Giovenco Industries (Aust) Pty Ltd

[2015] FWCA 57

[2015] FWCA 57

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Giovenco Industries (Aust) Pty Ltd
(AG2014/9964)

GIOVENCO INDUSTRIES (AUST) PTY LIMITED LNG PROJECTS UNION GREENFIELDS AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 6 JANUARY 2015

Application for variation of the Giovenco Industries (Aust) Pty Limited LNG Projects Union Greenfields Agreement.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Giovenco Industries (Aust) Pty Ltd for the approval of a variation to the Giovenco Industries (Aust) Pty Limited LNG Projects Union Greenfields Agreement (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot.

[3] The Agreement is varied as follows:

(a) At clause 4, by adding a new subclause (4)(b)(3) as below:

(3) "scope of work" is limited to scope of work for the QCLNG Project, the APLNG Project and the GLNG Project, which includes PJET activities and functions, and does not include any other projects or expansions.

(b) At clause 4, by deleting 4(c)(1).

(c) At clause 4, by adding a new subclause 4(e) as below:

(f) Whilst the Employer may contract work to independent contractors for a variety of reasons, the Employer acknowledges that it is not its intention to use contracting to undermine the terms and conditions of employees under this Agreement.

(d) At clause 6, by amending the expiry date to 1 September 2017.

(e) At clause 8.2 - Probation period, by deleting the text and replacing it with:

(a) Employees (other than casual employees) will be initially engaged on three (3) months probation.
(b) A formal mid-point probation performance review will be conducted and discussed with the employee.
(c) During the probation period either the employee or the Employer will have the right to terminate employment after giving the other party one (1) days’ notice.
(d) After completion of the probationary period, full time or part time employment will be weekly.

(f) At clause 8.3, by deleting (c)-(e) and replacing them with (c)-(g) below:

(c) An employee (other than a casual employee) is required to give their Employer one (1) week’s notice if he/she intends to terminate their employment. Where less than one week’s notice is given by the employee, the Employer is entitled to deduct, on a pro rata basis, an amount equivalent to one (1) week’s pay from the employee’s termination payment.
(d) For a casual employee, either the employee or the Employer will have the right to terminate employment by giving the other party one (1) days’ notice.
(e) The Employer is entitled to choose to pay notice in lieu. Employment may be terminated by part of the period of notice and part payment in lieu (on a pro rata basis).
(f) Neither the Employer, nor employee shall provide notice which extends into an R&R week.
(g) Nothing in this clause will affect the Employer’s rights to summarily dismiss their employee for conduct that justifies summary dismissal.

(g) At clause 8.5 - Redundancy entitlements, by deleting the text and replacing it with:

(a) The Employer will pay $90.00 per week (pro-rata for part time employees) for each employee (other than a casual employee) engaged under this Agreement for each week of service on the Project into one of the following:

(1) for electrical and sprinkler fitting, plumbing, electrical and instrumentation tradespersons, roof/sliding, electrical Storepersons and electrical trades assistants – a combination of CIRTQ and Jetco, the CIRTQ related benefits fund (comprising $10 per week to Jetco and the balance to CIRTQ);
(2) for sheet metal, mechanical and fabrication tradespersons, non-destructive testing employees and industrial painters – ACIRT;
(3) in the case of crane drivers, mobile crane drivers, excavator drivers, forklift drivers, carpenters and painters – ACIRT or a combination of BERT and BEWT, the BERT related benefits fund; and
(4) in respect of all occupations and roles within the scope of the classification structure, except those listed in subclauses 8.5(1)(a),87.5(a)(2) and 8.5(a)(3) – ACIRT.

(b) Where an employee takes an unauthorised absence, the employee will not accrue redundancy entitlements under clause 8.5 (a) above for that day. An employee will accrue at the daily rate of $18.00 for each day worked during the week (limited to Monday-Friday) of the unauthorised absence. The daily rate of accruals will apply to part time employees.
(c) The weekly amount in clause 8.5 (a) above will be increased to $92.00 on 1 May 2015 and then by $2.00 per year each 1 May, for the duration of the Agreement. The corresponding pro rata amount set out in clause 8.5 (b) above will be increased accordingly.
(d) The payments under this clause are inclusive of any statutory entitlements an employee may have to severance or redundancy payments.

(h) At 9.1(b)(6), adding the below:

The Employer shall make clear what are reasonable times to pack-up and/or depart the workplace prior to a work break and/or finishing time. Five minutes shall be allowed for wash-up prior to a break and/or finishing time.

(i) At clause 9.2, by deleting subclause (b) and replacing as below:

(b) Generally, employees (other than shift workers) will work within the above start and finish times. The above start and finish times may be moved by up to one hour either way without penalty, by agreement between the Employer and the directly affected employees, or failing agreement, by the Employer giving one (1) weeks’ notice to the directly affected employees.

