Full Bench found that an individual flexibility agreement, concluded pursuant to a flexibility clause in an enterprise agreement, does not change the terms of the agreement, but that the agreement alters the legal rights of the parties to it on the relevant points. In other words, an individual flexibility regime changes the effect of a duration of the enterprise agreement and not the term itself. If the Fair Work Commission approves an enterprise agreement and the standard flexibility clause is considered the duration of the agreement, it must be recorded in the approval decision of the agreement.  Modern bonuses and enterprise agreements set minimum working conditions for categories of workers in similar positions or working with the same employer. These instruments are collective in nature and apply to many workers. They must therefore not take into account the particular circumstances of the workers and the employer. However, any modern attribution and enterprise agreement must include a concept of “flexibility.” If an enterprise agreement does not contain a concept of flexibility, it will be carried out in such a way as to include the concept of standard flexibility defined in the Fair Work Regulations 2009. You`ll find a link in the “More Information” section at the end of this manual. The Commission`s distinction between the modification of a concept and the variation in the effect of a term is not a valid distinction. The practical effect of an individual flexibility agreement, concluded as part of a period of flexibility, was to change the terms of an enterprise agreement with regard to the employer and the individual worker. A flexibility clause allows an employer and an individual worker to agree on an agreement that varies the effect of the awarding or modern enterprise agreement, in order to meet the real needs of the employer and the individual worker. The FW Act ensures that these provisions do not infringe on the minimum rights of workers by requiring the employer to ensure that, on the whole, the worker covered by the IFA is better off than the modern attribution or enterprise agreement, which varies between the IFA. 4.
The employer must, within 14 days after consultation, subdivide to the worker a copy of the individual flexibility agreement. An IFA can be used to vary certain conditions of a bonus or modern business agreement, as it applies to staff covered by the IFA.