WESTLINK M7 PROJECT AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notification under section 130 by Employers First, industrial organisation of employers.
(No. IRC 6025 of 2003)
Before Commissioner
Tabbaa
|
31 March 2004
|
AWARD
Arrangement
Clause No. Subject Matter
1. Duration
2. Definitions
3. Objectives
4. Application
5. Performance
Incentive Payment (PIP)
6. Industry
Standards
7. Occupational
Health, Safety and Rehabilitation
8. Dispute Settlement
Procedures
9. Safety
Dispute-Settling Procedures
10. Monitoring
Committee
11. Productivity
Initiatives
12. Immigration
Compliance
13. Long
Service Compliance
14. Union
Representation
15. Protective
Clothing
16. Workers' Compensation
and Insurance Cover
17. Apprentices
18. Training
and Workplace Reform
19. Anti-Discrimination
20. Personal/Carer's
Leave
21. Project
Close-Down Calendar
22. Industry
Convention
23. Single
Bargaining Unit
24. Mobile
Crane Safety
25. Mobile
Plant
26. No
Precedent
27. No Extra
Claims
Annexure A - Code of Compliance Framework
Annexure B - Parties and Classifications
Annexure C - Project Close-Down Calendars 2004 and 2005
Annexure
D - Authority to Obtain from DIMA Details of Immigration Status
Annexure E - Westlink M7 Site Map
1.
Duration
This Project Award shall operate from 31 March 2004 until
Practical Completion of the Project with the exception of clause 5, which shall
operate from 1 February 2004.
2.
Definitions
"ALJV" means the unincorporated joint venture
between Abigroup Contractors Pty Ltd ACN 000 201 516 and Leighton Contractors
Pty Ltd ACN 000 893 667
"Awards" means those Awards listed in Annexure B.
"Employee" means a person engaged by an Employer
and who performs work on the Project in the classifications set out in Annexure
B. This Award does not apply to direct
employees of ALJV who are not "Employees" as defined in this Award.
"Employer" means a subcontractor engaged on the
Project.
"Enterprise Agreement" means an agreement
registered or certified under the Workplace Relations Act 1996 (CTH) or
approved under the Industrial Relations Act 1996 (NSW).
"EHS&R" means Environment Health Safety and
Rehabilitation.
"Code" means the New South Wales Government Code
of Practice for the Construction Industry.
"Monitoring Committee" means the committee
established under clause 10 of this Project Award.
"Parties" means the ALJV, the Employers and the
Unions referred to in Annexure B.
"Practical Completion" means the completion of the
motorway to a standard that allows the motorway to be opened to public traffic.
"Project Award" means the Westlink M7 Project
Award made between the Parties.
"Project Calendar" means the calendar in Annexure
C.
"Project Director" means the individual appointed
by ALJV as the Project Director.
"Project Site" means the area designated in blue
on the map included at Annexure E.
"Project" means the construction works on the Project
Site contracted between Westlink Motorway Limited and the RTA for the
construction of the Westlink M7.
"Construction Director" means the individual
appointed by ALJV as the Construction Director.
"Safety Committee" means the site safety committee
formed under the Occupational Health and Safety Act (NSW) 2000.
"The Westlink M7 Project" is the construction of
the 40km motorway connecting the M5/Hume Highway at Prestons and the M2
Motorway at West Baulkham Hills.
"Union Delegate" means the Employee who is the
accredited representative of each Union on the Project.
"Unions" means each of the Unions listed in
Annexure B.
3.
Objectives
The Parties agree to continue to develop and implement the
following objectives in respect of the following key areas on the Project:
(a) Improve
productivity by initiatives aimed at:
(i) Communication,
consultation and relationships between Employer, Employees and Unions
(ii) Health and
safety
(iii) Training and
skill formation
(iv) Flexible
workplace practices
(b) Provide good
wages and conditions to all Employees engaged on the Project
(c) Ensure that
subcontractors comply with the provisions of this Project Award, Awards and/or
Enterprise Agreements and legislative requirements
(d) Promote and implement
improved work methods and productivity
(e) Promote
compliance with the Code (see Annexure A)
(f) Complete the
Project on time or earlier to quality requirements, and within budget
(g) Adopt a
co-operative and non-adversarial approach to all industrial relations issues
(h) Assist in
developing a harmonious relationship between ALJV, subcontractors, Unions and
Employees in respect of this Project
(i) Ensure
occupational health and safety on the Project is a priority for subcontractors,
Unions and Employees
(j) Promote a
work/life balance for Employees
(k) Implement
forms of work organisation which encourage the use and acquisition of skills
and continual learning
(l) Improve
quality of work
(m) Increase the
scope of subcontract work packages to promote genuine skill enhancement and
acquisition by Employees
(n) Promote a
career structure for all Employees based on skill enhancement, competencies and
increased job satisfaction
(o) Provide
quality facilities and amenities
(p) Provide a
forum for dispute resolution between subcontractors, the Unions and ALJV
(q) Implementation
of this Award and compliance with all relevant statutory provisions
(r) Improve the
environment
(s) Improved compliance
by subcontractors with applicable awards and/or enterprise agreements and
legislative requirements
(t) Enhancing job
opportunities for persons who have a legal right to work including persons who
wish to take on apprenticeships or traineeships
(u) Note that
Union parties to this Project Award have an objective that Employers have an
appropriate Enterprise Agreement in place.
4.
Application
4.1 This Project
Award shall be known as the Westlink M7 Project Award, and shall cover work
carried out by Employees on the Project Site.
4.2 Subject to
this Award, where subcontractors are engaged on the Project, the relevant
contractor (including ALJV) shall make it a condition of any contract that the
subcontractor must comply with this Project Award and, in particular, engage
Employees on conditions no less favourable than those contained in clause 5,
Performance Incentive Payment and clause 6, Industry Standards.
4.3 This Project
Award will apply to work done on the Project by the Employees for the period
the Employer engages the Employees to work on the Project.
