Victorian Code of Practice for the
Building and Construction Industry
October 2014
The Secretary
Department of Treasury and Finance
1 Treasury Place
Melbourne Victoria 3002
Australia
Telephone: +61 3 9651 5111
Facsimile: +61 3 9651 2062
dtf.vic.gov.au
Authorised by the Victorian Government
1 Treasury Place, Melbourne, 3002
© State of Victoria 2014
This work is licensed under a Creative Commons Attribution 3.0 Australia licence. You are
free to re-use the work under that licence, on the condition that you credit the Victorian
Code of Practice for the Building and Construction Industry 2014 and the State of Victoria as
author. The licence does not apply to any images, photographs or branding, including the
Victorian Coat of Arms, the Victorian Government logo and the Department of Treasury and
Finance logo.
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ISBN 978-1-922222-36-7 (pdf)
Published October 2014
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Contents
1.
2.
3.
4.
Introduction ............................................................................................ 1
Victorian Government oversight and administration of the Victorian
Code ........................................................................................................ 2
Definitions ............................................................................................... 3
Application and other related matters .................................................... 5
4.1
4.2
4.3
4.4
4.5
5.
6.
Application ......................................................................................................................... 5
General requirements of participants that are subject to the Victorian Code.................. 5
Specific requirements of participants that are subject to the Victorian Code .................. 6
Relationship with Building Code ........................................................................................ 8
Practice Directions ............................................................................................................. 8
Compliance with legal obligations ........................................................... 9
Workplace arrangements and other related matters ............................ 10
6.1 Workplace arrangements ................................................................................................ 10
6.2 Above-entitlements payments and related matters ....................................................... 12
6.3 Dispute settlement .......................................................................................................... 12
7.
Freedom of association and right of entry............................................. 13
7.1 Freedom of association.................................................................................................... 13
7.2 Right of entry ................................................................................................................... 13
8.
Site security and drug and alcohol testing ............................................. 15
8.1 Site security...................................................................................................................... 15
8.2 Drug and alcohol testing .................................................................................................. 15
9.
Cost, efficiency and productivity ........................................................... 16
9.1 Workplace Relations Management Plan ......................................................................... 16
9.2 Contractor requirements ................................................................................................. 17
10.
Collusive tendering and uncompetitive behaviour ................................ 19
10.1 Collusive tendering .......................................................................................................... 19
10.2 Uncompetitive behaviour ................................................................................................ 19
11.
12.
Industrial action .................................................................................... 20
Workplace safety .................................................................................. 21
12.1 Tender requirements ....................................................................................................... 21
12.2 Project specific Health and Safety Management Plan ..................................................... 21
12.3 Project delivery requirements ......................................................................................... 21
12.4 Client agency requirements ............................................................................................. 22
13.
Monitoring and sanctions...................................................................... 23
13.1 Notification of breaches .................................................................................................. 23
13.2 Investigation of breaches................................................................................................. 23
Victorian Code of Practice for the Building and Construction Industry
October 2014
i
13.3 Reporting ......................................................................................................................... 23
13.4 Consequences for breaching the Victorian Code ............................................................ 24
13.5 Review of a decision made under the Victorian Code ..................................................... 24
ii
Victorian Code of Practice for the Building and Construction Industry
October 2014
1.
Introduction
(a)
This Victorian Code of Practice for the Building and Construction Industry (Victorian
Code), as amended from time to time, operates from 8 October 2014 and replaces the
1999 Victorian Code, and the Implementation Guidelines.
(b)
The Victorian Code has been developed:
(i)
to promote an improved workplace relations framework for building and
construction work to ensure it is carried out lawfully, fairly, efficiently,
productively and safely for the benefit of all persons;
(ii)
to assist participants to understand the Victorian Government's expectations and
requirements for persons that choose to tender for public building and
construction work and/or are awarded public building and construction work;
(iii)
to establish an enforcement framework under which persons who operate in a
manner which does not comply with the Victorian Code may be excluded from
tendering for or being awarded public building and construction work; and
(iv)
for the purposes of the Victorian Government achieving value for money on its
spending on building and construction projects and fostering that approach
generally across building and construction work.
Victorian Code of Practice for the Building and Construction Industry
October 2014
1
2.
Victorian Government oversight and administration
of the Victorian Code
(a)
The Minister for Finance has overall responsibility for the implementation of the
Victorian Code.
(b)
The Department of Treasury Finance (DTF), through the Construction Code Compliance
Unit (CCCU), is responsible for the following elements of the Victorian Code:
(i)
overall policy responsibility;
(ii)
setting of the overall direction and work plan of the CCCU;
(iii)
providing policy advice to the Victorian Government through the Minister for
Finance;
(iv)
promoting awareness of the Victorian Code through a range of information and
educational activities;
(v)
liaising with the relevant Commonwealth and Victorian bodies;
(vi)
monitoring compliance with the Victorian Code and receiving reports of alleged
breaches. This may include the CCCU undertaking site visits, site inspections and
audits; and
(vii) recommending the imposition of a sanction to the Minister for Finance for any
breach of the Victorian Code.
