Sanctions
Sanctions are considered by the Code Monitoring Group (CMG) where a business has breached the National Code of Practice for the Construction Industry 1997 (the Code) and the Australian Government Implementation and Industry Guidelines for the National Code of Practice for the Construction Industry (the Guidelines).
A sanction can take the form of, but is not limited to, a formal warning, preclusion from, or reduction of, tendering opportunities from Australian Government funded work.
Tenders or expressions of interest (EOI) cannot be accepted:
- from businesses where the sanction precludes it from tendering for Australian Government funded construction work during their sanction period;or
- for any Australian Government funded work which is first advertised during the sanction period, even if the tender or EOI does not close until after the period of sanction expires.
For a brief outline please refer to A Guide to Sanctions Fact Sheet (PDF 168KB).
Current sanctions
(last updated 11 September 2008)
There are no current sanctions at this time.
Previous sanctions
Although the following sanctions are no longer in force, the previous compliance performance of the business listed in applying the Code to projects can be included in the weighted assessment of a tenderer's ability to satisfy the mandatory criteria of a tender process.
| Business and Project Details: |
Baulderstone Hornibrook Pty Ltd, ACN 002 625 130. |
| Project: |
Christmas Island Immigration Reception and Processing Centre, WA. |
| Reason for Sanction: |
Breaching the Freedom of Association and Right of Entry provision of the 2003 Industry Guidelines, by using a site delegate to undertake site induction processes.
Mitigating circumstances taken into account when considering imposing a sanction on this company included the company’s actions in rectifying all the other issues previously identified in the ABCC audit report, and their positive OH&S record. |
| Sanction: |
Formal warning issued 12/09/07. |
| Period of preclusion: |
Not applicable. |
| Are related entities included in the sanction? |
Not applicable - the 2003 Guidelines do not make provisions for sanctions to apply to related entities. |
| Business and Project Details: |
John Holland Group Pty Ltd, ACN 050 242 147 |
| Project: |
ABC Accommodation Project, Western Australia |
| Reason for Sanction: |
Breaching the Freedom of Association and Right of Entry provision of the 2003 Industry Guidelines, by using a site delegate to undertake site induction processes
Mitigating circumstances taken into account when considering imposing a sanction on this company included the company’s actions in rectifying all the other issues previously identified in the ABCC audit report, and their positive OH&S record. |
| Sanction: |
Formal warning issued 14/11/06. |
| Period of preclusion: |
Not applicable. |
| Are related entities included in the sanction? |
Not applicable - the 2003 Guidelines do not make provisions for sanctions to apply to related entities. |
| Business and Project Details: |
Kenmiss Pty Ltd, ACN 008 274 020 |
| Project: |
Marlu Curu Demolition Works Project, South Australia |
| Reason for Sanction: |
Engaging in anti- competitive, collusive tendering behaviour, in breach of the Trade Practices Act 1974 (TPA) and competitive behaviour requirements of the Code. The Federal Court's findings in the matter of ACCC v McMahon Services Pty Ltd(2004) in relation to breaches of the TPA by Kenmiss are available at FCA 1425. |
| Sanction: |
|
| Period of preclusion: |
14/11/2006- 13/02/2007 |
| Are related entities included in the sanction? |
Not applicable - the Code does not make provisions for sanctions to apply to related entities. |
| Business and Project Details: |
D C D Enterprises Pty Ltd, ACN 050 165 485 |
| Project: |
Marlu Curu Demolition Works Project, South Australia |
| Reason for Sanction: |
Engaging in anti- competitive, collusive tendering behaviour, in breach of the Trade Practices Act 1974 (TPA) and competitive behaviour requirements of the Code. The Federal Court's findings in the matter of ACCC v McMahon Services Pty Ltd(2004) in relation to breaches of the TPA by Kenmiss are available at FCA 1425. |
| Sanction: |
|
| Period of preclusion: |
14/11/2006- 13/02/2007 |
| Are related entities included in the sanction? |
Not applicable - the Code does not make provisions for sanctions to apply to related entities. |
| Business and Project Details: |
S.A Demolition & Salvage Pty Ltd, ACN 086 777 022 |
| Project: |
Marlu Curu Demolition Works Project, South Australia |
| Reason for Sanction: |
Engaging in anti- competitive, collusive tendering behaviour, in breach of the Trade Practices Act 1974 (TPA) and competitive behaviour requirements of the Code. The Federal Court's findings in the matter of ACCC v McMahon Services Pty Ltd(2004) in relation to breaches of the TPA by Kenmiss are available at . |
| Sanction: |
|
| Period of preclusion: |
14/11/2006- 13/02/2007 |
| Are related entities included in the sanction? |
Not applicable - the Code does not make provisions for sanctions to apply to related entities. |
Formal warning
The CMG may issue a formal warning if a breach occurs. In such cases the warning will indicate the future breaches that may lead to greater sanctions such as preclusion from tendering for Australian Government funded construction work.
Australian Government agencies are encouraged to consider previous compliance of the tenderer's ability in applying the Code to past projects in the weighted assessment of the tenderer's ability to satisfy and meet the mandatory criteria. Agencies are expected to ensure that appropriate processes of assessment are followed to ensure the most appropriate tenderer is selected.
Preclusion sanctions
There are no current preclusion sanctions.
A preclusion is a sanction of a fixed period of time (for instance 3 or 6 months) where a business is found to be in breach of the Code and Guidelines.
If an EOI or tender is lodged before a sanction commences it may still be considered. However, government agencies and businesses are encouraged to consider a business' compliance with the Code and Guidelines when assessing tenders or EOIs.
Reduction sanctions
No reduction sanctions have been issued to date.
A reduction is a sanction of a fixed period of time (for instance 3 or 6 months) where a company is found to be in breach of the Code and Guidelines.
In this case, businesses may be excluded from submitting tenders or EOIs for some government funded works, For example: works over a certain value, or works in a specified area or region. The details of this would be specified at the time the sanction is imposed.