Single Enterprise Agreement Legislative Checklist. Matter: AG2017/ BJS Labour Hire Pty Ltd Enterprise Agreement

Size: px
Start display at page:

Download "Single Enterprise Agreement Legislative Checklist. Matter: AG2017/ BJS Labour Hire Pty Ltd Enterprise Agreement"

Transcription

1 Single Enterprise Agreement Legislative Checklist Matter: AG2017/ BJS Labour Hire Pty Ltd Enterprise Agreement Member: Prepared by: Deputy President Masson Nancy Abdalla Lodgement date: 20 July 2017 Date prepared: 18 August 2017 Modern award(s): Building and Construction General On-Site Award 2010 (not incorporated at clause and 3.6) Union support (Form F18): CFMEU requested and been provided with documents and asked to establish their status as a bargaining representative. No response has been received from the CFMEU at this stage. Topic Summary/Comments Section 1 Forms and signature requirements Section 2 Preapproval requirements Employees provided with agreement: response to Question 2.4 of the F17 does not expressly state how employees were provided with copies of the proposed agreement Superannuation: clause 10.2 of the agreement states that the employer will only pay super to casual employees who earn over $450 gross per week and are over 18 years old. Under the superannuation guarantee, employers must pay super when an employee earns $450 or more per month and is over 18 or is under 18 but works over 30 hours per week. Coverage: Question 2.2 of the F17 indicates that the agreement covers all employees, while question 4.2 indicates that the agreement is to operate in QLD, however clause of the agreement states that the agreement may operate throughout Australia. The NoERR simply states that the agreement covers employees that are employed as construction workers and otherwise covered by the Building and Construction Award. May need to seek more information/clarification. Section 3 Mandatory terms Section 4 National Employment Standards (NES) Long Service Leave: clause 15.5 of the agreement states that long service leave arises from the Queensland industrial relations Act. However, clause of the agreement indicates that the agreement may operate throughout Australia. May simply be that employees work on projects throughout Australia for short term periods but are not engaged permanently in states/territories outside Qld. May need to seek clarification. Redundancy: Clause of the agreement states that redundancy does not occur where an alternative position is accepted by an employee with the company. s. 120 of the Act requires an application to the Commission for a reduced redundancy amount where an employer obtains other acceptable employment for an employee. Clause of the Agreement states that where there is an inconsistency between the agreement and the NES, the NES will prevail. Does the Member require an undertaking to resolve this issue despite clause 3.1.7? Section 5 Better off overall test (BOOT) Apprentices and trainees: Clause 5 of the agreement states that the Company will not be engaging apprentices and trainees, however if apprentices and trainees are engaged, then the terms of the Award will apply. Unclear whether apprentices and trainees will not be receiving any of the benefits from the agreement if they are engaged or will wholly be covered by the Award. If so unclear as to how these employees are better off. Offsetting clause: Clause of the Agreement allows the employer to offset any liability, claim or entitlement that an employee may claim against the company where the employee receives any payments or other entitlements. Inconsistent with the full bench decision in CFMEU Published 29 December /12

2 and CSRP which found that an offsetting clause may result or have the effect of excluding NES entitlements. The respondent in the decision resolved the issue by way of a written undertaking (attached). Deductions: Clause of the agreement allows the company to deduct from the final payment owed to an employee (except for outstanding leave entitlements) any balance of outstanding monies owing to the Company. May need to inform applicant/employer that clause may not be enforceable in accordance with s326 of the Act. Summary notes Industry: State: Pay rates: Labour hire in construction industry F17 indicates agreement to operate in QLD, however clause of the agreement indicates that the agreement may operate throughout Australia 78.35% and 91.99% above the Award rate for weekly hire employees 2

3 SECTION 1 FORMS AND SIGNATURE REQUIREMENTS Form F16 application form (s.185, rule 24 FW Rules) Signed and dated by employer or bargaining representative (if bargaining representative, instrument of appointment must be provided) Form F17 employer statutory declaration (s.185, rule 24(1) and (2) FW Rules) Signed by employer and authorised witness (including full name, work/residential address and position/title/authority) Form F18 employee organisation statutory declaration (s.183, s.185, rule 24(3) FW Rules) or Form F18A employee representative statutory declaration (s.183, s.185, rule 24(4) FW Rules) Signed by employee organisation or employee representative and authorised witness (including full name, work / residential address and position/title/authority) Agreement (s.185(2), reg. 2.06A FW Regs) Signed by the employer and at least 1 employee/employee representative and includes full name, address and authority of each person No Issue N/A 3

