What is the reform about?
The Code for the Tendering and Performance of Building Work 2016 (Building Code 2016)
commenced on 2 December 2016. The Building Code 2016 mandates the standards of conduct for any building industry entities who receive (or who tender for) Commonwealth-funded work.
Significantly the Building Code 2016 implements new restrictions on industrial action, enterprise agreement content, picketing and coercion in relation to building work. It is important to note the Building Code 2016 is currently being applied by the ABCC
Enterprise agreements of building contractors, building industry participants and their associated entities, must be compliant by 31 August 2017
, subject to some exemptions. While some building industry entities have had their agreements assessed by the ABCC, very few have commenced the process to formally amend their agreements as required under the Fair Work Act 2009
by either terminating in term agreements, or varying such agreements (through the Fair Work Commission in consultation with employees and relevant Unions).
The reforms specify that certain terms are prohibited from enterprise agreements, including terms which purport to limit productivity improvements, which discriminate between classes of employees or contractors and provisions which are inconsistent with freedom of association principles (as defined). The reforms also address right of entry processes, dispute resolution and the requirement to implement workplace relations management plans as well as drug testing, WHS policies and rehabilitation systems. These obligations exist in addition to any obligation to such obligations under State WHS legislation or the Fair Work Act
. Importantly the reforms also require building industry participants to notify the ABCC of any breach of the Building Code 2016 within 2 days. Such breaches must be remedied within 14 days.
Does the Building Code apply to you?
Whilst the definition of 'building industry participant' expands the reach of the ABCC's jurisdiction to now including entities who supply or transport goods to be used in construction and on building sites these activities are not covered by the Building Code 2016.
However apart from suppliers and transport operators, your business will be subject to the Building Code 2016 from the time it submits an expression of interest (EOI) or tender for Commonwealth funded building work on or after 2 December 2016.
Code covered entities are required to comply with the Building Code 2016 on all subsequent building work, including privately funded work.
There are numerous transitional exemptions which may apply. We would be happy to assist you to determine whether any of the exemptions apply to your business.
How can we help?
With only 10 weeks' before the Building Code 2016 comes into full effect, building industry participants must take steps now to assess their Building Code 2016 compliance or to work out whether any exemptions apply.
Colin Biggers & Paisley will be hosting a Building Code 2016 webinar on 12 and 19 July 2017. To register please email firstname.lastname@example.org
with your contact details. In addition, you might be interested in our HR Highlights series which the practice is launching next month.
With over 100 years in construction law, Colin Biggers & Paisley Lawyers are the construction law experts. We have a team of lawyers with experience in all aspects of employment, industrial relations and workplace health and safety laws in the building and construction industry. We can help assess whether you are required to comply with the Building Code 2016, and provide practical advice on any area you need to review to put your business in the best position to manage these reforms.
Contact us for a free initial discussion about the reforms and how they might affect your business.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.