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Code Compliancy Dispelling the Myths. Code Compliancy - Dispelling the Myths Australian Building and Construction Commissioner Neale Smith & Kelvin Mooney.

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Presentation on theme: "Code Compliancy Dispelling the Myths. Code Compliancy - Dispelling the Myths Australian Building and Construction Commissioner Neale Smith & Kelvin Mooney."— Presentation transcript:

1 Code Compliancy Dispelling the Myths

2 Code Compliancy - Dispelling the Myths Australian Building and Construction Commissioner Neale Smith & Kelvin Mooney

3 National Code Compliance Kelvin Mooney Neale Smith Code Compliance Investigator Team Leader National Code

4 The ABCC is willing to work with you and your subcontractors to achieve Code Compliance.

5 Further information Kelvin Neale 0434 654 962 0434 567 795 For more detailed information and advice visit OR contact the ABCC hotline on 1800 003 338

6 Code Compliancy - Dispelling the Myths Wilson Ryan and Gross Lawyers Ben Keenan

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9 Obtaining Certification The Assessment Process 1. Identify the applicable industrial instrument for your business.  Complete the online lodgement procedure to request an assessment from the Department of Education, Employment and Workplace Relations (“DEEWR”): uction/CodeAssessmentOnline/Pages/Home.aspx  Retain correspondence from DEEWR as evidence. Industrial arrangements are Code Compliant. 9

10 10 Which Instruments Comply with Each Version of the Guidelines? Applicable Industrial Instrument2006 Guidelines2009 Guidelines Modern AwardsCompliant Registered Collective/Enterprise Agreements Compliant Unregistered/Draft Collective Agreements Potentially Compliant Non-compliant Common Law Agreements Potentially Compliant Potentially Compliant

11 11 Ensuring Common Law Agreements are Code Compliant “Objectionable” clauses that offend/breach the guidelines: 1.Clauses that can result in an unpredictable variation in the Contractor’s base wage costs (e.g. Right of casual employees to elect to become part-time or full-time after six (6) months); and 2.Clauses that mandate/promote union membership or involvement in the workplace. Legacy of the “WorkChoices” era in which the Howard Government sought to limit employee entitlements and the impact of unions on the cost of doing business.

12 12 Ensuring Common Law Agreements are Code Compliant All Contractors, whether an incorporated company, partnership, trust or sole trader, now come under the Fair Work Act 2009 (The Act) and the Modern Awards. Vast majority of employees in construction industry will be covered by either a Modern Award or Registered Collective/Enterprise Agreement. If Common Law Agreement acknowledges the jurisdiction of an applicable Modern Award or Registered Agreement and does not include any “objectionable” clauses, should obtain Code Compliant status.

13 13 Individual Flexibility Agreements Many employers who are subject to a Modern Award wish to pay their employees a flat hourly rate inclusive of all Award entitlements such as allowances, penalty rates, leave loading, etc. Only two (2) classes of Agreement can lawfully perform this function: 1.Registered Collective/Enterprise Agreements; and 2.Individual Flexibility Agreements. Continued..

14 14 Individual Flexibility Agreements A specific class of Common Law Agreement created by the Modern Awards. Allows employers to alter/amend the application of any clause in a Modern Award or Registered Agreement that deals with: 1.Arrangements about when work is to be performed; 2.Over-time rates; 3.Penalty rates; 4.Allowances; and 5.Leave loading. An Individual Flexibility Agreement must identify each clause of the applicable Modern Award/Registered Agreement being amended, how it is being amended and why this will result in the employee being left better off overall than if they were employed solely in accordance with the Modern Award/Registered Agreement.

15 15 Record of Compliance Response from DEEWR will either confirm the Industrial Arrangements are Code Compliant or identify those clauses of the instrument that are non-compliant. Subject to limitations in the Act, instruments that fail to achieve compliance can be amended to delete the non-compliant clauses and be resubmitted for assessment. Letter from DEEWR confirming instrument is compliant is all the evidence you should require.

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17 17 Completing the Assessment Process Online lodgement requires: 1.Basic detail of business (i.e. the ABN, trading name, etc); and 2.Copy of any Agreement to be assessed for uploading with application. Can assist contractors to complete this process for a fee of $300 plus GST. Any questions, please contact: 1.Mrs Michelle Morton, Accredited Workplace Relations Specialist; 07 4760 0100; or 2.Mr Ben Keenan, Workplace Relations Practitioner; 07 4760 0133.

