Master Builders has received queries from a number of members covered by the standard version of the CFMEU Pattern EBA 2016-2018 (the Agreement), seeking clarification on the wage increase payable from the first pay period commencing on or after (ppc) 1 March 2019.

As members may recall from our special bulletin dated 1 March 2019, the standard version of the Agreement provides for a 3 per cent wage increase. A 5 per cent wage increase applies to those who hold the more flexible version of the Agreement that is compliant with the Code for the Tendering and Performance of Building Work 2016 (Building Code 2016). A copy of the current wage bulletin for members covered by the standard 3 per cent wage increase is available here.

It is important to note that employers who hold the standard version of the Agreement providing the 3 per cent increase cannot be coerced or discriminated against for not holding an enterprise agreement that provides for a 5 per cent increase. Under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), maximum penalties for coercion and discrimination are $210,000 per breach for a body corporate and $42,000 per breach for individuals.

In addition to provisions relating to unlawful coercion and discrimination, the BCIIP Act provides that an agreement is unenforceable to the extent that it relates to building employees, if the agreement is entered into with the intention of securing standard employment conditions on a site/sites and the agreement is not a federal industrial instrument (e.g. an enterprise agreement approved by the Fair Work Commission). Specifically, this would be the case where not all the employees are employed in a single enterprise; and a party to the agreement is a constitutional corporation (e.g. Pty Ltd) and at least some of the employees are employees of that corporation.

Members should also note that it is a breach of section 12 of Building Code 2016 for a code covered entity to attempt to coerce or exert undue influence or undue pressure on a contractor or subcontractor to make over entitlements payments in relation to building work. For example, it would be a breach of Building Code 2016 for a contractor to pressure a subcontractor holding the standard Agreement (providing a 3 per cent increase) into paying a 5 per cent wage increase.

Members seeking further information are encouraged in the first instance to contact the IR Department on (03) 9411 4560.