EA advice
Reg
offended
reg
8.5(1)(e)
Type of Clause
Actual Clause
Re-negotiation of
agreement
[Parties bound are] the Company in
respect to all of its employees engaged in
building and construction work in NSW.
However it is agreed the company may
approach the union for a regional specific
agreement.
This clause can be read as enabling
the company to approach the union
for a regional specific agreement. It
thereby deals with the renegotiation
of an agreement.
Parties to this Agreement will commence
negotiations for a replacement agreement
no later than six months prior to the
expiration of the Agreement.
The parties agree to review this
Agreement commencing five months
prior to its expiry with the aim of
developing a new Agreement.
Deals with renegotiation of agreement
Reg
8.5(1)(e)
It is my view that [the clause] is
prohibited content as it deals with the
issue of renegotiation of the
workplace agreement in contravention
of the regulation.”
Reg
8.5(1)(e)
Deals with re-negotiation of
Agreement.
reg
8.5(1)(e)
The direct reference to discussions
and meeting regarding a “future
agreement’ falls within the
parameters…relating to the
renegotiation of a future agreement.
It provides that the parties may
commence negotiations at least 3
months before the nominal expiry
dates of the agreement (sic)
Reg
8.5(1)(e)
POSSIBLE VALID CLAUSE
In addition, the parties to this Agreement
may agree to add, vary or delete any
terms of this Agreement or terminate this
Agreement, subject to such change or
termination being approved by the OEA.
The parties may commence discussion on
future regulation of employment no later
than 3 months before the nominal expiry
date of this Agreement.
No later than 3 months prior to the
nominal expiration of the this agreement
the parties may commence discussions
concerning a future agreement
The parties may commence negotiations
at least 3 months before the nominal
expiry date.
106744802 from EA
Reg
8.5(1)(e)
1
Type of Clause
Calling up other
industrial
instrument
Actual Clause
EA advice
In accordance with commitments given
throughout this agreement, local work
area agreements may be
negotiated…local work area agreements
will be negotiated to remove
inappropriate constraints on workplace
flexibility so as to ensure the competitive
nature of the workplace…Local work
area agreement will be negotiated at the
workplace by the relevant parties…
The employer is committed during the
life of this agreement and its
renegotiation to negotiate collectively in
respect of all of its employees and their
nominated representatives for the
purposes of making a new workplace
agreement pursuant to s170LJ (sic) of the
Workplace Relations Act and the
Workchoices legislation
The employer, JCC and staff undertake
to commence negotiating a new
agreement nine months prior to the
expiration of this agreement.
This agreement shall be read and
interpreted wholly in conjunction with
the Award. The terms of the Award
except those incapable of forming part of
this agreement shall be preserved as if set
out in this agreement.
Whilst confirming advice that such
local work area agreements are not
intended to sit outside the agreement
and realte to specific terms and
conditions, the wording of the clause
is ambiguous. Not able to conform is
offensive or not
Reg
offended
The clause deals with renegotiation if
the agreement during the life of this
agreement
Reg
8.5(8)
The clause deals with renegotiating
the agreement.
Reg
8.5(1)(e)
POSSIBLE VALID CLAUSE
The Agreement incorporates by
reference into the agreement terms of
the Award. The Award may contain
prohibited content but has not been
offered for examination. Unable to
provide notice therefore that the
agreement does not contain prohibited
content.
This agreement is supplementary to and
The terms of the award form part of
shall be interpreted wholly in conjunction the agreement. The OEA has not
with the…Award. The terms of the
considered the terms of the award in
…Award are expressly preserved
detail and [it should be considered] if
the award contains prohibited content.
106744802 from EA
2
Type of Clause
Paid leave for
union meeting
Restriction on
engagement of
independent
contractors
Actual Clause
EA advice
Employees will be eligible to attend a
meeting convened by the Union to
discuss their needs and expectations in
respect of future regulation of
employment.
If the company is having difficulty
tendering for work in the industry it is
agreed the union may convene a meeting
of employees during ordinary working
hours to review [legislative] changes
The delegate shall be afforded…10 days
paid time off work to attend relevant
training courses/forums subject to
appropriate notice
Paid leave to attend a union meeting.
Company recognises that the union hold
meetings and issues arising from these
may be raised with the company…These
meetings will be conducted off site…at a
time that does not conflict with the
normal operations
Sham sub-contract arrangements or other
unlawful systems of engagement…and
cash in hand payments are strictly
prohibited
Where supplementary labour is required
it will be accessed from a labour hire
company following consultation with the
CC or employees at the relevant site
106744802 from EA
Reg
offended
reg
8.5(1)(d)
Has the effect of providing paid leave
to attend union meetings.
reg
8.5(1)(d)
A forum is defined as an assembly for
the discussion of questions of public
interest. A forum could constitute a
meeting (however described)
conducted by or made up of union
members.
