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).

 

Employers in the construction industry that are covered by an enterprise agreement, have until 1 September 2017 to ensure the enterprise agreement complies with the Code if they intend to be eligible to win or work on federally-funded contracts.

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 –

  1. imposes the CFMEU’s 36-hour working week and the fixed annual calendar of rostered days off
  2. 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
  3. expands a union official’s right of access to the workplace
  4. specifies a ratio of one apprentice to every eight tradespeople
  5. provides a right for casuals to convert to permanent work; and
  6. places controls and checks on foreign visa workers and temporary foreign workers.
 
Perhaps more critically, a term that deals with working hours and the RDO calendar and that:
  1. restricts taking alternate RDOs – which limits the ability of employers to determine with employees when work can be performed to best meet operational requirements
  2. limits flexibility around Christmas-New Year and Easter shutdowns
  3. restricts ordinary working hours to 36 hours per week (7.2 hours per day) to be worked between 6am and 6pm Monday to Friday
  4. 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
  5. 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.

 
We recommend that employers in the construction industry review and check their enterprise agreement against the guidance material before any enterprise agreement is submitted to the ABCC for detailed vetting.

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”.

A copy of the guidance material can be downloaded from the ABCC website – https://www.abcc.gov.au/sites/g/files/net2406/f/abcc_agreement_clauses_spreadsheet.pdf

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.

Remember, you have a limited time within which to make sure your enterprise agreement is compliant and the process can be time-consuming. If you want to be eligible for work on federally-funded jobs, you should seek advice as soon as possible. If, you have any questions about any particular clauses in your enterprise agreement or the Code generally, contact one of our lawyers.