Agreement clauses for contractors

Code Reference 11(1)(a), 11(3)(e), 11(3)(f)

Clause wording Where there is need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from bona fide labour hire companies following consultation with the Employer Consultative Committee and/or workplace delegate. If labour hire is to be used the Employer shall ensure that any workers engaged through a supplementary/labour hire arrangement and who are under the direction and control of the Employer performing work that, had it been done by direct Employees of the Employer would have been covered by this Agreement, shall receive wages, allowances and conditions not less than those contained in this Agreement.

Advice This clause does not meet the requirements of section 11. The clause requires consultation with, or the approval of, the union before subcontractors may be engaged. This clause also prescribes the terms and conditions under which subcontractors must be engaged.

128. Temporary foreign labour

Code Reference 11(1)(a), 11(3)(d)

Clause wording Where the Employer is considering engaging temporary foreign labour, this will be done with strict adherence to the requirements in Appendix 5A of this Agreement or otherwise agreed in writing between the parties.

Advice This clause does not meet the requirements of section 11. To the extent that the term "parties" includes the union, this clause requires the employer to consult with the union in relation to the source of employees.

129. Use of Contractors

Code Reference 11(1)(a), 11(3)(d), 11(3)(e)

Clause wording If the Employer wishes to engage contractors and their Employees to perform work in the classifications covered by this Agreement, the Employer must first consult in good faith with potentially affected Employees and their Union. Consultation will occur prior to the engagement of sub-contractors for the construction works.

Advice This clause does not meet the requirements of section 11. The clause requires the employer to consult with the union in relation to the source of employees and/or contractors and subcontractors.

130. Use of Contractors

Code Reference 11(1)(a), 11(3)(e)

Clause wording If the Company wishes to sub-let a contract or part of a contract to a bona fide contractor to perform work that might be performed by Employees under this Agreement, the Company must first consult in good faith with the potentially affected Employees and their Representative(s).

Advice This clause does not meet the requirements of section 11. Where the clause requires consultation with employee representatives (and those representatives are representatives of a building association), the clause requires the employer to consult with the union in relation to the source of employees and/or contractors and subcontractors.

131. Use of Contractors

Code Reference 11(1)(a), 11(3)(e), 11(3)(f)

Clause wording If the Company wishes to engage contractors and their Employees to perform work that may be performed by Employees covered by this Agreement, the Company must: (a) Consult in good faith with potentially affected employees and their union. Consultation will occur prior to the engagement of sub-contractors for the construction works; (b) If, after consultation, the Company engages subcontractors to perform work that may be performed by Employees covered by this Agreement, it will require those subcontractors employees are engaged on terms and conditions of employment which are no less favourable overall than commercial building industry rates. “Commercial building industry rates” means the terms and conditions contained in the range of standard regional Union enterprise agreements covering the type of work performed by the subcontractor and its Employees.

Advice This clause does not meet the requirements of section 11. This clause limits the ability of the employer to manage its business or to improve productivity. This clause requires the employer to consult with, or seek the approval of the union in relation to the engagement of subcontractors. This clause prescribes the terms and conditions on which subcontractors are engaged (including the terms and conditions of a subcontractor).

132. Use of Supplementary Labour Hire

Code Reference 11(1)(a), 11(3)(b), 11(3)(e), 11(3)(f)

Clause wording Where there is a need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from bona fide businesses, including subcontractors and labour hire companies, following consultation with the Company Consultative Committee and/or Union(s) party to this Agreement. The Company will require those businesses to ensure that any workers engaged by such businesses and performing work that is current being or in the future being, carried out by direct Employees of the Company, shall receive wages, allowance and conditions no less favourable than those contained in this Agreement, excluding Company benefits. Supplementary labour is defined as temporary ‘top up’ labour designed to meet short situations such as absences due to sick leave, annual leave, and short time work peaks. The Company undertakes not to use supplementary labour for a period of more than four weeks.

Advice This clause does not meet the requirements of section 11. This clause restricts the employment or engagement of persons by reference to the type of contractual arrangement that is, or may be, offered by the employer. This clause requires the employer to consult with, or seek the approval of the union in relation to the engagement of supplementary labour or labour hire. This clause prescribes the terms and conditions on which supplementary labour and labour hire is engaged.

