Master Builders Western Australia — May-June 2017

(subject to a few exceptions detailed in the
table below) until its enterprise agreement is
compliant with the Code. These amendments
are likely to impact an estimated 1500
enterprise deals.

The table below details when enterprise
agreements are now required to comply with
the Code.

ABCC’s ‘guidance material’
To assist with determining Code compliance,
the ABCC has published guidance material
that sets out its advice on the compliance of
over 500 clauses. These clauses are taken
from agreements that have been submitted
by industry to the ABCC or the Department of
Employment. Of the 502 clauses considered
in the guidance material, almost half are
considered to be non-compliant.

Of particular note, the guidance material
states that the following clauses (which in
our experience are commonplace) are non-
compliant:

• Clauses that tightly regulate working hours
  and the RDO calendar. This is because
  such clauses limit the ability for an employer
  to determine with its employees when

and where work can be performed to

meet operational requirements, which

is impermissible under the Code. For

example, clauses that provide for a fi xed

annual calendar of RDOs, that limit fl exibility

around the traditional shutdowns for

Christmas, New Year and Easter, or that

require agreement to be reached between

the employer and the union about working

hours and rosters are non-compliant.

• Clauses that allow union offi cial access
  to an employer’s premises other than in
  accordance with the right of entry provisions
  in the Fair Work Act.


• Clauses that require the employer to consult
  with or seek the approval of the union,
  for example about the engagement of
  subcontractors or supplementary labour.

What does this mean for you?

You should immediately compare your

enterprise agreement with the guidance

material and consider whether it complies with

the Code. If the enterprise agreement has

non-compliant clauses, consider whether to

vary the agreement, or terminate it and replace

it with a new agreement. If renegotiation is

required, seek advice and take immediate

action to begin the renegotiation process so

that it can be fi nalised as quickly as possible.

This may include a plan for any industrial

campaign and protected industrial action that

might be taken.

Once you consider that your enterprise

agreement is compliant, submit it to the ABCC

for assessment. We are advised that there

is currently a bank up of agreements for the

ABCC to review, so you need to lodge your

agreement as soon as possible.

If you have any questions about what the

new Code means for your organisation,

contact Jackson McDonald workplace

relations partner Stephen Kemp (9426 6633,

[email protected]) or workplace relations

special counsel Renae Harding (9426 6802,

[email protected]).

If you employ workers in the construction

industry you may be required by law to

register in the Construction Industry

Long Service Leave Scheme.

Find out by visiting http://www.myleave.wa.gov.au

or by calling 08 9476 5400.

It’s your

business

to register.

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