[2016] FWCFB 8932

The attached document replaces the document previously issued with the incorrect code [2016] FWCFB 8392 on 13 December 2016.

The Decision code [2016] FWCFB 8932 replaces the incorrect code.

On behalf of the President, Justice Ross

Dated 15 December 2016

[2016] FWCFB 8932

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Plain language re-drafting – Standard Clauses – Draft Guidelines
(AM2016/15)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 13 DECEMBER 2016

[1] This Statement deals with the plain language re-drafting of the designated standard clauses and the review of the draft Guidelines for plain language drafting of modern awards (the Guidelines) following the conference held on 23 November 2016 before Commissioner Hunt.

Guidelines

[2] The draft Guidelines were developed by Mr Eamonn Moran QC who has been engaged as an expert to assist with the plain language re-drafting process. Further to the Statement issued on 4 November 2016, draft Guidelines were published on 9 November 2016, written submissions were sought and a conference was held on 23 November 2016 to discuss the draft Guidelines.

[3] A number of written submissions were made about the content of the draft Guidelines which parties at the conference were happy to rely on. Discussion at the conference went more to the role of the draft Guidelines and the drafting processes.

[4] As outlined in the Statement issued on 15 July 2016:

‘The guidelines have taken account of plain language drafting principles and practical insights into the needs of employers and employees generated from the user-testing conducted as part of the Pilot. …

[37] The guidelines will be a reference for further plain language re-drafting undertaken as part of the Review. The guidelines will be expanded and refined as more awards and provisions are re-drafted and feedback is received from a broader range of award users and interested persons.’ 1

[5] As Commissioner Hunt confirmed at the conference ‘[the draft Guidelines] will not have the effect of an award but they are there to assist all of the parties including the Full Bench in determining what plain language clauses will look like’ 2. These draft Guidelines have been used by the expert to inform the drafting of the standard clauses as well as other provisions developed during the 4 yearly review of modern awards.3

[6] The Full Bench will consider the written submissions and publish the Guidelines in final form early in 2017. As additional provisions are reviewed as part of the 4 yearly review of modern awards, the Guidelines may be further refined.

Standard clauses

[7] In a Statement issued on 15 July 2016 4 five clauses were identified as ‘standard clauses’ to be re-drafted as part of the Plain language Full Bench matter. The standard clauses have arisen from previous test cases and are generally replicated in the same form across most awards. The standard clauses subject of the plain language matter are:

(i) Award flexibility;
(ii) Consultation;
(iii) Dispute resolution;
(iv) Termination of employment; and
(v) Redundancy.

[8] Written submissions were received from a number of parties outlining instances whether it was contended that the re-drafting process may have changed the legal effect of the provision. During the conference parties worked through their concerns with the re-drafted Award flexibility term and a number of agreed changes were noted on Transcript.

[9] A draft summary of the outcomes of the conference are at Attachment A to this Statement. Attachment B contains a revised draft version of the Award flexibility standard clause, incorporating changes agreed to during the conference.

[10] At the parties’ request, 5 a further conference is proposed to be held in Sydney on Monday, 23 January 2017 commencing at 9:00am to deal with the remaining ‘standard clauses’.

[11] Following the final conference the Full Bench will consider the views of the parties in the context of the plain language guidelines. However, as confirmed during the conference, 6 whilst consent is encouraged, the Full Bench will decide how much weight is to be given to the parties views in its decision making process and will determine for itself whether an award clause achieves the modern awards objective. We wish to make it clear that the re-drafting process is not intended to change the legal effect of a provision.

