1554.
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o)
Clause wording
The following matters may be varied by agreement between Company, the Union, Employee representative and the majority of the employees concerned, to accommodate the hours of work required for the most efficient and safe operation of Company and the requirements of its client. Agreement will not be unreasonably withheld.
Advice
This clause does not meet the requirements of section 11.
To the extent that this clause requires agreement of the Union and employee representative before working hours can be varied, this clause limits the ability of the employer to determine with its employees when work can be performed to meet operational requirements.
Note: Code covered entities are required by section 9(3) of the Building Code 2016 to comply with work health and safety laws which may include management of fatigue.
1555. Christmas Closedown
Advice Category
Compliant
Code Reference
Clause wording
The Company will generally observe the Building and Construction Industry Christmas Closedown Period, however, due to operational reasons, the Company may require employees to work during this period. Otherwise, the Company may elect to shut-down some or all of its operations at another time, during which time employees may be required to take annual leave.
1556. Site Allowance
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(f), 11(4), 11A(1)(b)
Clause wording
Where a project attracts a site allowance, the company will establish the hourly rate of the allowance and pay the employee the allowance in addition to their normal pay. This allowance shall be a flat rate applied to each hour on site. Travel time to and from the site will not be included in the calculation
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 provide for terms, conditions or benefits of employment of employees of the employer;
• That are not contained in an agreement that is registered, and applies to the employer and its employees; or
• As to provide for such terms in an agreement that is not a common law agreement made between an employer and an individual employee.
1557. Compliance with Industrial Obligations
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(k)
Clause wording
1.1 The Company recognises that it is obliged to comply with its Industrial Obligations including those arising out of this agreement that its adherence those obligations is a matter of significant importance for the Employees covered by this agreement.
1.2 The Company acknowledges that it is obliged by s 9 of the Code for the Tendering and Performance of Building Work 2016 to comply rigorously with its obligations to its Employees under this Agreement and that its ability to tender for, submit expressions of interest for and be awarded Commonwealth Government funded work is dependent on this. The Company notes that in these circumstances, its adherence to its obligations under this Agreement is a matter affecting the job security of its Employees. To that effect, the Company will:
(a) Conduct a six monthly audit of its compliance with the Agreement. This audit may be conducted, at the Company’s election, by an independent third party who is on the panel of auditors authorised by the ACT government to assess applications for IRE certificates. The Company recognises that it is preferable that an independent third party conduct any audit. However, nothing in this clause requires the Company to engage an independent third party or that any particular independent third party to conduct the audit. The Company, however, recognises that an organisation of employers registered under the Fair Work (Registered Organisations) Act 2009 (Cth) or any entity associated with such an organisation is not an independent third party and will not be engaged by the Company to conduct an audit under this clause.
(b) The audit must detail in a comprehensive fashion the Company’s compliance with this agreement including but not limited to its payment to Employees of all wages, allowances and other moneys due and owing to them under the Agreement.
(c) Provide the results of the audit to its Employees, and any representative nominated by the employees, in the form of a declaration made by an appropriate representative of the Company, such as a director or senior manager, under the Statutory Declarations Act 1959 (Cth). All information provided must be provided to the employees in a manner consistent with the Privacy Act 1988 (Cth).
(d) Engage in consultation with its Employees or their nominated representatives in respect to any issues arising from the audit, which issues may be identified by the Company, the Employees or their nominated representative.
(e) All issues raised in respect to an audit and in relation to the Company’s compliance with this Agreement may be dealt with in accordance with the dispute settlement procedure in this Agreement.
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 as way as to provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies.
1558. Compliance with Industrial Obligations
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(k)
Clause wording
A.1 Compliance with Industrial Obligations
A.1.1 The parties to the agreement acknowledge that non-compliance with relevant industrial laws by contractors and labour hire companies may undermine fair employment practices, erode Employee entitlements, affect the job security of Employees covered and expose the Company to legal and reputational liability.
A.1.2 The Company commits to utilising only subcontractors and labour hire companies who have been able to demonstrate a proven commitment to meet their industrial and employment obligations.
