Building work under the code

The Building Code 2016 (the 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:

  • Any of the following activities, as they relate to buildings, structures or works that form, or are to form, part of land (including land beneath water), whether or not permanent, being:

    • construction;

    • alteration;

    • extension;

    • restoration;

    • repair;

    • demolition; or

    • dismantling.

  • The same activities listed above, in so far as they relate to railways (not including rolling stock) and docks.

  • The installation of fittings in any building, structure or works forming, or to form, part of land, such as:

    • heating;

    • lighting;

    • air-conditioning;

    • ventilation;

    • power supply;

    • drainage;

    • sanitation;

    • water supply;

    • fire protection;

    • security; and

    • communications systems.

  • Any operation that is part of, or is preparatory to, or is for rendering complete, any of the work described above, including:

    • site clearance, earth-moving, excavation, tunnelling or boring; or

    • the laying of foundations; or

    • the erection, maintenance or dismantling of scaffolding; or

    • the on-site prefabrication of made to-order components to form part of any building, structure or works; or

    • 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. Subsection 3(4) of the Code expressly states that 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; and

  • 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.

Disclaimer

The following information is general advice only and designed to help stakeholders gain an understanding of what constitutes building work for Code purposes. The views, advice or guidance provided are for information purposes only and do not constitute legal or commercial advice. Stakeholders should seek further advice on their individual circumstances.

Contractors not performing building work

Unless a contractor is performing building work as defined and that work is covered by the Code, the contractor would not be subject to the Code. For example, consultants engaged to conduct design work are not covered by the Code unless they are performing building work on site. Similarly, the provision of licensed security guards to patrol and protect building sites is not considered building work. However, if work performed by a contractor is ‘part of’ the building work then they would generally be covered by the Code in respect of this work, for e.g. project managers and engineers. However, each case depends on its particular circumstances.

Residential

Building work generally does not apply to residential building. The Code does not apply to any work that is part of a project for the construction, repair or restoration of a single-dwelling house; or the construction, repair or restoration of any building, structure or work associated with a single-dwelling house; or the alteration or extension of a single-dwelling house (so long as it remains a single-dwelling house after the alteration or extension).

However, where this same work is undertaken as part of a multi-dwelling development that consists of, or includes, the construction of at least 5 single-dwelling houses, this is building work and the Code does apply.

Manufacturing

Generally, the manufacturing of building products does not fall within the scope of 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 auxiliary 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 e.g. the delivery of metal sheeting to a site. However, 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 of the installation work.

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 (e.g. ‘the laying of foundation’ which is included in the BCIIP Act definition of ‘building work’).

Maintenance

General maintenance is not included in the definition of building work under the BCIIP Act. Accordingly, the Code generally does not apply to maintenance work. For example, carrying out maintenance work on an existing structure such as a bridge or road to maintain their original state and function, or to prevent future degeneration, is generally not considered building work for the purpose of the Code.

However, if the work undertaken goes beyond maintenance to, for example, repairing something that is damaged, broken or malfunctioning, that work may be considered building work and therefore subject to the Code, e.g. repairs to cladding and other structural repairs.

The repair, alteration and restoration of buildings, structures or works that form, or are to form, part of land (including land beneath water), whether permanently or temporarily, is building work covered by the Code.

Sole Traders

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. Section 34(3) of the BCIIP Act states:

(3) The Building Code cannot require a person to comply with this Code in respect of particular building work (the current work) unless:

  1. the person is a building contractor that is a constitutional corporation; or

  2. the person is a building industry participant and the current work is to be carried out in a Territory of Commonwealth place; or

  3. the person is the Commonwealth or a Commonwealth authority.

However, 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 entity 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 subject to 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 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.

Semi-permanent structures

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, or is to form, part of land. A semi-permanent structure may also constitute building work if it is preparatory to, or is for rendering complete, the construction of buildings, structures or works that form, or are to form, part of land, for e.g. the erection, maintenance or dismantling of scaffolding, or site restoration, landscaping and the provision of roadways and other access works.

Letters of Compliance

Commonwealth funded projects

On Commonwealth funded projects, letters of compliance are required when funding entities and code covered entities are engaging contractors* to perform building work on or after 2 December 2016. On these projects, a letter of compliance is needed if the contractor or a related entity is covered by an enterprise agreement made from 25 April 2014 and a transitional 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. Accordingly, letters of compliance must not be requested on privately funded projects. A code-covered entity is, however, responsible for ensuring its own enterprise agreements comply with the Code, including on privately funded projects. More information on eligibility to tender is available 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.

* Letters of compliance are only required from contractors that are constitutional corporations or are performing work in a Territory or Commonwealth place.

 

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