Modern award compliance and the NES

Here is a refreshingly brief explanation from the Federal Court of Australia about the mandatory compliance requirements of a modern award and the National Employment Standards.


Modern Award Compliance – s 45

  1. Pursuant to Part 2-1 of the FW Act, the terms and conditions of employment of “national system employees” are prescribed by the following:

(a)          the NES, set out at Part 2-2 of the FW Act;

(b)          modern awards; and

(c)          enterprise agreements.

  1. The NES is comprised of a number of fundamental minimum standards as to maximum weekly hours of work, parental leave, personal leave, annual leave and other entitlements. Section 44 of the FW Act prohibits contraventions of the NES. A contravention of the NES attracts a civil penalty.
  2. Modern awards may not derogate from entitlements established by the NES: ss 55 and 56 of the FW Act.
  3. Section 45 of the FW Act obliges employers not to contravene terms of any modern award applicable to them in respect of their industry:

45 Contravening a modern award

A person must not contravene a term of a modern award.

Note 1:      This section is a civil remedy provision (see Part 4-1).

Note 2:      A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).

  1. An employer may only contravene an Award that applies to them: s 46(1) of the FW Act. An Award applies to an employer if it is expressed to cover the employer (s 47(1)(a)), and where there is no other provision that has the effect that the Award does not apply (s 47(1)(c)).”


Passage from Basi v Namitha Nakul Pty Ltd [2022] FCA 712 delivered 21 June 2022 per Halley J