PRESIDENT

Attachment A—Summary of submissions following conference of 23 November 2016

Plain language draft guidelines

TABLE 1

Theme	Position
General	SDA (submission of 17/11/2016, para 3): Difficult to comment in isolation; not until re-drafting occurs that issues arise in apply the Guidelines. Concerned about a one-size-fits-all model; not all principles will be appropriate for all clauses or all awards. Concerned that Guidelines will be adopted in preference to maintaining current legal effect and minimising ambiguity or potential interpretation issues. AiGroup (submission of 17/11/2016, p.1): The Draft Guidelines are not controversial and they include useful principles and approaches to drafting. HSU (submission of 21/11/2016, para 11): agrees with the SDA that issues arise with implementing the guidelines as re-drafting occurs. See also transcript at PN38–40; PN86–91 and PN92–96
Legal Effect	ACTU (submission of 17/11/2016, p.1): Regarding Guideline 1.4, concerned that the goal of simplicity has taken precedence over retaining legal effect, even where parties have consented to retaining existing language due to the interpretation and legal effect issues presented by a proposed plain language re-draft. Further concerned that this could lead to a weakening of employee protections in awards (e.g. in relation to the definition of casual employment under the Pharmacy Industry Award 2010). ACTU submit that Guidelines should make clear that the object of preserving the legal effect must take absolute precedence over the goal of making awards simple and easy to understand. ACTU also submits that all substantive changes to legal effect of awards are put to a merits case and all affected parties be allowed to be heard. TCFUA (submission of 17/11/16): Support the submissions of ACTU. SDA (submission of 17/11/2016, paras 6–12): Regarding Guideline 1.4, concerned that continual redrafting without proper consideration of changed legal effect will result in watering down entitlements. SDA Submits that plain language principles should not take priority over legal effect or cause interpretation issues; simplicity must not come at the cost of current award entitlements and obligations. AiGroup (submission of 17/11/2016, p.1): A new Guideline should be added expressly stating that plain language drafting is not intended to change the legal effect. See also transcript at PN92–96 Business SA (submission of 17/11/2016, para 1.1): Guideline 1.4 is fundamental to the review of modern awards. HSU (submission of 21/11/2016, para 10 and paras 12–14): agrees with the SDA that the plain language re-drafting process should never introduce interpretation issues or result in a change to the legal effect of the award.
Consultation	ACTU (submission of 17/11/2016, p.2): Submits that all substantive changes to legal effect of awards are put to a merits case and all affected parties be allowed to be heard. SDA (submission of 17/11/2016, para 13): Submits that ambiguity and technical issues could arise against as a result of the PL re-drafting thus requiring a further technical review process; suggest that the views of interested parties be taken into account throughout the process.
Consent Positions	SDA (submission of 17/11/2016, paras 14–24): Submits that parties have been encouraged in the PIA to work together to identify common concerns and to raise them in submissions. Recent consent submissions regarding minor and technical drafting issues were not taken into account in the more recent draft of the PL-PIA (10/11/16). In most cases the drafter adopted the PL Guidelines in preference to remedying issues which change legal effect or where interpretation issues arise. SDA also submits that there doesn’t appear to be appropriate mechanism for drafter to properly consider and adopt consent positions. SDA also submits that interested parties have practical knowledge of application, history and interpretation of current provisions which is relevant, and are able to identify changes to legal effect or potential interpretation issues. The consent positions of parties should be taken into account and adopted throughout the process. SDA also submits that adoption of consent positions will avoid disputes which may arise in the future regarding interpretation of redrafted clauses. Potential dispute arising regarding interpretation, especially when potential problems have already been identified, is not consistent with the [objectives of the Act]. SDA also submits that adoption of consent positions has historically been the standard approach of the Commission. It appears that PL drafting is treating this differently. SDA submits that there needs to be greater clarity regarding how the PL process deals with consent positions. AiGroup (submission of 17/11/2016, p.2): plain language drafting should not disturb consent provisions as this may lead to disputation.
Substantive Claims	SDA (submission of 17/11/2016, paras 25–27): the treatment of consent positions creates issues regarding agreed substantive claims involving agreed wording. SDA has concerns about the process established to deal with substantive claims which relate to clauses where issues have also arisen as a result of PL drafting. SDA submits that there needs to be clarity about the Commission’s process for dealing with consent positions reached where a substantive claim and a technical drafting issue intersect.
Common Issues	SDA (submission of 17/11/2016, paras 28–30): concerned about the PL process impact on other proceedings in the review e.g. common issues, particularly the casual conversion issue raised by the ACTU in their common issues claim. SDA didn’t pursue a casual conversion clause because the current wording of the clause in the Award provides this. SDA submits tat PL drafting has resulted in a substantive change to the clause and removes the obligation to convert a casual to part-time if they do not meet the definition of a casual, as currently defined. The most recent drafter’s comment makes a judgement about the industrial meaning of the current terminology without taking into account the parties’ interpretation. SDA is concerned that if the PL wording is adopted by the Full Bench they will have missed the opportunity to pursue a casual conversion clause in the common issue proceeding

TABLE 2

Submissions about specific guidelines	Position
1.5 Awards that are not as simple and easy to understand as they can be cost money by creating the need for employers and employees to seek advice from paid advocates.	Business SA (submission of 17/11/2016, para 1.2–1.17): Guideline 1.5 should be replaced.
3.11 Schedules are used in modern awards for matters of detail and of a supplementary or ancillary nature to that covered in the main body of the award.	Business SA submits that Guideline 3.11, the word ‘and’ should be replaced with the word ‘or’.
3.14 Use “Notes” to provide factual information or point the reader to a relevant provision of the award. A Note should generally appear at the end of a provision (whether a clause, subclause or paragraph) but may appear after the heading in appropriate cases.	Business SA (submission of 17/11/2016, para 1.4): In relation to Guideline 3.14 and 3.15 submit that ~~notes and~~ guides are better placed in annotated versions of the award. (transcript PN158–161)
3.15 “Guidelines” may be included to explain how a provision or set of provisions are to be used or what their function or role is. They are not themselves “legislative material” but are intended to help the reader to better understand the “legislative material” to which they relate.
5.4 To indicate that a series of 3 or more paragraphs or subparagraphs are cumulative, consider using the expression “each of the following”, or similar.	Business SA, in relation to Guideline 5.4, 5.5 and 5.6, the words ‘and’ and ‘or’ should be reviewed.
5.5 To indicate that a series of 3 or more paragraphs or subparagraphs are exclusive, consider using the expression “any of the following”, or similar.
5.6 Do not include both cumulative and exclusive provisions in the same series of paragraphs or subparagraphs. Do not use “and/or”.
5.7 The use of a “sandwich clause” should be avoided. A sandwich clause is one in which a series of paragraphs or subparagraphs is enclosed or “sandwiched” by the opening and closing lines of a sentence.	Business SA submits that Guideline 5.7 and 5.8 should give examples of correct alternatives.
5.8 A sentence comprising 2 series of paragraphs or subparagraphs in one sentence should not be used.
7 Definitions	AMWU (submission of 17/11/2016, para 6): Definitions should be included in Modern Awards rather than reference to external documents. If a definition is not included, a hyperlink should be included.
7.4 An expression used in an award that is defined in the National Employment Standards should be defined as having the same meaning as it has there.	AiGroup (submission of 17/11/2016, p.1): proposes delete paragraph 7.4 because expressions in the NES often overlap with expressions in awards but may have different meanings in particular modern awards.
9.2 If a provision is reasonably short and self-contained, reproducing it instead of merely cross-referring to it is helpful to the reader as the reader does not then have to access another document or go to another part of the award. However, if a provision is frequently referred to in an award, it would be disruptive to the flow of the text to reproduce it each time.	Business SA, in relation to Guideline 9.2, submits that the guideline be re-worded to account for [2014] FWCFB 9412 which states that summaries of legislation would not be included in modern awards.
9.5 In all other cases when referring to a provision, refer to the provision by the highest unit in the reference (e.g. clause 19.3 rather than subclause 19.3).	AMWU (submission of 17/11/2016, paras 18–20): submits that Guideline 9.5 does not make sense.

