1
[2013] FWCFB 6670
STATEMENT
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise
awards and State reference public sector modern awards) after first 2 years
Modern Awards Review 2012 – Award Flexibility
(AM2012/8, AM2012/51, AM2012/172, AM2012/177, AM2012/178, AM2012/179,
AM2012/180, AM2012/199, AM2012/204, AM2012/210, AM2012/228, AM2012/240,
AM2012/245, AM2012/250, AM2012/287)
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER GREGORY MELBOURNE, 9 SEPTEMBER 2013
Modern Awards Review 2012 – Award flexibility.
[1] Today we are issuing 122 draft determinations to vary all modern awards in line with
the decision issued by this Full Bench on 15 April 2013 relating to award flexibility matters.
These determinations will give rise to the variations contained in our decision of 15 April
2013 [[2013] FWCFB 2170] – see Attachment A for the model Award flexibility term as
amended. The 122 determinations will also amend all modern awards to reflect the recent
name change from ‘Fair Work Australia’ to the ‘Fair Work Commission’.1
[2] In our decision, we rejected applications to vary the scope of the model flexibility
provision, but made a number of other variations to the model term. We acknowledged that
the expression ‘arrangements for when work is performed’ in paragraph 7.1(a) of the model
term may have given rise to some ambiguity and uncertainty. In rejecting a submission made
by the Victorian Employers’ Chamber of Commerce and Industry that minimum engagement
periods fall within ‘arrangements for when work is performed’ we noted the task remains to
provide greater clarity as to the award terms that do fall within the expression. It was our view
that the best method of addressing this was on an award by award basis, on application by an
interested party. In the event such an application was made we intended to publish draft
variations which identified the specific clauses in the relevant modern award which fall within
the purview of the expression ‘arrangements for when work is performed’. No such
applications have been made.
Annual Leave
[3] We noted in our decision that after the Full Bench dealing with the annual leave
aspects of the model award flexibility term had decided the applications before it, we would
issue a statement setting out the process of implementing our decision and the decision of the
1 See Fair Work Amendment Act 2012 (Cth).
AUSTRALIA FAIR WORK COMMISSION
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb2170.htm
[2013] FWCFB 6670
2
Annual Leave Full Bench, insofar as it dealt with the model award flexibility term in all
modern awards.
[4] A Full Bench consisting of Vice President Watson, Senior Deputy President Acton
and Deputy President Gooley was constituted to hear 51 applications relating to annual leave
(including annual leave loading). One of these applications was made by the Australian
Industry Group (AM2012/221) and sought to vary the award flexibility term in all modern
awards to insert clauses for ‘arrangements for taking leave’; and ‘cashing out of paid annual
leave’. The Annual Leave Full Bench issued their decision in these matters on 2 September
2013 [[2013] FWCFB 6266]. The Annual Leave Full Bench did not grant any application to
vary the award flexibility provisions in modern awards.
Determinations
[5] The determinations giving effect to our decision in relation to award flexibility will be
settled by Senior Deputy President Watson, with recourse to this Full Bench if necessary.
Draft determinations are published today. Comments on these drafts should be forwarded to
amod@fwc.gov.au by close of business on Friday 27 September 2013.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR541407
mailto:amod@fwc.gov.au
http://www.fwc.gov.au/index.cfm?pagename=awardsmodernresearch#award_flexibility
http://www.fwc.gov.au/decisionssigned/html/2013FWCFB6266.htm
[2013] FWCFB 6670
3
ATTACHMENT A
Updated model award flexibility term
7. Award flexibility
7.1 Notwithstanding any other provision of this award, an employer and an individual
employee may agree to vary the application of certain terms of this award to meet the
genuine individual needs of the employer and the individual employee. The terms the
employer and the individual employee may agree to vary the application of are those
concerning:
(a) arrangements for when work is performed as set out in:
[particular award clauses to be specified on an award-by-award basis on
application by an interested party];
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
7.2 The employer and the individual employee must have genuinely made the agreement
without coercion or duress. An agreement under this clause can only be entered into
after the individual employee has commenced employment with the employer.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terms listed
in clause 7.1; and
(b) result in the employee being better off overall at the time the agreement is
made than the employee would have been if no individual flexibility agreement
had been agreed to.
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the employer
and the individual employee and, if the employee is under 18 years of age, the
employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee
have agreed to vary;
(c) detail how the application of each term has been varied by agreement between
the employer and the individual employee;
[2013] FWCFB 6670
4
(d) detail how the agreement results in the individual employee being better off
overall in relation to the individual employee’s terms and conditions of
employment; and
(e) state the date the agreement commences to operate.
7.5 The employer must give the individual employee a copy of the agreement and keep
the agreement as a time and wages record.
7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or
consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to
the employee. Where the employee’s understanding of written English is limited the
employer must take measures, including translation into an appropriate language, to
ensure the employee understands the proposal.
7.8 The agreement may be terminated:
(a) by the employer or the individual employee giving four weeks’ 13 weeks’
notice of termination, in writing, to the other party and the agreement ceasing
to operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual
employee.
Note: If any of the requirements of s.144(4), which are reflected in the requirements of this
clause, are not met then the agreement may be terminated by either the employee or
the employer, giving written notice of not more than 28 days (see s.145 of the Fair
Work Act 2009 (Cth)).
7.9 The right to make an agreement pursuant to this clause is in addition to, and is not
intended to otherwise affect, any provision for an agreement between an employer
and an individual employee contained in any other term of this award.
