Guidance Note - Please note that where the Project Owner is using the Agreement for a Project in a jurisdiction other than Victoria, the Project Owner will need to review and amend this provision to reflect the relevant jurisdiction's requirements. |
(a) The principles established in the Code are consistent with those in the Victorian Code and both codes should be read conjointly. The provisions of the Victorian Code prevail to the extent of any inconsistency.
(b) Each of the Participants must, and must ensure that all of its Subcontractors and, in the case of each of the NOPs only, its Related Bodies Corporate, comply with the Code, the Guidelines, the Victorian Code and the Industrial Relations Principles.
(c) The Participants acknowledge and agree that compliance with the Code, the Guidelines, the Victorian Code and the Industrial Relations Principles does not relieve the Participants from responsibility to perform their obligations under this Agreement or from any liability for any Defect in the Works arising from compliance by the Participants with the Code, the Guidelines, the Victorian Code and the Industrial Relations Principles.
(d) Where any amendment to this Agreement under clause 29.5 is proposed by the Participants or the ALT, and that amendment would affect compliance with the Code, the Guidelines, the Victorian Code and the Industrial Relations Principles by the Participants in accordance with this clause 15.4, the ALT must submit a report to the:
(1) Government of the State of Victoria specifying the extent to which the Participants' compliance with the Victorian Code and the Industrial Relations Principles; and
(2) Government of the Commonwealth of Australia specifying the extent to which the Participants' compliance with the Code and the Guidelines,
will be affected.
(e) Each of the Participants must maintain adequate records of compliance with the Code, the Guidelines, the Victorian Code and the Industrial Relations Principles by:
(1) that Participant;
(2) that Participant's Subcontractors; and
(3) in the case of each of the NOPs only, its Related Bodies Corporate.
(f) If any of the NOPs are sanctioned for breach of the requirements of the Code, the Guidelines, the Victorian Code or the Industrial Relations Principles in the performance of this Agreement , without prejudice to any rights that would otherwise accrue, a record of that non-compliance may be kept and taken, or required to be taken, into account in the evaluation of any future tenders that may be lodged by the NOPs or a Related Body Corporate of the NOPs in respect of work funded by the Government of the State of Victoria, the Government of the Commonwealth of Australia or any Government Agency.
(g) While acknowledging that value for money is the core principle underpinning decisions on Government procurement, when assessing tenders, the Participants may give preference to Subcontractors that have demonstrated commitment to:
(1) adding and/or retaining trainees and apprentices;
(2) increasing the participation of women in all aspects of the industry; or
(3) promoting employment and training opportunities for indigenous Australians in regions where significant indigenous populations exist.
(h) A Subcontractor in relation to the Project must not be engaged where:
(1) the appointment would breach a sanction imposed as consequence of breach of the requirements of the Code, the Guidelines, the Victorian Code or the Industrial Relations Principles; or
(2) the Subcontractor has had a judicial decision against them relating to employee entitlements (not including decisions under appeal) and has not paid the claim.
(i) Each of the Participants must and must ensure that its Subcontractors and, in the case of each of the NOPs only, its Related Bodies Corporate, provide any person or entity authorised under or in connection with the Code, the Guidelines, the Victorian Code or the Industrial Relations Principles, with access to:
(1) inspect the Works and the Construction Plant;
(2) inspect and copy any record relevant to the Project and Works the subject of this Agreement; and
(3) interview any person,
as is necessary to demonstrate their compliance with the Code, the Guidelines, the Victorian Code and the Industrial Relations Principles.
(j) Each of the Participants and, in respect of each of the NOPs only, its Related Bodies Corporate, must comply with a request from any person or entity authorised under or in connection with the Code, the Guidelines, the Victorian Code or the Industrial Relations Principles, to produce a specified document within a specified period, in person, by fax or by post.
(k) For the avoidance of doubt, clause 15.4(i) applies in relation to the NOPs' new privately funded construction projects (as defined by section 3.4.1 of the Guidelines).
(l) The Participants must ensure that all Subcontracts impose obligations on the Subcontractors equivalent to the obligations set out under clauses 15.4(a) to 15.4(k) (inclusive).