Does not specify that the meetings are
unpaid…conclude that it deals with
paid leave to attend meetings
conducted by union
reg
8.5(1)(d)
The clause deals with restrictions on
the engagement of independent
contractors.
Reg
8.5(1)(h)
The engagement of labour hire is
conditional upon consultations with
the CC or employees. This imposes a
restriction on the engagement of
labour hire workers
Reg
8.5(1)(i)
POSSIBLE VALID CLAUSE
Reg
8(1)(d)
3
Type of Clause
Actual Clause
(i) the parties recognise the benefit of a
stable workforce and commit to
implement employment practices that
support this.
Union picnic day
(ii) The parties…acknowledge that the
employment of contractors and subcontractors can affect employment
security…and has the potential to cause
industrial dispute or a situation that could
lead to an industrial dispute and commit
themselves to resolve such matters
through the dispute settling procedure.
Employees are required to provide proof
of attendance at industry picnic day, ie
ticket purchase, to be paid for the day. A
financial union ticket recorded as “picnic
paid” is deemed as evidence of ticket
purchase.
An employee…will be entitled to the
following holidays without deduction
from ordinary pay….the first Monday in
December each year shall be union
picnic day.
106744802 from EA
EA advice
Has the effect of stating that [the
engagement of contractors] affect
direct/stable employment and the
parties are committed to stable
employment. This appears to mean
that the parties are committed to
restricting such (contractors)
engagement.
A term of workplace agreement is
prohibited to t the extent it contains
objectionable provisions. Conduct is
for a prohibited reason if it is carried
out because an employee proposes to
become or ceases to be a member of a
union (s793(1)).
The clause requires a ticket to be
purchased and that a union ticket
marked “picnic paid” is evidence of a
ticket purchased. It would therefore
appear that a person must be a union
member in order to claim payment for
the picnic day.
A clause providing for employee to
take paid leave to attend a union
picnic day would constitute
prohibited conduct (sic)
Reg
offended
Reg
8.5(1)(h)
POSSIBLE VALID CLAUSE
reg 8.5(7)
Reg
8.5(1)(d)
4
Type of Clause
Actual Clause
Employees are required to provide proof
of attendance at industry picnic day, ie
ticket purchase, before payment is made
for the day. A financial union ticket
recorded as “picnic paid” is deemed as
evidence of ticket purchase.
Encouraging
union
membership
Union
representation in
disputes settling
procedures
EA advice
A term of a workplace agreement is
prohibited to the extent that
it…requires a person…to become a
member of a union. This clause
appears to encourage a person to
become a member of an industrial
association as the additional holiday
is conditional upon the purchase of a
financial union ticket.
The first Monday in December of each
The award provides that employees
year will be the union picnic day.
are to be given picnic day without
(specifically incorporated from Award in deduction from pay. The day is
appendix to Agreement)
known as union picnic day and it is
highly likely the union will meet and
confer with employees during the
picnic day. As such it would amount
to attending union meetings.
The parties to the agreement
This amounts to an indication of
acknowledge the right of employees to
support for employees being members
be active union members.
of a union.
It is the right of employees to elect a
The phrase “in the interests of good
delegate. Such elected representatives
industrial relations” may be read to
shall be recognised in discussions
include dispute resolution. It may
relating to the terms of the agreement and therefore deal with a right of a union
in the interest of good industrial
to participate in dispute resolution.
relations.
No ruling can be given but it may
offend reg 8.5(1)(f) but no ruling can
be given
The delegate shall be entitled to represent Has the effect of providing the union
employees in relation to matters
with an automatic right in a dispute
pertaining to the employment
resolution process.
relationship.
106744802 from EA
Reg
offended
Reg
8.5(2)(a)(i
)
POSSIBLE VALID CLAUSE
Reg
8.5(1)(d)
reg 8.5(7)
Reg
8.5(1)(f)
5
Type of Clause
Actual Clause
The company shall recognise union
representatives. Company shall allow
union representatives the necessary time
during working hours to interview the
Company or its representative(s) on
matters affecting the employees
represented by the union
representatives…
Members of the Divisional Consultative
Committee will be nominated by the
union parties to the agreement, and will
be members of the union. The DCC will
monitor and review the implementation
of this Agreement and other local issues.
