Frequently Asked Questions for Australian Government
Contractors and Tenderers
July 2012
These frequently asked questions should be read in conjunction with the Fair Work Principles, the Fair
Work Principles User Guide and the Commonwealth Cleaning Services Guidelines.
Queries about the Fair Work Principles, the User Guide and the Commonwealth Cleaning Services
Guidelines can be directed to the Fair Work Principles team on 13 33 97 or by emailing
fairworkprinciples@deewr.gov.au
1.
GENERAL ............................................................................................................................. 2
2.
APPLICATION OF THE FAIR WORK PRINCIPLES ................................................................... 3
3.
COMPLYING WITH THE FAIR WORK ACT AND/OR OTHER RELEVANT LAWS ..................... 4
4.
DISPUTE RESOLUTION PROCEDURES.................................................................................. 5
5.
FAIR, COOPERATIVE AND PRODUCTIVE WORKPLACES ...................................................... 6
6.
AUSTRALIAN GOVERNMENT CLEANING SERVICES CONTRACTS ........................................ 6
7.
TEXTILE, CLOTHING AND FOOTWEAR MANUFACTURERS .................................................. 9
8.
MORE INFORMATION ABOUT THE FAIR WORK PRINCIPLES .............................................. 9
1.
GENERAL
1.1
What are the Fair Work Principles?
The Fair Work Act 2009 (Fair Work Act) established the new framework for workplace
relations in Australia. To assist with compliance with the Fair Work Act, the Australian
Government developed a set of Fair Work Principles for employees of the Commonwealth and
employees of Commonwealth contractors.
The Australian Government is committed to ensuring that Government procurement decisions
promote fair, cooperative and productive workplaces, while still delivering value for money.
The Fair Work Principles support the creation of quality jobs and decent work by ensuring that
Australian Government procurement decisions are consistent with the Fair Work Act.
One of the main principles is that employees of contractors tendering for Australian
Government work should be treated fairly and their rights to freedom of association and
representation in the workplace be respected.
Australian Government agencies are responsible for ensuring that suppliers and their
sub-contractors comply with the relevant provisions of the Fair Work Principles.
The Fair Work Principles were approved by Cabinet in November 2009. The Principles apply to
procurements at or above the relevant procurement threshold specified in the
Commonwealth Procurement Rules.
The Fair Work Principles are available at http://www.employment.gov.au/fair-work-principles.
1.2
What is the Fair Work Principles User Guide?
The Fair Work Principles User Guide (the User Guide) was developed in consultation with
relevant stakeholders, including employer organisations, employee organisations and the
Procurement Consultation Committee to:
i.
ii.
iii.
assist relevant Australian Government agencies interpret and implement the Fair
Work Principles;
assist suppliers and tenderers to understand the Government’s expectations and
requirements and therefore comply with the Fair Work Principles; and
demonstrate to the Australian community that the Government is meeting its
responsibility to provide a model of fairness in the workplace for those performing
work for the Commonwealth, whether as an employee of the Commonwealth, or as
employees of a contractor to the Commonwealth.
The User Guide is available at http://www.employment.gov.au/fair-work-principles.
Page 2 of 9
July 2012
2.
APPLICATION OF THE FAIR WORK PRINCIPLES
2.1
How do the Fair Work Principles affect my company?
When tendering for a contract with a relevant Australian Government agency, you will be
required to provide information about how your company complies with the Fair Work
Principles.
Specifically, suppliers tendering for Australian Government contracts are required to:




