| MA000020 PR715725 [Note: a correction and a further correction have been issued to this document] |
| FAIR WORK COMMISSION |
DETERMINATION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Construction awards
(AM2016/23)
BUILDING AND CONSTRUCTION GENERAL ON-SITE AWARD 2010
[MA000020]
Building, metal and civil construction industries | |
VICE PRESIDENT HATCHER |
SYDNEY, 20 MARCH 2020 |
4 yearly review of modern awards – Group 4 Awards – Construction awards – Building and Construction General On-site Award 2010 – substantive matters.
A. Further to the Full Bench decisions issued by the Fair Work Commission on 26 September 2018 [[2018] FWCFB 6019], 31 October 2019 [[2019] FWCFB 6860] and 18 December 2019 [[2019] FWCFB 8564], the above award is varied as follows:
1. By deleting clause 4.10(b)(v).
2. By renumbering clauses 4.10(b)(vi) to (xi) as 4.10(b)(v) to (x).
3. By deleting the words “clause 25.12(b)” appearing in clause 15.2(c) and inserting “clause 25.5(b)”.
4. By deleting the words “clause 25.12(a)” appearing in clause 15.8(b) and inserting “clause 25.5(a)”.
5. By deleting the word “adult” appearing in clause 19.1(a).
6. By deleting clause 19.3(a)(ii) and inserting the following:
(ii) For this purpose the hourly rate, calculated to the nearest cent (less than half a cent to be disregarded), will be calculated by multiplying the sum of the appropriate amounts prescribed in:
• clause 19.1—Minimum wages;
• clause 21.1—Industry allowances;
and where applicable,
• clause 20.1—Tools and protective or other clothing or equipment;
• clause 22.2—Underground allowance,
by 52 over 50.4 (52/50.4) rounded to the nearest cent and dividing the total by 38.
Provided that in the case of a carpenter-diver, the divisor will be 31.
7. By deleting clause 19.3(b) and inserting the following:
• clause 19.1—Minimum wages;
• clause 21.1—Industry allowances;
and, where applicable:
• clauses 20.1—Tools and protective or other clothing or equipment;
• clause 22.2—Underground allowance;
• clause 22.7—Air-conditioning industry and refrigeration industry allowances;
• clause 22.8—Electrician’s licence allowance; and
• clause 22.9—In charge of plant allowance;
and dividing the total by 38.
8. By deleting clause 19.7(e) and inserting the following:
(e) In addition to the above rates apprentices will be paid amounts prescribed in:
• clause 20.1—Tools and protective or other clothing or equipment;
• clause 21.1—Industry allowances;
and, where applicable,
• clause 22.2—Underground allowance
as part of the ordinary weekly wage for all purposes.
9. By deleting clause 20.1 and inserting the following:
20.1 Tools and protective or other clothing or equipment
(a) An allowance in recognition of the maintenance and provision of the standard tools of trade must be paid for all purposes of the award in accordance with the following table:
Classification |
Tool allowance |
Artificial stoneworker, carpenter and/or joiner, carpenter-diver, carver, bridge and wharf carpenter, floor sander, letter cutter, marble and slate worker, stonemason or tilelayer |
32.11 |
Caster, fixer, floorlayer specialist or plasterer |
26.55 |
Refractory bricklayer or bricklayer |
22.79 |
Roof tiler, slate-ridger or roof fixer, tradespersons in the metals and engineering construction sector |
16.82 |
Signwriter, painter or glazier |
7.71 |
(b) Where any other tools are required by the employer for the performance of work by a tradesperson covered by paragraph (a), or where in the case of any other employee any tools are required for the performance of work, the employer shall:
(c) Where any protective or other clothing or equipment, other than safety boots, is required by the employer for the performance of work, the employer shall:
(i) by agreement with the employee, reimburse the employee for provision of the clothing or equipment; or
(d) Where employees are required either by the employer or by legislation to wear steel toe capped safety boots the employer will reimburse employees for the cost of purchasing such boots on commencement of work. Subject to fair wear and tear, boots will be replaced each six months if required and sooner if agreed.