(j) At 9.3, by deleting the text and replacing as below:

(a) Night shift means any shift commencing after 2:00pm and finishing at or before 7:00am.
(b) The ordinary hours of night shift work will be an average of thirty-six (36) hours per week, averaged over a fifty-two (52) week period from Monday to Friday inclusive.
(c) Employee(s) shall be engaged on night shift by agreement with their Employer. Such agreement shall not be unreasonably withheld.
(d) No rotational night shift work will be undertaken. Once an employee is engaged on night shift work, they will continue to work the regular night shift roster until they return to day work.
(e) The arrangements for night shift work will be:

(1) Shift cycles must run for at least five (5) days duration. Where less than five (5) consecutive shifts are worked, the employee is still considered a shift worker, but shall not, for those shifts, be paid the night shift loading in subclause 9.3(f) below and instead shall be paid for each shift, one half time extra for the first two (2) hours and time extra for the remaining hours in addition to the Base Hourly Rate. The consecutive nature of a shift will not be deemed to be broken by any unauthorised absence or if work is not performed on a Saturday, Sunday, Public Holiday or any RDO.
(2) Forty-eight (48) hours’ notice of the commencement of shift work must be provided to affected employee(s), other than in emergencies, or unless otherwise agreed. In the absence of forty-eight (48) hours’ notice, the Employer shall treat the hours worked as a normal work day and pay for all hours worked at appropriate penalty rates, until such time the forty-eight (48) hours since the request to commence shift work has lapsed.
(3) If the employee works less than five (5) consecutive shifts, they will not be entitled to the higher rates of pay under clause 9.3(e)(1) if they are also entitled to overtime under clause 12.4(e).

(f) Night Shift Penalties

(1) All night shifts worked between Monday and Friday shall attract a flat shift loading of 30% of the employee’s Base Hourly Rate, for all hours that the employee is engaged on those shifts.
(2) All night shifts worked between midnight Friday and midnight on Saturday shall attract a flat shift loading of 50% of the employee’s Base Hourly Rate, for all hours that the employee is engaged on those shifts.
(3) All night shifts worked between midnight Saturday and midnight on Sunday shall attract a flat shift loading of 100% of the employee’s Base Hourly Rate, for all hours that the employee is engaged on those shifts.
(4) The flat night shift loading is calculated as a percentage of the employee’s Base Hourly Rate and is not compounded by any overtime rates or other allowances.

(g) Majority Hours

(1) For the purposes of clarifying subclause 9.3(f), where the majority of ordinary hours of the shift fall on a particular day, this determines the shift penalty payment that applies to that particular shift. By way of an example, a 10 hour nightshift, commencing at 6:00pm on Friday and finishing at 4:00am on Saturday would be deemed to be a “Friday shift”.
(2) If a shift has exactly the same amount of ordinary hours across two days, then the shift penalty payment that applies to the first of the two days will apply to that particular shift. By way of an example, an eight (8) hour night shift commencing at 8:00pm on Friday and finishing at 4:00am on a Saturday would be deemed to be a “Friday shift”.

(k) By adding a new clause 9.4, as below (with subsequent renumbering):

9.4 Examples of Operation of Hours of Work

(a) Ordinary Work Day

Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Ordinary	8	8	8	8	8	-	-
Time + ½	2	2	2	2	2	2	-
2 x Time	-	-	-	-	-	8	10

(b) Night Shift Work

Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Ordinary	8	8	8	8	8	-	-
Night Shift Penalty	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	-	-
2 X Time	2	2	2	2	2	10	10
Night Shift Penalty	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	+30% of Ord T rate for each hour worked	+50% of Ord T rate for each hour worked	+100% of Ord T rate for each hour worked

(l) At renumbered clause 9.6 - Rostered Day Off (RDO), at the end of (a)(1), by adding the below:

in accordance with the four (4) week roster cycle in which the employee is assigned; or

(m) At clause 9.6, by adding the below at the end of subclause (b):

Subject to a minimum of one (1) weeks’ prior approval by the Employer, and subject to operational requirements, a non-local employee may take a singular RDO within the four (4) week roster cycle for private business. This provision is intended to be used for the ‘one off’ requirements of the employee as opposed to enabling regular absences from the project.

(n) At the end of clause 10.4, by adding the below:

Where applicable, the terms set out in subclauses 10.5(g) and10.5(h) will apply.

(o) At clause 10.5, by replacing (e)-(i) with new (e)-(k) as below:

(e) Travel for R&R shall commence on the last working day of the employee’s work roster (or the day preceding the actual R&R leave period), with normal work on site continuing for four hours. Payment for four hours at the employee’s base hourly rate as defined in sub-clause 11.1(a) will apply in addition to the time worked in order to compensate employees for readying themselves for their R&R travel.
To avoid confusion, such payment will be paid and counted as time worked and paid as ordinary time should the last working day or shift of the employee’s work roster be a day or shift that falls (or is deemed to fall) between Monday to Friday. The payment will not be counted as time worked and shall be paid at ordinary time should the last working day or shift of an employees work roster be a weekend day or shift.
(f) As clarification, the default position is that all non-local employees will work four (4) hours on the last working day of the employee’s work roster, and will travel on Project supplied charter flights where they are provided.
(g) In the event that an employee using the charter flight reaches their final interstate High Capacity Airport (or an airport midway through their journey), at or after 10pm (Queensland time) on the last day after working four (4) hours, they will have the option of being provided with overnight accommodation. Also, on a case by case basis (and as approved by the Site Manager for the Project) accommodation may be provided where there is a significant journey for the employee to drive after reaching the final High Capacity Airport.
(h) Notwithstanding subclause 10.5(g) above, an employee using the charter flight who would reach their final interstate High Capacity Airport (or an airport midway through their journey), at or after 9pm and in the normal course of events would not arrive at their usual place of residence until after 10pm (Queensland time) on the last working day, after they have worked the four (4) hour, will be able to either utilise subclause 10.5(g) above, or alternatively will have the option of:

(1) Reporting to work on the last day, but leaving before the full four (4) hours work have been completed;
(2) Catching an earlier commercial flight; and
(3) Taking authorised leave without pay for those hours not worked.