provide information on how they comply with the Fair Work Act and materially relevant
laws;
provide undertakings that they have not been subject to any adverse judgments for a
breach of workplace laws during the past two years;
provide information about how they promote fair, cooperative and productive workplace
relations; and
provide a minimum genuine dispute resolution mechanism as outlined in the User Guide.
Australian Government Cleaning Services Contract tenders
In addition to the above requirements, Australian Government agencies must also require
suppliers tendering for Australian Government cleaning contracts to provide certain
undertakings about their workplace practices, and outline how they will comply with the
mandatory practices for Australian Government Cleaning Services Contracts (AGCSC).
Further details about AGCSC tender requirements can be found at Section 6 of these FAQs.
Textile, Clothing and Footwear tenders
In addition to the above general Fair Work Principles requirements, clothing and footwear
manufacturers who tender to provide goods to Australian Government agencies need to be
accredited or seeking accreditation with the Homeworkers’ Code of Practice (HWCP), which is
administered by Ethical Clothing Australia.
Further details about Australian Government textile, clothing and footwear tender
requirements can be found at Section 7 of these FAQs.
Note: Suppliers with questions about the application of the Fair Work Principles to a tender
they are responding to should contact the Australian Government agency contact person for
the tender.
2.2
How do I know if the Fair Work Principles apply to a tender my company is completing?
If the Fair Work Principles apply to a Request for Tender (RFT), the RFT documentation will
include the following statement:
Tenderers should note that the Australian Government Fair Work Principles apply to this
procurement. More information on the Fair Work Principles and their associated User Guide
can be found at http://www.employment.gov.au/fair-work-principles.
Suppliers who are unsure whether the Fair Work Principles apply to the tender they are
responding to should contact the Australian Government agency contact person for the
tender.
Page 3 of 9
July 2012
2.3
Do the Fair Work Principles apply to all Australian Government RFTs for goods and services?
Whether the Fair Work Principles apply to an Australian Government RFT will depend on the
estimated value of the property or service being procured.
Where the Fair Work Principles do apply to the RFT, this will be outlined in the RFT
documentation.
Suppliers who are unsure whether the Fair Work Principles apply to the tender they are
responding to should contact the Australian Government agency contact person for the
tender.
2.4
I am an overseas supplier. Am I required to comply with the Fair Work Principles?
The Fair Work Principles do not require overseas-based suppliers to comply with Australian
laws that would otherwise not apply to them.
However, under the Fair Work Principles Australian Government agencies are required to
contractually require that overseas-based suppliers comply with all applicable workplace
relations, occupational health and safety, and workers’ compensation laws in the jurisdiction
in which they are based.
3.
COMPLYING WITH THE FAIR WORK ACT AND/OR OTHER RELEVANT LAWS
3.1
Is it possible to obtain an exemption from including the details of any adverse Court or
Tribunal decisions, etc and details of orders from any Court or Tribunal etc as part of the
Minimum Content and Format requirements?
Section 5.1.5 of the Fair Work Principles provides that:
Commonwealth Entities must include as a Minimum Content and Format requirement, in
any procurements at or above the relevant procurement threshold specified in the
Commonwealth Procurement Rules, that Tenderers provide in their Submission:
i.
ii.
details of any adverse Court or Tribunal (see definition of Court or Tribunal in section
9) decision for a breach of workplace relations law, occupational health and safety
law, or workers’ compensation law in the two years preceding the date of the
RFT/RFEOI; and
details of orders from any Court or Tribunal decisions the Tenderer has not fully
complied with relating to a breach of workplace relations law, occupational health
and safety law, or workers’ compensation law.
The Department of Employment is not aware of any circumstances where it would be
appropriate for the requirements of 5.1.5 to not be included in a request for a tender being
undertaken by a Commonwealth agency, and to date has not approved any requests for
exemption of this provision.
3.2
What are the requirements for tenderers under Section 5.1 of the Fair Work Principles User
Guide - Complying with the Fair Work Act and/or other relevant laws?
Suppliers of goods and services to the Australian Government are required to comply with all
relevant workplace laws. This includes the Fair Work Act or any applicable workplace relations
laws (including obligations under awards, industrial instruments and employee
Page 4 of 9
July 2012
superannuation entitlements, etc), occupational health and safety laws, and workers’
compensation laws.
Suppliers operating in a jurisdiction other than the Federal jurisdiction and/or in a jurisdiction
that is not covered by the Fair Work Act must comply with all applicable legal obligations,
including the relevant workplace relations laws and all relevant occupational health and
safety, and workers’ compensation laws of the jurisdiction they are in.
Specifically, Australian Government agencies must not enter into contracts with tenderers
who have had an adverse Court or Tribunal decision for a breach of workplace relations law,
occupational health and safety law, or workers’ compensation law AND the tenderer has not
fully complied, or is not fully complying, with the order (subject to the exemptions below).
Note:




3.3
A reference to decisions or orders that the tenderer has not fully complied with includes
any penalty or order of a Court or Tribunal with which the tenderer has not complied or is
not complying with.
It does not extend to infringement notices issued by workplace inspectors or a provisional
improvement notice issued by an occupational health and safety inspector.
A decision or order that the tenderer has not fully complied with does not include those
instances where a penalty or order has been imposed but the period for
payment/compliance has not expired.
Commonwealth Entities are able to contract with suppliers that have had adverse Court or
Tribunal decisions which have been rectified or are currently under appeal. Where the
appeal period has not expired, the tenderer is to be regarded as if they have lodged an
appeal.
What happens if, during the life of a contract with an Australian Government agency, I have
an adverse court or tribunal decision made against me for a breach of workplace relations
law, occupational health and safety laws, or workers’ compensation?
Where a contracted supplier is found to any adverse court or tribunal decision for a breach of
workplace relations law, occupational health and safety laws, or workers’ compensation laws
made against it during the term of the Contract they must advise the agency of any remedial
action it has taken, or proposes to take, as a result of the decision.
Where the contracted supplier does not take or propose to take remedial action as a result of
the decision, Australian Government agencies are entitled to terminate the Contract.
4.
DISPUTE RESOLUTION PROCEDURES
4.1
What are the dispute resolution procedure requirements under the Fair Work Principles?
The Fair Work Principles require contractors to the Australian Government to provide, as a
minimum genuine dispute resolution mechanism, such as those set out in Schedule 6.1 of the
Fair Work Regulations 2009.
Section 5.2.3 of the Fair Work Principles User Guide (the User Guide) outlines that this
requirement applies to any enterprise agreement made under the Fair Work Act 2009 (Fair
Work Act) on or after 1 January 2010.
For a procedure to be considered a “genuine dispute resolution procedure” it must include as
a minimum:


