5 Clauses Construction Workers Should Look For In Their Employment Agreement

It is sometimes difficult for prospective employees to know what they should look for in their employment agreement. While employment contracts usually have standard clauses, their content will largely depend on the industry. Below, we discuss the issues construction workers should look for in their employment contracts, focusing on:

• Workplace Health and Safety;
• Whether you are an independent contractor or employee;
• Freedom of Association;
• Minimum Employment Standards; and
• Payment and Superannuation.

1. Health and Safety

In the previous three years, 23 construction workers sustained fatal injuries while working, and another 1700 suffered permanent disability in the state of NSW alone. Understandably, occupational health and safety is a significant issue for those who work in the construction industry.

As an employee, you have the right to work in a safe environment. Your safety should be a priority for your employer. An employment contract (or an associated document) should outline how your prospective employer commits to the safety of their employees. Your contract may discuss issues such as:

• Managing risks on a construction site;
• Whether the employer has a policy of restricting access to the site;
• Procedures for excavation work;
• Procedures for construction work; and
• Training for employees on safety issues.

Your contract may also discuss whether your employer has a formal Safe Work Method Statement.

If you require information about the particular laws governing construction in your state or territory, be aware that state and territory governments have agencies tasked with providing such information to individuals. For example, in NSW this is the WorkCover Authority of NSW.

2. Independent Contractor or Employee

Are you completing construction work as an employee or an independent contractor? Your classification must accord with your expectation in taking on the position. Your rights and entitlements at work are materially affected by this designation. For example, an independent contractor, unlike an employee, typically has their own public liability insurance as well as insurance for illness and accidents.

Courts will look at the totality of the parties’ relationship when determining if a person is an independent contractor or employee. Some common indicators that can assist include the following:

• Level of control over they perform the work;
• Expectation of work (project based or ongoing);
• Hours of work; and
• Provision of tools and equipment.

Employees typically follow directions on how, where and when they work, are regularly paid and cannot pay another person to work for them.

3. Freedom of Association

Your contract must guarantee you freedom of association. As such, you have the right to decide whether or not join a union without fear of adverse action resulting from your choice. Adverse action can include when an employer terminates someone’s employment because of their choice or opts not to hire them at all.

4. Minimum Standards

Your contract must guarantee you at a minimum the standards guaranteed in those employment laws applicable to you.

For example, all employees in the national workplace system are entitled to receive the National Employment Standards (NES). The NES are ten minimum entitlements all employees must receive. An employer cannot contract out of them or offer less. They cover matters such as maximum weekly working hours, rights on termination and leave. Be aware that if you are a casual employee, you can only receive four of these ten entitlements.

However, not all employees work in the national workplace system. In that case, you need to be sure that your contract provides you with the rights guaranteed by any relevant state or territory laws.

5. Payment and Superannuation

You need to ensure that your employer agrees to pay you the correct amount on a regular basis and to provide you with payslips. Your employer should also make all relevant contributions to superannuation and withhold tax as required.

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If you are a construction worker, ensure your employment agreement is drafted to address the health, safety and risks associated with the industry. Questions? Get in touch with our employment lawyers on 1300 544 755.