A.1.3 The Company will require subcontractors to provide a certificate a compliance assessment by an auditor who is on the panel of auditors authorised by the Act government to assess applications for IRE certificates, 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 legislative obligations in relation to:
(a) Award Entitlements
(b) Long Service Leave
(c) Superannuation
(d) Workers Compensation Insurance
(e) Taxation.
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 as way as to provides for the monitoring of the agreement by persons other than the employer and employees to whom the agreement applies.
1559. Site Allowance
Advice Category
Compliant with implementation feedback
Code Reference
10(1), 11(1)(a), 11(3)(f), 11(4), 11A(1)(b)
Clause wording
13.9.1 Where applicable, whilst working on Client or Project sites. Employees will be paid a Site Allowance of a minimum of $3.00 per hour flat subject to clause 13.9.2
13.9.2 Site Allowance, may vary from time to time depending on but not limited to, the applicable site allowance rate that the Client is willing to pay. The employee will be made aware prior to their engagement. In such instances Employees will not be disadvantaged on an overall basis as a result of this Clause.
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 provide for terms, conditions or benefits of employment of employees of the employer;
• That are not contained in an agreement that is registered, and applies to the employer and its employees; or
• As to provide for such terms in an agreement that is not a common law agreement made between an employer and an individual employee.
1560. Travel Time
Advice Category
Compliant
Code Reference
Clause wording
13.10.1 While travelling to a site by any means within a 30km radius of the home workshop, normal single and overtime rates will be paid to all people travelling. While travelling outside a 30km radius of the home workshop, only the driver will be paid normal single and overtime rates. The passengers will be paid single time for the entire journey. Normal single and overtime rates for passengers will be paid from time to time depending on but not limited to, the applicable travel time rate that the client is willing to pay. The employee will be made aware of such arrangements prior to their engagement.
1561. Incorporation of Award Provisions
Advice Category
Compliant
Code Reference
Clause wording
a) The terms and conditions of the Building and Construction General On-site Award 2010, are hereby expressly incorporated as terms of this Agreement as if the same were set out in full herein and shall be binding upon the parties during the currency of the Agreement, by operation of this Agreement.
1562. Sham Contracting
Advice Category
Compliant
Code Reference
Clause wording
Delete 24.1(xi) and amend (v):
(v) Any use of sham contracting, including the practice of making payments to a corporation nominated by the Employee to receive such remuneration, is a breach of this Agreement,
1563. Rostered Days Off
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o)
Clause wording
a) The ordinary working hours shall be 8 hours per day Monday to Friday with 0.8 of an hour per day accruing for rostered days off (RDO’s) and or the paid Saturdays referred to in this clause.
(b) The accrual for Apprentices will be 0.4 of an hour per day accruing for payment of rostered days off (RDO’s). In addition, apprentices will accrue an additional 0.4 of an hour pay for each day worked and paid leave (except RDO’s). These accruals apply on all ordinary days worked (except RDO’s) and paid leave.
(c) The following is agreed in respect of rostered days off:
i.) Subject to 27.2 (v), agreement shall be reached by the Company and Employees as to which day shall be taken as a rostered day off when such entitlement is due. The fares entitlement of this agreement is applicable on RDO’s. It is agreed a Company roster system may apply.
ii.) RDO’s may be banked to a maximum of six (6) days in any 12 month period. These RDO’s may be taken as a group of consecutive days or any other combination subject to reasonable notice by an Employee.
iii.) Any disputes arising from this clause shall be resolved through the dispute settlement procedure of this Agreement
iv.) Where more than one (1) accrued RDO is to be taken on consecutive working days, application for such paid leave shall be sought giving a reasonable period of notice.
