Agreement clauses for contractors

Clause wording Step 2 If the Union suspects significant breaches of the EBA and requests the production of an audit certificate in the approved form (APPENDIX 4A), the Employer must provide such certificate. Step 3 Where further evidence exists of continuing non-compliance or significant breaches by the Employer, the Union may further request an independent audit report detailing all entitlements be provided by an auditor with a practice certificate from the Institute of Chartered Accountants or registered CPA. The auditor shall be approved by the Unions and all costs of the audit payable by the Employer.

153. Consultative Committee – Information Flow

Clause wording The principle purpose of the Committee will be to: (i) Monitor the implementation of the terms of this Agreement.

Advice This clause does not meet the requirements of section 11. To the extent that the Consultative Committee comprises people other than the employer and employees, the clause provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies.

154. Employment Security & Supplementary Labour -Compliance

Code Reference 11(1)(a), 11(1)(c), 11(3)(f), 11(3)(k), 13(2)(a)

Clause wording To ensure that any workers engaged through a supplementary labour hire arrangement receive wages, allowances and conditions not less than those contained in this Agreement, the Company will: a) Regularly and at least every three (3) months, in consultation with the Union, audit labour hire contractors’ payroll records in respect to labour hire employees who are under the direction and control of the company; b) Regularly and at least every three (3) months, in consultation with the Union, seek feedback from relevant labour hire employees as to the wages, allowances and conditions they are receiving from the labour hire company employer. c) Where non-compliance is brought to the attention of the Company, the Company will write to the labour hire company requesting their immediate compliance with the wages, allowances and conditions set out in this Agreement in respect to labour hire employees who are under the direction and control of the company.

Advice This clause does not meet the requirements of section 11. This clause prescribes the terms and conditions on which subcontractors must be engaged. This clause provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies. This clause may also result in the disclosure of personal information to a third party other than in accordance with the Privacy Act.

155. Flexibility

Clause wording (a) The provisions of the Agreement that the Employer and employee may agree to vary under an Individual Flexibility Arrangement (IFA) are limited to those matters concerning arrangements for: (1) long service leave; and (2) parental leave. (b) Seven (7) days prior to entering into an IFA, the Employer must notify each Union party to the Agreement of the intention to enter into an IFA, the general nature of the arrangement and the classification of the Employee affected. In providing such notification, the Employer must not disclose the name of the Employee concerned without his/her consent in writing and the Unions are not in any way required to approve or consent to the IFA. (c) All other requirements for an IFA are as per Regulation 2.08 and Schedule 2.2 of the Fair Work Regulations 2009, and must be complied with.

Advice This clause does not meet the requirements of section 11. To the extent that this clause requires the entity to notify each union party to the agreement of the intention to enter into an IFA and to provide information concerning the relevant arrangement, this clause provides for the monitoring of this provision of the agreement by persons other than the employer and employees to whom the agreement applies.

156. Flexibility Clause

Code Reference 11(1)(a), 11(1)(c), 11(3)(k), 13(2)(a)

Clause wording 2.3.10 The employer must provide a union covered by this agreement with details of any or all individual flexibility arrangements if reasonably requested to do so by the union. A union’s request will be reasonable if the request relates to the union’s legitimate role in representing employees covered by the agreement. For the avoidance of doubt, this provision does not confer an entitlement to enter premises.

Advice This clause does not meet the requirements of section 11. To the extent that the clause requires the employer to provide a union with details of any or all individual flexibility arrangements, this clause provides for the monitoring of this provision of the agreement by persons other than the employer and employees to whom the agreement applies. This clause may result in the disclosure of personal information to a third party other than in accordance with the Privacy Act.

157. Immigration Compliance

Clause wording 34. Immigration Compliance …. Copies of this authority will be available on request to the Union Delegate. ....

Advice This clause does not meet the requirements of section 11(3)(k). The section of the clause in bold text provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies as it enables the union to access copies of the immigration compliance authority. 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.

158. Individual Flexibility Arrangement – Additional Safeguards

Clause wording The employer must provide copies of all flexibility arrangements made under this Agreement to the Union covered by this Agreement.

159. Individual Flexibility Arrangements

Clause wording The Company in seeking to enter into an agreement must provide for consultation with the relevant Union seven days, or as otherwise agreed, prior to entering into an arrangement with an Employee. To avoid doubt the relevant Union is not required to approve or consent to any flexibility arrangement with an Employee. The Company must not disclose names of Employees without their consent. Notification to the relevant Union must include the details of the classification affected. Where the individual Employee’s understanding of written English is limited the Company must take measures, including translation into an appropriate language, to ensure the Employee understand the proposal.

Advice This clause does not meet the requirements of section 11. To the extent that this clause requires the entity to notify and consult with the union prior to entering into an individual flexibility arrangement, and to provide information concerning the relevant arrangement, this clause provides for the monitoring of this provision of the agreement by persons other than the employer and employees to whom the agreement applies.

