The National Employment Standards (NES) are a safety net of minimum entitlements established by the Fair Work Act 2009 (Cth) (“the Act”). This article explains the key points of the NES and how they relate to you as an employee.
They cannot be modified to the detriment of employees. However, conditions more favourable than those provided for in the NES can be negotiated and agreed to by employers and employees. There are 10 NES that apply to all national system employers and employees as well as those covered by the Act as a result of Queensland’s referral of industrial relations powers. The NES cover:
- Maximum weekly hours of work;
- Requests for flexible working arrangements;
- Parental leave;
- Annual leave;
- Personal / Carer’s leave and Compassionate leave;
- Community service leave;
- Long service leave;
- Public holidays;
- Notice of termination and redundancy pay; and
- Fair Work Information Statement.
Maximum weekly hours of work
The NES prescribes a maximum of 38 hours of work for full-time employees. Despite this, employers can ask employees to work longer if the request is reasonable. Reasonableness will depend on a range of circumstances, including:
- Health and safety considerations;
- The personal circumstances of an employee (for example family responsibilities);
- The nature of the business;
- The compensation provided for working the extra hours (this can be either extra pay or an established level of remuneration that is commensurate with an expectation of longer hours);
- Notice of the request;
- Industry customs; and
- The role and level of responsibility of the employee.
Requests for flexible working arrangements
This entitlement allows parents or carers of children under school age (or disabled children under 18) to request flexible working arrangements to contribute to the care of their child. To be eligible, employees must have worked for their employer for at least 12 months, or must be a long-term casual with an expectation of continuing employment. The request must be made in writing and clearly detail the change sought.
Employers must reply in writing within 21 days and if the request is refused, they must provide reasons in a way the employee will understand. Requests can only be refused on reasonable grounds, such as, a significant reduction in business efficiency, inability to organise alternate staff arrangements or a justified impracticality of the request. However, there is no prescribed action available to employees if an employer contravenes this provision. Aggrieved employees may have an action under relevant anti-discrimination legislation.
Under the parental leave standard of the NES, each employee is entitled to up to 12 months’ unpaid leave to be taken in a single continuous period. Employees must provide 10 weeks written notice detailing the proposed start and end dates of the leave period. This provision provides employees with a return to work guarantee. That is, the employee is entitled to return to their pre-parental leave position and entitlements or, if that position has been removed, a suitable position commensurate with their role, status and pay.
An employee is also entitled to request up to an additional 12 months’ leave after the initial 12 month period but must provide at least four weeks’ notice of the requested extension. Employers must respond in writing within 21 days and can refuse the request for extension on reasonable business grounds and, if so, reasons must be provided to the employee.
Although the NES only guarantees unpaid parental leave, employers and employees should also be aware of their potential obligations and rights under the Paid Parental Leave Act 2010 (Cth). Under this legislation, up to 18 weeks of government-funded parental leave may be available at the national minimum wage.
Employees are entitled to four weeks’ annual leave. The entitlement accrues progressively during each year of service according to the employee’s ordinary hours of work, and not according to ‘bulk periods’ of consecutive service. The entitlement is cumulative from year to year.
An employee is entitled to be paid their base rate of pay whilst taking annual leave. A paid annual leave entitlement cannot be cashed out unless there is an entitlement under a modern award or enterprise agreement, or there is an agreement between the employee and employer.
Personal / Carer’s leave and Compassionate leave
Full-time employees are entitled to 10 days of paid personal/carer’s leave a year. This accrues from year to year. If a personal/carer’s or compassionate leave day falls on a public holiday, the employee is not taken to be on leave that day. An entitlement also exists for two days of unpaid carer’s leave for each occasion a member of the employee’s immediate family, or their household, requires care or support.
Full-time employees are entitled to two days compassionate leave but must give their employer notice of the expected period of leave as soon as practicable. Employers are entitled to request reasonable evidence justifying the need for paid and unpaid personal/carer’s leave or compassionate leave.
Causal employees do not have an entitlement to paid leave but may have an entitlement to up to two days’ unpaid personal/carer’s or compassionate leave at a time.
Community service leave
Employers are obliged to grant their employees unpaid leave for eligible community service activities such as jury duty or volunteer emergency management tasks. Although jurors are entitled to paid leave from their employer, the employee must provide evidence of jury duty pay to their employer who can then reduce the employee’s pay employee based on the amount they receive for jury duty.
Long service leave
Employees are generally entitled to long service leave after a long period of employment with the same employer. With the exception of state and local government employees, Queensland employers and employees are generally covered by the national system. However, if there is no entitlement under this system, the employee may have an entitlement under the Industrial Relations Act 1999 (Qld). This Act covers casuals, regular part-time and seasonal employees (subject to certain conditions) in Queensland.
An employee is entitled to be absent from their workplace on an authorised public holiday unless their employer has made a reasonable request for them to work. The following must be taken into account when considering reasonableness:
- The nature of the workplace and work performed;
- The employee’s personal circumstances and family responsibilities;
- Whether the employee would reasonably be expected to work;
- Whether the employee is entitled to overtime, penalty rates or other compensation;
- The notice given; or
- Any other relevant matter.
Notice of termination and redundancy pay
The NES provides for written notice of termination and redundancy pay. The period of notice required is based on the length of time they have worked for the employer. Additionally, an employee who is older than 45 years must be given an extra week’s notice if the employee has worked for the employer for more than two years.
An employer does not have to pay redundancy pay if it has fewer than 15 employees or if the redundant employee has worked for the business for less than one year. Where redundancy pay is payable to an employee, a sliding scale is used based on the employee’s years of service. The amount payable may also be reduced by the Fair Work Commission if the employer finds other acceptable employment for the employee, or the employer can’t afford the full redundancy amount.
Fair Work Information Statement
Employers are obligated to provide each new employee with the Fair Work Information Statement before, or as soon as possible after, they start their employment. The Statement provides information about conditions of employment, including:
- The National Employment Standards;
- The right to request flexible working arrangements;
- Modern Awards;
- Making agreements under the Act;
- Individual flexibility arrangements;
- Freedom of association and workplace rights (the general protections);
- Termination of employment;
- Right of entry; and
- The role of the Fair Work Ombudsman and the Fair Work Commission.
For more information on your employment obligations or rights, contact the team at Crosby Brosnan Creen Lawyers on (07) 4772 3644.
This Information Brief is intended to provide a summary and general overview only and is not intended to be comprehensive or to constitute legal advice. Whilst we attempt to ensure the information is current at the time of publication, we do not guarantee its currency. Legal advice should be sought before acting in reliance upon the information contained in this Information Bulletin.