Building Code 2013 – Supporting Guidelines
April 2016
Building Code 2013 - Supporting Guidelines , issued April 2016
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978-0-642-78732-3
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Contents
Contents ........................................................................................................................................................ 2
Section 1 ........................................................................................................................................................ 3
Section 2 ........................................................................................................................................................ 3
Section 3 ........................................................................................................................................................ 3
Section 4 ........................................................................................................................................................ 4
Section 5 ........................................................................................................................................................ 5
Section 6 ........................................................................................................................................................ 7
Section 1
Purpose
1.1
These Guidelines:
(a) assist funding entities to interpret and implement aspects of the Building Code and
the Public Governance, Performance and Accountability (Procurement)
Instrument 2016 in relation to Commonwealth funded building work;
(b) detail the processes to monitor and report on Building Code compliance; and
(c) detail the processes that will be used to determine whether a sanction should be
imposed on a building contractor or building industry participant for noncompliance.
Section 2
Application
2.1
These Guidelines apply to Commonwealth funded building work.
(a) Funding entities may waive a requirement of the Guidelines on public interest
grounds where a project is urgently required because of an emergency (e.g. natural
disasters or issues of public safety).
2.2
Despite Clause 2.2, the following requirements must not be waived:
(a) the requirements in section 5; and
(b) acceptance of the sanctions regime in section 6.
Section 3
Definitions
3.1
In these Guidelines:
Applicable legislation means workplace relations law, work health and safety law,
workers’ compensation law, migration law or competition and consumer law.
Building Code has the same meaning as in the Fair Work (Building Industry) Act 2012.
Building contractor has the same meaning as in the Building Code 2013.
Building industry participant has the same meaning as in the Building Code 2013.
Building work has the same meaning as in the Fair Work (Building Industry) Act 2012.
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Commonwealth funded building work means work in items 1—8 of Schedule 1 of the
Building Code.
Declaration of Compliance refers to the template Declaration of Compliance as set out in
the Building Code 2013 – Model Tender and Contract Documentation.
Designated building law has the same meaning as in the Fair Work (Building Industry) Act
2012.
Director has the same meaning as in the Fair Work (Building Industry) Act 2012.
Exclusion sanction means a period during which a building contractor or building industry
participant is not permitted to tender for, or be awarded Commonwealth funded building
work. An exclusion sanction may:
(a) be for any period that the Minister for Employment is satisfied is appropriate, but
no longer than 1 year in duration;
(b) be subject to conditions that apply the exclusion sanction only to a division of a
business operating in a particular state or territory; and
(c) be extended to related entities if the Minister is satisfied it is appropriate to do so.
Funding entity means a non-corporate Commonwealth entity within the meaning of the
Public Governance, Performance and Accountability Act 2013.
FW Act means the Fair Work Act 2009
FWBI Act means Fair Work (Building Industry) Act 2012
Related entity has the same meaning as the Building Code 2013.
Section 4
Expressions of interest and tenders
4.1
An advertisement calling for expressions of interest in, or that is a request for tender
(however described) for, Commonwealth funded building work that is to be carried
out for or on behalf of a funding entity is required to include a statement that the
Building Code applies to the work.
4.2
A funding entity is required to make compliance with the Building Code a condition
of tender for Commonwealth funded building work that is to be carried out for or on
behalf of the funding entity.
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4.3
A call for expressions of interest in, or a request for tender (however described) for,
Commonwealth funded building work that is to be carried out for or on behalf of a
funding entity is to require a respondent that is a building contractor or building
industry participant to confirm that:
(a) the respondent, and any related entity, will comply with the Building Code as
required by that Code from the time of lodging an expression of interest or
tender (if not already obliged to do so; and
(b) the respondent is eligible to be awarded Commonwealth funded building work
at the time of lodging an expression of interest or tender, including by
confirming that the respondent is not covered by an enterprise agreement that
is inconsistent with the Building Code.
Contracts
4.4
A contract under which a building contractor or building industry participant agrees
to carry out Commonwealth funded building work, or to arrange for such work to be
carried out, for or on behalf of a funding entity is required to ensure the following to
comply with the Building Code in relation to the work:
(a) the building contractor or building industry participant; and
(b) any other building contractors or building industry participants associated with
the project.
Funding agreements
4.5
For funding agreements for Commonwealth funded building work, funding entities
are required to ensure that the agreements and associated documentation include
the requirement that funding recipients apply the Building Code and these
Guidelines.
4.6
Funding entities responsible for managing the transfer of funds or grants for
Commonwealth funded building work are required to ensure that any guidelines or
administrative procedures governing the funding require funding recipients to
include the requirement that the Building Code applies to contracts relating to that
work.
