Code Compliancy
Dispelling the Myths
Code Compliancy - Dispelling the Myths
Australian Building and Construction
Neale Smith & Kelvin Mooney
National Code Compliance
Kelvin Mooney
Neale Smith
Code Compliance Investigator
Team Leader National Code
The ABCC is willing to work with
you and your subcontractors to
achieve Code Compliance.
Further information
0434 654 962
0434 567 795
For more detailed information and advice visit
contact the ABCC hotline on
1800 003 338
Code Compliancy - Dispelling the Myths
Wilson Ryan and Gross Lawyers
Ben Keenan
Obtaining Certification
The Assessment Process
Identify the
Complete the online lodgement procedure to request an
assessment from the Department of Education, Employment
and Workplace Relations (“DEEWR”):
Retain correspondence from DEEWR as
Industrial arrangements are Code Compliant.
Which Instruments Comply with Each
Version of the Guidelines?
Applicable Industrial
2006 Guidelines
2009 Guidelines
Modern Awards
Collective Agreements
Common Law
Ensuring Common Law Agreements
are Code Compliant
“Objectionable” clauses that offend/breach the guidelines:
1. Clauses that can result in an unpredictable variation in the
Contractor’s base wage costs (e.g. Right of casual employees to
elect to become part-time or full-time after six (6) months); and
2. Clauses that mandate/promote union membership or involvement
in the workplace.
Legacy of the “WorkChoices” era in which the Howard Government
sought to limit employee entitlements and the impact of unions on the
cost of doing business.
Ensuring Common Law Agreements
are Code Compliant
All Contractors, whether an incorporated company, partnership, trust
or sole trader, now come under the Fair Work Act 2009 (The Act) and
the Modern Awards.
Vast majority of employees in construction industry will be covered by
either a Modern Award or Registered Collective/Enterprise Agreement.
If Common Law Agreement acknowledges the jurisdiction of an
applicable Modern Award or Registered Agreement and does not
include any “objectionable” clauses, should obtain Code Compliant
Individual Flexibility Agreements
Many employers who are subject to a Modern Award wish to pay
their employees a flat hourly rate inclusive of all Award entitlements
such as allowances, penalty rates, leave loading, etc.
Only two (2) classes of Agreement can lawfully perform this
1. Registered Collective/Enterprise Agreements; and
2. Individual Flexibility Agreements.
Individual Flexibility Agreements
A specific class of Common Law Agreement created by the Modern
Allows employers to alter/amend the application of any clause in a
Modern Award or Registered Agreement that deals with:
Arrangements about when work is to be performed;
Over-time rates;
Penalty rates;
Allowances; and
Leave loading.
An Individual Flexibility Agreement must identify each clause of the
applicable Modern Award/Registered Agreement being amended, how it
is being amended and why this will result in the employee being left
better off overall than if they were employed solely in accordance with the
Modern Award/Registered Agreement.
Record of Compliance
Response from DEEWR will either confirm the Industrial
Arrangements are Code Compliant or identify those clauses of the
instrument that are non-compliant.
Subject to limitations in the Act, instruments that fail to achieve
compliance can be amended to delete the non-compliant clauses
and be resubmitted for assessment.
Letter from DEEWR confirming instrument is compliant is all the
evidence you should require.
Completing the Assessment Process
Online lodgement requires:
1. Basic detail of business (i.e. the ABN, trading name, etc); and
2. Copy of any Agreement to be assessed for uploading with
Can assist contractors to complete this process for a fee of $300
plus GST.
Any questions, please contact:
1. Mrs Michelle Morton, Accredited Workplace Relations
Specialist; 07 4760 0100; or
2. Mr Ben Keenan, Workplace Relations Practitioner; 07 4760
Code Compliancy - Dispelling the Myths
Integrated HR Solutions
Mike Smith
The National Code and OHS&R
Code Compliancy - Dispelling the Myths Seminar
20 Oct 2010 Cairns
Welcome & Introduction
Michael Smith
Integrated HR Solutions
This presentation is intended to provide general information
only and does not constitute legal advice.
Whilst every effort has been taken in preparing this
presentation, no responsibility is accepted by the author for the
accuracy of the information contained therein, and all liability is
expressly disclaimed for any damage which may arise from any
person acting on any statement or information contained
Integrated HR Solutions
Session Outline
 National Code
 Implementation Guidelines
 OHS Accreditation Scheme
 OHS Management Systems
Integrated HR Solutions
The National Code and OHS&R
National Code of Practice for the Construction
Industry 1997 states:
“OHS&R obligations must be actively addressed by all
industry participants. Unequivocal commitment to OHS&R
management must be demonstrated in systems that
address responsibilities, policies, procedures and
performance standards to be met by all parties involved in a
project and are directly linked to quality OHS&R outcomes.”
