Managing Code matters

Managing National Code for the Construction Industry matters

The Tasmanian Government is committed to the implementation of the National Code of Practice and the Tasmanian Annexure. Breaches of the Code, as may be evidenced through non-compliance, lack of commitment or unethical activity; may result in sanctions being invoked. Where the breach also involves any law or statute, the matter is to be referred to the relevant enforcement agency.

Monitoring of the application of the Code for Government projects is to be undertaken as part of the relevant agency's core business function. In addition, to facilitate industry accessibility, each agency must:

  • establish internal coordination procedures for managing Code matters; and
  • establish a central point of contact and provide details to the Department of Treasury and Finance for placement on the Winning Government Business section of this website.
Processing Code Breaches by Contractors, Subcontractors, Consultants and Suppliers

The action taken to rectify alleged or substantiated Code breaches will depend on the severity of the breach. For minor breaches, agencies should aim to resolve the issue through dispute resolution procedures. Repeated or alleged Code breaches of a serious nature should be reported in writing to the agency's central point of contact for inquiry and must be managed in accordance with the agency's normal procurement complaints handling process. Information on the alleged breach should include:

  • contact details of the party reporting the alleged breach;
  • name of persons/organisations involved with the alleged breach;
  • details regarding the circumstances of the alleged breach, including the extent and dates on which the breach happened;
  • details of previous complaints raised on the matter and/or any actions that were taken to remedy the situation; and
  • a copy of any documentation that supports the claim.

The party alleged to be in breach of the Code is to be notified of the allegations and given the opportunity to submit a response.

After receiving all the information relating to the allegation, the agency must assess:

  • whether a breach has been proven to have occurred;
  • the impact of any breach; and
  • what sanctions (if any) should be imposed, including the degree and duration. Refer to the Annexure for an example of sanctions that could be invoked.

The review should also consider any action that could be undertaken by the breached party to restore their standing with the Government, for example, demonstrating that inappropriate practices have been discontinued and adequate procedures have been established to prevent similar breaches reoccurring.

The review must be undertaken in a fair and timely manner, and must be able to stand up to public scrutiny. Following the review, the agency must either:

  • report the review findings to its portfolio Minister recommending that a breach has been proven or not proven and seek approval to apply any sanctions by the agency; or
  • where an agency determines that a breach is proven and is severe enough for sanctions to be applied on a Government-wide basis, the agency must refer the matter on to the Secretary of Treasury for review. The referral must be fully documented and include:
    • details regarding the circumstances of the alleged breach
    • a copy of the information provided by the party reporting the alleged breach and the response from the party alleged to be in breach, including any correspondence from the agency to those parties
    • details of the agency's review findings; and
    • a proposal as to the appropriate sanctions.

Treasury will assess the proposal and seek approval from the Treasurer if it is considered that a Government-wide sanction should be applied.

Throughout the process it is the agency's role to:

  • advise affected parties on the progress of the review and the outcome including:
    • if and when the matter has been escalated to Treasury for review
    • any actions that could be undertaken by the breached party to restore their standing with the Government and the date the agency would be prepared to review the matter; and
    • notifying parties subject to sanctions about their right to appeal,
  • implement approved sanctions 21 days from the date of notification to affected parties advising of the review outcome (unless an appeal has been lodged);
  • advise Treasury of the review outcome for prequalification purposes;
  • where a breach has been proven, refer the breach to the relevant industry association for appropriate action under that association's rules and/or code of practice compliance procedures;
  • where a breach is proven to involve any law or statute, refer the matter to the relevant enforcement agency;
  • monitor applied sanctions and their effect; and
  • track and record the issues and outcomes on the agency's Complaints Datasheet.
Appeals

Any party that is subject to sanctions resulting from an investigation has a right under the Code to appeal against the sanctions. A request for appeal must be lodged in writing to the Secretary of Treasury within 21 days from the date of notification advising the affected party of the review outcome. The affected party will be requested to provide copies of all correspondence with the agency concerned and other relevant material.

The affected party and agency will be advised of the final decision. Where an appeal is rejected, any sanctions will be applied immediately. If the affected party is not satisfied with the outcome, the matter can be referred to the Minister responsible for the agency concerned.

Where an appeal is received to review a recommendation to apply a Government-wide sanction, Treasury will take the necessary action to ensure the appeal review is independent from the investigatory review, including, in certain circumstances, employing a Probity Advisor.

Processing Non-Compliance by Government Agencies and Employees

Heads of Agency are responsible for ensuring the performance of their agency is consistent with the Government's requirements and should strive to resolve any issues of non-compliance.

The private sector should be encouraged to report any alleged non-compliance by an agency to the Head of Agency in the first instance. Information on the alleged breach should include:

  • contact details of the party reporting the alleged breach;
  • name of employees involved with the alleged breach;
  • details regarding the circumstances of the alleged breach, including the extent and dates on which the breach happened;
  • details of previous complaints raised on the matter and/or any actions that were taken to remedy the situation; and
  • a copy of any documentation that supports the claim.

If an agency is unable to internally resolve the reported breach, or the reporting party is not satisfied with the outcome, the matter should be referred to the Minister responsible for that agency.

In the case of non-compliance by a Government agency, the Minister responsible for that agency will consider appropriate changes to that agency's policies, practices and/or procedures.

Where it is demonstrated that an agency employee has deliberately or wilfully breached the Code by acting in contravention of the agency's policies, practices and/or procedures, disciplinary action may be taken where appropriate.

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