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26. Union Rights promoting representation of members
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
A standing invitation exists for any representative of the Union covered by this Agreement to enter any place where Employer, Employees or representatives are for purposes including, but not limited to, dispute resolution or consultation meetings but not for purposes for which a Right of Entry exists under Part 3-4 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 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.
27. Employee Representatives’ Rights
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(m), 11(3)(n), 13(2)(g)
Clause wording
...
(f) The right to address all new employees about the benefits of Union membership at the time they enter employment and/or prior to employees commencing work at a site.
…
Advice
The provisions of this clause do not meet the requirements of section 11.
The clause directly or indirectly requires encouragement of a person to become a member of a building association. It also directly or indirectly requires a person to indicate support, or lack of support, for persons being members of a building association.
28. Union Recognition
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(m), 11(3)(n), 13(1)(a)(i), 13(2)(g)
Clause wording
a. Collective industrial relations will continue as a fundamental principle of the Employer.
b. Union membership shall be promoted by the Employer to all prospective and current Employees.
c. To ensure all new employees properly understand their rights under this Agreement, the Shop Steward shall, as part of the official induction program, be allowed to explain to the new employees how the terms of this agreement operate and benefit the Employees.
d. The employees who are members of the Union shall be encouraged to participate in Union meetings and exercise their democratic rights.
Advice
The provisions of this clause do not meet the requirements of section 11.
The clause directly or indirectly requires encouragement of a person to become a member of a building association. It also directly or indirectly requires a person to indicate support, or lack of support, for persons being members of a building association.
Further, this clause provides for officials, delegates or other representatives of a building association to undertake or administer inductions. The responsibility for undertaking induction processes rests with whoever has management of the site. It is a non-delegable duty.
29. Union Rights promoting representation of members
Advice Category
Non-compliant
Code Reference
11(1)(c), 11(3)(m), 11(3)(n), 13(1)(a)(i), 13(2)(a)
Clause wording
32.7 - The Employer will provide any information to the Union about Employees that the Union requires.
32.8 - The Employer will provide information about the Union to an Employee that the Union requires, providing it is reasonable to do so.
Advice
This clause does not meet the requirements of section 11.
The clause directly or indirectly requires encouragement of a person to become a member of a building association. It also directly or indirectly requires a person to indicate support, or lack of support, for persons being members of a building association.
This clause may also result in the disclosure of personal information to a third party other than in accordance with the Privacy Act 1988 or the Fair Work Act 2009.
30. Allowances
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(f), 11A(1)(b)
Clause wording
The Employer will notify the Union in writing about any Site Agreements that will apply to those employees on specific projects and will ensure that those employees will receive all entitlements under those agreements, in addition to those in this Agreement.
Advice
This clause does not meet the requirements of section 11.
The clause is inconsistent with section 11A(1)(b) because it requires or provides for the application of terms and conditions contained in an enterprise agreement that does not cover and apply to the relevant employer and employees. A clause of this kind imposes or purports to impose limits on the right of a code covered entity to manage its business or improve productivity.
31. Building Code Compliance
Advice Category
Non-compliant
Code Reference
11(1)(a), 11A(1)(a)
Clause wording
The bargaining representatives for this agreement note that the Federal Government has foreshadowed that a new Building Code may apply to this Agreement during the period of its operation. At the time of bargaining, the proposed terms of that new Code, and when it will pass parliament, are uncertain and imprecise.
The parties will comply with the new Code should it come into effect. Should the new Code come into effect, the terms of this Agreement will apply to the extent of any inconsistency with the provisions of the new Code, provided that the Agreement cannot, as a result.
(a) contain an unlawful term; or
(b) otherwise apply in a manner inconsistent with the Fair Work Act.
Advice
This clause does not meet the requirements of section 11.
The clause is inconsistent with section 11A(1)(a) because it purports to remedy, or render ineffective, clauses in an enterprise agreement that are inconsistent with section 11. A clause of this kind imposes or purports to impose limits on the right of a code covered entity to manage its business or improve productivity.
32. Code Compliance
Advice Category
Non-compliant
Code Reference
11(1)(a), 11A(1)(a)(ii)
Clause wording
To ensure code compliance on projects commenced before 1 February 2013 any term in this agreement, that would prevent it from being compliant with the code applicable to those projects, is severable for the duration of work performed on those projects. The severance of any term of this agreement in accordance with this clause shall not be taken to affect the binding force and effect of the remainder of the agreement.
