The Building Code took effect as a legislative instrument from 1 February 2013. The Building Code replaces all previous versions of the Implementation Guidelines for the National Code of Practice for the Construction Industry, irrespective of when a project was originally tendered. The Building Codes explanatory statement states that the Building Code is intended to merely codify rather than change the obligations contained within the 2012 implementation guidelines. However, there are some differences which organisations need to be aware of. Some of the main changes are:

The Building Code took effect as a legislative instrument from 1 February 2013. The Building Code replaces all previous versions of the Implementation Guidelines for the National Code of Practice for the Construction Industry, irrespective of when a project was originally tendered. The Building Codes explanatory statement states that the Building Code is intended to merely codify rather than change the obligations contained within the 2012 implementation guidelines. However, there are some differences which organisations need to be aware of. Some of the main changes are:

  • Enterprise Bargaining: under the Building Code parties cannot refuse to consider a proposal made by a bargaining representative, such as a union, on the grounds that a third party, such as state government, has indicated that it will or will not procure its services if it agrees to the proposal. This is in direct conflict with the Victorian Code Implementation Guidelines (and potentially other states such as NSW if they introduce laws similar to Victoria).and causes a dilemma for parties who are required to commit to inconsistent state guidelines in order to qualify for state projects, exposing them to potential sanctions under the Building Code.
  • Engagement of non-citizens or non-residents: under the Building Code Pparties must ensure that they comply with Australian immigration law and that all its employees and independent contractors are lawfully entitled to be engaged. This appears to be included as a response to various Union’s concerns about the engagement of overseas workers in the Construction Industry.
  • Unwritten registered agreements or other agreements: previously unregistered written agreements of any kind (excluding common law employment contracts) were deemed inconsistent with the Implementation Guidelines 2009. Under the Building Code the prohibition on unregistered written agreements has been limited to terms, conditions or benefits of employment. As a consequence, this leaves parties exposed to bargaining for unregistered written agreements about a large number of other matters including community, welfare or charitable activities, environmental initiatives, workers health and well-being initiatives, and programs to reduce bullying, sexual harassment or workplace discrimination. Also, parties could potentially make oral agreements which might have the effect of undermining the intended operation of the Building Code.
  • Right of entry: previously the Implementation Guidelines 2009 required parties to ‘strictly comply’ with legislated right of entry requirements. The Building Code now requires parties to ‘comply with all right of entry laws and notes that the relevant laws may not regulate all circumstances in which a person (whether a permit holder or not) may enter a worksite. This less restrictive regime could potentially create difficulties for contractors who have relied on a strict application of right of entry laws.
  • Work health safety and rehabilitation (WHSR): there have been some subtle amendments to the wording of the WHSR obligations under the Building Code. Under the Building Code the minimum requirements for a management plan for WHS&R at a site are:
    • explicit management commitment to the plan;
    • employee involvement in the implementation of the plan;
    • arrangements for rigorous work practices analysis;
    • arrangements for proactive worksite analysis that anticipates and assigns roles and responsibilities and defines efficient procedures while on site;
    • arrangements for hazard identification, risk assessment and risk control;
    • arrangements for induction and task training including, with the consent of the contractor or participant, participation of the WHS&R representative for the site;
    • arrangements for appropriate case management and rehabilitation; and
    • arrangements for the efficient maintenance of records.

However, under the Implementation guidelines, the above, was referred to as a comprehensive management plan. Although, there is no suggestion of an intention to change the position of the Implementation guidelines, it is arguable that the amended wording could expand participants obligations with regards to work health safety and rehabilitation as the requirements are only considered to be a minimum not comprehensive. Building Industry participants need to watch this space.