4.4 This Project
Award is generally intended to supplement and co-exist within the terms of
existing Enterprise Agreements and Awards and its primary purpose is to provide
a framework for the Employers, the Labor Council of New South Wales and the
Unions, to manage those issues on the Project which affect more than one
Employer.
5.
Performance Incentive Payment (PIP)
5.1 The Parties
agree that, in recognition of implementing the productivity initiatives in
clause 11, meeting construction programme requirements and the achievement of
on time or early Practical Completion, a performance incentive payment will
apply on the Project in accordance with this clause to provide a genuine
incentive to Employees.
5.2 Employees will
be entitled to a PIP. Payment of the
PIP will be:
(a) $4.00 per hour
PIP from 1 February 2004.
(b) $4.50 per hour
PIP from 1 March 2004.
The PIP is payable for all time worked on the Project and
is not additional to any project allowance, site allowance or productivity
allowance payable under an Employer’s Award or Enterprise Agreement. However, if the Employer’s Award or
Enterprise Agreement provides a project allowance, site allowance or productivity
allowance that is less than the PIP, the difference between the allowance and
the PIP will be payable to the Employee so that he/she receives a total
allowance equal to the PIP payable under this Project Award.
5.3 The PIP shall
be calculated on a "flat" hours worked basis only, and paid weekly,
and shall not include any calculation of Award or other entitlements (for
example, it will not be an "all-purpose allowance" and will not
attract any penalty or premium).
6.
Industry Standards
It is recognised by the Parties that the size, location and
importance of the Project warrants the implementation of the following Project
standards:
6.1 Employee
Safety Net Ordinary-Time Earnings
The Parties agree that it is beneficial to establish on
the Project a minimum safety net for ordinary-time earnings applicable to
Employees who are not covered by an Enterprise Agreement.
The minimum safety net ordinary earnings will be $15.00
per hour (or a proportionate amount for juniors and apprentices) applicable to
Employees who are not employed under an Enterprise Agreement and who would
otherwise receive a base rate of pay less than $15.00 per hour.
6.2 Superannuation
Employers will make superannuation contributions of
$90.00 per week or 9% of each Employee’s ordinary weekly wage (whichever is the
greater) in accordance with the Superannuation Guarantee (Administration)
Act 1992 into a super fund nominated in the relevant industrial instruments
(being C+BUS, NESS, STA, TWU or other schemes approved by the Parties) or in
accordance with legislation.
6.3 Redundancy
The Employers will make a contribution of $71.00 per
week into ACIRT or MERT or other schemes approved by the Parties.
6.4 Workers'
Compensation Top-Up/24 Hour Accident Insurance
Each Employer will provide Workers' Compensation
Top-Up/24 Hour Accident Insurance with the U-Plus scheme or other similar
scheme, up to a maximum cover of $1000.00 per week.
6.5 Project
Mortality Cover
During the life of this Project Award, mortality cover of
$25,000.00 will be provided for Employees in addition to any other
payment. In the event of an accident
while working on the Project Site that results in the death of an Employee, a
lump sum payment of $25,000.00 will be made to the next of kin of the Employee.
6.6 Transport
Drivers
(a) Employees -
Rates of Pay
This Award does not apply to off-site or purely
incidental activities such as delivery of site materials or couriers, except
for Transport Award drivers who are required to have a regular involvement with
the Project Site in excess of two hours per day, who will be paid, in addition
to his/her Award or Enterprise Agreement rate of remuneration, any applicable
PIP. Lorry Owner Drivers are not
entitled to the provision of the Award.
(b) Contract
Carrier/Lorry Owner Driver
All Contract Carriers/Lorry Owner Drivers involved in
the Transport Industry engaged on the Project shall be paid the rates of pay
applicable under the Transport Industry Excavated Materials, Contract
Determination published 24 October 1997 (301 I.G. 1082) for the cartage of
materials to, on and from the site.
(c) GST
Rates paid to contactor’s carriers, including any
applicable project productivity allowance, shall be exclusive of GST. A separate amount equal to 10% of the value
of the remuneration payable shall be paid to the carrier for contracts of
carriage (the GST amount). The total
fee payable to the contract carrier shall be the sum of the remuneration
payable and the GST Amount.
7.
Occupational Health, Safety and Rehabilitation
7.1 Induction
(a) All Employees
must attend a site induction course on commencement of engagement on site.
(b) The Parties
recognise the OHS&R induction training provided by accredited blue card
providers for casual and permanent transport workers who fall within the scope
of this Project Award.
7.2 Occupational
Health and Safety Plans
(a) All Employers
must submit a safety, health and rehabilitation management plan. These plans should include evidence of:
(i) risk assessment
of their works
(ii) hazard
identification, prevention and control
(iii) planning and
re-planning for a safe working environment
(iv) industry and
trade-specific induction of Employees
(v) monitoring
performance and improvement of work methods
(vi) reporting of
all incidents/accidents
(vii) compliance
verification
(viii) regular
OHS&R meetings, inspections and audits of the Project.
7.3 The Safety
Committee
(a) The Safety
Committee will be properly constituted.
All members of the Safety Committee will undertake agreed occupational
health and safety training with a certified provider.
7.4 Safety
Procedures
(a) The Parties
acknowledge and agree that all Parties are committed to safe working
procedures.
(b) If the ALJV
Construction Director or the Safety Committee is of the opinion that an
Employee has committed a serious breach of either the occupational health and
safety policy, legislation or the relevant safety management plan (or any other
agreed safe working procedures), the Construction Director will aim to resolve
the issue. This may include the
implementation of counselling or disciplinary action or in extreme
circumstances, and solely at ALJV’s discretion, cancellation of an Employer's
contract or withdrawal of an Employee’s right to work on the Project.
(c) The Parties
agree that, pursuant to the Code of Practice, in the event that an unsafe
condition exists, work is to continue in all areas not affected by that condition
and those Employers may direct Employees to move to a safe place of work. No Employee will be required to work in any
unsafe area or situation.
7.5 OH&S
Industry Induction
No person will be engaged on the Project Site unless
he/she has completed the WorkCover NSW accredited General Construction OHS
Induction course.
