NES precedence term
The increasing proportion of enterprise agreements requiring undertakings to address deficiencies is impacting on the time it is taking the Fair Work Commission to finalise applications for approval of agreements.
Many of these undertakings are requested when an agreement provides entitlements that are inconsistent with, or less beneficial than the National Employment Standards (NES).
In order to reduce the incidence of Members requesting undertakings, it may assist if a term is included in an enterprise agreement when it is made providing that where there is any inconsistency, more generous entitlements under the NES will prevail over provisions in an agreement.
An example of an NES precedence term that could be included in an agreement is set out below.
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.