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Building Code 2013 - Standards for Commonwealth-funded construction projects

Newsletter 16 May 2013

The Building Code 2013

The Commonwealth Building Code 2013 [1] came into effect on 1 February 2013 and establishes a set of legally-enforceable industry standards in relation to workplace relations that contractors tendering for and working on Commonwealth projects must comply with.

Application of the Code

A building contractor or building industry participant becomes subject to the Code (Code Entities) if they submit an expression of interest or tender [2] for building work involving a very broad range of Commonwealth-related works, whether:

  1. the works are directly or indirectly funded by the Commonwealth; or
  2. the Commonwealth has a direct or indirect practical involvement.

Code Entities must also require that all subcontractors comply with the Code. All contracts with subcontractors must specifically state that the Building Code must be complied with.

The Building Code also applies to activities that do not occur on-site but that are related to on-site activities.

What does the Building Code cover?

In conjunction with the Fair Work (Building Industry) Act 2012, the Building Code contains a comprehensive statement of matters that Code Entities are required to comply with.

Some of the key areas addressed by the Building Code, with an example of a requirement under each, are;

  • compliance with laws, directions and decisions – all decisions, directions or orders made or given by a court or tribunal that applies to the Code Entity must be complied with;
  • dispute settlement – a genuine dispute settlement procedure must be included in each enterprise agreement;
  • workplace arrangements – a Code Entity must not attempt to unduly influence a supplier or sub-contractor to have particular workplace arrangements in place;
  • freedom of association – a Code Entity must adopt policies that are consistent with applicable industrial law and ensure that persons are free to become, or not become, members of industrial associations;
  • right of entry – a Code Entity must comply with all laws that give a permit holder of a building association a right to enter premises where work is performed;
  • workplace reform - a Code Entity that is bargaining for an enterprise agreement must genuinely consider a proposal made by a bargaining representative;
  • industrial impacts – any actual or threatened industrial action must be reported to the Director of the Fair Work Building Industry Inspectorate as soon as practicable after the action or threat occurs;
  • work health and safety – a Code Entity must have a work health and safety management system that is fully documented and clearly communicated to people in the Code Entity’s business; and
  • security of payment – all payments made by a Code Entity must be made in a timely manner and all disputes about payment must be resolved in a timely and cooperative way.

Conclusion

The Building Code 2013 has legal force. As such, Applicable Entities tendering for, or participating in, Commonwealth-related projects must ensure that they are fully compliant with the requirements of the Code. Significantly, this includes ensuring that any subcontractors are also compliant. This broad compliance must be demonstrated at the tendering, contracting and construction stages and must be reflected in related off-site practices.

[1] The Building Code replaces previous versions of the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry with a single set of requirements.
[2] The Building Code also applies to projects where the expression of interest or tender for the building work was called for before the Building Code commenced.


Brian Ambler, Partner
Sydney

Newsletter 16 May 2013
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