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.

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.