BUILDING CODE OF PRACTICE 2016: WHAT YOU NEED TO KNOW

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1 BUILDING CODE OF PRACTICE : WHAT YOU NEED TO KNOW Fact Sheet 3 Your New Obligations Under Code While generally consistent with Code 2013, Code sets out some new, more onerous obligations. 1 This fact sheet highlights the obligations that are common to both Codes, and specifies the additional obligations that are set out in Code. Fact sheet 1 explains the complex transitional arrangements for the EBA requirements in Code. 1 The focus here is on the obligations of code covered entities, not funding entities.

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3 OBLIGATIONS COMMON TO CODE 2013 AND CODE ADDITIONAL OBLIGATIONS UNDER CODE Code application Applies to all related entities. N/A Definition of building work Refer to broad definition: s 5 of the Fair Work (Building Industry) Act 2012 (Cth). Expands s 5 definition to cover transport and supply of goods to be used in prescribed types of construction activities to building sites where that work is being, or may be performed (including any resources platform). Subcontractors Must ensure compliance of subcontractors in relation to all Commonwealth-funded building work. There is no need to ensure compliance of subcontractors in respect of privately funded work. N/A Compliance with law, decision, directions and orders Must comply with all designated building laws, Competition and Consumer Act 2010 (Cth) (Consumer Act) and court orders. Must comply with: work health and safety laws (including strict compliance with procedures for election of HSRs and right of entry); migration laws; and compliance notices issued by the ABCC. Unregistered written and other agreements Ban on bargaining for or making agreements regarding employment conditions that will not be approved under law (for example, not forming an enterprise agreement under the FW Act). Common law agreements are permissible. Directed at unregistered agreements and side deals that contain prohibited terms for enterprise agreements under s 11.

4 OBLIGATIONS COMMON TO CODE 2013 AND CODE ADDITIONAL OBLIGATIONS UNDER CODE Content of enterprise agreements No equivalent provision in Code Prohibitions on terms in enterprise agreements that: * limit managerial capacity to improve productivity; discriminate against certain persons, classes of employees, or subcontractors; or are inconsistent with freedom of association principles as defined by the Code. The above obligations in s 11 extend to conduct, procedures or practices which would have the same effect if they were contained in enterprise agreements. No weasel words are allowed in agreements. Sham contracting Ban on sham contracting as defined in legislation. Ban reworded, but the same in substance. Collusive practices General requirement to comply with Consumer Act. Must not engage in collusive tendering practices, examples of which are provided. Security of payment General requirement to comply with all laws regarding security of payments and, so far as practicable, resolve such disputes in a reasonable, timely and cooperative way. Ban on illegal or fraudulent phoenix activities, anticoercion and anti-undue influence provisions. Disputed payments No equivalent provision in Code Disputed payments to subcontractors must include referral process to independent adjudicator. Must report any disputed or delayed progress payment to the ABCC and relevant funding entity. * These requirements are subject to complex transitional provisions - see Fact Sheet 1

5 OBLIGATIONS COMMON TO CODE 2013 AND CODE ADDITIONAL OBLIGATIONS UNDER CODE Engagement of non-citizens and non-residents Must comply with migration laws, i.e. person engaged must be lawfully entitled to work in Australia. Must not engage a non-citizen or non-resident without first showing that the position was appropriately advertised and no Australian citizen or permanent resident was suitable for the job. Over-award payments/above-entitlements payments and related matters Ban on pressuring another entity to make payments over and above the entity s legal obligations, such as those set out in the applicable award or enterprise agreement. Ban on pressuring another entity to contribute to a particular superannuation or redundancy fund such as CBUS or Incolink (unless they are legally obliged to do so). Must not pressure an entity to support a particular product, service or arrangement, such as particular income protection or other insurance products or training services provided by particular providers. Freedom of association Must adopt and implement policies to protect freedom of association as defined by the Code. Expanded scope of conduct expressly deemed to breach freedom of association principles, such as: shop stewards conducting site inductions; and union logos, mottos or indicia being applied to clothing, property or equipment. Right of entry Must comply with right of entry laws generally, but may invite union officials on site. Union officials only permitted to enter in strict accordance with right of entry laws, meaning there is no general capacity to invite a union official on site. However, if a HSR requests the assistance of a union official under occupational health and safety laws, seek advice. Dispute settlement procedures in enterprise agreements Must comply with the FW Act. Enterprise agreements must allow for independent third parties to settle disputes by imposing binding outcome. Must contain express provision that any decision of any arbiter must be consistent with Code. * * Also subject to complex transitional provisions - see Fact Sheet 1

6 OBLIGATIONS COMMON TO CODE 2013 AND CODE ADDITIONAL OBLIGATIONS UNDER CODE Industrial impacts Must report actual or threatened industrial action to ABCC as soon as practicable. Express obligation to report actual or threatened unprotected industrial action to ABCC within 24 hours. Positive obligation to take reasonable steps to stop unprotected action. Obligation to report any suspected secondary boycott activity as soon as practicable, but within 24 hours. Alcohol and other drugs A policy that provides for testing of alcohol and other prescribed drugs is required for certain Commonwealth-funded projects. Must have a documented health safety and rehabilitation system. A policy is required for use of alcohol and other prescribed drugs on all projects. A regime for testing that meets all the prescriptive requirements of Schedule 4 is only required for those projects that require a WRMP. Notification of breach Must notify the ABCC of a breach or suspected breach within 21 days. Must notify the ABCC of a breach or suspected breach as soon as practicable, but within 2 days. Must notify the ABCC of remedial action within 14 days. Work health safety and rehabilitation system Must have a fully documented and clearly communicated WHS&R management system. No equivalent provision but must refer to requirements for WRMPs. Workplace Relations Management Plans (WRMPs) N/A WRMPs are required for Commonwealth projects of a prescribed value. Covers OHS and other matters. WRMPs must be approved by the ABCC on a case by case basis.

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