18 Code Compliancy - Dispelling the Myths Integrated HR Solutions Mike Smith

19 The National Code and OHS&R Code Compliancy - Dispelling the Myths Seminar 20 Oct 2010 Cairns 1

20 Welcome & Introduction Michael Smith Integrated HR Solutions 2

21 Disclaimer This presentation is intended to provide general information only and does not constitute legal advice. Whilst every effort has been taken in preparing this presentation, no responsibility is accepted by the author for the accuracy of the information contained therein, and all liability is expressly disclaimed for any damage which may arise from any person acting on any statement or information contained herein. Integrated HR Solutions 3

22 Session Outline  National Code  Implementation Guidelines  OHS Accreditation Scheme  OHS Management Systems Integrated HR Solutions 4

23 National Code of Practice for the Construction Industry 1997 states: “OHS&R obligations must be actively addressed by all industry participants. Unequivocal commitment to OHS&R management must be demonstrated in systems that address responsibilities, policies, procedures and performance standards to be met by all parties involved in a project and are directly linked to quality OHS&R outcomes.” The National Code and OHS&R Integrated HR Solutions 5

24 Establish a comprehensive site specific OHS&R management plan that includes:  management commitment  employee involvement  work practices analysis  roles and responsibilities  defines procedures  hazard identification, prevention and control  induction and task training  rehabilitation  record keeping Implementation Guidelines (s6.10.1, s6.10.2) Integrated HR Solutions 6

25 The OHS&R management system must be:  fully documented  clearly communicated  defines roles, duties and responsibilities improving OHS&R performance:  prevention rather than correction  proactive measures  “the way we do things around here” (our safety culture) Building & Construction OHS Accreditation Scheme:  administered by Federal Safety Commissioner  Building & Construction Industry Improvement Act 2005 Integrated HR Solutions Implementation Guidelines (s6.10.3, 6.10.4, 6.10.5) 7

26 Australian Government Building & Construction Accreditation Scheme:  designed to improve industry OHS&R performance  fosters culture of safe work (as well as on budget and on time work)  prerequisite of OHSMS certified to AS/NZS 4801  only accredited head contractors can enter into contracts for building work that is funded directly or indirectly with the Australian Govt (subject to thresholds)  head contractors must demonstrate effective sub contractor OHS&R management Accreditation Scheme Integrated HR Solutions 8

27 The Scheme only applies to head contractors, however, head contractors must demonstrate effective sub contractor OHS&R management. This includes:  engagement and supervision of subcontractors as if they were employees, and  consultation and communication regarding OHS Effective subcontractor OHS management is the degree to which subcontractor OHS management arrangements are demonstrated across building and construction projects. Accreditation Scheme Integrated HR Solutions 9

28 Implement a Safety Management Plan that includes:  a review of the work that is to be performed  hazard identification, risk assessment & control procedures  how legal & other relevant OHS&R requirements are met  provision for tender / contract documentation to include OHS requirements Safety Management Plan Integrated HR Solutions 10

29 Define roles & responsibilities for OHS&R that includes:  documentation of specific OHS&R tasks & duties for all workers (use of job descriptions / duty statements)  determine responsibility for implementing and maintaining the Safety Management Plan  communication of OHS&R responsibilities to all workers Responsibilities & Resources Integrated HR Solutions 11

30 Perform Site Inductions that include:  instruction in site specific safety rules & emergency procedures  minimum induction requirements have been met prior to work commencing  checks are performed prior to work commencing to ensure appropriate licensing of workers Site Inductions Integrated HR Solutions 12

31 Undertake communication & consultation activities that includes:  regular toolbox and pre-start meetings are held to communicate and discuss OHS&R issues  all consultation and communication is recorded  site notice board or safety bulletins are used as a regular source of OHS information Communication & Consultation Integrated HR Solutions 13

32 Provide training and education (additional to induction) that includes:  safety awareness  relevant parts of the Safety Management Plan  tasks / work activity  specific roles and responsibilities  assessment of employee competencies for their tasks  regular review & update of competencies/qualifications  maintain records of training and competencies Training & Competency Integrated HR Solutions 14

33 Undertake risk management activities that are documented in a procedure for hazard identification, risk assessment and control, and workers are trained in its use. This includes:  procedure for JSA’s and SWMS  SWMS are completed and signed prior to work commencing  SWMS are regularly reviewed and updated in consultation with workers Risk Management Integrated HR Solutions 15

34 Implement proactive management of workplace injury and injured workers’ rehabilitation and return to work that includes:  return to work policy  responsibility for the program is assigned  return to work education  injury reporting  employer & injured worker participation  suitable duties programs  appropriate case records management Injury Management & Rehabilitation Integrated HR Solutions 16

35 Conduct OHS&R inspections & audits that include:  a procedure is documented to regularly inspect facilities, plant, substances etc.  a formal inspection and audit schedule is in place  all workplace participants are involved in the inspection process  corrective actions developed in consultation with workers and documented in SWMS Inspections & Audits Integrated HR Solutions 17

