Submission
Draft Industrial Relations Implementation
Guidelines to NSW Code of Practice for
Procurement: Building and Construction
20 March 2013
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 2
20 March 2013
The Hon. Mike Baird, MP
NSW Treasurer and Minister for Industrial Relations
Level 36 Governor Macquarie Tower
1 Farrer Place
Sydney NSW 2000
Dear Treasurer,
Thank you for the opportunity to make a submission on the Draft Industrial Relations
Implementation Guidelines for NSW Code of Practice for Procurement: Building and Construction.
The detail of our submission is enclosed herein.
Yours sincerely,
David Castledine
Chief Executive Officer
Civil Contractors Federation NSW
This submission is made of behalf of the above organisation.
Authorising Officer: David Castledine
Business Address: Suite 2.07, 25 Solent Circuit, Baulkham Hills, NSW 2153
Phone: 02 9009 4000
Email: [email protected]
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 3
EXECUTIVE SUMMARY
“I don‟t have a [union] agreement so I don‟t get allowed on some jobs. The PC [Principal
Contractor] says sorry, but they can‟t risk a fight with the unions. It‟s tough to compete on
a playing field that slopes so heavily one way.”
It is difficult to see how a reasonable person who is genuinely interested in safety, jobs, or the return
of economic prosperity to NSW, could reasonably claim that the above statement, provided by a
NSW North Coast civil contracting business, reflects positively on the NSW business environment.
The Civil Contractors Federation NSW, as the leading representative of the civil construction
industry in NSW, is greatly concerned over the industrial relations environment in NSW in terms of
not only its current position, but its trend. With the demise of the ABCC, we are increasingly
receiving reports of infractions of the law, coercion in bargaining, and inappropriate application of
powers.
This statement comes from the owner of a large firm who has been in the civil industry for over 30
years:
“We ask you [CCF NSW] to highlight to Government the reality of recent changes to
legislation (particularly abolition of ABCC and right of entry laws) to prevent cost blowouts,
loss of confidence and potential for escalation of violence within our scrambling civil sector”
and from a large Sydney based civil contractor, commenting on falling productivity in the workplace
resulting from industrial friction:
“[We] have lost time up to 30% of available productive hours since last working week of
2012”.
We thus share the NSW Government‟s concerns over the impact this trend may have on the
economy of NSW. We share the Government‟s concern over the impact on the cost of
infrastructure in this State, and on the consequential deleterious impact such cost increases will have
on jobs in this State. We share the Government‟s concern that all of the people of NSW will
ultimately lose out, as the efficiency of the State economy is „hog-tied‟ with limited financial
resources yielding less of the vital infrastructure works than is required.
The civil construction industry in NSW seeks a level playing field in which to effectively and
efficiently deliver the civil infrastructure so desperately needed. This level playing field is stimulated
and underpinned by an efficient Government procurement process which itself is characterised by
the rule of law, freedom of association, an efficient bargaining process, and clear separation between
safety and industrial relations issues. In order to obtain the most economically efficient outcome in
civil works procurement, the industry also seeks to retain the ability to choose who it engages,
within appropriate legal constraints. Significantly, we look to Government, as the major customer of
the civil construction industry, to proactively enforce compliance and to act strongly against any
party in breach of its procurement practices.
The NSW Government‟s draft Guidelines to NSW Code of Practice for Procurement represent a
very significant step in the correct direction by ensuring all parties in the civil construction industry
in NSW have clarity as to the procurement processes and expectations of the NSW Government.
This clarity is crucial to the achievement of an effective and efficient industry, particularly given that
the NSW civil construction industry will grow as large and as fast as NSW‟s will need to over the
coming five years in order to deliver on the infrastructure plans of the State Government.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 4
Much of the draft Guidelines reflect the policies of the Civil Contractors Federation NSW. We have
consulted extensively with our Members to assess their view of the draft Guidelines, and those
views are generally very positive. There are, however, a number of recommendations we have
provided in our submission for the Government‟s consideration. That said, CCF NSW is very
supportive of the NSW Government‟s initiative to introduce these draft Guidelines.
We would welcome further discussion with the Government as it moves forward with finalising and
implementing these Guidelines.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 5
THE CIVIL CONTRACTORS FEDERATION NSW
The Civil Contractors Federation (CCF) is a registered organisation under the Fair Work (Registered
Organisations) Act 2009 (Cwth) and represents employers across Australia in the civil construction
industry. We are the only industrial body in Australia charged with representing only the civil
construction sector, and the only body charged with representing employers of all sizes in the
sector.
