Federal Register of Legislation - Australian Government

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Other as made
This instrument authorises non-corporate Commonwealth entities (NCEs) to comply with the revised Building Code 2013 – Supporting Guidelines (Supporting Guidelines) (Attachment C) and therefore provide protection from adverse action under section 342 the Fair Work Act 2009
Administered by: Finance
Registered 10 May 2016
Tabling HistoryDate
Tabled HR30-Aug-2016
Tabled Senate30-Aug-2016
Date of repeal 01 Dec 2018
Repealed by Self Repealing

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Finance

 

Public Governance, Performance and Accountability Act 2013

        

Public Governance, Performance and Accountability (Procurement) Instrument 2016

 

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) sets out a framework for the governance, performance and accountability of, and the use and management of public resources by, the Commonwealth, Commonwealth entities and Commonwealth companies. 

 

Section 105B of the PGPA Act provides that the Finance Minister may, by written instrument, make provision about procurement by:

·         the Commonwealth; or

·         corporate Commonwealth entities prescribed by the rules; or

·         wholly-owned Commonwealth companies prescribed by the rules.

 

The Public Governance, Performance and Accountability (Procurement) Instrument 2016 (the Procurement Instrument) is an instrument made under section 105B of the PGPA Act. The Procurement Instrument provides that non-corporate Commonwealth entities must not enter into a contract with a person under which the person agrees to carry out Commonwealth-funded building work, or to arrange for such work to be carried out, for or on behalf of the non-corporate Commonwealth entity in particular circumstances. 

 

The Procurement Instrument reflects and supports the Commonwealth’s Building Code 2013 – Supporting Guidelines (the Guidelines), which updated and replaced the former Building Code 2013 - Supporting Guidelines for Commonwealth Funding Entities. The Guidelines set out the obligations on non-corporate Commonwealth entities in relation to procuring Commonwealth funded building work. The Guidelines supplement the Building Code 2013 (the Building Code) and explain the mechanism by which non-compliance with the Building Code will result in building contractors or building industry participants becoming ineligible to be awarded Commonwealth funded building work.

 

The Guidelines can be found at www.employment.gov.au.

 

Details of the Procurement Instrument are set out in the Attachment.   

 

The Procurement Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).

 

Subsection 105B(2) of the PGPA Act has the effect that section 42 (disallowance) of the Legislation Act does not apply to instruments made under section 105B. As such, a Statement of Compatibility with Human Rights is not required under section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

The Procurement Instrument commences on the day after it is registered on the Federal Register of Legislation.

 

Consultation

 

In accordance with section 17 of the Legislation Act, the Department of Employment was consulted on the development of the Procurement Instrument. This consultation was appropriate and reasonably practicable to undertake given the relationship between the Procurement Instrument, the Guidelines and the Building Code. The Procurement Instrument only applies to non-corporate Commonwealth entities.  

 

As the Procurement Instrument reflects and supports the Guidelines in relation to obligations in relation to procurement of Commonwealth funded building work, and those Guidelines already apply to non-corporate Commonwealth entities, it was not considered necessary or reasonably practicable to consult with those non-corporate Commonwealth entities regarding the Procurement Instrument.

 


Attachment

 

Details of the Public Governance, Performance and Accountability (Procurement) Instrument 2016

 

Section 1—Name

 

Section 1 provides that the name of the instrument is the Public Governance, Performance and Accountability (Procurement) Instrument 2016 (the Procurement Instrument).

 

Section 2—Commencement

 

Section 2 provides that each provision of the Procurement Instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.

 

Table item 1 provides that the Procurement Instrument commences on the day after it is registered on the Federal Register of Legislation.

 

Section 3—Authority

 

Section 3 states that the Procurement Instrument is made under section 105B of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

Section 4—Definitions

 

Section 4 sets out defined terms used in the Procurement Instrument.

 

The majority of the terms are defined as having the same meaning as in the Fair Work Act 2009, the Fair Work (Building Industry) Act 2012 (FWBI Act) or the Work Health and Safety Act 2011.

