MA000020  PR715725 [Note: a correction and a further correction have been issued to this document]
FAIR WORK COMMISSION

DETERMINATION

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

4 yearly review of modern awards—Construction awards
(AM2016/23)

BUILDING AND CONSTRUCTION GENERAL ON-SITE AWARD 2010
[MA000020]

Building, metal and civil construction industries

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER HARPER-GREENWELL

SYDNEY, 20 MARCH 2020

4 yearly review of modern awards – Group 4 Awards – Construction awards – Building and Construction General On-site Award 2010 substantive matters.

A. Further to the Full Bench decisions issued by the Fair Work Commission on 26 September 2018 [[2018] FWCFB 6019], 31 October 2019 [[2019] FWCFB 6860] and 18 December 2019 [[2019] FWCFB 8564], the above award is varied as follows:

1. By deleting clause 4.10(b)(v).

2. By renumbering clauses 4.10(b)(vi) to (xi) as 4.10(b)(v) to (x).

3. By deleting the words “clause 25.12(b)” appearing in clause 15.2(c) and inserting “clause 25.5(b)”.

4. By deleting the words “clause 25.12(a)” appearing in clause 15.8(b) and inserting “clause 25.5(a)”.

5. By deleting the word “adult” appearing in clause 19.1(a).

6. By deleting clause 19.3(a)(ii) and inserting the following:

  clause 19.1—Minimum wages;

  clause 21.1—Industry allowances;

  clause 20.1—Tools and protective or other clothing or equipment;

  clause 22.2—Underground allowance,

7. By deleting clause 19.3(b) and inserting the following:

  clause 19.1—Minimum wages;

  clause 21.1—Industry allowances;

  clauses 20.1—Tools and protective or other clothing or equipment;

  clause 22.2—Underground allowance;

  clause 22.7—Air-conditioning industry and refrigeration industry allowances;

  clause 22.8—Electrician’s licence allowance; and

  clause 22.9—In charge of plant allowance;

8. By deleting clause 19.7(e) and inserting the following:

(e) In addition to the above rates apprentices will be paid amounts prescribed in:

  clause 20.1—Tools and protective or other clothing or equipment;

  clause 21.1—Industry allowances;

  clause 22.2—Underground allowance

9. By deleting clause 20.1 and inserting the following:

20.1 Tools and protective or other clothing or equipment

(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 by the employer 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:

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

(d) Where employees 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.

10. By deleting the words “Tool and employee protection allowance” appearing in clause 20.4(b) and inserting the words “Tools and protective or other clothing or equipment”.

11. By deleting clause 21—Site and general wage related allowances and inserting the following:

21. Industry allowances

21.1 The following industry allowances must be paid, in addition to the employee’s weekly rate prescribed in clause 19—Minimum wages, for work in each of these sectors:

(a) General building and construction industry, civil construction industry and metal and engineering construction industry—an allowance of 6% of the weekly standard rate;

(b) Residential building and construction industry—an allowance of 4.8% of the weekly standard rate.

21.2 For the purposes of determining the applicable industry allowance:

(a) the definitions of general building and construction, civil construction and metal and engineering construction in clause 4.10 will apply.

(b) residential building and construction industry means the activities identified in clause 4.10(a) undertaken in relation to a single occupancy or dual occupancy residential building which is not a multistorey building as defined in clause 22.3(c).

21.3 The industry allowances payable under clause 21 are to be paid for all purposes of the award.

12. By deleting clause 22—Special rates and inserting the following:

22. Other allowances

22.1 An employer must pay an employee the allowances they are entitled to under clause 22 in addition to the applicable industry allowance under clause 21.

22.2 Underground allowance

(a) An employee, other than an employee in an Operator classification, who is required to work underground must be paid an additional allowance of 1.8% of the weekly standard rate per week for all-purposes of the award.

(b) Provided that an employee required to work underground for no more than four days or shifts in any ordinary week must be paid an additional 0.4% of the weekly standard rate per day or shift.

