Contract Requirements Might Breach Building Code 2013

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Thursday, April 28th, 2016
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Dulux Exsulite Construction – 300 x 250 (expire Dec 31 2016)
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Contractors should take care, when entering into contracts for building work, not to agree to engage in conduct that may breach the Building Code 2013.

Whilst building industry participants must comply with applicable laws and industrial instruments (such as enterprise agreements), a requirement to comply with a provision in a building contract is not a defence to a Building Code 2013 breach.

Examples of these types of contractual provisions are outlined below.

Provisions that require the contractor to allow union delegates and/or officials to attend inductions of new employees and include union information and membership forms in induction packs.

When a new employee is inducted onto site, they have not yet commenced work and are particularly vulnerable to any pressure to join a union. Allowing union delegates or officials unsupervised access to inductees and including union information and membership forms in induction packs does not protect freedom of association.

Provisions that require the contractor to allow union delegates and/or officials to access employee records including the name and address of the employee.

Disclosure of an employee’s personal information, without the employee’s consent, is contrary to the Privacy Act 1988 and section 15(2) of the Building Code 2013.

Provisions that require a contractor to allow union delegates and/or officials to meet with new employees during normal working hours and to advise new employees of the agreed meeting time.

The Building Code 2013 requires contractors to have policies in place to protect freedom of association. Notifying employees of a pre-arranged union meeting during normal working hours could lead new employees to believe union membership is required by the employer.

Provisions that require a principal contractor to ensure that a subcontractor’s employees receive the same terms and conditions as a principal contractor’s employees.

The Building Code 2013 states that building contractors or building industry participants must not engage in activity that requires or unduly influences a subcontractor or supplier to have particular workplace arrangements in place.

Provisions that require a subcontractor to ensure that a second tier subcontractor’s employees receive the same terms and conditions as a subcontractor’s employees.

The Building Code 2013 states that building contractors or building industry participants must not engage in activity that requires or unduly influences a subcontractor or supplier to have particular workplace arrangements in place.

Engaging subcontractors and individuals nominated by a union

FWBC is aware that contractors in some regions may have been given a list of union approved subcontractors and encouraged to only engage subcontractors if they appear on the list.

The Building Code 2013 requires contractors to ensure that requirements are not imposed, or attempted to be imposed, on a contractor, subcontractor or employer to hire an individual nominated by a union. Contractors who agree to, or impose these types of requirements may breach the Building Code 2013.

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