Re-negotiation of agreement / [Parties bound are] the Company in respect to all of its employees engaged in building and construction work in NSW. However it is agreed the company may approach the union for a regional specific agreement. / This clause can be read as enabling the company to approach the union for a regional specific agreement. It thereby deals with the renegotiation of an agreement. / reg 8.5(1)(e)
Parties to this Agreement will commence negotiations for a replacement agreement no later than six months prior to the expiration of the Agreement. / Deals with renegotiation of agreement / Reg 8.5(1)(e)
The parties agree to review this Agreement commencing five months prior to its expiry with the aim of developing a new Agreement.
In addition, the parties to this Agreement may agree to add, vary or delete any terms of this Agreement or terminate this Agreement, subject to such change or termination being approved by the OEA. / It is my view that [the clause] is prohibited content as it deals with the issue of renegotiation of the workplace agreement in contravention of the regulation.” / Reg 8.5(1)(e)
The parties may commence discussion on future regulation of employment no later than 3 months before the nominal expiry date of this Agreement. / Deals with re-negotiation of Agreement. / reg 8.5(1)(e)
No later than 3 months prior to the nominal expiration of the this agreement the parties may commence discussions concerning a future agreement / The direct reference to discussions and meeting regarding a “future agreement’ falls within the parameters…relating to the renegotiation of a future agreement. / Reg 8.5(1)(e)
The parties may commence negotiations at least 3 months before the nominal expiry date. / It provides that the parties may commence negotiations at least 3 months before the nominal expiry dates of the agreement (sic) / Reg 8.5(1)(e)
In accordance with commitments given throughout this agreement, local work area agreements may be negotiated…local work area agreements will be negotiated to remove inappropriate constraints on workplace flexibility so as to ensure the competitive nature of the workplace…Local work area agreement will be negotiated at the workplace by the relevant parties… / Whilst confirming advice that such local work area agreements are not intended to sit outside the agreement and realte to specific terms and conditions, the wording of the clause is ambiguous. Not able to conform is offensive or not
The employer is committed during the life of this agreement and its renegotiation to negotiate collectively in respect of all of its employees and their nominated representatives for the purposes of making a new workplace agreement pursuant to s170LJ (sic) of the Workplace Relations Act and the Workchoices legislation / The clause deals with renegotiation if the agreement during the life of this agreement / Reg 8.5(8)
The employer, JCC and staff undertake to commence negotiating a new agreement nine months prior to the expiration of this agreement. / The clause deals with renegotiating the agreement. / Reg 8.5(1)(e)
Calling up other industrial instrument / This agreement shall be read and interpreted wholly in conjunction with the Award. The terms of the Award except those incapable of forming part of this agreement shall be preserved as if set out in this agreement. / The Agreement incorporates by reference into the agreement terms of the Award. The Award may contain prohibited content but has not been offered for examination. Unable to provide notice therefore that the agreement does not contain prohibited content.
This agreement is supplementary to and shall be interpreted wholly in conjunction with the…Award. The terms of the …Award are expressly preserved / The terms of the award form part of the agreement. The OEA has not considered the terms of the award in detail and [it should be considered] if the award contains prohibited content.
Paid leave for union meeting / Employees will be eligible to attend a meeting convened by the Union to discuss their needs and expectations in respect of future regulation of employment. / Paid leave to attend a union meeting. / reg 8.5(1)(d)
If the company is having difficulty tendering for work in the industry it is agreed the union may convene a meeting of employees during ordinary working hours to review [legislative] changes / Has the effect of providing paid leave to attend union meetings. / reg 8.5(1)(d)
The delegate shall be afforded…10 days paid time off work to attend relevant training courses/forums subject to appropriate notice / A forum is defined as an assembly for the discussion of questions of public interest. A forum could constitute a meeting (however described) conducted by or made up of union members. / reg 8.5(1)(d)
Company recognises that the union hold meetings and issues arising from these may be raised with the company…These meetings will be conducted off site…at a time that does not conflict with the normal operations / Does not specify that the meetings are unpaid…conclude that it deals with paid leave to attend meetings conducted by union / Reg 8(1)(d)
Restriction on engagement of independent contractors / Sham sub-contract arrangements or other unlawful systems of engagement…and cash in hand payments are strictly prohibited / The clause deals with restrictions on the engagement of independent contractors. / Reg 8.5(1)(h)
Where supplementary labour is required it will be accessed from a labour hire company following consultation with the CC or employees at the relevant site / The engagement of labour hire is conditional upon consultations with the CC or employees. This imposes a restriction on the engagement of labour hire workers / Reg 8.5(1)(i)
(i) the parties recognise the benefit of a stable workforce and commit to implement employment practices that support this.
