Code for Tendering and Compliance of Building Work 2016

Posted 11 August 2017

Code for Tendering and Compliance of Building Work 2016


Members waking up this morning may breathe a sigh of relief at the news that Senator Cameron’s motion that the Code for the Tendering and Compliance of Building Work 2016 be disallowed failed yesterday. It was always unlikely that the Senate would have supported such a motion but this development finally puts the matter to rest. The 2016 Code is here to stay.

Senator Cameron justified his assault on the Code by claiming that it is detrimental to the maintenance of work health and safety standards in the Building and Construction industry. The Code contains no provisions that would prevent legitimate safety issues being raised. It also ensures that workers have the ability to appoint their own work health and safety representative without union interference. Throughout 2005-2012, the period during which the previous ABCC was operating, the incidence rate of serious injuries fell.

Senator Cameron also claimed that the Code fails to address “overseas labour flooding into these building and construction sites”. This does not live up to reality. Section 11F of the Code states that a Code covered entity must ensure that no person that is not an Australian citizen or Australian permanent resident is employed to undertake building work for the code covered entity unless that position is first advertised in Australia and the employer can demonstrate that no Australian citizen or permanent resident was suitable for the job.

Another dubious claim was made that one of the clauses in the Code stops unions negotiating with companies to increase the opportunities for young Australians getting apprenticeships in the industry. The Code actually makes clear that a funding entity must require a tenderer to “demonstrate a positive commitment to the provision of appropriate training and skill development for their workforce”, such as by supporting apprenticeships. The Code also allows clauses to be included in an enterprise agreement that encourage employment of apprentices.

In response, Senator Cash reinforced that the purpose of the Code was to address serious issues in the industry including “[b]ullying, thuggery, intimidation, standover tactics, vile threats, refusing to obey the law, fines now totalling in excess of $10 million, cartel-like behaviour between some head contractors and the CFMEU, actively and proudly locking out of the building and construction industry mum and dad hardworking sub-contractors, taxpayers paying up to 30 per cent more for public infrastructure, fewer schools, fewer roads, fewer hospitals and industrial action proudly taken to ensure delays in the building of children's hospitals”. The necessity of the Code in combatting illegal behaviour by the CFMEU took prominence in Senator Cash’s argument. Quoting from Jarrett J in the Federal Circuit Court of Australia last year, she stated “The CFMEU has an egregious record of repeated and wilful contraventions of all manner of industrial laws”.

The disallowance motion was opposed by both One Nation and Nick Xenophon. It was defeated in the Senate by 37 votes to 32. Members are advised that from 1 September 2017, they will only be able to tender for Commonwealth building work if they are either Award covered, they are covered by an enterprise agreement made prior to 25 April 2014 or they are covered by a compliant enterprise agreement made from 25 April 2014.

If any members are unsure of how the Building Code will impact their ability to tender, please contact the IR Team. 

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