Plain language draft standard clauses – Summary of submissions and submissions in reply received – updated following conference on 23 November 2016

This document provides a summary of submissions and reply submissions on the plain language draft standard clauses received to 4 November 2016 from the following interested parties:

● ACTU (ACTU submission and ACTU submission in reply)
● Association of Professional Engineers, Scientists and Managers, Australia (APESMA submission)
● Australian Business Industrial and NSW Business Chamber (ABI and NSW Business Chamber submission)
● Australian Chamber of Commerce and Industry (ACCI submission)
● Australian Industry Group (Ai Group submission and Ai Group submission in reply)
● Australian Manufacturing Workers’ Union (AMWU submission and AMWU submission in reply)
● Business SA (Business SA submission and Business SA submission in reply)
● CFMEU – Forestry, Furnishing, Building Products and Manufacturing Division (CFMEU - FFPD submission and CFMEU – FFPD submission in reply)
● Housing Industry Association (HIA submission)
● National Farmers' Federation (NFF submission)
● Private Hospital Industry Employers' Associations (PHIEA submission)
● Shop Distributive and Allied Employees’ Association (SDA submission and SDA submission in reply)
● Textile Clothing & Footwear Union of Australia (TCFUA submission and TCFUA submission in reply)

Directions were issued by the Full Bench 17 August 2016.

General submissions about the plain language draft standard clauses
ABI and NSW Business Chamber submits they have material interests in a number of Awards which contain non-standard clauses and seek clarification as to how the extra provisions in these Awards will be treated.
ACTU (paras 4-14) acknowledges the objectives of the plain-language re-drafting process and supports the majority of the changes in the Plain Language Standard Clauses. However, submit a number of the proposed changes would alter the legal effect of the standard clauses and/or render them less simple and easy to understand as required by the modern awards objective. In those cases, the ACTU submit the Plain Language Standard Clauses should be further amended to avoid this consequence or, where appropriate, the existing language in the Exposure Draft Standard Clauses should be preferred.

Ai Group (paras 5-11): Submits that while it supports the proposition that awards should be simple and easy to understand, the desire for consistency and simplicity should not unnecessarily override the preservation of the legal effect of the current award terms. It important that the plain language re-drafting process does not lead to disputation over award provisions that are settled and well-understood. Care must be taken to achieve this. Directions issued suggest that it plain language re-drafting is not directed to introducing variations although it is not clear whether the substantive changes that arise from the re-drafting are so intended, or inadvertent. In many instances the basis of introducing substantive change is not evident. In the absence of any directions for the filing of evidence, the submission addresses changes to the legal effect considered problematic and, as directed, provided an explanation of why the re-drafted clause should not be adopted. Wherever possible, amended wording is proposed. Should the Commission form the view that any one of the substantive changes effected by the re-drafting ought to be made, a separate process should be instituted for dealing with such proposals.

AMWU submits that it supports and adopts the submissions of the ACTU and the SDA. The AMWU strongly supports the ACTU’s submissions in relation to the re-drafted plain language Award Flexibility clause (clause A of the re-draft)).
APESMA submits that it has had the opportunity to collaborate with the SDA in preparation of these submissions. They wholly support the submissions of the SDA and also incorporate the SDA’s submissions into their submissions.

HIA submits that there must be a balance between the treatment of modern awards as industrial instruments and the inclusion within those industrial instruments of guidance materials generally found other than in the instrument itself and provided by external sources. To conflate the functions of being a regulatory instrument and acting as a form of guidance would be at odds with the modern award objectives and should be avoided. Also submits that a number of the plain language clauses include ‘Notes’. The HIA would generally be supportive of the use of hyperlinks within modern awards to the full NES entitlements and the limited use of ‘Notes’ on the basis that it is made clear that the Note is not intended to give rise to award obligations. Also notes the differences across awards to the Pharmacy Award exposure draft. For the sake of clarify, Attachment A to the submission lists provisions in 3 awards that differ from the Pharmacy Industry Award clauses or that include allied provisions to the model terms.