the ability for employees to appoint a representative in relation to the dispute;
in the first instance, procedures to resolve the dispute at the workplace level;
Page 5 of 9
July 2012


if a dispute is not resolved at the workplace level, the capacity for a party to the dispute to
refer the matter to an independent third party for mediation or conciliation; and
if the dispute is still not resolved, the capacity for an independent third party to settle the
dispute via a decision binding on the parties.
(refer Section 5.2.5 of the User Guide)
4.2
Does the ‘independent third party’ in the dispute resolution procedure outlined in the User
Guide need to be Fair Work Australia?
The genuine dispute resolution procedure outlined in the Fair Work Principles User Guide
focuses on resolving disputes at the workplace level in the first instance, but also provides the
capacity for an independent third party (not necessarily Fair Work Australia) to conciliate and
settle disputes via a decision binding on the parties if required.
5.
FAIR, COOPERATIVE AND PRODUCTIVE WORKPLACES
5.1
How do I confirm that I promote fair, cooperative and productive workplace relations?
You will need to confirm in your submission that you:


have consultation arrangements which encourage cooperation and engagement of
employees and management; and
understand and respect their employees’ rights in relation to freedom of association and
the right to representation at work, including that you allow your employees to be able to
make a free and informed choice about whether to join a union and be represented at
work.
Note: this applies to overseas-based suppliers only insofar as relevant domestic laws apply or
exist.
6.
AUSTRALIAN GOVERNMENT CLEANING SERVICES CONTRACTS
6.1
What are the requirements for cleaning companies tendering for Australian Government
Cleaning Services Contracts?
In addition to the general requirements of the Fair Work Principles and the Fair Work
Principles User Guide, Australian Government agencies must also require suppliers tendering
for Australian Government cleaning contracts to provide certain undertakings about their
workplace practices, and outline how they will comply with the mandatory practices for
Australian Government Cleaning Services Contracts (AGCSC).
From 1 January 2012, the Commonwealth Cleaning Services Guidelines and the revised
requirements of the Fair Work Principles User Guide apply to Australian Government Cleaning
Services Contracts (AGCSC).
The User Guide has been revised to reflect the introduction of the Commonwealth Cleaning
Services Guidelines, and includes Model tender and contract documentation (model clauses)
for the Fair Work Principles and the Commonwealth Cleaning Services Guidelines.
6.2
What are the Commonwealth Cleaning Services Guidelines?
The Commonwealth Cleaning Services Guidelines are a legislative instrument made under
regulation 7B of the Financial Management and Accountability Regulations 1997. The
Page 6 of 9
July 2012
Guidelines establish a framework within which Australian Government agencies can accept a
tender and enter into a AGCSC (see further information at section 3 of the Commonwealth
Cleaning Services Guidelines).
In summary, the Commonwealth Cleaning Services Guidelines require Australian Government
agencies to:
 decline to accept any tender where the tenderer does not undertake to comply with the
requirements outlined in the Commonwealth Cleaning Services Guidelines, including to pay
their employees no less than the prescribed wage rates and to comply with the mandatory
practices for AGCSC;
 decline to enter into a contract with a tenderer if they are not satisfied at the time of
tender for an AGCSC that the tenderer has demonstrated that they can and will comply
with the mandatory practices outlined in the Commonwealth Cleaning Services Guidelines;
 include contractual obligations, as outlined in the Commonwealth Cleaning Services
Guidelines, in the AGCSC; and
 ensure that the successful tenderer complies with these throughout the life of the AGCSC.
6.3
What are the prescribed minimum hourly rates of pay for AGCSC?
If you wish to tender for a AGCSC, you must agree to pay your employees for the work
performed under the AGCSC no less than the applicable minimum hourly base rates of pay
(not including any allowances that may be payable to the employee) prescribed in the
Commonwealth Cleaning Services Guidelines for the State or Territory in which the work is to
be performed.
You must also agree to require any subcontractor engaged under the AGCSC to deliver
cleaning services to pay the employees of the subcontractor for work performed under the
AGCSC no less than the applicable prescribed minimum hourly base rates of pay (not including
any allowances that may be payable to the employee) for the state or territory in which the
work is to be performed.
The Commonwealth Cleaning Services Guidelines includes prescribed minimum hourly rates of
pay up to and including 30 June 2017 for each State or Territory in which the work is to be
performed.
6.4
What are the mandatory practices for AGCSC?
The Commonwealth Cleaning Services Guidelines include a number of mandatory practices for
AGCSC. The mandatory practices, which are outlined in Schedule C of the Commonwealth
Cleaning Services Guidelines, are complementary to, and build on, the requirements of the
Fair Work Principles.
Broadly, the mandatory practices outline requirements for AGCSCs in relation to the following
workplace practices:




