Fair Work Commission

The agreement does not include a dispute settlement term that meets the requirements in the Fair Work Act 2009 and Fair Work Regulations.

For example: it does not expressly:

• allow settling disputes in relation to the NES
• allow the representation of employees in a dispute, or
• provide for the Fair Work Commission or another independent person to settle disputes.

The dispute settlement term in an agreement must:

• provide a procedure to settle disputes about any matters arising under the agreement and in relation to the NES, and
• require or allow the Commission or another independent person to settle such disputes, and
• allow for representation of employees if there is a dispute.

The model term in Schedule 6.1 of the Fair Work Regulations may be used. If a term is not included or does not meet the Fair Work Act's requirements, the Commission must reject the agreement or require an undertaking.^[1]

The agreement does not include a flexibility term or a consultation term that meets the requirements in the Fair Work Act and Fair Work Regulations.

A flexibility term allows an employer and employee to make an individual flexibility arrangement (IFA) which varies the effect of terms of the agreement, in order to meet their genuine needs. A consultation term requires the employer to consult with employees about: a major workplace change that is likely to have a significant effect on the employees; or a change to their regular roster or ordinary hours of work.

For example; an agreement may contain a flexibility term that does not provide for the employer or employee to terminate an IFA by giving not more than 28 days' notice.

An agreement must contain a flexibility term that complies with the requirements in ss.202 and 203 of the Fair Work Act, and a consultation term that complies with s.205 of the Fair Work Act.^[2]

Agreements may use the model terms in Schedules 2.2 and 2.3 of the Fair Work Regulations.

Where an agreement does not include a flexibility or consultation term or includes a non-compliant term, the model terms will apply. However, it may take longer to process an agreement application where the Commission must decide whether a flexibility or consultation term in the agreement is compliant in all respects.