© 2017 Sebastian De Brennan. Barrister at Law

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NATIONAL EMPLOYMENT STANDARDS

November 29, 2017

NATIONAL EMPLOYMENT STANDARDS

 

Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment law and/or human rights law before acting or relying on any of its content.

 

 

The Ten (10) Minimum Standards of Employment

The national workplace relations system refers to the collection of laws that apply to employees and employers in Australia, including the Fair Work Act 2009, the National Employment Standards (NES), as well as registered agreements and awards. The NES refer to a set of 10 minimum standards of employment. Beyond the NES, terms and conditions of employment are found in awards or enterprise agreements. Only certain entitlements apply to casual employees under the NES.

 

The Ten Standards

 

1.      Maximum Weekly Hours of Work:

 

This standard sets the maximum hours of work an employer may request of an employee per week at 38 hours, with provision for additional hours where reasonable. Where additional hours are deemed ‘unreasonable’, an employee may refuse to work them. According to the Act, ‘unreasonable’ and ‘reasonable’ are determined taking into account the following circumstances:

  • Potential risks to the health and safety of an employee as a result of working the additional hours;

  • Any family responsibilities of the employee;

  • The needs of the specific workplace;

  • Whether there is an entitlement to overtime payments, or penalty rates that reflect an expectation of working the additional hours.

  • Whether notice has been given by the employer of the need to work additional hours;

  • Whether notice has been given by the employee of their intention to refuse additional hours;

  • Patterns in the industry the employee works; and

  • Nature of the employee’s role and level of responsibility.

2.      Requests for Flexible Working Arrangements:

 

This standard provides that an employee is entitled to request changes in their work arrangements, such as to hours or location of work, where they:

  • Are a parent; or

  • Have responsibility for the care of a child; and

  • The child is under school age or under 18 and has a disability.

An employee is not entitled to make such a request unless:

  • They have completed at least 12 months of continuous service prior to making the request (for employees not employed on a casual basis);

  • They are a long term employee prior to making the request and have an expectation of continuing employment with the employer on this basis (for casual employees).

3.      Parental Leave and Related Entitlements:

 

This standard provides for leave entitlements surrounding care, adoption and maternity leave. Parental leave entitlements include up to 12 months of unpaid parental leave when a child is born or adopted in the form of:

  • Maternity leave;

  • Paternity and partner leave;

  • Adoption leave;

  • Special maternity leave;

  • Safe job and no safe job leave;

  • A right to return to a previously held job.

4.      Annual Leave:

 

This standard provides that employees, other than casual employees, are entitled to four weeks paid leave per year of service. This may be taken for a period agreed upon between the employee and their employer. The Act provides that an employer must not ‘unreasonably refuse’ such a request.

 

Paid annual leave does not apply to public holidays or periods during which an employee takes other forms of leave (such as paid parental leave).

 

5.      Personal/Carer’s Leave and Compassionate Leave:

 

This standard outlines employee entitlements to paid personal leave, paid and unpaid carer’s leave, and paid and unpaid compassionate leave.

Paid personal leave applies to employees other than casual employees, and provides an entitlement of 10 days paid personal/carer’s leave for each year of service. It may be taken where:

  • The employee is unfit for work due to personal illness or injury;

  • The employee must provide care or support to a member of their immediate family, or someone living with them because of:

o   Personal illness or injury; or

o   An unexpected emergency.

 

Employees are entitled to 2 days of leave at a time when a member of their immediate family or their household requires care or support due to:

  • Personal illness or injury; or

  • An unexpected emergency.

Employees are also entitled to two days paid compassionate leave (unpaid for casual employees) when a member of their family or household:

  • Contracts or develops a life threatening personal illness; or

  • Sustains a life threatening personal injury; or

  • Dies.

6.      Community Service Leave:

 

This standard provides an entitlement of absence from employment where an employee engages in ‘eligible community service activities’. These include:

  • Jury service; or

  • Emergency services and natural disaster relief activities (such as with the State Emergency Service or the RSPCA).

This is unlimited and unpaid leave, with the exception of jury duty which allows for up to 10 days paid leave.

 

7.      Long Service Leave:

 

This standard refers to the leave entitlements of an employee after a long period of working for the same employer. These are usually outlined in awards that would have covered employers and employees prior to 1 January 2010, a registered agreement, or in State and Territory legislation. In NSW, for example, if you have been working for the same employer for 10 years, you are entitled to 2 months (8.27 weeks equivalent) of paid long service leave. This is paid at your ordinary weekly wage pursuant to the Long Service Leave Act 1955 (NSW).

 

8.      Public Holidays:

 

This standard provides that employees are entitled to paid leave on public holidays if it is during their ordinary hours of work, except in circumstances where there have been ‘reasonable’ requests to work. This is based on:

  • The nature of the workplace and work performed by the employee;

  • The personal circumstances and family responsibilities of the employee;

  • Whether there was an expectation of a request to work;

  • Whether there is an entitlement to overtime, or remuneration for work on the public holiday;

  • The type of employment (such as full time, part-time, casual or shift work);

  • The notice given of the request.

9.      Notice of Termination and Redundancy Pay:

 

This standard refers to the length of time an employee or employer has to give notice of the end employment and entitlements for redundancy pay.

 

Notice of Termination

 

To terminate an employee’s employment, the employer must provide written notice of their last day of employment by personal delivery, leaving it at the employee’s address, or sending it via pre-paid post to this address. The minimum period of notice depends on the length of employment, but can be up to 5 weeks. For employees resigning, their notice can be given verbally.

 

Redundancy Pay

 

Redundancy occurs when an employer no longer requires an employee’s job be done; or they become insolvent or bankrupt. On these occasions, an employee is entitled to be paid redundancy pay. The redundancy pay period is based on the length of service, but can be up to 16 weeks.

 

10.   Provision of a Fair Work Information Statement:

 

This standard provides that a Fair Work Information Statement must be provided to new employees, by their employers. This contains information about:

  • The National Employment Standards;

  • Modern Awards;

  • Agreements;

  • Right to Freedom of Association;

  • Termination of Employment;

  • Flexibility Arrangements;

  • Unions;

  • Business Transfers; and

  • Roles of the Fair Work Commission and the Fair Work Ombudsman.

Casual Employees

 

Only certain NES entitlements apply to casual employees. These are:

  • The two days unpaid carer’s leave and compassionate leave;

  • Maximum amount of hours per week;

  • Community service leave (with the exception of paid jury service);

  • Seeking a day off on a public holiday, where reasonable;

  • Access and provision of the Fair Work Information Statement;

  • Those employed for at least 12 months on a regular basis, and expect ongoing employment are also entitled to make requests for flexible working arrangements and parental leave.

Breaches

 

Breaches of National Employment Standard (NES) provisions may result in an employer being ordered to pay fines on top of other orders imposed by Courts, including remuneration owed to the employee.

 

By Sebastian De Brennan, Barrister, s.debrennan@humanrightslaw.com.au

 

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