(c)
2
The monitoring of compliance with specific statutory requirements remains the
responsibility of the relevant government agencies that administer those requirements.
Victorian Code of Practice for the Building and Construction Industry
October 2014
3.
Definitions
The following are explanations of terms used in the Victorian Code:
Above-entitlements payment means a payment or benefit above the amount or value of a
payment or benefit required to be paid under an enterprise agreement or award or industrial
law (within the meaning of the FW Act).
Award means a modern award or a modern enterprise award within the meaning of the FW
Act.
Building and construction work includes:
 all organised activities concerned with demolition, building, landscaping, civil engineering,
process engineering, mining and heavy engineering; and
 building refurbishment or fit out, installation of building security systems, fire protection
systems, air conditioning systems, computer and communication cabling, building and
construction of landscapes,
but excludes: mining operations, maintenance, landscaping such as lawn mowing, pruning and
other horticultural activities, and cleaning buildings.
Building Code means the Federal Government’s Building Code as amended from time to time.
Client means any project owner, project manager, or initiator, inviting or receiving proposals or
tenders and, in relation to public building and construction work, means the client agency.
Client agency means the Victorian Government department or public sector body (as defined
in the Public Administration Act 2004 (Vic)) that enters into a contract for public building and
construction work with the principal contractor.
Consultant means a person who provides specialist advice and/or professional services relating
to public building and construction work.
Contractor means a person who provides public building and construction work and services,
including a principal contractor and a subcontractor.
Enterprise agreement has the same meaning as in the FW Act.
Fair Work legislation means the FW Act; the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) and the Independent Contractors Act 2006 (Cth).
FW Act means the Fair Work Act 2009 (Cth).
Implementation Guidelines means the Implementation Guidelines to the Victorian Code of
Practice for the Building and Construction Industry as first published in April 2012 and as
amended from time to time.
Industrial action has the same meaning as in the FW Act.
Officer of a union means a union official, union delegate or other union representative.
OHS&R means occupational health, safety and rehabilitation.
On site includes the primary construction site(s) or any auxiliary or holding sites, where
building and construction related work is performed.
Participant is a person to whom the Victorian Code applies, which may include, but is not
limited to: clients, contractors, subcontractors, tenderers, suppliers, consultants, and industry
associations while undertaking a representative role. Participant includes a person to whom
the Implementation Guidelines applied.
Victorian Code of Practice for the Building and Construction Industry
October 2014
3
Person means a legal person, but also includes a partnership.
Practice Direction means a direction issued by the CCCU which declares the extent to which
and the circumstances in which a provision of the Victorian Code is inoperative.
Principal contractor means the participant with whom the client agency enters into a contract
for public building and construction work.
Privately funded building and construction work means building and construction work in
Victoria that is not public building and construction work.
Public building and construction work means building and construction work in Victoria
undertaken by, or on behalf of a client agency, and includes building and construction work
that involves:




public private partnerships;
alliance contracts;
design and construct procurement methods; or
any other project funding arrangements initiated by a client agency or any other
procurement method that may be introduced from time to time to reflect changes in
Victorian Government contractual practice.
Related entity means an entity that is engaged in building and construction work and is:
 connected with a participant; or
 an associated entity of a participant.
(Connected with and associated entity have the same meaning as in the Corporations Act 2001
(Cth)).
Responsible Minister means, in relation to a client agency, the Minister responsible for the
portfolio within which the client agency is located.
Tender means an offer in writing, which includes price, in response to an invitation to execute
work or supply goods.
Tenderer means any participant responding to an expression of interest or submitting a tender
for public building and construction work, including principal contractors, contractors,
subcontractors and suppliers and, for the purpose of section 9, means a principal contractor.
Unprotected industrial action means industrial action which is not protected in accordance
with the FW Act.
4
Victorian Code of Practice for the Building and Construction Industry
October 2014
4.
Application and other related matters
4.1
Application
4.2
(a)
This Victorian Code applies from 8 October 2014 in respect of all public building and
construction work, subject to clause 4.1(e). The Victorian Code replaces the 1999
Victorian Code, and its Implementation Guidelines.
(b)
The 1999 Victorian Code and the Implementation Guidelines apply in respect of public
building and construction work that is undertaken prior to 8 October 2014. However,
from 8 October 2014, all participants and their related entities that were required to
comply with the Implementation Guidelines will become subject to the Victorian Code.
(c)
A participant that was not required to comply with the Implementation Guidelines
becomes subject to the Victorian Code from the date that it expresses interest in or
tenders for on-site public building and construction work.
(d)
From the date a participant becomes subject to the Victorian Code, unless the
application of the Victorian Code is expressly excluded, the participant also becomes
subject to the Victorian Code in respect of any privately funded building and
construction work that it undertakes.
(e)
An agreement, arrangement, practice or procedure (however and wherever expressed)
of the nature described in clauses 6.(1)(a) and (b) which is entered into prior to 8
October 2014 will not be considered to be inconsistent with the objectives of the
Victorian Code set out in section 1.
(f)
A related entity of a participant becomes subject to the Victorian Code at the time the
participant becomes subject to the Victorian Code.
