Annexure C: Suggestions arising from non-union party submissions in response to Counsel Assisting’s submissions

The Code must be administered by an independent and properly resourced regulator with educative, advisory, investigative and enforcement functions.

Patrick Murphy, NECA Queensland

NECA, page 3

An appropriate regulator should be tasked with ensuring productivity, safety and compliance with the law and ethical principles on State Government infrastructure projects only, including monitoring of the proposed Building Code on State Government projects.

Damian Long, Civil Contractors Federation QLD

CCF, page 14

The Independent Regulator should:

These mechanisms could be readily inserted into the Guidelines at clause 10.1 – Monitoring compliance.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 1-2

An Independent Regulator should be able to investigate and pursue right of entry non-compliance in the appropriate courts and jurisdictions, and to refer criminality and corruption to the relevant agency.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 3

Where a union or union official repeatedly breaches Code requirements, the regulator should be empowered to suspend entry privileges to Queensland Government-funded projects for a specified period.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 6

Recommended pillars for State Regulator:

Damian Long, Civil Contractors Federation QLD

CCF, page 10

The regulator must:

Critically, it is the regulator and not the builder that should bear primary responsibility for monitoring on-site conduct, investigating complaints, and enforcing the code against persons who breach it.

Michael Hopkins, Master Builders Queensland

Master Builders, page 5-6

The role of the independent regulator can be supplemented by a standing commission on misconduct as permanent oversight body. If this model is not accepted by the Commission, similar powers should be provided to the BCCB.

Michael Hopkins, Master Builders Queensland

Master Builders, page 6

The Code and Guidelines should reflect an appropriate definition of building and construction work, as follows: Building and construction work means:

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 4

The Code should apply equally to all participants engaged in Government-funded construction projects. The Code should expressly require unions, union officials, workplace delegates and employee representatives operating on Code-covered projects to comply with the Code's behavioural and conduct standards.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 5-6

The extension into privately funded work at Part 2.4 should apply only from award of public work, for a defined period, and subject to the same value threshold as publicly funded work.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA, page 6; AMCA, page 10

The extension of the code to privately funded building work (section 2.4, Draft Guidelines) will also extend the administrative burden, compliance obligations, reporting, and auditing obligations of the code to private projects. Master Builders does not support these obligations extending to all private projects without some reasonable limitations being applied in the code. The administrative obligations of the code should only apply to major private projects above a clearly specified threshold.

Michael Hopkins, Master Builders Queensland

Master Builders, page 9

Clause 2.4 should be amended so that the Guidelines apply only to publicly funded building and construction work as defined by the relevant financial thresholds, with no extension to privately funded work, residential or otherwise, by virtue of a contractor's parallel involvement in public work, and that no application is triggered merely by the timing of a private tender.

Housing Industry Association

HIA, page 3

Various suggestions about what could be included in the Code including a Code of Practice, “tap-on and tap-off” or facial recognition security turnstiles, site working calendars, restrictions on site productivity allowances, a safety-driven approach to on-site management of heat and inclement weather issues and excluding the payment of expense related or disability related allowances when no expense or disability is incurred.

Dean Cameron, Workforce Advisory Lawyers

WAL, page 2-3

The final code and Guidelines should place particular emphasis on ensuring that enterprise bargaining agreements and related workplace arrangements support productivity and flexibility.

Patrick Murphy, NECA Queensland

NECA, page 3

The Code should address coercion, intimidation, corrupt conduct, unjustified work stoppages, misuse of site access, artificial restraints on labour deployment and workplace arrangements that interfere with lawful and efficient project delivery.

Patrick Murphy, NECA Queensland

NECA, page 4

The Guidelines should expressly state that enterprise agreements and workplace arrangements must support safe, productive and flexible work organisation.

Patrick Murphy, NECA Queensland

NECA, page 7

Limiting union intervention in commercial decisions of constructors – The drafting of the Code should focus on (amongst other things) addressing the unreasonable level of influence unions have on the commercial decisions of a constructor through enterprise bargaining agreements resulting in unproductive work practices.

Peter Colacino, Australian Constructors Association

ACA, page 2

Various suggestions in respect to the powers of unions at the workplace, including union insignia, access to sites and their role in safety matters.

Albert Smith, Group Managing Director, Universal Cranes

Universal Cranes, page 2-3

It should be made clear under any Code and attached guidelines, that tenderers are obliged to demonstrate evidence that they have any of the following applicable to the project:

This could be more effective than a ban on unregistered agreements. This, along with copies of labour hire contracts should be sufficient for the sources of labour being explained in Workplace Relationship Management Plan.