(c) Where a shaft is to be sunk to a depth greater than six metres, the payment of the underground allowance will commence from the surface.

(d) These allowances will not be payable to employees engaged upon pot and drive work at a depth of 3.5 metres or less.

22.3 Multistorey allowance

(a) A multistorey allowance must be paid to all employees on-site whilst engaged in construction or renovation of a multistorey building to compensate for the disabilities experienced in, and which are peculiar to construction or renovation of a multistorey building.

(b) Provided that for the purposes of this clause renovation work is work performed on existing multistorey buildings and such work involves structural alterations which extend to more than two storey levels in a building, and at least part of the work to be performed is above the fourth floor storey level in accordance with the scale of payments appropriate for the highest floor level affected by such work.

(c) In this clause:

(d) In respect of any building or structure (including a tower) which does not have regular storey levels and which exceed 15 metres in height, an allowance of 3.2% of the hourly standard rate per hour will be paid for all work above 15 metres, with an additional 3.2% of the hourly standard rate per hour for work above each additional 15 metres. For example, an employee working at a height of 31 metres is paid an allowance of 6.4% of the hourly standard rate per hour.

22.4 Laser operation allowance

22.5 Carpenter-diver allowance

Employees undertaking work normally performed by a carpenter-diver must be paid an additional 4.5% of the hourly standard rate per hour extra which will be regarded as part of the ordinary time hourly rate for all-purposes of the award.

22.6 First aid allowance

(a) An employee who:

(b) An employee will be paid only for the level of qualification required by their employer to be held, and there will be no double counting for employees who hold more than one qualification.

22.7 Air-conditioning industry and refrigeration industry allowances

In addition to the appropriate minimum wage prescribed in clause 19.1, an air-conditioning tradesperson and a refrigeration mechanic must be paid a weekly allowance of 7.9% of the weekly standard rate as compensation for the various disabilities and peculiarities associated with on-site air-conditioning work or on-site refrigeration work.

22.8 Electrician’s licence allowance

(a) An employee engaged and working as an electrical tradesperson and who holds an appropriate electrician’s licence must be paid a weekly allowance of 3.2% of the weekly standard rate for all-purposes of this award.

(b) An appropriate electrician’s licence for the purpose of this subclause will be:

  New South Wales—a NSW Electrician’s Licence;

  Victoria—an A Grade Electrician’s Licence;

  South Australia—an A Grade Electrical Worker’s Licence;

  Tasmania—an A Grade Electrician’s Licence; and

  Queensland—an Electrical Mechanic’s or Electrical Fitter/Mechanic’s Licence.

22.9 In charge of plant

(a) In charge of plant means:

(b) An employee who is in charge of plant must be paid an additional 4.7% of the weekly standard rate per week.

22.10 Special rates applicable only to the general building and construction sector

13. By deleting clause 24.1 and inserting the following:

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.

14. By deleting clause 24.2 and inserting the following:

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.

(d) No subsequent change of address will entitle an employee to the provisions of this clause unless the employer agrees.

15. By deleting clause 24.3 and inserting the following:

24.3 Entitlement

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

(b) Any accommodation provided under clause 24.3(a) must be in accordance with contemporary living standards taking into account the particular circumstances of the location in which the work is performed and must include reasonable washing, laundry, recreational, kitchen, external lighting, communications and fire protection facilities.

16. By deleting clause 24.4 and inserting the following:

24.4 Reimbursement of meal expenses for living in camp

Where it is not possible for the employer to provide meals free of charge directly to employees required to live in camp, the employer shall:

(a) reimburse employees for food reasonably purchased by them for their own use or for the reasonable cost of meals consumed in the nearest recognised centre; and

(b) pay an allowance of $203.61 for every complete week the employee is available for work, or in the case of broken weeks $29.06 per day including any Saturday or Sunday if the employee is in camp and available for work on the working days immediately preceding and succeeding each Saturday and Sunday. If an employee is absent without the employer’s approval on any day, the allowance will not be payable for that day and if such unauthorised absence occurs on the working day immediately preceding or succeeding a Saturday or Sunday, the allowance will not be payable for the Saturday and Sunday.