CCF nationally represents some 2000 employers, with Branches in each State and mainland
Territory. Each Branch has a Member elected Board and branch management structure, and
operates independently to manage the activities of the State within the overarching policy direction
of the collective CCF.
The CCF NSW Branch comprises nearly 500 Members, with Membership comprising Tier 1
contractors to small operators. Fifty per cent of the largest 50 NSW civil contracting businesses are
Members. Nearly 50 per cent of our Membership is based in regional NSW. As a provider of
industrial relations advice to our Members, we have, in the 12 months to date (from 1 April 2012)
fielded just over 2,000 Member inquiries, compared to just over 500 in the previous 12 months.
Preparing for this Submission
In preparing this submission, CCF NSW conducted a survey of Members, met one-on-one with
some of the largest civil contractors in the State, and received both verbal input and written
submissions from Members.
Importantly, in order to ensure our Members in regional NSW better understood the Guidelines
and the ramifications of both their implementation and non-implementation, we have conducted a
round of six major regional presentations.
It is for this reason that this submission is provided later than the 28 February 2013 calling date for
submissions. Naturally, compiling these inputs, and explaining the industrial relations environment
has been made particularly difficult given the release of the Federal Government‟s „Building Code
2013‟.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 6
THE NSW CIVIL CONSTRUCTION INDUSTRY ENVIRONMENT
Following the release of the NSW Government‟s State Infrastructure Strategy in December 2012,
our Members became very eager to understand what the announcements within this meant for the
civil construction industry.
In January 2013, CCF NSW commissioned BIS Shrapnel to review all Commonwealth and State
project announcements in order to identify what the civil works financial component would be in
each of these announcements. We also considered non-government spend on civil works including
projected land development. We then included the civil aspects of road and rail maintenance costs.
Finally, we incorporated any mine preparation and maintenance activities, but none of the ongoing
mine works. What we were left with was a resource profile of the NSW civil construction industry
over the next 10 years. Each year we plan to keep this updated in order to keep the industry
informed. As these figures are based on announced projects, the only reason they would alter is if
projects are not delivered on time, or they are cancelled.
In brief, our research indicates that the civil construction industry in NSW, currently at the bottom
of its cycle in 2012/13 after a 7% slump from 2011/12, is a $12 billion per annum industry. Over the
next five years, the increase will grow quickly to peak at $21 billion per annum – representing a 72%
increase over five years on the 2012/13 year. Following a two-year peak, the industry will ease to a
sustained $17.5 billion per annum for the remaining three years of our forecast period.
The Government has rightly raised concerns that infrastructure labour costs may increases at 2–11%
per annum, depending on the industrial environment. If that increase is just 2%, and our own
anecdotal evidence is that this is an extremely optimistic outcome, the NSW people will (ignoring
CPI) be paying 22% more than they are now for the same bridge, the same road over the course of
the next 10 years.
However, these higher costs presume a market that grows significantly, but without any further
inefficiencies. A 72% increase in the market over just five years is a large increase, and there is a
genuine fear that the current trends in industrial activity in NSW, if left unchecked, will lead to
procurement costs reaching extremely high levels.
CCF NSW shares the NSW Government‟s concern about getting its procurement strategy in this
sector right, and getting it right now. Any embedded structural weaknesses in the procurement
paradigm will compound and be magnified by the increased spend, and pose an enormous risk to the
State Government budgets.
Clearly, the Government‟s serious concern over efficient procurement in the civil infrastructure
market is entirely appropriate, and reflects positively on its stewardship.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 7
THE POLICIES OF CCF AND THEIR ALIGNMENT WITH THESE
GUIDELINES TO THE NSW CODE OF PRACTICE
CCF has a number of policy positions which directly align well with the intent of the draft Guidelines
to the NSW Code of Practice.
Rule of Law
Firstly, the rule of law must be enshrined. Those that follow the law should be staunchly
protected, and those that elect to operate outside it should be prosecuted to the fullest extent.
This is essential for social cohesion but also for economic efficiency. Without an enforcement arm
to ensure the rule of law is maintained, anarchy descends.
From the owner of large civil contracting business with over 30 years‟ experience in NSW:
“We currently have no stability and employers have been hung out to defend themselves
from a militant, defiant and newly empowered building union”.
