Translate
1579. Flexibility Clause
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(1)(c), 11(3)(k), 13(2)(a)
Clause wording
The company may agree with an individual employee covered by this agreement to vary the effect of clauses of this agreement from time to time to meet the genuine needs of the company and employee.
Where the company wants to enter into a variation agreement with an individual employee, they must provide a written proposal to the employee. Where the employee’s understanding in written English is limited, the company must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.
Provided, however, that the company must ensure that any variation agreement is genuinely agreed to by the company and the employee and that it results in the employee being better off overall than they would have been without the agreement.
The company must also ensure that any such agreement is:
In writing (including details of the term that will be varied, how the arrangement will vary the effect of the terms, how the employee will be better off overall inr elation to the terms and conditions of his or her employment as a result of the arrangement, and the day on which the arrangement commences);
Signed by the parties, and if the employee is under 18 years of age, must be signed by a parent or guardian of the employee;
Provided to the employee within 14 days after it is agreed to;
Able to be terminated by either party given written notice of not more than 28 days, or at any time by both parties agreeing in writing.
Upon request, the company must provide copies of all flexibility arrangements made under this clause to the employee representative.
The clause of the agreement that is subject to flexibility arrangements is:
Clause 33;
The employer must ensure that the terms of the individual flexibility arrangement;
• Are about permitted matters under section 172 of the Fair Work Act 2009; and
• Are not unlawful terms under section 194 of the Fair Work Act 2009; and
• Result in the employee being better off overall than the employee would be if no arrangement was made.
Advice
This clause does not meet the requirements of section 11.
To the extent that the clause requires the employer to provide the employee representative 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 employee 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.
1580. Employee Representatives
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(1)(c), 13(1)(a)(ii), 13(2)(o)
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.
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.
1581. Consultation Term
Advice Category
Compliant
Code Reference
Clause wording
(1) This term applies if the employer:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Major change
(2) For a major change referred to in paragraph (1)(a):
(a) the employer must notify the relevant employees and the Union of the decision to introduce the major change; and
(b) subclauses (3) to (9) apply.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion—provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph
(2)(a) and subclauses (3) and (5) are taken not to apply.
(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
Change to regular roster or ordinary hours of work
(10) For a change referred to in paragraph (1)(b):
(a) the employer must notify the relevant employees of the proposed change; and
(b) subclauses (11) to (15) apply.
(11) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(12) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(13) As soon as practicable after proposing to introduce the change, the employer must:
(a) discuss with the relevant employees the introduction of the change; and
(b) for the purposes of the discussion—provide to the relevant employees:
(i) all relevant information about the change, including the nature of the change; and
(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and
(iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and
(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
(14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.
(16) In this term:
relevant employees means the employees who may be affected by a change referred to in subclause (1).
1582. Re-classification and Competency Standards
Advice Category
Compliant
Code Reference
Clause wording
The company and the Employee Representative agree that employees will have access to reclassification and career path progression consistent with the provisions of the Award and any agreed classification.
If employee is reclassified their increase will be effective as per the date of the employees application for reclassification. The relativities are as set out in Schedule B of the award and shall be calculated from the C10 rate set out in this Agreement.
The company will use agreed assessors.
1584. THE ROLE OF UNION DELEGATES AND EMPLOYEE REPRESENTATIVES
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(1)(c), 11(3)(q), 11(4), 13(2)(b), 13(2)(j), 13(2)(m)
Clause wording
The Employer recognises the role of Union delegates to represent Union members in employment matters. The Employer recognises that the Union has a legitimate interest in ensuring the delegates can properly perform such representative functions.
The Employer will therefore grant Union delegates reasonable paid time off work to:
• Consult and speak with union members about matters relating to their employment such as a grievance or dispute.
• Consult and confer with Officials of the Union
• Consult with the employer including participating in any consultation process set out under this Agreement
• Represent the interest of Union members to the employer and before industrial tribunals.
• Participate in the operation of the Union
• Participate in any bargaining for an agreement to replace this agreement.
The Employer will provide noticeboards in lunch room facilities and another prominent location in the workplace which is accessible to all employees and allow the Union delegate to post Union notices and Union information on those noticeboards.
The Employer shall provide the Union delegate with adequate resources to assist their duties, including access to:
• Telephone in a private location;
• Photocopying facilities;
• Computer access
The employer will respect the privacy of the delegate’s use of those facilities and will not monitor communication using those facilities.
If there are employee representatives at the workplace who are elected by employees, those representatives will have the same right to meet such employee representative on an as needs basis. Nothing in this sub-clause prevents a Union delegate also being elected as an employee representative.