Advice
This clause does not meet the requirements of section 11A.
This clause is inconsistent with section 11A(1)(a)(ii) because it purports to remedy, or render ineffective, clauses in an enterprise agreement that are inconsistent with section 11 by providing that such clauses are to have no effect. A clause of this kind imposes or purports to impose limits on the right of a code covered entity to manage its business or improve productivity.
33. Employee Information
Advice Category
Non-compliant
Code Reference
11(1)(a), 11A(1)(a)
Clause wording
This clause does not operate to breach the Fair Work Act 2009, the Building and Construction Improvement Act 2005, the National Privacy Principles (as they apply to the Company) and the National Code of Practice for the Construction Industry. This clause will be deemed invalid if the operation breaches such legislation or code.
Advice
This clause does not meet the requirements of section 11
This clause is inconsistent with 11A(1)(a) because it purports to remedy, or render ineffective, clauses in an enterprise agreement that are inconsistent with section 11. A clause of this kind imposes or purports to impose limits on the right of a code covered entity to manage its business or improve productivity.
34. Scope and Application of Agreement
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(f), 11A(1)(b)
Clause wording
Site/Project Allowances will be paid:
ii) Where such an allowance is required by a site condition specified at the time of tender. It is incumbent upon the company to enquire of the Head Contractor/Client at the time of tender whether a site/project allowance is required to be paid. All site and project allowances must be in accordance with the National Code of Practice for construction industry; or
iii) If the Contract between the Employer and the Head Contractor/Client does not contain provision for a site allowance, and after the contract is made the head contractor makes an agreement under which a site allowance is payable, then the head contractor should then agree in writing to reimburse the employer the full cost of the said allowance.
Advice
This clause does not meet the requirements of section 11.
The clause prescribes the terms and conditions on which subcontractors must be engaged.
The clause is inconsistent with 11A(1)(b) because it requires or provides for the application of terms and conditions contained in an enterprise agreement that does not cover and apply to the relevant employer and employees. Such a clause imposes or purports to impose limits on the right of the code covered entity to manage its business or improve productivity.
35. Step Up Payments
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(f), 11A(1)(b)
Clause wording
Where employees are working on a project where entitlement of employees of the builder of the project is more favourable to such employee than an entitlement provided by this agreement, the more favourable entitlement applies.
Advice
This clause does not meet the requirements of section 11.
The clause prescribes the terms and conditions on which subcontractors must be engaged.
The clause is inconsistent with section 11A(1)(b) because it requires or provides for the application of terms and conditions contained in an enterprise agreement that does not cover and apply to the relevant employer and employees. A clause of this kind imposes or purports to impose limits on the right of a code covered entity to manage its business or improve productivity.
36. Wages – Jump Up
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(f), 11A(1)(b)
Clause wording
Where Employees are working on a site where a site specific major project agreement or an enterprise agreement covering Employees of the principal contractor or the Employer's client is in place and is more favourable to such Employees than this Agreement, the more favourable entitlement applies to Employees of the Employer.
Advice
This clause does not meet the requirements of section 11.
The clause is inconsistent with section 11A(1)(b) because it requires or provides for the application of terms and conditions contained in an enterprise agreement that does not cover and apply to the relevant employer and employees. Such a clause imposes or purports to impose limits on the right of the code covered entity to manage its business or improve productivity.
37. Allowances – Living Away from Home Allowance
Advice Category
Compliant
Code Reference
Clause wording
Where reasonable board and lodging are not available, the Employer and the Union may agree to alternative arrangements.
Advice
Compliant
38. Purpose of Agreement
Advice Category
Compliant
Code Reference
Clause wording
Any existing employment conditions or entitlements that are superior to those contained in this Agreement will continue to apply unless otherwise agreed by the relevant employee and Employer, as long as such conditions are not inconsistent with the Building Code 2013.
Advice
Compliant
39. Purpose of Part B
Advice Category
Compliant
Code Reference
Clause wording
Any existing employment conditions or entitlements that are superior to those contained in this Agreement will continue to apply unless otherwise agreed by the parties. The Union will make the Employer aware of this clause and its effect at the time of entering into the agreement.
