What are the National Employment Standards? Do they apply to me?


What are the National Employment Standards (NES)?

The National Employment Standards or “NES” came into effect on 1 January 2010 and were intended as “safety net” provisions to apply to all National System Employees. There are currently a total of 11 NES or minimum conditions of employment.

The NES are contained in Part 2-2 of the Fair Work Act 2009 (Cth), and cover the following areas:

  1. Maximum Work Hours – legislates for a maximum 38 hour week for full time employees, or an average of 38 hours over a fortnight or month, with the exception of “reasonable” overtime.
  1. Flexible Work Arrangements – employee’s who meet eligibility criteria are entitled to make a request for changes to their arrangements (i.e. employees returning from maternity leave).
  1. Casual Conversion – subject to satisfying eligibility criteria, casual employees who have been employed for 12 months must be offered the option to convert to full time or permanent part time employment. Whether this applies to an employee, or a business depends upon the circumstances and includes the pattern and hours of work, ability for this to continue without significant changes and whether the employer is a considered a Small Business Employer.
  1. Parental Leave (and Related Entitlements) – an entitlement to up to 12 months of unpaid parental leave for employees who have been employed by the employer for at least 12 months before the date or expected date of birth (if the employee is pregnant), before the date of adoption or when the leave starts, and that employee will have responsibility for the care of the child. An additional 12 months of leave may also be requested. Such unpaid parental leave may also apply to casual employees depending upon the circumstances.
  1. Annual Leave – 20 days paid leave per year of employment for permanent full time employees or a pro rata equivalent for part time employees.
  1. Personal / Carer’s Leave, Compassionate leave and Unpaid Family and Domestic Violence Leave – 10 days paid personal (sick) leave per year of employment for permanent full time employees or a pro rata equivalent for part time employees. This is to be used when an employee is ill or injured or taking time off to are for an immediate family or household member who is sick or injured or help during a family emergency (known as carer’s leave). 2 days per year compassionate leave where an employee meets specific criteria, including the death of an immediate family member, miscarriage, and stillbirth. 5 days per year unpaid family and domestic violence leave. A decision is currently being finalised as to the provision of paid family and domestic violence leave.
  1. Community Service Leave – 10 days unpaid leave where an employee participates in emergency activities (i.e. firefighting) or jury duty. There is also an entitlement to “make up pay) for up to day days where an employee is a permanent employee and is required for jury duty provided evidence is supplied.
  1. Long Service Leave – employees must be paid long service leave in accordance with the law of their particular state or territory, or any pre-modern award or registered agreement which may apply.
  1. Public Holidays – paid leave for permanent employees whose ordinary work hours fall on a public holiday. Where an employee is reasonably requested to work, penalty rates may apply.
  1. Notice of Termination and Redundancy Pay – when terminating employment, an employer must provide the employee with the relevant notice or payment in lieu of that notice as set out in the Fair Work Act 2009 (Cth). This includes the additional pay for employees over 45 years. Further, unless an exemption applies, an employer must make payment of the relevant redundancy payment to an employee when their role is made redundant. The applicable payment in both instances will depend upon the employee’s length of continuous service.
  1. Fair Work Information Statement & Casual Employment Information Statement – Employees must be provided with the relevant statement upon commencement of their employment.
Do they Apply if you are covered by an Award or Employment Agreement?

The NES apply to most National System Employees irrespective of whether the are covered by a Modern Award or other Employment Agreement. Most Awards address the NES and where you are complying with a Modern Award you are likely complying with the NES.

Difficulties an arise for Award-free employees or those subject to another Employment Agreement. Just because an employee has agreed to particular conditions, may not render them legal or complying with the NES. In this regard, these arrangements must be carefully considered to ensure the employer is meeting the NES.

If you require assistance in determining if you or your employees are National System Employees or covered by an Award, if you need help in understanding the NES, or if you require a review of your employment agreements or drafting compliant employment agreements, Adams & Partners Employment Law Team can help you. Contact us on (02) 4721 6200.

Written by Cameron Spanner.

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