Country Fire Authority

[2017] FWCA 3445

[2017] FWCA 3445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Country Fire Authority
(AG2017/1288)

COUNTRY FIRE AUTHORITY PROFESSIONAL, TECHNICAL AND ADMINISTRATIVE AGREEMENT 2016

State and Territory government administration
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 30 JUNE 2017

Application for approval of the Country Fire Authority Professional, Technical and Administrative Agreement 2016.

[1] An application has been made for approval of the Country Fire Authority Professional, Technical and Administrative Agreement 2016. The application was made pursuant to s.185 of the Fair Work Act 2009. It has been made by the Country Fire Authority. The agreement is a single enterprise agreement.

[2] A notice of employee representational rights was provided to employees on 10 August 2016 1 and the notice complied with the regulations.2 Employees were provided with access to the proposed agreement and information about the effect of the terms of the Agreement along with a notice of the time and place and method of voting was provided to employees on 15 March 2017. Voting occurred between 25 March 2017 and 2 April 2017 and a majority of those who voted approved the Agreement.3

[3] The United Firefighters’ Union of Australia, the Australian Municipal, Administrative, Clerical and Services Union and The Association of Professional Engineers, Scientists and Managers, Australia were bargaining representatives for the Agreement. In addition, a number of employee bargaining representatives were appointed.

[4] The CFA filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test was the State Government Agencies Award 2010.

[5] The statutory declaration noted that the provisions were more beneficial than the Award or were not conferred by the Award. It noted that the only less beneficial term was the non-payment of Annual Leave Loading.

[6] The three unions all filed statutory declarations supporting the approval of the Agreement. The ASU and APESMA agreed with the statutory declaration but Mr Peter Marshall, on behalf of the UFU, stated that he had not read the CFA’s statutory declaration.

The better off overall test

[7] On 10 May 2017, the Commission wrote to the CFA and the bargaining representatives and advised that:

1. The flexibility term was inconsistent with s.203(3) of the Act. The advice noted that as a consequence the model flexibility term would be taken to be a term of the Agreement.

2. The Agreement rates for a number of classifications in the Legal, Professional and Engineering Streams fell below the Award rates.

3. The time of in lieu clause did not provide the additional provisions as set out in clause 23.4 of the Award.

4. Clause 46.6.1 which entitled an employer to direct an employee to take annual leave did not contain the safeguards set out in clause 24.7 of the Award.

5. The Agreement provided for different rates for the availability allowance and it was noted that it was unclear which applied.

6. The Agreement provided for less beneficial terms namely:

● No annual leave loading.

● The averaging of ordinary hours over 4 weeks where the Award only permits averaging over this time for shift workers.

● Overtime is payable after 44 hours whereas it is payable after 38 hours in the Award.

● The spread of hours is 8am to 8pm Monday to Friday and 7am to 7pm Monday to Friday for incident management employees where the Award span of hours is 7am to 6.30pm Monday to Friday.

Rates of Pay

[8] The CFA replied and advised that the minimum entry level for an engineer was Level 3, paypoint 5. 4 Further it said that the minimum entry point for a legal officer would be Level 4, paypoint 1. In respect of the professional stream – information technology officers the minimum entry point would be Level 3, paypoint 5. In each case it was submitted that even when the leave loading was considered, the minimum rates of pay would exceed the equivalent classification in the Award.

[9] The CFA gave undertakings to reflect that submission.

TOIL

[10] In relation to the time off in lieu, the CFA submitted that the provision was more beneficial as the time in lieu is calculated at overtime rates rather than time for time. For example, an employee who works 1 hour overtime under the Agreement will accrue 1.5 hours TOIL whereas under the Award he or she would accrue 1 hour TOIL.

[11] The CFA gave undertakings in relation to the paying out of untaken TOIL upon request and upon termination.

[12] At the hearing, the CFA further noted that the Award employees in receipt of a salary in excess of that prescribed for the top of the Administrative Officer Grade 6, are not paid overtime and the highest hourly rate for overtime is the top of the Administrative Officer Grade 4. No such limitation exists under the Agreement.