Section 5
Responsibilities of Funding Entities
5.1
Funding entities must not enter into a contract with a building contractor or building
industry participant under which the building contractor or building industry
participant agrees to carry out Commonwealth funded building work, or to arrange for
such work to be carried out, for or on behalf of the funding entity if:
(a) there are reasonable grounds to believe that the building contractor or building
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industry participant is covered by an enterprise agreement that is inconsistent with
the Building Code; or
(b) there are reasonable grounds to believe that the building contractor or building
industry participant is a party to an agreement of a kind described in subsection
10(1) of the Building Code; or
(c) an exclusion sanction applies to the building contractor or building industry
participant; or
(d) an adverse decision, direction or order of a court or tribunal has been made in
relation to the building contractor or building industry participant and a
contravention of any of the following in respect of building work:
(i)
a designated building law; or
(ii)
the Work Health and Safety Act 2011 or a corresponding WHS law; or
(iii)
the Competition and Consumer Act 2010; and
there are reasonable grounds to believe that the building contractor or building
industry participant has failed to comply with the decision, direction or order.
Notification
5.2
Funding entities are required to notify the Director when a tender process is
completed and a building contractor or building industry participant has been awarded
a contract to undertake Commonwealth funded building work. This notification should
include:
(a) the name and contact details of the building contractor or building industry
participant; and
(b) a description of the work; and
(c) the location of the proposed work; and
(d) the cost of the project; and
(e) proposed project start and completion dates.
5.3
Funding entities are required to take all reasonable action to:
(a) notify the Director of all allegations of non-compliance with the Building Code as
soon as practicable but no later than 7 days after the funding entity became aware
of the alleged non-compliance by a building contractor or building industry
participant;
(b) respond to requests for information concerning matters related to the Building
Code made by the Director; and
5.4
Funding entities are required to inform the Director of any funding agreements
with funding recipients.
5.5
Funding entities are required to include in funding agreements the requirement for
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funding recipients to notify the Director when the tender process for work under the
funding agreement is complete and a building contractor or building industry
participant has been awarded a contract to undertake Commonwealth funded building
work. The notification should include:
(a) the name and contact details of the building contractor or building industry
participant; and
(b) a description of the work; and
(c) the location of the proposed work; and
(d) the cost of the project; and
(e) the proposed project start and completion dates.
Section 6
Compliance and Enforcement
6.1
Under section 7 of the Building Code a building contractor or building industry
participant must ensure that the Director is notified of any alleged non-compliance,
voluntary remedial action taken or other matters relating to the Code within
21 days of becoming aware of the alleged non-compliance.
6.2
Consistent with the Director’s functions under section 10 of the FWBI Act, the
Director may seek voluntary rectification of non-compliance with the Building
Code, and provide advice on what remedial action needs to be taken.
6.3
Consistent with the Director’s functions under section 10 of the FWBI Act, the
Director may refer matters to relevant authorities.
Consequences of failing to comply with the Building Code
6.4
Sanctions will be considered where a building contractor or building industry
participant has failed to comply with the Building Code, and in the view of the
Director the failure is not or cannot be voluntarily rectified.
6.5
If the Director is of the view that a building contractor or building industry
participant has failed to comply with the Building Code and the failure is not, or
cannot be, satisfactorily rectified, the Director may exercise his or her functions
under section 10 of the FWBI Act to refer the failure to the Minister for
Employment with recommendations, if any, that a sanction should be imposed.
Sanctions
6.6
Where a failure to comply with the Building Code has been referred by the
Director, the Minister for Employment may:
(a) impose an exclusion sanction on the building contractor or building industry
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participant; or
(b) issue a formal warning that a further failure may result in the imposition of an
exclusion sanction on the building contractor or building industry participant.
6.7
The Minister for Employment will consult with the relevant funding entity’s
Minister before imposing any exclusion sanction.
Exclusion Sanction
6.8
If the Minister for Employment proposes to impose an exclusion sanction, the
Minister will provide a written notice to the building contractor or building industry
participant:
(a) informing the building contractor or building industry participant of the details of
the alleged failure to comply with the Building Code; and
(b) advising the building contractor or building industry participant that they may, by
a specified date (being not less than 14 days after giving the notice), make a
submission in relation to the proposed exclusion sanction.
6.9
Where it is proposed to impose an exclusion sanction on a related entity, that
entity will also be notified and provided with the same information in 6.8.
6.10
After the date specified in a notice under clause 6.8(b), the Minister for
Employment will:
(a) if the building contractor or building industry participant has made a submission—
consider that submission; and
(b) whether or not the building contractor or building industry participant has made a
submission—decide whether to impose an exclusion sanction; and
(c) within 14 days after making that decision, give the building contractor or building
industry participant and any relevant related entity written notice of the decision,
including the reasons for the decision; and
(d) publish the failure to comply and the identity of the non-complying building
contractor or building industry participant.
6.11
The written notice issued by the Minister for Employment under clause 6.10 must
specify the date on which the exclusion sanction commences and ends.
Funding Entity compliance
6.12
Consistent with the Director’s functions under section 10 of the FWBI Act, where
the Director considers a funding entity, or an official within the meaning of the
Public Governance, Performance and Accountability Act 2013, is not complying with,
or has not complied with, its obligations under the Public Governance, Performance
and Accountability (Procurement) Instrument 2016 (whether or not in relation to a
particular project, tender or expression of interest), the Director may refer the
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matter to the accountable authority of the funding entity for investigation or
further action.
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