 

Section 5—Meaning of Commonwealth-funded building work

 

Section 5 defines ‘Commonwealth-funded building work’ as the building work described in any of items 1 to 8 of Schedule 1 to the Building Code.

 

‘Building Code’ is defined by section 4 of the Procurement Instrument to have the same meaning as in the FWBI Act. Section 4 of the FWBI Act defines ‘Building Code’ to mean the code of practice referred to in section 27 of that Act. The Building Code 2013 was issued under section 27 of the FWBI Act.

 

Section 6—Procurement of Commonwealth-funded building work

 

Section 6 prohibits a non-corporate Commonwealth entity from entering into a contract with a specified type of person under which the person agrees to carry out Commonwealth-funded building work, or to arrange for such work to be carried out, for or on behalf of the non-corporate Commonwealth entity in particular circumstances.

 

The type of person that a non-corporate Commonwealth entity may be prohibited from entering into such a contract with is a person that is:

·         a building contractor that is a constitutional corporation; or

·         a building industry participant and the work is to be carried out in a Territory or Commonwealth place

(relevant person).

 

This reflects the limitations in section 27 of the FWBI Act on the persons that can be required to comply with the Building Code.

 

The circumstances in which a non-corporate Commonwealth entity must not enter into such a contract with a person of that type are:

 

·         There are reasonable grounds to believe that the person is a party to an agreement within the meaning of subsection 10(1) of the Building Code.

 

·         There are reasonable grounds to believe that the person is covered by an enterprise agreement that is inconsistent with the Building Code.

 

·         An exclusion sanction, within the meaning of the Building Code 2013 – Supporting Guidelines (the Guidelines), as in force at the time the Procurement Instrument commences, applies to the person.

 

·         There are reasonable grounds to believe that the person has failed to comply with an adverse decision, direction or order of a court or tribunal that has been made in relation to the person that relates to a contravention of any of the following in respect of building work:

 

o   a designated building law;

o   the Work Health and Safety Act 2011 or a corresponding WHS law; and

o   the Competition and Consumer Act 2010.

 

Whether there are such ‘reasonable grounds to believe’ for the purposes of subsections 6 (2) to (4) will depend on the relevant facts and circumstances. The relevant non-corporate Commonwealth entity would have a number of options to pursue to ascertain those facts and circumstances before entering into a contract with a person. For example, they could make enquiries as to whether the Minister for Employment has publicly identified that person as a person that is subject to an exclusion sanction; evaluate information and declarations obtained during the tender process; or, in appropriate circumstances, accept a statutory declaration from the person attesting to particular facts.

 

In addition, a non-corporate Commonwealth entity could seek the assistance of the Director of the Fair Work Building Industry Inspectorate (the Director), whose functions include monitoring compliance with, and inquiring into and investigating acts or practices that may be contrary to, a designated building law or the Building Code, and referring matters to relevant authorities (section 10 of the FWBI Act).

 

The circumstances in which a non-corporate Commonwealth entity must not enter into a contract mirror those contained in the Guidelines, which place obligations on non-corporate Commonwealth entities when procuring Commonwealth funded building work. Consistent with those Guidelines where a non-corporate Commonwealth entity is prohibited from entering into a contract with a relevant person, it follows that the relevant person will not have had a complying tender and would not have been able to participate in a tender process or similar for the purposes of selecting with whom the non-corporate Commonwealth entity will contract.

 

The Guidelines update and continue the obligations that were contained in the former Building Code 2013 - Supporting Guidelines for Commonwealth Funding Entities.

 

As the Guidelines are a policy of the Australian Government for the purposes of section 21 of the PGPA Act, the accountable authorities of non-corporate Commonwealth entities are required to govern their entity in a way that is not inconsistent with the Guidelines.

 

Section 7—Repeal of this instrument

 

Section 7 provides that the Procurement Instrument is repealed at the end of the day that is 24 months after the day the FWBI Act is repealed.