Directed Annual Leave

[13] The CFA submitted that clause 46.6.1 does not authorise the CFA to direct employees to take annual leave if it would result in the employee’s remaining accrued entitlements being less than 6 weeks and it does not intend issuing such a direction.

[14] Further it submitted that clause 46.6.1 does not authorise the CFA to direct employees to take any period of annual leave of less than one week and the CFA does not intend issuing such a direction.

[15] The CFA submitted that the leave reduction plan was consistent with clause 24.7 of the Award.

Availability Allowance

[16] The CFA submitted that the allowance in clause 28 applies to incident management support and the allowance in clause 37 applies to all other roles.

Annual leave loading

[17] The CFA submitted that the higher rates of pay permit the rolling up of the loading.

Hours of work and overtime

[18] The CFA submitted that employees were not worse off under this clause as employees are entitled to overtime if they work more than 152 hours in a four week period or more than 44 hours in any one week or more than 10 hours in any one day even without taking into account the higher base rate and the more generous TOIL arrangements.

Expanded hours

[19] The CFA submitted that for most employees the higher rate of pay compensates them for the change in the span of hours. It accepted that for some employees there may be a shortfall. It submitted that these employees are generally only rostered to work ordinary hours infrequently. It submitted that the higher base rate of pay is more than sufficient to account for the sporadic occasions when employees may work extended ordinary hours without overtime or TOIL.

[20] It undertook to perform an annual audit of employees engaged in the identified classifications to ensure that they have not regularly performed extended ordinary hours (with the consequence that they have been underpaid in comparison to what they would have received under the Award) and to rectify any shortfall.

[21] The employee bargaining representative responded to the Commission’s concerns and raised further concerns.

[22] On 25 May 2017, the Commission responded to the CFA and advised that it still had concerns about the provisions in relation to annual leave loading as well as given the spread of hours and the overtime provisions. In particular it provided information which showed that for all classifications where the rate of pay was not 11.45% or more above the Award, the employees working overtime would not be better off.

[23] On 29 May 2017, the CFA provided its undertakings:

“Pursuant to section 190 of the Fair Work Act 2009 (Cth) and regulation 2.07 of the Fair Work Regulations 2009 (Cth), Country Fire Authority (CFA) hereby gives the following written undertaking in respect of the Country Fire Authority Professional, Technical and Administrative Agreement 2016 (Agreement).

1. The effect of this undertaking will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

Schedule 1 - Rates of pay

Legal Stream - Legal officers

2. CFA does not currently employ any legal officers in the Legal Stream who would be classified below Level 4, Paypoint of the Agreement. For any new employees, the minimum entry point for a legal officer in the Legal Stream is Level 4, Paypoint 1.

3. CFA undertakes that all legal officers in the Legal Stream (whether employed before or after the commencement of the Agreement) will receive at least the rates of pay under the Agreement for classification Leve14, Paypoint 1.

Engineering Stream – Engineers

4. CFA does not currently employ any engineers in the Engineering Stream who would be classified below Level 4 under the Proposed PTA Agreement. For any new employees, the minimum entry point for an engineer in the Engineering Stream under the Proposed PTA Agreement is Level 3, Paypoint 5.

5. CFA undertakes that all engineers in the Engineering Stream (whether employed before or after the commencement of the Agreement) will receive at least the rates of pay under the Agreement for classification Level 3, Paypoint 5.

Professional Stream - Information technology officers

6. CFA does not currently employ any information technology officers (ITOs) in the Professional Stream who would be classified below Level 4 under the Proposed PTA Agreement. For any new employees, the minimum entry point for an ITO in the Professional Stream under the Proposed PTA Agreement is Level 3, Paypoint 5.

7. CFA undertakes that ITOs in the Professional Stream (whether employed before or after the commencement of the Agreement) will receive at least the rates of pay under the Agreement for classification Level 3, Paypoint 5.

