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1. Access to the Workplace
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o), 11(3)(p)
Clause wording
38.1 – An official of the Union may have access to the Employer’s premises, at any time, for the following purposes connected to this Agreement.
(a) to represent employees under any term of this agreement which creates a right to representation;
(b) to deal with disputes and represent employees under the dispute resolution procedure set out in this agreement;
(c) to represent employees and meet with the employer about the negotiation of a replacement agreement;
(d) to attend induction meetings for new employees of the company;
(e) for any other purpose connected to the relationship between the Union
and the employer.
38.2 – A Union Communication Meeting with the Employees may be held once per shift.
38.3 – The Branch Secretary of the Union will notify the Employer of such meetings. The meetings will be held on a reasonable basis and no more frequently that one per shift. The meetings will be of no more than 2 hours duration and may occur during paid time for the purposes associated with this agreement identified above. Management will not unreasonably withhold agreement to paid meetings of union members.
Advice
This clause does not meet the requirements of section 11.
To the extent that a meeting of up to two hours duration may be held per shift, the clause imposes or purports to impose limits on the right of the code covered entity to manage its business or improve productivity. The clause also limits the employer's ability to determine with its employees when and where work can be performed to meet operational requirements or limits an employer's ability to determine by whom such work is to be performed.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
2. Conflict Resolution
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
The relevant Union official commits to make him/herself available to be involved at any stage of the procedure as required, or in respect of any potential dispute. The Company agrees to facilitating access to the project for the relevant Union official to represent Employees under this procedure subject to the Union official complying with all site rules and reasonable requests and reasonable directions of site management.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
3. Consultation
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
33.2 - The Employer must recognise the Union (or other representative) and consult in good faith in relation to such proposed changes, including by allowing Employees access to a relevant Union official in the workplace to assist Employees in the consultations relating to the proposed workplace changes.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
4. Consultation On Major Workplace Change
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
The Company must recognise the Union (or other representative appointed by an Employee) and consult in good faith in relation to such proposed changes, including by allowing entry to company premises to assist with representing Employees in consultations relating to the proposed workplace changes. Provided however this clause shall not be construed as providing any rights which are inconsistent with s 194(f) or (g) of the FW Act.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
5. Consultation Regarding Major Change
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
The Company must recognise the Union (or other representative appointed
by an employee) and consult in good faith in relation to such proposed changes, including by allowing entry to Company premises to assist with representing Employees in the consultations relating to the proposed workplace changes.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
6. Consultative Committee
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
Nothing in this Agreement prevents the Union from being invited by Consultative Committee Members to attend meetings from time to time. Where attendance of the Union by the Consultative Committee is requested, the Company shall recognise that request.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
7. Counselling and Disciplinary Procedures/termination of employment
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
In the event that an Employee fails to maintain satisfactory performance levels in the case of general misconduct (e.g., lateness for work), the following counselling procedure will be applied. An Employee may elect at any step to have a Union delegate/representative or Union Organiser present. Each Employee has the right to determine whether they wish to be represented by a Union Delegate, Employee Representative, another representative of their choosing or not at all.
Advice
The clause does not meet the requirements of section 11.
The clause provides for the right of an official of a building association to enter into premises other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
8. Counselling and Disciplinary Procedures/Termination of Employment
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
Serious and Wilfil Misconduct
...The Employee shall be entitled to have a Union delegate/representative or Union Organiser in attendance and will have the opportunity to respond to the allegation. If appropriate the Company may then issue a written notice of dismissal detailing the reasons for the dismissal.
Advice
The clause does not meet the requirements of section 11.
The clause provides for the right of an official of a building association to enter into premises other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
9. Dismissal
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
Prior to reaching any decision to terminate the employment of an Employee
on grounds other than would justify summary dismissal, the Company will:
(a) Advise an Employee that they have a right to be represented at every stage of this process by a representative of their choosing which may be a Union representative. If the Employee chooses to be represented, the Company will not proceed until that representative is present in the workplace.
Advice
This clause does not meet the requirements of section.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
10. Dispute Resolution Procedure
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
If a party is represented by a Union representative, or other representative, who is not present in the workplace, discussions in relation to the issue will not proceed until the Union representative, or other representative, is able to attend.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
11. Dispute Resolution Procedure
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
The Company agrees to engage with the Union in good faith for the purposes of dispute resolution by allowing the relevant Union official to enter the workplace to assist with representing Employees to deal with a dispute under the terms of this dispute resolution procedure provided however this clause shall not be construed as providing rights which are inconsistent with s 194 (f) or (g) of the Fair Work Act.
