THE NATIONAL EMPLOYMENT STANDARDS
The National Employment Standards (NES) provide a
safety net of
minimum conditions for the majority of Australian
workers from 1 January 2010. The NES applies to all employees employed by an
incorporated commercial trading business (i.e. a constitutional corporation).
The NES conditions override any provisions in an existing
agreement or modern award that prescribe a less beneficial entitlement than the
NES. The NES operates in conjunction with modern awards and enterprise
cannot be excluded from those industrial instruments.
Modern awards and enterprise agreements are allowed to include terms that are
or incidental to the application of the NES, or supplement the NES, provided the
terms are not detrimental to an employee compared to the NES.
The NES Minimum Entitlements
The NES are made up of 10 minimum employment conditions. Some aspects of the NES are comparable to the minimum standards under the previous legislation (e.g. annual leave). However, the NES expand the range of employer obligations towards employees. Notable among these new standards are those concerned with redundancy pay, parental leave and the right of working parents to request flexible working arrangements
The NES are made up of 10 minimum employment conditions. Some aspects of the NES are comparable to the minimum standards under the previous legislation (eg annual leave). However, the NES expand the range of employer obligations towards employees. Notable among these new standards are those concerned with redundancy pay, parental leave and the right of working parents to request flexible working arrangements
The Minimum Entitlements Under the National Employment Standards are:
1. Maximum Weekly Hours of Work
The maximum weekly hours which a full-time employee can be required to work will be 38 hours plus reasonable additional hours. An employer and an award/agreement free employee may agree in writing to averaging the hours of work over a maximum period of 26 weeks. Modern Awards enterprise agreements and contracts of employment may also incorporate terms regarding averaging hours over a specified period.
2. Requests for Working Flexible Arrangements
An employee who has responsibility for a child under school age may request a change in working arrangements to assist the employee to care for the child. This entitlement only applies to an employee with at least 12 months continuous service with the employer or, in the case of casual employees, to long term casual employees who have a reasonable expectation of continued employment with the employer. An employer is entitled to refuse an employee’s request for flexible working arrangements on reasonable business grounds but must provide written reasons for such a refusal.
3. Parental Leave and related entitlements
An employee is entitled to 12 months unpaid parental leave, i.e. maternity, paternity or adoption leave, provided the employee has completed at least 12 months continuous service with the employer. An employee may also extend the leave period by an additional 12 months unpaid parental leave (total of 24 months) under certain circumstances. Such extension may only be refused on reasonable business grounds. Employment Standards provide access to up to 24 months unpaid leave in relation to the birth of a child or the placement for adoption of a child under 16. This entitlement extends to same sex couples.
4. Annual Leave
A permanent employee (full-time or part-time) is entitled to 4 weeks paid annual leave for each completed year of service with the employer. Continuous shift workers are entitled to 5 weeks annual leave each year (pro rata for an incomplete year). n employee is entitled to 12 months unpaid parental leave, i.e. maternity, paternity or adoption leave, provided the employee has completed at least 12 months continuous service with the employer. An employee may also extend the leave period by an additional 12 months unpaid parental leave (total of 24 months) under certain circumstances. Such extension may only be refused on reasonable business grounds. Employment Standards provide 4 weeks paid annual leave for each year of service. A shift worker (as defined by a modern award or enterprise agreement or, in the case of an award/agreement free employee, the Fair Work Act 2009) is entitled to 5 weeks annual leave.
A part-time employee is entitled to a proportionate amount of leave based on their ordinary hours, while there is no entitlement to annual leave for casual employees. Annual leave accrues month to month and accumulates if it is not taken. An employee does not have to wait 12 months before being able to take any accrued annual leave
The NES allows an ‘award/agreement-free’ employee to enter into an agreement to cash out a portion of their annual leave. The employee will need to have at least 4 weeks annual leave remaining after the cashing out of leave has occurred. [space]An employee is to be paid at their ‘base rate of pay’ for the period of annual leave, but modern awards often provide for ‘ordinary pay’ and the award provision would prevail.
The applicable modern award or enterprise agreement may contain a term that allows cashing out of annual leave, but if there is no award/agreement provision, cashing out is not permissible. Any cashing out provisions in a pre-Fair Work agreement continue subject to the provisions of the NES
5. Personal Carers Leave and Compassionate Leave
A full-time employee is entitled to 10 days paid personal/carer’s leave for each year of continuous service with the employer and up to 2 days paid compassionate leave for each occasion where a member of an employee’s immediate family or household dies or has an illness or injury that poses a serious threat to his or her life. Personal leave accrues on the basis of the employee’s ordinary hours of work and can be taken at any time subject to the employee providing reasonable evidence to the employer on the employers request.
