repair, restoration or renovation of a single-dwelling house.
But where this same work is undertaken as part of a multi-dwelling development that consists of, or includes, the construction of at least five single-dwelling houses, this is building work and the Code does apply.
Generally, the manufacturing of building products does not fall under the Code unless it is the on-site prefabrication of made-to-order components to form part of any building, structure or works. Work undertaken on additional or holding sites may be considered on-site work.
Transportation and supply
The Code does not apply to the transportation or supply of goods directly to building sites, such as the delivery of metal sheeting to a site. But if the supplier or transporter also performs building work on site, such as installing the goods or materials, the installation is considered building work and the contractor is subject to the Code in respect to the installation work.
Generally, the delivery and pumping/pouring of concrete is covered by the Code. This is because this activity is considered to be part of building work as described above.
General maintenance is not included in the definition of building work under the BCIIP Act. Generally, the Code doesn’t apply to maintenance work done to maintain the original state or function of a building or prevent it from degrading.
But if the work goes beyond maintenance or repairs, that work may be considered building work and therefore subject to the Code.
The repair, alteration and restoration of buildings, structures or works that, permanently or not, form part of the land is subject to the Code.
A sole trader that is not a constitutional corporation is not subject to the Code through legislation unless they are performing building work in a territory or Commonwealth place. The BCIIP Act states:
The Building Code cannot require a person to comply with this Code in respect of particular building work (the current work) unless:
- the person is a building contractor that is a constitutional corporation; or
- the person is a building industry participant1 and the current work is to be carried out in a Territory of Commonwealth place; or
- the person is the Commonwealth or a Commonwealth authority.
But contractors still have obligations in respect of sole traders engaged on Commonwealth funded building work. Section 8(4) and 8(5) of the Code states:
8(4) A code covered entity2 must ensure that an agreement entered into in relation to building work with a subcontractor requires the subcontractor to act consistently with this code of practice in respect of building work that is the subject of the agreement.
8(5) A code covered entity must ensure that subcontractors comply with the code of practice in respect of the building work that is the subject of the agreement.
A code covered entity must ensure that any sole traders engaged on Commonwealth funded building work act consistently with the Code.
Whether the set-up of a semi-permanent structure falls within the definition of building work depends on whether it is a building or structure that forms part of land. A semi-permanent structure may also be considered building work if it’s preparing for or completing the construction of buildings, structures or works that form part of land.
Letters of compliance
Commonwealth funded projects
If you’re a funding entity or code covered entity engaging contractors to perform building work for a Commonwealth funded project on or after 2 December 2016, you can demonstrate that your enterprise agreement is compliant with section 11 of the Code with a letter of compliance.
On these projects, we require a letter of compliance if the contractor or a related entity is covered by an enterprise agreement made from 25 April 2014 and an exemption does not apply. Letters of compliance are needed only for those contractors performing building work on such projects.
Privately funded projects
On privately funded projects, enterprise agreement compliance under the Code is not a prerequisite to engaging subcontractors. As such, letters of compliance must not be requested. A code covered entity is, however, responsible for ensuring its own enterprise agreements comply with the Code, including on privately funded projects.
If you’re looking for more information on eligibility to tender, you can find it on the ABCC website. If you have been asked for a letter of compliance and you are not performing building work you can provide this factsheet as evidence to demonstrate that a letter of compliance is not required.3
Need more information?
Contact us directly for more information or advice about your individual circumstances:
- Hotline: 1800 003 338
- Email: enquiry [at] abcc.gov.au
- Website: www.abcc.gov.au
1To learn more about what defines a ‘building industry participant’ please refer to the ‘Our jurisdiction’ fact sheet, available at abcc.gov.au/resources.
2A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Code. Specific requirements in the Code apply to code covered entities. Refer to section 34 of the BCIIP Act, and Section 6 of the Code.
3Letters of compliance are only required from contractors that are constitutional corporations or are performing work in a territory or Commonwealth place.