7.6 Formwork
Safety
All persons engaged on the erection or dismantling of
formwork will have the relevant WorkCover Formwork Certificate of
Competency. Where an Employee does not
have a Certificate of Competency, a certified provider will be contacted to
assess the qualifications of the relevant Employee. Currently certified providers include Comet and TAFE.
7.7 Temporary
Power/Testing and Tagging
In order to maintain the highest standards of safety in
regard to the use of electricity during construction, it is agreed that the
temporary installation is installed strictly in accordance with AS 3012
(1995). All work is to be carried out
by qualified electrical tradespersons.
Testing and tagging is to be carried out only by a qualified electrical
tradesperson.
8.
Dispute Settlement Procedures
One of the aims of this Project Award is to eliminate and
prevent lost time in the event of a dispute and to achieve prompt resolution of
any dispute.
8.1 Employer-Specific
Disputes
In the event of a dispute or conflict occurring
specifically between an Employer and its Employees or their representative
Union, the following steps will be adopted.
The Parties to the dispute will genuinely endeavour to resolve the
dispute at the earliest opportunity:
(a) Discussion
between those directly affected will occur.
(b) Discussion
between site management representatives of the Employer and the Union delegate
will occur if (a) fails.
(c) Discussion
between site management representatives of the Employer and the Union organiser
will occur if (b) fails.
(d) Discussion
between senior management of the Employer, ALJV and the appropriate Union
official will occur if (c) fails.
(e) Discussion between
the Secretary of the relevant Union (or nominee) and ALJV’s Construction
Director and/or ALJV’s Project Director (or their nominee) will occur if (d)
fails.
(f) If the
dispute is not resolved after step (e), parties to the Project Award may notify
the dispute to the Industrial Relations Commission of New South Wales, and
request that the Industrial Relations Commission of New South Wales resolve the
dispute pursuant to its powers set out in the Industrial Relations Act
1996 (NSW).
(g) Work shall continue
without interruption or dislocation during discussion and negotiations
concerning the dispute.
8.2 Project-Wide
Disputes
In the event of a dispute or conflict affecting more
than one Employer occurring, the following procedure will be adopted. The Parties to the dispute will genuinely
endeavour to resolve the dispute at the earliest opportunity:
(a) Discussion
between those directly affected will occur.
(b) Discussion
between site management representatives of ALJV and the Union delegate will occur
if (a) fails.
(c) Discussion
between site management representatives of ALJV and the Union organiser will if
(b) fails.
(d) Discussion
between senior management of ALJV and the appropriate Union official will occur
if (c) fails.
(e) Discussion
between the Secretary of the relevant Union (or nominee) and ALJV’s
Construction Director and/or ALJV’s Project Director (or their nominee) will
occur if (d) fails.
(f) If the
dispute is not resolved after step (e), Parties to the Project Award may notify
the dispute to the Industrial Relations Commission of New South Wales, and
request that the Industrial Relations Commission of New South Wales resolve the
dispute pursuant to its powers set out in the Industrial Relations Act 1996
(NSW).
(g) Work shall
continue without interruption or dislocation during discussion and negotiations
concerning the dispute.
8.3 Demarcation
Disputes
In the event that a dispute arises which cannot be
resolved between the relevant Unions, the Unions agree to the following dispute-settling
procedure:
(a) No industrial
action is to take place: the status quo that existed prior to the dispute must
prevail and work is to continue normally without prejudice to any of the
parties.
(b) Discussions
between the Labor Council of New South Wales and the Unions to try to resolve
the dispute will occur at the earliest opportunity.
(c) If the dispute
is not resolved after step (b), either Union may notify the dispute to the
Industrial Relations Commission of New South Wales and request that the
Industrial Relations Commission of New South Wales resolve the dispute pursuant
to its powers set out in the Industrial Relations Act 1996 (NSW).
8.4 Procedures to
Prevent Disputes regarding Non-Compliance
(a) The Parties
recognise that, given the size and complexity of the Project:
(i) a variety of
subcontractors will be engaged to work on the Project; and
(ii) those
subcontractors may be bound by a variety of industrial instruments, including
Federal and State Awards, Certified Agreements, and State Enterprise
Agreements.
(b) ALJV intends
during the life of this Project Award to engage, for the most part,
subcontractors which operate substantial businesses. However, it will also be the case that some of the subcontractors
engaged, and some of the sub-subcontractors engaged in turn by those
subcontractors, particularly those engaged to perform smaller packages of work
involved in the Project, will operate smaller businesses. Notwithstanding this, it is not the intent
of this clause to allow pyramid subcontracting generally.
(c) It is in the
interests of all Parties that the subcontractors engaged to work on the
Project:
(i) demonstrate a
history of, and commitment to, future compliance with all relevant legal
obligations; and
(ii) recognise
that their Employees should generally be engaged on terms and conditions
similar (but not necessarily identical) to those enjoyed by persons performing
similar work in the civil engineering construction industry.
(d) For these reasons,
ALJV will endeavour to engage subcontractors (and require those subcontractors
in turn also only to engage sub-subcontractors) which:
(i) comply with
the Code;
(ii) comply with
their obligations to pay or provide for:
(a) remuneration
(including over-award payments such as contributions to redundancy schemes);
(b) annual leave;
(c) long service
leave;
(d) workers’
compensation insurance;
(e) superannuation
fund membership and contributions; and
(f) payroll tax.
(iii) demonstrate a
reasonable awareness of the industrial instruments which regulate the
employment of their Employees;
(iv) agree to comply
with laws applicable to them, including industrial instruments, industrial
legislation, anti-discrimination legislation and occupational health and safety
legislation during their engagement; and
(v) generally have
a corporate history of industrial harmony, involving few (if any) breaches of
industrial instruments, discrimination complaints and occupational health and
safety prosecutions.
