Submission - Draft IR Implementation Guidelines for NSW ... · PDF fileGuidelines to NSW Code of Practice for Procurement: Building and Construction ... for NSW Code of Practice for

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]


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.


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.


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‟.


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.


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


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


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”.


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’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.


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


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.


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

Documents

Submission - Draft IR Implementation Guidelines for NSW ... · PDF fileGuidelines to NSW Code of Practice for Procurement: Building and Construction ... for NSW Code of Practice for