133. Workforce Plans

Code Reference 11(1)(a), 11(3)(d)

Clause wording The Employer will provide to the union: a) a workforce plan, setting out for each occupational classification and for each year this Agreement operates, the expected number of workers required, showing numbers of Australian resident workers and temporary foreign workers in each classification; and the proportion which the temporary foreign workers represent in each classification. b) For the temporary foreign workers group, a separate table showing this group further broken down by occupational classification and visa subclass, i.e. subclass 457, 417 etc (OR 457s/all others). c) This workforce plan, the labour market and training plan in 4 and 5 below, will be agreed with the unions.

Advice This clause does not meet the requirements of section 11. This clause requires the employer to consult with the union in relation to the source of particular employees. Note: A code covered entity is required to comply with section 11F and is also required by section 9(4) of the Building Code 2016 to comply with its obligations under the Migration Act 1958 and its subordinate legislation.

134. Collective Representation Facilitative Provisions – Employee representation and Union recognition

Clause wording 50.1 – The company will advise each new employee of the unions that have coverage on site and that the company provides payroll deductions for union dues. 50.2 – The company will arrange for new and existing employees to be introduced to the appropriate union delegate who will be allocated time to explain about the union and provide the employee with information about the union.

Advice This clause does not meet the requirements of section 11. The clause provides for the direct or indirect encouragement for a person to become member of a building association. Further, the clause directly or indirectly requires a person to indicate support, or lack of support, for persons being members of a building association.

135. Employee Representative

Clause wording A Employee Representative shall have the right to: (i) address new Employees about the benefits of Union membership at the time that they enter employment.

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.

136. Union flags

Code Reference 11(1)(a), 11(3)(l), 11(1)(c), 13(1)(a)(i), 13(2)(j)

Clause wording The Company agrees that on its cranes in Victoria the Australian flag together with the standard Union flag will be flown. In lieu of the union flag the Good Friday Appeal Flag and the John Cummins Memorial Flag will be flown during the month of which those appeals occur.

Advice This clause does not meet the requirements of section 11. The clause requires building association logos, mottos or indicia to be applied to company supplied property or equipment. Note: The clause requires building association logos, mottos or indicia to be applied to company supplied property of equipment and this is inconsistent with the proposition that membership of a building association is anything other than a matter of individual choice. The Code does not prevent the display of charity or memorial flags or similar on sites, provided such flags do not apply building association logos, mottos or indicia.

137. Union Flags

Code Reference 11(1)(a), 11(1)(c), 11(3)(l), 11(3)(n), 13(2)(j)

Clause wording The Company acknowledges that Employees are free to join (or not to join) a trade union. Where requested by the majority of Employees engaged on a particular project, the Company may agree to fly union flags on the tower cranes on that project. For clarity, this clause permits the display of certain union flags noting that any display of a flag conveying that union membership is other than a matter of individual choice is not permitted under this clause.

Advice This clause does not meet the requirements of section 11 The clause directly or indirectly requires a person to indicate support or lack of support for a building association and it requires building association logos, mottos or indicia to be applied to company supplied property or equipment.

138. Union delegates’ rights

Clause wording A union delegate shall have the right to: i) address new Employees about the benefits of union membership at the time that they enter employment;

139. Union Information and Employee Information

Clause wording 11.3.3 – The Company will provide each new Employee with information about the Union at the Employee’s commencement of employment. Such information will be provided to the Company by the Union for these purposes. 11.3.4 – Unless a new Employee advises the Company, in writing, that they do not wish to have their personal details distributed, the Company shall notify the relevant Union Delegate of the name and location of the new Employee, and provide reasonable opportunity for the Union Delegate to meet with them. 11.3.5 – A copy of the written advice from the new Employee will be retained on file at all times. 11.3.6 – Unless an Employee has advised the Company, in writing, that they do not wish to have their personal details distributed, the Company, upon request from an authorised officer of the Union, will supply a list of names of all workers, their classifications and home depot location to the authorised officer of the Union within seven (7) days of the request being made. A copy of the written advice from the Employee will be retained on file at all times.

140. Union Recognition

Clause wording ... (b) Union membership shall be promoted by the Employer to all prospective and current Employees. ... (d) The employees who are members of the Union shall be encouraged to participate in Union meetings and exercise their democratic rights.

141. Union Rights promoting representation of members

Code Reference 11(1)(a), 11(1)(c), 11(3)(m), 11(3)(n), 13(1)(a)(i)

Clause wording 32.1 - The Employer shall establish policies and procedures so that all reasonable steps are taken to encourage Employees, to become financial members of the Union, subject to relevant legislation.

142. Union Rights promoting representation of members

Code Reference 11(1)(a), 11(1)(c), 11(3)(m), 11(3)(n), 13(1)(a)(i)

Clause wording The Employer will allow the Union to promote membership of the Union.