(e) With the aim
of achieving this result, ALJV will:
(i) before each
subcontractor begins work on site, require the subcontractor to provide to ALJV
documentation (on the subcontractor's letterhead and signed by an authorised
person) verifying compliance in the preceding 12 months with all the
obligations referred to in subparagraphs (i) and (ii) of paragraph (d) above;
and
(ii) monitor
subcontractor compliance by:
(a) checking, on a
monthly basis, payments made by subcontractors in relation to superannuation,
redundancy and extra insurance to ensure that:
I. payments for
Employees have been made as required; and
II. subcontractors
have not introduced arrangements (for example, ‘all-in’ payments and
‘cash-in-hand’ payments) designed to avoid tax and other statutory
obligations. If any such arrangements
are identified, ALJV will take immediate steps to ensure that they are
rectified and that any employee affected by any such arrangement receives all
relevant statutory entitlements.
(b) in accordance
with section 127 of the Industrial Relations Act 1996 of New South
Wales, section 175(b) of the Workers Compensation Act 1987 and Part 5B
s1G-31J of the Payroll Tax Act 1971, obtaining from each
subcontractor on a regular basis a Subcontractor Statement Regarding Workers
Compensation, Pay-roll Tax and Remuneration.
(c) responding
promptly, subject to any legal restrictions, to any concerns raised by an
accredited Union delegate or Union official about the conduct of subcontractors
in respect of matters in this Project Award.
(d) In particular,
the Parties will not condone the practice of treating a genuine employee as if
he were a subcontractor for the purposes of avoiding tax and other statutory
obligations. If ALJV becomes aware that
a particular subcontractor and his employees are engaged in such practice, ALJV
will exercise its powers under the subcontract, including its discretionary
powers to terminate the subcontract, and remove the offending company and
employees from the site unless the Parties have otherwise agreed to allow the
subcontractor to remain on site.
Any disagreements under this clause shall be referred
to the Monitoring Committee in accordance with clause 10.
8.5 No payment
shall be made to Employees for time spent engaged in industrial action as
defined in relevant legislation (including any industrial action arising from
an industrial, demarcation or safety dispute) unless payment is authorised or
ordered by either the Industrial Relations Commission of NSW or the Australian
Industrial Relations Commission.
9.
Safety Dispute-Settling Procedures
No Employee will be required to work in or on an unsafe area
on the Project. Where a safety problem
has been identified by the Safety Committee which prevents work from occurring
in any area, work shall cease in the immediate affected area only. Priority will be given to rectifying unsafe
access areas. If any access areas are
unsafe, Employees will use alternative safe access.
Should a safety dispute arise over whether one or more work
areas are safe or not, the following procedures shall apply:
(a) Employees
shall not leave the Project unless directed to do so by their Employer in the
event of an emergency;
(b) Immediate
inspection of the affected work areas will be carried out by both ALJV and
Employee representatives of the Safety Committee;
(c) ALJV will
select the sequence of inspections of areas;
(d) The inspection
shall identify the safety rectification work required in each area;
(e) As safety
rectification work is agreed for each area, all relevant Employees shall
immediately commence such rectification works;
(f) Upon
verification that such rectification has been completed, normal work will
resume progressively in each area;
(g) Should any
dispute arise as to the rectification work required to any area, then ALJV will
immediately call the designated WorkCover Authority inspector to recommend the
rectification work.
Nothing in this clause shall negate or contradict any rights
and or obligations under the Occupational Health and Safety Act 2000.
10.
Monitoring Committee
10.1 The Parties may
establish a committee to monitor the implementation of this Project Award.
10.2 This Monitoring
Committee, if established, will meet at regular intervals or as required during
construction on the Project.
10.3 The Monitoring
Committee will consider ways in which the aims and objectives of this Project
Award can be enhanced, which may include, but not be limited to, discussion of:
(a) Developing
more flexible ways of working;
(b) Enhancing
occupational, health and safety;
(c) Productivity
plans;
(d) Compliance
with the Project Award and other statutory requirements by Employers;
(e) Resolution of
issues in the application of this Project Award;
(f) The
Monitoring Committee members shall be nominated by and represent ALJV and the
subcontractors, the Labor Council of NSW and the Unions. The Committee will have six members, three
appointed by ALJV and representing ALJV and its subcontractors, and two
appointed by and representing the Unions and their members, and one appointed
by and representing the Labor Council of NSW.
The representative of the Labor Council of NSW shall be
delegated Chairperson, and be responsible for calling meetings, issuing agendas
and taking minutes.
11.
Productivity Initiatives
11.1 Learning
Initiatives
Each Employer shall comply with their workplace reform
initiatives outlined in their Enterprise Agreement.
11.2 Inclement
Weather
(a) The Parties to
this Project Award will collectively proceed towards the minimisation of lost
time due to inclement weather.
(b) Further, the
Parties are bound to adopt the following principles with regard to inclement
weather and idle time created by inclement weather:
(i) Adoption of a
reasonable approach regarding what constitutes inclement weather;
(ii) Employees
shall accept transfer to an area or site not affected by inclement weather if,
in the opinion of the Parties, useful work is available in that area or site
and that work is within the scope of the Employee’s skill, competence and
training consistent with the relevant classification structures (provided that
the Employer shall provide transport to such unaffected area where necessary);
(iii) Where the
initiatives described in paragraph (b) above are not possible, the use of
non-productive time may be used for activities such as relevant and meaningful
skill development; production/upgrade of skill modules; presentation and
participation in learning; planning and reprogramming of the Project;
(iv) All Parties are
committed to an early resumption of work following any cessation of work due to
inclement weather;
(v) The Parties
agree the practice of "one out, all out" will not occur.
11.3 Rostered Days
Off
(a) Subject to
clause 21, a procedure for the implementation of Rostered Days Off (RDO’s) will
be agreed on the Project, the purpose of which is to:
(i) Improve work/life
balance for Employees; and
(ii) Increase
productivity of the Project with the objective of meeting the Practical
Completion Date.
(b) A roster of
RDO’s will be prepared, following consultation with the workforce and Parties
to this Award.
