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The 2016 Building Code applies to all Commonwealth-funded building work with an EOI or tender submitted after 2 December 2016. It also applies to related entities of a business (even if the related entity is not a tenderer) and on a builder's EBA for private projects, but not on a subcontractor's EBA on private work.
A tender can apply to work between a builder and federal agency, a subcontractor and builder or a sub-subcontractor and subcontractor.
Tendering for federal work
If you’re covered by an enterprise agreement made after 25 June 2014, you must obtain a letter of compliance from the Australian Building and Construction Commission (ABCC). The letter of compliance is to confirm that your agreement complies with Section 11 of the 2016 Building Code, which stipulates that an EBA mustn't contain terms or conditions inhibiting freedom of association, workplace flexibility or the prerogative of management to determine labour and contractors.
If you’re covered by an enterprise agreement made before 25 June 2014, a Modern Award, or another lawful workplace arrangement, you can use the ABCC's Self-Declaration A to demonstrate your eligibility to express interest and tender for Commonwealth-funded building work.
Is your agreement code compliant?
If your enterprise agreement was made:
- After 2 December 2016 – you’re not eligible to tender unless your agreement complies with the 2016 Building Code
- Before 2 December 2016 and you submitted an EOI or tender before 17 February 2017 (even if the tender was awarded after that time) – your agreement doesn't need to comply with the 2016 Building Code until 28 November 2018
- Before 2 December 2016 and you submitted an EOI or tender between 17 February 2017 and 1 September 2017 – your agreement must comply with the 2016 Building Code before a contract can be awarded
- Before 2 December 2016 – you’re not eligible to tender after 1 September 2017 unless your agreement complies with the 2016 Building Code.
Read this ABCC factsheet for more information on when your enterprise agreement needs to be code compliant.
Non-compliant enterprise agreements
Some enterprise agreement clauses found in CFMEU or similar enterprise agreements are non-compliant. They include clauses on:
- Union attendance at employee induction
- Two-hour union activity meetings
- Deducting union dues
- Union entry
- Hour of work limits
- Any clause requiring third party (union) approval
- RDOs fixed calendar
- Engagement of subcontractors or labour hire
- 'Jump up' clauses.
An enterprise agreement that has been approved as compliant doesn't override the ABCC's authority to audit and assess practices and behaviours that would fail to protect freedom of association.
How to become code compliant?
If you need to vary your enterprise agreement to make it code compliant, you require a simple majority (50 per cent, plus one) of employees to support the changes.
If you have a CFMEU enterprise agreement that isn’t past its nominal expiry date, you must consult with the CFMEU about any variations.
The minimum period for making a new enterprise agreement is 21 calendar days between the first notice to make a new agreement and the time of voting. However, only seven days' notice and consultation is required before voting to amend an existing enterprise agreement.
If you need help with the bargaining process, assessing existing agreements or preparing and lodging code-compliant agreements, contact Master Builders’ Workplace Relations team.
Need more information?
If you haven’t found the answer to your questions on our website, give us a call or email us.