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Enterprise agreement “opt-out clauses” are not a safe bet - put flexibility inside the agreement instead


Different ways of rewarding high-performing, senior or specialist employees can be eroded when enterprise agreements require all covered employees to be treated in the same way. One solution is to allow some employees to opt out of agreement coverage in return for more attractive individual contracts.

           
                       

Different ways of rewarding high-performing, senior or specialist employees can be eroded when enterprise agreements require all covered employees to be treated in the same way. One solution is to allow some employees to opt out of agreement coverage in return for more attractive individual contracts.

That solution is no longer the safest option, having had mixed responses from Fair Work Australia (FWA). A more complex but safer route is to leave scope in the enterprise agreement itself to provide for minimum pay but “top up” conditions individually, or to pay within bands according to individual performance.
           
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