(i) Air travel returning the employee to the Project will be taken to return the employee no later than the last day of the employee’s R&R leave to ensure the employee is able to recommence work activities at their normal start time on the first day of their roster cycle.
(j) Employees on an R&R roster cycle will be entitled to the following travel payments in lieu of any compensation for travelling time or associated costs related to R&R travel:

(1) For employees engaged from locations in Queensland - 4 hours (paid at the employee’s Base Hourly Rate as per sub-clause 12.1(a) for return trip).
(2) For employees engaged from interstate - 8 hours (paid at the employee’s Base Hourly Rate as per sub-clause 12.1 (a) for return trip).

(k) The employee’s entitlement to R&R travel payments shall be subject to the employee being available to commence work on the first working day immediately following the period of R&R and making themselves available to work on each day of the previous cycle, other than approved leave. Subject to this provision payment shall be made in the first pay period after the employee returns from R&R.

(p) At clause 11.3(a) - Classification Groups - Apprentices, by adding additional text above the table, and an additional row to the table as below:

Junior Apprentices: Except for adult apprentices, apprentices will be paid at the rate of the following percentages of the Group A classification set out in clause 12.1.

5* 95 95 95

*Where a 5^th year dual tradesperson apprentice has completed their 4^th year apprenticeship, and holds a current electrical license, the employee will be paid 100% of Group A.

(q) At clause 11.3(b) - Classification Groups - Adult Apprentices, by replacing the text as below:

An adult apprentice is defined as a person who is 21 years of age or older at the time of entering an apprenticeship.
(1) Existing Employees
Existing employees of the Employer who are offered an adult apprenticeship will maintain their current base hourly rate of pay (not inclusive of allowances) in accordance with their existing classification or will be paid in accordance with the adult apprenticeship table below as per their designated equivalent year of apprenticeship whichever is the greater.
(2) New Employees
New employees of the Employer who are employed as adult apprentices will be paid in accordance with the adult apprentice payment table below as per their designated equivalent year of apprenticeship.

Adult Apprentice Payment Table

Equivalent Year	Percentage of Group A
1	80%
2	85%
3	90%
4	95%

(r) In clause 11.3 - Classification Groups - Classification Groups, in Group C, by adding “chainperson (more than 6 months experience)” and amending “pipe and conduit laying” to “pipe laying”. In Group D, by deleting “adult apprentice”

(s) In clause 12.1, by amending the table at (a) as follows:

Group	Weekly All Purpose Wage (36 hours x Base Hourly Rate)	Base Hourly Rate
$ per week	$ per hour
A	$1,644.67	$45.69
B	$1,612.61	$44.79
C	$1,580.59	$43.91
D	$1,549.17	$43.03
E	$1,480.20	$41.12

(t) By replacing clause 12.2 as follows:

(a) The following allowances are paid, in addition to the Base Hourly Rate set out in sub-clause 12.1(a) above, where applicable. For the purposes of this clause the following applies:

(1) Flat Allowance: An allowance that is paid as a separate stand alone payment to the Base Hourly Rate and does not form part of either of these rates for the purposes of calculating overtime penalties or paid leave.
(2) All Purpose Allowance: An allowance that is added to the Base Hourly Rate and applies for the purposes ofcalculating overtime or paid leave (including Rostered Days Off, Public Holidays, Annual Leave, Personal Leave and Compassionate Leave).

(b) All Purpose Allowances do not apply to calculation of Shift Penalties, Mobilisation / Demobilisation and R&R travel payments.
(c) The weekly and/or hourly all purpose allowances are set out in the table below:

All Purpose Allowances	Weekly	Hourly
(36 x hourly allowance)
Leading Hand (as defined)
(i) 1-9 employees	$75.00	$2.08
(ii) 10-19 employees	$112.00	$3.11
(iii) 20 or more employees	$150.00	$4.17
Rigger, Dogger, Scaffolders holding and using licenses issued pursuant to the relevant Act and I or Regulations	$37.98	$1.06
Tradesperson tool allowance	$42.93	$1.19
Tradesperson allowance*	$87.72	$2.44
Plumbing and / or Electrical licence	$56.94	$1.58
Crane Operation - Lofty or Tower Crane	$85.38	$2.37
Mobile Crane
ii) up to 80t	$18.97	$0.53
iii) over 80t and up to 120t	$66.47	$1.85
iii) over 120t and up to 300t	$75.90	$2.11
iv) over 300t and up to 500t	$85.40	$2.37
v) over 500t	$92.58	$2.57
Qualification payments (Refer to Appendix 1 - Definitions)
i) Welder Tested**	$37.98	$1.06
ii) Welder - Special Class**	$66.47	$1.85
iii) Welder - Special Class Exotic Materials**	$116.33	$3.23
iv) Instrumentation Tradesperson	$37.98	$1.06
v) Instrumentation Tradesperson - Complex Systems	$66.47	$1.85
vi) Electrical / Mechanical Tradesperson Special Class	$66.47	$1.85
vii) Control Systems Tradesperson ***	$66.47	$1.85
viii) Instrumentation and Control Tradesperson****	$170.82	$4.74
ix) Electronics Tradesperson ****	$170.82	$4.75