10. By deleting the words “Tool and employee protection allowance” appearing in clause 20.4(b) and inserting the words “Tools and protective or other clothing or equipment”.
11. By deleting clause 21—Site and general wage related allowances and inserting the following:
21.1 The following industry allowances must be paid, in addition to the employee’s weekly rate prescribed in clause 19—Minimum wages, for work in each of these sectors:
(a) General building and construction industry, civil construction industry and metal and engineering construction industry—an allowance of 6% of the weekly standard rate;
(b) Residential building and construction industry—an allowance of 4.8% of the weekly standard rate.
21.2 For the purposes of determining the applicable industry allowance:
(a) the definitions of general building and construction, civil construction and metal and engineering construction in clause 4.10 will apply.
(b) residential building and construction industry means the activities identified in clause 4.10(a) undertaken in relation to a single occupancy or dual occupancy residential building which is not a multistorey building as defined in clause 22.3(c).
21.3 The industry allowances payable under clause 21 are to be paid for all purposes of the award.
12. By deleting clause 22—Special rates and inserting the following:
22.1 An employer must pay an employee the allowances they are entitled to under clause 22 in addition to the applicable industry allowance under clause 21.
(a) An employee, other than an employee in an Operator classification, who is required to work underground must be paid an additional allowance of 1.8% of the weekly standard rate per week for all-purposes of the award.
(b) Provided that an employee required to work underground for no more than four days or shifts in any ordinary week must be paid an additional 0.4% of the weekly standard rate per day or shift.
(c) Where a shaft is to be sunk to a depth greater than six metres, the payment of the underground allowance will commence from the surface.
(d) These allowances will not be payable to employees engaged upon pot and drive work at a depth of 3.5 metres or less.
(a) A multistorey allowance must be paid to all employees on-site whilst engaged in construction or renovation of a multistorey building to compensate for the disabilities experienced in, and which are peculiar to construction or renovation of a multistorey building.
(b) Provided that for the purposes of this clause renovation work is work performed on existing multistorey buildings and such work involves structural alterations which extend to more than two storey levels in a building, and at least part of the work to be performed is above the fourth floor storey level in accordance with the scale of payments appropriate for the highest floor level affected by such work.
(c) In this clause:
multistorey building means a building which will, when complete, consist of five or more storey levels
complete means the building is fully functional and all work which was part of the principal contract is complete
storey level means structurally completed floor, walls, pillars or columns, and ceiling (not being false ceilings) of a building and will include basement levels and mezzanine or similar levels (but excluding half floors such as toilet blocks or store rooms located between floors), and a plant room situated on the top of a building if the plant room occupies 25% of the total roof or an area of 100 square metres whichever is the lesser
floor level means that stage of construction which in the completed building would constitute the walking surface of the particular floor level referred to in the table of payments.
(d) In respect of any building or structure (including a tower) which does not have regular storey levels and which exceed 15 metres in height, an allowance of 3.2% of the hourly standard rate per hour will be paid for all work above 15 metres, with an additional 3.2% of the hourly standard rate per hour for work above each additional 15 metres. For example, an employee working at a height of 31 metres is paid an allowance of 6.4% of the hourly standard rate per hour.
(e) Rates
(i) Except as provided for in clauses 22.3(d) and 22.3(f), an allowance in accordance with the following table must be paid to all employees on the building site. The higher allowances presented in respect of work on the 16th and subsequent floors will be paid to all employees when one of the following components of the building—structural steel, reinforcing steel, boxing or walls—rises above the floor level first designated in the allowance scale:
Storeys |
Allowance per hour |
From the commencement of building to 15th floor level |
2.6% of the hourly standard rate |
From the 16th floor level to 30th floor level |
3.1% of the hourly standard rate |
From the 31st floor level to 45th floor level |
4.8% of the hourly standard rate |
From the 46th floor level to 60th floor level |
6.2% of the hourly standard rate |
From the 61st floor level onward |
7.6% of the hourly standard rate |
(ii) The allowances payable at the highest point of the building will continue until completion of the building.
