The Fair Work Commission, constituted by the Full Bench comprising Vice President Gibian, Deputy President Dobson and Deputy President Butler, makes the following determination.
Dated 21 February 2025
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VICE PRESIDENT
Contents
1 Name
2 Commencement
3 Authority
4 Definitions
5 Model flexibility term for enterprise agreements
6 Model consultation term for enterprise agreements
7 Model term for enterprise agreements about dealing with disputes
8 Model term for copied State instruments about dealing with disputes
Schedule 1—Model flexibility term for enterprise agreements
Schedule 2—Model consultation term for enterprise agreements
Schedule 3—Model term for enterprise agreements about dealing with disputes
Schedule 4—Model term for copied State instruments about dealing with disputes
1 Name
This instrument is the Fair Work (Model Terms) Determination 2025.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
The whole of this instrument The later of:(a) the day after this instrument is registered; and(b) the day on which Part 5 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 commences.
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under the following provisions of the Fair Work Act 2009:
(a) subsection 202(5);
(b) subsection 205(3);
(c) subsection 737(1);
(d) subsection 768BK(1A).
4 Definitions
In this instrument:
Act means the Fair Work Act 2009.
5 Model flexibility term for enterprise agreements
For the purposes of subsection 202(5) of the Act, the model flexibility term for enterprise agreements is set out in Schedule 1 to this instrument.
6 Model consultation term for enterprise agreements
For the purposes of subsection 205(3) of the Act, the model consultation term for enterprise agreements is set out in Schedule 2 to this instrument.
7 Model term for enterprise agreements about dealing with disputes
For the purposes of subsection 737(1) of the Act, the model term for dealing with disputes for enterprise agreements is set out in Schedule 3 to this instrument.
8 Model term for copied State instruments about dealing with disputes
For the purposes of subsection 768BK(1A) of the Act, the model term for settling disputes about matters arising under a copied State instrument for a transferring employee is set out in Schedule 4 to this instrument.
Schedule 1—Model flexibility term for enterprise agreements
Note: See section 5.
An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:
the arrangement deals with 1 or more of the following matters:
1. arrangements about when work is performed;
2. overtime rates;
3. penalty rates;
4. allowances;
5. leave loading; and
the arrangement meets the genuine needs of the employer and employee in relation to the matter or matters it deals with; and
the arrangement is genuinely agreed to by the employer and employee, without coercion or duress.
An individual flexibility arrangement may only be made after the individual employee has commenced employment with the employer.
An employer who wishes to initiate the making of an individual flexibility arrangement must:
give the employee a written proposal; and
if the employer is aware that the employee has, or should reasonably be aware that the employee may have, limited understanding of written English, take reasonable steps to ensure that the employee understands the proposal.
If the employer proposes to enter into an individual flexibility arrangement with an employee, the employer must meet with the employee to discuss the proposal prior to entering the individual flexibility arrangement if the employee requests such a meeting.
The employer must ensure that the terms of the individual flexibility arrangement:
are about permitted matters under section 172 of the Fair Work Act 2009; and
are not unlawful terms under section 194 of the Fair Work Act 2009; and
result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.
The employer must ensure that the individual flexibility arrangement:
is in writing; and
includes the name of the employer and employee; and
is signed by the employer and employee and, if the employee is under 18 years of age, is signed by a parent or guardian of the employee; and
includes details of:
1. the terms of the enterprise agreement that will be varied by the arrangement; and
2. how the arrangement will vary the effect of the terms; and
3. how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and
states the day on which the arrangement commences; and
describes how the individual flexibility arrangement can be terminated.
The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
The employer or employee may terminate the individual flexibility arrangement:
at any time, by agreement in writing between the employer and the employee; or
by the employer or the employee giving 28 days written notice to the other party.
An individual flexibility arrangement terminated in accordance with clause (8)(b) ceases to have effect at the end of the period of notice required under that clause.
The employer or employee may use the dispute settlement procedure in this enterprise agreement to deal with disputes that may arise concerning the matters dealt with in the individual flexibility arrangement.
Note: In addition to this clause, the National Employment Standards of the Fair Work Act 2009 give some employees the right to request flexible working arrangements in certain circumstances.
