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Before You Start

What should I do before I read this Factsheet?
First read all APIC information provided by the NSW Government and the relevant government agency, including the ProcurePoint APIC section for contractors.

Scope of APIC

What is APIC?

APIC is the NSW Government’s Aboriginal Participation in Construction Policy (APIC), which came into effect on 1 May 2015, and mandates minimum amounts that employers must spend on Aboriginal participation.


When does APIC Compliance become Mandatory?

From 1 July 2016.


Which construction projects are covered by the policy?

APIC applies to all government construction projects that meet the criteria set out below. Construction includes building, maintenance and civil engineering. Construction related support activities, such as financial, advisory, architectural and professional services may also be included where it is considered appropriate to achieve the policy goals. Construction projects that are being undertaken jointly with the private sector are included in this policy, as are projects undertaken on land not owned by the government or where the built asset will be owned by a non-government entity. There are three categories of projects that are impacted by this policy:

  • Category 1: Projects nominated by an Agency that are primarily directed to one or more Aboriginal communities. This includes projects where an Aboriginal community is the sole or predominant beneficiary, is a key user group or a predominant stakeholder.
  • Category 2: All other construction projects where the estimated value is over $10 million.
  • Category 3: All other construction projects where the estimated value is over $1 million.

APIC Targeted Spend

What are the APIC targets?

The targeted project spend is a percentage of the total estimated value of the contract that is spent to support Aboriginal participation. APIC sets out the following long term goal and short term incremental goals: From 1 July 2016: Mandatory minimum target of 1.5% for all category 1,2 and 3 projects. Mandatory minimum targets will increase in the long term as follows: 5% (Category 1); 4% (Category 2); 3% (Category 3).

The NSW Procurement Board may vary the APIC targets at any time and will adjust the mandatory minimum target percentage upwards towards the long term goal as they are progressively achieved.


How do I know what a particular project’s spend targets are?

Individual Agencies are responsible for setting the targeted project spend on each project. Where an Agency considers that the estimated value of the contract includes significant amounts of expenditure which are unrelated to design and construction, these may be discounted from the estimated contract value for the purposes of identifying the targeted project spend. Agencies may set a higher targeted project spend if considered appropriate.

Agencies may also set the target using other criteria, such as employment and training levels provided they are broadly commensurate in value. The NSW Procurement Board may exempt specific projects or classes of projects, including where Agencies or contractors have contractual obligations arising from the participation or funding of a project by the Commonwealth Government.


Is spend by subcontractors involved in a project eligible?

Yes, if you are contracted directly by the head contractor*, in other words if you are one level down from head contractor, your eligible spend can be included by the head contractor. If you are sub-contracted by sub-contractors (in other words, 2 or more levels down from the head contractor), your spend may not be included, and the head contractor would typically require permission from the relevant Government Agency to include spend from level 2 down. This applies to both directly and indirectly related expenditure provided it meets the spending allocation requirements outlined in APIC.

*party appointed by the relevant Government Agency

Timeframe for incurring expenses

Will full spend incurred up to 12 months after completion be eligible for APIC, or does it need to be pro-rated for the duration of the project?

Yes, all eligible spend may be included 12 months post the project completion. For example, if the project takes 6 months, 18 months’ salaries may be eligible, and does not have to be pro-rated for the duration of the project.


What if you paid upfront for training which extends beyond the project timeframe? Can the full amount be claimed?

Yes, even training expenses that are eligible can be included up to costs incurred 12 months post the project completion. For example, if it is training that takes 4 years to complete, and the project takes 6 months, you can include 18 months’ portion of the costs.

Spending on multiple projects

Is there a risk of double-dipping, in other words, that expenses are included in more than one project?

Inclusion of a duplicate spending activity on multiple projects is not permitted

APIC spend directly related to the project

Definition of Aboriginal person/ people

How do I determine if a person is Aboriginal?

There is no test or measure other than the person’s declaration that they are Aboriginal. Therefore, for the purposes of APIC compliance, you may ask if your staff declare themselves as Aboriginal, but you cannot question their heritage. We strongly recommend that the question clearly states that the information is required for the purpose of APIC compliance.


Is there a difference between the terms ‘Aboriginal person’ and other terms such as ‘Indigenous person’?

Yes, there is a difference. Indigenous people, First Australians or First People is a broader term, which includes both Aboriginal people and Torres Strait Islander people. Note that the specific term ‘Aboriginal people’ is used in APIC, and not any other terms, such as Indigenous person or First Australians or First People, or any other terms which may include Torres Strait Islander people.


What documentation, if any, is required to prove an employee is an Aboriginal person?

The NSW Government does not require any documentation from an employee to prove that they are Aboriginal. All that is required is a self-declaration by the employee. CCF NSW suggests that this should be obtained in writing. Members can contact CCF NSW for an appropriate pro-forma statement.


What if there is a dispute about whether a person is indeed an Aboriginal person?