Clause 26.4.3 -Time off in lieu

8. Clause 26.4.1 of the Proposed PTA Agreement provides that accrual of time off in lieu of overtime worked (TOIL - Overtime) is to be managed by employees and their manager to ensure that TOIL - Overtime is taken, where possible and practicable, within 28 days of accrual.

9. Consistent with its current practice, CFA undertakes that employees to be covered by the Agreement will be able to request that their accrued, but untaken, TOIL - Overtime entitlements are paid out. Where an employee makes such a request, CFA undertakes that the accrued TOIL - Overtime will be paid out at the overtime rate of pay provided by clause 26.2.4 of the Agreement.

10. Consistent with its current practice, CFA undertakes that employees to be covered by the Agreement will receive payment for any accrued, but untaken, TOIL - Overtime entitlements at the time of termination of employment. Where an employee is entitled to receive payment for any accrued, but untaken, TOIL - Overtime entitlements on termination, it will be paid out at the overtime rate of pay provided by clause 26.2.4 of the Agreement.

Directed annual leave

11. CFA undertakes that any direction issued to employees to participate in a leave reduction plan pursuant to clause 46.6.1 of the Agreement will be consistent with clause 24.7 of the State Government Agencies Award 2010 (Award). Specifically, CFA undertakes that:

(a) it will genuinely try to reach agreement with an employee who has accrued more than eight weeks' paid annual leave regarding the reduction or elimination of the excessive leave accrual;

(b) where, having genuinely tried to reach agreement with the employee in accordance with subparagraph (a) above, agreement has not been reached, CFA may issue a written direction to the employee to take one or more periods of paid annual leave;

(c) any direction issued in accordance with subparagraph (b) above will:

(i) have no effect if it would result in the employee's remaining accrued entitlement to paid annual leave being less than six weeks, when any other paid annual leave arrangements are taken into account;

(ii) not require the employee to take any period of paid annual leave of less than one week;

(iii) not require the employee to take a period of paid annual leave beginning less than eight weeks, or more than 12 months, after the direction is given; and

(iv) must not be inconsistent with any leave arrangement agreed between CFA and the employee.

Reduction in entitlements

Annual/eave loading

12. Pursuant to clause 46.3 of the Agreement, employees are not entitled to receive annual leave loading. The value of a 17.5% annual leave loading has been absorbed into the pay scales set out at schedule 1 of the Agreement.

13. CFA undertakes that if in any employee would be entitled to higher earnings under the Award than under the Agreement because of the operation of sub-clause 24.2 of the Award, insofar as it provides for the payment of a loading of 17.5% ordinary rates (excluding overtime and allowances) in addition to the ordinary rates as prescribed in clause 14 of the Award for a period of annual leave, then CFA will pay to the employee earnings of at least as much as they would be entitled to under the Award.

Averaging of ordinary hours over four weeks

14. If an employee who works more than 38 hours per week:

(a) would be entitled to earnings under the Award (due to the operation of clauses 21.1 and 23.1 of the Award, which provide for the payment of overtime where an employee is required to work more than 38 hours per week); and

(b) such earnings are greater than the earnings the employee would be entitled to receive under the Agreement (which provides for the payment of overtime where an employee is required to work in excess of 38 hours per week, averaged over four weeks (at clauses 24.1 and 26.1.2.1 and 26.2.1 ));

then CFA undertakes to pay to the employee earnings of at least as much as they would be entitled to receive under the Award.

Payment of overtime

15. If an employee who works more than 38 hours per week:

(a) would be entitled to higher earnings under the Award (due to the operation of clauses 21.1 and 23.1 of the Award, which provide for the payment of overtime where an employee is required to work more than 38 hours per week); and

(b) such earnings are greater than the earnings the employee would be entitled to receive under the Agreement (which provides for the payment of overtime where an employee is required to work more than 44 hours in any single week, or more than 38 hours per week averaged over four weeks (at clauses 24.1; 26.1.2.1; 26.1.2.2 and 26.2.1);

then CFA undertakes to pay to the employee earnings of at least as much as they would be entitled to under the Award.