(i) All employees employed on a service core at more than 15 metres above the highest point of the main structure must be paid the multistorey rate appropriate for the main structure plus an additional 3.2% of the hourly standard rate per hour, with 3.2% of the hourly standard rate per hour additional for work above each additional 15 metres calculated from the highest point reached by the main structure to the highest point reached by the service core in any one day period.
(ii) Employees employed on a service core no higher than 15 metres above the main structure must be paid in accordance with the multistorey allowance prescribed herein.
(iii) Provided that any section of a service core exceeding 15 metres above the highest point of the main structure will be disregarded for the purpose of calculating the multistorey allowance application to the main structure.
22.4 Laser operation allowance
(a) Application
This subclause applies when laser equipment is utilised for work within the scope of this award.
(b) Definitions
(i) Laser means any device excepting a Class 1 device which can be made to produce or amplify electromagnetic radiation in the wavelength range from 100 nanometres to one millimetre primarily by the process of controlled stimulation emission.
(ii) Laser safety officer is an employee who in addition to the employee’s ordinary work is qualified to perform duties associated with laser safety and is appointed as such.
(c) Laser safety officer allowance
An employee appointed by the employer to carry out the duties of a laser safety officer must be paid an additional 13.4% of the hourly standard rate per day or part thereof whilst carrying out such duties, paid as a flat amount without attracting any premium or penalty.
22.5 Carpenter-diver allowance
Employees undertaking work normally performed by a carpenter-diver must be paid an additional 4.5% of the hourly standard rate per hour extra which will be regarded as part of the ordinary time hourly rate for all-purposes of the award.
(a) An employee who:
(i) is appointed by the employer to be responsible for carrying out first aid duties as they may arise;
(ii) holds a recognised first aid qualification (as set out hereunder) from the Australian Red Cross Society, St John Ambulance or similar body;
(iii) is required by their employer to hold a qualification at that level;
(iv) the qualification satisfies the relevant statutory requirement pertaining to the provision of first aid services at the particular location where the employee is engaged; and
(v) those duties are in addition to the employee’s normal duties, recognising what first aid duties encompass by definition;
will be paid at the following additional rates to compensate that person for the additional responsibilities, skill obtained, and time spent acquiring the relevant qualifications:
(vi) an employee who holds the minimum qualifications recognised under the relevant State or Territory Occupational Health and Safety legislation (or, in Western Australia, a Senior First Aid certificate of Industrial First Aid certificate or equivalent qualification from the St John Ambulance Association or similar body)—0.36% of the weekly standard rate per day; or
(vii) an employee who holds a higher first aid certificate recognised under the relevant State or Territory Occupational Health and Safety legislation (or, in Western Australia, a Senior First Aid certificate or Industrial First Aid certificate or equivalent qualification from the St John Ambulance Association or similar body)—0.57% of the weekly standard rate per day.
(b) An employee will be paid only for the level of qualification required by their employer to be held, and there will be no double counting for employees who hold more than one qualification.
22.7 Air-conditioning industry and refrigeration industry allowances
In addition to the appropriate minimum wage prescribed in clause 19.1, an air-conditioning tradesperson and a refrigeration mechanic must be paid a weekly allowance of 7.9% of the weekly standard rate as compensation for the various disabilities and peculiarities associated with on-site air-conditioning work or on-site refrigeration work.
22.8 Electrician’s licence allowance
(a) An employee engaged and working as an electrical tradesperson and who holds an appropriate electrician’s licence must be paid a weekly allowance of 3.2% of the weekly standard rate for all-purposes of this award.
(b) An appropriate electrician’s licence for the purpose of this subclause will be:
• New South Wales—a NSW Electrician’s Licence;
• Victoria—an A Grade Electrician’s Licence;
• South Australia—an A Grade Electrical Worker’s Licence;
• Tasmania—an A Grade Electrician’s Licence; and
• Queensland—an Electrical Mechanic’s or Electrical Fitter/Mechanic’s Licence.
