51. Delegates and Their Rights
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(k), 13(1)(a)(ii), 13(2)(a), 13(2)(o)
Clause wording
d) The delegate shall be entitled to represent members or potential members in relation to industrial matters at the workplace, and without limiting the generality of that entitlement is entitled to be involved in representing members or potential members:
At all stages in the negotiation, renegotiation and/or implementation of enterprise agreements or other industrial instruments
The introduction of new technology and other forms of workplace change
Career path, reclassification, training issues and to initiate discussions and negotiations on any other matters affecting the employment of members
Ensuring that workers on site are paid their correct wages, allowances and other lawful entitlements
To check with relevant industry schemes so as to ensure that superannuation, redundancy etc has been paid on time for all Employees and long service credited to a workers long service registration
Consultation, and access to reasonable information about the workplace and the business
Be notified of the termination of any Employee for any reason
Advice
This clause does not meet the requirements of section 11.
To the extent this provision provides for representation by the union delegate independent of a choice made by the employee, this clause interferes with the freedom of employees to choose whether or not to be represented by a building associations (section 13(1)(a)(ii)).
Further, 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 (section 13(2)(o)).
In addition, to the extent that the clause entitles the delegate to ensure that workers on site are paid their correct wages and entitlement and to check with relevant industry schemes to ensure that entitlements have been paid on time and properly credited, this clause provides for the monitoring of the agreement by persons (i.e. the delegate, acting in that capacity) other than the employer and employees to whom it applies (section 11(3)(k)).
Providing access to information of the kind referred to above may also result in the disclosure of personal information to a third party other than in accordance with the Privacy Act 1988 (Cth) (section 13(2)(a)).
52. Employee and OHS Representatives (Election of Employee Representatives and OHS Representatives)
Advice Category
Compliant
Code Reference
Clause wording
(i) All persons covered by this Agreement recognise that Employees have the right and expectation of representation in relation to employment issues from genuine Employee Representatives. The Employer must not interfere in the selection of Employee Representatives.
(ii) The Employer recognises that union members employed by the Employer have a right to be represented by their union, in the consultation and dispute resolution arrangements in this Agreement.
Advice
Compliant
53. Employee Representatives’ Rights
Advice Category
Compliant
Code Reference
Clause wording
...
• The right to formal recognition by the Employer that the endorsed Union Shop Steward will speak on behalf of Union members in the workplace.
…
Advice
Compliant
54. Employee Representative
Advice Category
Compliant
Code Reference
Clause wording
A Employee Representative shall have the right to:
(b) formal recognition by the Company that endorsed Employee Representative speak on behalf of Union members in the workplace.
Advice
Compliant
55. Employee Representative
Advice Category
Compliant
Code Reference
Clause wording
36.2 – All persons covered by this Agreement recognise that Employees have the right and expectation of representation in relation to employment issues from genuine Employee Representatives. The Company must not interfere in the selection of Employee Representative.
36.3 – All persons covered by this Agreement recognise the important role of Employee Representative. The Employee Representatives have a key role in the early intervention in industrial disputes and health and safety issues under this Agreement.
Advice
Compliant
56. Employee Representatives
Advice Category
Compliant
Code Reference
Clause wording
The Employer recognises that union members employed by the Employer have a right to be represented by their union, in the consultation and dispute resolution arrangements in this Agreement.
Advice
Compliant
57. Employee Representatives
Advice Category
Compliant
Code Reference
Clause wording
All persons covered by this Agreement recognise that Employees have the right and expectation of representation in relation to employment issues from genuine Employee Representatives. The Employer must not interfere in the selection of Employee Representatives.The Employer recognises that union members employed by the Employer have a right to be represented by their union, in the consultation and dispute resolution arrangements in this Agreement.
Advice
Compliant
58. Employee Representatives and OHS Representatives
Advice Category
Compliant
Code Reference
Clause wording
Shop Stewards and Health and Safety Representatives shall be engaged as employees and work productively and undertake normal work activities when not performing their representative roles.
Advice
Compliant
59. Individual Flexibility Arrangement – Employee Representation
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.