Damian Long, Civil Contractors Federation QLD

CCF, page 5-6; CCF, page 9

Coercion in all its forms should be explicitly banned under the Code, extending to coercion around workplace arrangements

Damian Long, Civil Contractors Federation QLD

CCF, page 6

The Guidelines should include a carve-out permitting head contractors to undertake reasonable monitoring of a subcontractor’s compliance with its enterprise agreement, for the purpose of ensuring that subcontractors comply with the Code and with applicable legislation.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 4

The restriction on requiring site allowances contained in enterprise agreements to have an objective and predictable method of determining the allowance amount is unnecessarily prohibitive.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 9

Ensuring major plant and equipment is used as productively as possible is a sensible requirement, however, it should be the choice of contractors to resource how they see fit, so this requirement ought to focus on delivery rather than box-checking style metrics.

Damian Long, Civil Contractors Federation QLD

CCF, page 9

The breadth of the definition of “workplace arrangement” creates serious practical and constitutional difficulties, in relation to certainty, characterisation, enforcement, and perverse consequences for productive working relationships.

For Workplace Arrangements, the code should distinguish between:

Master Builders recommends that the evidence the code should rely on includes:

Critically, the code should include an express carve-out for good faith consultation and engagement, such as:

Nothing in these Guidelines prohibits a party from engaging in good faith consultation with a building association, or an officer or representative of a building association, for the purpose of:

Michael Hopkins, Master Builders Queensland

Master Builders, page 11

Section 4(e)(iv) of the Draft Guidelines provides that a Workplace Arrangement "must not include provisions that require an employer to consult or seek the approval of a third party to the employment relations (such as a union) over the number, source, type (for example casual, contract) or payment of labour required by the employer."

Master Builders submits that this provision, as drafted, is constitutionally problematic because it potentially conflicts with s 205 of the FWA.

Master Builders recommends that the provision be reformulated to target approval rather than consultation:

A Workplace Arrangement must not require the approval or consent of a building association, or an officer, delegate or other representative of a building association, in relation to decisions about the number, source, or type of employees or subcontractors to be engaged. For the avoidance of doubt, this provision does not limit:

Michael Hopkins, Master Builders Queensland

Master Builders, page 13

Various suggestions in respect to the operation of enterprise bargaining agreements, including “Enterprise Bargaining Agreements ('EBAs') that require union agreement in relation to matters that should be at management discretion, should be deemed unenforceable.”

Albert Smith, Group Managing Director, Universal Cranes

Universal Cranes, page 2 -3

Agreements should not prescribe payments to any funds above legislative requirements (excluding voluntary contributions)

Damian Long, Civil Contractors Federation QLD

CCF, page 6

Section 4: Workplace Arrangements: The clause indicates that making super payments above award would be considered illegal, unless the employer agrees to it. Whilst this is important to ensure that it's not being done under coercion, this is one of the many areas used in negotiations with employees and their representatives, and industry would like to ensure that that flexibility remains.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 9-10

An important component of negotiating Workplace Arrangements is payments made to industry superannuation funds, redundancy and income protection funds. Fair negotiation between employers and employees on these matters should remain a matter which can be addressed in Workplace Arrangements.

Section 4(b) of the Draft Guidelines appears to limit these payments but then provides an exclusion if “decided by each employer”. This exclusion effectively means this clause has no impact.

Master Builders requests that this clause be removed in its entirety from the code and Draft Guidelines.

Michael Hopkins, Master Builders Queensland

Master Builders, page 12

Removal of the limits in the Guidelines on the use of ‘project agreements’, unless approved in advance by the Attorney-General.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 4

Removal from the Guidelines of the requirement for subcontractor involvement in the development of a project agreement.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 4

Guidelines - Part 6 - Project agreements – Delete the requirement that “Subcontractors must be involved in the process of developing a project agreement before it is finalised”.

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 3

The FWA does not use the terminology “project agreements” and instead defines a “greenfield agreement”. It would assist clear interpretation of the code and guidelines if the term “greenfield agreement” was used, and its adopted definition align exactly with the definition in the FWA. If this approach is supported by the Commission, then the process to produce a greenfield agreement outlined in the FWA should prevail, and the content of agreements allowed under the FWA, should not be further limited by the code.