Expanded ordinary hours

16. The daily rate of pay for employees regularly and consistently working the maximum extended ordinary hours (to 8.00pm under clause 24.1 of the Agreement (to 7.00pm for incident management employees under clause 28.9.1 of the Agreement)) in the following classifications is less than the daily rate of pay which these employees would receive if working in the corresponding classification until 8.00pm under the Award (which would provide them with an entitlement to 1.5 hours' overtime):

(a) legal officer - Level 4, Paypoints 1, 2, 3, 4 and 5;

(b) engineer - Level 3, Paypoints 5 and 6;

(c) ITOs - Level 3, Paypoints 5, 6 and 7; and

(d) tech assistant - Level 1, Paypoints 1, 2 and 3.

17. Employees in these classifications are generally only rostered to work extended ordinary hours infrequently (e.g. an average of once every few months), and it is not routine for employees in these classifications to work extended ordinary hours.

18. CFA submits that the higher base rate of pay employees in these classifications will receive under the Proposed PTA Agreement is more than sufficient to account for the sporadic occasions when employees may work extended ordinary hours without receiving overtime or TOIL - Overtime.

19. CFA undertakes to perform an annual audit of employees engaged in these classifications and employees engaged in any classification which receive rates of pay under schedule 1 of the Agreement which are not more than 11.45% higher than the base rate of pay for the corresponding classifications under the Award to ensure that they have not regularly performed extended ordinary hours (with the consequence that they have been underpaid in comparison to what they would have received under the Award), and to rectify any shortfall.”

[24] At the hearing, it was submitted by the CFA that undertakings 15 and 19 do not offend the decision of the Federal Court in Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd  5 and the decision of the Full Bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd.6

[25] The Full Bench in Beechworth when considering a make good clause said as follows:

“[42] However, we do not consider that the part of the undertaking contained in paragraph 6 was capable of satisfying any concern that the Agreement did not pass the better off overall test. First, and most obviously, paragraph 6 of the undertaking does not create an enforceable right to any payment, which if made, would mean that a relevant employee would be better off overall under the Agreement than under the applicable modern award. Rather, the undertaking operates only to allow an employee who “considers that . . . they are not better off overall under this agreement than the applicable award” to request a comparison, and thereafter if the comparison identifies a shortfall, the shortfall together with an additional 1.5% payment by reference to the shortfall amount would be paid in the next pay period after the review is completed.

[43] Such obligation to “make good” any shortfall arises only if an employee makes a request for a review. If no such request is made, whether through ignorance or design, or perhaps because an affected employee simply lacks the time, information or ability to form a view, then no obligation to conduct a review, much less “make good” any shortfall, arises. Any concern that an employee or prospective employee would not be better off overall if the Agreement applied to the employee than if the relevant modern award applied to that employee cannot be met by such an undertaking.

[44] In considering whether an undertaking should be accepted as satisfying a concern that an agreement may not pass the better off overall test, it is necessary to analyse the undertaking so as to ensure that it is expressed in a way which will allow it to be enforced as a term of the agreement. An undertaking that in its expression is uncertain, ambiguous, aspirational or perhaps conditional, with the result that it will not create an enforceable entitlement as a term of the agreement, will not likely meet the concern that an agreement does not pass the better off overall test.

[45] The second obvious flaw in the undertaking is that since an employee’s consideration that he or she is not better off overall under the agreement compared to the applicable award arises by reference to a four month period, this necessarily means that any review as might be conducted would only occur three times a year in respect of each employee. The inevitable consequence is a delay in payment to an employee. Moreover, the potential length of the delay is unknown as disputes may arise about the quantum of payment due under the undertaking as is apparent from the dispute resolution mechanism established by the undertaking. In these circumstances it is by no means apparent that a 1.5% increase in payment might compensate an employee for that which could be a substantial difference in entitlements over a potentially lengthy and indeterminate period.

[46] In these circumstances it seems to us that the undertaking proffered in paragraph 6 was not an undertaking capable of addressing the Deputy President’s concern that the Agreement did not pass the better off overall test. The acceptance of that undertaking and consequently reliance on it to approve the Agreement was therefore erroneous.”