(a) In charge of plant means:
(i) when two or more employees are employed at the plant at the one time, the employee who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility;
(ii) an employee who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility over one or more other employees;
(iii) when the employee is the only person of that class employed on the plant the employee who does the general repair work of the plant in addition to the work of operating, but not when the employee merely assists a fitter or engineer to do such work; or
(iv) where shifts are worked, the employee who is directed to carry out the general repair work of the plant in addition to the work of operating, but not when the employee merely assists a fitter or engineer to do such work.
(b) An employee who is in charge of plant must be paid an additional 4.7% of the weekly standard rate per week.
22.10 Special rates applicable only to the general building and construction sector
(a) Conditions in respect of special rates
(i) To avoid doubt, the special rates are allowances for the purpose of clause 7.1(d).
(ii) The special rates prescribed in this award must be paid irrespective of the times at which work is performed and will not, except where specified, be subject to any premium or penalty conditions.
(iii) The special rates must be paid to employees in addition to other rates in this award.
(b) Computing quantities
(i) Employees who are regularly required to compute or estimate quantities of materials in respect of the work performed by other employees must be paid an additional 23.3% of the hourly standard rate per day or part thereof.
(ii) This allowance will not apply to an employee classified as a leading hand and receiving an allowance prescribed in clause 19.2.
(c) Scaffolding or rigging certificate allowance
A tradesperson who is the holder of a scaffolding certificate or rigging certificate issued by the appropriate certifying authority and is required to act on that certificate whilst engaged on work requiring a certificated person must be paid an additional 3.2% of the hourly standard rate per hour.
13. By deleting clause 24.1 and inserting the following:
24.1 Qualification
The entitlements under this clause apply when an employee is employed on construction work at such a distance from the employee’s usual place of residence or any separately maintained residence that the employee cannot reasonably return to that place each night, provided that:
(a) the employee is not in receipt of relocation benefits;
(b) the employee is maintaining a separate place of residence to which it is not reasonable to expect the employee to return each night; and
(c) the employee has provided the correct details of their usual place of residence, or any separately maintained address, to the employer.
14. By deleting clause 24.2 and inserting the following:
24.2 Employee’s address
(a) On engagement, an employee must provide the employer with their address at the time of application and the address of any separately maintained residence. An employee must not knowingly make a false statement regarding the details required in clause 24.1(c).
(b) The employer must take reasonable steps to verify the address details provided by the employee. Reasonable steps may include requesting documentary proof of the address, such as by the provision of a driver’s licence, but do not include investigating the veracity of the documentary proof that is provided by the employee.
(c) Despite clause 24.1(c), the employer will be liable to pay or provide the entitlements under this clause to an employee who satisfies clause 24.1(a) and (b) if the employee has failed to provide the correct address details and the employer has failed to take reasonable steps to verify the address details in accordance with paragraph (b). However, the employer will not be liable to pay or provide the entitlements under this clause if the employer has requested documentary proof of the employee’s address details and the employee has provided fraudulent documents in response to that request.
(d) No subsequent change of address will entitle an employee to the provisions of this clause unless the employer agrees.
15. By deleting clause 24.3 and inserting the following:
24.3 Entitlement
(a) Where an employee qualifies under clause 24.1 the employer will:
(i) pay the employee the greater of $72.02 per day or an amount which fully reimburses the employee for all reasonable accommodation and meal expenses incurred; or
(ii) provide the worker with accommodation and three adequate meals each day; or
(iii) provide the worker with accommodation and reimburse the employee for all reasonable meal expenses; or
(iv) where employees are required to live in camp, provide all board and accommodation free of charge.
(b) Any accommodation provided under clause 24.3(a) must be in accordance with contemporary living standards taking into account the particular circumstances of the location in which the work is performed and must include reasonable washing, laundry, recreational, kitchen, external lighting, communications and fire protection facilities.