(ii) The parties…acknowledge that the employment of contractors and sub-contractors can affect employment security…and has the potential to cause industrial dispute or a situation that could lead to an industrial dispute and commit themselves to resolve such matters through the dispute settling procedure. / Has the effect of stating that [the engagement of contractors] affect direct/stable employment and the parties are committed to stable employment. This appears to mean that the parties are committed to restricting such (contractors) engagement. / Reg 8.5(1)(h)
Union picnic day / Employees are required to provide proof of attendance at industry picnic day, ie ticket purchase, to be paid for the day. A financial union ticket recorded as “picnic paid” is deemed as evidence of ticket purchase. / A term of workplace agreement is prohibited to t the extent it contains objectionable provisions. Conduct is for a prohibited reason if it is carried out because an employee proposes to become or ceases to be a member of a union (s793(1)).
The clause requires a ticket to be purchased and that a union ticket marked “picnic paid” is evidence of a ticket purchased. It would therefore appear that a person must be a union member in order to claim payment for the picnic day. / reg 8.5(7)
An employee…will be entitled to the following holidays without deduction from ordinary pay….the first Monday in December each year shall be union picnic day. / A clause providing for employee to take paid leave to attend a union picnic day would constitute prohibited conduct (sic) / Reg 8.5(1)(d)
Employees are required to provide proof of attendance at industry picnic day, ie ticket purchase, before payment is made for the day. A financial union ticket recorded as “picnic paid” is deemed as evidence of ticket purchase. / A term of a workplace agreement is prohibited to the extent that it…requires a person…to become a member of a union. This clause appears to encourage a person to become a member of an industrial association as the additional holiday is conditional upon the purchase of a financial union ticket. / Reg 8.5(2)(a)(i)
The first Monday in December of each year will be the union picnic day.
(specifically incorporated from Award in appendix to Agreement) / The award provides that employees are to be given picnic day without deduction from pay. The day is known as union picnic day and it is highly likely the union will meet and confer with employees during the picnic day. As such it would amount to attending union meetings. / Reg 8.5(1)(d)
Encouraging union membership / The parties to the agreement acknowledge the right of employees to be active union members. / This amounts to an indication of support for employees being members of a union. / reg 8.5(7)
Union representation in disputes settling procedures / It is the right of employees to elect a delegate. Such elected representatives shall be recognised in discussions relating to the terms of the agreement and in the interest of good industrial relations. / The phrase “in the interests of good industrial relations” may be read to include dispute resolution. It may therefore deal with a right of a union to participate in dispute resolution. No ruling can be given but it may offend reg 8.5(1)(f) but no ruling can be given
The delegate shall be entitled to represent employees in relation to matters pertaining to the employment relationship. / Has the effect of providing the union with an automatic right in a dispute resolution process. / Reg 8.5(1)(f)
The company shall recognise union representatives. Company shall allow union representatives the necessary time during working hours to interview the Company or its representative(s) on matters affecting the employees represented by the union representatives… / Purports to give the union an automatic right in Dispute resolution process / Reg 8.5(1)(f)
Members of the Divisional Consultative Committee will be nominated by the union parties to the agreement, and will be members of the union. The DCC will monitor and review the implementation of this Agreement and other local issues. / To the extent that it purports to enable automatic right to the union to participate in dispute resolution process it is prohibited / Reg 8.5(1)(f)
The grievance must be dealt with as close to its source as possible with graduated steps…this will include the involvement of the site manager/company union delegate and/or the company consultative committee. / Discussions as part of the dispute resolution process will involve the company union delegate and there is no choice. / Reg 8.5(1)(f)
Reasonable time limits must be allowed for discussion at each level of authority. This may include involvement of the company consultative committee and/or the relevant union delegate/official / Appears to confer a right for organisations of employer ort employees to engage in discussions with respect to a dispute however [it] fails to expressly provide for the requirement that the relevant union or official is a representative of the employer or employee’s choice. / Reg 8.5(1)(f)
(a) The delegate shall have the right to approach or be approached by employees…to discuss matters pertaining to the employment relationship of employees without impediment by the Company.
(b) the delegate shall be entitled to represent employees in relation to matters pertaining to the employment relationship at the workplace… / Clause (a) and (b) provide the union with an automatic right in a dispute resolution process... separate and in addition to the dispute settling procedures… / Reg 8.5(1)(f)
Work related grievance will be dealt with by:
- Employee and rep and supervisor;
- Employee may seek involvement of employee representative;
- Status quo will prevail;
- If not resolved may be discussed between union rep and senior company rep;
- …
(nb the clause appears to be OK until it gets to the 4th dot point) / Reg 8.5(1)(f)
Disputes may arise as to the proper classification of a position or job…if the site consultative body is unable to resolve the dispute the matter may be referred by the employer or employee and their union to the…disputes board.
