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On 7 October 2011, the Victorian Government released draft
Implementation Guidelines to the Victorian Code of
Practice for the Building and Construction Industry (Victorian
Guidelines) for public comment.
The purpose of the Victorian Construction Guidelines is to vary
the application of the National Code of Practice for the
Construction Industry (National Construction Code) as it
applies to construction projects in Victoria that are fully or
partially funded by the Victorian government.
The Victorian Guidelines contain a number of important
differences from the Australian Government Implementation
Guidelines for the National Code of Practice for the Construction
Industry (National Guidelines):
the Victorian Guidelines will apply to all onsite building and
construction work undertaken in Victoria, and will be binding on
contractors and their related entities in relation to future
privately-funded work;
tenderers for contracts that are funded by the Victorian
government must submit workplace relations and health and safety
management plans;
the Victorian Guidelines contain express prohibitions on:
discrimination against genuine independent contractors;
sham contracting; or
arrangements designed to avoid strike pay, right of entry and
freedom of association obligations;
coercion or pressure to make over-award payments;
the Victorian Guidelines require contractors to take all
reasonable steps to bring any unlawful industrial action to an end,
including by pursuing legal action where possible;
the Victorian Guidelines require identification of practices
that are inconsistent with the freedom of association and require
contractors to adopt policies to promote the right to join or not
to join a union;
the Victorian Guidelines require establishment of rigorous
processes for Government monitoring and enforcement of the
Guidelines, and outlines various sanctions for non-compliance;
and
the criteria for the establishment of project agreements on
sites are expressly set out in the Victorian Guidelines.
A dedicated Victorian-based Monitoring and Compliance Group will
be put in place to undertake monitoring and compliance activities
for Victorian construction operations covered by the Victorian
Guidelines, and will provide compliance feedback to contractors and
report breaches of the Guidelines. The Victorian Monitoring
and Compliance Group will also respond to written reports of
alleged breaches of the Victorian Guidelines.
Sanctions for breach of the Guidelines include:
Formal warnings;
Referral of a compliant to the relevant industry organisation
for assessment;
Reduction in tendering opportunities;
Reporting of the breach to a statutory body; and
Publicising the breach and identification of the breaching
party.
Written submissions in respect of the draft Victorian
Guidelines must be submitted to the Department of Finance and
Treasury until 28 October 2011.
What should construction companies be doing now?
Construction firms seeking to tender for Victorian State
projects should consider how the Victorian Guidelines will affect
their employment policies and practices, and will need to carefully
ensure compliance with the Victorian Guidelines to avoid the
imposition of sanctions which may affect their tender bid.
Tenderers will also need to ensure they prepare the newly
implemented management plans prior to tendering.
Construction firms should also be aware that the Victorian
Guidelines will apply to future privately-funded projects, whether
those projects are undertaken directly or by a related entity, and
failure to comply with the Victorian Guidelines on those
privately-funded ventures could expose the firm to adverse
publicity and potential legal or industry action.
Your Norton Rose Australia employment team is able to assist
with developing responses to the Draft Victorian Guidelines.
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.
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