[26] It is clear that the undertaking provided by the CFA does not have the difficulties identified in [43] as the provision does rely upon a request from the employee.

[27] In relation to undertaking 13, it appears that this reconciliation would occur at the time the employee takes annual leave. In relation to undertaking 14 and 15, it is not clear when the reconciliation would occur. However, it appears that it may occur at the conclusion of the 4 week cycle. In relation to undertaking 19, the audit is annual.

[28] When asked how ensuring the employees were paid at least the Award entitlements meant that employees were better off overall, the CFA submitted that the additional entitlements in the Agreement meant that even if the employees were paid the Award entitlements, they would be better off.

[29] After the hearing, I received revised undertakings from the CFA about the timing of the reconciliations and about the commencing paypoint for technical officers. I sought the views of the bargaining representatives and was advised that APESMA and the ASU supported the undertakings. The UFU had not responded at the time of making this decision. The UFU had supported the earlier undertakings. Some of the other bargaining representatives supported the acceptance of the undertakings.

[30] Mr John Crane was concerned that clause 28.1 may be inconsistent with section 63 of the Act.

[31] Mr Mark Tarbett and Mr Crane raised concerns about the practicalities associated with clause 26.1.1 which requires employees to obtain approval from their supervisor/line manager before commencing work for work overtime or time in lieu applies. Mr Tarbett said this was a real issue for employees during Incident Management Support activities.

[32] Mr Crane said that this can involve very intense periods of work when the employee may be subject to direction by other than PTA staff members and that this creates particular problems in relation to overtime and TOIL. It was said employees cannot refuse to work unpaid hours between 7.6 and 10 hours per shift.

[33] Mr Tarbett and Mr Crane further expressed concern about the loss of leave loading and sought its reinstatement.

Consideration

Overtime

[34] In assessing whether employees working outside the span of hours in the Award or more than 7.6 ordinary hours per day would be worse of under the Agreement, it is necessary to take into account that under the Award employees who are in receipt of a salary in excess of that prescribed for the top of the Administrative Officer Grade 6 are not entitled to receive payment for overtime. That rate is $58,221. All employees under the Agreement classified at Level 3 and above earn more than $58,221. By contrast to the Award, all employees under the Agreement are entitled to receive payment for overtime. The only employees therefore who would potentially be worse off under the Agreement are those employees who are engaged at Level 2, paypoint 8 and below as those employees earn less than the salary level set in the Award for the payment of overtime.

[35] Without having regard to this cut off point for overtime payments, employees who are paid not more than 11.45% higher than the Award may receive less in a 4 week period than they would under the Award.

[36] Overtime or TOIL under the Agreement is not payable or available until an employee works more than 10 hours per day. The Award sets the maximum weekly hours per week at 38 and the span of hours. However that does not mean an employee cannot work more than 7.6 hours per day without being entitled to overtime or TOIL. An employee could, for example, be rostered to work 3 x 10 hour days and one 8 hour day. In those circumstances, the employee would not be entitled to overtime or TOIL under the Award.

[37] Further the hours worked between 7.6 hours and 10 hours on a day under the Agreement are paid hours they are just not paid at overtime rates.

[38] I am therefore satisfied that Agreement clauses dealing with the span of hours in the Agreement and the capacity to average hours of work over a 4 week period, when regard is had to the undertakings, are not a barrier to the approval of the Agreement.

S.63 of the Fair Work Act 2009

[39] S.63 provides that an enterprise agreement may average the hours of work over a specified period and that an employee may be required to work excess hours provided they are reasonable.

[40] This Agreement averages hours over a 4 week period. This is clearly permissible. It is clear that s.63 permits the averaging of hours over a period of time. Such averaging changes when overtime is payable. Many modern awards provide for the averaging of hours of work over a 4 week period as does this Award for shift workers.

[41] An employee bargaining representative complains that incident management employees do not have the right to refuse to work unreasonable overtime. However clause 28.10.10 does permit these employees to refuse to work unreasonable overtime.

