768ARProvisions of the NES that allow instruments to contain particular kinds of terms

768AR Provisions of the NES that allow instruments to contain particular kinds of terms

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.