Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (55 of 2009)

Schedule 3   Continued existence of awards, workplace agreements and certain other WR Act instruments

Part 5   Transitional instruments and the FW Act

Division 1   Interaction between transitional instruments and the National Employment Standards

23   The no detriment rule

(1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.

Note 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.

Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.

Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

(1A) If there is a dispute about the application of this item which must be resolved by FWA in accordance with item 26, FWA may compare the entitlements which are in dispute:

(a) on a 'line-by-line' basis, comparing individual terms; or

(b) on a 'like-by-like' basis, comparing entitlements according to particular subject areas; or

(c) using any combination of the above approaches FWA sees fit.

(2) Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.

(3) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.