If an employee has nominated the Union, or another person, as their representative, the Union or other person must be given reasonable opportunity to participate in negotiations or discussions regarding the proposed making, variation or termination of a flexibility arrangement. Participation by the Union or any other representative does not mean that their consent is required prior to reaching agreement in relation to a flexibility arrangement.
Advice
Compliant
60. Flexible application of agreement provisions by majority consent – Employee Representation
Advice Category
Compliant
Code Reference
Clause wording
Union members are entitled to be represented by their union at every stage of negotiations about majority flexibility arrangements. Employees who are not union members may also choose to be represented.
Advice
Compliant
61. Notification of Jobs
Advice Category
Compliant
Code Reference
Clause wording
The Company, upon notification of successful tenders must forward the following information to the Union office within seven days.
• Job location, duration, start date, type of removal, estimated workforce, Principal, Monitoring employer and any associated work.
Advice
Compliant
62. Objectives and Commitments
Advice Category
Non-compliant
Code Reference
11(1)(c), 13(1)(a)(ii), 13(2)(o)
Clause wording
The objectives of this agreement are:
to involve the employee representative/s/shop steward or union officials at the earliest stage of any dispute or potential dispute in accordance with the dispute resolution procedure.
Advice
This clause does not meet the requirements of section 11.
Employees must be given freedom of choice in deciding whether to be represented in grievance or dispute procedures, and, if so, by whom. This clause seeks to mandate representation independent of employee choice.
63. Objectives & Commitments
Advice Category
Compliant
Code Reference
Clause wording
The objectives of the Agreement are:
(g) To involve the Employee representative/s or union officials (if requested by the Employee/s) at the earliest stage of any dispute or potential dispute.
Advice
Compliant
64. Representation
Advice Category
Compliant
Code Reference
Clause wording
9.1 The parties recognise the right of the employee/s to choose whether to be represented in grievance or dispute procedures. Accordingly, the parties recognize the role an employees’ chosen on-site representative has in seeking to ensure industrial harmony on the site or at the workplace. Further the parties recognize that an on-site representative is a first point of contact for an employee who has an employment related grievance or a grievance, query or concern arising under the terms of the Agreement.
9.2 The parties also recognize the role of the union in being a party covered by the agreement and the union’s and shop steward’s rights and responsibilities to represent their members covered by the agreement. The parties recognize that shop stewards may be involved in assisting employee/s pursuant to the dispute resolution procedure of this Agreement.
Advice
Compliant
65. Resolving Health and Safety Issues
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(p), 11(4), 14
Clause wording
During discussions the employee health and safety representative
may seek the assistance of the Union and the supervisor may seek advice or assistance.
Advice
Whilst this clause, on its face, is not inconsistent with section 11, its implementation may result in conduct that is a breach of the Building Code 2016.
The implementation of the clause may result in conduct which is not compliant with the Building Code if the clause is applied in such a way as to allow entry to building sites by officials of a building association other than for a purpose for which a right of entry could be exercised under Part 3-4 of the FW Act or a relevant work health and safety law. Further the entity must ensure that where an officer of a building association seeks to enter premises, the officer must strictly comply with all applicable legislative requirements in Part 3-4 of the FW Act or a work health and safety law, including permit and notice requirements.
This clause does not relieve the code covered entity’s obligation to comply with section 14 of the Building Code.
66. Resolving Health and Safety Issues
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(p), 11(4), 14
Clause wording
(g) At all times, the elected employee OHS Representative may seek the assistance of a representative of the Union or a person who is suitably qualified in OHS and the supervisor may also seek advice or assistance.
Advice
Whilst this clause, on its face, is not inconsistent with section 11, its implementation may result in conduct that is a breach of the Building Code 2016.
The implementation of the clause may result in conduct which is not compliant with the Building Code if the clause is applied in such a way as to allow entry to building sites by officials of a building association other than for a purpose for which a right of entry could be exercised under Part 3-4 of the FW Act or a relevant work health and safety law. Further the entity must ensure that where an officer of a building association seeks to enter premises, the officer must strictly comply with all applicable legislative requirements in Part 3-4 of the FW Act or a work health and safety law, including permit and notice requirements.
