Changes to the ABCC and 2016 Code now in effect

27 July 2022

The federal government has registered a legislative instrument called the Code for the Tendering and Performance of Building Work Amendment Instrument 2022.

Following an announcement on Sunday 24 July 2022 by the new Employment and Workplace Relations Minister, Tony Burke, that the Code for the Tendering and Performance of Building Work 2016 would be amended, the federal government has registered a legislative instrument called the Code for the Tendering and Performance of Building Work Amendment Instrument 2022 (the Amended Code), which took effect on 26 July 2022.

The Amended Code removes most of the substantive requirements on code covered entities (members who sought to undertake Commonwealth-funded building work), including:

• Complying with a Workplace Relations Management Plan (s7)
  • The Amended Code does not contain any requirements in relation to Workplace Relations Management Plans (WRMPs). The ABCC will no longer assess WRMPs. The ABCC will not be accepting new WRMPs submissions and WRMPs previously submitted will not be assessed. Commonwealth WRMPs are no longer required on any building projects.
• Providing certain information in tenders and EOIs (s8)
• Requiring downstream code compliance from subcontractors (s8)
• Complying with the security of payment provisions of the Code, including reporting disputed or delayed progress payments under security of payment laws to the ABCC (s11D)
• Maintaining any policies with respect to freedom of association (s13)
• Restricting the rights of entry of an officer of a building association to rights provided under the Fair Work Act (FWA) and relevant work health and safety laws (s14)
• Carrying out any drug or alcohol testing under the Code or maintain a policy about drug and alcohol testing (s16(A) & 25)
• Reporting actual or threatened industrial action to the ABCC (s16)
• Reporting any code breaches to the ABCC (s17).

There is also no longer a prohibition on being covered by a non-compliant enterprise agreement or contracting for Commonwealth-funded building work while covered by a non-compliant enterprise agreement.

It’s important to note the following obligations remain:

Labour Market Testing (section 11F)

The Amended Code continues to require that a code covered entity must ensure that no person that is not an Australian citizen or Australian permanent resident (within the meaning of the Migration Act 1958) is employed to undertake building work for the code covered entity unless:

1. The position is first advertised in Australia, and
2. The advertising was targeted in such a way that a significant proportion of suitably qualified Australian citizens and Australian permanent residents would be likely to be informed about the position, and
3. Any skills or experience requirements set out in the advertising were appropriate to the position, and
4. The employer demonstrates that no Australian citizen or Australian permanent resident is suitable for the job.

Funding Entity Requirements (25A and 26(2))

Funding Entities must ensure that before a contract is entered into in respect of Commonwealth-funded building work, the preferred tenderer provides the following information:

1. The extent to which domestically sourced and manufactured building materials will be used to undertake the building work
2. Whether the building materials to be used to undertake the building work comply with relevant Australian standards published by, or on behalf of, Standards Australia
3. The preferred tenderer’s assessment of the whole-of-life costs of the project to which the building work relates
4. The impact on jobs of the project to which the building work relates, and
5. Whether the project to which the building work relates will contribute to skills growth.

More information & advice

Master Builders team of workplace relations experts is available to assist members with any queries they have about the Amended Code, the ABCC, or any other workplace relations matter.

Please contact us or call 1300 30 50 10.