The Western Australian Building and Construction Industry Code of Conduct 2016 (Code) commenced on 1 January 2017. The State Government developed the Code to ensure that government agencies expending public funds contract with building contractors that conduct themselves in a fair and responsible manner in their dealings with the State and the construction industry more broadly. In April 2017 the State Government released Implementation Guidelines (Guidelines). While largely a condensed summary of the Code, the Guidelines:
- clarify the underlying regulatory drivers behind the Code;
- clarify its scope of application; and
- elaborate on the content of certain obligations.
Read on for the rest of the analysis of Ciara O'Loughlin.
Underlying regulatory drivers
Although the Code has a number of purposes, the Guidelines stipulate that they are directed to support compliance, freedom of association, fair subcontracting practices and safety. A building contractor seeking to comply with the Code should pay particular attention to the above factors which are likely to be key drivers behind the interpretation and enforcement of the Code.
Scope of application
The Guidelines clarify the application and scope of the Code by explicitly describing how it applies to contractors undertaking State Building Work and Private Covered Building Work (each of which is defined in section 3, Part 1 of the Code and further explained in section 2 of the Guidelines).
A building contractor becomes subject to the Code upon submitting a tender response for State Building Work for the duration of the tender process and, if successful, the duration of the tender contract. A building contractor who is already subject to the Code must also comply with the Code with respect to any new private building work that it submits a tender for or enters into a contract to provide. Building contractors undertaking State Building Work should be aware of the flow-on application of the Code to private construction work undertaken whilst the building contractor is subject to the Code.
Elaborating on certain obligations
The Guidelines also:
- Clarify whether the Code applies to contractors undertaking maintenance work: Maintenance projects involving repair work may constitute 'Building Work', thus enlivening the application of the Code, whereas routine activities targeted at keeping a structure working are unlikely to do so.
- Clarify when contracts will be found to be harsh or unfair: The Code prohibits a building contractor from entering into a services contract which is harsh or unfair. The Guidelines summarise factors which may be considered in determining if a contract is unfair or harsh, such as pressure or unfair tactics.
- Clarify the requirements of a Workplace Relations Management Plan (Workplace Plan): The Code requires a building contractor who enters a contract for State Building Work exceeding $10 million in value to have a Workplace Plan in place prior to commencing the work. While the Code outlines the requirements of a Workplace Plan, the Guidelines provide greater detail, such as in relation to employee drug testing.
- Introduce an option for review of a Workplace Plan: A building contractor is not required to have the Building and Construction Code Monitoring Unit (Monitoring Unit) assess whether a Workplace Plan is compliant with the Code. However, the Guidelines provide that a building contractor may elect to do so. Building contractors should consider voluntary submission of their Workplace Plan to the Monitoring Unit to ensure compliance with the Code.
The Guidelines create an easy to use and practical source of information for building contractors. Industry participants should familiarise themselves with the Code and the Guidelines to ensure that they have adequate compliance measures in place.