What is the Building & Construction General On-site Award 2023?
The Building & Construction General On-Site Award 2023 applies to employers and employees in the on-site building, engineering and civil construction industry. This Award covers on-site general building and construction workers, civil construction, metal and engineering construction staff. A current copy of the Building and Construction General On-site Award 2020 [MA000020] can be found here: https://awardviewer.fwo.gov.au/award/show/MA000020
Am I covered by the Building & Construction General On-site Award 2023?
The first thing an employer or an employee needs to do is to confirm whether or not an Enterprise Agreement (EA) is in place. This is important. If there is then you need to cross reference the terms of the EA with the Award to ensure that workers are not disadvantaged. It is important to note that the base pay rate in the registered agreement cannot be less than the base pay rate in the Award.
In the background to this, you also need to become familiar with the National Employment Standards (NES) because there are conditions in it which may be relevant to you. For example, full-time and part-time employees are entitled to 4 weeks of annual leave.
The National Employment Standards can be found here: https://www.fwc.gov.au/documents/awardmod/download/nes.pdf
An employer can face serious penalties if they are found to be underpaying employees also known as “wage theft”. Under the Fair Work Act 2009 (Cth) employees can take legal action to recover underpaid wages within six years of being underpaid.
While the Fair Work Ombudsman (FWO) can also commence proceedings in relation to contraventions. However, determining if the Award applies and which section can be quite challenging as the construction industry is so broad that it is possible that an employee performs work that is covered by multiple awards.
The Award has a comprehensive list of duties, divided up into three streams, which trigger its application as seen below:
| 1. General building and construction |
| · the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land · site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works · any landscaping work or the installation in any building, structure or works of fittings and services |
| 2. Civil construction |
| The construction, repair, maintenance or demolition of: · civil and/or mechanical engineering projects · car parks (except car park buildings and car parks that are within a building) · power transmission, light, television, radio, communication, radar, navigation, observation towers or structures · power houses, chemical plants, hydrocarbons and/or oil treatment plants or refineries · silos · sports entertainment complexes · roads, railways and tramways · water and sewerage works · dams, channels, water works and pipe tracks · bridges and tunnels · drains or conduits. Along with works connected to the above such as: · traffic management · dredging and sluicing work · construction work for landscape gardens · batch plants and precast yards |
| 3. Metal and engineering construction |
| Metal trades work performed in the work of construction, fabrication, erection and/or installation work or work · power stations, oil refineries, terminals and depots; chemical, petro-chemical and hydrocarbon plants · major industrial and commercial undertakings and associated plant, plant facilities and equipment · plant, plant facilities and equipment in connection with the extraction, refining and/or treatment of minerals and chemicals · transmission and similar towers, transmission lines and associated plant, plant facilities and equipment · lifts and escalators · facilities and equipment in other engineering projects; and · maintenance and/or repair and/or servicing work carried out on-site by the employees of contractors or subcontractors in connection with contracts for on-site construction work |
If you are having difficulty determining if the Award applies to you, please get in touch with Fairtime. Our team of employment law experts can point you in the right direction. There is no charge for our first 30 min telephone consult.
What are the pay rates under the Building & Construction Award?
Classifications and levels are applied to workers based on experience and training milestones which in turn determines pay. Apprentices are paid less than the standard rate, which depends on the stage of completion.
For example, a Construction worker level 1 (CW1) works under general supervision in one or more skill streams.
While a Construction worker level 3 (CW3) works individually or in a team environment in one or more skill streams and has likely completed an apprenticeship.
A CW1A daily hire, non-residential worker would be on $24.67 per hour. While a CW3 daily hire, non residential worker would be between $27.08 – $28.03 per hour.