General requirements of participants that are subject to the Victorian
Code
(a) A contractor must:
(i)
comply with the Victorian Code. For the avoidance of doubt, any agreement,
arrangement, practice or procedure (however expressed) referred to in sections 6
and 7 which is inconsistent with the objectives of the Victorian Code in section 1,
does not comply with the Victorian Code;
(ii)
reflect the objectives and the requirements of the Victorian Code in induction
content, and on a regular basis in pre-start and toolbox meetings;
(iii)
require and actively ensure compliance with the Victorian Code by any of its
related entities referred to in clause 4.1(f); and
(iv)
require and actively ensure compliance with the Victorian Code by any participant
with whom it contracts, or enters into an agreement or arrangement (however
expressed), to undertake public building and construction work.
(b) Client agencies and principal contractors are responsible for ensuring that:
(i)
compliance with the Victorian Code is included as an integral component of their
contract management procedures; and
(ii)
all expressions of interest, tender and contractual documents clearly set out the
requirements specified in clauses 4.2 and 4.3 of the Victorian Code.
(c) Client agencies must not enter into a contract with any participant that:
(i) has had an adverse decision, direction or order made by a court or tribunal for a
Victorian Code of Practice for the Building and Construction Industry
October 2014
5
breach of the Fair Work legislation, occupational health and safety legislation or the
Competition and Consumer Act 2010 (Cth); and
(ii) has not fully complied, or is not fully complying, with such a decision, direction or
order.
(d)
4.3
Clause 4.2(c) does not apply if:
(i)
the period for payment, or for other compliance with the decision, direction or
order, has not expired; or
(ii)
the decision, direction or order is stayed or has been revoked.
(e)
To help ensure compliance with clauses 4.2(b) and (c), model tender and contract
clauses, including a Victorian Code compliance schedule, are available on the CCCU
website at dtf.vic.gov.au/cccu under the "model tender and contract documentation"
section. These model clauses may be updated from time to time to reflect changes in
Victorian Government contractual practice.
(f)
A client agency may seek to waive elements of the Victorian Code in limited
circumstances where it forms the view that it is in the public interest to do so. The client
agency must fully document the reasons for seeking the waiver and submit them to the
Responsible Minister. Following a request from the Responsible Minister, the Minister
for Finance may approve the waiver.
Specific requirements of participants that are subject to the Victorian
Code
Contractors
(a)
Where a contractor contracts with, or enters into an arrangement or agreement
(however expressed) with another participant in respect of public building and
construction work, the relevant contractual documents, arrangements or agreements
(however expressed) must require that participant to:
(i)
comply with the Victorian Code; and
(ii)
permit authorised personnel from the CCCU to monitor and investigate
compliance with the Victorian Code by that participant, including by allowing the
authorised personnel to:




access sites, documents and personnel;
inspect any work, material, machinery, appliance, article or facility;
inspect and copy any record relevant to the project; and
interview any person.
Client agencies
(b)
A client agency must:
(i)
require compliance with the Victorian Code by any participant with whom it
contracts, or enters into an agreement or arrangement to undertake public
building and construction work. Compliance includes allowing authorised
personnel to monitor and investigate compliance by:




(ii)
6
accessing sites, documents and personnel;
inspecting any work, material, machinery, appliance, article or facility;
inspecting and copying any record relevant to the project; and
interview any person.
ensure that any request for expressions of interest or request for tender
(however expressed) requires a participant:
Victorian Code of Practice for the Building and Construction Industry
October 2014
 to confirm that the participant and any related entity will comply with the
Victorian Code when undertaking that work;
 to confirm that the participant and any related entity will comply with the
Victorian Code on all projects in Victoria from the time of lodging the
expression of interest or tender response (if not already required to do so); and
 to confirm that it is eligible to perform Victorian government public building
and construction work.
(iii)
for projects of $10 million or more, ensure that the following requirements are
included in any request for expressions of interest or request for tender (however
expressed):
 the requirement for a tenderer to submit a Workplace Relations Management
Plan (WRMP) in accordance with clause 9.1 of this Victorian Code; and
 the requirement for a tenderer to declare that, as the successful tenderer, it
will provide to the client agency a Health and Safety Management Plan that
complies with the requirements of clause 12.2 in accordance with clause 12.1
of this Victorian Code.
(iv)
incorporate the requirements in clauses 4.3(b)(i), (ii) and (iii) by using the CCCU’s
model tender and contract clauses for advertisements, requests for expressions
of interest and tenders and for contracts. These clauses are contained in the
model tender and contract documentation referred to in clause 4.2(e).
(v)
not shortlist a participant during an expression of interest process or enter into a
contract with any participant:
 that has not submitted a WRMP approved by the CCCU;
 that is excluded from performing public building and construction work by the
Minister for Finance under clause 13.4; or
 that is excluded by another State, Territory or Commonwealth government
from performing work unless approval to do so is provided by the Minister for
Finance.