NFF (paras 69-83) submits that proposed clauses A.5, A.6(d), A.10, A.11, A.12, B.2, D.1, D.9, E.1, F, G, H and I, would not meet the modern awards objective for the reasons set out at paragraphs 69 to 83 inclusive.
PHIEA submits that it has not identified any unintended consequences in respect of the draft standard clauses relating to Award Flexibility; Dispute Resolution, Termination of Employment or Redundancy and therefore the focus of its submission is on the provisions regarding Consultation about Major Workplace Change & Changes to Rosters and Hours of Work (clauses B and C of the re-draft).
SDA submits it supports and adopts the submissions made by the ACTU and the AWMU.
TCFUA submits it supports and adopts the submissions of the ACTU, AMWU and SDA.
CFMEU - FFPD submits it supports and adopts the submissions of the ACTU.


EXPOSURE DRAFT – Pharmacy Industry Award 2014 (revised 25 September 2015)	Plain language re-draft	Submission summary
Table of Contents Part 1—Application and Operation … 4. Award flexibility … Part 6—Leave, Public Holidays and Other NES Entitlements … 20. Termination of employment 21. Redundancy Part 7—Consultation and dispute resolution 22. Consultation 23. Dispute resolution	Table of Contents Part 1—Application and Operation of this award … 6. Award flexibility for individual arrangements … Part 7—Consultation and dispute resolution 27. Consultation about major workplace change 28. Consultation about changes to rosters and hours of work 29. Dispute resolution Part 8—Termination of employment and Redundancy 30. Termination of employment 31. Redundancy 32. Transfer to lower paid job on redundancy 33. Employee leaving during redundancy notice period 34. Job search entitlement	ACCI (p.2): Submits it has no objection to amendments to the structure and to locating multiple topics within distinct clauses within distinct headings. Notes user testing comments in relation to sequence of Termination of Employment and Redundancy clauses and has no objection to relocation of these provisions. ACTU (submission in reply p.2): Agrees with ACCI. Business SA (submission in reply para 1.1): Agrees with ACCI. Consent Position (transcript PN190) – change title of clause 6 of PL re-draft to “Individual flexibility arrangements”
4. Award flexibility 4.1 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; (b) overtime rates; (c) penalty rates; (d) allowances; and (e) leave loading.	A. Award flexibility for individual arrangements A.1 Despite anything else in this award, an employee who has started employment may agree in writing with the employer to vary how terms of this award relating to any one or more of the following applies to them: (a) arrangements for when work is performed; (b) allowances; (c) overtime rates; (d) penalty rates; (e) annual leave loading. NOTE: Arrangements for when work is performed include such matters as hours of work, rostering arrangements and breaks.	ACCI (p.2): Submits the clause should reflect the wording of the FW Act as closely as possible. Consent Position (transcript PN190) – change title of clause 6 of PL re-draft to “Individual flexibility arrangements” ACTU (Attach 1, p.1) and AMWU (para 4): Submit that re-drafting the requirement in clause 4.2 that it cannot be made until after commenced employment as a qualification in clause A.1 is less clear and it should be drafted as a separate sub-clause/explicit requirement. SDA (paras 4–13): Submits that clause A.1 does not sufficiently convey requirement set out in clause 4.2. Proposes requirement that it must only be made after commencement be included at A.6. ACTU (submission in reply p.3): Agrees with SDA that wording should reflect the wording in clause 4.2. Business SA (submission in reply para 1.2.1): Does not agrees with SDA and ACTU. Consent Position (transcript PN319) – parties would like to retain current clause 4.2 ABI and NSW Business Chamber (para 1.1): Submits that in clause A.1, ‘started employment’ is cumbersome and should be substituted with ‘commenced employment’. Business SA (submission in reply para 1.2.1): Agrees with ABI and NSW Business Chamber. Ai Group (submission in reply para 6): Does not oppose submissions of ABI. Consent Position (transcript PN347) – parties would like to retain current clause 4.2. Use “commenced” instead of “started”. ACTU (Attach 1, p.1) and SDA (paras 25–27): Submits that re-drafting the requirement in 4.4(a) that it be in writing as a qualification in clause A.1 is less clear. It should be drafted as a separate sub-clause/explicit requirement rather than a qualified right within clause A.1. Consent Position (transcript PN319) – parties would like to retain current clause 4.2. Consent Position (transcript PN602) – parties would like the requirement to be drafted as a separate sub-clause. Business SA (submission in reply para 1.2.7) and Ai Group (submission in reply para 7): Disagrees with the ACTU and submits that A.1 is sufficiently clear. AiGroup (paras 12–18): Submits that the re-draft expression ‘vary how terms…applies’ changes the effect so that an agreement can only vary how a term applies and cannot vary the application of a term so that it does not apply. Proposes removing ‘how’ and ‘applies to them’ from A.1. ACTU (submission in reply p.3): Disagrees with Ai Group. Submits that ‘applies to them’ has the same legal meaning as ‘the application of’ NFF (paras 10-16): Submits that at clause A.1, ‘vary how the terms of the award…applies’ implies that what can be agreed is how a term applies, not that the particular term cannot apply at all. Proposes wording. Business SA (submission in reply para 1.2.2): Agrees with Ai Group and NFF that the words ‘how’ and ‘applies to them’ in A.1 should be removed. Wording by NFF is supported as an alternative. ACTU (submission in reply p.3): Agrees with NFF, however, prefers AiGroup’s proposed wording. Consent Position (transcript PN199) – change wording of clause to AiGroup proposed wording. ACTU (Attach 1, p.1), APESMA (paras 14–17) and SDA (paras 16–20): Submit that at A.1, it is unclear that list is exhaustive as reflected in clause 4.3(a). Clause should be clearer that it cannot vary other terms of an award not listed in clause A. The terms of clause 4.3(a) should be included. Ai Group (submission in reply para 5): Does not oppose submissions of ACTU, APESMA and SDA. ABI and NSW Business Chamber (para 1.2): Submits that the expression ‘arrangements for when work is performed’ is appropriate and the notes assist with clarity. ACTU (submission in reply p.3): Disagrees with ABI and NSW Business Chamber. Submits that the note is confusing and should be removed. ACCI (p.2): Submits that the note at A.1 should be removed as it may have the effect of limiting the clauses that can be varied/create the perception that it is limited to the clauses listed in the note. Ai Group (paras 19–25): Submits that it opposes use of hyperlinks in the note at A.1 that could narrow the scope of clause A.1(a). Business SA (para 1.1): Submits that it objects to the inclusion of the note in A.1 as it does not include all of the possible ‘arrangements for when work is performed’ and hyperlinks will have to vary by award. HIA (2.3.1–2.3.9): Submits that the note in A.1 should be removed because it could lead to confusion where ‘arrangements for when work is performed’ relate to different clauses across awards. Contested Position (transcript PN204) – Parties have concerns; Commission considers ‘examples’ may assist in understanding the term “arrangements for when work is performed” ACTU (submission in reply p.4) and Business SA (submission in reply para 1.2.3): Agrees with ACCI, Ai Group and HIA that notes and hyperlinks should be removed. Consent Position (transcript PN224) – remove hyperlinks
4.2 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.	A.2 An agreement may only be made in order to meet the genuine needs of the employer and the employee. See also A.10	APESMA (paras 6–11): Submits that separating the requirements in clause 4.2 into clause A.1 and A.2 does not provide the same level of clarity. Current clause is clearer. Consent Position (transcript PN319) – parties would like to retain current clause 4.2 ACTU (submission in reply p.4): Agrees with APESMA. ACCI (p.2): Submits A.2 should remove the term ‘only’ to more closely reflect s.144(1) of the FW Act. Business SA (submission in reply para 1.2.4): Agrees with ACCI. Ai Group (submission in reply para 10): Does not oppose variation proposed by ACCI but does not consider it necessary. Contested Position (transcript PN398) – Parties have opposing positions on whether the word “only” in A.2 should be deleted
	A.3 Either the employer or the employee may initiate the making of an agreement. A.4 An employer who wishes to initiate the making of an agreement must: (a) give the employee a written proposal; and (b) if the employer is aware that the employee has, or should reasonably be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.	APESMA (paras 12–13) and SDA (paras 14–15): Submit that A.3 should include both elements of clause 4.2 by adding ‘An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.’ ACTU (submission in reply p.4): Agrees with APESMA. Ai Group (submission in reply para 11): Disagrees with APESMA and SDA, submits that the addition is unnecessary. Contested Position (transcript PN419) – Parties have opposing positions on whether the word “only” should be included in A.3. ACCI (p.3): Submits that clause A.3 and A.4 should be deleted in the interests of streamlining and simplifying the clause because an agreement involves a process of parties arriving at a consensual arrangement. ACTU (submission in reply p.3): Disagrees with ACCI, submits that removing clause A.3 and A.4 would be a substantive change that would remove requirements of clauses 4.4(a) and 4.7. Ai Group (submission in reply para 12): Agrees with ACCI. Contested Position (transcript PN420) – Parties have opposing positions on whether clause A.3 and A.4 should be deleted.
4.3 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 4.1; 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.	A.5 An agreement must result in the employee being better off overall on its making than if the agreement had not been made.	ACCI (p.3): Submits that clauses A.5–A.7 should be consolidated into one sub-clause and use a paragraph format because it would more easily translates into a checklist. Proposes wording. ACTU (submission in reply p.3): Disagrees with ACCI. Ai Group (submission in reply para 28): Agrees with ACCI. Contested Position (transcript PN511) – Commission will consider the submission to consolidate A.5 to A.7 Ai Group (paras 26–32 and 34): Submits that the expression ‘on its making’ in clause A.5 and A.6(d) should be replaced with ‘at the time the agreement is made’ is this is clearer. ACTU (submission in reply p.3): Agrees with Ai Group. Business SA (submission in reply para 1.2.6): Agrees with Ai Group in relation to A.5. ACTU (Attach 1, p1): Submits that the expression ‘an agreement must result in the employee being better off overall on its making…’ in A.5 is unusual and results in the applicable test being less clear. The existing wording should be used instead. SDA (paras 21–24): Submits that the terms in A.5 are not simpler and clearer than clause 4.3(b) and so the current provisions should be used. Consent Position (transcript PN485) – parties would like to delete “on its making” and insert “at the time the agreement is made than”
