The Fair Work Principles have set two requirements for all
procurements above the monetary thresholds in the Commonwealth
Procurement Rules (CPRs):
compliance with the Fair Work Act (the Act) must be a
condition for participation, and
tenderers must include a declaration of compliance as part of
With the Principles being revoked from 1 July 2014, it is time
for agencies to ensure they understand how current and future
tender processes will be affected.
With these requirements being removed, agencies will need to
make adjustments to all affected procurement templates, and
consider how to deal with procurement activities that cross over
the revocation date. Agencies should also contact the Department of
Employment for advice on transition arrangements.
Tenders set to close before 1 July 2014
Procurements in this category, which are subject to the
Principles, should have included compliance with the Act as a
condition for participation and set completion and submission of a
declaration of compliance with the Act as a minimum content and
To ensure compliance with the CPRs, any condition for
participation or minimum content and format requirements relating
to Fair Work that have been included in a procurement process set
to close before 1 July 2014 should typically be enforced.
Tenders commenced before 1 July 2014 closing on or after 1 July
There will be a number of current tender processes with closing
dates on or after 1 July 2014. Where the requirements of the Fair
Work Principles have been included in the tender documentation, we
recommend seeking probity advice before making a decision about
whether to exclude a supplier on the basis of failing to meet such
a condition or requirement, to ensure the decision is appropriate
in all the circumstances.
If there is sufficient time, Commonwealth agencies with open
tender processes may wish to consider issuing an addendum removing
requirements arising solely from the Fair Work Principles such as
providing a declaration of compliance with the Act, to reduce the
administrative burden on both tenderers and the agency's
Tenders commencing after 1 July 2014
Although it will no longer be a requirement to include
compliance with the Act as a condition for participation, agencies
will be free to include such a condition if they wish (noting that
the Act continues to apply to all suppliers regardless of whether
it is specified as a condition for participation).
However, a Fair Work declaration will no longer be required and
should be removed from all procurement templates. Draft contracts
may also be affected by the revocation of the Principles. Most
Commonwealth template contracts and Deeds of Standing Offer
currently include the model clauses set out in the Fair Work
Principles User Guide regarding compliance with the Principles, and
these clauses may now be deleted for contracts signed on or after 1
There is no need to amend most existing contracts, but agencies
should note that any provision requiring compliance with the Fair
Work Principles will no longer have effect.
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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