Victorian Code of Practice for the Building and Construction Industry
October 2014
7
(vi)
notify the CCCU of all public building construction work of $1 million or more,
from procurement commencement through to project completion. The
notification must include (as detailed further in Project reporting guide for client
agencies on the CCCU website):
 project information including project name and identification number,
expected project cost and funding source;
 market engagement details including delivery model, tender type, open and
closing dates of expression of interest/tender, details of expression of interest
and tender respondents, confirmation that all respondents have signed a
Victorian Code compliance schedule and name and compliance schedule of
successful tenderer; and
 project delivery start and completion dates (scheduled and actual), and actual
project costs.
4.4
Relationship with Building Code
The Victorian Code is intended to supplement and apply in addition to the requirements of the
Building Code.
4.5
8
Practice Directions
(a)
The CCCU may at its discretion, issue, modify or revoke a Practice Direction at any time.
(b)
For the avoidance of doubt, if the CCCU considers (at its discretion) that a participant
has acted in reliance on a Practice Direction issued by the CCCU, conduct undertaken in
such reliance does not constitute non-compliance with the Victorian Code.
Victorian Code of Practice for the Building and Construction Industry
October 2014
5.
Compliance with legal obligations
A participant must comply, and must demonstrate past compliance with, all applicable:
(a)
legislation, including, but not limited to, the Fair Work legislation, occupational health
and safety legislation and the Competition and Consumer Act 2010 (Cth);
(b)
court and tribunal orders, directions and decisions;
(c)
common law agreements between an employer and employee; and
(d)
enterprise agreements and awards.
Victorian Code of Practice for the Building and Construction Industry
October 2014
9
6.
Workplace arrangements and other related matters
6.1
Workplace arrangements
(a)
An agreement, arrangement, practice or procedure (however and wherever expressed)
which provides for or includes a provision that:
(i)
imposes or purports to impose limits on the right of a participant to manage its
business or to improve productivity;
(ii)
is designed to avoid a participant's legal obligations;
(iii)
discriminates, or has the effect of discriminating against certain persons, classes
of employees or contractors; or
(iv)
is inconsistent with freedom of association requirements set out in clause 7.1 of
this Victorian Code,
will be inconsistent with the objectives of the Victorian Code set out in section 1 and is
therefore not in compliance with this Victorian Code.
(b)
Without limiting clause 6.1(a), the following provisions in any agreement or
arrangement (however and wherever expressed) are inconsistent with the objectives of
the Victorian Code set out in section 1 and are therefore not in compliance with this
Victorian Code – provisions which:
(i)
prescribe the number of employees or subcontractors that may be employed or
engaged on a particular site, in a particular work area, or at a particular time;
(ii)
restrict the employment or engagement of persons by reference to the type of
employment that may be offered by the employer. For example, an agreement or
arrangement (however expressed) that prohibits or limits the employment of
casual or daily hire employees;
(iii)
require, or result in, discrimination between classes of employees because of the
basis on which they are lawfully entitled to work in Australia;
(iv)
require a participant to consult with, or seek the approval of, a union in relation
to the source or number of employees to be engaged, or type of employment
offered to employees;
(v)
require a participant to consult with, or seek the approval of, a union in relation
to the engagement of subcontractors;
(vi)
prescribe the terms and conditions on which subcontractors are engaged
(including the terms and conditions of employees of a subcontractor);
(vii) prescribe the scope of work or tasks that may be performed by employees or
subcontractors;
(viii) provide for or permit unregistered written agreements;
10
(ix)
limit or have the effect of limiting the right of an employer to make decisions
about redundancy, demobilisation or redeployment of employees based on
operational requirements. For example, an agreement or arrangement (however
or wherever expressed) whereby employees are selected for redundancy on a
"last on, first off" basis, or by reference to the seniority of employees;
(x)
prohibit the payment of all-in payments and/or a loaded rate of pay (whether or
not expressed as an hourly, daily, weekly or annual amount). An all-in payment
includes, for example, an amount paid that represents payment for ordinary time
and other matters such as overtime and annual leave loading. An all-in payment
for the purposes of this clause does not include payments to subcontractors and
mandatory superannuation contributions;
(xi)
require, or have the effect of requiring, the allocation of particular work to
individual employees only if that allocation is extended to other employees in the
Victorian Code of Practice for the Building and Construction Industry
October 2014
class of employees to which the employee belongs. For example, an agreement
or arrangement (however expressed) that prevents an individual employee being
selected to perform overtime unless other employees are similarly provided
overtime);
(xii) provide for the monitoring of enterprise agreements by persons other than the
employer and employees to whom the agreement applies;
(xiii) require the application to or display of union logos, mottos or indicia to company
supplied property or equipment;
(xiv) directly or indirectly require a person to encourage, or discourage, a person from
becoming, or remaining, a member of a union;
(xv) directly or indirectly require a person to indicate support, or lack of support, for
persons being members of a union or any other measure that suggests that
membership is anything other than a matter for individual choice;
(xvi) limit the ability of an employer to determine when, where, and by whom work
can be performed to meet operational requirements;
(xvii) provide for the rights of a union official to enter premises other than in
compliance with Part 3-4 of the FW Act and applicable occupational health and
safety laws;
(xviii) provide for the establishment or maintenance of an area which is intended to be
designated to be used by members or officers of a union in that capacity;
(xix) require, or have the effect of coercing or pressuring, a group apprenticeship
scheme or similar provider to set particular terms and conditions, including the
making of above-entitlements payments;
(xx)
provide for a site allowance and the amount is not specified in either an
enterprise agreement or award;
(xxi) prohibit or in any way limit the use of security or access systems of the kind
described in clause 9.1(d) and (e) which maintain the integrity of a site; and
(xxii) directly or indirectly have the effect of negating or rendering ineffective the
application of the Victorian Code.
