Commonwealth Building Code – Fitness for Work Amendment

Are you still compliant with the Building Code 2013?

On 16 October 2015, the “fitness for work/alcohol and other drugs in the workplace” amendment to the Building Code 2013 (Cth) (Fitness for Work Amendment) came into force.

Compliance with the Building Code 2013 is monitored by Fair Work Building and Construction (FWBC). Following the introduction of the Fitness for Work Amendment, FWBC undertook an education and awareness campaign, which has now concluded.

FWBC is now actively undertaking audits to ensure compliance with the amended Code. It is accordingly important to review your policies to ensure that you remain compliant.

Who is affected?

The Fitness for Work Amendment primarily affects contractors who are (or may be) engaged as the principal contractor to carry out building work where the Commonwealth has provided funding for the project:

  • of more than $5,000,000 and that amount is greater than 50% of the value of the project; or
  • of more than $10,000,000, irrespective of the value of the project.

However, on all projects where the funding thresholds are met, the Fitness for Work Amendment also affects all other workers who carry out work at sites where such building work is being undertaken (whether they are engaged by the principal contractor or not).

The requirements of the Fitness for Work Amendment

The Fitness for Work Amendment requires principal contractors to implement a mandatory zero tolerance drug and alcohol policy for all workers – not just their own employees – who are carrying out work on the site. A Fitness for Work policy must be included in the principal contractor’s comprehensive and site specific Work Health Safety and Rehabilitation plan. Workers will be deemed unfit for work if they return a positive test to alcohol, opiates, THC, benzodiazepines, cocaine, amphetamine or methamphetamine, irrespective of whether the drug is lawfully in their system or whether it causes any actual impairment.

The Fitness for Work policy must, at a minimum:

  • implement frequent and periodic (at least monthly) alcohol and drug testing of a significant number of the workers at the Commonwealth funded project site, including construction workers and site office workers, for the substances listed in Part 3 of Schedule 3 of the Building Code;
  • set out the method by which sectors of the workforce are to be tested (whether randomly or staged sections) and identify targeted testing for persons performing high risk work;
  • deem that any worker who returns a positive test for alcohol or other drugs listed in the Fitness for Work Amendment is unfit for work;
  • provide a method to prevent any worker returning a positive test from performing work until they can prove they are no longer unfit for work; and
  • implement a counselling and assistance regime, aside from any disciplinary process which might be undertaken.

What does it mean and what do you need to consider?

A failure to have a compliant policy in place may result in sanctions ranging from warnings to exclusion from tenders on later Commonwealth-funded projects.

Despite that, principal contractors should be aware that there are risks in simply adopting a Fitness for Work policy “off the shelf” to achieve compliance, rather than properly tailoring the policy to suit the particular project and the principal contractor’s business.

Important matters which will require consideration based on the particular circumstances of your business include:

  • the method of testing for alcohol and drugs and the way in you will select which workers are to be tested;
  • who you will engage to carry out the testing, and how you will keep and store testing results;
  • how you will communicate positive test results to any affected worker and how you will establish that a worker is fit to return to the site;
  • the counselling and disciplinary procedures to be followed where there is a positive test result; and
  • ensuring that when introducing the Fitness for Work policy that you avoid a potential dispute under any applicable enterprise agreement, particularly in circumstances where previous or concurrent workplace policies include allowances for certain levels of tolerance to alcohol and drugs.

To discuss how we can assist to review your current policies and assist you to implement a Fitness for Work policy to ensure that you comply with the Building Code 2013, please contact:

Kathryn Speed
Construction & Infrastructure
T: 03 6235 5141
E: kspeed@pageseager.com.au

David Dilger
Workplace Relations
T:  03 6235 5182
M: 0428 238 819
E: ddilger@pageseager.com.au

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