Michael Hopkins, Master Builders Queensland

Master Builders, page 8

Section 4(j) of the Draft Guidelines restricts a Workplace Arrangement from making provision for “project agreements to apply in whole or part, other than for major contracts as defined by the client”. This section appears to restrict the use of project agreements (greenfield agreements) on privately funded projects. This limitation is not supported by Master Builders. The code and guidelines should allow parties to utilise the provisions of the FWA in relation to greenfield agreements without restriction on privately funded projects.

Michael Hopkins, Master Builders Queensland

Master Builders, page 8-9

Section 6 of the Draft Guidelines limit the use of project agreements on government-funded projects to circumstances where the use of a project agreement is approved in advance by the Attorney General on the recommendation of the Responsible Minister. Clear criteria should be established in the code or guidelines that would be considered by the Attorney-General and Responsible Minister. Establishing a minimum project value as proposed in the Draft Guidelines is supported, however $100 million value is considered too low and should be reconsidered.

Michael Hopkins, Master Builders Queensland

Master Builders, page 9

Proactive notification requirements in exceptional circumstances should be expanded from what is in the guidelines to include proactive notification of anything that constitutes an inducement, intimidation or incitement, even if it is potentially within the limits of the law. The code should go beyond the black letter of the law and ensure that tendering is as open and transparent as possible. Tendering must be done on its merits, with absolute oversight and publicly defensible outcomes. Inducements under the Code and Guidelines should include:

Damian Long, Civil Contractors Federation QLD

CCF, page 3-4

Guidelines around procurement methods should not just extend to onsite activities but should to “any work, negotiations or discussions around tendering for work to be procured by the abovementioned methods, including on and off site work.” This would include negotiations, discussions and other matters, to ensure that the full life cycle of the project is covered.

Damian Long, Civil Contractors Federation QLD

CCF, page 4-5

A removal of rights to tender for companies which engage in serious breaches of this code should be considered.

Damian Long, Civil Contractors Federation QLD

CCF, page 13

Section 5.1 (Obligation to develop a WRMP) is an overly cumbersome and costly exercise that should only be undertaken by the preferred or shortlisted contractors. Requesting that this be undertaken during the bid phase (either EOI or RFP) would be counterproductive.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 9

The project value thresholds setting out the requirement to provide a WRMP is too low ($10m for building and $20m for civil). The QMCA is of the view that this threshold level should be closer to $100m.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 9

The Guidelines should define High Risk/Significant for both PQC and TMR projects by reference to identified and current assessment instruments.

State clearly:

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 7, NHC, page 12

Monitor supplier-pathway effects

Include supplier participation and market-access measures in the formal review of the Code.

Measures should include:

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 13

Head contractors should only be obliged to note that they will maintain a proactive attitude to compliance with the Code, and that all contracts with subcontractors contain an express provision noting that work conducted by subcontractors will be done in accordance with the Code and Guidelines.

Damian Long, Civil Contractors Federation QLD

CCF, page 9

Express proportionality principle

Insert an overarching provision stating that obligations imposed on a downstream party must be proportionate to:

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 12

Controlled and relevant flow-down

Clarify that head contractors must flow down applicable standards, but must not transfer responsibility for project-wide systems or outcomes to a party that does not control them.

Downstream contractual provisions should identify:

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 12

Section 2.3 of the Draft Guidelines requires the head contractor to notify the BCCB of "any threatened, impending, possible or probable or actual unlawful industrial conduct or breach of these Guidelines within 24 hours of becoming aware of the threatened, impending, possible, probable or actual unlawful conduct or breach."

Section 7.1 extends this to "any grievance or dispute, including any threatened, possible, probable or impending dispute, relating to workplace relations or WH&S matters... that may impact on project costs, related contracts or timelines."

Master Builders submits that these obligations are excessive.

Master Builders recommends that reporting be limited to:

The threshold should be actual conduct or imminent and formally notified threats, not speculation about what is "possible" or "probable."

Michael Hopkins, Master Builders Queensland

Master Builders, page 13-14

Replace or qualify “actively ensure”

Amend the requirement to “require and actively ensure compliance” by replacing it with, or defining it to mean, an obligation to take reasonable and proportionate steps to require, support, monitor and respond to non-compliance.

This would preserve active responsibility without creating an apparent absolute warranty over conduct beyond the party’s control.

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 12

The Code should provide a route for a subcontractor to raise a suspected breach with the regulator directly, and provide that a subcontractor not be sanctioned for site conditions determined by the head contractor.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA, page 5; AMCA, page 10

That a subcontract package value threshold be introduced, below which a subcontractor is bound by the substantive prohibitions but not by the plan, audit and reporting requirements.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA, page 6; AMCA, page 10

The Code should provide expressly for an educative first response with independent review, commercial sanctions reserved for deliberate or systemic conduct, and specialist subcontractor representation included as of right in the code’s development, implementation and ongoing review.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA, page 8; AMCA, page 10

Subcontractors should have a practical and confidential pathway to raise concerns with the regulator where they experience coercion, pressure, intimidation, disruption or indirect retaliation.