(c)
Conduct by a participant or the implementation of an agreement, arrangement,
procedure or practice (however or wherever described) which has or is likely to have
any of the effects described in clause 6.1(b) is inconsistent with the objectives of the
Victorian Code set out in section 1 and is therefore not in compliance with this Victorian
Code.
Victorian Code of Practice for the Building and Construction Industry
October 2014
11
6.2
Above-entitlements payments and related matters
(a)
6.3
12
The following conduct, arrangements, agreements, practices or procedures (however
found or expressed) are inconsistent with the objectives of the Victorian Code set out in
section 1 and are therefore not in compliance with this Victorian Code:
(i)
organising or taking action, or threatening to organise or take action with the
intent to coerce a participant into make above-entitlements payments;
(ii)
exerting undue influence or undue pressure on a participant to make aboveentitlements payments;
(iii)
organising or taking action, or threatening to organise or take action with the
intent to coerce a participant into making payments to a particular industry
superannuation, redundancy or sick leave fund or scheme, or to support a
particular product, service or arrangement; and
(iv)
applying, or attempting to apply, undue influence or undue pressure on a person
to make payments to a particular industry superannuation, redundancy or sick
leave fund or scheme, or to support a particular product, service or arrangement.
Dispute settlement
(a)
All reasonable attempts must be made to resolve grievances or matters under dispute
at the workplace between the appropriate level of management and employees, and
where applicable, union or other representatives.
(b)
Where a dispute or grievance is unable to be resolved in accordance with clause 6.3(a)
and an agreement, arrangement, practice or procedure (however or wherever
expressed) provides for arbitration or other binding outcome of a dispute, it must
require a decision of the arbiter to be consistent with the Victorian Code.
Victorian Code of Practice for the Building and Construction Industry
October 2014
7.
Freedom of association and right of entry
7.1
Freedom of association
(a)
An agreement, arrangement, conduct, practice or procedure (however or wherever
expressed) which does not promote freedom of association is inconsistent with the
objectives of the Victorian Code in section 1 and is therefore not in compliance with this
Victorian Code. This includes, but is not limited to, the following agreements,
arrangements, conduct, practices and procedures:
(i)
providing the names of new staff, job applicants, contractors or subcontractors to
unions other than as required by law;
(ii)
the display of "no ticket, no start" signs, show card days or any other similar signs
or practices that imply or suggest that union membership is anything other than a
matter of individual choice;
(iii)
the display of signs that seek to vilify or harass employees who participate, or do
not participate, in industrial activities;
(iv)
employers unlawfully encouraging or discouraging employees to join a union;
(v)
using employee representatives or officers of a union to undertake or administer
site induction processes (a process which should be undertaken by site
management). To the extent that such an arrangement, agreement, practice or
procedure (however or wherever expressed) is contained in an existing enterprise
agreement made before the application date of the Victorian Code, any such
process must be overseen by, or also involve, site management;
(vi)
discriminating against or disadvantaging elected employee representatives;
(vii)
using forms requiring an employee to identify their union status, or requiring
employers and contractors to identify the union status of employees or
subcontractors;
(viii) refusing to employ an individual, or terminating an employee or subcontractor,
because of their union status;
(ix)
limiting an employee's freedom of choice in deciding whether to be represented
and by whom in relation to a workplace dispute or grievance;
(x)
employers refusing a reasonable request from a workplace delegate to represent
employees in relation to grievances and disputes or discussions with members;
(xi)
the imposition, or attempted imposition, of a requirement for any contractor,
subcontractor or employer to employ a non-working shop steward or job
delegate or to hire an individual nominated by a union;
(xii)
requiring union or any other logos, mottos or other indicia to be applied to
company supplied property or equipment, including clothing; and
(xiii) any requirement that a person pay a bargaining fee, however described, to an
industrial association of which he/she is not a member, in respect of services
provided by it.
7.2
Right of entry
(a)
A participant must comply with all applicable laws to which that participant is subject,
including Part 3-4 of the FW Act and any applicable occupational health and safety laws,
that give a permit holder of a union a right to enter premises where work is performed
and where the permit holder seeks to exercise that right.
(b)
A participant must ensure entry by a union official onto premises where work is
performed is only in accordance with Part 3-4 of the FW Act and any applicable
occupational health and safety laws.
Victorian Code of Practice for the Building and Construction Industry
October 2014
13
14
(c)
A participant must not invite a union official onto premises where work is performed for
any purpose.
(d)
Attempts to avoid right of entry requirements for a union official by allowing delegates
or shop stewards to purport to exercise right of entry functions which, in accordance
with the FW Act, can only be exercised by persons who hold right of entry permits, are
inconsistent with the objectives of the Victorian Code in section 1 and are therefore not
in compliance with this Victorian Code.
