DETERMINATION

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

4 yearly review of modern awards—plain language re-drafting—standard clauses
(AM2016/15)

TEXTILE, CLOTHING, FOOTWEAR AND ASSOCIATED INDUSTRIES AWARD 2010
[MA000017]

4 yearly review of modern awards -plain language re-drafting - standard clauses - Textile, Clothing, Footwear and Associated Industries Award 2010 - correction determination.

A. The determination issued by the Full Bench on 20 August 2019 [PR711479] is corrected as follows:

1. By deleting item A.1 and inserting the following:

1. By deleting clause 7—Award flexibility and inserting the following:

7. Individual flexibility arrangements

7.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

(a) arrangements for when work is performed; or

(b) overtime rates; or

(c) penalty rates; or

(d) allowances; or

(e) annual leave loading.

7.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.

7.3 An agreement may only be made after the individual employee has commenced employment with the employer.

7.4 An individual flexibility agreement cannot be made so as to affect the provisions of Schedule F—Outwork and Related Provisions.

7.5 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 reasonably should 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.

7.6 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.

7.7 An agreement must do all of the following:

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

(b) identify the award term, or award terms, the application of which is to be varied; and

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

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

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

7.8 An agreement must be:

(a) in writing; and

(b) signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

7.9 Except as provided in clause 7.8(b), an agreement must not require the approval or consent of a person other than the employer and the employee.

7.10 The employer must give the employee up to 7 working days to enable the employee to seek advice, where appropriate, from the employee’s union.

7.11 The employer must keep the agreement as a time and wages record and give a copy to the employee.

7.12 The employer and the employee must genuinely agree, without duress or coercion to any variation of an award provided for by an agreement.

7.13 An agreement may be terminated:

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

(b) by the employer or employee giving 13 weeks’ written notice to the other party (reduced to 4 weeks if the agreement was entered into before the first full pay period starting on or after 4 December 2013).

NOTE: If an employer and employee agree to an arrangement that purports to be an individual flexibility arrangement under this award term and the arrangement does not meet a requirement set out in section 144 then the employee or the employer may terminate the arrangement by giving written notice of not more than 28 days (see section 145 of the Act).

7.14 An agreement terminated as mentioned in clause 7.13(b) ceases to have effect at the end of the period of notice required under that clause.

7.15 The right to make an agreement under clause 7 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.

2. By renumbering item A.7 to A.8 as item A.8 to A.9.

3. By inserting a new item A.7 as follows:

7. By deleting the words “clauses 10.1 and 10.2” appearing in clause F.5.8 and inserting “clause 10”.

B. This determination comes into operation from 30 August 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 30 August 2019.

PRESIDENT

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