17. By deleting clause 24.5 and inserting the following:

24.5 Camp conditions

(a) The employer must ensure that a camp is maintained in a clean and hygienic condition.

(b) Where an employer has established a camp site and provides facilities for employees living in their own caravan, the employer must provide reasonable space for the caravans.”

18. By deleting clause 24.6.

19. By renumbering clauses 24.7 to 24.8 as 24.6 to 24.7.

20. By deleting clause 24.6(a)(i) and inserting the following:

21. By deleting the words “camping allowance pursuant to clause 24.5” in clause 24.6(e)(ii) and inserting the words “reimbursement of meal expenses for living in camp pursuant to clause 24.4”.

22. By deleting clause 24.6(f) and inserting the following:

Where an employee is engaged on a job which qualifies the employee for the provisions of this clause and the duration of work on the job is scheduled for more than 8 weeks the employee will be entitled to rest and recreation in accordance with the following:

23. By deleting clause 25 and inserting the following:

25. Travelling time entitlements

25.1 Fares and travel pattern allowance

(a) In recognition of the travel patterns and costs peculiar to the industry, which include mobility in employment and the nature of employment on construction work, an employee is to be paid an allowance of $17.43 per day for each day worked when the employee starts and finishes work on a construction site, or is required to perform prefabricated work in an open yard and is then required to erect or fix on-site.

(b) An employee will not be entitled to the allowance in paragraph (a) on any day where the employer:

25.2 Travelling between construction sites

An employee transferred from one site to another during working hours will be paid:

(a) for the time spent in travelling; and

(b) if the employer does not provide transport:

25.3 Travelling outside ordinary hours

Time spent travelling from an employee’s home to their job and return outside ordinary hours will be unpaid unless the employer directs the employee to pick up and return other employees to their homes.

25.4 Distant work payment

(a) If an employee is required to travel to a construction site that is:

(b) The distant work payment is:

(c) Despite paragraph (a), the distant work payment is not payable when, at the commencement of employment, the employee’s usual place of residence was more than 50km by road from the construction site on which the employee was initially engaged.

(d) In this subclause, a metropolitan radial area is the area within a radius of 50 kilometres of:

25.5 Apprentices

(a) An apprentice will be entitled to a proportion of the allowances prescribed in clauses 25.1 and 25.4 in accordance with the following scale:

(b) An apprentice will not be paid the allowance in clause 25.5(a) for the days they attend an RTO for training and assessment in accordance with the contract of training.

(c) When a school-based apprentice attends off-the-job training or assessment not at the school at which they are enrolled they will receive 25% of the allowance prescribed in clause 25.1.

25.6 Adjustment of allowances

The monetary allowances prescribed in clause 24, clause 25.1, clause 25.2(b)(ii) and clause 25.4(b)(ii) will be adjusted in accordance with clause 20.4.

24. By deleting clause 33 and inserting the following:

33. Ordinary hours of work

33.1 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 procedures:

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 a RDO and 7.6 hours will be paid. An employee will therefore accrue 7.6 hours towards a RDO each 19 days of ordinary hours worked.

An employee and the employer may agree to allow the employee to bank an accrued RDO that would otherwise be taken under one of the ways fixed under subclause 33.1(c)(i) and in that event the following will apply:

33.2 Agreement on working other than the rostered day off cycle

Where an employer and the majority of employees employed at a particular enterprise agree that due to the nature of an employer’s operations it is not practicable for an employee to be provided with an RDO in each four week cycle, they may agree to an alternate method of arranging working hours, provided that the ordinary hours worked in any one week from Monday to Friday are within the spread of hours set out in clause 33.1 and that no more than eight ordinary hours are worked in any one day. Any such agreement shall be recorded in writing.

