54When an enterprise agreement is in operation

54  When an enterprise agreement is in operation  (1) An enterprise agreement approved by the FWC operates from:  (a) 7 days after the agreement is approved; or  (b) if a later day is specified in the agreement—that later day.  (2) An enterprise agreement ceases to operate on the earlier of the following days:  (a) the day on which a termination of the agreement comes into operation under section 224 or 227;  (b) the day on which section 58 or subsection 278(1A) first has the effect that there is no employee to whom the agreement applies. Note: Section 58 and subsection 278(1A) deal with when an enterprise agreement ceases to apply to an employee.  (3) An enterprise agreement that has ceased to operate can never operate again. Division 3—Interaction between the National Employment Standards, modern awards and enterprise agreements Subdivision A—Interaction between the National Employment Standards and a modern award or an enterprise agreement 55  Interaction between the National Employment Standards and a modern award or enterprise agreement National Employment Standards must not be excluded  (1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards. Terms expressly permitted by Part 2‑2 or regulations may be included  (2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:  (a) by a provision of Part 2‑2 (which deals with the National Employment Standards); or  (b) by regulations made for the purposes of section 127. Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.  (3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2). Note: See also the note to section 63 (which deals with the effect of averaging arrangements). Ancillary and supplementary terms may be included  (4) A modern award or enterprise agreement may also include the following kinds of terms:  (a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;  (b) terms that supplement the National Employment Standards; but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards. Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms: (a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or (b) that specify when payment under section 90 for paid annual leave must be made. Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms: (a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or (b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99). Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74. Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards  (5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4). Effect of terms that give an employee the same entitlement as under the National Employment Standards  (6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:  (a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and  (b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement. Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave. Terms permitted by subsection (4) or (5) do not contravene subsection (1)  (7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1). Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56). 56  Terms of a modern award or enterprise agreement contravening section 55 have no effect   A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55. Subdivision B—Interaction between modern awards and enterprise agreements 57  Interaction between modern awards and enterprise agreements  (1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.  (2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee. 57A  Designated outworker terms of a modern award continue to apply  (1) This section applies if, at a particular time:  (a) an enterprise agreement applies to an employer; and  (b) a modern award covers the employer (whether the modern award covers the employer in the employer’s capacity as an employer or an outworker entity); and  (c) the modern award includes one or more designated outworker terms.  (2) Despite section 57, the designated outworker terms of the modern award apply at that time to the following:  (b) each employee who is both:  (i) a person to whom the enterprise agreement applies; and  (ii) a person who is covered by the modern award;  (c) each employee organisation that is covered by the modern award.  (3) To avoid doubt:  (a) designated outworker terms of a modern award can apply to an employer under subsection (2) even if none of the employees of the employer is an outworker; and  (b) to the extent to which designated outworker terms of a modern award apply to an employer, an employee or an employee organisation because of subsection (2), the modern award applies to the employer, employee or organisation. Subdivision C—Interaction between one or more enterprise agreements 58  Only one enterprise agreement can apply to an employee Only one enterprise agreement can apply to an employee  (1) Only one enterprise agreement can apply to an employee at a particular time. General rule—later agreement does not apply until earlier agreement passes its nominal expiry date  (a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and  (b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and  (c) subsections (3), (4) and (5) do not apply; then:  (d) if the earlier agreement has not passed its nominal expiry date:  (i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and  (ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or  (e) if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again. Special rule—supported bargaining agreement replaces single‑enterprise agreement  (a) a single‑enterprise agreement applies to an employee in relation to particular employment; and  (b) a supported bargaining agreement that covers the employee in relation to the same employment comes into operation; the single‑enterprise agreement ceases to apply to the employee when the supported bargaining agreement comes into operation, and can never so apply again. Special rule—single‑enterprise agreement replaces single interest employer agreement  (4) If:  (a) a single interest employer agreement applies to an employee in relation to particular employment; and  (b) a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation; the single interest employer agreement ceases to apply to the employee when the single‑enterprise agreement comes into operation, and can never so apply again. Special rule—single‑enterprise agreement replaces supported bargaining agreement  (5) If:  (a) a supported bargaining agreement applies to an employee in relation to particular employment; and  (b) a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation; the supported bargaining agreement ceases to apply to the employee when the single‑enterprise agreement comes into operation, and can never so apply again. Part 2‑2—The National Employment Standards