[42] I am satisfied that the hours of work clauses in the Agreement do not offend s.63 of the Act.

The reconciliation clauses

[43] I am satisfied that the reconciliation clauses do not result in any unreasonable delay in payment to the employees and while they only ensure the employees receive the payment in that reconciliation period that they would have received under the Award, the Agreement contains significant other benefits which ensure that even if paid in that 4 week period what the employee would receive under the Award, the employee would still be better off.

[44] Some of the bargaining representatives have submitted that it will be difficult for employees to check the accuracy of the reconciliation. While I accept that it may be difficult because what must be compared is what an employee would receive under the Award based on the Award minimum rate of pay compared to what the employee is paid under the Agreement. Further, in making this calculation regard will need to be had to the cut off point for overtime payments under the Award. However, given the undertaking to conduct two of the audits monthly and the audit in relation to annual leave loading at the time the employee takes annual leave, I am not satisfied that any difficulties could not be overcome by the CFA providing the employee with a document outlining how it calculated the employee’s entitlement.

Other concerns

[45] In relation to the concern about employees requiring permission to work hours that attract overtime or TOIL the Award does not permit employees to decide their hours of work. Overtime is only payable or TOIL taken if the hours worked are required. There is nothing in the Award which would prevent the CFA from advising employees that authorisation in advance was required prior to an employee working additional hours. There was no evidence put before me that established that when working in Incident Management Support that the employees would be not be better off under the Agreement when compared to the Award even having regard to the rolling up of annual leave loading. I am satisfied that the undertakings will resolve any doubt in this regard.

[46] Some of the bargaining representatives expressed concern about the CFA’s approach to the negotiations on some matters. The Commission does not have the power to generally review the bargain made by the employees and their employer or the bargaining approach of the parties. In bargaining parties are able to take hard positions. The Commission must be satisfied that the Agreement passes the better off overall test and in doing so can have regard to the undertakings provided by the employer and the views of the bargaining representatives.

Conclusion

[47] A copy of the CFA’s undertakings are attached in Annexure A. Having consulted with the bargaining representatives I am satisfied that the Agreement with the undertakings passes the better off overall test.

[48] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[49] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[50] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and is attached in Annexure B.

[51] The ASU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[52] The UFU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[53] APESMA, Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[54] The Agreement was approved on 30 June 2017 and, in accordance with s.54, will operate from 7 July 2017. The nominal expiry date of the Agreement is 28 November 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code O, AE424757  PR594134>

Annexure A

Annexure B
Schedule 2.2 Model flexibility term
(regulation 2.08)

Model flexibility term
(1) 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:
(a) the agreement deals with 1 or more of the following matters:
(i) arrangements about when work is performed;
(ii) overtime rates;
(iii) penalty rates;
(iv) allowances;
(v) leave loading; and
(b) the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and
(c) the arrangement is genuinely agreed to by the employer and employee.
(2) The employer must ensure that the terms of the individual flexibility arrangement:
(a) are about permitted matters under section 172 of the Fair Work Act 2009; and
(b) are not unlawful terms under section 194 of the Fair Work Act 2009; and
(c) result in the employee being better off overall than the employee would be if no arrangement was made.
(3) The employer must ensure that the individual flexibility arrangement:
(a) is in writing; and
(b) includes the name of the employer and employee; and
(c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and
(d) includes details of:
(i) the terms of the enterprise agreement that will be varied by the arrangement; and
(ii) how the arrangement will vary the effect of the terms; and
(iii) 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
(e) states the day on which the arrangement commences.
(4) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
(5) The employer or employee may terminate the individual flexibility arrangement:
(a) by giving no more than 28 days written notice to the other party to the arrangement; or
(b) if the employer and employee agree in writing — at any time.

 1   S.173 of the Act

 2   S.174 of the Act

 3   S.180 of the Act

 4   Schedule 4 clause 1.1 of the Agreement

 5 [2016] FCAFC 161

 6   [2017] FWCFB 1664