* All licensed tradespeople are required to maintain tradesperson licenses / certificates applicable to their trade. The employee is required to provide a copy of applicable licenses / certificates to the Employer upon renewal.
** Welding allowances are not cumulative
*** The Control Systems Tradesperson Allowance will be paid to all Licensed Electricians
**** The Instrumentation and Control Tradesperson and the Electronic Tradesperson allowances are in lieu of all other electrical allowances except for the electrical licence allowance

(b) The weekly and/or daily flat allowances are set out in the table below:

Flat Allowances

Daily

Travel:

$45.00 per day

* Increases to $50.00 per day as of 1 November 2014

A flat daily travel allowance will be paid to each employee, for each day the employee reports for work and works as directed by their Employer.

The Travel Allowance includes reimbursement for all costs, expense and inconvenience incurred with any travel to and from the Project, and to and from the workplace for the crew pre-start meeting.

Ferry Allowance:

$35.00 per day

A flat daily ferry allowance will be paid to each employee for inconvenience incurred (including unforeseen delays) associated with ferry travel for each day the employees reports for work and works as directed by the Employer.

In the event of road access to the Project replacing the need for ferry travel, such payment will cease and all travel will be compensated as per the travel allowance as stated above.

The above allowance is only payable to employees requiring daily travel, by ferry, to and from the Project site. It is not payable to employees such as non-local employees who may utilise the ferry service for R&R, mobilisation/demobilisation and other related purposes.

Curtis Island “Island Living” Allowance

A flat daily allowance will be paid to each employee required to reside in one of the Curtis Island construction camps on the island. (Not applicable to those employees who reside in mainland camps who are in receipt of the ferry allowance).

This will be paid for each day the employee resides in the construction camp and reports to work as rostered and works as directed. It is not payable for non work days.

This allowance is paid in recognition of the uniqueness of the Curtis Island Project.

$10.00 per day

Curtis Island LNG Project Productivity Payment

A flat daily allowance will be paid to each employee (local or non-local) who reports to work and works as directed. It is not payable for non work days.

This payment does not apply for periods of authorised or unauthorised leave including, but not limited to, R&R, annual, long service, personal leave, workers’ compensations and any form of industrial action.

The payment is made for the commitment of the employee to the achievement of optimum productivity, continuous work, complying with timekeeping requirements and performing duties within the employee’s assigned classification group as per clause 10 on the Curtis Island Projects.

$10.00 per day

* Increases to $30.00 per day from 1 November 2014

Meal Allowance:

$10.20

An employee shall receive a $10.20 meal allowance where the employee works two (2) hours or more overtime after the ordinary ceasing time, Monday to Friday.

In the circumstances where an employee is required to work more than 8 hours overtime on either a Saturday or Sunday, a meal will be provided or a payment of $10.20 meal allowance in lieu will be made.

This provision shall not apply to employees who are in receipt of board and lodging or to employees who are supplied with meals.

Flat Allowances

Weekly

First Aid:

$19.30

An employee appointed by the Employer to be a first aid attendant will be paid a flat First Aid payment per week

(u) At clause 12.4, by replacing subclause (g) with new subclauses (g) and (h) as below:

(g)The Employer may withdraw overtime on a Project due to operational reasons. To effect this cancellation, the Employer shall post a signed notice on a designated notice board (or boards) no later than 1:30pm the day prior to the impacted overtime shift.
(h) Subject to the Act, an employee, who because of any unauthorised absence, has not worked in accordance with their roster in any given week, will not be entitled to work weekend overtime hours in that week.

(v) At clause 13, by deleting the text and replacing as follows:

(a) The Employer will make the appropriate contributions as required by the Superannuation Guarantee Act 1991 (Cth) (as amended or replaced from time to time) (SG Act) into a complying superannuation fund. Australian Super, Energy Super, BUSQ and CBUS state that they are complying superannuation funds.
(b) The Employers contributions will be as per the relevant superannuation guarantee percentage at the time under the SG Act, of ordinary time earnings (currently 9.50% of Ordinary Time Earnings) or $180.00 per week (to weekly employees) whichever is greater.
(c) Superannuation contributions will be made to a default fund determined by the Employer.

(w) At clause 14.3, by adding a new subclause (b):

(b) Where clause 14.3 applies, clause 14.1 will not apply.

(x) At clause 15.1(a) and (b), by correcting cross references so that the clauses read:

(a) The Base Hourly Rate and corresponding Weekly All Purpose Wages in sub-clause 12.1(a) and the All Purpose Allowances in subclause 12.2(c) will be increased by the escalations set out in subclause 15.1(c).
(b) The flat weekly first aid allowance as stated in subclause 12.2(d) will also be increased by the escalations set out in subclause 15.1(c).