Schedule 2—Model consultation term for enterprise agreements
Note: See section 6.
Application of consultation term
This term applies if the employer:
has made a definite decision to introduce a major change to production, program, organisation, structure or technology that is likely to have a significant effect on employees to which this enterprise agreement applies; or
proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Consultation in relation to major workplace change
For a major change referred to in subclause (1)(a):
the employer must notify the relevant employees of the decision to introduce the major change; and
subclauses (3) to (9) apply.
The relevant employee or employees may advise the employer that a person or employee organisation is their representative for the purposes of the procedures in this clause in relation to a major workplace change.
If:
a relevant employee, or the relevant employees, advise the employer that a person or employee organisation is their representative for the purposes of consultation; and
the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
The employer must notify the relevant employees and their representatives (if any) of the decision to introduce the change.
As soon as practicable after making its decision, the employer must:
consult with the relevant employees and their representatives (if any), including by discussing with them:
the introduction of the change; and
the effect the change is likely to have on the employees; and
measures to avoid or reduce any adverse effect of the change on the employees; and
for the purposes of the consultation—provide, in writing, to the relevant employees and their representatives (if any):
all relevant information about the change including the nature of the change proposed; and
the reasons or justification for the change; and
information about the expected effects of the change on the employees; and
any other matters likely to affect the employees.
However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees or their representatives (if any).
The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees and their representatives (if any).
The employer will take reasonable steps to communicate the outcome of the consultation process including the consideration that was given to matters raised about the major workplace change by the relevant employees and their representatives (if any).
If a term in this agreement provides for the introduction of a major workplace change in relation to the enterprise of the employer, the requirements to consult contained in clauses (3) to (9) are taken not to apply.
In this term, a major workplace change is “likely to have a significant effect on employees” if it results in:
the termination of the employment of employees; or
major change in the composition, operation or size of the employer’s workforce or to the skills required of employees; or
the loss of, or reduction in, job or promotion opportunities; or
the loss of, or reduction in, job tenure or job security; or
the alteration of hours of work; or
the need for employees to be retrained or transferred to other work or locations; or
job restructuring.
Consultation in relation to change to regular roster or ordinary hours of work
For a change referred to in subclause (1)(b):
the employer must notify the relevant employees and their representatives (if any) in writing of the proposed change; and
subclauses (13) to (18) apply.
The relevant employee or employees may advise the employer that a person or employee organisation is their representative for the purposes of the procedures in this clause in relation to changes to regular rosters or ordinary hours of work.
If:
a relevant employee, or the relevant employees, advise the employer that a person or employee organisation is their representative for the purposes of consultation; and
the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
As soon as practicable after proposing to introduce the change, the employer must:
consult with the relevant employees and their representatives (if any) about the introduction of the change, including by discussing the change with them; and
for the purposes of the consultation—provide to the relevant employees and their representatives (if any):
all relevant information about the change, including the nature and expected duration of the change; and
information about what the employer reasonably believes will be the effects of the change on the employees (including any effect on the employee’s remuneration); and
information about any other matters that the employer reasonably believes are likely to affect the employees; and
invite the relevant employees and their representatives (if any) to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees or their representatives (if any).
The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees or their representatives (if any).
The employer will take reasonable steps to communicate the outcome of the consultation process including the consideration that was given to matters raised about the change to the regular roster or ordinary hours of work of employees by the relevant employees and their representatives (if any).
Definition
In this term:
relevant employees means the employees who may be affected by a change referred to in subclause (1).
Schedule 3—Model term for enterprise agreements about dealing with disputes
Note: See section 7.
If a dispute relates to:
a matter arising under the agreement; or
the National Employment Standards;
this term sets out procedures to settle the dispute.
The parties to a dispute referred to in this procedure may include:
an employee or employees covered by the agreement who are, or will be, affected by the dispute;
the employer or employers covered by the agreement; and
an employee organisation who:
has a member who it is entitled to represent and who is an employee referred to in (a); or
is covered by the enterprise agreement and entitled to the benefit of, or has a role or responsibility with respect to, the matter in dispute.