Victorian Code of Practice for the Building and Construction Industry
October 2014
8.
Site security and drug and alcohol testing
8.1
Site security
(a)
Contractors must implement site security and risk management processes and
procedures to maintain the integrity of the site which enables the contractor to, as far
as reasonably practicable:
(i) determine and verify who is on site at any given time and who has attended the site
at any given time; and
(i) ensure only those persons authorised to be on site are permitted to access it.
(b)
8.2
On sites where a WRMP is required, site security and risk management processes and
procedures must include those measures described in clause 9.1(e).
Drug and alcohol testing
(a)
Contractors must have an approach to managing drug and alcohol issues in the
workplace that helps to ensure that no person attending the site does so under the
influence of alcohol or other drugs.
(b)
On sites where a WRMP is required, a fitness for work policy to manage alcohol or other
drugs in the workplace must:
(i) be included in the WRMP;
(ii) address the issues set out in clause 9.1(f) of the Victorian Code; and
(iii) meet the minimum standards specified in the Model WRMP to the satisfaction of
the CCCU.
Victorian Code of Practice for the Building and Construction Industry
October 2014
15
9.
Cost, efficiency and productivity
9.1
Workplace Relations Management Plan
(a)
A tenderer for public building and construction work must, as part of any expression of
interest or tender response, submit a WRMP where the total value of the construction
project is $10 million or more regardless of the funding source. The requirement to
submit a WRMP does not extend to future privately funded building and construction
work (although the tenderer is encouraged to adopt the theme and intent of the
WRMP).
(b)
The WRMP must meet the objectives of the Victorian Code set out in section 1,
including by addressing the tenderer's approach to:
(i)
labour requirements, including in respect of skills, numbers required, manner of
supply, recruitment, engagement, termination and redundancy of labour to allow
for changing demands across the life of the project;
(ii)
the engagement and use of labour, including in respect of mobilisation plans,
selection procedures (e.g. measures taken to ensure sufficient skills including
reference checks and inductions) and, sourcing, selecting and training suitably
experienced construction supervisors;
(iii)
managing subcontractors, including in respect of selection processes, ensuring
and monitoring their compliance with legislative requirements, employment
obligations, the Victorian Code and the WRMP, and methods of engaging with
subcontractors, including through identifying and engaging with representatives;
(iv)
developing and maintaining a productive workforce and ensuring the optimal use
of labour requirements to deliver the project on time and within budget,
including in respect of managing inclement weather and heat, RDOs, unexpected
or increased costs such as site allowances and, the adoption of agreements,
arrangements, practices or procedures which are common to a project or
industry, but which do not reflect the needs of the enterprise;
(v)
performance and conduct management of labour, including disciplinary process
to be applied;
(vi)
regulating and monitoring workplace arrangements practices or procedures on
the project;
(vii) relationship management with employees, employee representatives and/or
unions including, but not limited to, the approach and process for communicating
and consulting with the workforce and the approach to managing third party site
access;
(viii) ensuring compliance with statutory workplace rights including, but not limited to,
freedom of association, freedom from unlawful coercion and freedom from
unlawful discrimination; and
(ix)
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identifying and managing industrial relations risks, including in respect of dispute
resolution, demarcation disputes, industrial action (whether threatened, actual,
protected or unprotected), right of entry disputes and, management of lost time
as a result of any industrial dispute.
Victorian Code of Practice for the Building and Construction Industry
October 2014
(c)
The tenderer must also set out in the WRMP:
(i)
the systems, processes and procedures it has in place (or will have in place) to
achieve the objectives of the Victorian Code, including to deliver the project on
time and within budget; and
(ii)
its track record for adopting efficient and productive work practices and
delivering projects on time and within budget and the actions it will take to
achieve these objectives in the future. Where a tenderer has failed to achieve
such objectives in the past, the tenderer must identify the reasons for the failure
and the steps it has taken to address those matters for future projects.
Site security
(d)
(e)
As a part of the WRMP, the tenderer must explain the systems, processes and
procedures the tenderer will implement in respect of site security and risk management
to maintain the integrity of the site to enable it to, as far as reasonably practicable:
(i)
determine and verify who is on site at any given time and who has attended the
site at any given time; and
(ii)
ensure only those persons authorised to be on site are permitted to access it, and
how this will be practically achieved and enforced.
The systems, processes and procedures must include security measures in the form of
CCTV, a swipe card access system, photographic or biometric security system or similar.
Where it is asserted not to be feasible, reasons in support of the assertion must be
included in the WRMP in light of the particular circumstances of the project.
