11 Oct 2012

Planning to tender for Victorian building and construction work? Check your OH&S framework!

by Stuart Pill, Lauren Townsend

Tenderers for Victorian Government building and construction work won't succeed if they fail to comply with the updated Code of Practice, including new OH&S requirements.

The Victorian Government has made its mark on the construction industry through its revamp of the regulatory framework under the "Victorian Code of Practice for the Building and Construction Industry".

From 1 July 2012, the "Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry" have clarified the Government's expectations of construction industry participants in the industrial relations and safety space. This article summarises the application of the Guidelines and the key OH&S implications for Victorian construction industry participants.

The Victorian Code of Practice

The Code establishes the minimum standards of practice and behaviour that the Victorian Government expects of parties involved in public construction. Since 2003, it has been supported by a set of interpretive guidelines known as the "Industrial Relations Principles".

From 1 July 2012, those Principles ceased to apply to new public construction projects and have been replaced with the more comprehensive Guidelines, which are intended by the Government to be the first point of reference when determining how to comply with the Code. The framework has been further enhanced with the introduction of the Model Tender and Contract Documentation.

Who must comply with the Guidelines?

The Guidelines apply to all public building and construction work that is the subject of an expression of interest or request for tender on or after 1 July 2012.

Public building and construction work includes:

  • all organised activities concerned with demolition, building, landscaping, maintenance, civil engineering, process engineering, mining and heavy engineering; and
  • building refurbishment or fit out, installation of building security systems, air conditioning systems, computer and communication cabling, building and construction landscapes;

and excludes mining operations, the maintenance of building systems, landscaping such as lawn mowing, pruning and other horticultural activities and cleaning buildings.

A contractor, subcontractor, supplier, consultant or the like wishing to tender for Victorian Government building or construction work must be compliant with the Guidelines from the date they first express interest in, tender for, or contract with the Government to perform public building and construction work. The Guidelines are also expressed apply to privately funded building and construction work unless they are expressly excluded.

The Guidelines supplement and apply in addition to the National Code of Practice for the Building and Construction Industry, and apply subject to any inconsistency with the National Code and the National Implementation Guidelines and of course other laws including the Fair Work Act.

What OH&S standards do you have to apply?

A significant point of difference between the old Principles and the new Guidelines is the emphasis placed on OH&S, with an entire section of the Guidelines dedicated to workplace safety. If you are planning to tender for building and construction work in Victoria, it is imperative that you ensure that your OH&S systems and processes are up to scratch first.

To be considered for building and construction work, the tender must demonstrate to a sufficient standard:

  • the commitment of its organisation's senior management to safety through OH&S plans, systems, proof of governance structures and reporting lines and the like;
  • effective risk management, through its organisation's Health and Safety Management Plan;
  • that its organisation has developed a process for consultation with workers and employee representatives, consultation, cooperation and co-ordination with other stakeholders, OH&S issue/dispute resolution and engagement with regulatory authorities; and
  • how its organisation intends to improve OH&S outcomes (both on the project and in the industry more generally) to achieve the objectives of the Guidelines.

The Code and Guidelines also require full compliance with applicable laws, including the Victorian Occupational Health and Safety Act 2004. Tenderers may also be required to be accredited to the Australian Government Building and Construction OH&S Accreditation Scheme administered by the Office of the Federal Safety Commissioner.

Failure to meet the required standards and Guidelines will lead to a failed bid. If the Code and Guidelines are not met during the building and construction work, this will expose an employer to potential breaches of safety legislation and the contractual obligations in place with the Victorian Government.

What other standards must be applied to meet the Victorian Code and Guidelines?

The comprehensive Victorian Guidelines also set out standards in respect of legal and related obligations, workplace arrangements and over-award payments, cost, efficiency and productivity, project agreements, dispute settlement, industrial action and strike pay, freedom of association and right of entry.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.