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Can the ABCC tell me whether my agreement is compliant with the Building Code before it is approved by the Fair Work Commission?
Yes. The ABCC offers preliminary advice on whether a proposed enterprise agreement meets the requirements of the Building Code. You will need to submit your proposed enterprise agreement to the ABCC for assessment.
I only have a few clauses I want checked, can I submit these without having the entire agreement assessed?
Yes. You can email up to 5 clauses for individual assessment by emailing firstname.lastname@example.org. Individual clauses are assessed much faster than an enterprise agreement, so advice is able to be provided relatively quickly.
Please note: if you have more than 5 clauses, or the clauses you submit are particularly lengthy, we may require you to submit the entire enterprise agreement.
The ABCC will issue you with implementation advice where a particular clause within your enterprise agreement meets the requirements of section 11 of the Building Code, however may be applied in practice in a way which breaches the Building Code. That is, the wording of the clause itself is compliant, but, if it is implemented or carried out in a certain way, it may breach the conduct requirements in section 11(4) of the Building Code.
A clause which receives implementation advice is still compliant for the purposes of obtaining a Determination of Compliance, and does not render a clause or enterprise agreement non-compliant.
No. Your Determination of Compliance will remain valid for the life of your enterprise agreement. However, it will no longer be valid if your agreement is terminated or varied in any way by the Fair Work Commission.
My company name has changed, however the content of my enterprise agreement remains the same. Do I need another Determination of Compliance for the amended enterprise agreement?
The ABCC’s Determination of Compliance applies to an enterprise agreement rather than to a company. Where your company name changes but the enterprise agreement is not varied, it is not necessary to resubmit your agreement for assessment.
If your enterprise agreement is varied by the Fair Work Commission (even if the only variation is a company name change), then the Determination of Compliance is no longer valid.
If you are unsure whether you will need a new Determination of Compliance, you can email email@example.com.
My agreement was assessed as non-compliant. Can I provide undertakings to the ABCC to enable me to get a Determination of Compliance?
No, the ABCC is unable to accept undertakings.
I received preliminary advice for my enterprise agreement from the ABCC, and it has now been approved by the Fair Work Commission. Do I need to resubmit my agreement to the ABCC to receive a Determination of Compliance?
Yes. If you wish to receive a Determination of Compliance to demonstrate eligibility to tender for Commonwealth funded building work, you will need to resubmit your enterprise agreement, along with the Fair Work Commission decision page/s, via our online submission form.
When completing the submission form you will have the option of providing the details (either the tracking code or EA number) of any previous versions of the agreement you have submitted. This will ensure your agreement is classified as a reassessment, which will speed up the assessment process.
As the employer, I need to get my enterprise agreement approved at the Fair Work Commission. I am told that I need to provide an undertaking to the Fair Work Commission. Can you assess a proposed undertaking so that I know if it will be compliant with the Building Code?
Yes, if you decide to provide an undertaking to the Fair Work Commission, we are able to assess these just as we would any other clause in an agreement. Any proposed undertaking may be submitted for assessment by emailing firstname.lastname@example.org.
I have had an agreement assessed by the ABCC before, should I include this information on the submission form?
Yes, as this information may assist us in assessing your enterprise agreement faster. When submitting an agreement via sour online submission form, you will have the option of providing the details (such as the tracking code, Fair Work Commission Matter Number, or EA number) of any previous versions of this agreement that we have previously assessed.
I received advice that my enterprise agreement does not meet the requirements of section 11. How do I make my agreement compliant?
We cannot advise you what to do in this circumstance, as this is a business decision for you to make. If you are unsure how to proceed, you can seek independent legal advice about your options.
Yes, assessments can be expedited in certain circumstances. Where you have a compelling reason for requesting your agreement be expedited, you can email us at email@example.com with the tracking code or EA number and the reason you are making the request. An example of a compelling reason may be that the closing date for a tender is approaching, and you would not otherwise receive our advice in time.
We ask that you include as much detail as possible in this email about the reason for the request, such as the details of the project for which you are tendering. Alternatively, you can provide this information when completing the online submission form in the ‘Other Information’ box. Once we have received your request we will reply via email, either confirming or denying the request, or seeking more information in order to make a decision.
No. Where you operate under an arrangement other than an enterprise agreement made on or after 25 April 2014 (for example a modern award or common law contract), you will need to complete a Self-Declaration A form to to demonstrate your eligibility to tender for Commonwealth-funded building work.
The Self-Declaration A form does not need to be submitted to the ABCC. Instead, it should be provided to the Head Contractor or tendering authority on the project you are seeking to tender for.
Before I submit my enterprise agreement, I would like to check whether a particular clause has been assessed as compliant by the ABCC. Are there any example clauses I can look at?
Yes. There is guidance material available on our website. You can also find this material on our webpage by hovering over the ‘Resources’ tab near the top of the homepage, and clicking on ‘Agreement clauses for contractors’. The guidance material provides the wording of example clauses and the advice we have issued for each clause.
If you are looking for a particular clause, you can do a search either on that webpage in the search bar provided, or you can download the material (PDF or Excel) and search the document that way. The link to download the material can be found at the bottom of the page under ‘Download all Agreement Clauses’.
No. If you have lost your Determination of Compliance you can email firstname.lastname@example.org and request for it to be re-sent.
Please include all relevant details of the enterprise agreement the Determination of Compliance was issued for, such as an ABCC ID (EA number) or tracking code, Fair Work Commission Matter Number, or the name of your agreement.
Similarly, if you are unsure whether your agreement has previously been assessed, you can email the above email address with the name of the agreement and Fair Work Commission Matter Number (if the agreement is registered), and we will be able to determine if we have already assessed the agreement.