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Employment contracts: Interaction with industrial instruments

Last updated August 2023

This chapter outlines how the Fair Work Act 2009 (Cth), modern awards and enterprise agreements can affect the operation of your employment contracts.

How the FW Act interacts with employment contracts

The Fair Work Act 2009 (Cth) (FW Act) is relevant to employment contracts in relation to:

  • employees’ access to rights and entitlements;
  • paying monies owed; and
  • contracting out of a provision under a modern award or the National Employment Standards (NES).
Important: The FW Act, along with other legislation, can also limit specific clauses within an employment contract.

The FW Act does not:

  • impose any requirements on an employment contract; or
  • form part of an employment contract (unless a term of the contract expressly incorporates it).
Tip: You can refer to the operation of the minimum statutory entitlements in the NES without stating that they form part of an employment contract, i.e. by including a clause in the contract.
Example

“You are entitled to the annual leave provisions in the NES of the FW Act. These NES terms do not form part of this employment contract.”
Tip: A similar approach can be taken for provisions in applicable modern awards or enterprise agreements.

An employment contract may be governed by the FW Act, or an applicable modern award or enterprise agreement in respect of certain employment matters. This doesn’t mean the content of the FW Act or the award or enterprise agreement forms part of the employment contract.

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