Drug and alcohol testing
(f)
(g)
9.2
As part of the WRMP, the tenderer must outline, to the satisfaction of the CCCU, the
approach to managing drug and alcohol issues in the workplace and the steps the
tenderer will take towards ensuring that no person attending the site for work does so
under the influence of alcohol or other drugs. This will include the tenderer outlining, in
accordance with the minimum standards set in the Model WRMP:
(i)
how it will ensure that all subcontractors and their employees and workers agree
to comply with the relevant policy (through contract or some other enforceable
means);
(ii)
which objective medical testing method/s it proposes to implement to detect the
presence of alcohol or specified drugs in a person's system;
(iii)
the medical thresholds against which positive or negative test results will be
determined (noting that, subject to testing detectable levels, the acceptable level
for all substances is zero);
(iv)
how persons will be selected for testing and the frequency of that testing
(including general random testing, voluntary testing and for-cause testing);
(v)
how persons returning a positive result will be prevented from working until it is
safe for them to do so; and
(vi)
counselling and rehabilitation processes that may apply in the event of a positive
test.
The tenderer must maintain responsibility for the testing and must not pass the
implementation and cost of testing to its subcontractors.
Contractor requirements
(a)
A contractor must:
(i)
comply with its WRMP;
(ii)
act in accordance with its tender response; and
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October 2014
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(iii)
(b)
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require compliance with the matters set out in clause 9.1 by any participant with
whom it contracts, or enters into an agreement or arrangement (however
expressed) to undertake public building and construction work.
A principal contractor at a particular site is responsible for ensuring compliance with its
WRMP by other contractors working on that site.
Victorian Code of Practice for the Building and Construction Industry
October 2014
10. Collusive tendering and uncompetitive behaviour
10.1 Collusive tendering
(a)
A tenderer must not engage in collusive tendering or any other anti-competitive
practices such as, but not limited to:
(i)
agreement between tenderers as to who should be the successful tenderer;
(ii)
any meeting of tenderers to discuss tenders prior to the submission of the
tenders where the client is not present;
(iii)
exchange of information between tenderers about their tenders prior to
awarding of a contract or commission;
(iv)
agreement or exchange of information between tenderers for the payment of
money or the securing of reward or benefit for unsuccessful tenderers by the
successful tenderer;
(v)
agreements between tenderers to fix prices or conditions of contract (this means
any collaboration between tenderers on prices or conditions to be included in
contracts or commissions without the consent of the client);
(vi)
submission of a cover tender or any assistance to any tenderer to submit a cover
tender (that is, a tender submitted as genuine but which has been deliberately
priced in order not to win the contract or commission);
(vii) any agreement between tenderers prior to submission of tenders to fix the rate
of payment of employer or industry association fees where the payment of such
fees is conditional upon the tenderer being awarded the contract or commission;
and
(viii) payment to any third party of money, fees, incentives or other concessions
contingent on the success of the tender that do not relate to the provision of
proper services relevant to the tender.
(b)
These provisions are not intended to prohibit proper practices or arrangements
(however or wherever expressed), which are aimed at providing innovative or nonstandard forms of procurement and delivery, such as joint ventures or alliance
partnering.
10.2 Uncompetitive behaviour
(a)
A tenderer must not engage in any uncompetitive behaviour or practice (however or
wherever expressed) that denies legitimate business opportunities to other tenderers
or participants in the tender process, including, but not limited to, the matters referred
to in clause 10.1(a) regarding collusive tendering.
(b)
A tenderer must not:
(i)
accept or provide secret commissions;
(ii)
enter into any improper commercial arrangements with other participants;
(iii)
seek to influence contract decisions by improper means during the tender
process; or
(iv)
accept incentives to provide contracts or services to other participants that
financially disadvantage the client.
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October 2014
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11. Industrial action
(a)
(b)
(c)
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A participant must take all reasonable steps to:
(i)
resolve industrial action which adversely affects, or has the potential to adversely
affect, the delivery of a project or other related contracts on time and within
budget; and
(ii)
prevent or bring to an end unprotected industrial action occurring on, or
affecting, the project, including by pursuing legal action where possible.
A participant must report:
(i)
any threatened or actual industrial action that may impact the project, project
costs, related contracts or timelines to the CCCU (or nominee) and the client
within 24 hours. The participant must provide regular updates to the CCCU (or
nominee) and the client about the steps being taken to resolve the threatened or
actual industrial action; and
(ii)
any request or demand by a union, whether made directly or indirectly, that the
participant engage in conduct that appears to be for the purposes of a secondary
boycott within the meaning of the Competition and Consumer Act 2010 (Cth) to
the CCCU (or nominee) as soon as practicable, but no later than 24 hours, after
the request or demand is made.
A failure by a participant to report in accordance with clause 11(b) could constitute noncompliance with the Victorian Code and may result in a sanction.
Victorian Code of Practice for the Building and Construction Industry
October 2014
12. Workplace safety
12.1 Tender requirements
(a)
A tenderer must satisfy the client agency that it meets the OHS requirements specified
by the client agency in the tender.
(b)
A tenderer must also, for a public building and construction project with a total project
construction value of $10 million or more, declare that, if successful, it will provide to
the client agency a Health and Safety Management Plan (HSMP) that complies with the
requirements of section 12.2 below.
12.2 Project specific Health and Safety Management Plan
(a)
For a public building and construction project with a total project construction value of
$10 million or more, the successful tenderer must provide to the client agency a project
specific HSMP that meets the client agency’s satisfaction.
(b)
The HSMP must be provided to the client agency prior to the commencement of work
on site but no longer than 6 weeks after contract award.