From the owner of a medium sized regional business:
“The guy [union employee] walks in, tells us we must use his [family member]‟s business
on this or that job, and walks out again. I said „no‟ once, and didn‟t work for 4 months”.
From the owner of a large civil contracting business in Sydney:
“Change after change from the Federal Govt has eroded a reasonable recent history where
industrial thuggery, intimidation and bastardry was almost non-existent”.
From the owner of a large civil contracting business:
“The current scenarios on major projects... include threats of media involvement to
manipulate clients and coercion to sign Union ratified Enterprise agreements in an
unamended form (even if you have a current Employee Enterprise Agreement that pays full
union rates)”.
Freedom of Association
The CCF supports the rights for employees to be represented by a union. However, the choice
must be a free one – freedom of association must be protected in order to achieve the economic
benefits that come with an optional association system. The Guidelines ratify this position and so
we support strongly the Guidelines.
We raise below in this submission our very real concerns over the inappropriate deployment of
NSW work health safety law to prosecute organising activities. Many of the comments made by
contractors in that section are relevant here as well.
From the NSW manager of a very large contractor:
“One particular union is abusing the right of entry provision by exercising their rights
through safety breaches but discussing other issues whilst on site”.
From a very large contractor:
“Most of our labour force are over the [union] approach and just want to do their job”.
Bargaining without the Interposition of Third Parties
The right of the employer and employee to freely bargain without coercion or intimidation from
third parties is paramount to an efficient outcome in bargaining. Third parties may have a
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 8
contributory role in the bargaining process but the most economically efficient model, as already
described in the law, is that third parties with vested interests are not interposed into the process
from the outset.
Regrettably, CCF NSW is seeing in NSW an increasingly strong movement toward the types of third
party involvement in bargaining that will be damaging to the economy of this State if not corrected.
In simple terms, these activities will drive up the price of infrastructure contracts. These draft
Guidelines move to rectify this impending imbalance, and so are supported by CCF NSW.
From the owner of a large civil contracting business based in Sydney:
“Our company was carrying out two projects when we were approached to sign a union
agreement. As the proposed agreement would have increased our costs without any
improvement in productivity the approach was rejected. However, during negotiations the
[union] visited a high profile large project that we were working on and tried to apply
pressure to our client, who is a "tier one" builder, to ensure that they put pressure on us to
sign the agreement. I understand from discussion with our client that the [union]
threatened the client with stoppages due to safety issues”.
From a medium sized civil contractor:
“Our industry has descended to the point where we are unable to bargain with [union]
when discussing agreements. Their pattern agreement adds unreasonable costs and
obligations that the industry cannot afford. They are coercing companies to sign their EBA
through intimidation and bastardry”.
From the owner of a medium sized civil contracting business:
“I don‟t have a [union] agreement so I don‟t get allowed on some jobs. The PC says sorry,
but they can‟t risk a fight with the unions. It‟s tough to compete on a playing field that
slopes so heavily one way”.
From the owner of a regional civil contracting business, commenting on a large road project being
undertaken in their area:
“In 20 years I have never seen the union up here, and nor had any of my guys ever asked
for them. This job came into town and suddenly we couldn‟t get work because we didn‟t
have a union agreement. It had nothing whatsoever to do with safety or employee rights. It
had nothing to do with how well we did the job. It had everything to do with power and
organising”.
From a smaller contractor caught in a demarcation between two unions and intimidated into signing
a multi-union agreement to secure work in Barangaroo:
“[The Union A official‟s] parting words to me last Friday were “you have two options, one
being you sign a three way agreement with the [Union A] and the [Union B] or will come
after you”. We do not have the time to play the apparent mind games and we are in
business not only to make a healthy living, but to provide employment to some 25
employees. The rates of pay under the draft Union B agreement would see job security with
us diminish and we want to hang on to our staff where at all possible”.
Independent Contractors
A business should, along with the requirement to comply with all employment and contracting law,
have the choice to freely determine what employment and contracting strategies it will utilise to
undertake its work. The most economically efficient model is to allow the market the freedom to
engage either employees or contractors. The criteria for selection should be solely commercial, and
include risk, efficiency and skills, and not relationship with a union. To do otherwise will
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 9
undoubtedly create perverse outcomes, an inefficient economy, and infrastructure project costs
escalating.
From the owner of a regional civil contracting business, commenting on a large road project being
undertaken in their area:
“I should pick who I employee, contract and hire in, and when. We need a level playing
field, so sham contracting and the like has got to be snuffed out, but after that it‟s my call.
