Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 203

Flexibility term must meet requirements

  (1)   A flexibility term in an enterprise agreement must meet the requirements set out in this section.

Requirements relating to content

  (2)   The flexibility term must:

  (a)   set out the terms of the enterprise agreement the effect of which may be varied by an individual flexibility arrangement agreed to under the flexibility term; and

  (b)   require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term:

  (i)   must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and

  (ii)   must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.

  (2A)   If, in accordance with this Part, the enterprise agreement includes terms that would be outworker terms if they were included in a modern award, the flexibility term must not allow the effect of those outworker terms to be varied.

Requirement for genuine agreement

  (3)   The flexibility term must require that any individual flexibility arrangement is genuinely agreed to by the employer and the employee.

Requirement that the employee be better off overall

  (4)   The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.

Requirement relating to approval or consent of another person

  (5)   Except as required by subparagraph   (7)(a)(ii), the employer must ensure that the flexibility term does not require that any individual flexibility arrangement agreed to by an employer and employee under the term be approved, or consented to, by another person.

Requirement relating to termination of individual flexibility arrangements

  (6)   The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated:

  (a)   by either the employee, or the employer, giving written notice of not more than 28 days; or

  (b)   by the employee and the employer at any time if they agree, in writing, to the termination.

Other requirements

  (7)   The flexibility term must require the employer to ensure that:

  (a)   any individual flexibility arrangement agreed to under the term must be in writing and signed:

  (i)   in all cases--by the employee and the employer; and

  (ii)   if the employee is under 18--by a parent or guardian of the employee; and

  (b)   a copy of any individual flexibility arrangement agreed to under the term must be given to the employee within 14 days after it is agreed to.