Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 768AR

Application of particular provisions of the NES

  (1)   The following provisions have effect, on and after the re - employment time of a transferring employee, as if a reference to a modern award or an enterprise agreement included a reference to a copied State instrument for the transferring employee:

  (a)   section   63 (which allows terms dealing with averaging of hours of work);

  (b)   section   93 (which allows terms dealing with cashing out and taking paid annual leave);

  (c)   section   101 (which allows terms dealing with cashing out paid personal/carer's leave);

  (d)   subsection   107(5) (which allows terms dealing with evidence requirements for paid personal/carer's leave etc.);

  (e)   subsection   115(3) (which allows terms dealing with substitution of public holidays);

  (f)   section   118 (which allows terms dealing with an employee giving notice to terminate his or her employment);

  (g)   subsections   121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section   119 does not apply);

  (h)   section   126 (which allows terms providing for school - based apprentices and trainees to be paid loadings in lieu).

Terms about paid annual leave and personal/carer's leave

  (2)   If a copied State instrument for a transferring employee:

  (a)   includes terms referred to in subsection   93(1) but the terms do not include the requirements referred to in subsection   93(2); or

  (b)   includes terms referred to in subsection   101(1) but the terms do not include the requirements referred to in subsection   101(2);

then the instrument is taken to include terms that include the requirements.

Shiftworker annual leave entitlement

  (3)   If a copied State instrument for a transferring employee applies to the employee, then subsections   87(3) to (5) have effect, on and after the employee's re - employment time, in the same way as they apply to an award/agreement free employee.

Note:   If the transferring employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.