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Terms and conditions of employmentChapter 2 The National Employment StandardsPart 2-2

MiscellaneousDivision 13

Regulation2.03

Division 13—Miscellaneous

2.03What can be agreed to etc. in relation to award/agreement free employees

For paragraph 129(a) of the Act, employers and award/agreement free employees may agree to the provision of either or both of:

(a) extra annual leave in exchange for foregoing an equivalent amount of pay; and

(b) extra personal/carer's leave in exchange for foregoing an equivalent amount of pay.

2.03A Claims to offset certain amounts

(1) This regulation applies if:

(a) a person is employed by an employer on the basis that the person is a casual employee; and

(b) the employer pays the person an amount (the loading amount) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the employment period); and

(c) during all or some of the employment period, the person was in fact an employee other than a casual employee for the purposes of the National Employment Standards; and

(d) the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements.

Note 1: This regulation is intended to apply if the person has been mistakenly classified as a casual employee during all or some of the employment period.

Note 2: For the purposes of paragraph (b), examples of where it may be clearly identifiable that an amount is paid to compensate the person for not having one or more relevant NES entitlements include in correspondence, pay slips, contracts and relevant industrial instruments.

(2) To avoid doubt, the employer may make a claim to have the loading amount taken into account in determining any amount payable by the employer to the person in lieu of one or more relevant NES entitlements.

(3) This regulation does not affect the matters to which a court may otherwise have regard, at law or in equity, in determining an employer's claim to have the loading amount taken into account.

(4) A reference in this regulation to a relevant NES entitlement is a reference to an entitlement under the National Employment Standards that casual employees do not have.

Fair Work Regulations 2009

Compilation date: 11/09/2021

19

Compilation No. 36

Registered: 19/10/2021

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