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.

143. All-in Payments (calculation of default rate)

Code Reference 11(1)(a), 11(3)(b), 11(3)(i)

Clause wording All-in payments to Employees will not be made. All-in payments are defined as an hourly rate or piece work rate which is meant to cover wages and/or allowances and/or conditions, such as annual leave, sick leave, etc.

Advice This clause does not meet the requirements of section 11. The clause prohibits the payment of a loaded rate of pay. This clause restricts the engagement of persons by reference to the type of contractual engagement that is, or may be, offered by the employer.

144. All-In-Payments

Code Reference 11(1)(a), 11(3)(b), 11(3)(i)

Clause wording (i) the rates and allowances prescribed in this Agreement are the minimum amounts to be paid by the Employer. The Employer must pay each and every rate and allowance in this Agreement as and when they fall due. (ii) despite any agreement or arrangement to the contrary, the Employer will not pay an employee an “all-in” or lump sum wage in lieu of some or all the rates and allowances in this Agreement. (iii) if, in breach of this Agreement, the Employer pays an “all-in” or lump sum amount without such amount having been described in accordance with the pay slip requirements of Clause 14 of this Agreement, as being for a particular purpose of this Agreement, then the entire amount paid for that pay period will be deemed to be attributable to ordinary time wages only and the Employer will be liable to the employee in full for each and every other applicable rate or allowance in this Agreement. (iv) Consequences of All-In Payments (a)The Parties agree that the practice of paying employees “all-in” rates, including the practice of paying such rates to a corporation nominated by the employee to receive such remuneration on his or her behalf constitutes a serious breach of this Agreement.

145. Sham Contracting

Code Reference 11(1)(a), 11(3)(b), 11(3)(i)

Clause wording The Parties agree that the practice of paying “all-in” rates, including the practice of paying such rates to a corporation nominated by the Employee to receive such remuneration on his or her behalf constitutes a serious breach of this Agreement.

146. Certifications of qualifications, trade and otherwise

Clause wording 51. Certifications of qualifications, trade and otherwise ... 51.5 Copies of this authority will be available on request to the Secretary of the Union or nominee. Appendix 5 - Authority to Obtain Details of Work Rights Status From DIPB …..The completed form should be faxed to 07 3231 4699

Advice This clause does not meet the requirements of section 11. This clause provides for monitoring of compliance with clause 51.4 of the agreement by the union in a way that is not permitted by section 11(3)(k) of the Building Code 2016.

147. Compliance

Code Reference 11(1)(a), 11(3)(i), 11(3)(k)

Clause wording Where a complaint is made regarding a suspected breach of pay entitlements and remuneration due to Employees under this Agreement, it is agreed that an audit can be jointly undertake by the Union and the Association to ensure compliance with this Agreement. If the Company is identified as identified as being in minor/technical default with this Agreement and/or statutory obligations (e.g. under payment or non-payment of an entitlement) there will be no stoppage of work whilst this audit is proceeding. If the Company is identified as paying an ‘all-in’ rate it will pay the ‘all-in’ rate being paid to all Employees on that site plus all conditions of this Agreement for job duration. An ‘all-in’ rate means a payment in lieu of one or more entitlements of this Agreement.

Advice This clause does not meet the requirements of section 11. By giving the Union and the Association the capacity to undertake audits, the clause provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies. Further, the practical impact of the aspect of the clause that relates to "all-in" rates is to prohibit the Company from payment of a loaded rate of pay, which is not permitted by section 11(3)(i). This aspect of the clause imposes or purports to impose limits on the right of the Company to manage its business or improve productivity.

148. Compliance Audit

Clause wording The Company agrees to a Company audit by an Approved Auditor. Alternatively the Company may, with written agreement with the Union, use an Auditor who is not an Approved Auditor.

Advice This clause does not meet the requirements of section 11. The clause provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies.

149. Compliance with Industrial Obligations

Clause wording The Company will require subcontractors to provide a certificate of compliance assessment by an approved auditor once every 6 month period commencing on 1 January and 1 July respectively. The purpose of this assessment is to ensure that the subcontractor is meeting all relevant Industrial Obligations. If the approved auditor is not able to conduct the assessment, another organisation may be used after consultation between the parties.

Advice This clause does not meet the requirements of section 11. This clause provides for the monitoring of agreements by persons other than the employer and employee to whom the agreement applies.

150. Compliance with Industrial Obligations