Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Workers Union of Australia, Engineering & Electrical Div. v Mizco Electrics, Agencies & Metals [2003] WAIRComm 10068 (17 November 2003)

MIZCO CONSTRUCTION ELECTRICAL CERTIFIED AGREEMENT 2003

PARTIES COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIVISION, WA BRANCH

CITATION NO. 2003 WAIRC 10068

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HAVING heard Mr P. Carter on behalf of the Applicant and there being no appearance for the Respondent, and by consent, the Commission pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders:

THAT the agreement made between the two parties lodged in the Commission on 13th October 2003 entitled Mizco Construction Electrical Certified Agreement 2003 be registered as an Industrial Agreement.

This Agreement will be known as the Mizco Construction Electrical Certified Agreement 2003.

This Agreement is made on the 6th Oct. day of October 2003 between:

1. Mizco Pty Ltd as trustee for The Mizco Electrics Trust trading as Mizco Electrics

2. THE COMMUNICATIONS, ELECTRICAL, ELECTRONICS, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS' UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH was hereto affixed in the presence of:

CLAUSE 14 - INCOME PROTECTION INSURANCE.................................. 12

CLAUSE 16 - ANNUAL LEAVE AND SICK LEAVE ................................. ..13

1. (a) This agreement shall apply to commercial construction work within the electrical contracting sector of the building and construction industry that takes place within the State of Western Australia.

(b) This agreement shall only apply to those employees who are members, or eligible to be members of the union and are employed within the classifications set out in the schedule to this agreement, and further, who are employed in the Major Contracting Department of the Company and carrying out work within the scope of subclause 1(a).

The operative date of this Agreement will be the date the Australian Industrial Relations Commission certifies the Agreement and the expiry date shall be 31 October 2005.

(a) Where the parties to this Agreement are also parties to a written agreement which applies to a specific project the parties agree to discuss whether the provisions of this Agreement will apply to that project in lieu of the specific project agreement.

(b) If it is agreed in writing by both parties that the specific project agreement applies then the conditions of this Agreement will not apply. If there is no written agreement reached by the parties then this Agreement shall apply.

(c) Where a specific project or site agreement is applicable to work the Company are contracted to carry out, and the Company and the Union are not a party to that specific project or site agreement, it is agreed that the parties will discuss the application of this Agreement to that work.

(d) This Agreement will not apply to certain contracts entered into by the Company as determined from time to time and agreed to by the parties to this Agreement.

(e) Where the parties are unable to agree upon the applicability or otherwise of this Agreement to the work, both parties acknowledge the other party's legal rights to protect their respective interests.

1. If it is agreed that meaningful productivity increases can be achieved, but if this Agreement cannot be implemented in full, then wage increases available from this Agreement may be introduced on a "pro rata" basis.

2. The parties agree that if, following a review of this Agreement by the parties and the Consultative Committee, the Company can demonstrate that this Agreement places and continues to place the Company and its employees at a competitive disadvantage, and productivity and flexibility have not improved then the Company and its employees have the option of reverting to work under the Electrical Contracting Industry Award R22 of 1978 (Award), at the discretion of the Company. The parties agree that such a review will take place no later than 6 months from the implementation of this agreement. A review may also be implemented by either party providing 14 days written notice to the other.

3. No part of this Agreement is to be used by the Union, the Company, or its employees as evidence or example before any industrial tribunal or proceedings not directly concerned with work covered under this Agreement.

4. No part of this Agreement is to be otherwise used by the Union, the Company, or its employees as evidence or example before any industrial tribunal or any other contractor.

This agreement is to be read and interpreted wholly in conjunction with the Electrical Contracting Industry Award R22 of 1978 as amended ('the Award'). Where there is any inconsistency between this agreement and the Award this agreement shall take precedence to the extent of that inconsistency.

In the event that the Award should be amended during the life of this agreement, then the new Award provisions may apply.

The Company will facilitate the establishment of a Consultative Committee to monitor and administer this Agreement.

