Introduction
The National Employment Standards (NES) are part of the Government’s plan to provide a strong safety net for employees.
They deal mostly with working hours and leave entitlements.
The NES do not deal with matters like minimum wages or casual loadings. Modern Awards will deal with those. In setting conditions however, Modern Awards must not go outside the boundaries of the NES.
The NES will be legislated later this year, and it is anticipated that they will come into effect on 1st January 2010.
1. Maximum weekly hours
The standard weekly hours of work for a full-time employee will be 38 hours per week.
Weekly hours for a part-time employee are whatever they usually work.
An employer may request or require an employee to work reasonable additional hours.
Some of the important factors influencing the definition of ‘reasonable additional hours’ are:
- whether the employee is paid at a level that shows an expectation of working additional hours;
- patterns of work in the industry;
- the employee’s role and level of responsibility.
Hours can’t be averaged unless a Modern Award says so.
2. Requests for flexible working arrangements
An employee who has been with the same employer for 12 months and is either a parent or responsible for the care of a child under school age may ask for flexible working arrangement to help him/her care for the child.
Casual employees who have been employed on a regular basis for 12 months may also make a request for flexibility.
The request must be made in writing, outline the changes the employee needs, and the reasons for the change.
While the biggest request is expected to be a variation in hours, others will include changes to the patterns and location of work.
Employers must respond to the employee within 21 days.
If an employer refuses the request, the refusal may only be made on reasonable business grounds. These will vary from workplace to workplace.
The reasons for the refusal must be given in writing to the employee.
3. Parental leave
Eligible employees will be entitled to a period of 12 months starting from the birth/placement of the child.
Generally only one parent may be on leave and the leave is unpaid.
Parents can request an extension of their period of parental leave for an additional 12 months. Conditions apply:
- The employee will be required to give their employer 4 weeks notice;
- The employer must agree to the requested extension, unless the employer has reasonable business grounds for refusing.
The NES does not yet give any guidance as to what ‘reasonable business grounds’ are.
Employees have the right to be transferred to a safe job (or take paid no-safe-job leave) or to return to their original job after parental leave.
If an employee is on parental leave and their employer makes a decision that impacts on the employee’s status, pay or location of work, the employer must take all reasonable steps to give the employee information about the decision and an opportunity to discuss it.
The entitlement has been extended to same sex couples.
4. Annual leave
Full time employees are entitled to 4 weeks annual leave for each year of service.
Shift workers get an additional week's annual leave. The term ’shift work’ will be defined on an industry/award basis.
The NES requires annual leave to be taken at a time agreed between the employer and the employee, and an employer must not unreasonably refuse to agree to a request.
Annual leave can only be cashed out in accordance with an award or enterprise agreement.
Employers will only be allowed to direct employees to take leave at certain times where it is authorised by their award.
Where the employee is not covered by an award, the employer will be able to reasonably direct the employee to take leave.
5. Personal/carer's leave and compassionate leave
Full time employees are allowed personal leave because they are unfit for work through illness or injury.
Employees are allowed carer's leave to care for or support a member of their immediate family or household because of personal illness, injury or emergency.
Full-time employees are entitled to 10 days personal/carer's leave a year and 2 days of both unpaid carer's and compassionate leave on each ‘permissible occasion’.
A ‘permissible occasion’ is the serious illness or death of a member of the employee's immediate family or household.
Casuals will now be entitled to receive unpaid carer’s leave and compassionate leave.
The evidence required is said to be ‘evidence that would satisfy a reasonable person’, rather than a medical certificate or statutory declaration. Some Modern Awards may contain different requirements to be sure always consult an employment lawyer.
6. Community service leave
Employees are entitled to take community service leave.
For jury service they are to get make-up pay, with unpaid leave for other emergency services.
Employees wishing to take community service leave have to give notice to their employer of their absence as soon as they can, and have to provide evidence to ‘satisfy a reasonable person’ that the absence is due to community service activity.
Protection from termination of employment because a person is on community service leave will stay.
7. Long service leave
There is a desire for a uniform long service leave entitlements for employees throughout Australia, but the NES appear to retain the current entitlements for employees.
Award-free employees and those employees covered by agreements that do not deal with long-service leave will not be entitled to it.
8. Public holidays
Full-time employees are entitled to a day off without loss of pay for each public holiday.
Part time employees are also entitled to a day off without loss of pay for each public holiday when they would normally have worked.
An employer will be able to request an employee work on a public holiday, but the employee may refuse the request if the request is not reasonable or the refusal is reasonable. Factors to be taken into account with both requests and refusals include the type of employment, the amount of notice given by the employer and whether the work is occasioned by an emergency.
Under the NES, some awards and agreements are expected to contain automatic guidelines about public holidays.
An award-based employee who works on a public holiday will generally receive double time and a half for all hours worked.
Allowances (e.g., meal allowances and tool allowances) are paid at the usual rate on public holidays.
9. Notice of termination of employment and redundancy pay
Most regulations about termination will not change. See Termination Procedures.
The NES confirms the requirement for the notice of termination of employment to be in writing.
The NES will introduce for the first time an entitlement to redundancy pay for permanent employees whose employer employs 15 or more employees (including certain casual employees).
Certain employees will be excluded from the NES redundancy pay entitlement. These include casuals, seasonal employees, trainees, apprentices and an employee with less than 12 months continuous service
When a business is sold and an employee either accepts a job with the new employer on the same terms or refuses such an offer, redundancy pay entitlements will not apply.
10. Fair Work Information Statement
Fair Work Australia (FWA) will have to publish a statement called the Fair Work Information Statement (a.k.a. the Statement).
The Statement will detail various matters including:
- listing the provisions of the NES;
- modern awards;
- agreement making;
- the right to freedom of association; and
- the role of Fair Work Australia.
From 1st January 2010, employers have to give the Fair Work Information Statement to all new employees but not existing employees.