Patrick Murphy, NECA Queensland

NECA, page 7

The requirement of the head contractor to "require and actively ensure compliance" by subcontractors and to ensure that "subcontractor compliance with the workplace relations requirements will be monitored and enforced by the head contractor” is unworkable to the extent it requires the builder to ensure (rather than promote) subcontractor compliance.

Master Builders recommends the following, where a head contractor must:

A failure by a subcontractor to comply with the code does not constitute a breach by the head contractor unless the head contractor directed, facilitated, or had actual knowledge of and failed to report the non-compliance.

Michael Hopkins, Master Builders Queensland

Master Builders, page 11-12

Equivalent evidence pathways

Allow suppliers to demonstrate capability and compliance through proportionate and equivalent evidence, rather than relying only on extensive prior corporate project history.

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 13

That apprentice engagement be addressed through the Queensland Procurement Policy 2026 and assessed on training outcomes, in place of the ratio clauses the code would prohibit.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA, page 7; AMCA, page 10

The Code (whether through the Guidelines themselves or a complementary instrument) include measures requiring head contractors to demonstrate a commitment to responsible progress payments, including the timely payment of progress claims and prompt return of retention or security on practical and final completion.

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 6

Rosenlund asks that implementation of the WRMP framework be proportionate for smaller contractors: the model WRMP contemplated by Part 5.1 of the Draft Guidelines, plain-English guidance, and an accessible education and advisory function within the regulator will be essential for family businesses that do not retain in-house industrial relations resources.

Commencement should be accompanied by the model WRMP, template contract clauses, and plain-English guidance, and the regulator’s advisory function should be resourced from day one so that small contractors can seek guidance before tendering rather than face sanction after the fact.

Ryan Rosenlund, Rosenlund Group

Rosenlund, page 5, [27]; Rosenlund, page 7, [33]

WRMP requirements should be practical, proportionate and focused on outcomes. The Code should avoid creating unnecessary procurement burden and should ensure requirements are scalable to project size, complexity and risk.

Jess Caire, Property Council of Australia

PCA, page 3

The Code critically overlooks the importance of fair contracting practices and appropriate risk allocation across the construction supply chain. The Code provides an opportunity to establish clearer expectations around responsible contracting behaviours.

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 6

Large contractors, particularly on government funded projects, should play a greater role in workforce development. One way to achieve this is to require a WRMP to include measures to support the engagement of first year apprentices and retention of apprentices.

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 8

The reporting obligation should be recalibrated to a materiality or credibility threshold (rather than any conceivable possibility), and, where a subcontractor's conduct is the subject of a report, the head contractor should be permitted to report on the subcontractor's behalf, rather than requiring parallel reports from every tier of the contracting chain.

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 10

Demarcation – The drafting of the Code should focus on (amongst other things) reinforcing the demarcation between different unions in terms of their respective memberships.

Peter Colacino, Australian Constructors Association

ACA, page 2

Clear demarcation provisions should be embedded into the Code.

Damian Long, Civil Contractors Federation QLD

CCF, page 12

The Regulator should be empowered to require the union to demonstrate (both to the Regulator and the relevant employer) the basis under its rules as to why it has the right to represent interests of any relevant cohort of workers in any context where the union is or has:

The Regulator should also be empowered to refer any concern over misrepresentations by a union or official of their right to represent employees to the Fair Work Commission or Fair Work Ombudsman.

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 2

Guidelines - Part 9 – Freedom of association and right of entry – Instead of “A Workplace Arrangement that recklessly or deliberately ignores or seeks to undermine the boundaries of union coverage as defined by union rules of membership is inconsistent with these Guidelines,” the Code, Guidelines and new independent regulator should ensure that in relation to State Government funded work, unions seeking to enter into enterprise agreements, exercise rights of entry or represent employees in disputes, must demonstrate that they have the right to represent the relevant employee. A failure to do so should result in penalty or action against the relevant union by the regulator.

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 5

The proposed demarcation prohibition should extend to any Workplace Arrangement or site practice conditioning the performance of contracted work on union membership or coverage, where the worker holds the qualification, licence or ticket the work requires.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA page 8; AMCA page 10

NECA Queensland broadly supports the draft Implementation Guidelines contained in Annexure 2 to Counsel Assisting’s submissions. The Guidelines provide a workable procurement-based framework for workplace relations management, dispute settlement, productivity, right of entry, freedom of association and government oversight.