The Classifications definitions can be found here: https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000020/default.htm
The Award Pay Guide can be found here: https://awardviewer.fwo.gov.au/award/downloadsummary/G0206624
Additionally, there are four categories of employment under the Award:
· Daily hire employees
· Full-time weekly hire employees
· Part-time weekly hire employees
· Casual employees
A permanent employee can be called to full time, part time, weekly hire or daily hire with changing rates of pay applied for Overtime, Double-time and Double-time and a half:
| Ordinary days – 7:00am and 6:00pm Monday to Friday | |||
| Hourly Pay Rate for Ordinary hours of work (Base Hours) | Overtime – First 2 hours – Time and a half | Overtime – After 2 hours –Double-time | X |
| Saturday, Sunday and Public Holidays | |||
| Saturday | Overtime – First 2 hours – Time and a half | Overtime – After 2 hours –Double-time(All hours worked after 12 noon must be paid at double time) | X |
| Sunday | X | All work to be paid at double time. | X |
| Public Holidays | X | X | All work to be paid at double time and a half. |
For casual employees, a 25% casual loading is applied to the sum of the ordinary hourly rate and the industry allowance.
Additional Entitlements & Employee Rights to Consider
In addition to these, employees are entitled to various allowances which can be included in an employee’s hourly rates of pay which are in clause 21 and 22 of the Award.
These include:
Industry allowance – With the general building and construction industry, civil construction industry, metal and engineering construction industry – is $56.45 per week
While the residential building and construction industry – is $45.16 per week.
Tool allowance – For maintenance, repair and provision of standard tools of trade.
Daily fares and travel – For travel per day and if the site is distant, additional payment for time spent travelling and if the employee uses their own vehicle.
Meal allowance Where an employee works an hour and a half of overtime after the usual finishing time a meal allowance of $16.37 for a meal is also payable.
Other allowances – Other allowances include Multi-storey allowance, underground allowance, living away from home – distant work and more.
Inclement weather is covered in clause 24. An employee is not required to start or continue work where it is unreasonable or unsafe to do so, but a determination of this must be done within 60 minutes by the employer and the employee. The period of inclement weather and when it ended must be recorded by the employer.
Emergency work can be continued to be carried out if there is no imminent risk to the health and safety of the employees. The continuation of this emergency work will mean the employee with be paid at a rate of 200% of the ordinary hourly rate.
All employees (including casuals) have to continue to be paid when sent home due to inclement weather conditions. The maximum amount that can be paid is 32 hours over a 4-week period and 8 hours minimum for a one-week period.
Part-time employees would be entitled to payment on a pro rata basis according to the number of ordinary hours agreed to be worked in the 4 week period. The method of calculation of a part-time daily hire employee’s proportionate employment is:
If portions of a site are not affected by inclement weather, employees working on those portions must keep working. Employees may also be transferred to other sites where it is reasonable and safe to do so.
An example of potential entitlements owed to a Building & Construction Award worker
Bob is a Level 3 (CW3/ECW 3) bricklayer and works a standard 38 hour week on a residential site and is paid on a full-time salary based on the Award. His hourly rate is $27.44.
He works overtime for two hours on Monday and Thursday. So that would be $40.91 per hour for overtime and he would be given a meal allowance of $16.37 for each evening.
He sometimes works on Sundays from 9am to 5pm and he receives $54.88 per hour.
If he works on a public holiday, he earns $68.90 per hour.
He is also using his own tools so he would be entitled to a tool allowance of $24.75 per week.
He also travels to the construction site by train (which is less than 50km from is home) and so is given a travel allowance of $20.32 per day.
On one Friday there was extreme rainfall that made it impossible for Bob to work, so he was sent home and would be paid for that day.
If an employee has been underpaid, they can claim allowances in addition to back-pay owed to them. Along with any underpaid redundancy entitlements and payment-in-lieu-of-notice at the end of employment. A casual employee is entitled to all of the applicable rates and conditions of employment except annual leave, paid personal/carer’s leave, paid community service leave, notice of termination and redundancy benefits.
If you are having difficulty determining the amount of back-pay owing, please contact Fairtime.
Shift work
Shift work is worked according to a roster and governed by clause 17 of the Award. The demand for fast turnaround for the completion of projects has made shift work a regular occurrence. Shift workers continue the work of other employees and are entitled to the relevant shift penalty rate for time worked. However, there are different definitions of shift work between the different sectors.
If Steve worked afternoon shifts in the General building and construction and metal and engineering construction sector as a painter, he could be working an afternoon shift starting at or after 1.00 pm and before 3.00 pm or an early afternoon shift starting on or after 11.00 am and finish before 1.00pm.
