Industrial & Employee Relations

WORKPLACE RELATIONS

Our experienced workplace relations experts offer specialised services unique to Master Builders, providing members with comprehensive and tailored information. Whether you need advice on subcontract arrangements, wages, employment conditions, or dispute resolution, we’ve got it covered.

Call our team today on 08 9476 9800 or click link below to email.

CONTACT OUR WORKPLACE RELATIONS EXPERTS

OPERATIONS ASSISTANCE

Award wage rates, allowances and penalty payments
Redundancy and long service leave calculations
Unfair dismissal claims
Distinguishing between subcontractors and employees
Dealing with unions
Employment relations site management including on-site conditions, confidential auditing of wages, superannuation information, workers compensation, and industry award requirements.

STRATEGIC ADVICE

Negotiation and development of enterprise agreements
Dealing with employees
Dispute prevention, management and resolution
Employment advisory service covering award interpretation, recruitment, employment contracts, performance counselling and employment termination.

NEW FAIR WORK LAWS

The federal government has legislated changes to the Fair Work Act through the Fair Work Legislation Amendment (Closing Loopholes) Bill No.1 2023 and the Fair Work Legislation Amendment (Closing Loopholes) No.2 2023. A summary of the changes is available here. The changes will be introduced according to the details contained in the summary and include the following matters.

Sham contracting – change to definition.
Union right of entry
Changes to casual employment
New definitions – ‘employment’ and ‘independent contractor’
New ‘right to disconnect’ for employees.

WORKPLACE CONSULTING SERVICES

Master Builders in-house specialists have over 20 years of experience in delivering workplace services to the building and construction industry, including;

Preparing employment agreements, including contracts, letters of engagement, Individual Flexibility Agreements and Enterprise Bargaining Agreements. These workplace contracts and agreements are customised to the business’s operations needs and are therefore more flexible than modern awards, enhancing productivity and administration and providing certainty for employers and employees
Representing members before Fair Work Commission in unfair dismissal applications and other disputes

The consulting services are in addition to the membership subscription and are especially priced for members only.

For more information on the consulting services, contact iradvice@mbawa.com

ENTERPRISE BARGAINING AGREEMENTS (EBA)

An enterprise agreement (EBA) is a formal employment agreement negotiated between an employer and its employees (or their representatives). The EBA must be registered with the Fair Work Commission and meet the minimum standard of pay in the Award. It can exclude various Award conditions if employees are better off under the EBA than the Award.

Enterprise bargaining can be made easier and more certain with the assistance of Master Builders. We provide our members support with planning, negotiation, paperwork, and lodgment with the Fair Work Commission.

INDIVIDUAL FLEXIBILITY AGREEMENTS

An Individual Flexibility Agreement (IFA) is statutory employment agreement negotiated between an employer and any individual employee. The IFA is not registered with the Fair Work Commission. IFAs allow ‘all up’ wage rates for any combination of working hours, and greater operational flexibility and simpler payroll administration.

Master Builders has extensive experience in preparing IFAs and achieving the best outcomes for members.

CONTRACTS OF EMPLOYMENT

Employment contracts are common law agreements between an employer and employee and cannot diminish the statutory entitlements of employees i.e.. under awards and the NES. Contracts of employment are not limited to ‘award free’ employees. Modern awards require an employer to provide employees a written confirmation of the type of employment (weekly, casual etc.). Accordingly, it is good practice to include other core terms of employment in the contract. Master Builders can assist members with preparing suitable and appropriate forms of contracts.

EMPLOYEE ENTITLEMENTS

Modern and State Awards

Modern awards are federal instruments. In Western Australia modern awards only apply to Pty Ltd employers and their employees.

Sole Traders, unincorporated partnerships, or unincorporated trusts are covered by Western Australian state awards.

