Q. Our company’s ‘standard’ contract of employment contains a term which requires either party to give notice of termination as per the National Employment Standards. The majority of our employees are covered under the Architects Award 2020. The relevant clause in that Award refers to one month’s notice to be given by either party (or a longer period of notice as prescribed by the National Employment Standards). The requirement under the Award to give one month’s notice would, in most circumstances, be more beneficial than the statutory requirement. Do the minimum notice provisions under the modern award prevail over the terms of the National Employment Standards?

A. Yes. The more beneficial term relating to notice of termination under the modern award would override the relevant minimum provisions prescribed under the National Employment Standards. The company would need to amend the contracts of employment to reflect this situation. While the period of notice of termination is set out in Section 117(2)(b) of the Fair Work Act and depends on the length of service with the business, the Architects Award 2020 overrides this to state that notice of termination must be one month, except where the National Employment Standards provide a longer period of notice. For example, the employer would be required to give five weeks’ notice of termination where the employee has completed 5 years or more continuous service with the employer and is over 45 years of age. If an employee resigns, they are only required to give one month’s notice under the terms of the Award.

 

Meaning of a ‘month’

What is meant by a month’s notice under the Architects Award 2020? A month does not necessarily mean four weeks. The expression “month” in a modern award, enterprise agreement or statute generally means the period from a point in one month to the same point in the succeeding month. Where there is no corresponding point of time in the next succeeding month the period expires at the end of each subsequent month. This principle generally reflects the definition of a month in the Acts Interpretation Act 1901 [Cth].

The Acts Interpretation Act 1901 [Cth] (s.2G(1)) defines a “month” to mean a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, the end of the next month.

Section 2G(2)) of that Act provides some examples when an Act is referring to 2 or more months.

Example 1: a reference to 6 months starting on December 15 in a year is a reference to a period starting on that day and ending immediately before 15 June in the next year.

Example 2: a reference to 6 months starting on 31 October in a year is a reference to a period starting on that day and ending at the end of April in the next year (because April is the calendar month coming sixth after October and does not have 31 days).


Bottom line

A more beneficial term in a modern award will override the minimum provisions of the National Employment Standards to the extent of the inconsistency.