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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Construction Awards
(AM2016/23)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER GREGORY
COMMISSIONER HARPER-GREENWELL
SYDNEY, 17 AUGUST 2017
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:
[2017] FWCFB 4239
STATEMENT
E AUSTRALIA FairWork Commission
mailto:amod@fwc.gov.au
mailto:amod@fwc.gov.au
[2017] FWCFB 4239
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Classification Tool
allowance
$ per week
Artificial stoneworker, carpenter and/or joiner, carpenter-diver,
carver, bridge and wharf carpenter, floor sander, letter cutter, marble
and slate worker, stonemason or tilelayer
30.45
Caster, fixer, floorlayer specialist or plasterer 25.17
Refractory bricklayer or bricklayer 21.61
Roof tiler, slate-ridger or roof fixer, tradespersons in the metals and
engineering construction sector
15.95
Signwriter, painter or glazier 7.31
(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,
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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;
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(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.
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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.
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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.
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000020/ma000020-42.htm#P1650_174602
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000020/ma000020-42.htm#P1650_174602
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(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
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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
OF THE FAIR WORK MISSION THE
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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))
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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))