The grievance must be dealt with as close
to its source as possible with graduated
steps…this will include the involvement
of the site manager/company union
delegate and/or the company consultative
committee.
Reasonable time limits must be allowed
for discussion at each level of authority.
This may include involvement of the
company consultative committee and/or
the relevant union delegate/official
106744802 from EA
EA advice
Purports to give the union an
automatic right in Dispute resolution
process
Reg
offended
Reg
8.5(1)(f)
To the extent that it purports to enable
automatic right to the union to
participate in dispute resolution
process it is prohibited
Reg
8.5(1)(f)
Discussions as part of the dispute
resolution process will involve the
company union delegate and there is
no choice.
Reg
8.5(1)(f)
Appears to confer a right for
organisations of employer ort
employees to engage in discussions
with respect to a dispute however [it]
fails to expressly provide for the
requirement that the relevant union or
official is a representative of the
employer or employee’s choice.
Reg
8.5(1)(f)
POSSIBLE VALID CLAUSE
6
Type of Clause
Actual Clause
(a) The delegate shall have the right to
approach or be approached by
employees…to discuss matters
pertaining to the employment
relationship of employees without
impediment by the Company.
(b) the delegate shall be entitled to
represent employees in relation to
matters pertaining to the employment
relationship at the workplace…
Work related grievance will be dealt with
by:
 Employee and rep and supervisor;
 Employee may seek involvement of
employee representative;
 Status quo will prevail;
 If not resolved may be discussed
between union rep and senior
company rep;
…
Disputes may arise as to the proper
classification of a position or job…if the
site consultative body is unable to
resolve the dispute the matter may be
referred by the employer or employee
and their union to the…disputes board.
(specifically incorporated from Award in
appendix to Agreement)
106744802 from EA
EA advice
Clause (a) and (b) provide the union
with an automatic right in a dispute
resolution process... separate and in
addition to the dispute settling
procedures…
The clause is prohibited as it allows
the employer and union to have
discussions if the dispute is not
resolved. The clause does not require
the union to be requested to represent
the employee.
Reg
offended
Reg
8.5(1)(f)
POSSIBLE VALID CLAUSE
Reg
8.5(1)(f)
(nb the clause appears to be OK until
it gets to the 4th dot point)
The clause…seeks to involve the
union without being invited by the
parties.
Reg
8.5(1)(f)
7
Type of Clause
Training leave
Actual Clause
EA advice
Continuous service - For the purposes
of this award service shall be deemed to
be continuous notwithstanding an
employee’s absence from work for any
of the following reasons:
 any reason satisfactory to the
employer or in the event of a
dispute to the appropriate Board
of Reference. Provided that the
reason shall not be deemed
satisfactory unless the employee
has informed the employer
within 24 hours of the time when
the employee was due to attend
for work, or as soon as
practicable thereafter, of the
reason for the absence and
probable duration.
(Award provision)
If settlement cannot be reached
through the above procedures then
either party may refer the matter to the
locally
organised
Board
of
Reference/Disputes Board (where
these have been established by
agreement between the parties) and/or
the Australian Industrial Relations
Commission.
It is possible that a board of reference
may include a representative of the
union. If this were the case, the
clause could give the union the right
to participate in a part of a dispute
settling procedure.
- unable to conclude whether this
clause contains prohibited content.
(Award provision)
The delegate shall be afforded…10 days
paid time off work to attend relevant
training courses/forums subject to
appropriate notice
106744802 from EA
Reg
offended
POSSIBLE VALID CLAUSE
It is possible that a board of
reference/disputes board may include
a representative of the union. If this
were the case, the clause could give
the union the right to participate in a
part of a dispute settling procedure.
- unable to conclude whether this
clause contains prohibited content.
To the extent it deals with leave to
attend union training courses it is
prohibited.
reg
8.5(1)(c)
8
Type of Clause
Actual Clause
Employee with workplace
responsibilities, such as members of the
JCC, may be granted up to 5 days leave
to attend workplace relations training
without loss of pay provided that the
granting of such leave is subject to
workplace convenience…the scope,
content and level of the
course…contribute to a better
understanding of workplace relations
Subject to approval union reps may be
provided with unpaid leave to attend to
bona fide union business
The parties agree that for workplace reps
to effectively undertake their duties they
should have the appropriate level of
training. The company recognises that a
workplace rep who is well trained in
matters including their rights and
obligations under…industrial
instruments…and relevant legislation
will assist in minimising industrial
disputes…To that end the following
leave provision will apply.
