Hi after reading my EBA and my award I have noticed that my ordinary working hours are from between 4am and 5pm, Monday to Friday. I start work at 1am and my award says that between this time and 4am should be paid at penalty rates. I approached my employer about this and he has told me that there is a flexibility agreement in place for all employees starting at this time. Firstly nobody has ever heard of this, the other employees have said that they did have a discussion with our boss 6 years ago as to whether they could start at midnight as they had with the previous employer. They were told that he hadn't allowed for night shift allowance in the tender but we could start at 1am. What this boils down to is our award and EBA say it should be penalty rates. Our boss is making up the flexibility agreement to avoid payment of penalties. The award and EBA both say it should be in writing. The Fair Work Australia ombudsman say that a not properly made agreement can still be valid. How do we resolve this problem under Employment Law?