What is the Building Code and When Does it Apply?

In our article titled “Fair Work Targeting the Building & Construction Industry” we notified our mailing list that the new Fair Work (Building Industry) Act 2012 came into effect (the “Act”) on 1 February 2013. Furthermore, we provided our readers with an outline of the objectives of the Act. In this article we notify our readers when the Act applies and what issues it covers.

The Act has made legal compliance mandatory for those companies which are tendering for a government funded project. These mandatory requirements include, but are not limited to, a company complying with:

  • the Work Health & Safety Act 2011, such as having Work Health Safety Rehabilitation Management Systems in place;
  • the Fair Work Act 2009 (the “FWA”) when employing, remunerating and terminating employees. This also includes not having any Sham Contracts -which is employing an individual as an independent contractor when in actual fact that individual is an employee;
  • court and tribunal decisions, directions and orders;
  • Australian Consumer Laws such as not engaging in misleading and deceptive conduct; and
  • the Migration Act 1958 when employing non-citizens and/or residents of Australia.

The Fair Work Building and Construction (“FWBC”) has previously advised that it has reclaimed over $2 million in unpaid wages and entitlements from employers in the building and construction industry. Accordingly, you should have careful consideration to the FWBC targeted audits as it may be found that not only are you liable to pay the unpaid wages and entitlements, you can also be held liable for civil penalties.

In a recent decision, the Fair Work Ombudsman proceeded to take legal action against The Henna Group Pty Ltd in the Federal Magistrates Court for the recovery of outstanding wages and entitlements, however, it was held that:The Henna Group had contravened various sections of the FWA and consequently it was ordered to pay $33,000for each contravention amounting to $165,000, plus the $16,000 in unpaid wages and entitlements; and due to the deliberate disregard to industrial obligations, the director and senior manager had also contravened the FWA resulting in each individual being fined a further $30,000.

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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.