ABCC Guidelines on Compliant Enterprise Agreement
The ABCC has released new guidance material dealing with various (typical) enterprise agreement clauses used in the construction industry, and identifying whether those clauses will comply with the 2016 Construction Code (Code).
ABCC Commissioner Nigel Hadgkiss says that the guidance material will give interested parties “clear guidance” on Code compliance. The ABCC guidance material
is clear that an enterprise agreement will not comply if it includes a term that –
- imposes the CFMEU’s 36-hour working week and the fixed annual calendar of rostered days off
- restricts the use of labour hire and contractors or requires labour hire and contractor workers to be on the same pay and conditions as employees
- expands a union official’s right of access to the workplace
- specifies a ratio of one apprentice to every eight tradespeople
- provides a right for casuals to convert to permanent work; and
- places controls and checks on foreign visa workers and temporary foreign workers.
- restricts taking alternate RDOs – which limits the ability of employers to determine with employees when work can be performed to best meet operational
- limits flexibility around Christmas-New Year and Easter shutdowns
- restricts ordinary working hours to 36 hours per week (7.2 hours per day) to be worked between 6am and 6pm Monday to Friday
- caps the maximum number of hours worked on site by any employee at 58 hours a week, comprising no more than 10 hours per day Monday to Friday and 8
hours on a Saturday
- requires a written agreement for work outside of these times such as Sundays, early starts and night work]
will be non-compliant with the Code. Terms such as these are usually a key plank in the CFMEU bargaining position, but as the ABCC states, each of these
terms limit the “ability of the employer to determine with its employees when work can be performed to meet operational requirements”. As a result,
these terms will result in the enterprise agreement being deemed non-compliant.
Although construction industry employers get some clarity on what will not comply with the Code, the guidance material does, at times, “hedge its bets”
about some clauses. For example, the guidance material states that “while on the face of it a clause appears to be “not inconsistent “with the Code,
the manner in which the term is implemented in the workplace may result in conduct that is a breach “of the Code”.
For construction industry participants, we recommend that you take time to consider your enterprise agreement against the Code and seek advice if you are
unsure whether a clause will result in the enterprise agreement being deemed non-complaint with the Code.