16. By deleting clause 24.4 and inserting the following:
24.4 Reimbursement of meal expenses for living in camp
Where it is not possible for the employer to provide meals free of charge directly to employees required to live in camp, the employer shall:
(a) reimburse employees for food reasonably purchased by them for their own use or for the reasonable cost of meals consumed in the nearest recognised centre; and
(b) pay an allowance of $203.61 for every complete week the employee is available for work, or in the case of broken weeks $29.06 per day including any Saturday or Sunday if the employee is in camp and available for work on the working days immediately preceding and succeeding each Saturday and Sunday. If an employee is absent without the employer’s approval on any day, the allowance will not be payable for that day and if such unauthorised absence occurs on the working day immediately preceding or succeeding a Saturday or Sunday, the allowance will not be payable for the Saturday and Sunday.
17. By deleting clause 24.5 and inserting the following:
24.5 Camp conditions
(a) The employer must ensure that a camp is maintained in a clean and hygienic condition.
(b) Where an employer has established a camp site and provides facilities for employees living in their own caravan, the employer must provide reasonable space for the caravans.”
18. By deleting clause 24.6.
19. By renumbering clauses 24.7 to 24.8 as 24.6 to 24.7.
20. By deleting clause 24.6(a)(i) and inserting the following:
(i) An employee must:
● be provided with appropriate transport or be paid the amount of a fare on the most appropriate method of public transport to the job, and any excess payment due to transporting tools if such is incurred; and
● be paid for the time spent in travelling, at ordinary rates up to a maximum of eight hours per day for each day of travel; and
● be paid $15.38 per meal for any meals incurred while traveling.
21. By deleting the words “camping allowance pursuant to clause 24.5” in clause 24.6(e)(ii) and inserting the words “reimbursement of meal expenses for living in camp pursuant to clause 24.4”.
22. By deleting clause 24.6(f) and inserting the following:
(f) Rest and recreation
Where an employee is engaged on a job which qualifies the employee for the provisions of this clause and the duration of work on the job is scheduled for more than 8 weeks the employee will be entitled to rest and recreation in accordance with the following:
(i) After each continuous 4 week period of work away from home the employee will be entitled to a minimum period of 7 days unpaid rest and recreation leave at the employee’s usual place of residence, of which 5 days shall be exclusive of travel from the job to the employee’s usual place of residence and return to the job. On each occasion that the employee returns to their usual place of residence they will be paid for travel expenses in accordance with clause 24.7(a), (b) and (c).
(ii) After 12 weeks continuous service (inclusive of periods of rest and recreation) the employee will be entitled to 2 days’ paid rest and recreation leave and an additional paid day of rest and recreational leave for each subsequent 12 weeks of continuous service.
(iii) Payment for leave and travel expenses will be made at the completion of the first pay period commencing after date of return to the job.
(iv) The provisions of clause 24.7(f)(i) do not continue to apply where the work the employee is engaged upon will terminate in the ordinary course within a further 28 days after the last period of rest and recreation leave.
(v) Service will be deemed to be continuous notwithstanding an employee’s absence from work as prescribed in this clause.
(vi) Variable return home
In special circumstances, and by agreement with the employer, the return to the usual place of residence entitlements may be granted earlier or taken later than the prescribed date of accrual without alteration to the employee’s accrual entitlement.
(vii) No payment instead
Payment of travel expenses and leave with pay as provided for in this clause will not be made unless utilised by the employee.
(viii) Alternative paid day off procedure
If the employer and the employee so agree, any accrued rostered days off (RDO) as prescribed in clause 33–Ordinary hours of work, may be taken, and paid for, in conjunction with and additional to rest and recreation leave.
(ix) Termination of employment
An employee will be entitled to notice of termination of employment in sufficient time to arrange suitable transport at termination or must be paid as if employed up to the end of the ordinary working day before transport is available.
23. By deleting clause 25 and inserting the following:
25. Travelling time entitlements
25.1 Fares and travel pattern allowance
(a) In recognition of the travel patterns and costs peculiar to the industry, which include mobility in employment and the nature of employment on construction work, an employee is to be paid an allowance of $17.43 per day for each day worked when the employee starts and finishes work on a construction site, or is required to perform prefabricated work in an open yard and is then required to erect or fix on-site.
