Flexibility clauses

Q&A

Flexibility clauses

Do you have any more information on 'industrial flexible clauses' which are to be part of modern awards and agreements when they come into effect from 1 January 2010?

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The following question sent to WorkplaceInfo raised this issue.
 
Do you have any more information on 'industrial flexible clauses' which are to be part of modern awards and agreements when they come into effect from 1 January 2010?
 
Modern awards will allow for flexibility arrangements to be introduced into the workplace through either a majority of employees in a workplace, agreement with an individual employee, or a combination of both. 
 
For example, under the draft Manufacturing, etc, Award, the following provisions in the award may be altered by individual agreement:
  • minimum engagement for part-time employees
  • variation to hours of part-time employees
  • minimum engagement for casuals
  • annualised salary arrangement
  • tool allowance
  • make-up time
  • meal break
  • time off in lieu of overtime
  • rest period after overtime
  • rest break.
 
Award provisions which may be altered by either a majority agreement or by individual agreement include:
  • period of casual election to convert
  • payment of wages
  • ordinary hours of work for day workers on weekends
  • variation to the spread of hours for day workers and shift workers
  • methods of arranging ordinary working hours
  • working in excess of five hours without a meal break
  • substitution of public holidays.
 
Award provisions which may be changed by both the employer and the majority of employees in the establishment, or a section or sections within a workplace, include:
  • ordinary hours of work, continuous shift workers
  • ordinary hours of work, non-continuous shift workers
  • 12-hour shifts
  • public holiday shifts
  • conversion of annual leave to hourly entitlement
  • annual close-down.
 
Most of these provisions relate to the method of working ordinary hours within a workplace. 
 
Flexibility in working ordinary hours would assist an employer to avoid any unnecessary penalty rates, or provide other workplace efficiencies, when ordinary hours need to be worked as part of the employer’s operational requirements. 
 
Under WorkChoices, ‘enterprise flexibility’ provisions are unenforceable under a pre-reform federal award as a non-allowable award matter (although not under a NAPSA). ‘Facilitative provisions’ similar to those proposed in modern awards were common in pre-WorkChoices federal and state awards, and it would seem these provisions will be available again in the workplace.
 
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