Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:3a_37
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 3A cl 37
Character Range: 168458–170295

37  The no detriment rule
(1) To the extent that a term of a Division 2B State 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 instrument is of no effect.
Note 1: A term of a Division 2B State 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 Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State 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).
(2) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 40, the FWC 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 the FWC sees fit.
(3) Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38.
(4) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.