All modern and state awards contain essential employment conditions, including;

Contracts of engagements
Termination of employment
Minimum wages and classifications
Ordinary hours of work and additional hours (overtime)
Leave
Allowances

LEAVE ENTITLEMENTS

Annual Leave

Full time employees are entitled to receive four (4) weeks annual leave per year, which accrues progressively based on their length of service. Part time employees are entitled to annual leave accrued on a pro-rata basis in accordance with their ordinary hours of work. Most awards provide for an additional 17.5% annual leave loading, payable on all hours taken or paid out upon termination.

Personal/ Carers Leave

Full time employees are entitled to ten (10) days’ paid personal/carer’s leave per year. Personal leave is paid sick leave taken by an employee because of the employee’s personal illness or injury. Carer’s leave is leave taken by an employee to provide care and/or support to a member of the employee’s immediate family or household.

Part time employees are entitled to paid personal/ carer’s leave which accrues on a pro-rata basis in accordance with their ordinary hours of work.

The accumulation of this leave is uncapped.

Long Service Leave

Long service leave (LSL) is determined by the Long Service Leave Act WA. It applies to all employers in the state.

LSL is calculated as 13 weeks leave for 15 years’ continuous service. Payment of pro rata LSL on termination is made at any time after 10 years’ service, though it is available to employees who are terminated (except for misconduct) after 7 years’ service.

Periods of service as a casual employees may qualify for LSL if the service is sufficiently regular as to be regarded as continuous service. However, each case must be assessed on its merits before confirmation of continuous service.

Portable Long Service Schemes

MyLeave

Due to the project-based employment cycles, most employees in the building industry find it difficult to accrue sufficient continuous service to qualify for LSL. This disadvantage is remedied by the Construction Industry Portable Paid Long Service Leave Act 1985, which secures an ongoing bank of LSL accruals for employees registered with MyLeave, that is funded via a levy on the industry. Employers must register the relevant workers in the scheme to ensure fairness for all parties.

https://www.myleave.wa.gov.au/employers/scheme-overview/

Entitlement to LSL under MyLeave is the same as employees outside the scheme.

Modern Awards

Company’s, as incorporated enterprises, are covered by modern awards. The widespread awards in the building and construction industry are the Building and Construction General On-site Award 2020, the Joinery and Building Trades Award 2020, and the Clerks Private sector Award 2020.

A list of modern awards can be found at https://www.fwc.gov.au/awards-and- agreements/awards/modern-awards/modern-awards-list

Building and Construction General On-site Award 2020

*For guidance only. Please check award for full details.

Types of employment

Daily

Daily hire employees are full time or part time permanent employees, not casual, whom are engaged in writing, on one day’s notice of termination (by either party). Daily hire employees receive all other permanent benefits including annual leave, personal leave and

Weekly

Weekly hire employees are full time or part time permanent employees, whose notice of termination is subject to the NES.

Casual

Casual employees are engaged for a minimum daily engagement of four (4) hours.

Casual employees receive a 25% loading on top of their hourly rate in compensation for annual leave, personal leave, redundancy, notice of termination and other permanent benefits.

If a casual employee has been employed by the employer for a period of 12 months; and during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis such that, without significant adjustment, would allow the employee to continue to work as a full- time or part-time employee, then the employer must offer the employee a right to convert to permanent employment. However, this is not required where there are reasonable grounds for the employer not to make the offer.

Ordinary hours

Ordinary working hours are 38 per week worked between the hours of 7am and 6pm Monday to Friday (or by agreement 6am – 6pm). The award allows for an agreement between the employer and a majority of employees to substitute a RDO for an alternative day or reach an agreement for working other than the rostered day off cycle, this agreement must be in writing.

Overtime

Overtime is paid for time worked in excess of ordinary hours, or outside of the span of hours Monday to Friday, at a rate of time and a half (150%) for the first two hours, double time (200%) thereafter.

Saturday overtime is 150% for the first two hours’ 200% thereafter, except that all hours worked after noon Saturday are payable at 200%. A minimum engagement or payment of three (3) hours applies for work on a Saturday.

Sunday overtime is 200% for all hours worked. A minimum engagement or payment of four (4) hours.