4.4 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; (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.	A.6 An agreement must do each of the following: (a) state the names of the employer and the employee; (b) identify the award term or terms to be varied; (c) set out how the award term, or each term, is varied; (d) show how the agreement results in the employee being better off overall on its making than if the agreement had not been made; (e) state the date on which the agreement is to start. See also A.7	APESMA (paras 18–19): Submits that A.6 should state more explicitly that the agreement must be in writing (rather than or in addition to A.1) along with other requirements as constructed in the award. ACTU (submission in reply p.4): Agrees with SDA and APESMA. Ai Group (submission in reply para 15): Does not oppose submissions of the ACTU, APESMA and SDA. SDA (paras 4–13) and AMWU (para 5): Submits that clause A.6 should include the second sentence in clause 4.2. ACTU (submission in reply p.5): Agrees with SDA. Consent Position (transcript PN586) HIA (2.3.13–2.3.15): Submits that clause A.6(c) could be improved by replacing it with ‘set out how the award term is varied’. Submits that it is unclear why words ‘or each term’ have been included. Ai Group (submission in reply para 15): Submits that the words ‘or each term’ in the re-draft are necessary and should be included. Ai Group (para 33): Submits that the expression ‘set out’ in clause A.6(c) should also be used in clause A.6(d) rather than the expression ‘show’. ACTU (submission in reply p.5): Agrees with Ai Group. Consent Position (transcript PN542) ACCI (p.3): Submits that clause A.6(d) can be removed because it adds prescription and complexity to the clause and it is not a requirement set out in s.144 of the FW Act. If it is to remain, the expression ‘show’ should be replaced with ‘state’ to reflect the written nature of the agreement. NFF (paras 17–19): Submits that under clause A.6(d) replacing ‘detail’ with ‘show’ may suggest the agreement must demonstrate conclusively that the better off overall test is met whereas clause 4.4(d) only requires a description. HIA (2.3.16–2.3.21): Submits that under clause A.6(d) replacing ‘detail’ with ‘show’ imposes a higher threshold and ‘detail’ should be retained. Business SA (submission in reply para 1.2.9): Agrees with NFF and HIA that the word ‘detail’ should be retained. Business SA (para 1.1): Submits that under clause A.6(d) the expression ‘show’ is a broader requirement than ‘detail’. AMWU (para 6–7): Submits that the more detail an agreement provides the more likely they are not to fall foul of the better off overall requirement. ACTU (submission in reply p.6): Agrees with Ai Group, NFF, HIA, Business SA and AMWU that the term ‘show’ should not be used and that ‘detail’ is preferred. Contested Position (transcript PN542) – some parties oppose the inclusion of A.6(d) ACTU (Attach 1, p.2), APESMA (paras 20–23), SDA (paras 28–31) and AMWU (para 8): Submit that at A.6(d), the qualification ‘in relation to the individual employee’s terms and conditions of employment’ in clause 4.4(d) should be included in this clause. Ai Group (submission in reply para 21): Disagrees with ACTU, APESMA, SDA and AMWU and submits that the provision is about the form of the agreement rather than its substance. Contested Position (transcript PN615) – some parties oppose the inclusion of A.6(d) ABI and NSW Business Chamber (para 1.4): Submits that a note to clarify the meaning of ‘better off overall’ would be helpful, but disagrees with the proposal to include the FWO definition because it places too much importance on financial benefits of the arrangement. ACCI (p.4): Submits that it does not support the approach of including a note about ‘better off overall’ because the award should not attempt to interpret the FW Act. NFF (para 20) submits that proposed note about ‘better off overall’ may narrow the terms of the FW Act to not include non-monetary benefits. Ai Group (paras 35–40): Submits the clause should not include the note about ‘better off overall’. HIA (2.3.16–2.3.21): Submits that it would not support inclusion of a note or definition of ‘better off overall’ as it is best left to judicial interpretation. APESMA (paras 20–25): Submits that proposed note should not be included in the legal instrument, but it may be appropriate to include in an annotated version. SDA (paras 32–36): Submits that the proposed note should not be included and that the clause should not define ‘better off overall’. ACTU (submission in reply p.6) and Business SA (submission in reply para 1.2.8): Agrees with ABI and NSW Business Chamber, ACCI, NFF, Ai Group, HIA, APESMA and SDA that the note in relation to “better off overall” should be removed. Contested Position (transcript PN601) – parties raise concerns about the drafter’s suggestion of inserting a Note or definition about “better off overall”
4.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.	See A.9
4.6 Except as provided in clause 4.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.	See A.8
4.7 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.	See A.4
	A.7 An agreement must be signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian. A.8 Except as provided by clause A.7, an agreement must not require the approval or consent of anyone other than the employer and the employee.	See transcript PN374; PN635–658 Consent Position – No changes See transcript PN659–661
	A.9 The employer must keep a copy of the agreement as a time and wages record and give another copy to the employee.	NFF (paras 21–22): Submits that A.9 has a different effect to clause 4.5. Currently the employer is required to keep the actual agreement and give a copy to the employee; while A.9 only requires the employer to keep a copy. Ai Group (submission in reply para 29): Agrees with NFF. Consent Position (transcript PN663) – delete the words “a copy of” and “another” and insert “a” into clause A.9
