Code red for non-compliance with new enterprise agreement restrictions06 December 2016
Three years after the Abbott Government first introduced the proposed legislation, the controversial Building and Construction Industry (Improving Productivity) Bill 2016 has been passed by Commonwealth Parliament. Minister for Employment, Senator the Hon Michaelia Cash has immediately drawn upon her powers under the Act to introduce the Code for the Tendering and Performance of Building Work 2016.
The Code replaces the Building Code 2013 and represents a significant change to workplace relations for the building and construction industry, particularly regarding enterprise agreements. From 2 December 2016, building companies that tender for Commonwealth-funded building projects must comply with the Code or they won't be awarded work.
Significantly, under the Code, companies are prohibited from having enterprise agreements that contain clauses:
- requiring consultation with a union about engaging subcontractors
- limiting the head contractor's right to engage subcontractors, unless the subcontractors apply wages and conditions at least at the same level as the head contractor's enterprise agreement
- limiting the right of the employer to make decisions about redundancy or redeployment based on operational requirements
- requiring the presence of union logos and mottos on company clothing and equipment or the flying of a union flag from a structure on site, or
- requiring the employer to create and maintain a designated area or shed for exclusive use by a union and its members.
Unregistered agreements and side deals to circumvent the Code are also prohibited.
Building companies that have non-compliant enterprise agreements made before the new Code's commencement are still eligible to be awarded Commonwealth-funded building work but have until 29 November 2018 to become Code-complaint.
The obligations in the former Building Code will continue to apply where expressions of interest or tenders were issued before the new Code's commencement.
Click here to view the Code.