The National Employment Standards - The New Safety Net

“A strong safety net of minimum conditions” was one of the principal themes of the Government’s IR policy position. The creation in the Fair Work legislation of 10 so called National Employment Standards is an important part of its intention to deliver on that commitment.

This Fact Sheet provides an overview of the Standards and what they involve. Further details can be obtained at one of VECCI’s free Member Briefings on the new Fair Work laws. VECCI’s Helpline can also provide more advice and information.

What’s  Involved?

The National Employment standards establish in legislation a set of core employment conditions that apply as minimum standards for all Australian employees. They will apply regardless of what position the employee is employed in – CEO, Senior Managers, and award covered employees and award free – they are standards that have broad application for all employees.

They are not able to be varied or negotiated away even by agreement. However, awards can add to the standards or provide clarification about how they are to be applied – for example, an award might provide that the annual leave entitlement in the Standards could be taken by “cashing out” part of the leave entitlement.

In some cases the Standards simply confirm entitlements that already exist for most employees. In other cases they will create new entitlements for many employees.

When?

1st January, 2010 is the key date in this case. From the beginning of next year the National Employment Standards will apply as minimum employment conditions for all Australian employees, regardless of who they are or what pre – existing awards/agreements/ employment contracts or other arrangements govern their employment arrangements.

What’s Involved?

The Standards are grouped under ten headings. This is a summary of the entitlements created by each of the Standards.

To download a full version of the National Employment Standards please click here

Maximum weekly hours

Normal working hours should not exceed 38 hours per week, but an employer may request/require “reasonable additional hours” to be worked. What’s reasonable or unreasonable?  This will depend upon a whole range of factors some of which are referred to by way of example in the legislation. The Hours standard also contemplates that hours could be averaged over a work cycle.

Requests for flexible working arrangements

 This part of the Standard does introduce something new for most employees. It provides that parents with care of child under school age or care of a child with a disability under the age of 18 can request changed work arrangements to help cope with their family responsibilities. This might for example involve a request to work for part of the week from home or to vary start/finish times. It only applies to employees with at least 12 months service and any request must be in writing. An employer is not bound to agree to every request but should only refuse on “reasonable business grounds.”

Parental Leave

This part of the Standard builds on existing parental leave entitlements. It enables both parents to take up to 12 months unpaid leave following the birth of a child although not at same time, except for 3 weeks at time of birth. It also allows one parent to request to extend the leave period by a further 12 months. Any request must be made at least 4 weeks prior to end of leave. Again an employer is bound to agree unless there are “reasonable business grounds for refusing.”

Annual Leave

This confirms the entitlement that most employees have to 4 weeks leave or 5 weeks for shift workers, as defined in awards. The entitlement accrues progressively. Any ability to cash out” will be left to awards to define.

Community Service Leave

 This confirms that employees are entitled to be absent from if engaged in “eligible community service activity” such as Voluntary emergency management activity like the CFA or SES. The absence must also be “reasonable.”

Personal/Carers/Compassionate Leave

 This confirms what already exists for most employees being 10 days paid personal/carers leave which accrues progressively and is cumulative if unused plus 2 days unpaid carers leave and 2 days paid compassionate leave.

Long Service Leave

This confirms that existing award or State based entitlements will continue to apply as entitlements that cannot be done away with.

Fair Work Information Statement

 This simply requires employers to provide employees with a Statement setting out a summary of basic entitlements. The content of the Statement will be developed by the Government.

Public Holidays

 This confirms that employees are entitled to be absent on the designated public holidays unless they have been asked to work. In such cases they may refuse to work if “the request is not reasonable OR the refusal is reasonable”.

Notice of Termination and Redundancy Pay

 Written notice of termination required. Scale of redundancy payments based on length of service … but does not apply if less than 15 employees, or serious misconduct involved.