(c) Records of
each Employee’s RDO accruals will be recorded on the Employee’s pay slip and
copies made available to the Employee, the Employee’s delegate or Union
official upon request.
11.4 Maximising
Working Time
The Parties agree that crib and lunch breaks may be
staggered for Employees so that work does not cease during crib and lunch. Amenities are to be maintained in a clean
and hygienic state.
11.5 Hours of Work
Ordinary hours of work shall be eight hours per shift
between 6.00am and 6.00pm Monday to Friday.
However, ordinary hours may commence from 5.00am by agreement between
the Employer, Employee and relevant Union.
12.
Immigration Compliance
12.1 The Parties are
committed to compliance with Australian immigration laws so as to ensure maximum
work opportunities for unemployed permanent residents and Australian
citizens. Employers will be advised by
ALJV of the importance of immigration compliance and ALJV’s requirement that no
illegal immigrants are to be engaged on the Project.
12.2 Employers are
required prior to Employees commencing work on site to check the legal right of
Employees to work. The authorisation
form attached to this Project Award as Annexure D may be used to assist in
providing evidence of the Employee’s legal status.
13.
Long Service Compliance
Employees will register with the NSW Long Service Payments
Corporation if required to do so under the NSW Building and Construction
Industry Long Service Payments Act 1986.
Employers engaged on site will be registered as an Employer under the
NSW Building and Construction Industry Long Service Payments Act 1986 if
the Act requires them to do so.
14.
Union Representation
14.1 Union officials
shall comply with all legislative requirements, produce their right of entry
permits, and observe the relevant Award and OH&S obligations for entry to
site.
14.2 Subject to all
legislative requirements, Union officials or their legal officers shall be
entitled to inspect all wage records and related documentation necessary to
establish that this Project Award, applicable Industrial Awards and legislation
is being applied.
14.3 Such
inspections shall not take place unless there is a suspected breach of the
Project Award, the Awards, or the Workplace Relations Act 1996 and/or
other statutory obligations for which a suspected breach has been specified in
writing to ALJV in advance of the inspection.
14.4 Union Delegates
and their Rights
(a) Rights of the
Delegate
(i) The parties
acknowledge it is the sole right of the Union and its members to elect the
delegate for the Project, who shall be recognised as the authorised
representative of the Union at the Project.
(ii) The delegate
shall have the right to approach or be approached by any Employee of the
Employer to discuss industrial matters with that Employee during normal working
hours (subject to the consent of the relevant Employee).
(iii) The delegate
shall be entitled to represent members in relation to industrial matters on the
Project, and without limiting the generality of that entitlement, is entitled
to be involved in representing members:
At all stages in the negotiation and implementation of
Enterprise Agreements or Awards or other industrial instruments;
The introduction of new technology and other forms of
workplace change;
Career path, reclassification, training issues; and to
initiate discussions and negotiations on any other matters affecting the
employment of members;
Ensuring that Employees on site are paid their correct
wages, allowances and other lawful entitlements;
To check with relevant industry schemes so as to ensure
that superannuation, long service leave and redundancy has been paid on time.
(iv) In order to assist
the delegate to effectively discharge his or her duties and responsibilities,
the delegate shall be afforded the following rights:
The right to reasonable communication with other
delegates, Union officials and management in relation to industrial matters,
where such communication cannot be dealt with or concluded during normal breaks
in work;
Reasonable paid time off work up to a maximum of 10
days to attend relevant Union training courses/forums;
Paid time off to attend meetings of delegates in the
industry, as authorised by the relevant Union.
(v) Reasonable
access to a telephone and meeting room will be made available to the delegates
of Employers.
(vi) There shall be
no deduction to wages where the Union requires a delegate to attend any Court
or Industrial Tribunal proceedings relating to industrial matters on the
Project.
15.
Protective Clothing
Employers will provide their Employees with the following
items of clothing and footwear which shall be Australian made where
practicable.
(a) Safety
Footwear
Appropriate safety footwear will be issued upon
commencement of work on the Project and will be replaced on a fair
wear-and-tear basis thereafter provided they are produced to the Employer for
inspection.
(b) Overalls,
Combination or Bib and Brace and Shirts or Trousers and Shirts
Two sets of protective clothing will be provided after
accumulated employment by an Employee of 152 hours and will be replaced on a
fair wear-and-tear basis provided they are produced to the Employer for inspection.
(c) Jackets
Each Employee, after accumulated employment on the
Project of 152 hours, shall be eligible to be issued with one jacket for cold
conditions, which will be replaced on a fair wear-and-tear basis thereafter provided
they are produced to the Employer for inspection.
The type of jacket issued to an Employee will be
determined by the nature of work performed to ensure that the jacket is not
unsafe for the work performed by each Employee.
(d) Equivalent
Clothing
Where documented evidence can be shown that the
equivalent protective clothing referred to in subclauses (a), (b) and (c) above
has been issued to any Employee within the last three-month period, then the
above will not apply.
Employers will consult with the Labor Council of NSW if
necessary to be provided with a list of Australian manufacturers who do not use
illegal or exploited labour in the manufacturing of their products.
16.
Workers' Compensation and Insurance Cover
16.1 Employers must
ensure that all persons that they engage to work on the Project are covered by
workers' compensation insurance.
16.2 ALJV will audit
Workers' Compensation Certificates of Currency from each Employer engaged on
site to ensure that the wages estimate and tariff declared for the type of work
undertaken is correct.
16.3 Employers and
their Employees must comply with the following steps to ensure expedited
payment of workers' compensation:
(a) All Employees
will report injuries to the Project first-aid officer and their supervisor at
the earliest possible time after the injury.
(b) All Employees
will comply with the requirements for making a workers' compensation claim,
including the provision of a WorkCover medical certificate, at the earliest
possible time after the injury. This
information will also be supplied to the Project first-aid officer and their
supervisor.
(c) In cases where
the Employee is unable to comply with the above, the relevant Employer will
assist in fulfilling requirements for making a claim.
