12 June 2013

Full Bench extends termination requirement of Award based IFAs to 13 weeks

A full bench decision by the Fair Work Commission (FWC) has determined that employers and employees are now required to provide 13 weeks’ notice when they wish to terminate an Individual Flexibility Agreement (IFA).  Previously the notice period when either party wished to terminate the arrangement was four weeks. The 90 days or 13 weeks’ extended period was one of the recommendations made by the Panel that reviewed the operation of the Fair Work Act. Their Report was tabled last year.

As part of this decision the full bench rejected applications to vary the scope of the model flexibility term but made a number of other variations to the model term including the notice period.
 

Another variation was made to the Act by the full bench to assist with the intent of the flexibility in that an IFA should not be entered into before the commencement of employment. The Commission found that the evidence provided suggested that a significant proportion of IFAs were entered into before the employee commenced employment that is contrary to the intent of model flexibility clause of the Act. To address this issue the Full Bench decided to insert the following words in the model flexibility term:

‘An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.’

A summary of the decision may be found here