Overtime for casual employees is based on the relevant full time ordinary rate so as to avoid compounding the casual loading, i.e., time and one half is 175% of the ordinary rate a double time is 225% of the ordinary rate.

National Employment Standards

Modern awards are subject to the following 10 minimum National Employment Standards (NES), set out in the Fair Work Act 2009:

Maximum weekly hours (38 hours, plus reasonable overtime)
Right for parents to request flexible work arrangements
Parental leave (12 months unpaid per parent)
Annual leave
Personal/carer’s and compassionate leave (paid and unpaid)
Community service (unpaid) and jury service (paid)
Long service leave*
Public holidays
Notice of termination and redundancy pay
Receive a Fair Work Information Statement

The standards mustn’t be reduced by any Awards, enterprise agreements or employment contracts that result in less favorable conditions for an employee. Full details can be found at National Employment Standards – Fair Work Ombudsman

State Awards

In Western Australia modern awards do not apply to sole traders, unincorporated partnerships, or unincorporated trusts. These enterprises are covered by the Western Australian state awards system. Many conditions in state awards are like those in a modern award equivalent, nevertheless unincorporated members should always check with Master Builders to confirm the state award that applies to them and their employees.

Minimum Conditions of Employment WA

State Awards are subject to following employment conditions under the Minimum Conditions of Employment Act WA

Maximum hours of work
Minimum pay
Leave for illness or injury or family care
Annual leave
Bereavement leave
Public holidays
Parental leave
Notice of termination and redundancy pay

WAGE INCREASES - MODERN AND STATE AWARDS

The Fair Work Commission determines the federal minimum adult wage and award wages, usually in June /July each year. The Western Australian Industrial Commission generally adopts the same increase for state awards.

Master Builders prepares handy wage circulars exclusively for members.

Calculating correct rates of payment for inclement weather and other allowances

If your questions are not answered by the information provided on our website, you can phone or email for further advice and guidance.

RDOs & PUBLIC HOLIDAYS

Modern awards and state awards allow an RDO system. The industry RDO calendar allows for one RDO per 4 weeks.

RDOs and Public Holidays 2023

RDOs and Public Holidays 2024

INCLEMENT WEATHER CALENDAR

An employee in entitled to be paid for up to 32 hours of work lost due to inclement weather (rain or abnormal climatic conditions) in every four week period, under the Building and Construction General On-site Award 2020. The periods don’t necessarily start on the first day and end on the last day of each month.

Employees are credited with 32 hours at the beginning of each period, including new employees who start work during the first week of any period. The number of credited hours can’t exceed 32, and unused credits don’t accrue.

If a new employee starts in the second week of the period they’ll be credited with 24 hours. If they start in the third week they’ll be credited with 16 hours, and if in the fourth week with eight hours.

We’ve produced an inclement & wet weather wages calendar for members to help determine whether an employee has credits towards payment for ordinary working time lost due to inclement weather. You can use your member login to access and download the calendar.

Inclement Weather Calendar 2023-2024

Inclement Weather Calendar 2024-2025

SUPERANNUATION

Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), deals with the superannuation rights and obligations of employers and employees. Under superannuation legislation individual employees generally have the opportunity to choose their own superannuation fund.

How much?

Compulsory Employer Superannuation is governed by the Australian Tax Office and for financial year 2022/2023, is 10.5% of employees ‘Ordinary Time Earnings’. See; https://www.ato.gov.au/Business/Super-for-employers/Paying-super-contributions/How-much-super-to-pay/List-of-payments-that-are-ordinary-time-earnings/

On current legislation, the compulsory superannuation contribution will increase to 11% from 1 July 2023; 11.5% from 1 July 2024 and 12% from 1 July 2025 onwards.

Fund Choice

Many awards still list recommended superannuation funds; however it is prohibited to refuse a new or ongoing employee freedom to choose a complying fund. If the employee does not choose a superannuation fund, any superannuation fund nominated in the award covering the employee applies.

Overall, the services supporting occupational superannuation are reasonably accessible. This includes the ATO and industry funds.