16.4 Employers must
ensure that they are aware of and will abide by sections 63 to 69 of the Workers
Injury Management and Workers' Compensation Act 1998, which provide that:
(a) The Employer
shall keep a register of injuries/site accident book in a readily accessible
place on site;
(b) All Employees
must enter in the register any injury received by the Employee. The Employer must be notified of all
injuries on site immediately. The Employer
must notify the insurer within 48 hours of a significant injury;
(c) An Employer
who receives a claim for compensation must, within seven days of receipt,
forward the claim or documentation to their insurer;
(d) An Employer
who receives a request from their insurer for further specified information
must, within seven days after receipt of the request, furnish the insurer with
the information as is in the possession of the Employer or reasonably obtained
by the Employer;
(e) An Employer
who has received compensation money from an insurer shall forward such money to
the person entitled to the compensation within three working days.
16.5 Where there has
been a serious incident and/or accident which has resulted in a serious injury
or loss of life, the Employer shall notify WorkCover immediately and will also
complete the relevant accident notification form and send it to WorkCover.
17.
Apprentices
As part of the Project’s commitment to industry training, a
ratio of one apprentice to every four tradespersons within each Employer’s
workforce is to be maintained.
18.
Training and Workplace Reform
The Parties are committed to achieving improvements in
productivity and innovation through co-operation and reform. Employers are expected to demonstrate their
commitment to develop a more highly skilled workforce by providing their
Employees with career opportunities through appropriate access to training and
removing any barriers to the use of skills acquired.
19.
Anti-Discrimination
19.1 It is the intention
of the Parties bound by this Project Award to seek to achieve the object in
section 3(f) of the Industrial Relations Act 1996 to prevent and
eliminate discrimination in the workplace.
19.2 This includes
discrimination on the ground of race, sex, martial status, disability,
homosexuality, transgender identity, responsibilities as a carer and age.
19.3 It follows
that, in fulfilling their obligations under the dispute resolution procedure
prescribed by this Project Award, the Parties have obligations to take all
reasonable steps to ensure that the operation of the provisions of this Project
Award are not directly or indirectly discriminatory in their effects. It will be consistent with fulfilment of
these obligations for the Parties to make application to vary any provision of
the Project Award which, by its terms or operation, has a direct or indirect
discriminatory effect.
19.4 Under the Anti-Discrimination
Act 1977, it is unlawful to victimise an Employee because the Employee has
made or may make or has been involved in a complaint of unlawful discrimination
or harassment.
19.5 Nothing in this
clause is to be taken to affect:
(a) Any conduct or
act which is specifically exempted from anti-discrimination legislation;
(b) Offering or providing
junior rates of pay to persons under 21 years of age;
(c) Any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(d) A party to
this Project Award from pursuing matters of unlawful discrimination in any
State or federal jurisdiction.
19.6 This clause
does not create legal rights or obligations in addition to those imposed upon
the Parties by legislation referred to in this clause.
NOTES
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d)
of the Anti-Discrimination Act 1977
provides:
“Nothing in this Act affects … any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion.”
20.
Personal/Carer's Leave
20.1 Use of Sick
Leave
(a) An Employee,
other than a casual Employee, with responsibilities in relation to a class of
person set out in subparagraph (ii) of paragraph (c) of this subclause who
needs the Employee’s care and support, shall be entitled to use, in accordance
with this subclause, any current or accrued sick leave entitlement for absences
to provide care and support for such persons when they are ill. Such leave may be taken for part of a single
day.
(b) The Employee
shall, if required, establish, either by production of a medical certificate or
statutory declaration, the illness of the person concerned and that the illness
is such as to require care by another person.
In normal circumstances, an Employee must not take carer’s leave under
this subclause where another person has taken leave to care for the same
person.
(c) The entitlement
to use sick leave in accordance with this subclause is subject to:
(i) The Employee
being responsible for the care of the person concerned; and
(ii) The person
concerned being:
I. A spouse of
the Employee; or
II. A de facto
spouse who, in relation to a person, is a person of the opposite sex to the
first-mentioned person who lives with the first-mentioned person as the husband
or wife of that person on a bona fide domestic basis although not legally
married to that person; or
III. A child or an
adult child (including an adopted child, a stepchild, a foster child or an ex
nuptial child), parent (including a foster parent and legal guardian)
grandparent, grandchild or sibling of the Employee or spouse or de facto spouse
of the Employee; or
IV. A same sex
partner who lives with the Employee as the de facto partner of that Employee on
a bona fide domestic basis; or
V. A relative of
the Employee who is a member of the same household where, for the purposes of
this paragraph:
"relative" means a person related by blood,
marriage or affinity;
"affinity" means a relationship that one
spouse because of marriage has to blood relatives of the other; and
"household" means a family group living in
the same domestic dwelling.
(d) An Employee
shall, wherever practicable, give the Employer notice prior to the absence of
the intention to take leave, the name of the person requiring care and that
person’s relationship to the Employee, the reasons for taking such leave and
the estimated length of absence. If it
is not practicable for the Employee to give prior notice of absence, the
Employee shall notify the Employer by telephone of such absence at the first
opportunity on the day of absence.
20.2 Unpaid Leave
for Family Purpose
An Employee may elect, with the consent of the
Employer, to take unpaid leave for the purpose of providing care and support to
a member of a class of person set out in subparagraph (ii) of paragraph (c) of
subclause 20.1 above who is ill.
20.3 Annual Leave
(a) An Employee may
elect, with the consent of the Employer, subject to the Annual Holidays Act
1944 (NSW), to take annual leave not exceeding five days in single-day periods
or part thereof, in any calendar year at a time or times agreed by the parties.
(b) Access to
annual leave, as prescribed in paragraph (a) above, shall be exclusive of any
shutdown period provided for elsewhere under the Award.
(c) An Employee
and Employer may agree to defer payment of the annual leave loading in respect
of single-day absences until at least five consecutive annual leave days are
taken.
20.4 Time Off in
Lieu of Payment for Overtime
(a) An Employee
may elect, with the consent of the Employer, to take time off in lieu of
payment for overtime at a time or times agreed with the Employer within 12
months of the said election.
