National Employment Standards
- maximum weekly hours
- requests for flexible working arrangements
- parental leave and related entitlements
- annual leave
- personal/carer’s leave and compassionate leave
- community service leave
- long service leave
- public holidays
- notice of termination and redundancy pay
- Fair Work Information Statement.
The NES are set out in the Fair Work Act, 2009 (Cth) (“the Act”) and replace the Australian Fair Pay and Conditions Standard.
IMPORTANT:
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.
1. Maximum weekly hours
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:
- any risk to employee health and safety from working the additional hours
- the employee’s personal circumstances, including family responsibilities
- the needs of the workplace or enterprise in which the employee is employed
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours
- any notice given by the employer of any request or requirement to work the additional hours
- any notice given by the employee of his or her intention to refuse to work the additional hours
- the usual patterns of work in the industry, or the part of an industry, in which the employee works
- the nature of the employee’s role, and the employee’s level of responsibility
- whether the additional hours are in accordance with averaging terms in the employee’s modern award or enterprise agreement.
An employee can refuse to work additional hours if these hours are not reasonable.
2. Requests for flexible working arrangements
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.
3. Parental leave
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.
12 month extension to unpaid parental leave
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.
4. Annual leave
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.
5. Personal/carer’s leave and compassionate leave
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.
Notice and evidence
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.
Unpaid carer’s leave
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.
Period of unpaid carer’s leave
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.
Compassionate leave
A permanent employee is entitled to paid compassionate leave if a member of their immediate family or household:
- has a life threatening illness
- has a life threatening injury
- dies.
Casual employees are entitled to unpaid compassionate leave.
Notice and evidence
The employee must provide the same notice and evidence for compassionate leave as would be required for paid personal/carer’s leave.
Period of compassionate leave
Employees who are entitled to compassionate leave can take the leave on each occasion as:
- a single continuous two day period
- two separate periods of one day each
- any separate periods to which the employee and his or her employer agree.
Amount of leave
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.
Rate of pay
You must pay the employee at their base rate of pay for their ordinary hours of work for that period.
6. Community service leave
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.
7. Long service leave
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.
8. Public holidays
The NES provide the following public holidays:
- Christmas Day, Boxing Day, New Year’s Day, Australia Day, Anzac Day, Queen’s Birthday, Good Friday and Easter Monday
- a substitute public holiday under a state or territory law where, for example, a public holiday falls on a weekend
- any other public holiday under a state or territory law, including a regional public holiday in the place where the employee works.
An employer can ask an employee to work on a public holiday only if the request is ‘reasonable’.
9. Redundancy pay
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:
NES Redundancy Pay Scale
Employee’s period of continuous service Redundancy pay period
with the employer on termination
| 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.
Where the employee’s modern award is more generous than the NES
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.
NES and employees with no redundancy entitlements prior to 1 January 2010
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.
Period of Notice under the National Employment Standard
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.
10. Fair Work Information Statement
From 1 January 2010, all new employees must be provided with a copy of the Fair Work Information Statement.