The Consultative Committee may be made up of two (2) company and two (2) Employee representatives

The Consultative Committee may meet each quarter to review the implementation and application of this Agreement and to raise, discuss and resolve matters or issues that are relevant to this Agreement, The Company's business or Employees

Decisions made by the Consultative Committee must have majority acceptance.

CLAUSE 8- MAINTENANCE OF WORKPLACE AND PRODUCTIVITY

All employees are committed to ensure their workplace is maintained in a

(a) It is agreed that employees will treat all property, plant and equipment owned or hired by the Company with due care and respect to ensure replacement or repair is kept to a minimum. All property, plant and equipment will be returned to the designated storage area each day.

(b) A tradesperson or apprentice will replace or pay for any tools supplied by the Company if lost through his or her negligence.

(c) It is agreed that all employees are committed to reducing the cost of

maintenance and minimizing theft and time spent looking for equipment not returned to its designated storage area.

Where an employee is provided the use of a Company vehicle to conduct Company business that employee will ensure that:

(a) the vehicle is kept clean, free of rubbish and washed;

(b) the vehicle's oil and fuel requirements are regularly checked to maintain the vehicle in a ready-for-use condition; and

(c) any defects that come to the employee's attention are reported to the Company immediately.

It is agreed that all employees are committed to ensure maximum usage of the Company's materials and consumables is achieved and will exercise due care and precaution to prevent wastage. All employees are committed to identifying further ways in which wastage can be reduced including recycling.

It is agreed that employees will co-operate fully with the development and implementation of the Company's quality management systems and procedures, and will continually strive to improve the quality of the products and services supplied by the Company. Employees are committed to reduce rework and complete tasks the first time, and eliminate the need to return to finish incomplete work.

(a) It is agreed that employees will punctually and correctly furnish time sheets for each pay period.

(b) It is agreed that where required by the Company's operating procedures, employees shall promptly and correctly furnish the Company's Day Labour Sheets.

(a) It is agreed that employees will assist in the management of efficiency and production of construction sites by advising the Company's supervisory staff at the earliest available opportunity if:

(i) it is anticipated that a material shortfall may occur, and if a shortfall does occur; and

(iii) production is likely to be delayed or is delayed by other site trades;

(iv) work is not being installed in accordance with the specifications or with SAA Wiring Rules.

(b) Employees will take an active role to ensure that sufficient quantities and correct types of materials are available at the job site to maximise time at the workplace.

(c) Employees will take an active role in toolbox meetings to eliminate safety hazards.

(a) It is agreed that employees who have undertaken the appropriate training or obtained the appropriate license to operate plant and equipment, such as cherry pickers, boom lifts and hiab trucks, will exercise these skills or use such licenses when required to by the Company.

(b) Employees' duties will include any work for which the employee has requisite qualifications required in connection with the electrical contracting industry.

(c) The parties agree to use their best endeavors to avoid demarcation disputes.

It is agreed that employees will, where reasonably safe to do so, and in compliance with WorkSafe Western Australia's requirements, load and unload materials, plant and equipment from delivery vehicles and move such materials, plant and equipment as required without impediment.

It is agreed that employees will fully utilise all new technological advances implemented by the Company including, but not limited to, technological advances in relation to materials, methods, plant and equipment.

It is agreed that employees will work on ladders where they are required to do so and such work complies with the Occupational Safety and Health Act and Regulations.

1. (a) Subject to the provisions of this paragraph and subclauses (2) and (3) of this clause, the ordinary hours of work shall be an average of 38 per week to be worked on one of the following basis.

(i) 38 hours within a work cycle not exceeding seven consecutive days; or

(ii) 76 hours within a work cycle not exceeding 14 consecutive days; or

(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or

(iv) 152 hours within a work cycle not exceeding 28 consecutive days.

(b) With effect from 1 July 2004, the ordinary hours of work under this agreement will be 36 per week.

