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.
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how about if it is different between Award and Fair work Act?
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