	A.10 The employer and the employee must genuinely agree, without duress or coercion of any kind, to the variation of the term, or each variation of a term, provided for by an agreement.	ABI and NSW Business Chamber (para 1.3): Submits that clause A.10 is more relevant to the subject matter dealt with earlier in the clause and should be moved up to become clause A.3. Ai Group (submission in reply para 30): Does not oppose variation proposed by ABI but does not consider it necessary. ACTU (submission in reply p.6) and Business SA (submission in reply para 1.2.5): Agrees with NFF and ABI and NSW Business Chamber. Contested Position (transcript PN709) Ai Group (paras 41–42): Submits that the expression ‘of any kind’ in clause A.10 is superfluous and should be deleted. ACTU (submission in reply p.6): Disagrees with Ai Group. Submits that ‘of any kind’ does not change the legal effect, does not impose additional obligation but rather clarifies and emphasis the obligation. Contested Position (transcript PN709) Ai Group (paras 43–46): Submits that at A.10 the text ‘to the variation of the term, or each variation of a term provided for by an agreement’ should be deleted because it makes it unduly complex. Proposes wording. ACTU (submission in reply p.6): Agrees with Ai Group that A.10 is a problem. Submits 4.2 should be retained. Contested Position (transcript PN764)
4.8 The agreement may be terminated: (a) by the employer or the individual employee giving 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.	A.11 The employer and the employee may at any time agree in writing to terminate the agreement. A.12 The employer or the employee may at any time give 13 weeks’ (or, if the agreement was entered into before the first full pay period starting on or after 4 December 2013, 4 weeks’) written notice of termination of an agreement to the other party. A.13 The agreement ceases to have effect at the end of the period of notice mentioned in clause A.12.	Business SA (para 1.3): Submits that it is unnecessary to separate clause 4.8 into two subclauses (A.11 and A.12) because A.8 is clear that it can be (a) or (b). ACCI (p.4): Submits that clauses A.11 and A.12 could be consolidated to better clarify the way in which an agreement can be terminated. Proposes wording. Ai Group (submission in reply para 32): Agrees with ACCI. Business SA (submission in reply para 1.2.10): Supports ACCI’s re-wording of A.11 and A.12. Consent Position (transcript PN804) ACTU (Attach 1, p.2): Submits that clauses A.11 to A.14 make it less clear than clauses 4.8 and 4.9 that it may be terminated unilaterally by any party after giving the defined notice or at any time by agreement. The grammatical construction of current 4.8 makes this clearer. APESMA (paras 28–29) and SDA (para 39): Submit clauses A.11 to A.14 are less clear than clause 4.8. ACTU (submission in reply p.7): Agrees with APESMA and SDA Consent Position (transcript PN813) ACTU (Attach 1, p.2), APESMA (paras 28–29) and SDA (para 40): Submit that clause A.13 (if it remains) should be re-worded to avoid confusion about a possible distinction between when notice is given of termination, the date of termination and the date the agreement ceases to have effect (the latter two dates being equivalent). Proposes wording. Ai Group (submission in reply para 33): Does not oppose variation proposed by ACTU, APESMA and SDA. Consent Position (transcript PN838)
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 Act). 4.9 The notice provisions in clause 4.8(a) only apply to an agreement entered into from the first full pay period commencing on or after 4 December 2013. An agreement entered into before that date may be terminated in accordance with clause 4.8(a), subject to four weeks’ notice of termination.	A.14 The period of notice required under clause A.12 is reduced to a period of not more than 28 days if an agreement made under this clause does not meet a requirement set out both in section 144(4) of the Fair Work Act and in clause A.	NFF (para 23): Submits that the proposed clause A.14 converts a note into a substantive award term which may affect interpretation and at the very least duplicates a legal requirement of the FW Act. The note form should be retained. ACTU (submission in reply p.7): Disagrees with NFF APESMA (para 30): Submits that it agrees that the provisions in clause A.14 should be a sub-clause rather than a note. SDA (para 41): Submits that it agrees that the provisions in clause A.14 should be a sub-clause rather than a note but that the wording of the note under clause 4.8 is simpler and easier to understand. Ai Group (paras 47–58): Submits that clause A.14 should be reinstated as a note because as a sub-clause it would inappropriately give primacy to a party’s ability to terminate the agreement due to potentially minor and insubstantial deviations from the requirements of the model clause. Business SA (submission in reply para 1.2.11): Agrees with Ai Group (paras 47–58) and NFF (para 23). ACTU (submission in reply p.7): Agrees with APESMA and SDA, disagrees with Ai Group. Contested Position (transcript PN747) - parties have differing positions on this
4.10 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.	A.15 The right to make an agreement under clause A is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an employee.	Further issue raised a conference (23/11/16) – in clause A.15 retain the word ‘individual’ before ‘employee’. Consent Position (transcript PN893) – parties agree to insert “individual’ before “employee”
20. Termination of employment	Not dealt with during conference of 23 November 2016 – see Summary of submissions of 21 November 2016
21. Redundancy	Not dealt with during conference of 23 November 2016 – see Summary of submissions of 21 November 2016
22. Consultation	Not dealt with during conference of 23 November 2016 – see Summary of submissions of 21 November 2016
23. Dispute resolution	Not dealt with during conference of 23 November 2016 – see Summary of submissions of 21 November 2016