Advice
This clause does not meet the requirements of section 11.
The clause provides a right for an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
12. Dispute Settlement Procedure
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(p), 13(2)(o)
Clause wording
In the absence of any express appointment to the contrary, Union members shall be represented by their Union at all stages of the dispute settlement process. The Company agrees to engage with the Union in good faith for the purposes of dispute resolution including by allowing the relevant Union official to enter the workplace, in accordance with the Act, to assist with representing Employees to deal with a dispute under the terms of this dispute resolution procedure. Provided however this clause shall not be construed as providing any rights which are inconsistent with s 194(f) or (g) of the Act.
Advice
This clause does not meet the requirements of section 11.
This clause mandates that in the absence of any express appointment to the contrary, employees will be represented by the Union in the disputes process. The clause does not provide employees with freedom of choice in deciding whether to be represented in grievance or dispute procedures, and, if so, by whom.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
13. Dispute Settlement Procedure
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
If a party is represented by a Union representative, or other representative,
who is not present in the workplace, discussions in relation to the issue in dispute will not proceed until the union representative, or other representative, is able to attend.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
14. Employee Representative
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
If there is not already an Employee Representative in the workplace there shall be an election for a Employee Representative. In addition the position of Employee Representative shall be open for election every two years. The Company agrees to allow for a paid meeting of all employees so that the Union is able to conduct an election.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
15. Entry to Premises
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
2.7.1 – Subject to clause 2.7.2 below, a Permit Holder may enter premises occupied by the Company for any purpose that relates to the Union’s legitimate role in representing employees, including:
(a) to assist with representing an Employee under a term dealing with the resolution of disputes or consultation over workplace change; or
(b) to attend induction meetings of new Employees; or
(c) to attend toolbox meetings or equivalent, provided that prior notice is given by the Permit Holder; or
(d) to meet with the Company when bargaining for a replacement to the current Agreement.
2.7.2 – Notwithstanding the above clause, or any other term in this agreement, this Agreement does not:
(a) provide an entitlement to enter premises for a purpose referred to in s.481 of the Fair Work Act 2009 (which deals with investigation of suspected contraventions); or
(b) provide an entitlement to enter premises for a purpose referred to in s.484 of the Fair Work Act 2009; or
(c) provide for the exercise of a State or Territory OHS right.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where building work is performed other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
16. Facilitative Provisions for Collective Representation – Rights of entry and access
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o), 11(3)(p)
Clause wording
a) An official of the Union may have access to the Employer’s premises, at any time, for the following purposes connected with this agreement
(i) To represent employees under any term of this agreement which creates a right to representation;
(ii) To deal with disputes and represent employees under the dispute resolution procedure set out in this agreement;
(iii) To represent employees and meet with the employer about the negotiation of a replacement agreement;
(iv) To attend induction meetings for new employees of the company; and
(v) For any other purpose connected to the relationship between the Union and the employer.
b) Officials will not unduly hinder the productivity of the workplace. The union can, by agreement, hold paid meetings of union members for the purposes associated with this Agreement identified above. Management will not unreasonably withhold agreement to paid meetings of union members.
Advice
This clause does not meet the requirements of section 11.
To the extent that the union may hold paid meetings of union members, the clause imposes or purports to impose limits on the right of the code covered entity to manage its business or improve productivity. The clause also limits the employer's ability to determine with its employees when and where work can be performed to meet operational requirements or limits an employer's ability to determine by whom such work is to be performed.
The clause provides for the rights of an official of a building association to enter premises other than in compliance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
17. Grievance and dispute settling procedures
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(p), 13(2)(o)
Clause wording
7.6 - Parties to a dispute may appoint a person or organisation of
their choosing to represent them in the dispute settlement process. In the absence of any express appointment to the contrary, Union members shall be represented by their Union at all stages of the dispute settlement process. The Employer agrees to engage with the Union in good faith for the purposes of dispute resolution including by allowing the Union official to enter the workplace to assist with representing Employees to deal with a dispute under the terms of this dispute resolution procedure.
7.7 - The Employer agrees to engage with the Union in good faith for the purposes of dispute resolution including by allowing the Employees access to a relevant Union official in the workplace to assist with representing Employees dealing with a dispute under the terms of this dispute resolution procedure.
Advice
This clause does not meet the requirements of section 11.
This clause mandates that in the absence of any express appointment to the contrary, employees will be represented by the Union in the disputes process. The clause does not provide employees with freedom of choice in deciding whether to be represented in grievance or dispute procedures, and, if so, by whom.