(b) The ordinary hours of work may be worked on any or all days of the week, Monday to Friday, inclusive, and except in the case of shift employees, shall be worked between the hours of 6.00 a.m. and 6.00 p.m. Provided that:

(i) the spread of hours may be altered by agreement between the Company and the majority of employees (in the plant or section or sections concerned).

(ii) where it is agreed between the Company and the majority of affected employee(s) the Company may reschedule ordinary working hours;

(iii) agreement to reschedule ordinary working hours and to alter the spread of hours will not unreasonably be withheld;

(c) Where the first night shift in any week commences on Monday night, the night shift commencing on Friday and finishing not later than 8.00 a.m. on Saturday of that week, shall be deemed to have been worked in ordinary working hours.

(d) The ordinary hours of work shall not exceed 10 hours on any day.

Provided that in any arrangement of ordinary working hours, where such ordinary hours are to exceed eight hours on any day, the arrangement of hours shall be subject to the agreement between the Company and the majority of employees (in the plant or section or sections concerned).

(e) The ordinary hours of work shall be consecutive except for a meal interval which shall not exceed one hour, and

(i) an employee shall not be compelled to work for more than five hours without a meal interval except where an alternative arrangement is entered into as a result of discussions as provided for in subclause (3) of this clause.

(ii) When an employee is required for duty during his or her usual meal interval and such interval is postponed for more than half an hour, he or she shall be paid at overtime rates until he or she gets his or her meal.

(f) (i) Subject to the provisions of this paragraph, a rest period of 10 minutes from the time of ceasing to the time of resumption of work shall be allowed each morning.

(ii) The rest period shall be counted as time off duty without deduction of pay and shall be arranged at a time and in a manner to suit the convenience of the Company.

(iii) Refreshments may be taken by an employee during the rest period but the period of 10 minutes shall not be exceeded under any circumstances.

(iv) The Company who satisfies the Commission that any employee has breached any condition expressed or implied in this paragraph may be exempted from liability to allow the rest period.

(v) In addition to the rest period referred to in placitum (i) of this paragraph a rest period of 10 minutes shall be allowed as soon as possible after the end of the second hours work following the meal interval but the provisions of this placitum only apply to an employee engaged on construction work on any day on which he or she is required for overtime for half an hour or more immediately following his or her ordinary finishing time.

(g) Flexibility of rest periods and meal intervals may be staggered or otherwise arranged at a time and in a manner to suit the convenience of the Company or the job requirements in conjunction with the provisions in sub paragraphs (e) and (f) herein.

1. (a) Following the implementation of the 36 hour week from 1 July 2004 the ordinary hours of work shall be worked in a 2 week cycle, Monday to Friday inclusive, with 8 hours worked for each of 9 days, and with 0.8 hours on each day accruing towards the 10th day, which shall be taken as a paid day off and known as a rostered day off (RDO).

(b) The schedule of RDOs to be taken in a given year will be agreed between the parties prior to the commencement of each year.

(c) A scheduled RDO may be worked where it is required by the employer due to the requirements of a particular project, or where the scheduled RDO is not available to other workers employed on a project and not subject to this agreement.

(d) Where an employer and a majority of its employees at a site covered by this agreement agree, another day may be substituted for a scheduled RDO.

3. An employee agrees to present himself or herself for duty and remain on duty during the ordinary hours of work.

(a) The Company will be under no obligation to pay for any hours not worked during those ordinary hours unless it is an authorised absence in accordance with:

(ii) an instruction from the Company that the employee may leave site without loss of pay.

It is agreed that all employees will be dressed and ready to start work at their normal start time at the designated workplace and work will finish at their normal finish time and place. On construction work the workplace will be deemed to be the nearest company compound or smoko shed or a place as directed by the Company.

The parties agree that this clause will replace, in its entirety, the Adverse Weather clause 35 of the Award.

Inclement Weather" is defined here as rain or abnormal climatic conditions (eg. hail, high wind, severe dust storm, extreme cold temperature, extreme high temperature) under which it is either unreasonable or unsafe for Employees exposed to these conditions to continue working.