v.) Subject to subclause (vi) it is recognised that working of reasonably long hours, frequently six days/week, is common in order to achieve the production requirements of the Company and that in turn the effect of fatigue that this may cause is a serious safety hazard and risk which according to the Safe Work Australia Guide for the Managing the Risk of Fatigue at Work (Nov 2013) may reduce alertness and lead to errors and an increase in incidents and injuries. Therefore, in mitigating this safety risk and in normal circumstances in combatting the hazards associated with fatigue, without undue disruption to Company productivity, consistent with the Safe Work Australia Guide for the Managing the Risk of Fatigue at Work (Nov 2013) it is recognised and agreed between the Company and the Employees that there is merit in programming work in accordance with the Calendars at Appendix D. This will allow the Management personnel and Employees of the Company to have quality paid leisure time, to recover from the effects of fatigue and improve mental health outcomes by encouraging a suitable/worklife balance that meets both the production needs of the Company and the needs of Employees. The Company and the Employees agree that this will improve Company productivity overall.
vi.) The Company and its Employees may agree, where there is a need in specific circumstances, work may be carried out on FLD RDOs if the Company first consults with and agrees about the need to carry out work with Employees. Unless impracticable, the Company will give employees and the consultative committee at least 7 days’ notice of any such need for work to occur so as to ensure appropriate consultation.
vii.) Employees shall use the additional RDO accruals arising from the introduction of the 36 hour week to a maximum of 14.4.hours for FLD Saturdays. Employees shall only be entitled to payment of one (1) fare allowance on any paid work on a FLD Saturday.
viii.) A new Employee will be eligible for an RDO after achieving 7.2 hours RDO accrual. However, a new Employee will be eligible to use lesser RDO accruals for the FLD Saturdays and adjacent fixed RDO’s nominated as FLD/ public holiday / RDO weekends.
ix.) Employees will be paid all unpaid RDO accruals on termination.
x.) Clauses 27.1 and 27.2 (i), (ii), (iii), (iv), (v), (vi) and (ix) apply to apprentices.
Advice
This clause does not meet the requirements of section 11.
Clause viii) refers to FLD Saturdays and adjacent ‘fixed’ RDOs. To the extent that these RDOs cannot be varied by agreement between the employer and employees this clause limits the ability for an employer to determine with its employees when and where work can be performed to meet operational requirements.
Although clause vi) states that the company and its employees may agree where there is a need in "specific circumstances" work may be carried out on FLD RDOs if the company first consults with and agrees about the need to carry out work with the employees, this flexibility is apparently limited. The clause also requires the company to give employees and the consultative committee at least 7 days' notice. These requirements limit the ability for the employer to determine with its employees when work may be performed to meet operational requirements.
Note: Code covered entities are required by section 9(3) of the Building Code 2016 to comply with work health and safety laws which may include management of fatigue.
1564. Overtime
Advice Category
Compliant
Code Reference
Clause wording
The parties to this Agreement recognise that excessive overtime is of detriment to personal, family and community life and can jeopardise workplace safety. The Company and the workforce shall develop guidelines during the life of this Agreement to limit
excessive overtime. The Company may require an Employee to work reasonable overtime. On jobs where overtime is necessary, the work crew may be rostered so that each employee is not disadvantaged as to the amount of overtime worked (subject to the Employer being able to maintain appropriate levels of coverage as required to meet operational needs). On any day that overtime is worked there will be no necessity for all employees on that particular job to work.
1565. Consultation for Purposes of s 205 of the Fair Work Act 2009
Advice Category
Compliant
Code Reference
Clause wording
Where the Company is considering and prior to any decision on the introduction of major workplace changes that are likely to have a significant effect on Employees, the Company will notify and consult with the Employees and their Union/s or other representative/s.
The Company will 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 not being where building work is performed to assist with representing Employees in consultation 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 Fair Work Act.
The obligation to notify and consult includes providing all relevant details to the Employees and their union/representative in writing with:
a) the nature of the changes, any proposed timing of the changes and the expected likely effect on Employees
b) any measures the Company is proposing to take to avert or mitigate any adverse effects of such changes on Employees; and
c) any other matters related to the changes which may affect the Employees.
In this clause major workplace changes that are likely to have a significant effect on Employees includes:
a) termination of employment
b) changes to composition, operation or size of the workforce or the skills required of Employees
c) elimination or reduction of job opportunities (including promotion/tenure)
d) alteration of hours of work
e) retraining, relocation and or restructuring
f) changes to the legal or operational structure of the Company or business, including changes to business ownership or control.
g) changes to drug and alcohol program.