Appropriate training, supervision, equipment and materials for staff to perform their job
safely and efficiently.
Written duty schedules at each site listing specific tasks to be completed.
Fair and reasonable workloads for all employees and adequate staff to achieve required
performance levels.
Freedom of association and representation of employees.
Page 7 of 9
July 2012
It is a matter for the Australian Government agency undertaking the tender to determine
whether they are satisfied that the information and evidence you have provided adequately
demonstrates your capacity and commitment to comply with the mandatory practices for
AGCSC as prescribed in the Commonwealth Cleaning Services Guidelines.
For more information on the mandatory practices for AGCSC, please refer to the following
publications that are available on http://www.employment.gov.au/fair-work-principles:




6.5
the Commonwealth Cleaning Services Guidelines;
the User Guide,
the Mandatory practices for AGCSC fact sheet; and
the Fair Work Principles fact sheet for tenderers and contractors.
What are the Best Practice Measures for Cleaning Services Contractors?
The Best Practice Measures for Cleaning Services Contractors for Australian Government
Procurement (the Best Practice Measures) have been developed by the Cleaning Consultative
Group to outline admirable workplace practices that you are encouraged to consider adopting
in the running of a best practice business.
The Best Practice Measures enhance and compliment the cleaning specific requirements of
the Fair Work Principles and the Commonwealth Cleaning Services Guidelines and
demonstrate to the Australian community that the Australian Government is committed to
supporting the creation of quality jobs and decent work for employees in the cleaning
industry.
You are encouraged to consider the practices outlined in the Best Practice Measures and
adopt them in the running of your business.
The Best Practice Measures are included in the Fair Work Principles User Guide which is
available at http://www.employment.gov.au/fair-work-principles.
6.6
Who assesses whether the tenderer will comply with the mandatory practices for AGCSC?
It is a matter for the Australian Government agency undertaking the tender to determine
whether they are satisfied that the information and evidence provided by a tenderer
adequately demonstrates their capacity and commitment to comply with the mandatory
practices for AGCSC as prescribed in the Commonwealth Cleaning Services Guidelines.
6.7
My company has a Clean Start Agreement that has been negotiated with United Voice and
approved by Fair Work Australia. Does the company need to outline how it will comply with
the mandatory practices for AGCSC?
All tenderers for AGCSC are required to outline in their tender response how they will comply
with the mandatory practices for AGCSC.
6.8
I do not have any employees. Do I need to outline how I will comply with the mandatory
practices for AGCSC?
Where a cleaning services contract will only be serviced by the directors or partners, this must
be indicated by the tenderer in their response.
Page 8 of 9
July 2012
7.
TEXTILE, CLOTHING AND FOOTWEAR MANUFACTURERS
7.1
I am a clothing and footwear manufacturer who tenders for work with Australian
Government agencies. What do I need to do to show my compliance with the Fair Work
Principles?
In addition to all other general Fair Work Principles requirements, clothing and footwear
manufacturers who tender to provide goods to Australian Government agencies are required
to be accredited, or seeking accreditation, with the Home Workers Code of Practice (HWCP)
which is administered by Ethical Clothing Australia prior to signing a contract.
Note: The requirement to be accredited with the HWCP does not apply to textile, clothing and
footwear manufacturers who do not have a commercial presence in Australia.
7.2
How do I become accredited with the HWCP?
Businesses seeking accreditation with the HWCP should contact Ethical Clothing Australia on
03 9419 0222 or info@ethicalclothingaustralia.org.au. More details about Ethical Clothing
Australia can be found at www.ethicalclothingaustralia.org.au.
8.
MORE INFORMATION ABOUT THE FAIR WORK PRINCIPLES
8.1
Where can I find more information about the Fair Work Principles?
Information about the Fair Work Principles is available at
http://www.employment.gov.au/fair-work-principles. Copies of the Fair Work Principles, the
User Guide and the Commonwealth Cleaning Services Guidelines are also available from
http://www.employment.gov.au/fair-work-principles.
Queries about the Fair Work Principles, the User Guide and the Commonwealth Cleaning
Services Guidelines can be directed to the Fair Work Principles on 13 33 97 or by emailing
fairworkprinciples@deewr.gov.au
Queries about a particular tender should be directed to the Australian Government agency
running the tender.
Page 9 of 9
July 2012