Australia: Award Modernisation

The Australian Industrial Relations Commission (AIRC) has been tasked by the ALP Government to create "modern awards" in a tight timeframe. The Commission has been given the impossible task of seeking to ensure employees are no worse off and employers incur no greater cost by the imposition of a new modern award. The building and construction industry is to be examined in Stage 2 of the process, which is being considered now.

The Master Builders of Australia (MBA) have submitted that "the building and construction industry would be best served by having three Awards that cover On-Site construction, the Civil sector and an Off-Site Award".

The MBA's proposed scope of coverage provisions for a new civil construction award is extracted below:

Scope of coverage clause for civil construction industry award

Civil Construction Industry Award

1.0 Coverage

1.1 Employers and employees

This modern award applies to:

1.1.1 Employers who are engaged in the civil sector of the building and construction industry concerning work by their employees in or in connection with civil construction work in a classification in this modern Award; and

1.1.2 Their employees engaged in a classification in this modern award whilst they are performing work in or in connection with the civil construction industry.

1.2 Definition of the civil construction industry

For the purposes of this Award civil construction industry work means the undertaking of building work that is any of the following activities:

• any operation that is part of, or is preparatory to, or is for rendering complete onsite building and construction industry building work as set out in the On-site Building and Construction Industry Award, including:

• The construction, alteration, repair and maintenance of railways, tramways, roads, freeways, causeways, aerodromes, power stations, civil engineering works, drains, dams, weirs, bridges, overpasses, underpass, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and work preparatory to this work.

• Land clearing and preparation

• Soil conservation

For the avoidance of doubt and in addition to the prior scope provisions, where the parties to a construction contract agree that work is of the nature of civil construction work this award shall apply to the exclusion of any other award. Construction contract means any contract that is for building work as defined in the Building and Construction Industry Improvement Act, 2005 exclusive of s 5(1)(g).

1.3 Matters not covered

This modern award does not apply to:

1.3.1 employers and employees to whom an enterprise award applies;

1.3.2 work that has historically not been regulated by awards including but not limited to project and site management functions;

1.3.3 high income earners, that is persons earning in excess of $100,000;

1.3.4 employers in respect of their operations or activities in the following industries or occupations:

• mining

• clerical or administrative; and

1.3.5 employers in respect of their operations or activities to which the modern award for the building and construction industry On-site Building and Industry Construction Industry Award or the Off-site Building Industry Award applies.

The question of what are appropriate modern awards for the industry will be the subject of two days of consultation on 1 and 2 December 2008. We will keep you informed of further developments relating to Stage 2 of the award modernisation process. Exposure drafts of the awards are due to be released in early February 2009.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.