19.12.2011
Statutory safety net
17.3 The NES were introduced following significant consultation[2] to provide a ‘safety net which is fair for employers and employees and supports productive workplaces’.[3] The NES replaced the Australian Fair Pay and Conditions Standard (AFPCS)[4] and many of the entitlements under the AFPCS and then NES arise from a long history of test cases.[5]
17.4 As a result, amendment to the NES, for example to provide for additional leave, would involve a significant change to the Fair Work Act framework. With this in mind, the ALRC does not recommend that the NES be amended at this time.
Interaction with modern awards and enterprise agreements
17.5 The intent of the NES to provide 10 minimum and enforceable entitlements is in part reflected in the interaction between the NES, modern awards and enterprise agreements, the rules of which are outlined in s 55 of the Fair Work Act.[6]
17.6 The NES is designed to ‘lock in’ to modern awards and enterprise agreements:
It does this by including provisions that specifically allow awards and agreements to deal with specific issues. Modern awards and enterprise agreements can also ‘build on’ the NES by including terms that supplement, or are ancillary or incidental to, the NES.[7]
17.7 The NES are an absolute legislative safety net that cannot be excluded or overridden by a less beneficial individual contract, enterprise agreement or modern award, other than as expressly allowed.[8] While there is no specific legislative rule about the interaction between the NES and contracts, it is governed by ‘well established principles’ including, for example, that a term in a contract of employment that is less favourable than a statutory entitlement is not effective.[9]
[2] Prior to the introduction of the NES, the Australian Government published an Exposure Draft, in response to which it received 129 submissions from stakeholders as well as engaging in broader consultations. The proposed NES were subsequently released on 16 June 2008. The Fair Work Act 2009 (Cth) retains the substance of the Exposure Draft, with some amendments.
[3] Explanatory Memorandum, Fair Work Bill 2008 (Cth), 25.
[4] Introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) which amended the Workplace Relations Act 1996 (Cth).
[5] See, eg, ACCI, Submission CFV 19. See also J Murray and R Owens, ‘The Safety Net: Labour Standards in the New Era’ in A Forsyth and A Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (2009) 40–42.
[6]Fair Work Act 2009 (Cth) s 55.
[7] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [233].
[8]Fair Work Act 2009 (Cth) s 55. Note, some provisions of the NES expressly authorise a modern award or enterprise agreement to deal with certain issues in a way that would, or might, otherwise be contrary to the NES. See, eg, Fair Work Act 2009 (Cth) ss 93, 101, 107(5).
[9] Explanatory Memorandum, Fair Work Bill 2008 (Cth), 207.