The primary objective of this clause is ensure that a set of agreed procedures is developed and implemented which ensure that productivity is maximised without exposing Employees to inclement conditions.

The Consultative Committee will be required to develop procedures and contingency plans to support this objective. An employee shall comply with Company's instructions to either:

(i) Continue work when the area in which the employee is working is not affected by the inclement weather; or

(ii) Accept a transfer to work in an area of the site not affected by the inclement weather; or

(iii) Accept a transfer from one site to another site not affected by the inclement weather; or

(iv) Leave the site without loss of pay.

Where the Company requires an employee to traverse open ground the Company will provide the employee with protective clothing. Such clothing will remain the property of the Company and shall be returned to the Company, employees shall take reasonable care of the clothing and pay the cost of its replacement if lost or damaged due to an employee's negligence.

An employee shall not be affected by inclement weather unless by virtue of the

weather conditions it is not reasonable and it is not safe for work to continue.

Where the employer instructs their Employees to remain on site the employer shall ensure that their Employees have, as a minimum, a trained First Aider on site and a Safety Representative (The First Aider may be from Management). An employee who does not comply with the Company's instructions shall forfeit wages for time not worked.

Not with standing the provisions of this clause, employees working in the Commercial Sector shall be released from work when the temperature reaches 37.5. Unless these workers are working in an air-conditioned workplace or obviously not subject to the outside temperature,

Where the Site employees are released by the Main contractor due to wet weather, then The Company employees will also be released from site. The above is subject to The Company's right to relocate it's employees.

The employees and the Union shall not pursue any extra claims in relation to the award, with the exception of future State Wage Decisions, for the life of this Agreement.

Consistent with the Arbitrated Safety Net Adjustment Principle any future Safety Net Adjustment shall be absorbable to the extent of any equivalent amount in rates of pay paid pursuant to this Agreement. Future Safety Net Adjustments shall not increase the wage rates contained in Clause 14. - Wages of this Agreement.

Allowances listed in this agreement, other than travel allowance, will be fixed for the life of this agreement.

The Company will contribute to an approved superannuation fund on behalf of the employee in accordance with the Superannuation Guarantee (Administration) Act 1992.

The level of Superannuation contribution specified by this clause shall be increased to reflect any increase in the Federal Government's gazetted Employees Superannuation Guarantee levy.

1. In lieu of the provisions of Clause 38 (2) of the Electrical Contracting Industry Award R22 of 1979, each adult employee covered by this Agreement shall accrue a severance pay allowance of $65.00 per week of continuous service with The Company. Note - All previous entitlements accrued will be preserved.

2. The provisions of this clause shall not apply to casual Employees or service as an apprentice

An employee whose employment is to be terminated in accordance with this clause may terminate his or her employment during the period of notice and if this occurs, shall be entitled to the provisions of this clause as if the employee remains with the Company until expiry of such notice. Provided that in such circumstances, the employee shall not be entitled to payment in lieu of notice.

(a) Where a business is, before or after the date of this Agreement, transmitted from the Company (in this sub-clause called "the transmitter") to another Company (in this sub-clause called "the transmittee") and an employee who at the time of such transmission was an employee of the transmitter in that business becomes an employee of the transmittee -

(i) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission;

(ii) the period of employment which the employee has had with the transmitter or any prior transmitter shall be deemed to be service of the employee with the transmittee.

**(b) In this subclause "business" includes trade, process, business or occupation and includes part of any such business and "transmission" includes transfer, conveyance, assignment or succession whether by agreement or operation of law and "transmitted" has a corresponding meaning.

The Company will implement a policy of income protection for employees following ratification of this Agreement. The Income Protection Policy implemented by the Company provides the following:

(a) cover for 100% of an eligible employee's average income or $1,000 whichever is less for 104 weeks applying to work related or personal injury or sickness;

(b) an excess (waiting) period of fourteen days applying to personal injury or sickness (except sporting related injuries 28days);

(c) the general insurance code of practice shall apply including operation of a claims review panel run by Insurance Enquirers.

