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Last week we reported on the amendments to the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). These changes commenced from Friday 17 February and reduce the two-year transition period for enterprise agreement (EA) content rules by more than a year. You can read our previous article here.

Off the back of these changes, the Senate has amended the Code for the Tendering and Performance of Building Work 2016, which commenced yesterday. This aligns the 2016 Code with last week's changes to the Act and provides additional transitional exemptions to assist building contractors with Code compliance.

The additional transitional exemptions are narrow in scope and are likely to apply to only a small number of building contractors. Under the additional exemptions, the EA content rules of the 2016 Code also do not apply to:

  • building contractors who have EAs made before 25 April 2014 and that have not been varied under the Fair Work Act 2009 (Cth), and 
  • building contractors who are covered by multiple enterprise agreements made before 2 December 2016, provided that
    • the contractor's expression of interest (EOI) or tender for Commonwealth-funded work is submitted after 17 February 2017 and before 1 September 2017, and

    • a non-code compliant EA does not apply to the contractor for the work that is the subject of the EOI or tender.

Revised EA compliance deadlines for building contractors

Date non-compliant EA made Date EOI or tender lodged Applicable Code EOI or tender able to be lodged Contract able to be awarded Able to undertake work Compliance date
Before 25 April 2014 and not varied in line with s 207 of the FW Act Before
2 December 2016
2013 Yes Yes Yes 2013 Code applies to that project
On or after
2 December 2016
2016 Yes Yes Yes 2016 EA content rules do not apply to that project
Between 25 April 2014 and 2 December 2016
OR
Before 25 April 2014, but varied in line with s 207 of the FW Act after 25 April 2014
Before
2 December 2016
2013 Yes Yes Yes 2013 Code applies to that project
Between
2 December 2016 and 17 February 2017
2016 Yes Yes Yes 2016 EA content rules do not apply to that project provided the contract is awarded before 29 November 2018
On or after 17 February 2017 2016 Yes Yes but only if contractor has multiple enterprise agreements made before 2 December 2016, and non-compliant EA does not apply to that project Yes but only if contractor has multiple enterprise agreements made before 2 December 2016, and non-compliant EA does not apply to that project 2016 EA content rules do not apply to that project provided the contract is awarded before 1 September 2017
On or after
2 December 2016
On or after
2 December 2016
2016 No No No 2 December 2016

 

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