This clause does not relieve the code covered entity’s obligation to comply with section 14 of the Building Code.
67. Procedure for dealing with safety issues or incidents
Advice Category
Non-compliant
Code Reference
11(1)(c), 13(1)(a)(ii), 13(2)(o)
Clause wording
The parties agree that for the purposes of this procedure and s. 81(3) of the WHS Act the following persons shall be the representatives of the following parties:
(a) the Principal Contractor - Site Manager or any other person nominated by the Principal Contractor;
(b) the Employers - the Site Manager or any other person nominated by the Employer(s); and
(c) The Employees- an official(s) or Employee(s) of the Union nominated by the Union to act as the Employee's representative(s). (collectively referred to as "the Parties")
Advice
This clause does not meet the requirements of section 11.
The clause provides for representation independent of individual choice by the employee. 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.
68. Safety Disputes Resolution Procedure
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(p), 11(4), 14
Clause wording
At all times, the elected employee OHS Representative may seek the assistance of a representative of the Union or a person who is suitably qualified in OHS, and the supervisor may also seek advice or assistance.
Advice
Whilst this clause, on its face, is not inconsistent with section 11, its implementation may result in conduct that is a breach of the Building Code 2016.
The implementation of the clause may result in conduct which is not compliant with the Building Code if the clause is applied in such a way as to allow entry to building sites by officials of a building association other than for a purpose for which a right of entry could be exercised under Part 3-4 of the FW Act or a relevant work health and safety law. Further the entity must ensure that where an officer of a building association seeks to enter premises, the officer must strictly comply with all applicable legislative requirements in Part 3-4 of the FW Act or a work health and safety law, including permit and notice requirements.
This clause does not relieve the code covered entity’s obligation to comply with section 14 of the Building Code.
69. Representation
Advice Category
Non-compliant
Code Reference
11(1)(c), 13(1)(a)(ii), 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.
To the extent that this mandates that where an employee does not make an express appointment, they will be represented in the dispute process this clause does not provide employees with freedom of choice in deciding whether to be represented in a grievance or dispute procedure, and if so, by whom.
70. Union Delegates
Advice Category
Compliant
Code Reference
Clause wording
(b) formal recognition by the Employer that endorsed union delegates speak on behalf of union members in the workplace;
(c) bargain collectively on behalf of those they represent;
Advice
Compliant
71. Union delegates’ rights
Advice Category
Compliant
Code Reference
Clause wording
A union delegate shall have the right to:
b) formal recognition by the Employer that endorsed union delegates speak on behalf of union members in the workplace;
Advice
Compliant
72. Appendix K – Subcontracting (Contractors)
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(h)
Clause wording
No permanent employee shall be made redundant whilst a 3rd party is performing the same or similar type of work as a permanent employee. If the permanent employee is suitably qualified and capable to perform a different type of work, and a 3rd Party is performing that different type of work, then that permanent employee shall not be made redundant whilst these circumstances exist, unless that Employee elect no to do that type of work.
Advice
This clause does not meet the requirements of section 11.
The clause limits the right of the employer to make decisions about redundancies based on operational requirements.
73. Contractors
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(h)
Clause wording
The Company shall not make an employee redundant under clause 3.7.1 while
supplementary contractors described in 3.10.1(b) are engaged.
Advice
This clause does not meet the requirements of section 11.
The clause limits the ability of the employer to make decisions about redundancies based on operational requirements.
74. Consultation
Advice Category
Compliant
Code Reference
Clause wording
In this clause major workplace changes that are likely to have a significant effect on Employees includes:
(a) termination of the employment;
(b) changes to the composition, operation or size of the workforce or the skills required of Employees;
(c) elimination or diminution of job opportunities (including promotion/tenure)
Advice
Compliant
75. Consultation
Advice Category
Compliant
Code Reference
Clause wording
Where the Employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology, that are likely to have significant affects on employees, the Employer shall notify the employees who may be affected by the proposed changes and the Employee Representatives.
“Significant effects” include termination of employment, major changes in the composition, operation or size of the Employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the Agreement makes provisions for alterations of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.
Advice
Compliant