(c)
The HSMP must be signed by the contractor’s Managing Director with a declaration that
the HSMP:
(i)
complies with the requirements of the tenderer’s risk management system
specified in their tender response (if any);
(ii)
complies with any additional safety-related requirements specified in the tender;
(iii)
includes a copy of the fitness for work policy submitted in the WRMP that
manages alcohol or other drugs in the workplace; and
(iv)
includes a project specific risk assessment.
12.3 Project delivery requirements
(a)
During project delivery, a contractor must:
(i)
comply with relevant OHS legislation, regulation and codes;
(ii)
comply with its HSMP (if required under clause 12.2);
(iii)
require compliance with such HSMP by any participant with whom it contracts, or
enters into an agreement or arrangement (however or wherever expressed), to
undertake work on the project;
(iv)
cooperate with any OHS professionals including auditors engaged by the client
agency or the CCCU in relation to the project; and
Victorian Code of Practice for the Building and Construction Industry
October 2014
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(v)
cooperate with the CCCU and the client agency in transferring knowledge and
analysing performance at the end of the project, including the development of a
completion report detailing OHS performance across the project, key safety
initiatives and learnings and areas for improvement on future projects.
12.4 Client agency requirements
Client agencies must provide the CCCU with copies of any safety reports obtained during the
project, including audit reports, incident reports and end of project reports.
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Victorian Code of Practice for the Building and Construction Industry
October 2014
13. Monitoring and sanctions
13.1 Notification of breaches
(a)
A contractor must notify the CCCU and the client of a breach, or a suspected breach, of
the Victorian Code as soon as practicable, but no later than 24 hours after becoming
aware of the breach or suspected breach, and advise the CCCU of the steps proposed to
be taken to rectify the breach.
(b)
The notification under clause 13.1(a) must be in writing to the CCCU and must include:
(i)
details of the circumstances and extent of the alleged breach or breaches; and
(ii)
details of remedial action taken to rectify the breach.
13.2 Investigation of breaches
(a)
The CCCU will, where it considers appropriate, conduct an investigation into alleged
breaches of the Victorian Code.
(b)
In the event of the CCCU investigating an alleged breach, it will:
(i)
write to the relevant contractor setting out the alleged breach and seeking a
response; and
(ii)
give the contractor an opportunity to make submissions in respect of the alleged
breach.
(c)
As part of its investigation, the CCCU may, or will if requested by a contractor, liaise
with the relevant industry association representing the contractor alleged to have
breached the Victorian Code.
(d)
In connection with an investigation or a review, the CCCU has discretion as to which, if
any, information or documents should be provided to any person.
13.3 Reporting
(a)
The CCCU will report all proven breaches of the Victorian Code by contractors to the
Minister for Finance.
(b)
The Secretary will report all proven beaches of the Victorian Code by a client agency or
client agency employees to the responsible Minister and to the Minister for Finance.
(c)
The CCCU may refer alleged breaches of Commonwealth or State legislation to the
appropriate statutory body.
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October 2014
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13.4 Consequences for breaching the Victorian Code
Contractors
(a)
In respect of proven breaches by contractors, sanctions may include, but are not limited
to:
(i)
issuing a formal written warning that a further breach will lead to more severe
sanctions;
(ii)
referral of a complaint to the relevant industry organisation for assessment
against its own professional code of conduct and appropriate action;
(iii)
reduction in tendering opportunities at either an agency or government-wide
level, for example, by exclusion of the breaching contractor from tendering for
government work above a certain value or for a specified period (this sanction
may only be imposed by the Minister for Finance in consultation with the
responsible Minister);
(iv)
reporting the breach to an appropriate statutory body; and
(v)
publicising the breach and the identity of the participant.
Client agencies and client agency employees
(b)
In respect of proven breaches by client agencies and client agency employees:
(i)
on the advice of the Secretary of DTF (Secretary), the Minister for Finance and
the responsible Minister will consider appropriate actions to ensure future
compliance with the Victorian Code;
(ii)
where it is demonstrated that client agency employees have breached the
Victorian Code, disciplinary action may be taken; and
(iii)
further breaches will lead to more severe sanctions.
13.5 Review of a decision made under the Victorian Code
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(a)
Any person aggrieved by a sanction decision made under clause 13.4 of the Victorian
Code in relation to alleged non-compliance with the Victorian Code may apply to the
Secretary for a review of that action or decision.
(b)
The application must be made within 7 days after the date of the letter advising of the
action or decision. The sanction decision will not take effect before the 7 day
application period has expired.
(c)
The application must state the reasons why the application is being made and provide
any information or documents relating to those reasons.
(d)
The review will be conducted in an informal manner, usually without a hearing, by a
person appointed by the Secretary who, in the Secretary’s opinion, has relevant
experience.
(e)
The person conducting the review shall provide a written report to the Secretary. who
must provide the report to the Minister for Finance. The Minister for Finance will
respond to the person requesting the review. The report and response must be
completed within 28 days of the request for review.
Victorian Code of Practice for the Building and Construction Industry
October 2014
www.dtf.vic.gov.au