Longest Sanction Handed Down for Breach Of Code For The Tendering And Performance Of Building Work 2016

Following a tragic and fatal incident on a building site in March 2018, a NSW roofing company was found to have breached the Code for the Tendering and Performance of Building Work 2016 (the Code) resulting in a 9 month exclusion sanction. The exclusion sanction prevents the company from tendering for Commonwealth Government funded work from 2 May 2022 to 1 February 2023.

Breach of Workplace Health and Safety Laws

The final ruling of the case found that the company had in fact breached Work Health and Safety Act 2011 (NSW) (WHS Act). More specifically it was found that the company –

• had a duty under section 19(1) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of its workers while at work; and
• had failed to comply with this duty, exposing [name of the apprentice] and [his supervisor] to a risk of death or serious injury contrary to section 32 of the WHS Act.

Code Compliance

Following this ruling by the courts the ABCC Commissioner deemed the breach of the WHS Act constituted breaches of the Code. The company was found to be in breach of sections 9(3) and 17(1) of the Code.

Section 9(3) requires a code covered entity to

‘A code covered entity must comply with work health and safety laws, including work health and safety training requirements and asbestos safety requirements, to the extent that they apply to the entity in relation to building work, including strict compliance with procedures for the election of health and safety representatives and right of entry requirements’.

Section 17(1) requires a code covered entity to

‘A code covered entity must notify the ABCC of a breach, or a suspected breach, of this code of practice as soon as practicable, but no later than 2 working days after becoming aware of the breach or suspected breach and advise the ABCC of the steps proposed to be taken to rectify the breach’.

Referral to the Minister by the ABCC Commissioner

Where a breach of the Code has been found the ABCC Commissioner can submit a sanction recommendation to the Attorney-General and Minister for Industrial Relations Michaelia Cash (Minister). Following such a recommendation from the ABCC Commissioner, the Minister must impose an exclusion sanction, unless satisfied that it is not appropriate in the circumstances because of the nature of, or factors contributing to, the failure to comply.

On this occasion, on 9 April 2022, the Minister imposed an exclusion sanction of 9 months, the longest sanction handed down for a breach of the Code.

Following the Minister’s decision, the ABCC Commissioner in their statement reminded companies of the standard that must be upheld in meeting their obligations under workplace health and safety laws. He further commented on the important role that sanctions play in deterring code covered entities from breaching these laws and their obligations under the WHS legislation. The Commissioner further advised the ABCC will continue to monitor breaches of the WHS legislation and will endeavour to refer such breaches to the Minister, so sanctions can be handed down
whenever it is appropriate to do so.

Further details on the case can be found here.

Need Help?

If you or your company need assistance with ensuring you are Code compliant, the Workplace Relations and Legal team are here to help. Contact the team on 02 6175 5900.