I asked the union and they answered by laughing “will you indemnify us if we pick your
people?” ”.
From the owner of a large Sydney based firm:
“We have…establishment on site of union recommended consultants, trainers and
contractors”.
From a medium sized regional civil contractor:
“We need to be able to expand/contract our workforce and conditions of employment. We
don‟t necessarily do the wrong thing but at the same time, it‟s inefficient because unions are
pushing from one side. Nationally, the cost of labour is incredible. The highest problem is
labour and dealing with gaps and dips in the workforce”.
Clear Separation Must Exist between Work Health & Safety (WHS) and
Industrial Relations
CCF NSW is committed to the position that WHS and industrial relations are covered by separate
laws, and that we serve them best by clearly delineating their application. Both have their rightful
place in the law, but when one is used to push the other, the result is perverse and inefficient
outcomes in the civil construction environment, including increased project costs. These laws are
first and foremost shields to protect against bad or unacceptably high risk behaviour, and should not
be used as swords to either grow union membership or impart financial hardship upon an employer
to extract concessions.
Further, employers and employees must be free to use the application of NSW safety law to explore
innovative ways to continuously improve their work practices. Heavy emphasis is placed in NSW
WHS laws on consulting between employees and employers. This is exactly as it should be.
Industrial instruments that limit this flexibility by imposing prescriptive WHS procedures, such as the
CFMEU‟s drug and alcohol template agreement procedure, are an artificial constraint on safety and
efficacy improvements.
Additionally, the activities and functions of work health and safety should be divorced from those of
industrial relations activity. To say that employers cannot conduct workplace inductions effectively,
and they must be done by a union person is trite, an immature policy and lacking in substantive
factual merit. It is however good organising. The proposition would be laughable were it not so
manifestly wrong and ultimately destructive to employer-employee relationships.
From the owner of a medium sized civil contracting business:
“Its common on large projects to have the manufacturing of safety issues or „concerns‟ ”.
From the NSW manager of a very large contractor:
“One particular union is abusing the right of entry provision by exercising their rights
through safety breaches but discussing other issues whilst on site”.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 10
From the owner of a large civil contracting business:
“The current scenarios on major projects include...misrepresentation of complaints to gain
site access... and daily site visits by various representatives of the same union”.
From the manager of a large civil contracting firm:
“Abuse of Work Health Safety right of entry law is a major concern. Genuine contributions
to safety improvements are always welcome, but WHS right of entry is being used first and
foremost to organise”.
From the owner of a medium sized contractor currently working on a large project:
“Safety right of entry is being used as tool [to] force us and others to fold. They come in
whenever they like under some spurious safety issue, shut the place down by calling
everyone together, and scare the crap out of everyone into thinking the world‟s going to end
unless they sign up with them. I care a lot about my blokes, without them I can‟t do
anything, and it bugs me to hear these people say employers don‟t care”.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 11
CCF NSW’S RECOMMENDED CHANGES TO THE GUIDELINES
Compliance and Enforcement
In both the Victorian Guidelines and in the Queensland Draft Guidelines, compliance monitoring and
enforcement falls to a specific body created by the State Government. CCF NSW would strongly
recommend the NSW Government implement with its Monitoring Unit (MU), a similar standalone
body.
Specifically, careful consideration should be given to how the MU would interact with any
government agency established to oversee government procurement, as is mooted in the Final
Report Inquiry into Construction Industry Insolvencyi. CCF NSW considers the two functions and
thus the two bodies prima facie separate, but with communication protocols well established.
We further recommend that it should be clear in the Guidelines the scope and interaction of how
the MU will interact with the ABCC, whose re-establishment the CCF has consistently argued for.
We note that the sanctions stated in both the Victorian Guidelines and Queensland draft Guidelines
are robust in terms of contractors and clients who breach the Guidelines, but are less clear on those
that would apply to industrial organisations. As such, CCF NSW supports a strong and clearly
articulated sanction model for industrial organisations.
As the leading voice of the civil infrastructure industry in NSW and unfettered by other competing
industry views, CCF NSW considers our involvement in the creation and scope of the MU as very
important and advantageous to the outcome. We hereby offer our support to the NSW
Government during the scope and development phase of the MU.