Patrick Murphy, NECA Queensland

NECA, page 3

Disputes raised by permit entry holders should be managed lawfully, proportionately and with appropriate containment. Genuine safety and workplace concerns must be respected, but they should not be allowed to become vehicles for unnecessary escalation, site-wide disruption or productivity loss at unrelated sites.

Patrick Murphy, NECA Queensland

NECA, page 3

In relation to the Guidelines, Workplace relations management plans should require tenderers to explain how they will manage permit-holder disputes without unnecessary escalation or disruption to unrelated subcontractors, work areas, project stages or other sites.

Patrick Murphy, NECA Queensland

NECA, page 7

In relation to the Guidelines, the regulator should publish guidance on compliant and non-compliant enterprise agreement clauses, including clauses relating to RDOs, labour hire, subcontracting, project allowances, right of entry, union consultation, dispute escalation and union involvement in site processes.

Patrick Murphy, NECA Queensland

NECA, page 7

Additional Powers for WorkSafe Queensland:

Peter Colacino, Australian Constructors Association

ACA, page 3

A criterion should be developed outlining what standard must be met for a person to be deemed a fit and proper person to be able to receive a permit for entry onto a state government job-site, factoring in criminal history, financial standing, legal compliance and competence.

Damian Long, Civil Contractors Federation QLD

CCF, page 12

The Guidelines should require mandatory reporting to the Independent Regulator, within 24 hours, where it is suspected that a union official has failed to comply with an applicable right of entry requirement. This obligation should extend to actual or suspected instances of criminal conduct and corruption occurring at, or in connection with, a relevant workplace, whether perpetrated by a union or a contractor.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 2-3

A requirement should be put in place obliging both WorkSafe QLD and the proposed Regulator to ensure that unions’ right of entry in relation to WHS matters is not misused.

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 2

The penalty to be enforced against unions and their officials for breach of the proposed Code prohibition on misusing applicable WHS laws should include both a pecuniary component, and suspension or permanent removal of an individual’s WHS right of entry permit.

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 2

Dispute-settlement provisions related to permit-holder disputes should incorporate the principles of specificity, proportionality, containment and continuity of work where safe and lawful.

Patrick Murphy, NECA Queensland

NECA, page 6-7

In relation to right of entry, Master Builders recommends a carve-out allowing access to sites for the purposes of genuine consultations, with appropriate conditions and safeguards which maintain control of access to site by the builder and in accordance with the approved WRMP, provided these arrangements do not contravene legislated right of entry laws.

Michael Hopkins, Master Builders Queensland

Master Builders, page 5

Health and Safety – The drafting of the Code should focus on (amongst other things) addressing the issue where Safety representatives can be (and often are) conscripted into industrial relations matters, which undermines workplace safety and the regulation aimed at protecting workers.

Peter Colacino, Australian Constructors Association

ACA, page 2

No agreement should be able to restrict subcontractor selection, nor prescribe how WHS matters are to be dealt with.

Damian Long, Civil Contractors Federation QLD

CCF, page 7

The Guidelines should be amended to accommodate arrangements where safety disputes have been resolved through their own safety dispute resolution procedures, as permitted under section 81(2) of the WHS Act, rather than confining parties to the default procedure in the WHS Regulation, provided that any alternative procedure complies with the requirements of the WHS Act and the WHS Regulation.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 4

In addition to the proposed Code and Guidelines, the QMCA is of the view that the WHS Act should also be amended to ensure the only parties, beyond the employer, that can affect a cessation of work are appointed Workplace Health and Safety Inspectors.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 10

The Code and Guidelines should expressly prohibit unions from breaching or misusing applicable State laws relating to WHS (or making false or misleading claims in relation to WHS matters). Appropriate mechanisms should also be developed to enforce this prohibition.

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 2

That Part 4 address expressly the allocation of labour, covering redeployment to unaffected work following a safety stoppage, weather event, disruption or delay without qualifying any decision to stop work in an affected area; selection for redundancy on skills, licences, forward workload and operational requirement; restrictions on labour hire; and site-specific delegate appointment.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA page 7-8; AMCA page 10

Part 4 of the Draft Guidelines should be extended to expressly proscribe Workplace Arrangements that mandate blanket, site-wide stand-downs, or automatic full-day payments, on account of inclement weather irrespective of actual conditions, the location of the affected work, or the ability to safely redeploy labour to unaffected work (including work performed in enclosed plant). Any such provision should preserve genuine safety protections and lawful employee entitlements.

