The Federal Minister for Employment and Workplace Relations, Bill Shorten, has made the first Building Code under s27(1) of the Fair Work (Building Industry) Act 2012 (Cth). The Building Code 2013 (Code) converts the Implementation Guidelines for the National Code of Practice for the Construction Industry, into a legislative instrument commencing on 1 February 2013.
The Code applies to a building contractor, or building industry participant who has submitted an expression of interest, or tender for relevant building work, even if the expression of interest or tender was called for before the Code commenced. This means it applies to tenders and expressions of interest currently under consideration.
Building work is broadly defined and includes work that is directly or indirectly funded by the Commonwealth as well as building work whose funding is not described in the schedule, that is, privately funded building work.
The Code contains requirements which are additional to those contained in the Implementation Guidelines for the National Code of Practice for the Construction Industry. In particular, the Code seeks to cover the field, and provides that the Code, the Fair Work Act 2009 (Cth) (Act) and designated building laws are:
- a comprehensive statement of matters a building contractor or building industry participant is required to include or not include in an enterprise agreement
- the workplace practices that a building contractor or building industry participant is required to carry out or not carry out in relation to building work
- the arrangements that the building contractor or building industry participant is required to make, or not to make in relation to building work.
The Code also requires building contractors and building industry participants to comply with the requirements of the Act in relation to making agreements and good faith bargaining. In addition, it provides that a building contractor, or building industry participant, must not refuse to consider a proposal made by a bargaining representative on the basis that a third party has indicated that it will not procure services from a person covered by an industrial instrument that contains a provision of a particular type, or will only procure services from an individual who is covered by an industrial instrument which contains a provision of a particular type.
For example, where a union seeks to include a term in an agreement which appears to contradict state building industry guidelines, the Code prohibits a building contractor from refusing to consider that term on the basis that the relevant state government refuses to allow the contractor or industry participant to tender for that state's government work.
It appears that the intention of the Federal Government is to preclude state government guidelines from imposing additional requirements on matters that a contractor or building industry participant is, or is not, required to include in an enterprise agreement or workplace practice.
You would be aware of difficulties building contractors have experienced in recent times with the requirement by the Victorian Government for strict compliance with its Code of Practice for the building and construction industry. Recently New South Wales has also indicated that it will issue similar guidelines applicable to the New South Wales building and construction industry. Compliance with these state building industry guidelines may result in building contractors and building industry participants acting in breach of the Code. It is therefore necessary to reconsider how the state building industry guidelines and Code work together.
As the Code comes into force on 1 February 2013, building contractors and building industry participants who have tendered or submitted an expression of interest should continue to take steps to ensure compliance with the Code in their industrial relations and workplace practices.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
