The NES are set out in the Fair Work Act, 2009 (Cth) (“the Act”) and replace the Australian Fair Pay and Conditions Standard.
The NES apply to all employers, regardless of your status as a constitutional corporation or non-constitutional corporation. Following the referral of all states (except WA) industrial powers to the Federal Government all private sector employers will be regulated by the Fair Work Act, 2009 from 1 January 2010.
An employer cannot ask an employee to work more than 38 hours in a week unless the additional hours are reasonable. To determine the reasonableness of these additional hours, employers must take into account any relevant matters, but specifically:
An employee can refuse to work additional hours if these hours are not reasonable.
Employees responsible for the care of a child may request flexible working arrangements until their child reaches school age. The employer may refuse on ‘reasonable business grounds’, but this is not defined in the Act.
Where a pregnant employee needs to be transferred to a safe job for OHS reasons, and no safe job is available, she is entitled to paid leave for the risk period.
Employees who have completed at least 12 months of continuous service are entitled to 12 months of unpaid parental leave if the leave is associated with the birth or adoption of a child and the employee has responsibility for the care of that child.
Casual employees are not entitled to leave (other than unpaid pre-adoption leave) unless they are a long term casual employee of the employer with a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Each parent has a separate entitlement to 12 months’ unpaid parental leave or one parent can request up to 12 months additional leave.
Casual employees who have worked with the one employer on a regular and systematic basis over a 12 month period also have this entitlement.
The four weeks entitlement (five weeks for certain shift workers) to annual leave will accrue progressively for all periods of employment other than periods of unpaid leave, unpaid absence (other than community service leave) and unauthorised leave.
Progressive accrual means that leave accrues continually, rather than by a defined period of time (e.g. annual service, or monthly service) so employees don’t have to wait for a certain period of service before they are entitled to take leave. An employer cannot ‘unreasonably’ refuse a leave request. Annual leave is to be paid at the employee’s base rate of pay (excluding overtime and penalty rates, bonuses and similar payments).
For Award or Agreement covered employees, annual leave cannot be cashed out unless in accordance with a term of a modern Award or Enterprise Agreement.
For Award or Agreement free employees, an employer and employee can agree, in writing, to cash out a portion of annual leave as long as the remaining balance of the entitlement is at least 4 weeks.
An employee can take paid personal/carer’s leave because they are not fit to work as a result of sickness or injury to care for an immediate family or household member who needs care or support because of sickness or injury. Leave is also permitted for an employee who must care for an immediate family or household member because of an emergency.
An employee’s entitlement to personal/carer’s leave and compassionate leave is contingent on the employee meeting notice and evidence requirements of both the Act and their modern Award or enterprise agreement. Under the Act, employees must tell their employer as soon as practicable that they are taking leave and the leave period, or if that’s not possible, the estimated period of leave.
If you require employees to give you evidence that they have taken leave for illness/injury or caring responsibilities, that evidence must satisfy a ‘reasonable person’. Because this term isn’t defined in the Act we suggest you contact the Workplace Hotline to discuss this evidentiary requirement. Typically, a reasonable person would be satisfied by a medical certificate from a doctor or other health professional.
You are entitled to question medical certificates and request more information about the nature of the sickness or injury. The Act specifies that the employee must be unfit for work as a consequence of the illness or injury.
The Act provides for unpaid carer’s leave for times when an employee has used their paid carer’s leave entitlement, but an immediate family or household member needs care or support because of sickness or injury or an unexpected emergency.
The length of unpaid carer’s leave can be up to two days, taken as a single continuous period or another period that the employee and employer agree to. The entitlement is for leave each time a family or household member needs care.
This means that, provided the occasion is genuine and the notice and evidence requirements are met, there is potential for employees to access significant amounts of leave of this type.
A permanent employee is entitled to paid compassionate leave if a member of their immediate family or household:
Casual employees are entitled to unpaid compassionate leave.
The employee must provide the same notice and evidence for compassionate leave as would be required for paid personal/carer’s leave.
Employees who are entitled to compassionate leave can take the leave on each occasion as:
An employee is entitled to two days of compassionate leave for each occasion (a permissible occasion). Further, if the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.
You must pay the employee at their base rate of pay for their ordinary hours of work for that period.
An employee who engages in a community service that meets the eligibility definition in the Act is entitled to an unpaid absence from work if it’s reasonable in all the circumstances. There are notice and evidence requirements under the Act for community service leave.
Jury duty is treated differently and employers must pay the first 10 days of absence for jury duty. Payment is the difference between what the employee was paid for jury duty and the employee’s base rate of pay.
Existing Entitlements to long service leave form part of the NES.
Long service leave remains, for the time being, governed by current state and territory legislation, and where relevant, award or agreement provisions. The federal government intends to introduce a new national long service leave standard.
The NES provide the following public holidays:
An employer can ask an employee to work on a public holiday only if the request is ‘reasonable’.
From 1 January 2010, the NES provides a statutory minimum entitlement for redundancy pay for permanent employees whose employer employs 15 or more employees (including casual employees employed on a regular basis).
The entitlement to redundancy pay reflects the old national standard (previously only an award term), which is the following scale of between 4 and 16 weeks depending upon the employee’s period of continuous service:
|1||At least 1 year but less than 2 years||4 weeks|
|2||At least 2 years but less than 3 years||6 weeks|
|3||At least 3 years but less than 4 years||7 weeks|
|4||At least 4 years but less than 5 years||8 weeks|
|5||At least 5 years but less than 6 years||10 weeks|
|6||At least 6 years but less than 7 years||11 weeks|
|7||At least 7 years but less than 8 years||13 weeks|
|8||At least 8 years but less than 9 years||14 weeks|
|9||At least 9 years but less than 10 years||16 weeks|
|10||At least 10 years||12 weeks|
Small business (less than 15 employees) and employees with less than 12 months service are exempt from redundancy payments; and the redundancy payments requirements do not apply to certain categories of employees, including casuals, employees on probation, fixed term or seasonal employment.
Many modern awards provide that if the employee would have received a better redundancy entitlement under their former NAPSA or award, they will continue to receive that entitlement under a five-year transitional arrangement. Check with AFEI if you are not sure which modern award applies.
If an employee has no NAPSA, award, agreement or contractual entitlement to redundancy payments prior to 1 January 2010, only their service from 1 January 2010 is to be used when calculating redundancy entitlements. For example, an employee with 5 years service as at 1 January 2010 who is retrenched in June 2010 would receive no entitlement as their service from 1 January is less than one year.
The NES require employers to give an employee a minimum period of notice in writing, based on their years of service:
|Length of Service||Notice|
|Not more than 1 year’s continuous service||1 week’s notice|
|More than 1 year but not more than 3 years’ continuous service||2 weeks’ notice|
|More than 3 years’ but not more than 5 years’ continuous service||3 weeks’ notice|
|More than 5 years’ continuous service||4 weeks’ notice|
An employee over 45 years of age who has completed more than 2 years’ continuous service with the employer is entitled to an additional week’s notice of termination.
From 1 January 2010, all new employees must be provided with a copy of the Fair Work Information Statement.