Fair Work Act 2009
s.156 - 4 yearly review of modern awards

S.156 - Four yearly review of modern awards.

[1] In the 4 yearly review of the Building and Construction General On-Site Award 2010 (Award), the Full Bench has heard evidence and submissions advanced in support of applications to alter clauses 20.1, 21-22, 24.1-24.3 and 33 of the Award. Having considered that evidence and those submissions, the Full Bench has come to a provisional view as to particular approaches which might be taken to resolve those applications. The proposed approaches in relation to the identified issues are set out below. They do not represent any final or concluded view on the part of the Full Bench, and the parties should not proceed upon any assumption that the proposed approaches will ultimately be reflected in the Full Bench’s decision. Each party is invited to make submissions whether these approaches, either as proposed or in any identified modified form, would be appropriate to be included in the Award. Any such submissions should be sent to the Commission (amod@fwc.gov.au) on or before 5.00pm Friday 15 September 2017. If, in addition, any party wishes to make further oral submissions in relation to these matters, they should advise the Commission (amod@fwc.gov.au) of this by the same date. A further hearing date will be reserved for that purpose on Friday 17 November 2017.

Tool and employee protection allowance – clause 20.1

[2] It is proposed that clause 20.1 of the Award be replaced by a provision in the following form:

20.1 Tool and employee protection allowance

(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:

(b) Where any other tools are required 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:

(i) provide the tools; or

(ii) reimburse the employee for provision of the tools.

(c) Where any protective clothing or equipment, other than safety boots, is required for the safe performance of work, the employer shall:

(i) provide the clothing or equipment; or

(ii) reimburse the employee for provision of the clothing or equipment.

(d) Where employees other than refractory bricklayers 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.

(e) The following special conditions will apply to refractory bricklayers:

(i) After six weeks employment, and on request from the employee, an allowance of $86.09 must be provided for the purchase of boots. The same allowance must be provided to cover the cost of replacement boots, provided that the allowance need not be paid more than once in any six month period dating from the time the allowance is first provided. The allowance is not payable where the employer provides boots.

(ii) Employees provided with the allowance, or the boots, will accrue credit at the rate of $4.30 per week from the date of the request. An employee leaving, or being dismissed, before 20 weeks’ employment after the date of the request will repay the difference between the credit accrued and the $86.09.

Allowances - clauses 21 and 22

[3] It is provisionally proposed that a number of allowances in clause 21 and 22 of the Award should be abolished and the industry allowance should be increased by a compensatory amount.

[4] Attached is a list of allowances for which provision is made in the Award categorised as expense, disability and skill allowances by reference to the sector of the building construction industry to which the allowances apply. They should be re-ordered in the Award in accordance with these categories. It is proposed to abolish the lift industry allowance. The expense related allowances will be dealt with separately. We propose to retain the skills related allowances.

[5] As to the disability allowances we propose that the industry allowance be increased and replace all other disability related allowances for which provision is made in the Award. We also propose that the quantum of the industry allowance differ as between the various identified sectors of the building construction industry to take into account the fact that existing disability related allowances do not apply uniformly across the various sectors. The sectors we have in mind are the residential construction sector (which encompasses both cottage construction and multi-unit apartment buildings construction), the commercial building and construction sector, the civil construction sector and the metal and engineering construction sector. The following issues arise for consideration in respect of this proposed approach:

(a) the appropriate definitions for each sector identified above having regard to the coverage definitional provisions in clause 4.10 of the Award;

(b) the quantum of the industry allowance that should apply in each sector; and

(c) whether any existing disability related allowance should be retained.

Living away from home - distant work entitlement – clauses 24.1-24.3

[6] It is proposed that clauses 24.1-24.3 be varied to provide as follows:

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.

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.

