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View Full Version : how about if it is different between Award and Fair work Act?



emilyau
26-01-2011, 01:32 PM
Hi All,
I have a question. If it is different between Award and Fair work Act. Which one should we follow?

Greg Schmidt
02-02-2011, 02:35 PM
If the conflict is between an Award provision and the corresponding part of the National Employment Standards, then
* the Award may put a "more generous" provision in place, and this would be binding, but
* the Award cannot undercut an NES entitlement unless the NES specifically allows this.

Have a look at the following sections of the Fair Work Act 2009:
s 61 - the NES are minimum standards for employees that cannot be displaced;
s 55 - A modern award cannot exclude any provision of the NES;
s 56 - a term of a modern award has no effect if it excludes a provision of the NES; and
s 121(2) - example of a situation where the NES specifically allows a modern award to over-ride the usual NES obligations.

As both the NES and Modern Award terms mostly set out minimum standards, to provide a more generous level of benefits would not be a breach of the provision, it will still be consistent with the NES or Award requirement.

Cheers,
Greg.