AIG Disputes FWA’s Flexibility Clause Decision

26 March 2010

The Australian Industry Group (AIG) has intervened in the government’s appeal against a recent Fair Work Australia (FWA) decision that found that individual flexibility arrangements (IFAs) in workplace laws cannot be used to vary the terms of an enterprise agreement.

In terms of the Fair Work Act 2009, an IFA must be included in all new enterprise agreements.

In a recent FWA decision, Commissioner Ryan found that an IFA clause in the TriMas Corporation enterprise agreement could not be used to vary the terms of the agreement but could only vary the effect of the terms of the agreement specified within the flexibility term.

AIG submitted that this decision was incorrect and that the decision created “uncertainty and threatened the validity of a large portion of the IFAs already made”.

AIG chief executive, Heather Ridout claimed that “IFAs were designed to provide the flexibility for agreements to be reached between employers and individual employees in the absence of AWAs”.  She further submitted that the FWA’s decision was “vague and uncertain and would result in it being almost impossible for anyone to work out whether a proposed IFA is lawful or unlawful”.

AIG has intervened in the government’s appeal which will be heard on 21 April 2010. The TriMas matter is the fourth full bench case relating to new enterprise bargaining laws in which AIG is either the applicant or has intervened.