4 SECTION 2 PRE-APPROVAL REQUIREMENTS Time between notification time and last notice of representational rights (s.173(3)) (Q2.8) The employer provided the Notice of employee rep rights no later than 14 days after notification time Time between making of agreement (date voting concluded) and lodging of application for approval of agreement (s.182(1), s.185(3)) (Q2.8 & 2.9) Agreement was lodged no later than 14 days after it was made Notice of representational rights provided to all employees and in prescribed form (s.173, s.174, Sch 2.1 of FW Regs) (Q2.3) The Notice of employee representational rights is in prescribed form; and The employer took all reasonable steps taken to give the Notice to each employee covered by the agreement and employed at the time of notification Genuine agreement (s.181, s.186(2)(a), s.188) Time between issuing of notice of representational rights and date voting commenced) (Q2.8) Employees provided with the Notice of employee rep rights at least 21 days before commencement of voting Genuine agreement (s.186(2)(a), s.188) Copy of agreement given to employees or employees given access to agreement (s.180(2)) (Q2.4) The employer took all reasonable steps to give a copy of the agreement or incorporated material to employees during the access period or provide employees with access to it by the start of access period Genuine agreement (s.186(2)(a), s.188) Notification of time, place and method of voting (s.180(3)) (Q2.5) The employer took all reasonable steps to notify employees of time, place and method of vote by the start of the access period Terms of the agreement (s.180(5), s.180(6)) (Q2.6 & Q2.7) The employer took reasonable steps to explain the terms of the agreement and the effect of the terms while taking into account the particular circumstances and needs of relevant employees Notification: 8 June 2017 NoERR: 8 June 2017 Made: 18 July 2017 Lodged: 20 July 2017 with prescribed form NoERR: 8 June 2017 Vote: 18 July 2017 Does not expressly state how employees were provided with copies of the proposed EA 4

5 Genuine agreement (s.186(2)(a), s.188) Majority voted to approve (s.182(1)) (Q2.10) Did a majority of employees who cast a valid vote approve the agreement Employees covered by agreement (s.186(3), s.186(3a)) (Q2.2) Does the agreement cover all employees if not, was the group fairly chosen considering geographical, operational or organisational distinctness Nominal expiry date (s.186(5)) (Q2.1) Is the nominal expiry date more than 4 years after approval date 3/3 employees voted to approve the agreement The agreement covers all employees Clause years from the date of approval Unlawful terms, and designated outworker terms (s.172, s.186(4), s.186(4a), s.194, s.195, s.253) (Q2.13 and 2.14) Does the agreement contain only lawful terms? Unlawful terms include: discriminatory terms objectionable terms terms that provide for a method which an employee or employer may elect not to be covered by the agreement terms about unfair dismissal terms about industrial action terms about superannuation Particular types of workers shift workers (s.187(4), ss ) (Q2.16) Does the Agreement define or describe an employee as a shift workers for the purposes of the NES Right of entry term (s.186(4), s.194(f) & s.194(g) (Q2.13) Does the agreement contain any terms that deal with the rights of officials or employees or employees of employee organisations to enter the employer s premises Superannuation term (s.186(4), s.194(h)) (Q2.14) If the Agreement specifies a superannuation fund, does the fund: offer a MySuper product; or an exempt public sector superannuation scheme; or The Agreement does not provide for an additional week of annual leave Part 2.16 states that the agreement does not replicate shift work such that an additional week of annual leave would be necessary Clause 10 Default fund is CBUS or BUSS(Q) Clause 10.2 states that the employer will only pay superannuation to casual 5

6 a fund of which a relevant employee is a defined benefit member of employees who earn over $450 gross per week and is over 18 years old super must be paid where an employee earns more than $450 per month and is over 18 SECTION 3 MANDATORY TERMS Dispute settlement term (s.186(6), reg 6.01, Sch 6.1 of FW Regs) (Q2.15) The term must: 1) Allow for settlement of disputes in relation to NES; and 2) Allow for representation of employees Flexibility term (ss , reg 2.08, Sch 2.2 FW Regs) (Q2.15) Does the term contain a flexibility term that complies with the requirements in s.202 and s.203 Clause 20 Clause 21 Consultation term (s.205, reg. 2.09, Sch 2.3 FW Regs) (Q2.15) The term must: 1) Require employer to consult with employees regarding major workplace change that is likely to have a significant effect on employees AND change to regular roster of ordinary hours of work; and 2) Allows for representation of employees for the purposes of that consultation Further in relation to change to regular roster or ordinary hours of work the term must: Clause 22 1) Require the employer to provide information to employees about the change; and 2) Require the employer to invite employees to give their views about the impact of the change; and 3) Require the employer to consider any views given by employees about the impact of the change 6