(specifically incorporated from Award in appendix to Agreement) / The clause…seeks to involve the union without being invited by the parties. / Reg 8.5(1)(f)
Continuous service - For the purposes of this award service shall be deemed to be continuous notwithstanding an employee’s absence from work for any of the following reasons:
- any reason satisfactory to the employer or in the event of a dispute to the appropriate Board of Reference. Provided that the reason shall not be deemed satisfactory unless the employee has informed the employer within 24 hours of the time when the employee was due to attend for work, or as soon as practicable thereafter, of the reason for the absence and probable duration.
- unable to conclude whether this clause contains prohibited content.
If settlement cannot be reached through the above procedures then either party may refer the matter to the locally organised Board of Reference/Disputes Board (where these have been established by agreement between the parties) and/or the Australian Industrial Relations Commission.
(Award provision) / It is possible that a board of reference/disputes board may include a representative of the union. If this were the case, the clause could give the union the right to participate in a part of a dispute settling procedure.
- unable to conclude whether this clause contains prohibited content.
Training leave / The delegate shall be afforded…10 days paid time off work to attend relevant training courses/forums subject to appropriate notice / To the extent it deals with leave to attend union training courses it is prohibited. / reg 8.5(1)(c)
Employee with workplace responsibilities, such as members of the JCC, may be granted up to 5 days leave to attend workplace relations training without loss of pay provided that the granting of such leave is subject to workplace convenience…the scope, content and level of the course…contribute to a better understanding of workplace relations / The clause does not mention anything in relation to whether the union will provide the training. The Agreement provides the JCC must comprise a representative from each of the Unions [four unions are party]. It may be inferred that as a result of the Union members attending workplace relations training, the training was also provided by a trade union. I am unable to conclude if the training will be provided by the union and therefore cannot conclude if the clause contains prohibited content under reg 8.5(1)(c)
Subject to approval union reps may be provided with unpaid leave to attend to bona fide union business / Bona fide union business may include union training. / Reg 8.5(1)(a)
The parties agree that for workplace reps to effectively undertake their duties they should have the appropriate level of training. The company recognises that a workplace rep who is well trained in matters including their rights and obligations under…industrial instruments…and relevant legislation will assist in minimising industrial disputes…To that end the following leave provision will apply. / The clause does not mention…whether the union will be providing training…It may be the case that the union would not agree to non-union training…I am unable to conclude if the training will be provided by the union accordingly I ma unable to conclude if the clause contains prohibited content.
Each duly appointed union representative shall be granted up to five days paid leave per year to undertake training that will assist them in their settlement of disputes role. The time of taking such leave shall be agreed with the relevant union so as to minimise any adverse affect on the employers’ operations. / This clause does not specify whether or not the training is to be provided by a trade union.
Thus it is not possible for us to determine if it is prohbitied.
Remedy for termination / Any dismissal made without following the [counselling and disciplinary procedures] shall be a fundamental breach of the agreement and void. The employee shall be reinstated immediately. / The clause provides a right and remedy in the event of unfair dismissal. / Reg 8.5(5)
The parties commit to enabling the rehabilitation of injured workers as an accepted practice…No employee will be terminated on workers compensation during the first 12 months without consultation with the union. / The requirement to consult the union prior to termination…requires the provision of information about employees bound by the agreement. / Reg 8.5(1)(k)
Payment in lieu of annual leave / An employee may apply to receive a lump sum payment in lieu of part of annual leave balance which is in excess of 20 days. An employee cannot in any 12 month period receive a payment of more than half (10 days) of a 12 month accrual. / The WR Act provides that an agreement can provide for the cashing out of no more than 1/26 of the nominal hours worked by an employee during the 12 month period. While the construction of the clause for employees working a 38 hour week is acceptable (that equals 10 days), for an employee working a 36.75 hours per week the clause allows for cashing out an amount greater that 1/26 of the nominal hours. / reg 8.5(1)(j)
An employee may nominate to clear accrued annual leave by accepting payment in lieu of the leave. Any cash out would only be available for leave accumulation in excess of four (or five for shift workers) weeks, or equivalent hours / Section 233(2) of WRA allows an employee to forgo annual leave of no more than 1/26 of the nominal hours worked. This equates to 2 weeks for a 38 hour/week worker. This clause enables cashing out of more than this. / Reg 8.5(1)(j)