after several findings of breaches by the Federal Magistrate’s Court of the National employment Standards (NES), it is timely to recap on the NES to make sure they are understood.
as of January 1, 2010, the NES came into effect. together with modern awards (also from January 1, 2010), the NES make up a new safety net for employees covered by the national workplace relations system.
the NES are set out in the Fair Work Act 2009and comprise 10 minimum standards of employment. In summary, the NES involve the following minimum entitlements:
Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours. an employee can refuse to work overtime in some circumstances, such as if there is a risk to health and safety.
Requests for flexible working arrangements – an entitlement allowing parents or carers of a child under school age, or of a child under 18 with a disability, to request a change in working arrangements to assist with the care of the child. this is likely to be expanded to older workers shortly.
Parental leave and related entitlements – up to 12 months unpaid leave per employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption-related leave.
Annual leave – four weeks paid leave per year, plus an additional week for certain shift workers. employees and employers need to agree on the time of taking annual leave.
Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required and two days compassionate leave (unpaid for casuals) as required. this is subject to requirements to provide appropriate certification in order to get paid.
Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
Long service leave – a transitional entitlement for employees as outlined in an applicable pre-modernised award, pending the development of a uniform, national long-service leave standard.
Public holidays – a paid day off on a public holiday, except where reasonably requested to work. employees can refuse to work on a public holiday where they have family responsibilities.
Notice of termination and redundancy pay– up to five weeks’ notice of termination and up to 16 weeks’ severance pay on redundancy, both based on length of service. this is subject to a small business exemption of 15 employees.
Provision of a fair Work Information statement – must be provided by employers to all new employees and contain information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, union rights of entry, transfer of business and the respective roles of the Fair Work Commission and the Fair Work Ombudsman.
Application of NES
The NES apply to all employees covered by the national workplace relations system (however only certain entitlements apply to casual employees).
There are two NeS entitlements that apply to all full-time and part-time employees, whether they are covered by the national workplace relations system or not.
• parental leave and related entitlements (this also applies to casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment); and
• notice of termination.
however, only certain NeS entitlements apply to casual employees, which are:
• two days’ unpaid carer’s leave and two days’ compassionate leave per occasion;
• maximum weekly hours;
• community service leave (except paid jury service);
• to reasonably seek a day off on a public holiday; and
• provision of the Fair Work Information Statement.
In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment are entitled to:
• make requests for flexible working arrangements; and
• parental leave.
the NES apply to all employees covered by the national workplace relations system regardless of the applicable industrial instrument or contract of employment. terms in awards, agreements and employment contracts cannot exclude or provide for an entitlement less than the NES and have no effect.
however, awards and agreements are specifically allowed to affect the operation of the NES in certain ways.
For example, they may specify terms that deal with
• averaging an employee’s ordinary hours of work;
• the cashing out and taking of paid annual leave;
• the cashing out of paid personal/carer’s leave;
• the substitution of public holidays; and
• situations in which redundancy pay entitlements do not apply.
they may also supplement the NeS by providing entitlements that are more favourable for employees.
In addition, employers and award/agreement-free employees (meaning they are not covered by an award or agreement) may also make agreements that affect the operation of the NeS in certain ways.
they may make agreements about the following:
• averaging of hours of work;
• the cashing out or taking of paid annual leave;
• the substitution of public holidays;
• extra annual leave in exchange for foregoing an equivalent amount of pay; and
• extra personal/carer’s leave in exchange for foregoing an equivalent amount of pay.
Otherwise, employment contracts can only have effect to the extent they provide entitlements that are similar or more favourable to the employee.
an employer must not contravene a provision of the NeS. a contravention of a provision of the NeS may result in penalties of up to $10,200 for an individual and $51,000 for a corporation.