7 SECTION 4 NATIONAL EMPLOYMENT STANDARDS (s.55, s56, s.186(2)(c), s.196, s.253) Maximum weekly hours of work (s.62 s.64) 38 hours per week Request for flexible working arrangements (s.65 s.66) Section 65(1A) FW Act Parental leave (s.67 s.88) 12 months unpaid + right to request further 12 months Annual leave (s.86 s.94) 4 weeks paid leave (5 weeks for shift workers) Personal/carer s leave (s.95 s.107) 10 days paid leave + 2 days paid compassionate leave + 2 days unpaid leave when paid leave has been used Community service leave (s.108 s.112) 10 days paid jury leave + unpaid emergency service leave Long service leave (s.113 s.113a) as per pre-reform award or NAPSA, or is silent, in accordance with state long service leave legislation Public holiday (s.114 s.116) paid day off for each public holiday (employer can request employee not work if such request is reasonable) Notice of termination and redundancy (s.117 s.123) Clause hours per week Silent Clause 15.4 In accordance with NES Clause weeks annual leave Clause 15.2 personal/carer s leave Clause 15.3 compassionate leave Clause 15.6 Clause 15.5 Long service leave arises from Qld industrial relations Act Entitlements to long service leave are administered and paid through Q Leave scheme in accordance with Building and Construction industry (portable long service leave) Act Unclear whether agreement operates in Qld only or throughout Australia. May simply be that employees work on projects throughout Australia for short term periods but are not engaged permanently in states/territories outside Qld May need to seek clarification Clause 14.3 Clause 16 Termination 7

8 Up to 4 weeks notice (5 weeks if over 45 and in job for over 2 years) depending on years of service AND between 4-16 weeks redundancy pay depending on years of service Fair Work Information Statement (s.124 s.125) Clause 16.2 redundancy Clause of the agreement states that redundancy does not occur where an alternative position is accepted by an employee with the company Redundancy in accordance with industry specific redundancy scheme Employer will contribute redundancy payments into the Building Employees Redundancy Trust Silent 8

9 SECTION 5 BETTER OFF OVERALL TEST Relevant award(s) Building and Construction General On-Site Award 2010 Award incorporated into agreement or read in conjunction with agreement? Do the agreement classifications align with the award? Not incorporated Yes Has the employer provided classification matching? No Pay rate comparison Modern Award Classification Agreement Classification Modern Award Rate Agreement Rate Percentage Difference CW 1 CW 1 $20.88 $ % CW 3 CW 3 $23.10 $ % CW 5 CW 5 $24.44 $ % CW 7 CW 7 $25.71 $ % Note: Clause states wage rates are effective from the first full pay period after commencement of the Agreement. Entitlements table Agreement Building & Construction General On-Site Award 2010 Hours Part-time employees Clause hours per week plus reasonable additional hours; 8 ordinary hours per day max 58 hours per week, max 10 hours per day Mon- Fri and 8 hours Sat 6am-6pm Mon-Fri Standard week consists of 5 days, Mon-Fri, min 8 hours per day (0.4 hours accrue towards annual leave) Clause Works an average of fewer than 38 hours per week Reasonably predictable hours of work Agreed work pattern may be varied with consent of employee variation to weekly hours recorded in writing Day workers 7am*-6pm, Mon-Fri, 38 hours per week *6am start permissible so long as agreement reached General building and construction and metal and engineering construction sectors (shift workers) Max 8 hours per day Average of 38 hours per week Civil construction sector (shift workers) Max 8 hours per shift Average of 38 hours per week over cycle of two, three or four weeks Works an average of fewer than 38 ordinary hours per week and has reasonably predictable hours of work. 9