1566. Picnic Day
Advice Category
Compliant
Code Reference
Clause wording
It is agreed by the parties that the first Monday of December shall be observed as the industry picnic day. All employees shall, as far as practicable be given and shall take this day as picnic day without deduction of pay. Any requirement to work shall be paid at double time.
1567. Draft Leisure Days and Public Holidays Calendar 2017, 2018
Advice Category
Non-compliant
Code Reference
11(3)(a), 11(3)(o)
Clause wording
Draft Leisure Days and Public Holidays Calendar 2017
Monday January 2
Public Holiday
Thursday January 26
Friday January 27
Saturday January 28
Sunday January 29
Public Holiday
RDO
FLD Saturday
FLD Sunday
Monday February 27
RDO (flexible)
Monday March 27
RDO (flexible)
Friday April 14
Saturday April 15
Sunday April 16
Monday April 17
Public Holiday
FLD Saturday
FLD Sunday
Public Holiday
Monday April 24
Tuesday April 25
FLD RDO
Public Holiday
Monday May 22
RDO (flexible)
Saturday June 10
Sunday June 11
Monday June 12
Tuesday June 13
FLD Saturday
FLD Sunday
Public Holiday
FLD RDO
Monday July 17
RDO (flexible)
Monday August 14
RDO (flexible)
Monday September 11
RDO (flexible)
Saturday September 30
Sunday October 1
Monday October 2
Tuesday October 3
FLD Saturday
FLD Sunday
Public Holiday
FLD RDO
Monday November 6
RDO (flexible)
Saturday December 2
Sunday December 3
Monday December 4
FLD Saturday
FLD Sunday
Industry Picnic Day
Tuesday December 5
FLD RDO
Saturday December 23
Sunday December 24
Monday December 25
Tuesday December 26
Wednesday December 27
FLD Saturday
FLD Sunday
Christmas Day
Public Holiday
FLD RDO
It is noted by the parties that the Leisure Days and Public Holiday Calendars may be subject to change. In such circumstance the industry parties e.g. MBA, will meet to discuss.
Leisure Days and Public Holidays Calendar 2018
Monday January 1
Public Holiday
Friday January 26
Saturday January 27
Sunday January 28
Monday January 29
Public Holiday
FLD Saturday
FLD Sunday
FLD RDO
Monday February 26
RDO (flexible)
Friday March 30
Saturday March 31
Sunday April 1
Monday April 2
Public Holiday
FLD Saturday
FLD Sunday
Public Holiday
Monday April 23
Tuesday April 24
Wednesday April 25
RDO (flexible)
FLD RDO
Public Holiday
Monday May 21
RDO (flexible)
Saturday June 9
Sunday June 10
Monday June 11
Tuesday June 12
FLD Saturday
FLD Sunday
Public Holiday
FLD RDO
Monday July 16
RDO (flexible)
Monday August 13
RDO (flexible)
Monday September 10
RDO (flexible)
Saturday September 29
Sunday September 30
Monday October 1
Tuesday October 2
FLD Saturday
FLD Sunday
Public Holiday
FLD RDO
Monday November 5
RDO (flexible)
Saturday December 1
Sunday December 2
Monday December 3
Tuesday December 4
FLD Saturday
FLD Sunday
Industry Picnic Day
FLD RDO
Saturday December 22
Sunday December 23
Monday December 24
Tuesday December 25
Wednesday December 26
FLD Saturday
FLD Sunday
FLD RDO
Christmas Day
Public Holiday
Advice
This clause does not meet the requirements of section 11.
To the extent that this clause requires agreement of industry parties to vary Leisure Day, RDO and Public Holiday calendars this clause limits the ability for an employer to determine with its employees when and where work can be performed to meet operational requirements.
1568. Serious and Wilful Misconduct
Advice Category
Compliant
Code Reference
Clause wording
In the case of serious and wilful misconduct (e.g. theft, assault), the following procedure will be followed:
The Company shall have a discussion with the Employee in which it will advise him / her of the alleged serious and wilful misconduct. The Employee shall be entitled to have a Union delegate/representative or Union Organiser in attendance at premises where no building work is done 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.