Should there be a dispute about this aspect, for example by a community group, your APIC compliance will not be affected if an employee self-declared that they are Aboriginal.

Members can contact CCF NSW if they have a dispute and need help.

Employee-related expenses of Aboriginal people engaged in the project

Other spend on the engagement of Aboriginal people through GTOs and labour hire companies

What is a ‘recognised group training company’ – recognised by whom?

Training Services publishes a list of group training organisations (GTOs) that are registered in NSW under the Apprenticeship and Traineeship Act 2001. These GTOs have been audited by independent auditors and are compliant with the National Standards for Group Training Organisations. Similarly, should GTOs from another Australian state or territory be engaged, their equivalent registration would be accepted, for example, the Queensland Government GTO List or the National GTO Register.


What documentation, if any, is required to prove that it is a recognised group training company?

No proof required, as long as the GTO is included on the Training Services NSW published list (or the equivalent Government organisation in another State or Territory). If you have an expense in this category which you think should be eligible, but the GTO is not registered as a GTO by Government, it may still be included, but you should get approval from the relevant Government Agency or the NSW NSW Procurement Board.

Spend on consulting and engaging with Aboriginal communities in the area where the project will be delivered

What is a ‘recognised Aboriginal Business’ – recognised by whom?

See NSW Procurement Board Direction 2013-04 for the definition of a recognised Aboriginal business. As at 1 May 2016, the NSW Government Recognises businesses that meet the following criteria:


What is an Indigenous enterprise?

An indigenous business is defined as follows in the Australian Government’s Indigenous Procurement Policy:

For the purposes of the policy, an Indigenous enterprise is a business that is 50 per cent or more owned by Indigenous Australians. Supply Nation maintains a list of Indigenous enterprises that meet this definition that can be accessed http://www.supplynation.org.au. If an enterprise states that it is an Indigenous enterprise and it is not listed with Supply Nation, the procuring officer must take steps to assure themselves that the enterprise is 50 per cent or more Indigenous owned.


What documentation, if any, is required to prove that it is a recognised Aboriginal Business?

As long as a business is listed on Supply Nation and NSW Indigenous Chamber of Commerce’s directories, no documentation is required. For your own records, you may wish to make a print out of the list that the company appears on at the time of the relevant project, in case that company is later delisted.

Spend on the education of Aboriginal people

Will contractors be required to deduct subsidies from APIC eligible training spend?

Employers may be compensated for some of the training costs under Government schemes or subsidies. Only the balance of expenses incurred by the contractor (or one level down sub-contractor), after deducting any government subsidies or schemes will be accepted.


Will in-house training expenses be eligible?

Yes, all reasonable spend may be included, such as in-house costs, paying for the time other employees are engaged in conducting training, travel, accommodation, buying tools, etc. It is unlikely that the contracting Agency will accept an allocation of indirect expenses, like offices, air-conditioning, support functions (finance department) which did not change significantly as a result of complying with APIC. If in doubt, check with the relevant Government Agency or the NSW Procurement Board.

Spend for engagement with Aboriginal land councils, NSW ICC & Supply Nation or other Aboriginal community representative bodies nominated by the NSW Procurement Board

Is only money paid directly to these recognised Aboriginal bodies eligible?

Yes, only money paid directly to these bodies may be included. In exceptional circumstances you may be able to justify indirect or in-house expenses, but you will need to obtain approval from the relevant Government Agency, or NSW Procurement Board.


Where can I obtain a list of other Aboriginal community bodies nominated by the NSW Procurement Board?

The NSW Procurement Board will soon publish a list of Aboriginal community representative bodies. Until the list is published, contact the NSW Procurement Board if you have questions.

Other spend indirectly related to the project, but that contribute to the education and employment goals outlined in OCHRE

NSW Procurement Board approved charitable bodies, trusts or other NFP organisations

Where can you obtain a list of approved organisations which contractors may support to meet their obligations?

The NSW Procurement Board will soon publish a list of approved charitable bodies, trusts or other NFP organisations which contractors may support to meet their obligations. Until the list is published, contact the NSW Procurement Board if you have questions.


What is the process for obtaining NSW Procurement Board approval and how long does it usually take?

Applications may be made by writing to the NSW Procurement Board to provide the details of the organisation, how it supports OCHRE, its goals, achievements, any relevant accreditations, any relevant legal documents confirming its registrations or legal status, charters, deeds, etc.


How long does it usually take to obtain NSW Procurement Board approval for these organisations?

The Board meets every 6-8 weeks to review applications. The process doesn’t take very long, assuming the application is complete and doesn’t require significant clarification or additional processes to convince the Board that the organisation is legitimately promoting OCHRE’s goals.

APIC Reporting

What forms are required?

Head contractors* for all projects covered by this policy must provide both an Aboriginal Participation Plan and a Participation Report to the relevant agency and NSW Procurement Board.

*party appointed by the relevant Government Agency


What is an Aboriginal Participation Plan?

The participation plan shows how you intend to direct the targeted project spend to appropriate Aboriginal education and employment opportunities.


