Q&A with Industrial Relations & Legal Adviser Malvin Khaira

Q: What are the changes to the Building & Construction General On-Site Award and when do they come into effect?

A: As part of the 4-yearly review of the Modern Awards, the Fair Work Commission has confirmed changes to the Building and Construction General On-Site Award (‘the Award’) which will take effect from 1 July 2020.

What are the Changes?

The changes effective from 1 July 2020 are as follows: 

RDO’s

• Employers and Employees may agree on when RDOs may be taken to provide more flexibility.
• Employers will have capacity to roster Employee RDO’s provided that a written roster is issued seven days in advance of the 20-day RDO work cycle.
• Employees will have capacity to bank RDO’s provided they do not exceed 5 days at any given time.
• The Ordinary hours of work and RDO clauses will be reformatted and renumbered to give it a more logical structure.
• The prohibition of Part Time employees working an RDO will be removed.
• If an RDO has previously been fixed, an Employee who works on that RDO is entitled to Saturday penalty rates and will also retain that RDO. 

Casual and Part Time Employees

• The daily ordinary working hours of Part Time and Casual Employees shall not exceed 8 hours.  Overtime penalty rates will be payable for any work exceeding 8 hours. 

Travel Allowances

• An Employee will not be entitled to Fares and Travel pattern allowance if the employer provides a fully maintained vehicle free of charge to the employee. 

Allowances

• Several Industry, Disability and other allowances will be removed.
• The Industry Allowance to compensate for disabilities will be varied depending on your relevant industry as follows:
  • For Residential Building and Construction Industry, 4.8% of the weekly standard rate per week is payable in addition to the employee’s weekly rate; and
  • For General Building and Construction, Civil Construction and Metal and Engineering Construction Industry, 6% of the weekly standard rate per week is payable in addition to the employee’s weekly rate. 

Overtime

• An Employer and Employee may agree to the employee accruing overtime worked and taking it as time off instead of overtime payment.   

Simplification of Provisions

• Several provisions will be rewritten so that they are simplified and more user friendly.

MBA will provide more information when it is made available. If you are an MBA ACT member and have any concerns, please feel free to contact me at mkhaira@mba.org.au or at 6175 5900.

Q: My business was impacted by bushfires recently and we had to cease operations. Do I pay staff for the shutdown period?  

A: It depends. Recently, bushfires have been impacting many businesses in Canberra resulting in temporary closure. s524 of the Fair Work Act 2009 (Cth) allows employers to stand down employees in certain circumstances including a stoppage of work for any cause for which the employer cannot be reasonably held responsible. This includes work stoppages caused by natural disasters like bush fires. However, for this provision to apply, you would need to ensure that the employee’s enterprise agreement or employment contract doesn’t contain stand down provisions that deal with the same circumstances.

If you decide to stand down employees, you are not required to make payment to them during the period of the stand down, however, you may choose to do so if you so wish.

Before you consider standing down employees, you should consider inviting them to take annual leave or consider redeploying them to an unaffected work site.

Please download the Fair Work Ombudsman’s Fact Sheet on Employment entitlements during natural disasters and emergences, here.

Q: Union Officials are citing the recent Denman Prospect incident as a reason to check my workplace safety records including SWIMS. Are they allowed to do so?

A: No. Union Officials do not have a right to investigate any of your records unless they exercise a valid Right of Entry.

For a Right of Entry under the WHS Act, the Union Official has powers to:

1. Inquire into a suspected WHS contravention (s117);
2. Inspect employee records or other documents held by the PCBU or other person (s120); and
3. Consult and advise workers on Safety (s121).

To exercise any of the right of entry powers stated above, the Union Official must provide the required notice and produce both a Fair Work Commission and a WorkSafe entry permit with a photo ID.

If you are an MBA ACT Member who is facing pressure from the Union and will like to know your rights, please contact me at mkhaira@mba.org.au or 6175 5900.