(y) At clause 15.1(c), by replacing the table with the below:

Date	% increase
1 November 2014	2.5%
1 May 2015	2.5%

(z) At clause 16.1, by replacing subclauses (a) and (b) as below:

(a) Employees (other than casual employees or part time employees) will be entitled to paid annual leave at the rate of 144 hours per annum, (which is equivalent to 20 days at 7.2 nominal hours or four (4) ordinary weeks per annum) at the employee’s Base Hourly Rate.
(b) Annual leave accrues and is credited monthly on a pro rata basis.

(aa) At clause 16.2, by replacing (d)-(k) with new subclauses (d)-(l):

(d) Paid personal leave accrues monthly on a pro rata basis.
(e) Personal leave is cumulative.
(f) Payment for, and deduction from, credited personal leave will be at the rate of 7.2 hours, paid for at the employee's Base Hourly Rate.
(g) To be paid personal leave, the employee must meet the following requirements:

(1) have a credit entitlement to a period of leave;
(2) notify the Employer as soon as reasonably practicable;
(3) advise the Employer how long the absence on leave is expected to be;

(h) Where an employee has taken two (2) or more consecutive days personal leave in any one calendar year, the employee must provide a medical certificate from a registered health practitioner, or if that is not practical, a statutory declaration on each occasion of an absence for any duration thereafter for that year.
(i) An employee may take up to two (2) single days per calendar year as personal leave without a requirement to provide a medical certificate from a registered health practitioner, or if that is not reasonably practicable, a statutory declaration. Thereafter, such an employee must provide a medical certificate or a declaration in respect of each absence on personal leave for the remainder of that year.
In either circumstance, the certificate or the declaration must state the likely duration of the employee’s absence and the reason for the absence.
(j) A failure to follow the steps as detailed in sub-clause 16.2 (g) to (ha) will result in the absence being determined as an “unauthorised absence”.
(k) Employees who have a paid personal leave entitlement accrued on the Project will have any unused portion of the entitlement paid out on termination.
(l) Part time employees will be entitled to accrue, and be credited monthly, paid personal leave on a pro rata basis.

(bb) At subclause 16.4(a), by deleting “May day” and adding “Labour day”.

(cc) At subclause 16.4(c), by adding the following:

If a public holiday falls during an employee’s R&R, and the employee would be normally rostered to work hours on that day, then the employee will be paid their Base Hourly Rate for the ordinary hours they would normally have worked on that day.

(dd) By adding a new clause 16A as below:

16A. Equitable Treatment Process
16A.1 Objective of the Equitable Treatment Process
The Equitable Treatment Process is an interactive process to deal with concerns in respect of an employee’s performance, and/or behaviour. The supervisor is responsible to initiate any action under this process. All formal counselling shall be documented.
16A.2 Steps in the Equitable Treatment Process
(a) The employee concerned shall receive formal counselling from the supervisor.
(b) If the concern continues, the employee shall be counselled by a more senior manager. The employee shall be formally warned, in writing, of the impact of continuing with the unsatisfactory performance and/or behaviour and this may include an indication that the employee’s job is at risk.
(c) If the concern continues and the employee does not respond to a formal warning of possible dismissal, employment may be terminated.
(d) At levels 16A.2(a) to 16A.2(c) inclusive of the above, the employee may choose to have their appointed union delegate under the terms of this Agreement in attendance.
(e) In counselling set out in levels 16A.2(a) to 16A.2(c) inclusive, the employee shall be advised of:

(1) The performance and/or behaviour deemed to be unsatisfactory;
(2) The action to take to correct the problem;
(3) The consequences of the unsatisfactory performance and/or behaviour continuing.

(f) The above steps do not need to be progressed separately for each separate performance and/or behaviour concerned, but may be progresses based on distinct and/or cumulative performance and/or behaviour concerns.
(g) In circumstances involving serious misconduct, immediate termination of employment may occur without the above steps.
(h) Similarly, where more serious cases of unsatisfactory performance and/or behaviour warrant, the above steps may be condensed and the Employer may progress directly to formal counselling by a more senior manager and/or formal warning.
(i) The Parties acknowledge that nothing within this clause 16A.2 shall prevent and/or limit the Employer from having informal discussions about performance and/or conduct of an employee, with that employee.

(ee) At clause 17.2 - Steps in the Dispute Resolution Process, by replacing the text as follows:

(a) Any disagreement or dispute about the application or operation of this Agreement or the National Employment Standards (in accordance with the Act) will be dealt with as follows:

