Commonwealth Numbered Regulations Commonwealth Numbered Regulations(1) For paragraph 47 (1) (a) of Schedule 8 to the Act, this regulation explains how to determine whether an employee's entitlement under a preserved notional term in relation to:
(a) annual leave; or
(b) personal/carer's leave; or
(c) parental leave, including maternity and adoption leave;
is more generous than the employee's entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard.
(2) The entitlements are to be compared on the basis of their effect on the employee alone, rather than on the basis of their effect on employees generally.
Note 1 The comparison between entitlements will focus on the individual employee's entitlements.
Note 2 A type of employee may have an entitlement under a preserved notional term, but not a corresponding entitlement under the Australian Fair Pay and Conditions Standard. For example, a casual employee may have an entitlement to annual leave under a preserved notional term, but is not covered by the Australian Fair Pay and Conditions Standard. In this example, the casual employee would retain the entitlement under the preserved notional term.
(3) However:
(a) if the total quantum of a kind of leave permitted under the preserved notional term is greater than the total quantum of that kind of leave permitted under the Australian Fair Pay and Conditions Standard, the entitlement specified under the preserved notional term is taken to be more generous; and
(b) if the total quantum of a kind of leave permitted under the preserved notional term is less than or equal to the total quantum of that kind of leave permitted under the Australian Fair Pay and Conditions Standard, the entitlement under the Australian Fair Pay and Conditions Standard has effect.
Examples of comparisons between preserved notional terms and the Australian Fair Pay and Conditions Standard
|
Preserved notional term |
Australian Fair Pay and Conditions Standard |
The entitlement that applies is set out in |
|
Annual leave |
||
|
Workers other than shift workers
|
||
|
Not more than 4 weeks |
4 weeks |
Australian Fair Pay and Conditions Standard |
|
More than 4 weeks |
4 weeks |
the preserved notional term |
|
Shift workers
|
||
|
Not more than 5 weeks |
5 weeks |
Australian Fair Pay and Conditions Standard |
|
More than 5 weeks |
5 weeks |
the preserved notional term |
|
Personal/carer's leave
|
||
|
Sum of paid sick leave and paid carer's leave of not more than 10 days |
10 days paid personal leave, of which 10 days can be taken as carer's leave in any 12 month period |
Australian Fair Pay and Conditions Standard |
|
Sum of paid sick leave and paid carer's leave of more than 10 days |
10 days paid personal leave, of which 10 days can be taken as carer's leave in any 12 month period |
the preserved notional term |
|
Note An entitlement to war service sick leave or infectious diseases leave or any other like form of sick leave under a preserved notional term is treated as a separate entitlement in accordance with regulation 3.3. Therefore, the entitlement is not the subject of a comparison between entitlements under the preserved notional term and the Australian Fair Pay and Conditions Standard because there is no comparable entitlement under the Australian Fair Pay and Conditions Standard . |
||
|
Parental leave
|
||
|
Not more than 52 weeks unpaid leave |
52 weeks unpaid leave |
the Australian Fair Pay and Conditions Standard |
|
More than 52 weeks unpaid leave |
52 weeks unpaid leave |
the preserved notional term |
|
52 weeks unpaid leave plus a right to request additional leave |
52 weeks unpaid leave |
the preserved notional term |
|
Note An entitlement to paid parental leave is treated as a separate entitlement in accordance with regulation 3.4. Therefore, the entitlement is not the subject of a comparison between entitlements under the preserved notional term and the Australian Fair Pay and Conditions Standard because there is no comparable entitlement under the Australian Fair Pay and Conditions Standard . |
||
(4) If, under this regulation, an entitlement under the Australian Fair Pay and Conditions Standard, or the preserved notional term, is taken to be more generous, the entitlement is to be applied in accordance with the administrative provisions and other arrangements (if any) that relate to the entitlement.