Scope: Private Works Excluded
The NSW Guidelines, unlike the Victoria Guidelines and the Queensland draft Guidelines, exclude
private work. To the argument that these Guidelines should drive workplace practices in both
sectors within the State, we understand the concept. We also understand, and are particularly
disposed to, the “level playing field” policy stance. That is, those who are engaged in both public and
private sector work should not be adversely constrained when compared to those who work only in
the private sector. Finally, CCF NSW is disposed to light-handed government in lieu of burdensome
regulation.
However, it is the position of CCF NSW that commonality of approach across States is
economically efficient where it does not conflict with some government-specific policy. Further, the
argument that private sector work will be driven by public-sector work in this area is untested, and
the requirement to have a party comply in its private sector work with these Guidelines will drive
compliance across the State more effectively. CCF NSW is particularly concerned that perverse
outcomes may result were one sector of a contractor‟s work to be excluded, including in the
responses industrial organisations will take to these Guidelines. Certainty is preferred to
uncertainty. Finally, one is inextricably drawn back to the question – if these changes are a positive
reflection and support the rule of law – why limit them to one sector if a party is engaged in both?
These are complex points. However, on balance, CCF NSW supports the expansion of the scope of
the Guidelines in NSW to include the private sector work of a contractor, as occurs in Victoria, and
is mooted in Queensland.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 12
Definitions
Principal Contractor
Section 2.l) of the Guidelines defines Principal Contactors. This is a defined term in s293 of the Work
Health and Safety Regulation 2011 (NSW) and it is important that reference be made in the
Guidelines to the Regulation.
SWMS
Section 2.o) of the Guidelines refers to SWMS meaning “Safe Work Management Statement”. This
is not the Australia-wide interpretation of this acronym. Rather, it is Safe Work Method Statement.
Work Health Safety and Injury Management
Section 2.r) of the Guidelines includes in the definition of WHS “return to work”. In both practical
application and in terms of NSW legislation and regulation, this inclusion is incorrect.
The civil construction industry pays amongst the highest worker‟s compensation premium rates of
any industry in NSW. Further, civil construction employers in NSW pay typically 60% more than
employers in the same industry in other nearby States. The CCF NSW is particularly focused on
strategies to improve both safety and injury management in our industry. We have determined one
of the most significant reforms that could occur is the establishment of an industry specialised
worker‟s compensation insurance licence. Our legislators created the avenue for such reform on 23
June 2012. However, little progress has been made to date by WorkCover NSW for creating such
an arrangement for the industry.
Whilst we consider work health safety and injury management strongly related, it does not help to
combine them in one term. We thus recommend the separation of the matters and the inclusion of
a new defined term “Injury Management”. Section 9 of the Guidelines should thus be amended to
“Workplace Safety and Injury Management”. Throughout the Guidelines, references to WHS would
need to be selectively amended to reflect this definitional change – CCF NSW has undertaken this
review and would be happy to provide the results.
Separation of WHS/ Injury Management and Workplace Relations
CCF NSW has a policy position in relation to WHS and Industrial Relations that reflects the intent
of legislators at both Commonwealth and State level – the two matters are prima facie separate.
Moreover, as we have stated elsewhere, the nexus between safety, injury management and
productivity is extremely strong and attempts to limit one element should be avoided in the first
instance.
For example, we are seeing the CFMEU include in its template enterprise agreement ever more
prescriptive and restrictive alcohol and other drug management work practices. These clauses are
increasingly limiting a PCBU‟s ability to comply with their obligations under WHS laws, and to
improve their productivity by consulting with their workforces to effectively and efficiently reduce
the number and severity of incidents.
We thus recommend that the following point be included in Section 5.5:
No restrictions on WHS and Injury Management practices. An industrial instrument must not restrict an
employer and its employees agreeing to continuous improvement of WHS and Injury Management
practices. An industrial instrument must not contain provisions that require an employer to utilise a
particular party for WHS or Injury Management.
Provision of a Workplace Relations Management Plan
In the draft Section 5.1 and 6.1, it is stated that a Workplace Relations Management Plan (WRMP) is
required “as part of any expression of interest [EOI] or tender response”. The requirement to
submit at the EOI stage a WRMP as detailed as is required in the Guidelines is a heavy burden to
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 13
place on industry, and it is impractical to expect that optimal arrangements will be far enough
considered at the EOI stage.
Further, in the draft Section 5.1 there is an underlined sentence referring to the project criteria in
which a WRMP is required. CCF NSW considers the criteria provided for in the Victorian
Guidelines are appropriate, and considers that commonality on these criteria would be efficient.