Ryan Rosenlund, Rosenlund Group

Rosenlund, page 5, [25]

In relation to the Guidelines, any sanctions regime should preserve procedural fairness and review rights, while ensuring that repeated or deliberate non-compliance attracts meaningful consequences.

Patrick Murphy, NECA Queensland

NECA, page 7

The duty to report cannot become an onerous compliance burden.

Damian Long, Civil Contractors Federation QLD

CCF, page 4

Substantial fines for noncompliance with the code for unions and workers which have the effect of genuinely dissuading inappropriate conduct must be considered.

Damian Long, Civil Contractors Federation QLD

CCF, page 13

The Code should establish escalating financial penalties for substantiated misconduct by unions and union officials on Government-funded projects, aligned with sanctions for contractors. The regulator should have power to seek recovery of demonstrable costs through a tribunal or court process.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 7

Section 2.3 calls for the contractor to notify of any “possible or probable” unlawful industrial conduct. This is unnecessarily broad and should be limited to actual or threatened industrial action. The QMCA proposes consideration be given to utilising the wording contained in the 2016 Building Code analogous clause.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 9

The Guidelines should state clearly whether a subcontractor reports to the head contractor or directly to the regulator, that the reporting trigger be confined to conduct the reporting party can reasonably identify, and that reporting of safety-related lost time not require the reporting party to characterise whether the underlying safety matter was genuine.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA page 6; AMCA page 10

Except in cases involving serious, deliberate, repeated or unlawful conduct, provide an opportunity to clarify, correct or remediate administrative non-compliance before commercial sanctions or tender exclusion are imposed.

Publish a transparent, graduated sanctions and escalation framework that distinguishes administrative non-compliance from serious, deliberate, repeated or unlawful conduct and ensures that the consequence is proportionate to the nature and seriousness of the breach.

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 13

The employment, contracting, sub-contracting or involvement with recognised criminals or criminal organisations in any capacity should be regarded as a breach of the Code, and members of such organisations should be specifically precluded from being employed by any entity tendering for government work.

Damian Long, Civil Contractors Federation QLD

CCF, page 4

Master Builders submits that, irrespective of the breadth of the code finally adopted, its enforcement should not be the responsibility of builders or subcontractors. The better enforcement model would be to directly shift from "sanction the builder for failing to police the union" to "investigate and hold the union accountable for its own conduct”. (See Annexure A of submission for a summary of provisions in the Draft Guidelines that require builders to police, report, monitor or enforce compliance in relation to union conduct or industrial activity, either directly or through the subcontractor chain.

Michael Hopkins, Master Builders Queensland

Master Builders, page 6-7

Section 7.2 of the Draft Guidelines provides that "Contractors will be required to use their best endeavours to pursue legal remedies to protect their rights and obligations under the Code and Guidelines. A failure to instigate appropriate legal remedies may be considered to be a breach of the Guidelines."

Master Builders recommends that the obligation to pursue legal remedies be reframed as follows:

A contractor must report unprotected industrial action to the BCCB in accordance with section 2.3. The contractor must cooperate with any application made by the BCCB or other regulatory body in relation to that action. Nothing in this section requires a contractor to commence legal proceedings in its own name; however, a contractor must not obstruct or frustrate any proceedings commenced by the BCCB or other regulatory body.

Michael Hopkins, Master Builders Queensland

Master Builders, page 14

Master Builders submits that the sanctions regime should be graduated, proportionate, subject to independent review and remediation focused.

Michael Hopkins, Master Builders Queensland

Master Builders, page 15

The Code should require contractors to demonstrate effective governance systems, including:

Sandra Atkinson

Atkinson, page 1-2

Where a receiving agency cannot determine a matter because it falls outside its jurisdiction, responsibility for referring the matter to the appropriate authority should not rest solely with the worker. Complaints should move through a coordinated regulatory pathway rather than requiring workers to identify the correct regulator themselves.

Sandra Atkinson

Atkinson, page 3-4

A proposal to establish a Queensland Construction Commissioner. This reflects the structural failures identified across safety, industrial conduct, coercion, corruption, and dispute resolution.

Dean Cameron, Workforce Advisory Lawyers

WAL, page 13-19

Commercial sanctions (exclusion, publication) will be reserved for repeated, systemic, or deliberate non-compliance.