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 result in the establishment or maintenance of an area which is intended to be designated to be used by members, officers, delegates or other representatives of a building association in that capacity. For example, an obligation to create and maintain a ‘shed’ or other such area set aside for exclusive use by a building association and its members would be prohibited. Setting aside an area for officials to carry out consultation with employees in accordance with relevant laws would not be prohibited.
The implementation of the clause may also 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 display of 'no ticket, no start' signs, or similar, or the application of building association logos, mottos or indicia to company supplied property or equipment.
1585. Christmas Break
Advice Category
Compliant
Code Reference
Clause wording
If the plant is to close down for this period then it shall be on full pay for this period, where that leave has been accrued. Where leave hasn't been accrued then work shall be offered to an employee, where work is available, and this work shall be offered to permanent employees who have not accrued the necessary leave.
1586. Stand Down
Advice Category
Compliant
Code Reference
Clause wording
If the plant is to close down for this period then it shall be on full pay for this period, where that leave has been accrued. Where leave hasn't been accrued then work shall be offered to an employee, where work is available, and this work shall be offered to permanent employees who have not accrued the necessary leave.
30.0 STAND DOWN
If wet sand or mechanical breakdown that the employer has no control over forces a cessation of work, then:-
30.1 Any full time employee who does not have any leave accrued will be provided with two hours work if they attend. Refer to clause 5.1.
(5.1 FULL TIME
A full time employee is an employee who is employed to work an average of 38 ordinary hours per week.)
1587. Higher Duties
Advice Category
Compliant
Code Reference
Clause wording
Employees will have the opportunity to perform higher duties at the higher level, subject to the permanent employee possessing the appropriate skills and the employee will be paid the higher rate while performing those duties.
1588. Consultative Committee
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(k), 11(3)(p), 14
Clause wording
1.1 A Joint Consultative Committee will be established. The Committee’s role will be:
(1) To monitor the implementation and on-going operation of this Agreement.
(2) To develop and monitor key productivity improvements and to measure the effectiveness of those initiatives.
(3) To monitor the implementation of training measures, the purpose of which will be to advance the concept of continuous workplace training and skills enhancement.
(4) To provide a forum for consultation with each other about matters involving changes to the organisation or performance of work in the enterprise, and
(5) To ensure effective compliance with the Dispute Resolution process.
1.2 The Committee will consist of equal representation of both workers and the Employer and will not exceed four (4) members in total.
1.3 The Committee may, at its discretion, call on other persons or experts to attend the Committee and to advise it on specific matters of concern to the committee. The Right of Entry Requirements under Part 3-4 of the Fair Work Act and/or relevant work health and safety legislation will be adhered to.
1.4 The Committee will meet at least quarterly during the life of this Agreement.
Advice
Whilst this clause, on its face, is not inconsistent with the section 11, its implementation may result in conduct that is a breach of the Building Code 2016.
The implementation of this clause may result in conduct which is not compliant with the Building Code if the clause is applied in such a way that would provide for the monitoring of agreements by persons other than the employer and employees to whom the agreement applies, for example, by an officer of the union who may attend Joint Consultative Committee meetings under this clause 10.2.2.
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 for officials of building association (where they form part of the Joint Consultative Committee) other than for a purpose for which a right of entry could be exercised under Part 3-4 fo 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 office 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 entitiy's obligation to comply with section 14 of the Building Code.
1589. Supplementary Labour
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(e), 11(4)
Clause wording
10.1 The parties recognise that the Company will, in addition to direct engagement of Employees under this Agreement, from time to time engage labour hire for the completion of work on the Project. Work usually carried out by subcontractors is not covered by this clause.
10.2 Whilst the Company may engage labour hire for a variety of reasons, the Company acknowledges that it is not its intention to use labour hire to undermine the terms and conditions of Employees under this Agreement.
10.3 Labour hire contractors and subcontractors must act in a manner consistent with the Building Code 2016, or its successor.
10.4 For the purpose of information sharing, the Company will at regular Consultative Committee meetings, report the roles and numbers of supplementary labour employed.
10.5 Nothing in this clause requires, has the effect of requiring, or purports to require; or permits, has the effect of permitting or purports to permit a contravention of Part 3 - 1 of the Fair Work Act 2009 (Cth) (which deals with general protections).
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 this clause may result in conduct which is not compliant with the Building Code if the clause is applied in such a way that the employer is required to discuss, consult with, or otherwise seek the approval of a building association in relation to the engagement of labour hire.