Each duly appointed union representative
shall be granted up to five days paid
leave per year to undertake training that
will assist them in their settlement of
disputes role. The time of taking such
leave shall be agreed with the relevant
union so as to minimise any adverse
affect on the employers’ operations.
106744802 from EA
EA advice
The clause does not mention anything
in relation to whether the union will
provide the training. The Agreement
provides the JCC must comprise a
representative from each of the
Unions [four unions are party]. It may
be inferred that as a result of the
Union members attending workplace
relations training, the training was
also provided by a trade union. I am
unable to conclude if the training will
be provided by the union and
therefore cannot conclude if the
clause contains prohibited content
under reg 8.5(1)(c)
Bona fide union business may include
union training.
Reg
offended
POSSIBLE VALID CLAUSE
Reg
8.5(1)(a)
The clause does not
mention…whether the union will be
providing training…It may be the
case that the union would not agree to
non-union training…I am unable to
conclude if the training will be
provided by the union accordingly I
ma unable to conclude if the clause
contains prohibited content.
This clause does not specify whether
or not the training is to be provided
by a trade union.
Thus it is not possible for us to
determine if it is prohbitied.
9
Type of Clause
Remedy for
termination
Payment in lieu
of annual leave
Right of entry
Actual Clause
Any dismissal made without following
the [counselling and disciplinary
procedures] shall be a fundamental
breach of the agreement and void. The
employee shall be reinstated
immediately.
The parties commit to enabling the
rehabilitation of injured workers as an
accepted practice…No employee will be
terminated on workers compensation
during the first 12 months without
consultation with the union.
An employee may apply to receive a
lump sum payment in lieu of part of
annual leave balance which is in excess
of 20 days. An employee cannot in any
12 month period receive a payment of
more than half (10 days) of a 12 month
accrual.
An employee may nominate to clear
accrued annual leave by accepting
payment in lieu of the leave. Any cash
out would only be available for leave
accumulation in excess of four (or five
for shift workers) weeks, or equivalent
hours
The employer shall reasonably permit an
accredited union rep to enter premises
during working hours for the purpose of
investigating and securing compliance
with the agreement…
106744802 from EA
EA advice
The clause provides a right and
remedy in the event of unfair
dismissal.
Reg
offended
Reg
8.5(5)
The requirement to consult the union
prior to termination…requires the
provision of information about
employees bound by the agreement.
Reg
8.5(1)(k)
The WR Act provides that an
agreement can provide for the cashing
out of no more than 1/26 of the
nominal hours worked by an
employee during the 12 month period.
While the construction of the clause
for employees working a 38 hour
week is acceptable (that equals 10
days), for an employee working a
36.75 hours per week the clause
allows for cashing out an amount
greater that 1/26 of the nominal hours.
Section 233(2) of WRA allows an
employee to forgo annual leave of no
more than 1/26 of the nominal hours
worked. This equates to 2 weeks for a
38 hour/week worker. This clause
enables cashing out of more than this.
reg
8.5(1)(j)
Content dealing with rights of an
official of an organisation to enter
premises of the employer is
prohibited
Reg
8.5(1)(g)
POSSIBLE VALID CLAUSE
Reg
8.5(1)(j)
10
Type of Clause
Actual Clause
The accredited union delegate may be
allowed a place designated by the
employer and a reasonable period of time
to interview an accredited union official
for the purposes connected with the
operation of the agreement.
Subject to the relevant federal and state
legislation and appropriate accreditation,
union officials shall have right of entry to
any workplace or any premises where the
company and employees are performing
work.
With respect to clause xx of the Award
the union will provide at least 24 hours
notice prior to any such inspection.
(specifically incorporated from Award in
appendix to Agreement)
Parties bound
Performance
review
EA advice
Content dealing with rights of an
official of an organisation to enter
premises of the employer is
prohibited
Provides explicit authorisation to
enter the premises of the employer.
Therefore I have concluded that if
falls within the terms of reg 8.5(1)(d)
(sic)
This provision could be read as
dealing with the rights of an
official…to enter premises…The
Regulations are sufficiently wide that
a term will be prohibited to the extent
that it deals the rights of entry of an
employee organisation.
[The agreement is binding on] the
The regional specific enterprise
company in respect of all of its
agreement may cover employee other
employees engaged in building and
than those in the building and
construction work…It is agreed the
construction industry… [The] clause
company may approach the union for a
is prohibited as it does not pertain to
regional specific enterprise agreement
the relationship.
