Fair Work Building & Construction is responsible for investigating and prosecuting alleged instances of coercion, unprotected industrial action and freedom of association and right of entry breaches.
Importantly, the agency is also responsible for monitoring compliance with the Federal Government Building Code 2013 and taking action when there are breaches. FWBC has recently moved to a strict enforcement policy, after a period dedicated to helping companies understand the requirements of the Building Code.
The Building Code is aimed at saving taxpayers money. It is about the Government using its buying power as a client to promote a productive and harmonious building and construction industry.
Each year, billions of taxpayer dollars are spent on building and construction projects around the country. When a taxpayer-funded hospital or road is being built, the Federal Government is the client. This is no different to you having a home built, where you are the client. As the client, it is important you get value for money and that the site is free from unlawful behaviour.
The Government takes its role as a client seriously. As such, if you want to tender for work on a Federal-government funded project, you have to comply with the Building Code on the Federal project and on all of your future private projects.
Just as you would want a reputable builder working on your home, the Federal Government wants to ensure acceptable behavioural standards are met on the projects it is funding and that they are free from unnecessary delays.
To comply with the Building Code, contractors must follow workplace laws on site. These include freedom of association and right of entry laws. The site must be free from coercion and undue influence or pressure to make over-award payments.
Importantly, there are strict reporting requirements associated with the Building Code. In short, if there’s been a potential Code breach on site or industrial action, FWBC must be notified. The bottom line is, if something potentially unlawful is happening on site, report it or you risk breaching the Code.
Ultimately, compliance with all of these measures helps the job to run smoothly, preventing delays which cost taxpayers big dollars.
As with all rules, they will only be followed if there are consequences for breaking them. The consequences for breaches of the Building Code are sanctions issued by the Code Monitoring Group or the Minister for Employment. FWBC will recommend sanctions which may be a formal warning or exclusion from tendering for Federal Government work for a fixed period of time. With such huge amounts of money on the line, and Government work making up significant percentages of some construction companies’ balance sheets, there is a strong incentive to comply.
One of the biggest myths about the Building Code is that it applies to unions. It does not. Unions cannot be sanctioned. It does, however, provide employers a huge incentive and support to say no to unlawful behaviour on their sites whether it be union officials or workers doing the law-breaking.
There is no room in the Building Code for turning a blind eye to bad behaviour, which is a common strategy if there is a short-term gain to looking the other way. Head contractors must take proactive steps to prevent freedom of association breaches on their site. They must also proactively ensure that subcontractors comply with the Building Code.
Previously, FWBC offered voluntary audits to companies who wanted to ensure they were code compliant. If breaches were found, the company was given time to remedy them. The organisation has now moved to a strict enforcement approach. You run your site and conduct on the site is your responsibility.
FWBC is proactively attending projects and checking for Code compliance. Projects will be monitored for compliance through site visits, inspections and audits. Subcontractors will be interviewed to test head contractors’ claims about on-site procedures and policies. If FWBC identifies serious breaches which cannot be rectified, it will recommend the Minister impose sanctions on the company.
Before it was shut down earlier this year, the Victorian Construction Code Compliance Unit (CCCU) existed to enforce a building code on Victorian projects funded by the State Government.
After auditing McConnell Dowell’s Springvale Level Crossing Removal Project in 2013, the CCCU – which I worked for at the time as director – determined that McConnell Dowell had breached the Victorian building code when it failed to comply with its own workplace relations management plan in the way that it engaged a labour hire company.
At the CCCU’s recommendation, the Minister sanctioned McConnell Dowell. This prevented the company from tendering for any Government-funded building and construction work for three months.
FWBC will not hesitate to do the same.
Ultimately, FWBC wants all sites to be compliant with the Building Code. Just as much as the organisation is here to enforce the code, it is here to help you understand it and ensure you are compliant.