(b) An employee will not be entitled to the allowance in paragraph (a) on any day where the employer:
(i) provides or offers to provide transport free of charge from the employee’s home to the place of work and return; or
(ii) provides a fully maintained vehicle free of charge to the employee.
25.2 Travelling between construction sites
An employee transferred from one site to another during working hours will be paid:
(a) for the time spent in travelling; and
(b) if the employer does not provide transport:
(i) the reasonable cost of fares for public transport between construction sites; or
(ii) where the employee uses their own vehicle the employee must be paid an allowance at the rate of $0.78 per kilometre.
25.3 Travelling outside ordinary hours
Time spent travelling from an employee’s home to their job and return outside ordinary hours will be unpaid unless the employer directs the employee to pick up and return other employees to their homes.
(a) If an employee is required to travel to a construction site that is:
(i) not located in a metropolitan radial area in which the employee’s usual place of residence is located; and
(ii) more than 50 kms by road from the employee’s usual place of residence;
the employee will be entitled to the distant work payment in paragraph (b) in addition to the allowance in clause 25.1.
(b) The distant work payment is:
(i) payment for the time outside ordinary working hours reasonably spent in travel, paid at the ordinary time hourly rate, calculated to the next quarter of an hour, and with a minimum payment of one half an hour per day for each return journey; and
(ii) any expenses necessarily and reasonably incurred in such travel, which will be $0.47 per kilometre where the employee uses their own vehicle.
(c) Despite paragraph (a), the distant work payment is not payable when, at the commencement of employment, the employee’s usual place of residence was more than 50km by road from the construction site on which the employee was initially engaged.
(d) In this subclause, a metropolitan radial area is the area within a radius of 50 kilometres of:
(i) the GPO of a capital city of a State or Territory; or
(ii) the principal post office in a regional city or town in a State or Territory.
25.5 Apprentices
(a) An apprentice will be entitled to a proportion of the allowances prescribed in clauses 25.1 and 25.4 in accordance with the following scale:
(i) on the first year rate—75% of the amount prescribed;
(ii) on the second year rate—85% of the amount prescribed;
(iii) on the third year rate—90% of the amount prescribed;
(iv) on the fourth year rate—95% of the amount prescribed.
(b) An apprentice will not be paid the allowance in clause 25.5(a) for the days they attend an RTO for training and assessment in accordance with the contract of training.
(c) When a school-based apprentice attends off-the-job training or assessment not at the school at which they are enrolled they will receive 25% of the allowance prescribed in clause 25.1.
The monetary allowances prescribed in clause 24, clause 25.1, clause 25.2(b)(ii) and clause 25.4(b)(ii) will be adjusted in accordance with clause 20.4.
24. By deleting clause 33 and inserting the following:
33. Ordinary hours of work
33.1 Except as provided in clause 34—Shiftwork, the ordinary working hours will be 38 per week (averaged over a 20 day four week cycle to allow for the accrual and taking of rostered days off (RDO)), worked between 7.00am and 6.00pm Monday to Friday in accordance with the following procedures:
(a) Hours of work and accrual towards rostered days off
Ordinary working hours will be eight hours in duration each day, of which 0.4 of one hour of each day worked will accrue towards a RDO and 7.6 hours will be paid. An employee will therefore accrue 7.6 hours towards a RDO each 19 days of ordinary hours worked.
(b) Accrual towards an RDO on days not worked
An employee will accrue 0.4 of one hour of each day towards a RDO for any public holiday where an employee is not required to work and for each day of paid leave taken. This will not apply on a day an employee takes a RDO.
(c) Taking the accrued RDO
(i) An accrued RDO will be taken in one of the following ways:
● on one day during a 20 day four week cycle on which all employees will take a RDO in accordance with a written roster fixed by the employer and issued 7 days before the commencement of that cycle; or
● on a day during a 20 day four week cycle during which particular employees will take their RDOs on different days in accordance with a written roster fixed by the employer and issued 7 days before the commencement of that cycle; or
● by any other method that is agreed by the employer and a majority of that employer’s employees and recorded in writing.
