The Law Handbook 2024

1060 Section 11: Rights, activism and fair treatment at work provides minimum entitlements to employees and cannot be excluded by an enterprise agreement (s 55). The minimum entitlements of employees can be improved in an enterprise agreement. • A flexibility term . Under section 202 of the FW Act, an enterprise agreement must contain a flexibility term that allows an employee and an employer to agree to an arrangement varying the effect of the enterprise agreement in order to meet the genuine needs of the employee and employer. The flexibility term must require the employer to ensure that the employee is better off overall under the proposed flexibility arrangement. If the enterprise agreement does not contain a flexibility term, then the model flexibility term prescribed by the regulations will be taken as a term of the enterprise agreement. • A consultation term . An enterprise agreement must contain a consultation term that requires an employer to consult with employees about major workplace change that is likely to have a significant effect on employees (s 205). If the enterprise agreement does not contain a consultation term, then the model consultation term prescribed by the regulations will be taken as a term of the enterprise agreement. What an agreement may contain The content of an enterprise agreement is substantially in the hands of the parties. For matters to be included in an enterprise agreement under the FW Act, they must fall within one of the following categories: • matters relating to the relationship between the employer(s) and the employees; • matters relating to the relationship between the employer(s) and the relevant union(s); • deductions from wages authorised by the employee; and • how agreements will operate. See section 172(1) of the FW Act. What an agreement must not contain An enterprise agreement made under the FW Act must not contain any unlawful terms (s 186(4)). Unlawful terms are defined in section 194 of the FW Act to include: • discriminatory terms : these are terms that discriminate on the basis of an employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin; • objectionable terms : these are terms that require or permit conduct that is in breach of the ‘general protections’ contained in the FW Act ( see Chapter 11.6: Protection for your rights at work); • terms that provide a method whereby an employer or employee may elect to not be covered by the agreement ; • terms that confer additional rights on an employee to claim unfair dismissal before reaching the minimum employment period or exclude or detrimentally modify an employee’s unfair dismissal rights (for a definition of ‘unfair dismissal’, see Chapter 11.6: Protection for your rights at work); • objectionable emergency management terms (s 195A FW Act); • terms that are inconsistent with employees’ or employers’ rights in relation to industrial action ; and • terms that modify union officials’ rights of entry into workplaces. Operation of enterprise agreements under the Fair Work Act When enterprise agreements come into force Under the FW Act (s 54), an enterprise agreement comes into operation seven days after it is approved by the FWC, or at a later date specified in the agreement. Expiry dates of enterprise agreements Under section 186(5) of the FW Act, an enterprise agreement’s expiry date must be no later than four years from the date the agreement was approved by the FWC. If no expiry date is specified in an enterprise agreement, then the expiry date is four years from the date the agreement was approved by the FWC.