The Government Procurement (Secure Local Jobs) Amendment Act 2018 has been passed in the ACT Legislative Assembly. The Act underpins the introduction of the Secure Local Jobs Code and will apply to businesses tendering for ACT Government construction, cleaning, security and traffic management work from 15 January 2019. At a later date, the Code will apply to other ACT Government funded work, valued at least $200,000.

The Code subjects contractors to a range of additional requirements from the time an entity responds to an Approach to Market for work funded by the ACT Government.

Amongst other requirements, the Code provides that:

• All contractors and subcontractors engaged on ACT Government work must hold a valid Code Certificate at the time a response is submitted to any Approach to Market.
• Details of all proposed subcontractors are to be provided to the ACT Government prior to their engagement on ACT Government Funded Work. Contractors must ensure that all subcontractors engaged by the contractor are Code Certified and must ensure, so far as is reasonably practicable, that subcontractors comply with the Code and take remedial action to rectify non-conformances.
• All contractors and subcontractors must provide the ACT Government with a contact person, workforce locations and working hours for the purpose of assisting lawful right of entry under Part 3-4 of the Fair Work Act or Part 7 of the Work Health and Safety Act 2011 (ACT). Contractors must update the Government within 14 days of a change to the above information. The information will be kept in a register which may be accessed for the purpose of exercising a lawful right of entry.
• In order to become, and remain, a Code Certified Entity, a contractor must comply with their industrial relations, WHS and tax obligations and must notify the Territory within 7 days of any ruling made against either itself or one of the contractor’s subcontractors on ACT Government Funded Building Work.
• If a Code Certified Entity has more than one employee who is a member of an eligible union, that entity must facilitate the conduct of an election amongst those employees for a union workplace delegate. Obligations are placed on the Code Certified Entity to institute practices and procedures to facilitate the workplace delegate’s role.
• Code Certified Entities may be required to provide all employees who are eligible to join the union with application forms for membership and to facilitate meetings with the elected workplace delegate.
• Code Certified Entities must ensure new employees receive induction training tailored to their duties and workplace from an appropriately skilled and experienced person. A draft of the model terms and conditions to be inserted into contracts for ACT Government Funded Work provides that a contact officer may require a union workplace delegate to attend staff induction sessions.
• Where Code Certified Entities employ members of an eligible union, they must make such arrangements as are necessary to allow bargaining representatives from the relevant union to participate in enterprise agreement negotiations.

Contractors may be able to seek exemption from obligations under the Code which conflict with Commonwealth laws.

A spokesperson for the ACT Government has indicated that although the new Code will apply to construction companies tendering for ACT Government building work from 15 January 2019, the Act will not require all companies which already hold an IRE Certificate to be re-certified.

Much like the existing IRE Certification scheme applicable to ACT Government building work, an Audit Report will need to be procured from an Approved Auditor in order to become Code Certified. The Standard period of a Code Certificate will be 18 months, with a maximum period of 30 months. Ordinarily, the costs associated with the conduct of an audit will be met by the entity seeking Code Certification.

The Australian Industry Group is currently in discussions with the ACT Government regarding potential conflicts between the Code and the Fair Work Act and the Code for the Tendering and Performance of Building Work 2016.

If you would like more information about tendering in construction please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about the application of the Building Codes nationally please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.