1590. Rostered Days Off
Advice Category
Compliant
Code Reference
Clause wording
2.1 Employees will be entitled to 26 Rostered Days Off (RDOs) in each calendar year or a pro-rata entitlement where employed for only part of the calendar year.
2.2 The Employer and Employees will, typically in October of each year, consult on the RDOs for the following year, factoring in operational requirements and the RDOs generally observed in the construction industry.
2.3 Where the Employer and Employees cannot agree on RDO days or any subsequent changes to RDO days, the Employer reserves the right to determine RDO days by giving seven days’ notice to Employees.
2.4 Where agreed between an Employee and the Employer, RDOs may be accrued to a maximum of five (5) RDOS. Provided that, where, RDOs accruals exceed five (5) days, the excess RDOs will be paid out to the Employee in lieu of taking the RDOs.
2.5 RDOs will be paid at the base wage rate for ordinary hours. i.e. 7.2 hours.
2.6 Upon termination the Employee will be paid at the Employee’s ordinary base wage rate for any accrued RDOs owing.
1591. Employee Representative Training
Advice Category
Compliant
Code Reference
Clause wording
3.1 The employer recognises the importance of the role played by Company workers who are nominated as employee representatives in order to facilitate the effective resolution of workplace grievances and disputes.
3.2 An employee representative shall be granted up to a maximum of two days paid leave per annum (maximum 7.2 hours per day) for the purpose of attending such training.
3.3 Applications to attend employee representative training are required to be submitted to the company for approval at least four weeks prior to the commencement of a scheduled course. Approval of applications to attend employee representative training will be subject to the operational requirements of the business.
3.4 Where approved, leave of absence will be granted to employees at their ordinary time rate of pay. Payment will be made on an hourly basis for the time spent in approved training (subject to the maximum hours specified above), inclusive of travelling time associated with attendance at the training.
The company shall not be liable for any other expenses associated with an employee’s attendance at a course.
1592. Superannuation Contributions
Advice Category
Compliant
Code Reference
Clause wording
2.7 The Employer will make superannuation contributions to the Employee’s nominated complying Superannuation Fund.
2.8 The contribution rate will be a percentage of the Employee’s “ordinary time earnings”, as defined by the Superannuation Guarantee (Administration) Act 1992 and any subsequent amendments. The contribution rates applicable for the duration of this Agreement are as per Schedule A.
2.9 If an Employee does not nominate a complying fund into which the Employer can make its superannuation contributions, the Employer will make those contributions on behalf of the employee to the CBUS Superannuation fund, provided that fund is compliant with relevant superannuation legislation.
1593. Dispute Resolution Procedure
Advice Category
Compliant
Code Reference
Clause wording
4.1 If the dispute relates to conditions of employment that are not expressly covered by this Agreement and relates to a matter contained in the Building and Construction General On-Site Award 2010 (the Award), the parties agree that the Award will be referred to as a reference for resolution.
4.2 If a dispute relates to:
(1) a matter arising under the Agreement; or
(2) the National Employment Standards; this term sets out procedures to settle the dispute.
4.3 An Employee who is a party to the dispute may appoint an Employee Representative for the purposes of the procedures in this clause.
4.4 An Employee Representative shall, upon notification to the Company, be recognised as the accredited representative of the Employee. If an Employee seeks representation by a representative who is also an employee covered by this agreement and who works on the same site, that representative will be allowed all necessary time during working hours to submit to the Company employment related matters affecting the employee he or she represents. At all other times the Employee Representative will perform productive work within their range of qualifications and competence.
4.5 In the first instance, the Parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management.
4.6 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.
4.7 Fair Work Australia may deal with the dispute in 2 stages:
(1) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(2) if the Fair Work Commission is unable to resolve the dispute at the first stage, Fair Work Australia may then:
(1) arbitrate the dispute; and
(2) make a determination that is binding on the Parties. Note If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
(3) Any determination, recommendation or decision by FWA must be consistent with the Code for the Tendering and Performance of Building Work 2016.
4.8 While the Parties are trying to resolve the dispute using the procedures in this term:
(1) an Employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(2) an Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless:
(1) the work is not safe; or
(2) applicable occupational health and safety legislation would not permit the work to be performed; or
(3) the work is not appropriate for the Employee to perform; or
(4) there are other reasonable grounds for the Employee to refuse to comply with the direction.
1594. Christmas Close Down
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o)
Clause wording
The Company will close down each year at Christmas time and each employee must use some of their annual leave. If an employee has not accrued leave, the Company may require the employee to take leave without pay.
Advice
This clause does not meet the requirements of section 11.