Further, the current Guidelines imply the WRMP submitted at the Tender stage will be the final
version of the Plan. This is not always practically possible and so it is not desirable for the client that
a false construct be established. For example, it is not uncommon in a Design and Construct project
for the final phases of the WRMP application to change from that tendered. This might also occur in
a contract with lengthy duration between tendering and work commencement.
CCF NSW thus recommends that:
1. The requirement to produce a WRMP at the EOI stage be removed from the Guidelines, and
that this requirement remain only at the Tender Stage
2. The Guidelines should include recognition that the content of the WRMP must reasonably
reflect the tendering and contracting process
3. The Project criteria referred to in the underlined sentence of Section 5.1 are sequentially
$10million, $5million; and 50%.
Coercing or Influencing
In the draft Section 5.3, very similar wording is used in the Queensland draft Guidelines, and CCF
NSW recommends the inclusion in the NSW Guidelines the additional text Queensland have
included:
“…or have the effect of coercing or pressuring any third party including a group
apprenticeship…” (underline added by us to highlight the added text).
Site Specific Arrangements
We support the intent of draft Section 5.4. We note Queensland have sought to expressly rule out
site allowances via an additional sentence in their equivalent draft Guidelines. We recommend
either that sentence be inserted or the underline change be added to Section 5.4:
“…of a requirement for a contractor to apply project-specific wages, allowances and
conditions…” (underline added by us to highlight the added text).
Right of Entry (ROE) Arrangements
The Queensland draft Guidelines add a requirement in the equivalent of NSW‟s Section 5 that an
industrial instrument “…must not seek to relax or circumvent…” the law with respect ROE
arrangements. Nothing in the Queensland draft section appears to enunciate more than “the law
cannot be broken”. However, an express reference to ROE compliance would likely be useful to
stop attempts to make such changes.
Skills and Qualifications
The content of a WRMP outlined in draft Section 6.1.a) refers in the first bullet point to “skills”.
CCF NSW is concerned as to how the industry can address the increased labour resource and skill
levels that will be required in NSW over the next five years as infrastructure spending increases.
CCF NSW thus recommends this issue be drawn out and expanded by requiring the contractor to
explain how it will promote the skills and qualification development of workers experienced in the
industry and workers new to the industry. This should not be related to simply in-house training and
short course training, but also Australian recognised qualifications in civil construction.
CCF NSW: Submission into Draft NSW Code of Practice for Procurement: Building & Construction 14
Project Agreements – Limit
CCF NSW accepts the $100 million limit set in the Victorian Guidelines and the Queensland draft
Guidelines.
Project Agreements – Subcontractor Involvement
Whilst subcontractor involvement is desirable in the development of project agreements, it is not
always practicably possible. We recommend the draft Section 7.4 of the Guidelines be altered as
follows:
“Subcontractors will be involved where possible in the process of developing a project
agreement before it is finalised” (underline added by us to highlight the added text).
Freedom of Association and Right of Entry
Section 10 of the draft Guidelines is very strongly supported by the CCF NSW.
We recommend Section 10.2 be amended to include after the first sentence and before the current
second sentence:
“Requests, threats imposition or attempted imposition of measures that do not promote
freedom of association are inconsistent with the Guidelines”.
Further, we recommend the addition of the words used in the equivalent point in the Queensland
draft Guidelines:
“The request, threat or imposition, or attempted imposition, of a requirement for any
contractor…” (underline added by us to highlight the added text).
Transition
The Queensland Draft Guidelines include a provision for transition arrangements, and CCF NSW
supports the clear definition of NSW Government‟s intention in regards to transition.
We would however strongly recommend that contractors be protected from a „Catch 22‟ situation
where pending common law outcomes conflict in any way with their transitional obligations.
Specifically, Section 12.1 of the Queensland draft Guidelines state:
“This means that as of the release of these Guidelines, for parties seeking to tender for
publically funded…projects that have not remedied any non-compliance with these
Guidelines …that party and its related entities will be considered non-compliant with the
Guidelines on and from that date and be ineligible to tender...”.
In light of CFMEU v Eco Recyclers Pty Ltd [2013] FCA 24 and the imminent case to hear the matter, the
mooted Queensland Transitional Provisions would place contractors in the position of either being
non-compliant with the Guidelines, or exposed to potential litigation kin to that of Eco Recyclers Pty
Ltd.
i Final Report by Bruce Collins QC, November 2012