(d) funeral benefit up to a limit of $10,000 and emergency transport up to $5,000

(e) workers' compensation top up.

(1) Site Allowance, Structural Frame and Productivity shall apply in accordance with the CCA - BTA Building Industry Site Allowance Agreement

Allowances listed in this agreement, other than travel allowance, will be fixed for the life of the agreement.

Subject to the above, no other allowances shall be payable by the Company. The Union and/or it's members shall not make any further claim for the Term of this Agreement for any further or additional payments or any allowances.

CLAUSE 16 - ANNUAL LEAVE AND SICK LEAVE

Annual leave is to be paid in accordance with the Award.

Employees commence accrual of sick days from the commencement of employment, however sick days may not be taken until 3 months service has been completed, except where the employer and the employee agree that exceptional circumstances apply. An employee is entitled to ten sick days in a year. Sick days are not accrued. See Schedule.

As far as practicable, the employee must inform the employer of their inability to attend work no later than half an hour before the designated start time. The employee shall also state the nature of the illness and estimated duration of absence

Any questions, disputes or difficulties arising pertaining to any matter covered by this agreement or the award or both shall be settled in accordance with clause 27. - Grievance Procedure and Special Allowance of the Award

Where the employer does not provide the employee with the tools ordinarily required by him for the performance of his duties as a tradesman or apprentice the employer will pay an allowance as prescribed in the Schedule to this Agreement. The allowance shall be used for the purpose of supplying and maintaining tools ordinarily required for the performance of his or her work as a tradesman or apprentice and shall, as a minimum, be in accordance with the following list:

Phillips head screwdriver 250mm Vice grips/Stilsons 250mm

1. The following shall be the rate of wages payable to Company employees covered by this Agreement.

The above all purpose hourly rates include, where applicable, the Award provisions relating to:

• Construction allowance,
• Tool allowance,
• Electrical license allowance
• Special allowance
• Boot allowance.

The hourly rates are not subject to adjustment during the period of this

agreement in respect to any award increases in any of the allowances listed

above. In addition to the above rates, Leading Hand rates shall apply as per the

All wages and allowances provided in this Agreement shall take effect from the 1 July 2003.

In addition to the appropriate rates shown in sub clause (1) hereof, a leading hand shall be paid -

(a) If placed in charge of not less than three and not more than 10 other employees or Mechanical Services Electrical Trade experience of 6 or more years $20.29 LH1

(b) If place in charge of more than 10 and not more than 20 other employees $30.97 LH2

(c) If placed in charge of more than 20 other employees or 8 years or more continuous service with Mizco $39.90 LH3

Where transport to and from the job is provided by the Company from and to his or her depot or such other place more convenient to the employee as is mutually agreed upon between the Company and the employee, no travelling

For travelling during working hours from and to the Company's place of

business or from one job to another, an employee shall be paid by the

Company at ordinary rates. The Company shall pay all fares and

reasonable expenses in connection with such travelling.

The provisions of this clause (3) do not apply to an employee who is supplied with a company vehicle, where that vehicle is used by the employee to travel to and from work.

Where an employee is required and authorised to use his or her own

motor vehicle in the course of his or her duties he or she shall be paid an allowance of 61.69 cents per kilometre traveled. Notwithstanding anything contained in this clause the Company and the employee may make any other arrangement as to car allowance not less favourable to the employee.

Site allowance, productivity and structural frame shall be in accordance with current CCA schedule and shall be no less than $1.50 per hour

An amount of $1.00 per hour will be paid to any employee who is engaged in remote work. Remote work is defined as work undertaken at such a distance that the employee cannot return home each night.

WITNESS SIGNATURE: ______________________________[signed]

THE COMMUNICATIONS, ELECTRICAL, ELECTRONICS, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS' UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH was hereto affixed in the presence of:

........................................................ ..........................................................[signed]

All 'construction site electricians' will be employed under the Mizco Construction Electrical Certified Agreement 2003.