SUBCONTRACTOR OR EMPLOYEE?

Subcontractor relationships are common in the industry, particularly with time-based remuneration, and it’s often a concern whether a worker is legally an employee or contractor. Just because a worker has an ABN, doesn’t necessarily classify them as a contractor. If you classify a worker as an independent contractor, but legally they’re an employee, you may be liable for unpaid benefits for the entire period they worked for you. Further, it’s illegal to advertise or misrepresent to workers that their employment relationship ( the true relationship) is a subcontracting relationship. Civil penalties apply.

Subcontracting arrangements are usually entered into with an entity such as a Pty Ltd business, a trust or a partnership. A good indication of a true subcontracting arrangement is when the entity can delegate the work to a person to perform and that this right is recorded in a written contract. Master Builders has off the shelf contracts that comply with this requirement. https://www.mbawa.com/products/edocs/

In addition to a written contract that allows the subcontractor to sublet, there are other tests that must be considered when determining whether a person is an employee or independent contractor. For example, what is the level of autonomy of the contractor, how are they paid ( e.g. per result rather that periodical is a strong positive indicator), what equipment, tools or materials are provided, and who is responsible for rework?

For help working out whether a worker is a contractor or employee, contact Master Builders Employee Relations, and refer to ATO at;

https://www.ato.gov.au/businesses-and-organisations/hiring-and-paying-your-workers/employee-or-contractor

WORKERS COMPENSATION

The workers’ compensation scheme in Western Australia is regulated by the Workers’ Compensation and Injury Management Act 1981. You must obtain a workers’ compensation policy from an approved insurer. https://www.workcover.wa.gov.au/service-providers/insurers/

Under the scheme, workers are compensated for lost wages, medical expenses, and associated costs while they are unable to work.

Employers have several responsibilities regarding workers’ compensation and injury management, including the obligation to:

Obtain a workers’ compensation policy from an approved insurer.
Cover all persons defined as a ‘worker’, including employees, some types of sub-contractors, family members and working directors.
Report workplace accidents and industrial diseases.
Establish an injury management system.
Manage workers’ compensation claims and an injured worker’s return to work.

WorkCover WA is the government agency responsible for the scheme in Western Australia.

For full details on the scheme, go to Workcover https://www.workcover.wa.gov.au/employers/understanding-your-rights-obligations/

Significant changes in 2024

The government has approved a new Workers Compensation & Injury Management Act 2021, which will apply from 1 July 2024. Amongst many other changes, the Act will increase the period over which an injured worker is entitled to be compensated on the full wage ( from 13 weeks to 26 weeks), improve the accountability of workers to comply with rehabilitation programs, and more clearly exclude self-employed workers from the workers compensation policy of the contracting entity.

Contact iradvice@mbawa.com for further details on the Act.

UNION RIGHT OF ENTRY

Right of entry laws enable a union official (permit holder) to enter your workplace and investigate a suspected breach of legislation or have discussions with your employees (if registered to represent them), under the Fair Work Act 2009 and the Work Health and Safety Act 2020.

A permit holder can legally enter your premises if they:

Give the required written notice
Present a valid entry permit or permits
Attend during work hours
Comply with visitor requirements

A copy of right of entry checklists can be found here.

It is recommended that employers keep a detailed record of every time union official enters your workplace.

Industrial Action

Industrial action is defined in the Fair Work Act 2009. It is the refusal of employee to perform their usual duties, including bans, limitations, and ‘go slows’.

It does not include circumstances where employee ceases work due to the employee’s reasonable concern of an imminent risk of his or her health and safety. Provided the employee does not refuse a lawful and reasonable direction of the employer to perform duties in an alternative area or site.

Strike Pay

It is an offence under the Act to pay wages to employees taking industrial action. It is also an offence for the employee to claim or receive strike pay. The Act requires a minimum four-hour deduction of wages for each day, if the duration of the industrial action is 4 hours or less. Civil penalties apply.

Members who are experiencing or are concerned at the risk of industrial action are recommended to contact iradvice@mbawa.com

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