(b) Overtime taken
as time off during ordinary-time hours shall be taken at the ordinary-time
rate, that is, an hour for each hour worked.
(c) If, having
elected to take time as leave in accordance with paragraph (a) above, the leave
is not taken for whatever reason, payment for time accrued at overtime rates
shall be made at the expiry of the 12-month period or on termination.
(d) Where no
election is made in accordance with paragraph (a) above, the Employee shall be
paid overtime rates in accordance with the Award.
20.5 Make-up Time
(a) An Employee
may elect, with the consent of the Employer, to work "make-up time",
under which the Employee takes time off ordinary hours, and works those hours
at a later time, during the spread of ordinary hours provided in the Award at
the ordinary rate of pay.
(b) An Employee on
shift work may elect, with the consent of the Employer, to work "make-up
time" (under which the Employee takes time off ordinary hours and works
those hours at a later time at a later time), at the shift work rate which
would have been applicable to the hours taken off.
20.6 Rostered Days
Off
(a) An Employee
may elect, with the consent of the Employer, to take a rostered day off at any time.
(b) An Employee
may elect, with the consent of the Employer, to accrue some or all rostered
days off for the purpose of creating a bank to be drawn upon at a time mutually
agreed between the Employer and Employee, or subject to reasonable notice by the
Employee or the Employer.
(c) This subclause
is subject to the Employer informing each Union which is both party to the
Project Award and which has members employed at the particular enterprise of
its intention to introduce an enterprise system of RDO flexibility, and
providing a reasonable opportunity for the Unions to participate in
negotiations.
21.
Project Close-Down Calendar
For the purposes of this Project Award, the Parties agree
that the calendar in Annexure C will be adopted for the Project. The calendar has been produced with a view
to maximising quality leisure time off for all Employees. Accordingly, the Parties agree that on the
weekends identified in the calendar, no work shall be carried out.
Provided, however, where there is an emergency or special
client need, work can be undertaken on the weekends and adjacent RDO's as set
out in the calendar, subject to the agreement of the appropriate Union
secretary or nominee. In such
circumstances reasonable notice (where possible) shall be given to the Union
(or Union delegate).
22.
Industry Convention
The Parties are aware of the convention of some Employers
making payments or providing conditions to their Employees in excess of the
relevant Awards or Enterprise Agreements by private treaty for incentive
purposes or for the purpose of attracting labour.
The Parties agree that they will not seek to change the
terms of this Project Award as a result of a private treaty as described above
nor will they seek redress from any Employer.
23.
Single Bargaining Unit
This Project Award was negotiated by the Labor Council of
New South Wales on behalf of the Unions and by ALJV in its own right and on
behalf of the Employers.
24.
Mobile Crane Safety
Mobile cranes engaged on the Project will be certified by
Cranesafe Australia (NSW) or any other approved certifier as soon as
practicable. Once certified, a crane
will display a Cranesafe inspection label or that of an approved certifier. Mobile Cranes required to drive on public
roads shall be road registered.
25.
Mobile Plant
Subcontractors shall be required to complete the ALJV
"Incoming Plant Inspection Report" for all Mobile Plant employed on
the Project Site.
26.
No Precedent
The Parties agree not to use this Project Award as a precedent
and that this Project Award will in no way create a claim for flow-on of
on-site wage rates and conditions.
27.
No Extra Claims
The Employees and the Unions acknowledge that:
(a) this Project
Award exhaustively deals with all of the matters which the Parties wish to
regulate by this Project Award until the Practical Completion of the Project;
and
(b) they are
undertaking that, until the Practical Completion of the Project, they will not
pursue any extra claims (whether referred to in this Project Award or not); and
(c) they will take
no lawful action to support or further advance claims for a variation to this
Project Award or a further Project Award.
ANNEXURE A
CODE OF COMPLIANCE FRAMEWORK
Westlink Motorway Limited (WML) has contracted with the RTA
for the financing, design, construction, operation and maintenance of the
Western Sydney Orbital Project. WML has
contracted with the Abigroup Leighton Joint Venture (ALJV) to deliver its
obligations regarding design and construction.
ALJV will perform part of the work using persons directly
engaged by ALJV (ALJV Employees) and part of the work using persons employed by
subcontractors (Employees).
This Project Award is applicable only to Employees of
subcontract entities working on the Project Site.
This Project Award does not apply to ALJV Employees. ALJV Employees are covered by the Abigroup
Leighton Joint Venture Certified Agreement 2003-2006.
The RTA has advised ALJV and WML that their obligation
regarding compliance with any relevant Codes of Practice will be satisfied by
compliance with the:
New South Wales Code of Practice for the Construction
Industry (NSW Code); and
NSW Government Industrial Relations Management
Guidelines dated December 1999.
The RTA has advised that it is the ‘principal’ for the
purposes of the NSW Code which requires that any Project Award must deliver
time and/or cost benefits to the principal.
ALJV is contracted to open the WSO to public traffic by 14
August 2006. ALJV has set the Target
Completion Date at 31 December 2005 which requires that productive working time
on the Project be maximised. The
Parties have agreed to make this Western Sydney Orbital Project Award and
thereby commit themselves to promote and further the interests of the Roads and
Traffic Authority of NSW by delivering to the public a safe and efficient
motorway by December 2005. The Parties
agree that the intent of this Award is to provide surety over delivery of
construction in a safe manner and by the Target Completion Date.
The Parties will apply this Award on the basis that it does
not diminish the workplace arrangements of Employers that apply to their own
enterprises. The Parties further intend
that the application of this Award to the extent allowed under clause 4 will
simultaneously preserve the operation of subcontractors' own workplace
arrangements and allow them to effectively co-ordinate their work on the
Project.
The Parties recognise and agree to abide by the fundamental
tenets of this Award:
(a) The primacy
and integrity of individual enterprise agreements are not affected by this
Project Award.
(b) The Project
Award must maximise the safety environment and productive working time on the
Project.
(c) The Award must
comply with the NSW Code and deliver benefit to the RTA by allowing early
operation of the motorway.