1569. General
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(b)
Clause wording
15.1 Employees (excepting Apprentices) under this Agreement will be employed either as full-time employees or casual employees.
15.2 At the time of engagement the employer will inform each employee of the terms of their engagement, in particular, whether they are to be full-time r a casual employee.
Advice
This clause does not meet the requirements of section 11.
The clause restricts the employment or engagement of persons by reference to the type of contractual arrangement that may be offered (part-time employment).
1570. Casual Employees
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(b)
Clause wording
17.6 Where a casual employee elects to convert their employment to daily hire in accordance with Clause 17.7, conversion to daily hire will be offered on a full-time basis only (I.e. a daily hire employee is engaged and paid for thirty-six (36) hours per week).
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.
1571. Sham Contracting
Advice Category
Compliant
Code Reference
Clause wording
20.1 The employer recognises that in certain circumstances the use of contractors and labour hire may affect the job security of employees covered by this Agreement.
20.2 For the purpose of this Clause:-
Contractor means a person, company or business and includes labour hire companies and sub-contractors; and
Work means work covered by the Agreement which might ordinarily be performed by current or future employees of the employer under this Agreement.
20.3 Where the employer makes a definite decision to engage Contractors to perform Work the employer must first consult in good faith with potentially affected employees and, in accordance with Clause 10- Consultation.
20.4 The employer agrees to consult with potentially affected employees as soon as practicable and not less than fourteen (14) days' before the commencement of the Work by the Contractors. If for any reason this does not occur, or if the employer has less than fourteen (14) days' notice of the need to commence the work, consultation will occur as soon as practicable- and in any case not more than fourteen (14) days after the Contractors commence work.
20.5 Without limiting the employer's obligation under Clause 10.5, the employer must provide the employees the following information in writing:-
20.5.1 the name of the proposed Contractor(s);
20.5.2 the type of work proposed to be given to the Contractors(s);
20.5.3 the number of persons and qualifications of the persons the proposed Contractor(s)
may engage to perform the work;
20.5.4 the likely commencement date of the proposed Contractor(s);
20.5.5 the likely duration of this engagement; and
20.5.6 expected effects, if any, of the engagement of the proposed Contractor(s) on employees.
20.6 All subcontract firms would be engaged according to each of the following terms:
(a) The subcontract firm will have its own safe work method statements and OHS plans. (b) The subcontract firm will have all appropriate licences and will hold current public
liability and worker's compensation insurances.
(c) Builders will be notified that the subcontract firm has been engaged and all Employees of the subcontract firm will be inducted under their company name.
(d) All employees employed by the subcontract firm will hold all appropriate registrations and or licences to carry out work they are performing.
(e) All employees of the subcontract firm will obey all site requirements.
20.7 In the event of a dispute about whether consultation has occurred under this clause, the matter will be dealt with in accordance with clause 14. (Dispute Resolution Procedure).
20.8 The employer will not contravene the sham contracting provisions in Part 3-1, Division 6 of the FW Act.
What is the difference between an employee and a sub - contractor I independent contractor?
20.9 The following information is provided as a tool to all persons I organisations covered by the Agreement.
20.10 The information provided in Clause 20.13 and 20.14 was correct at the time that the
Agreement was approved by the FWC.
20.11 There are a number of factors that assist in determining the difference between an employee an independent contractor. The following indicators may assist in determining the difference between an employee an independent contractor:-
Indicator Employee Independent contractor Degree of control over Performs work, under Has a high level of control in how work is performed the direction of their how the work is done
employer, on an ongoing
basis
Hours of work Generally works standard Generally decides what
I set hours hours to work to complete the specific task
Risk Bears no financial risk Bears the risk for making a (this is the responsibility profit I loss on each job I of the employer) task. Generally bears
responsibility for their own work. Generally will have
their own insurance policy I
ies
Superannuation Employer's responsibility Generally pays their own to pay superannuation.
Note:- There are some situations in which an independent contractor is entitled to be paid
superannuation contributions.