Integrated HR Solutions
Implementation Guidelines
(s6.10.1, s6.10.2)
Establish a comprehensive site specific OHS&R
management plan that includes:
management commitment
employee involvement
work practices analysis
roles and responsibilities
defines procedures
hazard identification, prevention and control
induction and task training
record keeping
Integrated HR Solutions
Implementation Guidelines
(s6.10.3, 6.10.4, 6.10.5)
The OHS&R management system must be:
 fully documented
 clearly communicated
 defines roles, duties and responsibilities
improving OHS&R performance:
 prevention rather than correction
 proactive measures
 “the way we do things around here” (our safety culture)
Building & Construction OHS Accreditation Scheme:
 administered by Federal Safety Commissioner
 Building & Construction Industry Improvement Act 2005
Integrated HR Solutions
Accreditation Scheme
Australian Government Building & Construction
Accreditation Scheme:
 designed to improve industry OHS&R performance
 fosters culture of safe work (as well as on budget and on
time work)
 prerequisite of OHSMS certified to AS/NZS 4801
 only accredited head contractors can enter into contracts
for building work that is funded directly or indirectly with
the Australian Govt (subject to thresholds)
 head contractors must demonstrate effective sub
contractor OHS&R management
Integrated HR Solutions
Accreditation Scheme
The Scheme only applies to head contractors, however,
head contractors must demonstrate effective sub
contractor OHS&R management.
This includes:
 engagement and supervision of subcontractors as if they
were employees, and
 consultation and communication regarding OHS
Effective subcontractor OHS management is the degree to
which subcontractor OHS management arrangements are
demonstrated across building and construction projects.
Integrated HR Solutions
Safety Management Plan
Implement a Safety Management Plan that includes:
 a review of the work that is to be performed
 hazard identification, risk assessment & control
 how legal & other relevant OHS&R requirements are
 provision for tender / contract documentation to include
OHS requirements
Integrated HR Solutions
Responsibilities & Resources
Define roles & responsibilities for OHS&R that
 documentation of specific OHS&R tasks & duties for all
workers (use of job descriptions / duty statements)
 determine responsibility for implementing and
maintaining the Safety Management Plan
 communication of OHS&R responsibilities to all workers
Integrated HR Solutions
Site Inductions
Perform Site Inductions that include:
 instruction in site specific safety rules & emergency
 minimum induction requirements have been met prior to
work commencing
 checks are performed prior to work commencing to
ensure appropriate licensing of workers
Integrated HR Solutions
Communication & Consultation
Undertake communication & consultation activities
that includes:
 regular toolbox and pre-start meetings are held to
communicate and discuss OHS&R issues
 all consultation and communication is recorded
 site notice board or safety bulletins are used as a
regular source of OHS information
Integrated HR Solutions
Training & Competency
Provide training and education (additional to
induction) that includes:
 safety awareness
 relevant parts of the Safety Management Plan
 tasks / work activity
 specific roles and responsibilities
 assessment of employee competencies for their tasks
 regular review & update of competencies/qualifications
 maintain records of training and competencies
Integrated HR Solutions
Risk Management
Undertake risk management activities that are
documented in a procedure for hazard identification,
risk assessment and control, and workers are
trained in its use. This includes:
 procedure for JSA’s and SWMS
 SWMS are completed and signed prior to work
 SWMS are regularly reviewed and updated in
consultation with workers
Integrated HR Solutions
Injury Management & Rehabilitation
Implement proactive management of workplace
injury and injured workers’ rehabilitation and return
to work that includes:
 return to work policy
 responsibility for the program is assigned
 return to work education
 injury reporting
 employer & injured worker participation
 suitable duties programs
 appropriate case records management
Integrated HR Solutions
Inspections & Audits
Conduct OHS&R inspections & audits that include:
 a procedure is documented to regularly inspect
facilities, plant, substances etc.
