Renae Harding Stephen Kemp
Federal Building Code 2016 –
impact on enterprise agreements
Does your business have an enterprise
agreement? If so, you need to be aware
that the new Code for Tendering and
Performance of Building Work 2016 (Code)
has likely prohibited a number of the clauses
in existing enterprise agreements. You only
have until 1 September to rectify this if you
want to undertake Commonwealth funded
building work.
Background
Since 2 December 2016, the ABCC has been
back in town and the new Code applies,
replacing the FWBC and the former Building
Code 2013.
The Code applies to Building Industry
Participants from the time they tender for
Commonwealth funded building work until
they either are unsuccessful in the tender
or, if successful, have completed the
tendered work.Once a Building Industry Participant becomes
subject to the Code, the company and its
related entities must comply with the Code on
all of their new projects, including projects that
are privately funded (with some exceptions). In
addition, it is the company’s responsibility to
ensure that the subcontractors it engages also
act consistently with the Code.Tender lodged before
2 December 2016Tender lodged between
2 December 2016 and
17 February 2017Tender lodged between
17 February 2017 and
31 August 2017Tender lodged on or after
1 September 2017Enterprise agreements
made on or before
24 April 2014Companies covered by non-compliant agreements are eligible to tender for and be awarded
Commonwealth funded building work (provided the agreement hasn’t been varied)Enterprise agreements
made between
24 April 2014 to
2 December 2016Companies covered by
non-compliant agreements
are eligible to be awarded
Commonwealth funded
building workCompanies covered by
non-compliant agreements
are eligible to be awarded
Commonwealth funded
building work before
29 November 2018Companies covered by
non-compliant agreements may
tender for Commonwealth funded
building work. However, these
Companies can only be awarded
Commonwealth funded building
work before 1 September 2017 if
the agreement does not apply to
that contractor in respect of that
building workCompanies covered by
non-compliant agreements
cannot tender for or be
awarded Commonwealth
funded building workEnterprise agreements
made on or after
2 December 2017Companies covered by non-compliant agreement are not eligible to tender for and be awarded
Commonwealth funded building workImpact on enterprise agreements
The Code restricts a wide range of
practices. One of the ways the Code does
this is by prohibiting certain clauses in
enterprise agreements.When the Code commenced, companies
had until 29 November 2018 to renegotiate
any non-compliant enterprise agreements.
However, the deadline this has been brought
forward to 1 September 2017.A significant immediate effect of this change is
that a Building Industry Participant with non-
compliant enterprise agreements cannot be
awarded Commonwealth funded building work38 UPDATES legal
MAY–JUNE 2017