If he is employed continuously for five shifts, Monday to Friday and including public holidays these rates will apply:
Afternoon and night shift – ordinary time hourly rate plus 50%
Morning and early afternoon shift – ordinary time hourly rate plus 25%
If he worked any time outside shift hours Monday to Friday, he must be paid at the rate of 200% of the ordinary hourly rate.
For all work performed on a Saturday or Sunday, the normal rates of pay applicable to weekend overtime apply.
The civil construction sector has further variations and rules to be wary of in clause 17.2.
Why does my business need to comply with the Building & Construction Award?
Employers must understand their legal responsibilities to ensure compliance and minimise their risks of litigation. The Award is very broad and complex therefore many underpayments are unintentional. The origin of the errors we tend to see include human error, the wrong numbers being entered into a payroll system, penalty rates or other entitlements like allowances and leave loading that have not been applied. Underpayment can also occur when an employee is being paid a lower-level rate but is doing a higher level of work. Employers need to be vigilant and adjust payments due to changes in age, duties, qualifications and course completions. Furthermore, the National Minimum Wage and minimum rates are reviewed each year and updated by the Fair Work Commission, with any updates starting from 1 July each year.
With such a broad spectrum of considerations it is important to be kept up to date with any changes in the Award so that enterprise agreements and employment contracts comply with the minimum entitlements. After an Enterprise Agreement expires it still continues to operate until it is terminated. Employers must be vigilant in replacing and registering new agreements, so they are relevant and are above the minimum pay rates or incorporate award provisions to be “better off overall”.
Proper records need to be kept such as rosters, timesheets, diary entries and payslips so if a dispute does arise such records will assist in its resolution which can be resolved internally before they escalate. The Commission can deal with disputes under the dispute resolution procedure in an enterprise agreement or modern award and disputes are resolved through confidential mediation and conciliation.
What happens when payroll compliance laws are enforced on a Building & Construction Award employer?
If an employee feels they are being exploited they can report or make a complaint to the FWO, which can then audit and investigate the compliance of workplace obligations in that business. An audit of the business can be conducted, and a Compliance Notice will likely be issued. Here the employer is effectively directed to back-pay the worker’s entitlements. Once knowledge of a mistake is received (with or without a compliance notice) and rectified as soon as possible the employer can receive immunity from further penalties. It’s also likely that there will be a public notice issued regarding the instance of underpayment (effectively naming & shaming). This can damage a business’ reputation though it is at the discretion of the Fair Work Ombudsman.
Where employers do not comply with a Compliance Notice, legal action is typically the next step. The Fair Work Ombudsman brings the offending employer to the Federal Court in an effort to enforce a penalty and to rectify underpayments, plus interest and superannuation. Employers who breach an Award provision within the Fair Work Act can be penalized up to $63,000.00 per breach for a corporation and up to $12,600.00 per breach for any individual knowingly involved in the contravention. In this type of underpayment, ignorance cannot be used to excuse someone from liability. There is also nothing preventing the Fair Work Ombudsman from auditing a business again in the future.
Severe penalties can be awarded under the “serious contraventions” provision of the Fair Work Act where persons knowingly contravene their obligations as part of a systemic pattern of conduct.. The maximum penalty that can be imposed on a business for a serious contravention is $630,000 per breach and $126,000 for an individual.
How can Fairtime help your business?
One of the barriers employers face is the reluctance to engage with the Fair Work Ombudsman for clarification or assistance on their legal obligations in respect of payroll compliance. There is a perception that self-disclosing can lead to further problems for the employer which is not totally correct. Once an employer contacts Fair Work they are effectively at the mercy of the Ombudsman who may be prompted to conduct an investigation. Equally once an employee contacts Fair Work, it is almost guaranteed that there will be an investigation. For these reasons businesses cannot ignore the risks associated with breaching this Modern Award.
If contacting Fair Work is not your preference then there are other options available to an employer. Fairtime Legal can provide you with confidential legal advice in relation to your payroll compliance obligations. We can also provide the necessary tools with our payroll software to make sure your business is always compliant with the minimum Award rates. This is a unique offering in that we acknowledge that payroll compliance is an ongoing issue for all Australian employers.
Have more questions?
Underpayment is taken very seriously in the Building and Construction industry. So it is crucial that employers are paying staff their correct entitlements and according to their specific job classification. This is where we can help.
Click here to get in contact with our team of legal experts today!
