Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:3a_38
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 3A cl 38
Character Range: 170295–171799

38  Provisions of the NES that allow instruments to contain particular kinds of terms
(1) The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument:
 (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).
(2) If:
 (a) a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but
 (b) the terms do not include the requirements referred to in subsection (2) of that section;
the instrument is taken to include terms that include the requirements.