 a formal inspection and audit schedule is in place
 all workplace participants are involved in the inspection
 corrective actions developed in consultation with
workers and documented in SWMS
Integrated HR Solutions
Document Control
Establish a system of document management for
OHS&R documents and records that includes:
 a regular review of documents to remove out of date
 documents contain dates and version numbers
 documents are filed and accessible
 documents are retained (minimum 7 years)
Integrated HR Solutions
In this presentation we have discussed:
the Code and Guidelines
the OHS Accreditation Scheme
the requirements of an OHSMS
“The reason an enterprise sets out to achieve
Best Practice is that it simply makes good
business sense.” Towards Best Practice Guidelines APCC 1999
Code Compliancy - Dispelling the Myths
Hansen Yuncken
Tracey Steinhardt & Ray Gibson
National Code Compliance – Dispelling the Myths
Head Contractor Experience
Tracy Steinhardt – Project Administrator
Ray Gibson – Senior Project Manager
Head Contractor Experience
 Hansen Yuncken – established in Cairns since 2007
 one of Australia's largest privately owned construction companies,
recently completing the Cairns Airport redevelopment project
 James Cook University School of Dentistry, 2006 Guidelines
 improvements to NCOP since then
> workplace agreements - reflects Fair Work Act
> improvements with regard to minor purchases
 benefits implementing guidelines
> achieves a high standard in OH&S, tendering, management
> quality systems - all working to same guidelines
> improved profit due to better management
> no lost time due to industrial action
Head Contractor Experience
Requirement of Subcontractors to Head Contractor (Paperwork)
With Tender
1. DEEWR letter (workplace arrangements comply)
2. ‘Undertaking/Declaration of Compliance’ (commitment to comply) *
3. ‘National Code Compliance Checklist’ (commitment to comply)
Post Tender
1. Statutory Declaration with each progress claim (that confirms continuing
compliance with NCOP, payment of subcontractors / suppliers /
2. signed subcontract agreement incorporating NCOP
3. Safe Work Method Statements that comply with Hansen Yuncken and
Federal Safety Commission requirements *
Head Contractor Experience
Requirement of Subcontractors NCOP (Further Action)
 site conduct – freedom of association / no unduly influence
 ensure subcontractors & suppliers comply *
 continuing compliance with guidelines
 ensure subcontractors / suppliers / employees are paid before making
progress claims (as declared in your Statutory Declaration)
Head Contractor Experience
Challenges Overcome
 achieving compliance of Work Method Statements under Federal Safety
Commission requirements:
site specific
confusion of hazards with risks
step by step outline of safe steps involved in work
concise / brief
> existing trade knowledge – not an assumption
 not only the DEEWR letter
 continuing compliance with guidelines
 ensuring subcontractors / suppliers / employees are paid before making
progress claims
 ensuring subcontractors / suppliers comply with NCOP
Head Contractor Experience
What Needs to Happen
 suppliers and subcontractors to formalise their Workplace Agreements
and submit to DEEWR for compliance
 complete and submit letter & undertaking/declaration with tenders (even
if it not requested)
 continue to comply and ensure your subcontractors/suppliers comply
Benefits of This
 ability of subcontractors / suppliers to tender on more projects
 improved management of projects
Questions ?
Code Compliancy - Dispelling the Myths
TCS Construction
Dawson Wilkie
Code Compliancy - Dispelling the Myths
Building Industry Online
Tanya Stainton
Building Industry Online
Web Portal
Connecting the
Construction Industry
BIO delivers an online
Project Management
Communication Solution
Building Industry Online
Benefits to Builders
• Easy access to both your private profile members and BIO’s open
market members who are registered code compliant subcontractors
for projects subject to the National Code of Practice.
• Simplifies contractual obligations – Builder is always in control.
• BIO membership includes unlimited projects with unlimited
document upload.
• Inbuilt notification / correspondence system makes managing
projects through tender and live construction (addendum’s, changes
and updates ) – quick and easy.
Building Industry Online
Benefits for the Subcontractor / Supplier
• Links your full profile directly to Builders working on National Code
and other Domestic, Commercial and Government projects.
• Ensures that builders have access to all the detail they need contract compliance documentation can be held on file.
• Allows you easy access to project documentation that can be
downloaded - all at once, by folder group or through individual
• Links you directly to the BIO Printers in your chosen regions.
Substantial savings on offer for BIO Member print requests.
Cairns Region – Copy Shop Business Center - A1 - $1.55.
normal price $ 2.20.
Building Industry Online
• Projects are linked
to members by
regional location.
• Code Compliance
Filters connects you
directly to members
who have registered
as having this
Building Industry Online
Building Industry Online
• Profile has detail of
DEEWR reference
• A copy of their Code
Compliance certification
• Additional Contract
Compliance information.
Building Industry Online
Builders choose who
they wish to link too.
BIO provides a system to
send invitation to Tender
Letters as well as specific
project guidelines to
chosen team members.
Building Industry Online
• Projects can be left
“open” to receive
expression of interest.
• Builder can view a
members profile
before clicking “allow”
– to give access to
Building Industry Online
BIO connects 4000 industry members across
Queensland and is expanding on National Level in

- Building Industry Online