Following the commencement of the Building and Construction Industry (Improving Productivity) Act 2016, the Australian Building and Construction Commission (ABCC) commenced operation on 2 December 2016, replacing FWBC. Also on 2 December 2016, the Minister for Employment, Senator the Hon Michaelia Cash issued the new building code. The new code is an amended version of the advance release of the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (Building Code 2014) – and is now known as the Code for the Tendering and Performance of Building Work 2016 (Building Code 2016). Building Code 2016 applies to companies who submit an expression of interest or tender for Commonwealth-funded building work from 2 December 2016.

Members will recall from previous advice, that enterprise agreements made from commencement of the new code (i.e. 2 December 2016) must now comply with the Building Code 2016 in order to be eligible to be awarded Commonwealth-funded work. However, as a result of amendments made by Senator Hinch, building industry participants covered by agreements made prior to 2 December 2016 have until 29 November 2018 to ensure their agreements are compliant with the Building Code 2016.

Contractors wishing to undertake federally funded building work subject to Building Code 2016 will now require a letter of compliance from the ABCC to confirm they are eligible to tender. It is important to note that this requirement applies regardless of a contractor’s workplace arrangements, meaning that it includes companies under the modern Award.

The ABCC have recently confirmed that they will issue letters of compliance for:

• Enterprise agreements (EBAs) made on or after 2 December 2016 that meet Building Code 2016 requirements (an ABCC Determination);
• EBAs made before 2 December 2016 (this letter of compliance is only valid until 28 November 2018); and
• Modern Award arrangements or other lawful workplace arrangements.

The ABCC will also provide preliminary advice on whether draft EBAs meet the requirements of Building Code 2016. Consistent with the previously circulated Building Code 2014 interim assessment conducted by the Department of Employment, Master Builders understands that the CFMEU’s Pattern EBA 2016-2018 will be found to be non-compliant with Building Code 2016, where made on or after 2 December 2016. Master Builders expects confirmation of this assessment in the coming weeks.

Contractors seeking a letter of compliance (or preliminary advice) from the ABCC will need to complete and submit this form. The ABCC will also be publishing further details on Building Code 2016 requirements on their website over the coming weeks.

Members seeking further information are encouraged to contact the IR Department on (03) 9411 4560.