The National Employment Standards (“NES”) cover everyone in the national workplace system. Because this covers most employees in businesses in Australia, it doesn’t matter what State you work in, you will have the same rights and obligations.
Effective from 1 January 2010, Award or Agreement Free employees have minimum conditions, or a set of base conditions, they are entitled to under the NES.
Your employer cannot exclude or provide for entitlements that are less than these minimum standards, as those terms will have no effect. The employer can however, provide more favourable conditions, or alter the conditions (eg by averaging hours of work).
The NES, combined with modern awards, provide a safety net for employees covered by the national workplace system. An award or agreement usually provides you with the terms and conditions of your employment.
There are some exceptions to the NES. For example, casual employees and high income earners (earning above $129,300.00 as at 1 July 2013) may not be entitled to some standards.
- The maximum weekly hours of work under the NES is 38 hours per week, plus additional hours that are reasonably required. There are a number of factors to take into account in determining what is reasonable, including your health and safety, your personal circumstances, the workplace needs, periods of notice to work and your notice in refusing the work, the nature of your role, and the usual patterns of work in your industry. This applies to casual employees.
- You are entitlement to request flexible working arrangements where you are a parent, or the carer of a child, and your employer may only refuse on reasonable grounds under the NES. You must have worked a minimum of 12 consecutive months with the employer to be entitled to this. Casual employees may request this where they have been employed for 12 months on a regular and systematic basis and with an expectation of ongoing employment.
- You are entitled to up to 12 months unpaid parental leave, with the option to request a further 12 months unpaid leave, plus various other forms of maternity and adoption-related leave under the NES. There is a requirement of 12 months continuous or sequential service to be eligible for this. Casual employees may request this where they have been employed for 12 months on a regular and systematic basis and with an expectation of ongoing employment.
- The NES provides for four weeks paid leave per year.
- The NES provides for 10 days paid personal/carer’s leave, two days unpaid carer’s leave, and two days compassionate leave. Casual employees are entitled to two days unpaid carer’s leave and two days compassionate leave per occasion.
- The NES provides for unpaid leave for voluntary emergency activities, plus an entitlement to be paid for up to 10 days for jury service. Casual employees are entitled to community service leave, but not for jury service.
- If you are not covered by a Modern Award or Agreement, your entitlement to Long Service Leave under the NES refers to the Industrial Relations Act 1999, whereby you are entitled to 8.6667 weeks of paid leave after 10 years of continuous service. A Modern Award or Agreement may provide differently.
- The NES provides for a paid day off on a public holiday, except where reasonably requested to work. Casual employees are entitled to reasonably seek a day off.
- The NES termination and redundancy pay provisions provide for up to five weeks’ notice of termination and up to 16 weeks’ severance pay on redundancy, based on length of service. The NES provides for one week’s notice for termination where there is less than one year of continuous service. You are not entitled to redundancy payments until completing at least one year of continuous service under the NES.
- A Fair Work Information Statement must be provided to all new employees, before or as soon as practicable after, the employee commences employment. This must also be provided to casual employees.
It’s important that both employers and employees know their rights and obligations when it comes to an employment contract.
If you would like advice on these areas, please do not hesitate to contact us.