(1) The employee concerned shall raise the matter with the appropriate supervisor for resolution.
(2) If not resolved, the employee will raise the matter with the superintendent of the Employer for resolution.
(3) If the matter remains unresolved, either the employee or their superintendent is entitled to request a formal meeting with the Employer’s Project Superintendent (as nominated by the Employer for this purpose).
(4) If the matter still remains unresolved, the matter may be raised by either party with the next level of management nominated by the Employer.
(5) If still not resolved, the dispute may be referred to the Fair Work Commission for conciliation by the Employer, one or more employee covered by the Agreement, or one or more of the Unions named in subclause 3(b).
(6) If still not resolved, the Assistant State/District Secretary of each Union involved in the dispute which has representational rights in respect of the relevant employee(s), and the Employer counterpart nominated by the Employer may review the dispute, and subject to that review the dispute may be referred to the Fair Work Commission (FWC) for arbitration by either party to the dispute.
(7) Any employee shall be entitled to invoke the Dispute Resolution Procedure to resolve a dispute between the Employer and the employee on a Project. Once the Dispute Resolution Procedure has been invoked by the employee, both the employee and the Employer shall attempt in good faith to resolve the issue by utilising the above steps, as required until resolution is reached. In the event that the issue is not resolved, it will be referred to the FWC for resolution, as set out in 17.2(a)(5).
(8) While the above process is being pursued, work shall continue as normal. Failure to work within the process described in this subclause and/or failure of any employee to continue work as normal shall constitute a breach of this Agreement by the employee(s) involved.
(9) It is the intention of the Parties that at levels 17.2(a)(1) and (2), each step in the process will be completed within two (2) days.
(10) Furthermore it is the intention of the Parties that at levels subclause 17.2(a)(3) and (4), each step in the process be completed within three (3) days.

(b) At levels 17.2(a)(1) and 17.2(a)(4) inclusive of the above, the employee may have their appointed union delegate who is entitled to represent the industrial interests of the employee under the terms of this Agreement in attendance.
(c) At all levels of the dispute resolution process, an employee or employees covered by this Agreement involved in the dispute may nominate a representative of their choosing.
(d) The resolution of any dispute in accordance with this procedure cannot be inconsistent with the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014.

(ff) By introducing a new clause 23 - Temporary Foreign Labour - as follows:

(a) The Parties to the Agreement recognise that there may be a requirement to engage Temporary Foreign Labour to supplement the Australian workforce after extensive sourcing and recruitment efforts demonstrates that there still remains insufficient suitable Australian workers available to do the work.
(b) For the purposes of this clause “Temporary Foreign Labour” shall mean any person who requires a temporary visa to live and work within Australia whilst engaged in the classifications listed in this Agreement.
(c) Where the Employer is required to engage such labour, the Employer shall ensure:

(1) that all temporary foreign labour employed will continue to be employed in accordance with the work entitlements of their visas;
(2) the employee receives the same wages as per this Agreement;
(3) wages will be direct credited to the employee’s Australian bank account;
(4) recruitment is undertaken pursuant to the Project Recruitment Process, inclusive of:

(i) medical examinations (both for employment and immigration) at no cost to the employee;
(ii) detailed letter of offer;
(iii) pre-employment verification of qualification, English competency and competency testing to verify skill and capability is to Australian standard; and

(5) the employee incurs no upfront costs or costs on an ongoing basis as a result of recruitment.

(gg) By introducing a new clause 24 - Delegates - as follows:

24.1 Appointed Union Delegates
(a) The Employer will recognise duly elected employee representative(s) (delegates) of the Unions named in subclause 3(c), as advised in writing by the relevant union, that verifies the Union is satisfied that a proper election has been conducted by the employees of the Employer whom the Union can represent, and that the delegate is a person who can represent the industrial interest of the employees of the Employer.
(b) The delegate will only be recognised for the purpose of representing employees of the Employer within that Union’s coverage.
(c) The Employer will, where requested, provide delegates with reasonable access to facilities including phone, facsimile, computer / printer, photocopier.
24.2 Delegates Training
(a) The Parties to this Agreement recognise the value of enabling recognised delegates to attend formal courses that promote the practice of sound industrial relations and which will assist the delegate to resolve issues in accordance with the Disputes Resolution Process set out in clause 17 of this Agreement.
(b) Application to the Employer to release the employee must be in writing and be provided with no less than 14 days’ notice of the proposed training.
(c) The granting of leave pursuant to this clause will be subject to the Employer being able to make adequate staffing arrangements during the period of leave.
(d) Employees on leave approved in accordance with this clause, will be paid without loss of earnings (excluding shift penalties) for rostered time hours.
(e) All expenses (such as travel, accommodation and meals) associated with or incurred by the employee attending the training course as provided will be the responsibility of the employee.

(hh) At Appendix 1 - Definitions, by deleting clause (l) - Unindentured Tradesperson (with subsequent renumbering).

(ii) At Appendix 2 - Example Rosters - by replacing the text as follows:

EXAMPLE LOCAL ROSTER
(a) The roster below provides an example of a potential local RDO roster for a Project.
The key principles of the example roster below are:

(1) Regular rostered overtime Monday to Friday for all employees
(2) Overtime may be available for employees on weekends
(3) Hours worked Monday to Friday as a minimum for all employees
(4) The employee will be advised what Roster Cycle he /she is required to work in their offer of employment
(5) The Roster Cycles may be staggered with up to four (4) separate cycles (eg A – D)
(6) Each Roster Cycle includes the ability for employees to:

(i) Take a combination of 2 RDOs, either on the Monday and Tuesday or Thursday and Friday following the completion of a four week roster cycle, in accordance with the four (4) week roster cycle in which the employee is assigned; or
(ii) To bank a maximum of six (6) RDOs, and where agreed with the Employer, use for a specific purpose (eg “Annual Holidays”); or to have those six (6) banked RDOs paid out; or
(iii) Elect to bank all accrued RDOs and have those paid out upon termination of employment.