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 9

Any enforcement mechanism must attach to demonstrated, systemic non-compliance, as opposed to a single or isolated incident, consistent with witness evidence that sanctions should be applied “on a case-by-case basis,” and not for a single instance of non-compliance.

Housing Industry Association

HIA, page 4-5

Rosenlund recommends that:

Ryan Rosenlund, Rosenlund Group

Rosenlund page, 6, [29]

Rosenlund recommends that the Guidelines identify procedurally fair consequences for proven non-compliance by every category of Party, including referral to any body with statutory responsibility for entry permits or industrial-law enforcement, so that the code is not experienced by smaller contractors as a one-sided compliance burden.

Ryan Rosenlund, Rosenlund Group

Rosenlund, page 6, [31]

Rosenlund recommends the Commission consider measures under which a person who has been convicted of a serious relevant offence, or who has been found after a fair process to have seriously or repeatedly contravened the code or industrial laws on a code-covered project, may be restricted from acting in a code-covered representative or right-of-entry role, with any entry-permit issue referred to the appropriate tribunal or regulator. Where an employer is asked to employ or accommodate a representative in a safety-critical role, the employer should be entitled to apply its ordinary, lawful recruitment and suitability processes.

Ryan Rosenlund, Rosenlund Group

Rosenlund, page 6, [32]

Introduce additional reporting of WHS right of entry to WHSQ and minimum standards to exclude the abuse of generic allegations.

Dean Cameron, Workforce Advisory Lawyers

WAL, page 4

Education and guidance will be the default response to minor or first-instance breaches.

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 9

Role-specific guidance and model clauses

Require the regulator or administering body to publish plain-English guidance, model clauses and evidence checklists for:

Model clauses should distinguish between compliance with a relevant standard and responsibility for operating the project-wide compliance framework.

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC, page 12

The regulator should provide guidance and templates to assist industry, recognising the various levels of capacity and maturity amongst contractors.

Damian Long, Civil Contractors Federation QLD

CCF, page 3

Prior to commencement:

Sandra Atkinson

Atkinson, page 3

The regulator should serve not only an enforcement function but

also an education and advisory role. The Property Council also supports industry calls for greater certainty around compliance requirements and practical implementation guidance.

Jess Caire, Property Council of Australia

PCA, page 3

Standard form Workplace Relations Management Plans provided by the regulator would be beneficial.

Albert Smith, Group Managing Director, Universal Cranes

UC, page 3

The details of an enforcement mechanism must be made clear by the Commission at the same time it makes any recommendation to Government to establish a Code.

Housing Industry Association

HIA, page 4

The Code should be regularly assessed against measurable outcomes including:

Jess Caire, Property Council of Australia

PCA, page 4

Implementation should be accompanied by:

Jess Caire, Property Council of Australia

PCA, page 5

MEA recommends that implementation of the Code be supported through:

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 11

MEA recommends that a formal review be undertaken within two to three years of commencement.

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 10

For small contractors the educative and advisory functions are as important as enforcement.

Ryan Rosenlund, Rosenlund Group

Rosenlund, page 5, [28]

The prohibitions on enterprise agreement content should not apply to an enterprise agreement made before the Code and Guidelines commence, provided the agreement has not passed its nominal expiry date.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 5

Contractors on projects awarded before commencement, for which a Workplace Relations Management Plan (WRMP) would be required, should be afforded three (3) months from commencement to prepare and provide a WRMP. It should further be made clear that compliance with an enterprise agreement made before the Code commenced does not of itself constitute non-compliance with a WRMP.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 5

Transitional arrangements should be put into place to enable employers with non-expired agreements to be able to tender for work.

The Guidelines should ensure that:

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 3

Once the terms of the Guidelines are finalised and published, at least three months’ notice should be given of the commencement date to enable time for contractors to be advised of the requirements and to implement the necessary systems to ensure compliance.

Innes Willox and Brent Ferguson, Australian Industry Group

AIG, page 3

That the Commissioner recommend the reintroduction of a Queensland code of practice for the building and construction industry administered by an independent regulator, settled before the next enterprise agreement bargaining round concludes, with the model Workplace Relations Management Plan and subcontractor guidance published at the same time the code is made, and with contracts already on foot unaffected.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA page 4; AMCA page 10

That compliance be assessed against practice rather than against the text of an industrial instrument, consistent with the definition of Workplace Arrangement, so that a contractor whose enterprise agreement was made before the code was published is not excluded from tendering where its practices comply.

Benjamin Fogerty, Air Conditioning and Mechanical Contractors Association of Australia

AMCA page 4; AMCA page 10

Implementation should allow sufficient time for industry to prepare.