Attachment B—Consent position of parties regarding plain language draft of Award flexibility for individual arrangements

Plain language re-draft

Parties consent position

A. Award flexibility for individual arrangements

A.1 Despite anything else in this award, an employee who has started employment may agree in writing with the employer to vary how terms of this award relating to any one or more of the following applies to them:

(a) arrangements for when work is performed;

(b) allowances;

(c) overtime rates;

(d) penalty rates;

(e) annual leave loading.

NOTE: Arrangements for when work is performed include such matters as hours of work, rostering arrangements and breaks.

A. ~~Award flexibility for I~~ Individual flexibility arrangements

A.1 Despite anything else in this award, an employee who has started employment may agree in writing with the employer to vary ~~how~~ the application of the terms of this award relating to any one or more of the following ~~applies to them~~:

(a) arrangements for when work is performed;

(b) ~~allowances~~ allowances;

(c) ~~overtime rates~~ overtime rates;

(d) ~~penalty rates~~ penalty rates;

(e) ~~annual leave loading~~ annual leave loading.

NOTE: Arrangements for when work is performed include such matters as ~~hours of work~~ hours of work, ~~rostering arrangements~~ rostering arrangements and ~~breaks~~ breaks.

Some parties would like 4.2 retained in its entirety, it’s unclear how this clause would be impacted

Parties have concerns about this provision; Commission considers ‘examples’ may assist in understanding the term “arrangements for when work is performed”

A.2 An agreement may only be made in order to meet the genuine needs of the employer and the employee.

A.3 Either the employer or the employee may initiate the making of an agreement.

4.2 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.

A.2 An agreement may only be made in order to meet the genuine needs of the employer and the employee.

A.3 Either the employer or the employee may initiate the making of an agreement.

Some parties would like 4.2 retained in its entirety, it’s unclear how the above clauses would be impacted

A.4 An employer who wishes to initiate the making of an agreement must:

(a) give the employee a written proposal; and

(b) if the employer is aware that the employee has, or should reasonably be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.

A.5 An agreement must result in the employee being better off overall on its making than if the agreement had not been made.

A.6 An agreement must do each of the following:

(a) state the names of the employer and the employee;

(b) identify the award term or terms to be varied;

(c) set out how the award term, or each term, is varied;

(d) show how the agreement results in the employee being better off overall on its making than if the agreement had not been made;

(e) state the date on which the agreement is to start.

A.4 An employer who wishes to initiate the making of an agreement must:

(a) give the employee a written proposal; and

A.5 An agreement must result in the employee being better off overall ~~on its making~~ at the time the agreement is made than if the agreement had not been made.

A.6 An agreement must do each of the following:

(a) state the names of the employer and the employee;

(b) identify the award term ~~or terms~~, or each term, to be varied;

(c) set out how the award term, or each term, is varied;

(d) ~~show~~ set out how the agreement results in the employee being better off overall ~~on its making~~ at the time the agreement is made than if the agreement had not been made;

(e) state the date on which the agreement is to start.

A.7 An agreement must be signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

A.8 Except as provided by clause A.7, an agreement must not require the approval or consent of anyone other than the employer and the employee.

A.7 An agreement must be in writing and signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

A.8 Except as provided by clause A.7, an agreement must not require the approval or consent of anyone other than the employer and the employee.

A.9 The employer must keep a copy of the agreement as a time and wages record and give another copy to the employee.

A.10 The employer and the employee must genuinely agree, without duress or coercion of any kind, to the variation of the term, or each variation of a term, provided for by an agreement.

A.11 The employer and the employee may at any time agree in writing to terminate the agreement.

A.9 The employer must keep ~~a copy of~~ the agreement as a time and wages record and give ~~another~~ a copy to the employee.

A.10 The employer and the employee must genuinely agree, without duress or coercion ~~of any kind,~~ to the variation of the term, or each variation of a term, provided for by an agreement.

A.11 The employer and the employee may at any time agree in writing to terminate the agreement.

Some parties would like 4.2 retained in its entirety, it’s unclear how the above clauses would be impacted

A.12 The employer or the employee may at any time give 13 weeks’ (or, if the agreement was entered into before the first full pay period starting on or after 4 December 2013, 4 weeks’) written notice of termination of an agreement to the other party.

An agreement may be terminated:

(a) at any time by written agreement between the employer and employee: or

(b) by the employer or employee giving:

(i) 13 weeks written notice to the party; or

(ii) four weeks written notice to the party if the agreement was entered into before the first full pay period starting on or after 4 December 2013.

A.13 The agreement ceases to have effect at the end of the period of notice mentioned in clause A.12.

A.14 The period of notice required under clause A.12 is reduced to a period of not more than 28 days if an agreement made under this clause does not meet a requirement set out both in section 144(4) of the Fair Work Act and in clause A.

A.15 The right to make an agreement under clause A is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an employee.

A.13 The agreement ceases to have effect at the end of the period of notice mentioned in clause A.12.

A.15 The right to make an agreement under clause A is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an individual employee.

1 [2016] FWC 4756 at [36]–[37]

2 Transcript, 23 November 2016 at PN37

3 Plain language principles informed the drafting of the Time off instead of paid overtime model term and terms arising from the Annual leave common issue – see [2016] FWCFB 3953 and [2016] FWCFB 4258.

4 [2016] FWC 4756 at [5]

5 Transcript, 23 November 2016 at PN127

6 Transcript, 23 November 2016 at PN45

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