36 Establish a system of document management for OHS&R documents and records that includes:  a regular review of documents to remove out of date information  documents contain dates and version numbers  documents are filed and accessible  documents are retained (minimum 7 years) Document Control Integrated HR Solutions 18

37 Summary In this presentation we have discussed:  the Code and Guidelines  the OHS Accreditation Scheme  the requirements of an OHSMS “The reason an enterprise sets out to achieve Best Practice is that it simply makes good business sense.” Towards Best Practice Guidelines APCC 1999 19

38 Code Compliancy - Dispelling the Myths Hansen Yuncken Tracey Steinhardt & Ray Gibson

39 39 Head Contractor Experience Presenters: Tracy Steinhardt – Project Administrator Ray Gibson – Senior Project Manager National Code Compliance – Dispelling the Myths

40 Head Contractor Experience Introduction  Hansen Yuncken – established in Cairns since 2007  one of Australia's largest privately owned construction companies, recently completing the Cairns Airport redevelopment project  James Cook University School of Dentistry, 2006 Guidelines  improvements to NCOP since then >workplace agreements - reflects Fair Work Act >improvements with regard to minor purchases  benefits implementing guidelines >achieves a high standard in OH&S, tendering, management >quality systems - all working to same guidelines >improved profit due to better management >no lost time due to industrial action

41 Head Contractor Experience Requirement of Subcontractors to Head Contractor (Paperwork) With Tender 1.DEEWR letter (workplace arrangements comply) 2.‘Undertaking/Declaration of Compliance’ (commitment to comply) * 3.‘National Code Compliance Checklist’ (commitment to comply) Post Tender 1.Statutory Declaration with each progress claim (that confirms continuing compliance with NCOP, payment of subcontractors / suppliers / employees) 2.signed subcontract agreement incorporating NCOP 3.Safe Work Method Statements that comply with Hansen Yuncken and Federal Safety Commission requirements *

42 Head Contractor Experience Requirement of Subcontractors NCOP (Further Action)  site conduct – freedom of association / no unduly influence  ensure subcontractors & suppliers comply *  continuing compliance with guidelines  ensure subcontractors / suppliers / employees are paid before making progress claims (as declared in your Statutory Declaration)

43 Head Contractor Experience Challenges Overcome  achieving compliance of Work Method Statements under Federal Safety Commission requirements: >site specific >confusion of hazards with risks >step by step outline of safe steps involved in work >concise / brief >existing trade knowledge – not an assumption  not only the DEEWR letter  continuing compliance with guidelines  ensuring subcontractors / suppliers / employees are paid before making progress claims  ensuring subcontractors / suppliers comply with NCOP

44 Head Contractor Experience What Needs to Happen  suppliers and subcontractors to formalise their Workplace Agreements and submit to DEEWR for compliance  complete and submit letter & undertaking/declaration with tenders (even if it not requested)  continue to comply and ensure your subcontractors/suppliers comply Benefits of This  ability of subcontractors / suppliers to tender on more projects  improved management of projects Questions ?

45 Code Compliancy - Dispelling the Myths TCS Construction Dawson Wilkie

46 Code Compliancy - Dispelling the Myths Building Industry Online Tanya Stainton

47 Building Industry Online Web Portal Connecting the Construction Industry BIO delivers an online Networking Project Management Communication Solution

48 Benefits to Builders Easy access to both your private profile members and BIO’s open market members who are registered code compliant subcontractors for projects subject to the National Code of Practice. Simplifies contractual obligations – Builder is always in control. BIO membership includes unlimited projects with unlimited document upload. Inbuilt notification / correspondence system makes managing projects through tender and live construction (addendum’s, changes and updates ) – quick and easy. Building Industry Online

49 Benefits for the Subcontractor / Supplier Links your full profile directly to Builders working on National Code and other Domestic, Commercial and Government projects. Ensures that builders have access to all the detail they need - contract compliance documentation can be held on file. Allows you easy access to project documentation that can be downloaded - all at once, by folder group or through individual selection. Links you directly to the BIO Printers in your chosen regions. Substantial savings on offer for BIO Member print requests. Cairns Region – Copy Shop Business Center - A1 - $1.55. normal price $ 2.20. Building Industry Online

50 Building Industry online Projects are linked to members by regional location. Code Compliance Filters connects you directly to members who have registered as having this certification. Building Industry Online


52 Profile has detail of DEEWR reference number A copy of their Code Compliance certification Additional Contract Compliance information.

53 Building Industry Online Builders choose who they wish to link too. BIO provides a system to send invitation to Tender Letters as well as specific project guidelines to chosen team members.

54 Building Industry Online Projects can be left “open” to receive expression of interest. Builder can view a members profile before clicking “allow” – to give access to documentation.

55 Questions? BIO connects 4000 industry members across Queensland and is expanding on National Level in 2011. Building Industry Online

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