(7) The Employer, by agreement with the affected employee or employees, may substitute a designated RDO for another day to allow greater continuity of operations.
(8) The Employer will not be required to pay overtime rates for any RDO worked in the above circumstances.
(9) RDOs will be paid out at the employee’s Base Hourly Rate

(b) The example Roster Cycle A below is a roster based on the employee electing to accrue their RDOs. Employees have the option to accrue and bank six (6) RDOs and use for a specific purpose such as annual leave or they may elect to have the RDOs paid out. The employee also has the option of banking all accrued RDOs and having them paid out upon termination of employment.
The shaded days are weekend days. All other days are required work days. The rosters detailed below do not take into account paid out rest breaks when calculating overtime.

Roster Cycle A	Week 1							Week 2							Total
	M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 ordinary hours
RDO Accrual	0.8	0.8	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	-	2	2	2	2	2	-	-	20 hours
Double Time	-	-	-	-	-	-	-	-	-	-	-	-	-	-	N/A
Week 3							Week 4							Total
M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 ordinary hours
RDO Accrual	0.8	0.8	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	-	2	2	2	2	2	-	-	20 hours
Double Time	-	-	-	-	-	-	-	-	-	-	-	-	-	-	N/A

(c) The example Roster Cycle B below is a roster based on the employee electing to take their accrued RDOs upon the completion of four weeks worked. Roster B requires employees, who elect to take their RDOs, to take them on Thursday and Friday of the last week of the work cycle.
The shaded days are weekend days or potential RDO days, dependent upon employee’s elective. All other days are required work days. The rosters detailed below do not take into account paid out rest breaks when calculating overtime.

Roster Cycle B	Week 1							Week 2							Total
	M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 ordinary hours
RDO Accrual	0.8	0.8	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	-	2	2	2	2	2	-	-	20 hours
Double Time	-	-	-	-	-	-	-	-	-	-	-	-	-	-	N/A
Week 3							Week 4							Total
M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	RDO (7.2)	RDO (7.2)	-	-	72 ordinary hours
RDO Accrual	0.8	0.8	0.8	0.8	0.8	-	-	0.8	0.8	0.8	-	-	-	-	6.4 hours RDO accrual
Time and a Half	2	2	2	2	2	-	-	2	2	2	-	-	-	-	16 hours
Double Time	-	-	-	-	-	-	-	-	-	-	-	-	-	-	N/A

(d) The example Roster Cycle C is based on the same principals as Roster B with the exception that the RDOs, should they be elected to be taken, will be required to be taken on the Monday and Tuesday following the completion of their work cycle. Roster C is based on an employee commencing their work cycle mid-week and having already completed a work cycle.

Roster Cycle C	Week 1							Week 2							Total
	M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	RDO (7.2)	RDO (7.2)	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 ordinary hours
RDO Accrual	-	-	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	6.4 hours RDO accrual
Time and a Half	-	-	2	2	2	-	-	2	2	2	2	2	-	-	16 hours
Double Time	-	-	-	-	-	-	-	-	-	-	-	-	-	-	N/A
Week 3							Week 4							Total
M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 ordinary hours
RDO Accrual	0.8	0.8	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	-	2	2	2	2	2	-	-	20 hours
Double Time	-	-	-	-	-	-	-	-	-	-	-	-	-	N/A

EXAMPLE NON-LOCAL ROSTER
(a) Roster Cycle A below provides an example of a potential non-local roster for a Project.
The key principals of the example roster below are:

(1) Commencement of the roster cycle on Wednesday
(2) Last day of roster cycle (28^th day) is Tuesday in Week 4 – 4 hours worked
(3) Regular rostered overtime Monday to Saturday for all employees, with 10 hours worked weekdays and 8 hours worked on Saturday
(4) Additional overtime may be available for employees on Sundays when required
(5) Accrued RDOs paid out during R&R period or upon termination from Project

The grey shaded days are days upon which work is not rostered and the noted R&R areas denote the non-worked R&R period. All other days are required work days. The rosters detailed below do not take into account paid out rest breaks when calculating overtime.

Roster Cycle A	Week 1							Week 2							Total
	M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	R&R	R&R	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	57.6 ordinary hours
RDO Accrual	-	-	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	6.4 hours RDO accrual
Time and a Half	-	-	2	2	2	2	-	2	2	2	2	2	2	-	20 hours
Double Time	-	-	-	-	-	6	-	-	-	-	-	-	6	-	12 hours
Week 3							Week 4							Total
M	T	W	TH	F	S	S	M	T	W	TH	F	S	S
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 ordinary hours
RDO Accrual	0.8	0.8	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	8 hours RDO accrual
Time and a Half	2	2	2	2	2	2	-	2	2	2	2	2	2	-	24 hours
Double Time	-	-	-	-	-	6	-	-	-	-	-	-	6	-	12 hours
Week 5							Total
M	T	W	TH	F	S	S
Ordinary Hours Paid	7.2	7.2	R&R	R&R	R&R	R&R	R&R	14.4 ordinary hours
RDO Accrual	0.8	0.8	-	-	-	-	-	1.6 hours RDO accrual
Time and a Half	2	-	-	-	-	-	-	2 hours
Double Time	-	-	-	-	-	-	-	N/A

