The Australian Industry Group (Ai Group) has applied to intervene in the Federal Government’s appeal against Commissioner Ryan’s decision in the TriMas case.
Heather Ridout, Ai Group’s CEO says the Ai Group will argue that Commissioner Ryan got it wrong in deciding that Individual Flexibility Arrangements (IFAs) cannot vary the terms of an enterprise agreement.
“IFAs were devised by the Federal Government to provide flexibility for employers and individual employees to agree to vary the terms of an enterprise agreement, as it relates to an employee, provided that the employee is better off overall, and subject to a set of safeguards,” she said.
“Every enterprise agreement made under the Fair Work Act is required to include a provision which permits the making of an IFA. A similar provision is included in every modern award.
“During the development of the Fair Work Act, industry opposed the abolition of Australian Workplace Agreements (AWAs) which had been a feature of the national workplace relations system for over a decade.
“IFA’s were designed to provide the flexibility for agreements to be reached between employers and individual employees, in the absence of AWAs,” Ridout said.
“In his TriMas decision, Commissioner Ryan has decided that IFA’s cannot vary the terms of an agreement but rather only the effect of” the terms of agreement. The decision creates a great deal of uncertainty and threatens the validity of a large proportion of the IFAs already made.
“The appeal is listed for hearing before a Full Bench of FWA on 21 April the same day that Ai Group’s appeal against Commissioner Ryan’s decision in the Dunlop Foams case will be heard by a different Full Bench.
“Ai Group continues to take an approach to the new Fair Work Act where we will actively monitor how the legislation is being applied and interpreted, and will seek to pursue appeals or intervene when decisions are made which are contrary to the intent of the Act and damaging to the economy. Given that the legislation is new and wide ranging, it is to be expected that some interpretation issues will arise,” Ridout said.
This is the fourth Full Bench case, relating to the new enterprise bargaining laws, in which Ai Group has either been the applicant or has intervened.
The other three cases are:
· C2010/2647 an appeal by Woolworths Ltd against a decision of Commissioner Greg Smith regarding whether dispute settlement clauses in enterprise agreements must contain compulsory arbitration powers. (The decision was overturned)
· B2009/10598 and B2009/10612 applications by Metropolitan Fire and Emergency Services Board and the UFUA for scope orders regarding the powers of FWA and the issues which should guide FWA’s discretion in issuing scope orders. (The decision is reserved).
· C2010/3157 an appeal by Ai Group against the decision of Commissioner Ryan to approve an enterprise agreement applicable to Dunlop Foams regarding unlawful terms in agreements and right of entry of union officials. (Listed for hearing on 21 April).