Advice
Compliant
40. Relationship to Parent Award
Advice Category
Compliant
Code Reference
Clause wording
The making of this Agreement does not affect existing above agreement payments and conditions of employment, unless the terms of this Agreement express that no other arrangements will apply.
Advice
Compliant
41. Relationship to awards, agreements, and other documents
Advice Category
Compliant
Code Reference
Clause wording
This Agreement is intended to be interpreted in conjunction with the Building and Construction General On-Site Award 2010, Mobile Crane Hiring Award 2010, and the terms of the Union Workplace Impairment Policy and Procedures (or other Policy with express written agreement between the Parties), QIRC Order (No B585 of 2003) Apprentices’ and Trainees’ Wages and Conditions (Excluding certain Queensland Government entities) 2003 as it was immediately prior to its rescission.
Where this Agreement is silent, the terms of the above documents as amended from time to time during their life, apply. Where there is conflict between a term of this Agreement and a term of the above documents, or a conflict between 2 terms of this Agreement, the higher wage outcome or other outcome more favourable to the Employee will apply.
Advice
Compliant
42. Employee Awareness
Advice Category
Compliant
Code Reference
Clause wording
All current Employees will be given a copy of this Agreement, along with all future Employees upon commencement. New Employees will be provided with the contact details of the delegate referred to in clause 32 of this Agreement.
Advice
Compliant
43. Induction Procedures
Advice Category
Non-compliant
Code Reference
11(1)(c), 13(2)(p)
Clause wording
(ii) Responsibility
It is agreed that this is a joint responsibility of both Site Management and Job Stewards.
Advice
This clause does not meet the requirements of sections 11.
The clause provides for officials, delegates or other representatives of a building association to undertake or administer inductions.
44. Induction Procedures
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(m), 13(2)(p)
Clause wording
(iii) Overview
In order to achieve this, it is recommended that, in conjunction with the Site Management, Shop Steward, Employee Representatives (if any) and Safety Supervisor/Safety Committee, new employees and new contractors be given an explanation of the following:
* Rights; obligations and benefits of Union membership
Advice
This clause does not meet the requirements of sections 11.
The clause provides for officials, delegates or other representatives of a building association to undertake or administer inductions.
The clause directly or indirectly requires encouragement of a person to become a member of a building association. It also directly or indirectly requires a person to indicate support, or lack of support, for persons being members of a building association.
45. Union Recognition
Advice Category
Non-compliant
Code Reference
11(1)(c), 13(2)(p)
Clause wording
To ensure all new employees properly understand their rights under this Agreement, the Shop Steward shall, as part of the official induction program, be allowed to explain to the new employees how the terms of this agreement operate and benefit the Employees.
Advice
This clause does not meet the requirements of sections 11.
The clause provides for officials, delegates or other representatives of a building association to undertake or administer inductions.
46. Union Rights promoting representation of members
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(p), 13(2)(p)
Clause wording
The Employer must invite the Union to attend every Employer induction for new Employees and to address Employees for at least half an hour per attendance, or other reasonable duration by mutual agreement between the parties.
Advice
This clause does not meet the requirements of section 11.
The clause provides for officials, delegates or other representatives of a building association to undertake or administer inductions.
The clause also 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.
47. Counselling Procedure
Advice Category
Compliant
Code Reference
Clause wording
In the case of serious and wilful misconduct; the following procedure will be followed:
b. The Employee will be entitled to have a person or persons of his or her choice, which may or may not include a Union delegate or Union organiser, in attendance (subject to compliance with lawful right of entry requirements);
...
Advice
Compliant
48. Delegates
Advice Category
Compliant
Code Reference
Clause wording
27.2.1 The Company shall recognise an Employee who is authorised by the Union to act a delegate covered by this Agreement.
Advice
Compliant
49. Dispute Resolution Procedure
Advice Category
Compliant
Code Reference
Clause wording
Union members are entitled to be represented by their union at every stage of this process. Employees who are not union members may also choose to be represented. Each party shall recognise the others representative for all purposes involved with the resolution of the dispute.
Advice
Compliant
50. Dispute Resolution Procedure
Advice Category
Non-compliant
Code Reference
11(1)(c), 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.
Advice
This clause does not meet the requirements of section 11.
This clause mandates that where an employee does not make an express appointment, they will be represented by the union in the dispute process. Employees must be provided a freedom of choice in deciding whether to be represented in a grievance or disputes procedure, and, if so, by whom.
