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
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
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.
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for Women citation acknowledging our commitment to workplace
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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