ANNEXURE B
PARTIES AND CLASSIFICATIONS
PART 1
ALJV
PART 2
Unions:
The Labor Council of New South Wales (The Labor
Council)
Construction, Forestry, Mining and Energy Union (New
South Wales Branch) - Construction & General Division (CFMEU)
Communication, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia (NSW
Branch) - Plumbing Division
Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union, New South Wales Branch (also known as AMWU)
The Australian Workers' Union, New South Wales (AWU)
Electrical Trades Union of Australia, New South Wales
Branch (ETU)
Transport Workers' Union of New South Wales (TWU)
PART 3
Classifications:
Those classifications covered by the following Awards:
Federal Awards
National Building and Construction Industry Award 2000
National Metal and Engineering On-Site Construction Industry
Award 2002
Plumbing Industry (New South Wales) Award 1999
Sprinkler Pipe Fitters' Award 1998
Mobile Crane Hiring Award 2002
State Awards
Building and Construction Industry (State) Award
published 31 August 2001 (327 I.G. 279)
Electrical, Electronic and Communications Contracting
Industry (State) Award published 15 September 2000 (318 I.G. 645)
Plant, &c., Operators on Construction (State) Award
published 16 November 2001 (329 I.G. 625)
Plumbers and Gasfitters (State) Award published 25
February 2000 (313 I.G. 709)
Transport Industry (State) Award published 20 April
2000 (315 I.G. 192)
Metal, Engineering and Associated Industries (State)
Award published 8 June 2001 (325 I.G. 209)
General Construction and Maintenance, Civil and
Mechanical Engineering, &c. (State) Award published 21 December 2001 (330
I.G. 549)
Training Wage (State) Award 2002 published 26 April
2002 (332 I.G. 1248)
annexure C
PROJECT CLOSE-DOWN CALENDARS
2004 AND 2005
2004
|
|
|
|
|
|
Friday
|
April 9
|
Good Friday Public Holiday
|
Saturday
|
April 10
|
|
Sunday
|
April 11
|
Easter Sunday
|
Monday
|
April 12
|
Easter Monday Public Holiday
|
Tuesday
|
April 13
|
RDO
|
|
|
|
Saturday
|
April 24
|
|
Sunday
|
April 25
|
|
Monday
|
April 26
|
Anzac gazetted holiday
|
Tuesday
|
April 27
|
RDO
|
|
|
|
Saturday
|
June 12
|
|
Sunday
|
June 13
|
|
Monday
|
June 14
|
Queens Birthday Public Holiday
|
Tuesday
|
June 15
|
RDO
|
|
|
|
Saturday
|
October 2
|
|
Sunday
|
October 3
|
|
Monday
|
October 4
|
Labour Day Public Holiday
|
Tuesday
|
October 5
|
RDO
|
|
|
|
Saturday
|
December 4
|
|
Sunday
|
December 5
|
|
Monday
|
December 6
|
Union Picnic Day
|
Tuesday
|
December 7
|
RDO (if applicable)
|
2005
|
|
|
|
|
|
Monday
|
January 3
|
New Years Public Holiday
|
Wednesday
|
January 26
|
Australia Day Public Holiday
|
Thursday
|
January 27
|
RDO
|
Friday
|
January 28
|
RDO
|
Saturday
|
January 29
|
|
Sunday
|
January 30
|
|
|
|
|
Friday
|
March 25
|
Good Friday Public Holiday
|
Saturday
|
March 26
|
Easter Saturday Public Holiday
|
Monday
|
March 28
|
Easter Monday Public Holiday
|
Tuesday
|
March 29
|
RDO
|
|
|
|
Friday
|
April 22
|
RDO
|
Saturday
|
April 23
|
|
Sunday
|
April 24
|
|
Monday
|
April 25
|
ANZAC day
|
|
|
|
Saturday
|
June 11
|
|
Sunday
|
June 12
|
|
Monday
|
June 13
|
Queen’s Birthday Public Holiday
|
Tuesday
|
June 14
|
RDO
|
|
|
|
Saturday
|
October 1
|
|
Sunday
|
October 2
|
|
Monday
|
October 3
|
Labour Day Public Holiday
|
Tuesday
|
October 4
|
RDO
|
|
|
|
Saturday
|
December 3
|
|
Sunday
|
December 4
|
|
Monday
|
December 5
|
Union Picnic Day
|
Tuesday
|
December 6
|
RDO
|
Thursday
|
December 22
|
RDO
|
Friday
|
December 23
|
RDO
|
Saturday
|
December 24
|
|
Sunday
|
December 25
|
|
Monday
|
December 26
|
Christmas Day Public Holiday
|
Tuesday
|
December 27
|
Boxing Day Public Holiday
|
These dates are indicative and subject to the holidays being
gazetted. The Parties agree that the
Project Calendar for 2005 will be settled as close as possible to the dates
provided in this calendar.
ANNEXURE D
AUTHORITY
TO OBTAIN FROM DIMA DETAILS OF IMMIGRATION STATUS
I,
|
|
(Family name)
|
(Given name(s))
|
|
|
Date of birth:
|
Nationality:
|
|
|
Visa number:
|
Passport number:
|
|
authorise the
Department of Immigration and Multicultural Affairs (DIMA) to release by fax
to
|
|
(Name of employer
representative)
|
|
details of my
immigration status and entitlement to work legally in Australia.
|
|
This information
will only be made available to a representative of a principal contractor and
authorised
|
trade union officer
on request.
|
|
I also understand
the above-named will only use this information for the purpose of
establishing and
|
verifying only my
legal entitlement to work in Australia and for no other purpose.
|
|
|
Signed:
|
Dated:
|
|
|
Name of employer:
|
|
|
|
Phone:
|
Fax:
|
ANNEXURE E
WESTLINK M7 SITE MAP
Cannot be reproduced for Industrial Gazette - for access,
see IRC03/6025.
I. TABBAA, Commissioner.
____________________
Printed by the
authority of the Industrial Registrar.