National Employment Standards (NES)
The National Employment Standards (NES) are 11 minimum standards of employment which apply in workplaces nation-wide. The standards are mandatory regardless of business type or size, and regardless of an employee’s award, registered agreement or contract. They cover maximum weekly hours of work, flexible work arrangements, leave, public holidays, and notice of termination and redundancy pay. The federal Fair Work Act 2009 guarantees the standards, and the Fair Work Commission and Fair Work Ombudsman ensure compliance with them.
Maximum weekly hours of work
An employer must not require an employee to work more than 38 hours in a week, unless the extra hours are reasonable. This figure must include any hours of leave or authorised absence (paid or unpaid). For an employee that is not a full-time employee, the figure is the lesser of 38 hours or the employee
When determining whether additional hours are reasonable for an employee, factors which must be taken into account are:
- any risk to their health and safety;
- their personal circumstances, including family responsibilities;
- workplace needs;
- entitlement to overtime payments, penalty rates or other compensation;
- notice given;
- notice of an intention to refuse to work the additional hours;
- usual patterns of work in the industry;
- the nature or the role and level of responsibility;
- whether the additional hours accord with averaging provisions included in an award or agreement applicable to the employee, or agreed to by an employer.
Requests for flexible working arrangements
Certain employees can request flexible working arrangements and an employer can only refuse such a request on “reasonable business grounds”. An employee can make a request if they:
- are the parent or are responsible for the care of a school-age child;
- are a carer;
- have a disability;
- are aged 55 or older;
- are experiencing family violence or providing care or support to someone who is.
Reasonable business grounds include excessive costs, lack of capacity, impracticality, loss of efficiency or productivity, and significant negative impact on customer service.
Conversion to casual to permanent employment
Casual employees who have worked for the one employer for 12 months must be offered the option to convert to permanent full-time or part-time employment. The employee must have worked a regular pattern of hours for at least the past 6 months and could continue working those hours as a permanent full-time of part-time employee without significant changes. This rule does not apply to small business employers. However, a casual employee for a small business can request to convert to permanent employment and an employer cannot refuse the request without reasonable grounds. Such grounds include that in the next 12 months the employee’s position will not exist, their hours will significantly reduce or their days or times of work will significantly change.
Parental leave and related entitlements
All employees are entitled to unpaid parental leave if have completed at least 12 months of continuous service with an employer. Parental leave includes birth-related leave and adoption-related leave (including for premature birth, stillbirth or infant death) and maternity leave. It is permitted when the employee, their spouse or their de facto partner gives birth, or when the employee adopts a child aged under 16. Rules apply for whether one or both parents can take unpaid parental leave, how much leave can be taken, and to notice and evidence requirements.
An employee who is not a casual accumulates four weeks of paid annual leave for every year of service with an employer. There are rules for taking, directing and granting annual leave.
Personal/carer’s leave, compassionate leave, family and domestic violence leave
These types of leave are designed to support an employee when there is personal illness, caring responsibilities, family emergencies, domestic violence, or the death or serious illness of close family members. The leave can be paid or unpaid, depending on the type, and there are notice and evidence requirements. Full-time employees are entitled to:
- 10 days a year of personal/carer’s leave;
- 2 days of compassionate leave for each occasion;
- 5 days of family and domestic violence leave each year.
Community service leave
Employees are permitted to be absent from work to take part in some community service activities such as helping to deal with an emergency or natural disaster, or jury duty. There is no set limit on the amount of this type of leave that can be taken, but there are notice and evidence requirements.
Long service leave
An employee’s entitlement to long service leave depends on the state or territory law or their industrial agreement, but is generally after a period of continuous service of 7 to 15 years with the same employer. For example, in Queensland, New South Wales and Victoria, an employee is entitled to 8.67 weeks of long service leave after a period of 10 years of continuous service, while in South Australia they are entitled to 13 weeks.
An employee is entitled to be absent from work on public holiday or a part-day that is a public holiday. The NES applies to national public holidays including New Year’s Day, Australia Day, Anzac Day, Christmas Day and Boxing Day.
Notice of termination and redundancy pay
This standard establishes a minimum notice period or payment in lieu of notice, and the amount of redundancy pay an employee is to receive at the end of their employment. The minimum notice period ranges from 1 week for 1 year or less of continuous service, to 4 weeks for more than 5 years’ continuous service. The minimum redundancy pay ranges from 4 weeks’ pay for at least 1 and 2 years of continuous service, to 16 weeks’ pay for at least 9 years but less than 10 years of continuous service.
Fair Work Information Statement
Every new employee must be given a Fair Work Information Statement, which contains information about the NES, and other employee rights and entitlements.
For advice or representation in any legal matter, please contact Armstrong Legal.