The National Employment Standards (referred to as “NES”) were provided by Government in the Fair Work Act 2009 to all employees in Australia. This act came into affect on 1 January, 2010. It establishes the rights of employees in Australia and the rights and responsibilities of employers. Significantly all employers must provide to all new employees, a copy of the specific entitlements noted within the NES. You can obtain a copy of this from B B Whitehouse or the government web page- www.fairwork.gov.au. The rules have changed and it is important that as an employer you consider what is required carefully in the future and as an employee, you understand your rights.
National Employment Standards for Year 2010: All You Need To Know
All employers and employees in the national workplace system are covered by the new National Employment Standards (NES) from 1 January, 2010. Under the NES, employees have certain minimum conditions. NES ensures minimum wage orders and pay rates in modern awards (Which also take effect from 1 January, 2010) for employees.
You come in the national workplace system if you are –
1. Employed by a constitutional corporation ( these are corporations that are trading or financial, usually Pty Ltd or Ltd companies),
2. Employed in Victoria, Northern Territory, Australian Capital Territory,
3. Employed by the Commonwealth or a Commonwealth authority,
4. A waterside employee, maritime employee or flight crew officer employed in connection with interstate or overseas trade or commerce,
5. Queensland, South Wales, South Australia and Tasmania, Sole traders, Partnerships, Unincorporated entities and Non-trading corporations have joined National Workplace System, from 1 January 2010.
Minimum conditions to be fulfilled by employers under NES 2010 –
1. Maximum hours of work – 38 hours per week plus reasonable additional hours.
2. Requests for flexible working arrangements- if you are a parent or guardian of a child under school age or of a child under 18 with a disability, you can request for a change in working arrangements to assist with the child care.
3. Parental leave and related entitlements- up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, and other forms of maternity, paternity and adoption related leave.
4. Annual leave – 4 weeks paid leave per year and an additional week for certain shift workers.
5. Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required and two days compassionate leave (unpaid for casuals).
6. Community service leave - unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
7. Long service leave - a transitional entitlement for certain employees who had certain LSL entitlements before 1/1/10 pending the development of a uniform national long service leave standard.
8. Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
9. Notice of termination and redundancy pay – up to 4 weeks notice of termination ( 5 weeks if employee is over 45 years and with 2 plus years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
As a part time employee, (who may or may not be in the national workplace system) you are entitled to -
1. Parental leave and related entitlements (this also applies to casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment).
2. Notice of termination.
As a casual employee, you will be entitled to-
1. Two days unpaid carer’s leave and two days unpaid compassionate leave per occasion.
2. Maximum weekly hours.
3. Community service-leave (except aid jury service).
4. To have a day off on a public holiday, unless reasonably requested to work by the employer.
5. Provision of the Fair Work Information Statement.
6. Make request for flexible working arrangements and parental leave (if you are a casual employee who have been employed for at least 12 months on a regular and systematic basis).
If you are not covered by awards or employment agreement, as an employee you are entitled to –
1. Averaging of hours of work, subject to conditions such as a maximum of 26 weeks,
2. Extra annual leave in exchange for foregoing an equal amount of pay.
(Note: employees in this category may make agreements about the provisions mentioned above).
If you are an employee, covered by awards and agreements, you are entitled to –
Awards, agreements and award and agreement based transitional instruments may supplement the NES by providing entitlements that do not disadvantage employees in comparison with the NES. A certain amount of flexibility is also allowed in the operation of the NES. For example, awards and agreements may specify terms that are flexible in relation to-
1. Averaging an employee’s ordinary hours of work,
2. The cashing out of and taking paid annual leave,
3. The cashing out of paid personal / carer’s leave,
4. The cashing out of or taking paid annual leave,
5. The substitution of public holidays,
6. Situations in which redundancy pay entitlements do not apply.
IMPORTANT - Terms in awards, agreements, transitional awards and agreements and employment contracts cannot exclude, or provide for an entitlement less than the NES.