Tools and equipment Tools and equipment are generally provided by the employer, or a tool allowance is provided Uses their own tools and equipment
Tax Has income tax deducted by their employer Pays their own tax and GST
to the ATO
Method of payment Paid regularly- weekly Has obtained an ABN and submits an invoice for work completed or is paid at the end of the specific task
Leave Entitled to receive paid leave (annual leave;
personal I carers leave;
etc) Does not receive paid leave
20.14 In addition, the ATO has put together an E mployee I Contractor Decision Tool. This can be accessed through the ATO Website:-
https://www.ato.gov.au/Cal culators-and-tools/Employee-or-contractorI
1572. Overtime
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(j), 11(4)
Clause wording
33.7 Overtime will be paid at double time. Where overtime is necessary employee/swill not be disadvantaged regarding the amount of overtime employee/s may work. This will be reflected in the work roster. Every employee will be entitled to work reasonable overtime on a fair and equitable basis.
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 that an employee will be prevented from working overtime unless other employees are also afforded a similar amount of overtime. The employer should be able to determine whether overtime is required and should be able to determine with the relevant employee/s who will undertake the available overtime.
1573. Hours of Work
Advice Category
Compliant
Code Reference
Clause wording
31.1 The ordinary hours of work will be thirty-six (36) hours worked anytime between 6.00 a.m. and 6.00 p.m. Monday to Friday. Starting time will be between 6.00 a.m. and 9.30 a.m. The precise starting time will be arranged between the employer, the employees and the employee representative recognizing the operational requirements of the employer provided always occupational health and safety principles remain paramount. Normal starting time is 7.00 a.m.
Advice
1574. Christmas Closedown
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o)
Clause wording
41.20 In the construction sector Christmas shutdown shall be generally observed as per the industry calendar.
41.21 Where employer efficiency and client needs requires employees to work over this period, agreement shall be reached between the employer and a majority of 75% of all employees. Employees will be given one months' notice of these requirements and Occupational health and safety principles remain paramount regarding discussions concerning work over this period.
41.22 Family issues will also be taken into account.
41.23 It is a breach of this Agreement for an employee to be paid his/her full accrual, or part thereof, of annual leave aat Christmas or any other time, unless that employee takes such annual leave or his/her employment is terminated. Employment is not to be terminated for reasons of avoidance of this subclause.
Advice
This clause does not meet the requirements of section 11.
To the extent that the clause requires one months' notice to work during the Christmas Closedown with no provision for agreement on a lesser period of notice, this clause limits the ability of the employer to determine with its employees when work can be performed to meet operational requirements.
1575. Redundancy
Advice Category
Compliant
Code Reference
Clause wording
3.11.1 Criteria For Termination
When considering redundancies due to work availability consideration will be given to the following matters:
• The specific skills required to perform the work in hand and for the future, particularly, having regard to reduced number of employees;
• The employee’s past performance including efficiency and productivity;
• The employee’s attitude to Occupational Health, Safety and Welfare, particularly in regard to the Company’s Health and Safety Policy; as amended.
• The employee’s attitude to training;
• The employee’s co-operation with fellow workers and management.
• To avoid doubt, differential entitlements under clause 4.1.1.1 will not be taken into account.
[note: clause 4.1.1.1 provides for different rates of pay whether or not a person was employed before or after the agreement came into effect]
1576. 36 Hour Week
Advice Category
Compliant
Code Reference
Clause wording
5.3.1 The wages and allowances to be paid under this agreement are inclusive of any wage or allowance for the 36-hour week. The company and employees on the basis of maintaining the company’s ability to meet its contractual commitments to produce, acknowledge the implementation of a 36-hour week in this agreement, on the following basis.
5.3.1.1 The company will endeavour to observe the Building and Construction Industry Leisure Days off. The Leisure Days will be determined by the Managing Director and appropriate company representatives on a job by job suitability. Employees during busy years should consider 50% of Leisure Days taken and 50% of Leisure Days paid out as a fair and reasonable outcome.
5.3.1.2 At the conclusion of any quarter, any 36 hour week Leisure Days not taken will be paid out in full to the employee prior to any scheduled hourly rate increases. It will be the employee’s responsibility to communicate by the scheduled Leisure Day if they could re-schedule the Leisure Day before the next Leisure Day.