An employee who is a party to the dispute may advise the employer that a person or employee organisation is their representative for the purposes of the procedures in this term.
In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the relevant employee or employees, relevant supervisors and/or management and any relevant employee organisation.
If the discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
The Fair Work Commission may deal with a dispute referred to it under subclause (5) even if the requirement for discussions in subclause (4) has not been complied with if the Fair Work Commission is satisfied that it is appropriate in all the circumstances to do so.
The Fair Work Commission may deal with the dispute in 2 stages:
the Fair Work Commission will first attempt to resolve the dispute in such manner as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
arbitrate the dispute; and
make a determination that is binding on the parties.
If the Fair Work Commission arbitrates the dispute:
it may also use any of the powers that are available to it under the Fair Work Act 2009 (Cth), including, but not limited to, the power to grant interim relief; and
a decision that the Commission makes when arbitrating a dispute is a decision for the purposes of Division 3 of Part 5-1 of the Fair Work Act 2009 (Cth) and a person aggrieved by the decision may seek to appeal the decision as provided for in that Act.
Subject to any order made by the Fair Work Commission under subclause (8)(a), while the parties are trying to resolve the dispute using the procedures in this term:
an employee must continue to perform work as the employee normally would unless the employee has a reasonable concern about an imminent risk to health or safety; and
an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
the work is not safe; or
applicable occupational health and safety legislation would not permit the work to be performed; or
the work is not appropriate for the employee to perform; or
there are other reasonable grounds for the employee to refuse to comply with the direction.
The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.
Note: In addition to this clause, theFair Work Act 2009 contains dispute resolution procedures as follows:
Request flexible working arrangements: section 65B
Change casual employment status: section 66M
Request an extension to unpaid parental leave: section 76B
Exercise an employee’s right to disconnect: section 333N
Schedule 4—Model term for copied State instruments about dealing with disputes
Note: See section 8.
This term sets out procedures to settle a dispute about a matter arising under a copied State instrument.
The parties to a dispute referred to in this procedure may include:
an employee or employees covered by the copied State instrument who are, or will be, affected by the dispute;
the employer or employers covered by the copied State instrument; and
an employee organisation who:
has a member who it is entitled to represent and who is an employee referred to in (a); or
is covered by the copied State instrument and entitled to the benefit of, or has a role or responsibility with respect to, the matter in dispute.
An employee who is a party to the dispute may advise the employer that a person or employee organisation is their representative for the purposes of the procedures in this term.
In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the relevant employee or employees, relevant supervisors and/or management and any relevant employee organisation.
If the discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
The Fair Work Commission may deal with a dispute referred to it under subclause (5) even if the requirement for discussions in subclause (4) has not been complied with if the Fair Work Commission is satisfied that it is appropriate in all the circumstances to do so.
The Fair Work Commission may deal with the dispute in 2 stages:
the Fair Work Commission will first attempt to resolve the dispute in such manner as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
arbitrate the dispute; and
make a determination that is binding on the parties.
If the Fair Work Commission arbitrates the dispute:
it may also use any of the powers that are available to it under the Fair Work Act 2009 (Cth), including, but not limited to, the power to grant interim relief; and
a decision that the Commission makes when arbitrating a dispute is a decision for the purposes of Division 3 of Part 5-1 of the Fair Work Act 2009 (Cth) and a person aggrieved by the decision may seek to appeal the decision as provided for in that Act.
Subject to any order made by the Fair Work Commission under subclause (8)(a), while the parties are trying to resolve the dispute using the procedures in this term:
an employee must continue to perform work as the employee normally would unless the employee has a reasonable concern about an imminent risk to health or safety; and
an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
the work is not safe; or
applicable occupational health and safety legislation would not permit the work to be performed; or
the work is not appropriate for the employee to perform; or
there are other reasonable grounds for the employee to refuse to comply with the direction.
The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.
Note: In addition to this clause, theFair Work Act 2009 contains dispute resolution procedures as follows:
Request flexible working arrangements: section 65B
Change casual employment status: section 66M
Request an extension to unpaid parental leave: section 76B
Exercise an employee’s right to disconnect: section 333N