In addition, all employees (including casual employees) have an entitlement to take two days unpaid carer’s leave when a member of an employee’s family or household (as specified in the legislation) requires care or support because of illness, injury or unexpected emergency
6. Community Service Leave
An employee is entitled to take unpaid leave to engage in designated community service activities, such as a voluntary emergency management activity. In addition, permanent employees who take leave to provide jury service will be entitled to “make up pay” for a period of up to 10 days. The make up pay represents the difference between the amount an employee receives for attending jury duty and the base rate of pay for his/her ordinary hours of work. b
7. Long Service Leave
in most cases, long service leave will continue to be provided by the relevant state or territory long service leave legislation. This is a transitional arrangement until a national long service leave standard is developed. State or territory law does not apply to an employee whose entitlement to long service leave is derived from an award or agreement that continues under transitional arrangements.
8. Public Holidays
An employee is entitled to a paid day off when a designated public holiday falls on a day the employee is ordinarily required to work. An employer can reasonably refuse to work on a public holiday. Penalty rates for work on a public holiday are determined by the applicable modern award or agreement
9. Notice of Termination and Redundancy Pay receive an extra
week in addition to the amount of termination payment they are to receive (see the table below for Notice of Termination.)
Notice of termination — the employer must give a minimum period of notice of termination, based on the employee’s period of continuous service with the employer. The maximum period of notice is 5 weeks, for employees who have completed 2years service or more and who are aged over 45 years.
receive an extra week in addition to the amount of termination payment they are to receive
(see the table below for Notice of Termination.)
|Period of continuous service||Period of notice/pay in lieu|
|Not more than 1 year||At least 1 week|
|1 year up to 3 years||At least 2 weeks|
|3 years up to 5 years||At least 3 weeks|
|More than 5 years||At least 4 weeks|
|(If employee is over 45 and employed for more than 2 years)||(Add one week in addition to the above amounts)|
Redundancy pay — the NES also provides an entitlement of up to 16 weeks redundancy pay, based on the length of the employee’s continuous service with the employer. The redundancy pay obligations do not apply to an employer who employs less than 15 employees at the time a redundancy occurs. [space]An employer can apply to vary the amount of redundancy pay if it unable to pay the amount or if it obtains other acceptable alternative employment for the employee.
An employee who has worked continuously for one year or more, whose position is made redundant (as defined in the National Employment Standards) is entitled to a payment based on years of continuous service with an employer. Businesses with less than 15 employees are exempt from having to make a redundancy payment to employees.
Exclusions apply including:
- an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
- an employee whose employment is terminated because of serious misconduct;
- a casual employee in some situations where the employer has found suitable alternative employment for the employee;
- where there is an industry-specific scheme for redundancy in the modern award;
- an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement.
10. Provision of Fair Work Information Sheet
Employers are required to issue a Fair Work Information Statement to all new employees as soon as practicable after commencing employment. The Statement includes information about the NES, modern awards and agreement-making under the Fair Work Act and is published by Fair Work Australia. The Statement does not need to be provided to existing employees employed prior to 1 January 2010.require employers to give each new employee a copy of the Fair Work Information Statement (FWIS). The FWIS contains information on the roles of Fair Work Australia and the Fair Work Ombudsman, the National Employment Standards, modern awards, agreement making and freedom of association. The Fair Work Information Statement must also contain information on individual flexibility arrangements, employee records and privacy and termination of employment.
Freedom of Association and Workplace
Rights (General Protection)
Freedom of Association is where an employer neither encourage nor discourage employee from joining the appropriate trade union. Under the Freedom of Association provisions of the Fair Work Act, 2009, discrimination based on an employee’s membership or non membership of an industrial union or association is illegal and unacceptable. Is is unlawful for an employer to take adverse action against an employee because they have a have a workplace right. Adverse action could include dismissal of the employee, refusing to employ a person, negatively altering an employees position, or treating an employee differently for discriminatory reasons. For full details in regards to general protections refer to the page Adverse Action.
What if you are not Covered by an Award
The National Employment Standards operate even if an employee is not covered by a modern award or enterprise agreement. The national minimum wage also applies to the employees who are award free and there is no agreements
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