1577. Dispute and Grievance Resolution Procedure
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(p)
Clause wording
Any dispute pertaining to the relationship between the Company and an employee or employees, between the Company and the AWU, and regarding any part of this Agreement will be resolved according to the procedure outlined below.
AWU members are entitled to be represented by the AWU at every stage of this process if they so choose. Employees who are not AWU members may also choose to be represented by the AWU or another representative of his or her choosing.
Nothing in this clause allows for the entry of Union officials to premises where building work is performed other than in compliance with Part 3-4 of the Fair Work Act 2009 (as amended) or under any other relevant legislation, such as workplace health and safety legislation.
The types of disputes covered by the following procedure includes, but is not limited to:
Whether a workplace right has been breached;
Deductions from wages;
The operation of this Agreement; and
The National Employment Standards, including provisions relating to flexible working arrangements and extending the period of unpaid parental leave.
The employee or employees concerned with the dispute must initially meet and address the dispute or grievance with their immediate supervisor. The employee or employees may appoint a representative such as an AWU delegate or employee representative to be present at the meeting with their supervisor, or to meet with their supervisor on their behalf.
If the matter is not resolved after meeting with an immediate supervisor, the employee or employees and/or their representative(s) will arrange further discussions with more senior management as appropriate.
An employee, AWU delegate, or employee representative may invite an official from the AWU under Part 3-4 of the Fair Work Act 2009 or under any other relevant legislation, such as health and safety legislation, to be involved in such discussions as a further representative of the employee. The Company must not hinder or prevent the entry of the AWU official.
If the matter cannot be resolved directly between the parties to the dispute, or if it is not practicable for the above steps to be completed due to the urgency of the dispute or for any other reason, any party to the dispute or their representative may refer the matter to the Fair Work Commission for resolution. Conciliation must be attempted before arbitration.
Any arbitrated decision of the Fair Work Commission, whether interim or final, will be:
Consistent with the Code for the Tendering and Performance of Building Work 2016 (2016); and
Binding on both parties.
Where a dispute is referred to the Fair Work Commission, an employee affected by that dispute must be granted reasonable paid leave for the purposes of attending any relevant conference or hearing.
To ensure the proper application of this process and to maintain workplace harmony, until a dispute is resolved according to this procedure, the status quo ante will prevail unless the employee or his or her representative has a reasonable concern about an imminent risk to the employee’s health or safety.
1.12 In order to remove doubt, if the dispute concerns a change at work or a change in conditions, the status quo ante represents the position before the implementation of the change.
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.
1578. Employee Representatives
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(1)(c), 11(3)(p), 11(4), 13(2)(m), 14
Clause wording
10.1 Employee representatives
10.2 The employer must recognise employee representatives accredited by the Union.
10.3 Employee representatives must be given reasonable time off with pay (at the prevailing rate) to carry out their duties as shop steward. Before attending to his or her duties as a shop steward, the shop steward will notify the employer.
10.4 Employee representatives’ duties are:
10.4.1 Representing the Union and its members in workplace relations matters at work;
10.4.2 Giving the Union’s representatives instructions and information during a dispute, including during preparations and attendances in tribunals and courts;
10.4.3 Keeping Union members informed of workplace relations matters and providing advice;
10.4.4 Interviewing new employees about workplace relations matters.
10.4.5 Shop steward must be given access to reasonable facilities, such as a telephone, fax, lockable cabinet, email and internet access.
10.4.6 In each work area the employer will ensure that employee representatives will have a prominent notice board for the posting of Union approved notices.
10.4.7 Each year a shop steward will be allowed up to 10 days paid leave per annum to attend Union and Employer approved training and other activities. The Employer will pay for any approved training and the Employee will be given time off with pay to attend the approved training course.
10.5 Union meetings
10.5.1 Each quarter the Union may convene a meeting of Union members of up to
30 minutes
duration during working hours. The meetings will be without loss of pay.
10.5.2 Meetings are to be timed so as to minimise inconvenience for all parties.
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 result in the employment of a non-working shop steward or job delegate.
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.