What is an Aboriginal Participation Report?

The participation report shows how the participation plan was implemented and what outcomes were achieved. It must be provided when the project reached 90 percent completion.


What is the format of the plan and report, and where do I get them from?

The NSW Procurement Board specifies standard templates for both the Aboriginal Participation Plan and a Participation Report. This is available on the NSW Procurement Board’s ProcurePoint website.


Where do plans and reports go?

Contractors for all projects covered by this policy must provide both an Aboriginal Participation Plan and a Participation Report to the Agency. Category 1 and Category 2 projects are also required to provide their Aboriginal Participation Plans and Participation Reports to the NSW Procurement Board for publication at the same time they are provided to the contracting Agency. They will be published on a specific site determined by the Board and must remain on the site for at least two years from the conclusion of the project. Category 3 projects are exempt from these publishing requirements until 1 July 2016. As a matter of good practice, contractors and Agencies are encouraged to submit participation plans for publication up until this time.


When are reports required?

Aboriginal Participation Plans must be provided within 60 days of the contract being awarded. Participation Reports must be provided when the project reaches 90 per cent completion to explain how the Participation Plan has been implemented.


Who needs to complete and submit the Participation Plan and Report?

The head contractor* needs to submit the form. However, if you are sub-contracted by the head contractor, you may be asked by them to complete a similar form for them to include in their reporting.

*party appointed by the relevant Government Agency


What needs to be recorded for each spend category?

Estimated amounts, and recipients (if known) should be recorded for every category of APIC spend on NSW Government’s APIC Participation Plan and Report templates.

APIC Non-Compliance

Are there any fines for not reaching APIC targets in Participation Plans?

When contractors complete Aboriginal Participation Plans and estimated spend does not reach APIC targets, there will neither be fines nor will contractors be precluded from participating in future NSW Government contracts. However, the NSW Procurement Board will be publishing all Participation Plans. Therefore, a contractor’s performance will be made public and any under or over-performance may have implications for the reputation of the contractor.


Are there any fines for not reaching APIC targets in Participation Reports?

No there are no fines. If contractors are not able to achieve the targets they will also not be precluded from participating in future NSW Government contracts. However, if there was evidence of any fraudulent or negligent actions by the contractor in terms of its implementation of its Aboriginal Participation Plan, Government has recourse to the normal procedures to deal with fraud or negligence via general probity rules and codes of conduct. Such behaviour may also impact on your CCF NSW membership, in view of the CCF NSW code of conduct. Also, the NSW Procurement Board will be publishing all Participation Reports (which state how targets committed to in Participation Plans were implemented). Therefore, a contractor’s performance will be made public and any under or over-performance may have implications for the reputation of the contractor.

The Commonwealth Government Indigenous Procurement Policy

What is the Commonwealth Government’s Procurement Rules Indigenous Exemption 17

In short, the Commonwealth Government’s Indigenous Procurement Policy came into effect from July 2015 and has its own targets and stipulations, including:

  1. Commonwealth Agencies must meet annual purchasing targets (varies, and goes up to 3% by 2020), for certain projects, including Commonwealth building, construction & maintenance contracts valued at over $7.5 million.
  2. Allows a Commonwealth Agency to approach an indigenous SME business directly (via limited tender) for a quote for the provision for goods and services (Exemption 17 of the Commonwealth Procurement Rules)
  3. Requires a mandatory set-aside (in other words, Indigenous Business are considered first) for contracts valued between $80,000 and $200,000; or for projects delivered in remote Australia.

How does Commonwealth Indigenous Procurement interface with NSW’s APIC?

If a project falls under the Commonwealth Procurement Rules (CPRs) (for example, this may be the case when the Commonwealth finances the majority of a project), then the CPRs, including the Commonwealth’s requirements for Indigenous participation levels will override APIC. Make sure you check whether NSW’s APIC or the CPRs apply for a project.

More information about APIC

Where can I get more information about APIC?

See NSW Government’s ProcurePoint webpage on APIC, including a copy of the APIC policy document, information for contractors, and reporting templates.

Help offered by CCF NSW

What else is CCF NSW doing for me?

CCF NSW has developed a number of tools to help our Members comply with APIC, including:

CCF NSW is also undertaking a range of other activities in terms of its Industry Based Agreement (IBA) for Aboriginal Employment and Enterprise Development with the NSW Government, including:

  • Conducted a survey of Civil Construction and Maintenance employers in NSW to establish a benchmark of the extent and nature of current Aboriginal employment
  • Developed an Industry Engagement Strategy, which includes mentoring programmes, to help Members access an effective way of achieving APIC spend targets and to create a pool of talented industry-ready Aboriginal employees
  • Advising the NSW Government on appropriate industry-specific communications to the civil contracting industry.

Contact at CCF NSW

Who can I contact at CCF NSW?

Contact CCF NSW by phone 02 9009 4000 or by email ccfnsw@ccfnsw.com