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The process of award modernisation has taken a step further today with the release of the list of priority industries and occupations for which modern awards are to be made by the end of this year and the publication of a model flexibility clause. Both were announced this afternoon by the Australian Industrial Relations Commission. Awards to apply to priority industries must be completed by 19 December 2008 and the whole process must be completed by 4 December 2009.
Priority Industries
The Model Flexibility Clause
1. 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.
2. The employer and the individual employee must have genuinely made the agreement without coercion or duress.
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 sub-clause 1; and
(b) not disadvantage the individual employee in relation to the individual employee’s terms and conditions of employment;
4. For the purposes of sub-clause 3(b) the agreement will be taken not to disadvantage the individual employee in relation to the individual employee’s terms and conditions of employment if:
(a) the agreement does not result, on balance, in a reduction in the overall terms and conditions of employment of the individual employee under this award and any applicable agreement made under the Workplace Relations Act 1996 (Cth), as those instruments applied as at the date the agreement commences to operate; and
(b) the agreement does not result in a reduction in the terms and conditions of employment of the individual employee under any other relevant laws of the Commonwealth or any relevant laws of a State or Territory.
5. 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 does not disadvantage the individual employee in relation to the individual employee’s terms and conditions of employment; and
(e) state the date the agreement commences to operate.
6. The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
7. The agreement may be terminated:
(a) by the employer or the individual employee giving four 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.
8. 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.
If you have any queries, please do not hesitate to contact us on (02) 9458 7005.