33.3 Hours of work—part-time employees

(a) The daily ordinary hours of work of a part-time employee shall not exceed 8 hours.

(b) 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 an RDO.

(c) An employer and employee may agree that the part-time employee accrues time towards an RDO 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 33.1(a).

33.4 Hours of work—casual employees

The daily ordinary hours of work of a casual employee shall not exceed 8 hours.

33.5 Other conditions for working ordinary hours

25. By inserting after the definition of “night shift” in clause 34.1(a) the following definition:

26. By deleting clause 34.1(b)(i) and inserting the following:

27. By deleting the words “clauses 22.2(b) and 22.2(c)” in clause 35.3(e) and inserting “clauses 35.6 and 35.7”.

28. By inserting clause 35.6 as follows:

35.6 Hot work

Where an employee works for more than two hours in a place where the temperature has been raised by artificial means to 46 degrees Celsius and above, the employee is entitled to 20 minutes rest after every two hours work without loss of pay.

29. By inserting clause 35.7 as follows:

35.7 Cold work

Where an employee works for more than two hours in a place where the temperature is lowered by artificial means to less than 0 degrees Celsius, the employee is entitled to 20 minutes rest after every two hours work without loss of pay.

30. By inserting the following note as a new paragraph after the end of clause 36.7:

NOTE: overtime and shiftwork for apprentices are dealt with in clause 15.3.

31. By inserting clause 36.17 as follows:

36.17 Time off instead of payment for overtime

(a) Clause 36.17 does not apply to daily hire employees or casual employees.

(b) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.

(c) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 36.17.

(d) An agreement must state each of the following:

(e) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.

(f) Time off must be taken:

(g) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 36.17 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.

(h) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (f), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

(i) The employer must keep a copy of any agreement under clause 36.17 as an employee record.

(j) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.

(k) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 36.17 will apply, including the requirement for separate written agreements under paragraph (c) for overtime that has been worked.

(l) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 36.17 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

32. By deleting clause 38.2(b) and inserting the following:

(b) In addition to the amount prescribed in clause 38.2(a), an employee must be paid during a period of annual leave a loading of 17.5% calculated on that amount. This loading will also be payable on accrued leave paid out on termination of employment.

33. By deleting the cross reference to clause 21.1 in clause 42.3.

34. By deleting clause 43 and inserting the following:

43. Foreperson and supervisors

43.1 Application

This clause applies to forepersons and supervisors in the metal and engineering construction sector covered by this award, but does not apply to any employer employing fewer than 30 employees.

43.2 Wages

43.6 Definitions

(a) Foreperson/supervisor shall mean an employee (other than a leading hand) appointed as such or required by his/her employer to be mainly engaged in the direct supervision of employees including those employed as leading hands, covered by this award.

(b) General foreperson/supervisor shall mean an employee appointed as such or required by his/her employer to be mainly engaged in the direct supervision and coordination of the work of at least two forepersons/supervisors as defined in clause 43.6(a) but shall not include site managers, nor departmental heads and the like.

35. By inserting Schedule H as follows:

Schedule H—Agreement for time off instead of payment for overtime

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree that the employee may take time off instead of being paid for the following amount of overtime that has been worked by the employee:

Date and time overtime started: ___/___/20___ ____ am/pm

Date and time overtime ended: ___/___/20___ ____ am/pm

Amount of overtime worked: _______ hours and ______ minutes

The employer and employee further agree that, if requested by the employee at any time, the employer must pay the employee for overtime covered by this agreement but not taken as time off. Payment must be made at the overtime rate applying to the overtime when worked and must be made in the next pay period following the request.

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer
representative: ________________________________________

Signature of employer
representative: ________________________________________

Date signed: ___/___/20___

36. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from 1 July 2020. In accordance with s.166(5) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 1 July 2020.

Seal of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT

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