160. Individual Flexibility Arrangements

Code Reference 11(1)(a), 11(1)(c), 11(3)(k), 13(2)(a)

Clause wording The Company must provide copies of all flexibility arrangements made under this clause to the Union, upon request.

Advice This clause does not meet the requirements of section 11. By mandating that the employer provide copies of all flexibility arrangements made under this agreement to the union, this clause provides for the monitoring of this provision of the agreement by persons other than the employer and employees to whom the agreement applies. To the extent that the company must provide copies of all flexibility arrangements upon the request of the union (as opposed to the request of the employee to whom the arrangement relates), the clause provides for personal information to be dealt with in a way that is not in accordance with the Privacy Act 1988 and the FW Act.

161. Time off in Lieu of Overtime

Clause wording The parties will monitor the size of accumulated leave (ARL, TOIL, RDO’s) occurring as a result of this agreement. If it appears that high levels are being accumulated the matter can be discussed further.

Advice This clause does not meet the requirements of section 11. To the extent that the term 'parties' includes a building association, the clause provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies.

162. Apprentices

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

Clause wording Apprentices are the future of our industry and the parties reaffirm their commitment to the training of apprentices. Further they shall make every endeavour to make full time apprenticeships available with the company. The employer will employ at least 1 apprentice for every 8 tradespeople employed.

Advice This clause does not meet the requirements of section 11. To the extent that the clause mandates that the employer will employ at least 1 apprentice for every 8 tradespeople employed, the clause prescribes the number of employees that may be employed on a particular site, in a particular work area or at a particular time.

163. Apprentice Ratio to Trades People

Clause wording To ensure that apprentices receive appropriate on the job training by experienced tradespeople and apprentice numbers are maximised, the Employer shall endeavour to maintain a ratio of at least one apprentice to three (3) tradespeople.

Advice Compliant

164. Apprentice Ratio to Trades People

Clause wording (a) To ensure that apprentices receive appropriate on the job training by experienced tradespeople and apprentice numbers are maximised, the Employer shall endeavour to maintain a ratio of at least one apprentice to three (3) tradespeople. (b) Where this is not achievable due to health and safety reasons or matters outside of the Employer’s control, the parties shall discuss the matter and try and reach a settlement. Subject to the Supervision Guidelines referred to in clause 17.7, there should be no more apprentices engaged that tradespeople on any site, project or job i.e. 1:1 ratio. The Employer and the Union shall discuss and implement agreed strategies to maximise apprentice intake for the Employer. Provided that the application of this Clause shall not be used to displace existing employees.

Advice Compliant

165. Apprentice Ratio to Trades People

Clause wording The Employer and the Union shall discuss and implement agreed strategies to maximise apprentice intake for the Employer. Provided that the application of this Clause shall not be used to displace existing employees, there should be no more apprentices engaged than tradespeople on any site, project or job ie: 1:1 ratio.

Advice Compliant

166. Apprentice Ratio to Trades People

Advice Compliant

167. Engagement of Trainees

Clause wording The Employer is encouraged, and will make its best endeavours, to engage one Trainee for every 10 other Employees it employs.

Advice Compliant

168. Mature Aged Workers

Clause wording The parties to this Agreement recognise that mature age workers are beneficial to the Employer and the Industry. To this end, the Employer shall endeavour to employ a ratio of at least one mature age worker in every six employees. The parties shall ensure that mature age workers are not discriminated against when seeking or maintaining employment with the employer.

Advice Compliant

169. Project Labour Resourcing

Clause wording The parties will promote local employment and training initiatives subject to suitable skills being available where it is reasonable and practical to do so. The parties will also seek to ensure that local personnel not experienced in major construction work are suitably inducted. The employer will give preference to suitable local labour and service providers with the relevant skills, qualifications and work history.

Advice Compliant

170. Training and Related Matters

Clause wording a) If the Company employs five (5) or more tradespersons in any one classification it undertakes to employ at least one (1) apprentice or make arrangements to host an apprentice from an agreed accredited group apprenticeship scheme. b) If the Company does not currently have an apprentice as provided for in paragraph a), reasonable time shall be allowed to enable the Company to comply with this clause. Further, the parties are committed to a strong ratio of apprentices in the industry. c) All apprentices must attend their official off-site apprenticeship training at a Registered Training Organisation (“RTO”) that is acceptable to the apprentice and the Company. The preferred RTOs are the established TAFE college network, but private RTOs may be used if agreed by the parties. f) The Company will use agreed accredited training providers to provide training as contemplated by this clause to employees.

