To ensure an effective implementation of the Code, the Australian Government publishes implementation guidelines (Guidelines) which must be complied with by a party to the construction industry if they wish to do business with governments or work on government construction projects. The Guidelines were last reissued in June 2006 and the Rudd Government has published new Guidelines to take into account, amongst other matters, the changes to workplace relations legislation by the introduction of the Fair Work Act 2009.

The new Guidelines make a number of changes to the manner in which the Australian Government will consider tenders to perform construction work. These include:

• limiting the application of the Guidelines to parties that participate in on-site activities (effectively excluding suppliers unless they perform work on a building site)
• allowing for preference to be given to tenderers for government work who have demonstrated a commitment to:
• adding and/or retaining trainees and apprentices
• increasing the participation of women in all aspects of the construction industry
• promoting employment and training opportunities for Indigenous Australians in regions where significant indigenous populations exist
• allowing entities to waive the Guidelines in limited circumstances subject to a strict public interest test
• deeming parties who use unregistered written agreements that govern terms and conditions of employment and associated matters (but do not include individual common law contracts) as non-compliant with the Code and Guidelines (whether those agreements are compliant with the Code and Guidelines or not)
• deeming sham contracting arrangements as being inconsistent with the Code and Guidelines referring to the Fair Work Act 2009 in relation to right of entry requirements and affording employers less power to rely on the Guidelines to regulate right of entry. ( click here to read our January 2009 update on right of entry).

It is crucial that the contracts and arrangements of those intending to tender for or perform government work now comply with the Code and the new Guidelines (including the new federal workplace relations laws).

The full story is available at Mondaq.