To the extent that the employer and employees cannot agree to work during the Christmas closedown period, this clause limits the ability for an employer to determine with its employees when and where work can be performed to meet operational requirements.
1595. Christmas Close Down
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o)
Clause wording
The Company will close down each year at Christmas time and each employee must use some of their annual leave.
If an employee has not accrued leave, the Company may stand the employee down without pay. Generally work will resume no earlier than the third Monday in January.
Advice
This clause does not meet the requirements of section 11.
To the extent that the employer and employees cannot agree to work during the Christmas closedown period, this clause limits the ability for an employer to determine with its employees when and where work can be performed to meet operational requirements.
1596. Christmas Close Down
Advice Category
Non-compliant
Code Reference
11(1)(a), 11(3)(o)
Clause wording
The Company will close down each year for a maximum of 14 days during the Christmas New Year period
Advice
This clause does not meet the requirements of section 11.
To the extent that the employer and employees cannot agree to work during the Christmas closedown period, this clause limits the ability for an employer to determine with its employees when and where work can be performed to meet operational requirements.
1597. SITE/PROJECT WORK
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(f), 11(4), 11A(1)(b)
Clause wording
1.1 Employees may be assigned to a work site or project work which may or may not entitle such employees to be paid a higher rate of pay and/or additional allowances other than is provided for under this Agreement for the work on the project to reflect:-
a) the site roster arrangements;
b) site location; or
c) additional skills or experienced required to be utilised for the period they are on the project.
1.2 In addition, each employee:-
a) will be notified in writing by Company prior to commencement on that project of the arrangements and rates of pay that will apply;
b) will be notified in writing that the payment of such site/project specific rates and allowances cease when their involvement in that specific site/project ceases, and
c) over all, the employee is paid not less than the entitlements provided for under the Agreement.
1.3 Employees whom work on-site or on project work may be subject to the standards of the client work-site in addition to those of Company. This may require undertaking medical examinations or drug testing. Failure to meet these standards may mean the employee is ineligible to work on these particular projects.
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.
1598. Application Agreement Clause
Advice Category
Compliant with implementation feedback
Code Reference
10(1), 11(1)(a), 11(3)(f), 11(4), 11A(1)(b)
Clause wording
a) From time to time the Employer may require an employee engaged under this Agreement to work at a project or site where the Employer seeks to engage that employee under different rates of pay and conditions of employment to those contained in this Agreement. In such cases the Employer will specify those changed rates of pay and conditions in the form of an assignment letter to the employee.
b) Any assignment conditions offered in accordance with subclause 3 d) only apply to the employee for the duration of the employee’s engagement on the assignment to which the conditions apply.
c) The Employer will ensure that the employee is not disadvantaged on an overall monetary basis compared to what he or she would have received under the Agreement for the duration of the assignment.
d) Upon request by the employee, the Employer will provide that employee with a copy of the Employer’s calculations, comparing the monetary entitlements that the employee will receive during the assignment compared to those that the employee would have received under the Agreement over the same period.
To avoid any doubt, any assignment letter offered and agree between Company and the employee shall be consistent with the requirements of the national code of practice for the construction industry as varied from time to time, and the associated implementation guidelines for the national code of practice for the construction industry.
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.
1599. INDIVIDUAL FLEXIBILITY ARRANGEMENTS
Advice Category
Compliant
Code Reference
Clause wording
1.1 Individual Flexibility Agreement
The Company and an Employee may agree to make an Individual Flexibility Agreement (IFA) to vary the effect of terms of this Agreement if:
a) the IFA deals with one or more of the specific terms of the Agreement (i.e. any term of the Agreement is capable of being varied under this clause);
b) the IFA meets the genuine needs of the Company and Employee in relation to one or more of the matters mentioned in paragraph 7.1 a); and
c) the IFA is genuinely agreed to by the Company and Employee.
1.2 Compliance
The Company must ensure that the terms of the IFA:
a) are about permitted matters under section 172 of the Fair Work Act;
b) are not unlawful terms under section 194 of the Fair Work Act; and
c) result in the Employee being better off overall than the Employee would be if no IFA was made.
1.3 Form and content requirements
The Company must ensure that the IFA:
a) is in writing;
b) includes the name of the Company and Employee;
c) is signed by the Company and Employee and if the Employee is under 18 years of age, signed by a parent or guardian of the Employee;
d) includes details of:
(i) the terms of the Agreement that will be varied by the IFA;
(ii) how the IFA will vary the effect of the terms;
(iii) how the Employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the IFA; and
e) states the day on which the IFA commences.
