The Federal Government has released new implementation
guidelines (Guidelines) for the National Code of Practice for the
Construction Industry (Code) affecting all projects subject of an
expression of interest or tender on or after 1 May 2012. Major
changes include the removal of detailed prescriptions against
project agreements whilst permitting unregistered agreements in
specific areas. The other areas of change appear simply to align
the Code with the Fair Work Act. The Guidelines assert
that the Code will prevail over any state/territory guidelines.
The following is a summary of the major changes to the Code
arising from the release of the new Guidelines:
Removal of strict conditions
The previous Guidelines discouraged and contained detailed
prescriptions against "project agreements" whereas the
new Guidelines require only that project agreements "must be
made and approved under the Fair Work Act or in accordance
with State industrial law". Project agreements are permitted
regardless of the value of the project. However, project agreements
will still be difficult to obtain due to the agreement-making
processes under the Fair Work Act.
The Guidelines retains the general ban on unregistered
agreements, however it will permit unregistered agreements to be
made on matters such as reducing carbon emissions, workplace
bullying, construction site waste, promoting the employment of
women and indigenous people and "initiatives to encourage
fair, cooperative and productive workplace relations across the
industry". The final area being quite broad and reflective of
the somewhat aspirational language used in the Fair Work
Act. This may afford greater flexibility for employers at the
Genuine dispute resolution clause
The Guidelines require employers under a Fair Work Enterprise
Agreement made after 1 May 2012 to have a "genuine"
dispute resolution provision in their Enterprise Agreement and be a
mechanism for disputes to be resolved through binding decisions
made by an independent third party.
The new Guidelines aim to address sham-contracting and have
stated that employers "found to have engaged in sham
contracting will be considered to have committed a fundamental
breach of these Guidelines".
The Code and Code compliance has been an issue for employers in
the construction industry in the past. Only time will tell whether
the amendments to the Code will result in a move towards fair,
co-operative and productive construction sites.
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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