Advice Compliant

171. Security of Employment Arrangements – Manning Levels

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

Clause wording The Company agrees to maintain current manning levels of employees who perform work covered by this agreement subject to customer requirements. Any changes in customer requirements that lead to reduced manning will follow consultation with the Union and employees reps. If manning levels are reduced, then when the Company next wins new work the Company agrees that it will directly hire employees to complete that new work and that those employees will be made permanent following normal probationary period requirements. This will apply until such time as manning levels return to those that existed at the time the agreement was approved by Fair Work Australia. It would only be for genuine operational requirements that the Company would engage contractors to complete the new work described in the paragraph above. For example, if the work was in a regional or remote location, or, if the work was not enough to require the employment of a full time employee then the Company may engage a contractor to complete such work. Any employee hired in excess of the manning levels that existed at the time the agreement was approved by Fair Work Australia do not necessarily need to be permanent, but rather shall be engaged as per normal in accordance with the terms of this agreement. The Company agrees that other than in exceptional circumstances, it will be inconsistent to rely on customer requirements to make an employee redundant whilst the Company is also using 3rd parties to perform work.

Advice This clause does not meet the requirements of section 11. By fixing manning levels at a certain level, subject to customer requirements, the clause limits the capacity of a code covered entity to manage its business and to improve productivity. The clause also prescribes the number of employees that may be employed over a particular time period, which is not permitted by section 11(3)(a). In addition, the clause restricts the employment or engagement of persons by reference to the type of engagement that is, or may be, offered by the employer. The clause also limits the right of the employer to make decisions about redundancy, demobilisation or redeployment of employees based on operational requirements in two ways: first, because of the requirement that the Company will directly hire employees when it next wins work; and secondly, as a result of the acknowledgement that it will be inconsistent to rely on customer requirements to make an employee redundant whilst the Company is also using third parties to perform work.

172. Entry, Exit, Security, Health and Safety procedures

Clause wording (i) unless otherwise agreed by the Parties, Employees will be required to obtain a swipe card, security card, identity card or any other card of a similar type, used or to be used for the purpose of gaining entry onto, exit from or movement around, construction projects or sites on which they are required to work, provided that such card does not have any visible photograph or identification of the employee on the card. (ii) Subject to sub-paragraphs (iv) and (v) below, employees will: (a) not be required to provide or have a photograph taken unless it is approved by ¾ majority of the employees, and 14 days written notice is given of the request for the approval, which must also contain the details and reasons for seeking the approval of the employees and state the right for the employees to have the Union or other representative of their choice represent them in respect of the issue. Failure to comply strictly with all of the aforementioned requirements shall render the approval invalid.

Advice This clause does not meet the requirements of section 11. To the extent that the clause requires agreement from the union (referred to throughout the agreement as a party) before employees can be required to obtain a swipe card, security card, identity card or any other card of a similar type, the clause imposes or purports to impose limits on the right of the code covered entity to manage its business or improve productivity.

173. Entry, Exit, Security, Health and Safety procedures

Advice This clause does not meet the requirements of section 11. To the extent that the clause requires agreement from the union (referred to throughout the agreement as a party) before employees can be required to obtain a swipe card, security card, identity card or any other card of a similar type; and have their photograph taken, the clause imposes or purports to impose limits on the right of the code covered entity to manage its business or improve productivity.

174. Government Procurement

Clause wording The parties to this Agreement recognise that government clients are an important source of work and that ensuring continued capacity to comply with written government purchasing guidelines will enhance availability of work and security of employment. If the parties agree that due to a term within this Agreement that the employer will be ineligible to tender for government work then the parties to this Agreement will immediately renegotiate the term and seek a variation to this Agreement in accordance with the Fair Work Act 2009 to the extent necessary for the Employer to again be eligible to tender for government work. Where the employer is notified in writing by a government agency responsible for monitoring of a government purchasing guideline that it considers that the Employer will be ineligible to undertake government work due to a term in the Agreement, the following process will be undertaken: a) The Employer will provide written notification from the government agency to the Union for its consideration; and b) The Union will provide the Employer with a written response to advise whether the Union agrees with, or disputes the written notification from the government agency. If the Union disputes that the Employer will be ineligible to tender for government work due to a term of this Agreement, then the Employer or the Union may notify the Fair Work Commission of a dispute regarding the Agreement, and seek for it to be resolved by the Commission pursuant to the disputes resolution procedure within this Agreement. The reference to government purchasing guidelines in this clause includes, but is not limited to, the Building Code 2013. The terms of any variation required under this clause may be determined under the dispute resolution procedure in this Agreement. The intent of this clause is that the Employer is eligible to tender for government work.

Advice This clause does not meet the requirements of section 11. The clause purports to place limitations on the employer's capacity to manage its business by requiring the employer to seek the approval of the Union before undertaking a process that it is lawfully entitled to undertake independently of the union, namely to seek a variation of the enterprise agreement under the FW Act.

175. Government Procurement