24.3 Entitlement

(a) Where an employee qualifies under clause 24.1 the employer will:

(i) pay the employee the greater of $68.45 per day or an amount which fully reimburses the employee for all reasonable accommodation and meal expenses incurred;

(ii) provide the worker with accommodation and three adequate meals each day;

(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 paragraph (a) must be of reasonable quality and must include reasonable ablution, laundry, recreational, kitchen, external lighting, communications and fire protection facilities in accordance with contemporary community living standards having regard to the location in which the work is performed.

Hours of work - clause 33

[7] It is proposed that the current clause 33 be replaced by the following:

33. Ordinary hours of work

(a) 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 procedure.

(i) 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 an RDO and 7.6 hours will be paid. An employee will therefore accrue 7.6 hours towards an RDO each 19 days of ordinary hours worked.

(ii) Accrual towards an RDO on days not worked

An employee will accrue 0.4 of one hour of each day towards an RDO for any public holiday where an employee is not required to work and for each day of paid leave take. This will not apply on a day an employee takes a RDO.

(iii) Taking the accrued RDO

A. An accrued RDO will be taken in one of the following ways:

1. the employer fixing by written roster published 7 days before the commencement of a 20 day four week cycle one day during that cycle on which all employees will take an RDO; or

2. the employer fixing by written roster published 7 days before the commencement of a 20 day four week cycle different days during that cycle on which particular employees will take an RDO so that each employee takes an RDO during the cycle; or

3. by any other method that is agreed by the employer and a majority of that employer’s employees and recorded in writing.

B. A roster published in accordance with subclause 33(a)(iii)A1 or A2 must not require an employee to take an RDO on a day during a 20 day four week cycle that is a public holiday.

(iv) RDO banking

A. An employee and the employer may agree to allow an employee to bank an accrued RDO that would be taken under one of the ways fixed under subclause 33(a)(iii)and in that event the following will apply:

1. The number of accrued RDOs banked must not exceed five at any time.

2. If an accrued RDO is banked, an employee is required to work on the day the employee’s RDO was otherwise fixed under subclause 33(a) (iii). In that event subclause 33(a)(v) does not apply.

3. An accrued RDO that is banked will be taken on a day that is agreed between employer and the employee that is a day on which ordinary working hours may be worked. An employer must not unreasonably withhold an agreement for an employee to take an accrued RDO that is banked on a particular day.

4. 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.

(v) Requirement to work on a day that is a RDO

A. An employer may by written notice given to an employee not less than 48 hours beforehand require that employee to work on an RDO that is fixed in accordance with subclause 33(a)(iii) if the work is necessary:

1. to allow other employees to be employed productively; or

2. to carry out out-of-hours maintenance; or

3. in the case of unforeseen delays to a particular project or a section of it; or

4. any other reasons arising from unforeseen or emergency circumstances on a project;

B. An employee who works on an RDO as required by the employer will be paid penalty rates as prescribed for Saturday work in clause 37—Penalty rates.

(vi) Payment for an RDO

Payment for each RDO taken by an employee will include accrued entitlement to the allowances prescribed in subclauses 25.2 to 25.7.

(vii) 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:

A. an amount equal to the payment the employee would have received had the employee taken any accrued RDO ye to be taken and any banked accrued RDO; and

B. 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.

(c) Hours of work – part-time employees

(i) 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 a rostered day off, and further provided that such employee will not work on the rostered day off.

(ii) An employer and employee may agree that the part-time employee accrues time towards a rostered day off 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(a)(i).

(d) Other conditions for working ordinary hours

(i) 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.

(ii) 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.

(iii) Work in compressed air

The working hours and conditions of employees working in compressed air will be those as from time to time prescribed in the code of the Standards Association of Australia for work in compressed air, Part 1 Airlock Operations.

(iv) Hours – underground work

A Underground means in any trench, shaft, drive or tunnel more than 6.1 metres (20 feet) below the surface of the ground or any drive or tunnel over 4.6 metres (15 feet) in length or where the drive or tunnel is timbered irrespective of the depth, or any live sewer more than 2.4 metres (8 feet) below the surface of the ground. Nothing in this clause will entitle a person working in a trench by pot and shot method or otherwise at a depth less than 6.1 metres (20 feet) below the surface of the ground to be paid as a miner.

