BUILDING AND CONSTRUCTION INDUSTRY (STATE) AWARD
COMMISSION OF NEW SOUTH WALES
Application by Construction,
Forestry, Mining and Energy Union (New South Wales Branch), industrial
organisation of employees.
(No. IRC 1361 of 2004)
Before The Honourable
Justice Walton, Vice-President
10 June 2005
Mr Deputy President
1. Insert after
subclause 23.7, of clause 23, Payment of Wages, of the award published 31
August 2001 (327 I.G. 279), the following new subclause:
23.8 The employer
shall deduct Union membership fees (not including fines or levies) from the pay
of any employee, provided that:
(a) the employee
has authorised the employer to make such deductions in accordance with
subclause (e) herein;
(b) the Union shall
advise the employer of the amount to be deducted for each pay period applying at
the employer's workplace and any changes to that amount;
(c) deduction of
union membership fees shall only occur in each pay period in which payment has
or is to be made to an employee; and
(d) there shall be
no requirement to make deductions for casual employees with less than two
months' service (continuous or otherwise).
Note: The conditions of casual employment under this
award are set out in clause 13.2.
(e) The employee's
authorisation shall be in writing and shall authorise the deduction of an
amount of Union fees (including any variation in that fee effected in
accordance with the Union rules) that the Union advises the employer to
deduct. Where the employee passes any
such written authorisation to the Union, the Union shall not pass the written
authorisation on to the employer without first obtaining the employee's consent
to do so. Such consent may form part of
the written authorisation.
(f) Monies so
deducted from employees' pay shall be remitted to the Union on either a weekly,
fortnightly, monthly or quarterly basis at the employer's election, together
with all necessary information to enable the reconciliation and crediting of
subscriptions to employees' membership accounts, provided that:
(g) where the
employer has elected to remit on a weekly or fortnightly basis, the employer
shall be entitled to retain up to five per cent of the monies deducted; and
(h) where the
employer has elected to remit on a monthly or quarterly basis, the employer
shall be entitled to retain up to 2.5 per cent of the monies deducted.
(i) Where an
employee has already authorised the deduction of Union membership fees in
writing from his or her pay prior to this clause taking effect, nothing in this
clause shall be read as requiring the employee to make a fresh authorisation in
order for such deductions to commence or continue.
(j) The Union
shall advise the employer of any change to the amount of membership fees made
under its rules, provided that this does not occur more than once in any
calendar year. Such advice shall be in
the form of a schedule of fees to be deducted specifying either weekly,
fortnightly, monthly, or quarterly as the case may be. The Union shall give the employer a minimum
of two months' notice of any such change.
(k) An employee
may at any time revoke in writing an authorisation to the employer to make
payroll deductions of Union membership fees.
(l) Where an
employee who is a member of the Union and who has authorised the employer to
make payroll deductions of Union membership fees resigns his or her membership
of the Union in accordance with the rules of the Union, the Union shall inform
the employee in writing of the need to revoke the authorisation to the employer
in order for payroll deductions of union membership fees to cease.
(m) This clause
shall not apply to apprentices engaged by employers that are respondent to, or
otherwise bound by the National Building and Construction Industry Award 2000.
(n) In the case of
employers which currently deduct union membership fees, or whose payroll
facilities are carried out by way of an outsourcing arrangement, or whose
payroll calculations are made through the use of computerised means, from the
beginning of the first pay period to commence on or after 10th June 2005.
(o) In the case of employers
who do not fall within subparagraph (m) above, but who currently make
deductions, other than union membership fee deductions or mandatory deductions
(such as for taxation instalments or superannuation contributions) from
employees' pay, or have in place facilities to make such deductions, from the
beginning of the first pay period to commence on or after 12th September 2005.
(p) For all other
employers, from the beginning of the first pay period to commence on or after
12th December 2005.
paragraph 29.9 (a), of clause 29, Overtime
And Special Time, and insert in lieu thereof the following:
29.9 (a) (i) Subject
to paragraph (ii) below, an employer may require an employee to work reasonable
overtime at overtime rates or as otherwise provided for in this award.
(ii) An employee
may refuse to work overtime in circumstances where the working of such overtime
would result in the employee working hours, which are unreasonable.
(iii) For the
purposes of paragraph (ii) what is unreasonable or otherwise will be determined
having regard to:
(a) any risk to
employee health and safety;
(b) the employee's
personal circumstances including any family and carer responsibilities;
(c) the needs of
the workplace or enterprise;
(d) the notice (if
any) given by the employer of the overtime and by the employee of his or her
intention to refuse it; and,
(e) any other
variation shall take effect from the beginning of the first pay period to
commence on or after 10 June 2005.
M. J. WALTON J,
P. J. SAMS D.P.
B. W. O'NEILL, Commissioner.
the authority of the Industrial Registrar.