As part of the normal duties the employee will obtain, or have access to, confidential information concerning the employer. Under no circumstances is any use to be made of this information except for the purposes directly related to furthering the business objectives of the employer, as provided within the terms of the employee's delegated

The employee shall not, for the duration of this contract, set himself/herself up or engage in private business nor undertake other employment in direct or indirect competition with the employer using knowledge or materials gained during the course of employment with the employer. However, the employee may undertake other employment so long as such employment is in his/her own time and does not conflict with the employment with the employer.

At each 12 month anniversary of the implementation of this Agreement, each employee is required to complete a Company update form.

Each employee, will provide a mobile telephone of their own choice, to be made available for the purpose of the employer, or the employer's supervisor, to be able to contact the employee. Reimbursement will be made to the employee for all business related calls made. The reimbursement will only be made upon substantiation of the expense.

No allowance will be paid for costs associated with connection fees or rental fees charged by the service provider.

Where an employee is provided the use of a vehicle by the employer to conduct employer business, the employee shall ensure that:

The vehicle's oil and fuel requirements are regularly checked to maintain the vehicle in a ready for use condition; and

Any defects that come to the employee's attention are reported to the employer immediately

All plant, equipment or materials within or carried on the vehicle is the direct responsibility of the employee in charge of the vehicle and it is this employee that is responsible for repair or replacement of damaged or lost equipment due to negligence.

Use of that Company vehicle is restricted to the Company employees in possession of a current, valid Drivers' License, for the purpose of travel between home and work, travel which is incidental to travel in the course of duties of employment or non-work related use that is minor, infrequent and irregular.

Any traffic infringements, e.g. speeding, red light violation etc, will be the responsibility of the driver. Should the regular driver not have been in charge of the vehicle at the time of the infringement, then it is the responsibility of the regular driver to nominate the person in charge of the vehicle at the time, otherwise the details of the regular drive will be provided to the Police Department.

If a Mizco vehicle is not available for use and employees own vehicle is used for travel between home and work, then mileage would be paid at the documented rate, currently $0.6169/km.

Should an employee be involved in an accident, he should notify the employer or his representative as soon as possible. It is the responsibility of the employee to gather details from All other parties involved and to notify the relevant authorities. A motor vehicle claim form is available in the office for completion.

The employee will be issued with the following safety equipment:

The Company will provide Company standard issue Safety Boots. Alternatively, the employee has the option to purchase his/her own Safety Boots up to a value of $120.00. Upon presentation of an official receipt for those Safety Boots the employee will be reimbursed.

Where clothing and Safety Boots are supplied by the employer, they are to be worn during working hours, and will be replaced on a fair wear and tear basis. Uniforms are to be laundered regularly and employees are expected to present themselves for duty in a clean and tidy manner.

The company will repair/replace an employees battery drill where it is shown that the drill or its accessories have failed due to fair wear and tear.

A battery drill belonging to an employee and used in the course of his/her employment, will be covered against theft by the employer's insurance policy, providing the battery drill is kept in a locked vehicle or locked site box or tool box.

On commencement of employment, an employee is to provide the following information relating to his/her battery drill:

A condition report will be completed by the employee and the employer's representative at the time of his/her induction

All tools belonging to employees and used in the course of his/her employment, will be covered against theft by the employer's insurance policy, providing those tools are kept in a locked vehicle or locked site box or tool box.

On commencement of employment, a pre-requisite for insurance purposes, is a complete inventory of tools being supplied by the employee for his/her use.

A condition report for these tools will be completed by the employee and the employer's representative at the time of his/her induction

It is a pre-requisite that at each anniversary of this Agreement, being 1st July, the Company is to be provided with an up to date tool list and battery drill information for the above two items to remain in place. It will be up to the Company's discretion to replace the items if this requirement is not adhered to.