10 Casual employees Shift penalties All time worked outside spread of ordinary hours will be overtime Part-time to full time conversion and vice-versa Clause % - min 4 hours (with 0.8 of an hour accruing towards an RDO) Entitled to relevant fares and travel allowances Sat and Sun min 4 hours (no accrual towards RDO) Termination 1 hours notice Right to elect to convert to permanent employment after 6 months service with the Company company may refuse election clause 12 Afternoon shift means any shift starting at or after 10am and before 8pm Mon-Sat 150%; Sun: 200%; PH: % - min 4 hour pay 175% (where penalty/overtime rate is 150%) 225% (where penalty/overtime rate is 200%) 275% (Pub hol) General building and construction and metal and engineering construction sectors Morning shift means a shift commencing at or after 4.30am and before 6am: 125% Early afternoon shift means a shift commencing on or after 11am and before 1pm: 125% Afternoon shift means a shift commencing at or after 1pm and before 3pm: 150% Night shift means a shift commencing at or after 3pm and before 11pm: 150% Broken shifts: 150% (first two hours) and 200% (thereafter) Civil construction sector Afternoon shift means any shift starting at or after 10am and before 8pm: 115% Night shift means any shift starting at or after 8.00 pm and before 6.00 am: 115% Permanent Night shift means any shift starting at or after 8.00 pm and before 6.00 am (works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each cycle): 130% Shifts between midnight Friday and midnight Saturday: 150% Less than or equal to 5 successive afternoon or night shifts: 150% 10

11 Weekend penalties Public holiday penalties Overtime Annual leave loading Allowances Clause 14.2 Sat: Saturday penalty is absorbed into rates of pay Sun: 200% Clause % - min 4 hours Work in excess of 58 hours Clause where an employee works in excess of 58 hours per week on more than 2 instances in a monthly cycle, the employee will be paid 200% on all hours worked in excess of 58 hours Clause 14 Overtime is absorbed into rates of pay Casual employees: Where penalty is 150% - casuals receive 175% Where penalty is 200% - 225% Where penalty is public holiday rate (250%) 275% Clause % Allowances found under schedule C Fares and travel allowance All employees shall be entitled to receive fares and travel allowance for each day that they attend for work $45 per day Day workers Sat: A penalty for ordinary hours worked on Saturday by a day worker does not appear to be payable. Clause 37.1 only appears to provide for an overtime rate for overtime work on Saturday. Sun: 200% - min 4 hours pay General building and construction and metal and engineering construction sectors (shift workers) Sat (before 12pm): 150% (first two hours) and 200% (thereafter) - min 3 hours pay Sat (after 12pm): 200% - min 3 hours pay (Sat) Sat (after Good Friday) 250% min 4 hours pay Sun: 200% - min 4 hours pay Civil construction sector (shift workers) Sat: 150% Sun: 200% - min 4 hours pay Ordinary hours or overtime hours: 250% - min 4 hours pay Day workers All time worked beyond an employee s ordinary time of work - Monday to Fri: 150% (first 2 hours) and 200% (thereafter) Sat (before 12): 150% (first 2 hours) and 200% (thereafter) - min 3 hours pay Sat (after 12pm)- 200% - min 3 hours pay Sat (after Good Friday) 250% min 4 hours pay Sun: 200% - min 4 hours pay General building and construction and metal and engineering construction sectors (shift workers) All work in excess of shift hours, Monday to Friday, other than holidays - 200% (excluding shift rates). Civil construction sector (shift workers) In excess of or outside the ordinary hours, or on a shift other than a rostered shift: 200%. 17.5% or shift loadings (if greater than 17.5%) See allowance sheet for this modern award. 11

12 BETTER OFF OVERALL TEST SUMMARY (S.186(2)(D), S.193) The Agreement covers full-time, part-time and casual employees engaged to perform labour hire services, tower crane operations, rigging works. The Agreement expressly excludes the Award from incorporation Rates of pay: The Agreement offers rates of pay 78.35% and 91.99% above the Award rate of pay. The agreement states that overtime and Saturday penalty rates are absorbed into wages. Rates of pay appear high enough to compensate for this reduction. Clause split shift Employees can be required to work both non-shift work and shiftwork within a 24 hour period by agreement or when provided with 24 hours notice Clause allows for spread of hours and or shift system to be varied to suit individual projects Clause 5 Apprentices and trainees Clause 5 states that the Company will not be engaging apprentices and trainees, however if apprentices and trainees are engaged, then the terms of the Award will apply Offsetting clause Clause of the Agreement allows the employer to offset any liability, claim or entitlement that an employee may claim against the company where the employee receives any payments or other entitlements Clause deductions The company may deduct from the final payment owed to an employee (except for outstanding leave entitlements) any balance of outstanding monies owing to the Company 12