Further, the clause provides a right for an official to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
18. Parties to the resolution of issues
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
At any stage in the resolution of an issue, any party or employee may call in the Union or an employer association or other representative to assist the parties to resolve the issue.
Advice
This clause does not meet the requirements of section 11.
The clause provides a right for an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
19. Parties to the resolution of issues
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
(b) At any stage in the resolution of an issue, any party or Employee may call in a representative of their choice to assist the parties to resolve the issue.
Advice
This clause does not meet the requirements of section 11.
The clause provides a right for an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
20. Procedure for dealing with safety issues or incidents
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
8.3 - The Parties agree the representatives shall be entitled to enter
the workplace for the purposes of:
a) inspecting any work system, plant, substance, structure or other thing relevant to resolving the issue;
b) consulting with relevant Employees in relation to resolving the issue;
c) consulting with the relevant PCBU (as defined in the WHS Act) about resolving the issue;
d) attending and participating in discussions with any of the parties about resolving the issue;
e) inspect and take copies of any document that is directly relevant to resolving the issue; and
...
8.4 - Any inspection shall be conducted by all nominated Parties.
8.6 - As soon as the Parties are informed of the issue, all Parties must meet or communicate with each other to attempt to resolve the issue.
8.11 - The Employer provides a standing invitation for authorised representatives of the Union covered by this Agreement to enter the workplace for the purposes of dealing with safety issues or incidents in accordance with clause 8 of this Agreement. Application of this process is in no way intended to breach Right of Entry provisions under Part 3-4 of the FW Act or the WHS Act.
Advice
This clause does not meet the requirements of section 11.
The clause provides a right for an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
21. Representation
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
The Employer agrees to engage with the Union in good faith for the purposes of dispute resolution including by allowing the relevant Union official to enter the workplace to assist with representing Employees to deal with a dispute under the terms of this dispute resolution procedure.
Advice
This clause does not meet the requirements of section 11.
The clause provides a right for an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
22. Resolving Other Issues
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
(k) An Employee Representative or an official of the Union shall be allowed to enter the workplace (excluding residential premises) to assist with representing an employee(s) under the dispute resolution clause in this Agreement.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
23. Resolving Other Issues
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
(k) An Employee Representative or an official of the Union shall be allowed to enter the workplace (excluding residential premises) to assist with representing an employee(s) under the dispute resolution clause in this Agreement.
(i) Prior to seeking entry
A. A dispute has been submitted to the Employer in accordance with clause 15.2(a) notifying the Employer of the nature of the dispute (as far as practicable), and which employees are affected (as far as practicable);
B. A person involved in the dispute has sought the assistance of the representative; and
C. The parties have discussed mutually convenient arrangements for the entry, having regard to the operational requirements of the workplace;
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
24. Resolving Other Issues
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
(k) An Employee Representative or an official of the Union shall be allowed to enter the workplace (excluding residential premises) to assist with representing an employee(s) under the dispute resolution clause in this Agreement provided that:
i. prior to seeking entry:
A. a dispute has been submitted to the Employer in accordance with clause 15.2(a) notifying the Employer of the nature of the dispute (as far as practicable), and which employees are affected (as far as practicable);
B. a person involved in the dispute has sought the assistance of the representative (or official); and
C. the parties have discussed mutually convenient arrangements for the entry, having regard to the operational requirements of the workplace.
Advice
This clause does not meet the requirements of section 11.
The clause provides for the rights of an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the FW Act. .
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
25. Tool Box Meetings
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(k), 11(3)(p)
Clause wording
A tool box meeting will be held per site each month to facilitate and foster communication and consultation. All parties to this Agreement shall be invited. Items to be discussed at each meeting may include: programming of site work, site issues, Workplace Health and Safety, job design, productivity issues, management policies, agreement compliance, wages and conditions, compliance with statutory obligations and any other relevant issue raised. Notice of the meeting will be given at least one (1) week prior to the scheduled date including to the authorised representative of the Union.
Advice
This clause does not meet the requirements of section 11.
The clause provides that "agreement compliance" may be discussed at the meetings and accordingly the clause is not compliant with clause 11(3)(k) as it provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies.
By providing that all parties (and 'parties' is defined to include the union) to the agreement will be invited to the one hour paid tool box meeting, the clause provides for the rights of an official of a building association to enter premises where work is performed other than in accordance with Part 3-4 of the Fair Work Act 2009.
Note: A clause will not be inconsistent with the requirements of section 11 of the Building Code 2016 to the extent it provides for access to premises other than those where building work is performed.