(ii) The means by which a written roster under clause 33.1(c) may be issued include but are not limited to the following:
● by giving an employee a copy of the written roster; or
● by placing a copy of the written roster on the notice board(s) at the workplace; or
● by sending the written roster to the employee by post in a prepaid envelope to an employee’s usual residential or postal address, by facsimile transmission, or by email or other electronic means; or
● by any other means agreed to by the employer and employee.
(iii) A roster issued in accordance with clause 33.1(a)(i) must not require an employee to take an RDO on a day that is a public holiday.
(d) RDO banking
An employee and the employer may agree to allow the employee to bank an accrued RDO that would otherwise be taken under one of the ways fixed under subclause 33.1(c)(i) and in that event the following will apply:
(i) The number of accrued RDOs banked must not exceed five at any time.
(ii) If an accrued RDO is banked, an employee is required to work on the day the employee’s RDO was otherwise fixed under clause 33.1(c)(i). In that event subclause 33.1(e) does not apply.
(iii) An accrued RDO that is banked will be taken on a day that is agreed between employer and the employee and on which ordinary working hours may be worked. An employer must not unreasonably withhold agreement for an employee to take a banked RDO on a particular day requested by the employee.
(iv) The employer must maintain a record of:
● the number of accrued RDOs banked by each employee; and
● the date on which each employee takes a banked accrued RDO.
(e) Requirement to work on a day that is a RDO
(i) The employer may require an employee to work on an RDO that is fixed in accordance with clause 33.1(c)(i) by agreement with the employee, or upon the provision of not less than 48 hours’ notice where the work to be performed is necessary because of unforeseen delays to a particular project or a section of it or any other reasons arising from unforeseen or emergency circumstances on a project.
(ii) An employee who works on a day rostered for the taking of a RDO in accordance with 33.1(e)(i) will be paid penalty rates as prescribed for Saturday work in clause 37—Penalty rates, and will retain the accrued RDO.
(f) Entitlement on termination of employment
If an employee’s employment is terminated for any reason then, in addition to any other payment to which the employee becomes entitled the employer must pay to the employee:
(i) an amount equal to the payment the employee would have received had the employee taken any accrued RDO yet to be taken and any banked accrued RDO; and
(ii) an amount equal to the payment the employee would have received had the employee taken an RDO for the period representing the number of hours and minutes that have accrued towards an RDO.
33.2 Agreement on working other than the rostered day off cycle
Where an employer and the majority of employees employed at a particular enterprise agree that due to the nature of an employer’s operations it is not practicable for an employee to be provided with an RDO in each four week cycle, they may agree to an alternate method of arranging working hours, provided that the ordinary hours worked in any one week from Monday to Friday are within the spread of hours set out in clause 33.1 and that no more than eight ordinary hours are worked in any one day. Any such agreement shall be recorded in writing.
33.3 Hours of work—part-time employees
(a) The daily ordinary hours of work of a part-time employee shall not exceed 8 hours.
(b) Notwithstanding the provisions of this clause and clause 34—Shiftwork, an employee working on a part-time basis may be paid for actual hours worked and in such instances the employee will not be entitled to accrue time towards an RDO.
(c) An employer and employee may agree that the part-time employee accrues time towards an RDO as provided by this clause and clause 34—Shiftwork. In such instances, the part-time employee will accrue pro rata entitlements to rostered days off in accordance with subclause 33.1(a).
33.4 Hours of work—casual employees
The daily ordinary hours of work of a casual employee shall not exceed 8 hours.
33.5 Other conditions for working ordinary hours
(a) Early starts
The working day may start at 6.00am or at any time between that hour and 8.00am and the working time will then begin to run from the time so fixed, with a consequential adjustment to the meal cessation period. The change to the start time requires agreement between the employer and the employees and their representative(s), if requested.
(b) Washing time
The employer will provide sufficient facilities for washing and five minutes will be allowed before lunch and before finishing time to enable employees to wash and put away gear.
(c) Work in compressed air and underground
The working hours of employees working in compressed air or underground shall be subject to any applicable safety standards.