At the conclusion of 3 months a
The clause requires disclosure about
performance assessment will be
an employee’s performance during a
conducted by [the company] to determine probationary period of employment. It
if identified performance standards have
is plausible the details of an
been met. This assessment may involve
individual employee would be
the Consultative Committee and/or union disclosed in circumstances where the
delegate
employer chose to involve the union
delegate.
106744802 from EA
Reg
offended
Reg
8.5(1)(g)
POSSIBLE VALID CLAUSE
Reg
8.5(1)(g)
Reg
8.5(1)(g)
Reg 8.7
Reg
8.5(1)(k)
11
Type of Clause
Delegate
facilities
Agreement
objectives
Actual Clause
EA advice
In order to assist the delegate to
effectively discharge representative
duties & responsibilities the delegate
shall be afforded:
 Reasonable communication with
other delegates, officials and
management at the same
workplace;
 Max. of 10 days to attend relevant
union training/forums
 Subject to clause xx…time to
check WorkCover and OH&S
requirements are being complied
with…
The company will provide access to
facilities to be used by the delegate…at a
level consistent with the resources of the
company and the project. Subject to
availability the delegate may be provided
with:
 Locakable cabinet for keeping
records
 Lockable notice board for union
notices
 Where practicable access to an
office
 Where an office is not practicable,
access to a meeting room
The objectives of this agreement are: to
involve the employee representatives or
union officials at the earliest stage of
dispute resolution.
Purports to provide the union with an
automatic right in a dispute settling
process irrespective of the choice or
views of the employee.
106744802 from EA
Provides for paid time to attend union
training.
Reg
offended
Reg
8.5(1)(c)
Reg
8.5(1)(d)
Reg
8.5(1)(f)
Reg
8.5(1)(g)
POSSIBLE VALID CLAUSE
Provides a right to check compliance
with OH&S. I am of the view that in
order to carry out this function the
delegate may be required to enter
premises…
In order to access the resources the
delegate would be required to enter
the premises of the employer. (sic)
Reg
8.5(1)(f)
Seeks to involve the union at the
earliest stage of the dispute. It does
not require the union to be requested
to represent employees in relation to a
disagreement
Reg
8.5(1)(f)
12
Type of Clause
Industrial action
Facilitative
provisions
Deduction of
union dues
AWA
Actual Clause
EA advice
The parties agree that it is the
responsibility of the Company to ensure
that amenities prescribed…are provided
as a minimum…Where…the standard is
not maintained…the company should be
allowed reasonable time to rectify the
problem. If the company acts promptly
there should be no interruption to work
from industrial stoppages, bans and
limitations….
The union agrees to a reasonable period
to allow the company, if alleged to have
committed a breach [of the amenities
code] to comply with the requirements of
this clause.
The union must be given a reasonable
opportunity to participate in negotiations
regarding the proposed implementation
of a facilitative provision. Union
involvement does not mean the consent
of the union is required prior to the
introduction of agreed facilitative
arrangements.(nb: Award provision –
award is called up by the Agreement)
The employer, on receipt of authority
from the employee, shall deduct union
subscriptions…in advance from wages
and forward the amount deducted to the
office of the appropriate employee
organisation (nb: Award provision –
award is called up by the Agreement)
The employer agrees that…Australian
Workplace Agreements will not be
promoted, offered or made with any
employee while this agreement remains
in force
The question is whether an issue
about amenities could involve an
imminent risk to health and safety. It
is arguably a clause that permits
industrial action if steps are not taken
to rectify the issue relating to a breach
concerning amenities.
106744802 from EA
Reg
offended
Reg
8.5(3)
The clause gives the union an
automatic right to be involved in
facilitative provisions without an
employee requesting the union to do
so. Facilitative provisions can include
dispute resolution procedures
Reg
8.5(1)(f)
Provides for deduction of union dues
Reg
8.5(1)(a)
This clause restricts the ability of a
person to offer or negotiate or enter
into a workplace agreement
Reg
8.5(8)
POSSIBLE VALID CLAUSE
13
Type of Clause
Notice Boards
Actual Clause
Posting of notices
An employer shall not prevent an official
of the union who is acting in accordance
with s.285C of the Act from posting on
an employer’s premises or job a copy of
any official notice of the union provided
such notice is of reasonable size.
106744802 from EA
EA advice
This clause provides that an official
of the union has a right to access to
the employer’s premises.
It is not clear that an ‘official notice
of the union’ is a matter pertaining to
the employment relationship.
Reg
offended
Reg
8.5(1)(g)
POSSIBLE VALID CLAUSE
Reg
8.7(1)
14