Individual Flexibility Arrangement
12.1 An Employer and Employee covered by this Agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the Agreement if:
(a) the arrangement deals with one (1) or more of the following matters:
(i) arrangements for 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 one (1) or more of the matters mentioned in subclause 12.1; and
(c) the arrangement is genuinely agreed by the Employer and Employee.
12.2 The Employee may appoint a representative for the purposes of the procedure in this clause 12, including the Union. Except as provided in subclause 12.5(c), the arrangement must not require the approval or consent of a person other than the Employer and the individual Employee.
12.3 The Employer must ensure that the terms of the individual flexibility arrangement:
(a) are about permitted matters under section 172 of the Act;
(b) are not unlawful terms under section 194 of the Act; and
(c) result in the Employee being better off overall than the Employee would be if no arrangement was made.
12.4 Where the Employee’s understanding of written English is limited, the Employer will take measures, including translation into an appropriate language, to ensure the Employee understands the proposed individual flexibility arrangement.
12.5 The Employer must ensure that the individual flexibility arrangement:
(a) is in writing;
(b) includes the name of the Employer and Employee;
(c) is signed by the Employer and the Employee and, if the Employee is under 18 years of age, the Employee’s parent or guardian;
(d) includes details of:
(i) the terms of the Agreement that will be varied by the arrangement;
(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 their employment as a result of the arrangement; and
(e) states the date the arrangement commences
12.6 The Employer must give the Employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
12.7 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 if the Employer and Employee agree in writing – at any time.
Flexibility Arrangements 10.1 The Employer and an Employee may agree to make an individual flexibility arrangement to vary a term of the Agreement if the arrangement:
(a) only varies the effect of
(i) clause 47 Parental Leave
(ii) clause 44 Compassionate Leave
(iii) clause 46 Jury Service
(b) meets the genuine needs of the Employer and Employee in relation to the matter mentioned in clause 10.1
(a) above:
(i) is genuinely agreed to by the Employer and Employee; and
(ii) is not inconsistent with section 55 of the Fair Work Act.
10.2 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;
(b) are not unlawful terms under section 194 of the Fair Work Act; and
(c) result in the Employee being better off overall than the Employee would be if no arrangement was made.
10.3 The Employer must ensure that the terms of the individual flexibility arrangement:
(a) is in writing;
(b) includes the name of the Employer and the Employee;
(c) is signed by the Employer and the Employee (if the Employee is under the age of 18, signed by a parent or guardian of the Employee;
(d) includes details of:
(i) the terms of this Agreement that will be varied by the arrangement;
(ii) how the arrangement will vary the effect of the terms;
(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
(iv) states the day on which the arrangement commences.
10.4 The Employer must give the Employee a copy of the individual flexibility arrangement within fourteen (14) days.
10.5 Upon request by the relevant Employee/s, the Employer must provide copies of all flexibility arrangements made under this clause to the Union/Union Delegate/Employee Representative.
10.6 The Employer or Employee may terminate the individual flexibility arrangement by giving not more than twenty-eight (28) days’ written notice to the other Party to the arrangement; or if the Employer and Employee agree in writing at any time.
Individual Flexibility Arrangements 38.1 Where the Employer wants to enter into a individual flexibility arrangement (IFA) it must provide a written proposal to the Employee. Where the Employee’s understanding of written English is limited, the Employer must take measures, including translation into an appropriate language, to ensure the Employee understands the proposal.
38.2 The Employer and an Employee covered by this Agreement may agree to make an IFA to vary the effect of terms of the Agreement if:
(a) it deals with one or more of the following matters:
(i) Time between which ordinary hours are worked;
(ii) Salary sacrifice Agreements;
(iii) Reduction in ordinary hours;
(iv) Increase in annual leave accrual each year;
(v) Increase in rate of accrual of Rostered days off;
(vi) Increase in wages;
(vii) Increase in training leave (Union or otherwise);
(b) The IFA meets the genuine needs of the Employer and the Employee covered by this Agreement in relation to one or more of the matters mentioned in paragraph (a) above; and
(c) The IFA is genuinely agreed to by the Employer and the Employee.
38.3 The Employer must ensure that the terms of the IFA:
(a) are about permitted matters under section 172 of the FW Act; and
(b) are not unlawful terms under section 194 of the FW Act; and
(c) result in the Employee being better off overall than the Employee would be if no IFA was made.
38.4 The Employer must also ensure that any such IFA is:
(a) in writing (including details of the terms that will be varied, how the IFA will vary the effect of the Enterprise Agreement terms, 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 IFA, and the day on which the IFA commences);
(b) includes the name of the Employer and Employee;
(c) signed by the Employer and the Employee, and if the Employee is under 18, by a parent or guardian of the Employee; and
(d) provided to the Employee within 14 days after it is agreed to.