25. By inserting after the definition of “night shift” in clause 34.1(a) the following definition:
26. By deleting clause 34.1(b)(i) and inserting the following:
27. By deleting the words “clauses 22.2(b) and 22.2(c)” in clause 35.3(e) and inserting “clauses 35.6 and 35.7”.
28. By inserting clause 35.6 as follows:
Where an employee works for more than two hours in a place where the temperature has been raised by artificial means to 46 degrees Celsius and above, the employee is entitled to 20 minutes rest after every two hours work without loss of pay.
29. By inserting clause 35.7 as follows:
35.7 Cold work
Where an employee works for more than two hours in a place where the temperature is lowered by artificial means to less than 0 degrees Celsius, the employee is entitled to 20 minutes rest after every two hours work without loss of pay.
30. By inserting the following note as a new paragraph after the end of clause 36.7:
NOTE: overtime and shiftwork for apprentices are dealt with in clause 15.3.
31. By inserting clause 36.17 as follows:
36.17 Time off instead of payment for overtime
(a) Clause 36.17 does not apply to daily hire employees or casual employees.
(b) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.
(c) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 36.17.
(d) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours were worked;
(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.
NOTE: An example of the type of agreement required by this clause is set out at Schedule H. There is no requirement to use the form of agreement set out at Schedule H. An agreement under clause 36.17 can also be made by an exchange of emails between the employee and employer, or by other electronic means.
(e) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.
EXAMPLE: By making an agreement under clause 36.17 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.
(f) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and employer.
(g) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 36.17 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.
(h) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (f), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.
(i) The employer must keep a copy of any agreement under clause 36.17 as an employee record.
(j) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.
(k) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 36.17 will apply, including the requirement for separate written agreements under paragraph (c) for overtime that has been worked.
NOTE: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).
(l) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 36.17 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
NOTE: Under section 345(1) of the Act a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 36.17.
32. By deleting clause 38.2(b) and inserting the following:
(b) In addition to the amount prescribed in clause 38.2(a), an employee must be paid during a period of annual leave a loading of 17.5% calculated on that amount. This loading will also be payable on accrued leave paid out on termination of employment.
33. By deleting the cross reference to clause 21.1 in clause 42.3.
34. By deleting clause 43 and inserting the following:
43. Foreperson and supervisors
43.1 Application
This clause applies to forepersons and supervisors in the metal and engineering construction sector covered by this award, but does not apply to any employer employing fewer than 30 employees.
43.2 Wages
The weekly minimum wage rate for forepersons and supervisors will be as follows:
Classification |
Supervision of three or more tradespersons, excluding leading hands |
Supervision of other than three or more tradespersons, excluding leading hands |
Foreperson/supervisor |
$926.30 |
$1004.10 |
General foreperson/supervisor |
$901.30 |
$982.90 |
43.6 Definitions
(a) Foreperson/supervisor shall mean an employee (other than a leading hand) appointed as such or required by his/her employer to be mainly engaged in the direct supervision of employees including those employed as leading hands, covered by this award.
(b) General foreperson/supervisor shall mean an employee appointed as such or required by his/her employer to be mainly engaged in the direct supervision and coordination of the work of at least two forepersons/supervisors as defined in clause 43.6(a) but shall not include site managers, nor departmental heads and the like.
35. By inserting Schedule H as follows:
Schedule H—Agreement for time off instead of payment for overtime
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee may take time off instead of being paid for the following amount of overtime that has been worked by the employee:
Date and time overtime started: ___/___/20___ ____ am/pm
Date and time overtime ended: ___/___/20___ ____ am/pm
Amount of overtime worked: _______ hours and ______ minutes
The employer and employee further agree that, if requested by the employee at any time, the employer must pay the employee for overtime covered by this agreement but not taken as time off. Payment must be made at the overtime rate applying to the overtime when worked and must be made in the next pay period following the request.
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
36. By updating the table of contents and cross-references accordingly.
B. This determination comes into operation from 1 July 2020. In accordance with s.166(5) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 1 July 2020.
VICE PRESIDENT
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