Many agreements fail to pass the stringent approval processes required by the Fair Work Act because a term falls foul of the National Employment Standards (NES). In most cases the totality of the agreement’s benefits far outweigh whatever NES issue is diminished. No great harm is likely.
But the inflexibility of the legislation leaves the Fair Work Commission little room to move in the approval process. Typically, the employer is required to give undertakings that regardless of the agreement’s provisions, the superior NES benefit will apply. This does two things. Firstly, it enlarges the benefits the employees receive without the employer having a concomitant offset; and secondly it adds cost and inconvenience to the employer, who is obliged to prepare undertakings and often make further supporting submissions to the FWC.
Now some employers are heading this irritation off at the pass with a catch-all clause incorporating the NES. Helpfully, this practice has a twofold benefit. Firstly, it is an aide memoir to those negotiating to ensure that the package includes consideration of all the benefits the NES will confer. And secondly, when it comes to the approval stage, if through inadvertence or potentially uncertain drafting, an NES item or part of it has been compromised, the FWC can still wave it through because the safety net clause ensures the NES prevail to the extent of any inconsistency.
This practice should not be seen as a substitute for due diligence nor as a mere formality, but rather as a means to ensure that minor technicalities will not delay, or worse, derail an agreement. The facts are the NES are almost exclusively immutable and not subject to the manipulation of award conditions that is the stuff of bargaining. There is no place for a casual approach to dealing with NES matters when bargaining, and their full effects on the total agreement package should be appreciated before the agreement is presented for approval.