38.5 The Employer or Employee may terminate the IFA by either the Employer or Employee giving written notice of not more than 28 days, or at any time by both parties agreeing in writing.
38.6 Where any of the requirements of ss 202 and 203 of the FW Act are not met, the IFA is of no effect.
MWBE Utilization Plan A. In accordance with 5 NYCRR § 142.4, Bidders are required to submit a completed Utilization Plan on Form MWBE 100 with their bid.
B. The Utilization Plan shall list the MWBEs the Bidder intends to use to perform the Contract, a description of the Contract scope of work the Bidder intends the MWBE to perform to meet the goals on the Contract, and the estimated or, if known, actual dollar amounts to be paid to an MWBE. By signing the Utilization Plan, the Bidder acknowledges that making false representations or including information evidencing a lack of good faith as part of, or in conjunction with, the submission of a Utilization Plan is prohibited by law and may result in penalties including, but not limited to, termination of a contract for cause, loss of eligibility to submit future bids, and/or withholding of payments. Any modifications or changes to the agreed participation by New York State Certified MWBEs after the Contract award and during the term of the Contract must be reported on a revised MWBE Utilization Plan and submitted to OGS.
C. By entering into the Contract, Bidder/Contractor understands that only sums paid to MWBEs for the performance of a commercially useful function, as that term is defined in 5 NYCRR § 140.1, may be applied towards the achievement of the applicable MWBE participation goal. When an MWBE is serving as a broker on the Contract, only 25 percent of all sums paid to a broker shall be deemed to represent the commercially useful function performed by the MWBE.
D. OGS will review the submitted MWBE Utilization Plan and advise the Bidder of OGS acceptance or issue a notice of deficiency within 30 days of receipt.
E. If a notice of deficiency is issued; Bidder agrees that it shall respond to the notice of deficiency, within 7 business days of receipt, by submitting to OGS a written remedy in response to the notice of deficiency. If the written remedy that is submitted is not timely or is found by OGS to be inadequate, OGS shall notify the Bidder and direct the Bidder to submit, within 5 business days of notification by OGS, a request for a partial or total waiver of MWBE participation goals on Form BDC 333. Failure to file the waiver form in a timely manner may be grounds for disqualification of the bid or proposal.
F. OGS may disqualify a Vendors Submission as being non-responsive under the following circumstances:
(a) If a Bidder fails to submit an MWBE Utilization Plan;
(b) If a Bidder fails to submit a written remedy to a notice of deficiency;
(c) If a Bidder fails to submit a request for waiver; or
(d) If OGS determines that the Bidder has failed to document good faith efforts.
G. If awarded a Contract, Contractor certifies that it will follow the submitted MWBE Utilization Plan for the performance of MWBEs on the Contract pursuant to the prescribed MWBE goals set forth in clause IV-A of this Section.
H. Bidder/Contractor further agrees that a failure to submit and/or use such completed MWBE Utilization Plan shall constitute a material breach of the terms of the Contract. Upon the occurrence of such a material breach, OGS shall be entitled to any remedy provided herein, including but not limited to, a finding of Contractor non- responsiveness.
INDIVIDUAL FLEXIBILITY AGREEMENTS 29.1 Where the Employer wants to enter into a variation agreement it must provide a written proposal to the Employee and the Union. Where the Employee’s understanding of written English is limited, the Employer must take measures, including translation into an appropriate language, to ensure the Employee understands the proposal.
29.2 The Employer must ensure that any variation agreement is genuinely agreed to by the Employer, the Union and the Employee and that the terms of the variation agreement:
(a) are about permitted matters under section 172 of the FW Act; and
(b) Relates only to:
(i) Salary sacrifice agreements
(ii) Increase in annual leave accrual each year
(iii) Increase in rate of accrual of Rostered days off
(iv) Increase in wages
(v) Increase in training leave (Union or otherwise)
(c) are not unlawful terms under section 194 of the FW Act; and
(d) result in the Employee being better off overall than the Employee would be if no arrangement (variation agreement) was made.
29.3 The Employer must also ensure that any such variation agreement is:
(a) Agreed to by the Union
(b) in writing (including details of the terms that will be varied, how the variation agreement will vary the effect of the Enterprise Agreement terms, 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 the day on which the arrangement commences)
(c) includes the name of the Employer and Employee
(d) signed by the Employer and the Employee, and if the Employee is under 18, by a parent or guardian of the Employee (e) provided to the Employee within 14 days after it is agreed to: and