(b) The R&R period officially starts on Wednesday, the day following the 28^th day worked. A maximum of seven (7) days of R&R is able to be taken with a re-commencement of work at the normal start time on the following Wednesday.
(c) The last working day or shift (day 28) worked requires the employee to work four (4) hours. The employee is also paid an additional four (4) hours as per clause 10.5 to enable them to ready themselves for R&R travel. Such payment is paid and counted as “time worked” where the last working day or shift is a Monday – Friday day or shift. The payment will not be deemed as time worked and shall be paid at ordinary time should the last working day or shift of an employees’ work roster be a weekend day or shift.
(d) The initial work cycle may be longer or shorter duration than the 28 days in order for employees to be placed within an existing roster cycle. In such instances the provisions of subclause 10.5(c) will apply.

(e) Subject to a Project’s requirements, variations of rosters will be determined by the Employer to ensure that a roster that best suits the operational requirements of that Project are implemented. Various factors as outlined in clause 9 of this Agreement will be considered during this process.

(jj) By updating Appendix 4 as follows:

(a) Weekly All Purpose Wage

Level	From 01/11/14	From 01/05/15	From 01/11/15	From 01/05/16	From 01/11/16	From 01/05/17
A	$1,685.79	$1,727.93	$1,771.13	$1,815.41	$1,860.79	$1,907.31
B	$1,652.93	$1,694.25	$1,736.60	$1,780.02	$1,824.52	$1,870.13
C	$1,620.10	$1,660.61	$1,702.12	$1,744.68	$1,788.29	$1,833.00
D	$1,587.90	$1,627.60	$1,668.29	$1,709.99	$1,752.74	$1,796.56
E	$1,517.21	$1,555.14	$1,594.01	$1,633.86	$1,674.71	$1,716.58

(b) Weekly All Purpose Allowances

Allowance	From 01/11/14 $ per week	From 01/05/15 $ per week	From 01/11/15 $ per week	From 01/05/16 $ per week	From 01/11/16 $ per week	From 01/05/17 $ per week
Leading Hand
(i) 1 to 9 employees	$76.88	$78.80	$80.77	$82.79	$84.86	$86.98
(ii) 10 to 19 employees	$114.80	$117.67	$120.61	$123.63	$126.72	$129.89
(iii) 20 or more employees	$153.75	$157.59	$161.53	$165.57	$169.71	$173.95
Licensed Riggers, Dogmen and Scaffolders	$38.93	$39.90	$40.90	$41.92	$42.97	$44.05
Tradespersons Tool Allowance	$44.00	$45.10	$46.23	$47.39	$48.57	$49.79
Tradespersons Allowance	$89.91	$92.16	$94.46	$96.83	$99.25	$101.73
Plumbing and/or Electrical Licence	$58.36	$59.82	$61.32	$62.85	$64.42	$66.03
Loft or Tower Crane	$87.51	$89.70	$91.94	$94.24	$96.60	$99.01

Mobile Crane

(i) Up to 80t	$19.44	$19.93	$20.43	$20.94	$21.46	$22.00
(ii) Over 80 and up to 120t	$68.13	$69.84	$71.58	$73.37	$75.20	$77.08
(iii) Over 120 and up to 300t	$77.80	$79.74	$81.74	$8378	$85.87	$88.02
(iv) Over 300t	$87.54	$89.72	$91.97	$94.27	$96.62	$99.04
(v) Over 500t	$94.89	$97.27	$99.70	$102.19	$104.75	$107.36
(i) Welder—Tested	$38.93	$39.90	$40.90	$41.92	$42.97	$44.05
(ii) Welder — Special Class	$68.13	$69.84	$71.58	$73.37	$75.20	$77.08
(iii) Welder—Special Class Exotic Materials	$119.24	$122.22	$125.27	$128.41	$131.62	$134.91
(iv) Instrumentation Tradesperson	$38.93	$39.90	$40.90	$41.92	$42.97	$44.05
(v) Instrumentation Tradesperson—Complex Systems	$68.13	$69.84	$71.58	$73.37	$75.20	$77.08
(vi) Electrical/Mechanical Tradesperson Special Class	$68.13	$69.84	$71.58	$73.37	$75.20	$77.08
(vii) Control Systems Tradesperson	$68.13	$69.84	$71.58	$73.37	$75.20	$77.08
(viii) Instrumentation and Control Tradesperson	$175.09	$179.47	$183.95	$188.55	$193.27	$198.10
(ix) Electronics Tradesperson	$175.09	$179.47	$183.95	$188.55	$193.27	$198.10

(c) Weekly Flat Allowances

Allowance	From 01/11/14 $ per week	From 01/05/15 $ per week	From 01/11/15 $ per week	From 01/05/16 $ per week	From 01/11/16 $ per week	From 01/05/17 $ per week
First Aid Attendant	$19.78	$20.28	$20.78	$21.30	$21.84	$22.38

[4] The variation is approved and will come into operation on 6 January 2015.

[5] A consolidated copy of the Agreement is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, AE407697  PR559699>