An NES summary and the possible pitfalls for employers
The National Employment Standards (NES) became law on 1 January 2010.
Over the next few weeks we will be publishing a series of articles, by Gavin Hanrahan (the Workplace Relations Partner at Turnbull Hill Lawyers) which will detail the effect of each of the NES...and possible pitfalls for employers.
To start the series, below is a summary of the NES:
- Maximum weekly hours
The maximum weekly hours are 38 hours for full-time employees, subject to reasonable additional working hours.
- Requests for flexible working arrangements
An employee with a child under school age or with responsibility for the care of a child under school age may make a request in writing to the employer for flexible working arrangements, and the employer must respond in writing to the request within 21 days. An employer may only refuse the request on ‘reasonable business grounds’.
- Parental leave and related entitlements
The NES provide that each parent (who is an eligible employee) may be absent from work for separate periods of up to 12 months of unpaid parental leave in association with either the birth of a child to that employee or their spouse or the adoption of a child below school age. An employee who takes 12 months’ parental leave may also request, in writing, additional leave of up to 12 months and the employer may only refuse the request on ‘reasonable business grounds’.
- Annual leave
An employee (other than a casual employee) is entitled to 4 weeks of paid annual leave and a shift worker will be entitled to an additional week of paid annual leave.
- Personal/carer’s leave and compassionate leave
An employee (other than a casual employee) is entitled to:
A casual employee is entitled to:
- 10 days of paid personal/carer’s leave for each year of service;
- 2 days of paid compassionate leave per occasion;
- 2 days of unpaid carer’s leave per occasion (if paid carer’s leave is exhausted).
- 2 days of unpaid compassionate leave per occasion; and
- 2 days of unpaid carer’s leave per occasion.
- Community service leave
An employee is entitled to be absent from work to engage in prescribed community service activities, such as jury service and emergency service duties. In relation to jury service leave, an employee (other than a casual employee) is entitled to ‘make-up pay’ which is the difference between what the employee receives in respect of jury service (not including any expense related allowances) and the employee’s base rate of pay for their ordinary hours of work for the time that the employee is absent on jury leave. In all other circumstances, this leave is unpaid.
- Long service leave
Long service leave entitlements under State or Territory laws will be preserved.
- Public holidays
An employee is entitled to be absent from work on public holidays and is also entitled to be paid for his or her ordinary hours that would have normally been worked at their base rate of pay. An employer is permitted to reasonably request an employee to work on a public holiday. An employee may refuse the request if it is not reasonable or if the employee’s refusal is reasonable.
- Notice of termination and redundancy pay
An employer must provide the following minimum periods of notice (or make a payment in lieu of notice) to an employee on termination of employment:
|Employee's period of continuous service with the employer at the end of the day that notice is given:
|Not more than 1 year
|More than 1 year but not more than 3 years
|More than 3 years but not more than 5 years
|More than 5 years
The redundancy pay NES provides that an employee is entitled to redundancy pay if the employee’s employment is terminated at the initiative of the employer because the employer no longer requires the employee’s job to be done by anyone because of the insolvency or bankruptcy of the employer. However, there is no entitlement to redundancy if the employee is employed by a business with fewer than 15 employees.
The calculation of redundancy pay is based on an employee’s period of continuous service in accordance with the following:
|Employee's period of continuous service with the employer at the end of the day that notice is given
|At least 1 year but less than 2 years||4 weeks
|At least 2 years but less than 3 years||6 weeks
|At least 3 years but less than 4 years||7 weeks
|At least 4 years but less than 5 years||8 weeks
|At least 5 years but less than 6 years||10 weeks
|At least 6 years but less than 7 years||11 weeks
|At least 7 years but less than 8 years||13 weeks
|At least 8 years but less than 9 years||14 weeks
|At least 9 years but less than 10 years||16 weeks
|At least 10 years||12 weeks
- Fair Work Information Statement
An employer will be required to give each new employee the Fair Work Information Statement which will contain information regarding the NES, modern Awards, agreement making, the right to freedom of association and the role of Fair Work Australia.