B The hours of work of employees working underground and all dependent work above the ground will begin at the whistle and end at the surface. The hours of work for underground work will be 38 per week worked in accordance with the provisions of clause 33.1(a).Each day’s work will include half an hour crib break and if two shifts are worked they will be worked between the hours of 6.00 am and midnight.

C A week’s work will be 30 hours per week, exclusive of crib time, except in the following cases:

1. miners driving tunnels with a superficial area not exceeding 12.2 metres (40 feet);

2. miners sinking shafts over 15.2 metres (50 feet) in depth; and

3. persons packing and/or scabbling in dead ends and/or boodler working.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR595347>

Attachment – Allowance categories

Generally applicable

Expenses

Tool and employee protection allowance (clause 20.1)
Meal allowance (clause 20.2)
Compensation for clothes and tools (clause 20.3)
Special allowance (clause 21.1)

Disability

Industry allowance (clause 21.2)
Underground allowance (clause 21.3)
Multistorey allowance (clause 21.4, excluding clause 21.4(e))
Plant room allowance (clause 21.4(e))
Refractory bricklaying allowance (clause 21.8)
Coffer dam worker (clause 21.9)
Air-conditioning industry and refrigeration industry allowances (clause 21.11)
Insulation (clause 22.2(a))
Hot work (clause 22.2(b))
Cold work (clause 22.2(c))
Confined space (clause 22.2(d))
Swing scaffold (clause 22.2(e))
Explosive power tools (clause 22.2(f))
Wet work (clause 22.2(g))
Dirty work (clause 22.2(h))
Toxic substances (clause 22.2(i))
Fumes (clause 22.2(j))
Asbestos (clause 22.2(k))
Asbestos eradication (clause 22.2(l))
Furnance work (clause 22.2(m))
Acid work (clause 22.2(n))
Heavy blocks (clause 22.2(o))
Bitumen work (clause 22.2(p))
Height work (clause 22.2(q))
Suspended perimeter work platform (clause 22.2(r))
Employee carrying fuels, oils and greases (clause 22.2(s))
Pile driving (clause 22.2(t))
Dual lift allowance (clause 22.2(u))
Stonemasons (clause 22.2(v))

Skill

Laser safety officer allowance (clause 21.6)
Carpenter-diver allowance (clause 21.7)
First aid allowance (clause 21.10)
Electrician’s licence allowance (clause 21.12)
In charge of plant (clause 21.13)

General building and construction sector only

Expenses

Second-hand timber (clause 22.3(h))

Disability

Towers allowance (clause 22.3(a))
Cleaning down brickwork (clause 22.3(b))
Bagging (clause 22.3(c))
Plaster or composition spray (clause 22.3(d))
Slushing (clause 22.3(e))
Dry polishing of tiles (clause 22.3(f))
Cutting tiles (clause 22.3(g))
Roof repairs (clause 22.3(i))
Grindstone allowance (clause 22.3(k))
Brewery cylinders (clause 22.3(l))
Spray application – painters (clause 22.3(n))
Pneumatic tool operation (clause 22.3(o))
Bricklayer operating cutting machine (clause 22.3(p))
Hydraulic hammer (clause 22.3(q))
Waste disposal (clause 22.3(r))

Skills

Computing quantities (clause 22.3(j))
Certificate allowance (clause 22.3(m))

Civil construction sector only

Expenses

Disability

Pipe enamelling (clause 22.4(a))
Powdered lime dust (clause 22.4(b))
Sand blasting (clause 22.4(c))
Liver sewer work (clause 22.4(d))
Timbering (clause 22.4(e))
Special work (clause 22.4(f))
Compressed air work (clause 22.4(g))
Cutting stone (clause 22.4(h)

Skills

Lift industry only

Disability OR Skills

Lift industry allowance (clause 42.2(a))