Introduction
The terms in an agreement must be at least as good as the National Employment Standards (NES). Avoid common errors when you create or vary an agreement.
Content
Introduction
The Commission cannot approve an agreement if it:
- excludes the National Employment Standards (NES) or any part of it
- reduces an NES entitlement.
A Commission Member may invite the employer to fix the issue by writing an undertaking that relates to the NES.
Include an ‘NES precedence’ term
You can avoid the need to write an undertaking if you add a statement or ‘NES precedence term’ to your agreement.
This statement says that if the terms in the agreement and the NES are not consistent, the more beneficial term will apply.
For example: 'This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency'.
Write an undertaking
These examples show the issues we see most often in agreements. This is not a full list but may help you create an undertaking. Use our templates to make an undertaking.
| Examples of issues in an agreement | Sample text for the undertaking |
|---|---|
The agreement does not describe or define an employee as a shiftworker for the purposes of the NES. See section 187(4) and section 196 of the Fair Work Act 2009. | ‘For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is [insert definition of shiftworker from the relevant award].’ |
The way annual leave accrues is inconsistent with the Fair Work Act. Under the Act, it accrues progressively. See section 87(2) of the Act. | ‘Notwithstanding Clause X, an employee’s entitlement to annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year.’ |
The way personal/carer’s leave accrues is inconsistent with the Fair Work Act. Under the Act it accrues progressively. See section 96(2) of the Act. | ‘Notwithstanding Clause X, an employee’s entitlement to personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year.’ |
The agreement limits how much personal leave can be taken as carer’s leave. The Act does not contain any limits or restrictions. See section 97 of the Act. | ‘Notwithstanding Clause X, all accrued personal/carer’s leave may be taken as carer’s leave. The provisions of Clause X have no effect.’ |
The agreement says an employee must notify the employer of an absence on personal/carer’s leave within 24 hours of their shift starting. The Act states the employee must give notice as soon as practicable. This may be a time after the leave has started. See section 107 of the Act. | ‘In relation to Clause X, an employee taking personal/carer’s leave must notify the employer as soon as practicable (which may be a time after the leave has started).’ |
The agreement does not provide carer’s leave for casual employees. See section 102 of the Act. | ‘Clause X which deals with unpaid carer’s leave applies to casual employees’. OR ‘A casual employee is entitled to unpaid carer’s leave in accordance with the Fair Work Act.’ |