IR Q&A Issue 15

Posted 22 February 2019

IR Q&A Issue 15

Q: When I am calculating annual leave pay, what allowances should I include?

A: When an employee is taking annual leave under a Modern Award, there is usually a provision for an annual leave loading to be applied to the amount that the employee would have received had they not taken the leave.

Under the Building and Construction General On-Site Award, Clause 38.2 provides that the following would be payable to an employee whilst on annual leave:

  • Minimum wages (based on a 38 hour week); and
  • Applicable allowances (being identified as the industry, underground, tool, travel allowance, living away from home - distant work, and leading hand); and
  • Annual leave loading (17.5% as prescribed in Clause 38.2(b)).

Q: I keep hearing the term OTE when talking about super and portable long service leave. What does it actually stand for?

A: OTE means 'ordinary time earnings' which is simply the amount of money that the employee would be paid for ordinary hours of work. OTE excludes things such as overtime, penalty rates and expendable expense allowances.

Depending on the context though, you should check the definition of OTE to ensure that you are applying the correct definition. OTE for specific circumstances are listed below:

Q: I have received an ACAT Civil Dispute Application. What do I need to do now?

A: If you have received an ACAT Civil Dispute Application and you have been listed as the Respondent, you will need to file a Response to the Application by the date specified in the letter from ACAT. This response, depending on the circumstances, might be to accept liability (full or partial), to advise that you cannot afford to pay, to lodge a counterclaim or to disagree with the Application.

It is better to submit a response than to not respond at all. Please feel free to contact MBA Legal Manager, Kristie Burt if you would like to discuss your position and/or the appropriate form to respond.

Q: I have got my Secure Local Jobs Certificate now. Will my subcontractors need to have one before they can work for me?

A: In short, yes but it will depend on the project that you are working on.

For example, if you are a Code Certified Entity, your subcontractors on a Territory-funded project must also be Code Certified Entities.

For a private job - i.e. not deemed to be Territory-funded works - you can engage contractors who are not Code Certified Entities, but you should be aware that you, as the Code Compliant Entity, should remain compliant with your obligations under the Code (in particular, Part 3).

If you have any queries or would like to ask a question, please contact Legal Manager Kristie Burt on 6175 5919 or email

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