Sandra Atkinson

Atkinson, page 3

Rosenlund recommends that the Guidelines state expressly that eligibility for code-covered work depends on the compliance of the Workplace Arrangements a tenderer will give effect to, whenever those arrangements were made; that no blanket grandfathering apply; and that a defined transition period be allowed for existing arrangements to be brought into compliance, following the approach of the former Commonwealth Building Code 2016.

Ryan Rosenlund, Rosenlund Group

Rosenlund, page 7, [34]

Avoid overlap or duplication in regulation or the role of regulators.

Peter Colacino, Australian Constructors Association

ACA, page 4

Commonwealth equivalence mechanism

Include a mechanism allowing equivalent Commonwealth plans, audits, declarations and evidence to satisfy Queensland requirements where the underlying obligation is materially equivalent.

Narelle Hinchcliffe, NHC Infrastructure Consulting

NHC page 11; NHC page 13

Clarification should be provided (regarding section 2.4, Draft Guidelines) as to the reach of the independent regulator to private projects so that the standards of union behaviour are consistently applied across Queensland, without duplicating the functions of existing regulators that effectively cover private projects.

Michael Hopkins, Master Builders Queensland

Master Builders, page 9

The Commission should delay any recommendation to the Queensland Government until after the Commonwealth work has progressed. Alternatively, any such recommendation should be expressly conditioned on the Queensland Government obtaining and publishing current advice on how the instrument reconciles with current and prospective Commonwealth building code settings, to avoid Queensland entrenching a broader or divergent regime to which industry will be subject.

Housing Industry Association

HIA, page 1; HIA, page 3-4

Further clarity is required regarding the interaction between the proposed independent regulator (the Building Construction Compliance Branch (BCCB)) and existing bodies such as the Office of Industrial Relations (OIR) and the Queensland Building and Construction Commission (QBCC).

Georgia Holmes and Kate Raymond, Master Electricians Australia

MEA, page 9

The WHS Right of Entry legislation should be amended to provide WHSQ and QPS the ability to give a move-on order to Entry Permit holders from a particular construction site.

Dean Cameron, Workforce Advisory Lawyers

WAL, page 4

Section 3.4 – independent contractors: The QMCA is supportive of the need for employment flexibility, particularly with the use of independent contractors and labour hire; however, would caution that this clause does not fall foul of recently introduced Federal legislation such as “Same Job Same Pay” laws. The QMCA would like to see an inclusion of a blanket ban on “subbie Jump-up clauses”.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 9

Clause 10.1 of the Guidelines requires the BCCB to “liaise with relevant Commonwealth and other government agencies, including Fair Work Building and Construction”. The QMCA submits that the Fair Work Building and Construction Agency were abolished in 2016, and the Guidelines should be updated accordingly.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 9

Flexible, inclusive workplaces – The drafting of the Code should focus on (amongst other things) working arrangements which prioritise inclusion, diversity and time for life as set out in the Construction Industry Culture Taskforce Culture Standard.

Peter Colacino, Australian Constructors Association

ACA, page 2

The capitalised term “National Code” is used throughout the Guidelines. It appears to be a defined term introduced at clause 2.5, although Counsel Assisting has removed that clause and thereby rendered the term obsolete. To avoid confusion, the QMCA recommends that references to the “National Code” be removed from the Guidelines in their entirety.

Clause 4(f) of the Guidelines incorrectly references the Work Health and Safety Act 2001 (Qld). The QMCA submits that this should be ‘2011’ and recommends the Guidelines be corrected accordingly.

Andrew Chapman, Queensland Major Contractors Association

QMCA, page 8

Many major enterprise agreements covering Queensland construction work have nominal expiry dates falling between July 2026 and July 2027 (as demonstrated by Annexure 1 to Counsel Assisting's submission). Master Builders recommends that the code include a transitional provision to the following effect:

Sections 3 and 4 of these Guidelines do not apply to a party in respect of an enterprise agreement made before the commencement of these Guidelines until the earlier of:

Michael Hopkins, Master Builders Queensland

Master Builders, page 15

Master Builders submits that section 2.5 be strengthened by adding:

For the avoidance of doubt, a party does not breach these Guidelines by complying with the terms of an enterprise agreement that has been approved by the Fair Work Commission in accordance with the Fair Work Act 2009 (Cth), provided that the party has not directed, facilitated, or procured the inclusion of the relevant term for the purpose of circumventing these Guidelines.

Michael Hopkins, Master Builders Queensland

Master Builders, page 16