1.4 Copy to Employee
The Company must give the Employee a copy of the IFA within 14 days after it is agreed to.
1.5 Termination of Individual Flexibility Agreement
The Company or Employee may terminate the IFA:
a) by giving no more than 28 days’ written notice to the other party to the IFA; or
b) if the Company and Employee agree in writing – at any time.
1600. Consultation On Change
Advice Category
Compliant
Code Reference
Clause wording
a) This clause applies if Company has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and the change is likely to have a significant effect on employees of the enterprise.
b) The employer must notify the relevant employees of the decision to introduce the major change.
c) The relevant employees may appoint a representative for the purposes of the procedures in this term.
d) If:
• a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
• the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative.
e) As soon as practicable after making its decision, the employer must:
discuss with the relevant employees:
• the introduction of the change; and
• the effect the change is likely to have on the employees; and
• measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
for the purposes of the discussion — provide, in writing, to the relevant employees:
• all relevant information about the change including the nature of the change proposed; and
• information about the expected effects of the change on the employees; and
• any other matters likely to affect the employees.
f) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
g) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
h) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (a), (c) and (e) are taken not to apply.
i) In this term, a major change is likely to have a significant effect on employees if it results in:
• the termination of the employment of employees; or
• major change to the composition, operation or size of the employer’s workforce to the skills required of employees; or
• the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
• the alteration of hours of work; or
• the need to retrain employees; or
• the need to relocate employees to another workplace; or
• the restructuring of jobs.
1601. Temporary Foreign Labour
Advice Category
Compliant
Code Reference
Clause wording
(a) The Parties to the agreement recognise that there may be a requirement to engage Temporary Foreign Labour to supplement the Australian workforce where there are insufficient suitable Australian workers available to do the work.
(b) For the purpose of this clause “Temporary Foreign Labour” shall mean any person who requires a temporary visa to live and work within Australia.
(c) Where the Employer is required to engage such labour, the employer shall:
(1) prior to employment, confirm to Company the visa status of any foreign employee and the suitability of that employee’s visa for work on the project, using the Department of Immigration and Citizenship Visa Entitlement Verification Online (VEVO) system;
(2) ensure that all temporary foreign labour employed on the project will continue to be employed in accordance with the work entitlements of their visas.
(3) ensure recruitment is undertaken pursuant to the Project Recruitment Process, inclusive of;
i) medical examinations (both for employment and immigration) at no cost to the employee;
ii) detailed letter of appointment, including the provision of a copy of the agreement to which the parties are signatory;
iii) pre-employment verification of qualifications, English competency and competency testing to verify skill and capability is to Australian standard;
(4) ensure the employee incurs no upfront costs or costs on an ongoing basis as a result of recruitment;
(5) provide cultural awareness training for the employee and their supervisor;
(6) assist the employee to open the appropriate Australian bank, superannuation, redundancy and income protection accounts;
(7) ensure the employee receives the same terms and conditions, inclusive of R&R entitlements, as per this agreement. Wages shall be direct credited to the employee’s Australian bank account;
(8) provide the employee with medical insurance equivalent to Medicare cover.
1602.
Advice Category
Compliant
Code Reference
Clause wording
The parties agree that with this Agreement being drafted and reformatted, some clauses or words may have been inadvertently or mistakenly left out through no fault of any party to this agreement. If it is proven that an existing entitlement has been left out as a result of this process, the parties agree to vary the EBA to have the issue fixed.
1603. Consultation
Advice Category
Compliant
Code Reference
Clause wording
12.1 Where the company is seriously considering, and prior to the taking of any definite decision on, the introduction of major workplace changes that are likely to have a significant effect on employees, the company must notify and consult with the employees. An employee may involve a representative who they appoint during consultation if they choose to do so.
1604. Consultation
Advice Category
Compliant with implementation feedback
Code Reference
11(1)(a), 11(3)(p), 11(4), 14
Clause wording
12.5 The Company must recognise the employee representative and consult in good faith in relation to such proposed changes, including by allowing employees access to a relevant employee representative to assist employees in the consultations relating to the proposed workplace changes. The employee representative must comply with the access requirements of the Fair Work Act.
This clause shall not be construed as providing any rights which are inconsistent with sec 194(f) or (g) of the Fair Work Act.
Advice
Whilst this clause, on its face, is not inconsistent with section 11, its implementation may result in conduct that is in breach of the Building Code 2016.
To the extent that the nominated representative of the employee is a building association, or an officer or delegate of a building association, the implementation of the clause may result in conduct which is not compliant with the Building Code 2016 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 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.
