Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 202

Flexibility term must be included in an enterprise agreement

  (1)   An enterprise agreement must include a term (a flexibility term ) that:

  (a)   enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement ) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and

  (b)   complies with section   203.

Effect of an individual flexibility arrangement

  (2)   If an employee and employer agree to an individual flexibility arrangement under a flexibility term in an enterprise agreement:

  (a)   the agreement has effect in relation to the employee and the employer as if it were varied by the arrangement; and

  (b)   the arrangement is taken to be a term of the agreement.

  (3)   To avoid doubt, the individual flexibility arrangement:

  (a)   does not change the effect the agreement has in relation to the employer and any other employee; and

  (b)   does not have any effect other than as a term of the agreement.

Model flexibility term

  (4)   If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement.

  (5)   The FWC must determine the model flexibility term for enterprise agreements.

  (6)   In determining the model flexibility term, the FWC must:

  (a)   ensure that the model term is consistent with the requirements set out in subsection   (1); and

  (b)   take into account the following matters:

  (i)   whether the model term is broadly consistent with comparable terms in modern awards;

  (ii)   best practice workplace relations as determined by the FWC;

  (iii)   whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;

  (iv)   the object of this Act (see section   3), and the objects of this Part (see section   171);

  (v)   any other matters the FWC considers relevant.

Note 1:   The FWC must be constituted by a Full Bench to make the model flexibility term (see subsection   616(4A)).

Note 2:   For the variation of a determination, see subsection   33(3) of the Acts Interpretation Act 1901 .

  (7)   A determination under subsection   (5) is a legislative instrument, but section   42 (disallowance) of the Legislation Act 2003 does not apply to the determination.