Following the release of the Workplace Relations Amendments (Transition to Forward with Fairness) Bill 2008, on 14 February 2008 the Government released the Discussion Paper – National Employment Standards Exposure Draft. The Exposure Draft includes the 10 National Employment Standards (the NES) which, together with the modernisation of Awards, will form an enforceable safety net to protect fair minimum wages and conditions for working Australians.
The NES represent the key minimum entitlements for all employees which will be guaranteed in legislation. In summary, the proposed NES are:
1. Maximum weekly hours
The maximum weekly hours are 38 hours for full-time employees, subject to reasonable additional working hours. Unlike the Howard Government’s Australian Fair Pay and Conditions Standard, the NES does not provide for the averaging of hours but the proposed NES expressly permit modern Awards to deal with averaging of hours arrangements.
2. 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’.
3. Parental leave and related entitlements
The proposed NES provides 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 an employee or their spouse or the adoption of a child below school age. An employee who takes 12 months’ parental leave may also request additional leave of up to 12 months and the employer may only refuse on reasonable business grounds.
4. 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.
5. Personal/carer’s leave and compassionate leave
An employee (other than 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).
A casual employee is entitled to:
- 2 days of unpaid compassionate leave per occasion; and
- 2 days of unpaid carer’s leave per occasion.
6. 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.
7. Long service leave
Until a uniform long service leave NES is developed, long service leave entitlements in pre-modernised awards, NAPSAs or state or territory laws will be preserved to ensure they cannot be bargained away.
8. 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.
9. 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 thatn 5 years
|More than 5 years
The proposed 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 their 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
|At least 2 years but less than 3 years
|At least 3 years but less than 4 years
|At least 4 years but less than 5 years
|At least 5 years but less than 6 years
|At least 6 years but less than 7 years
|At least 7 years but less than 8 years
|At least 8 years but less than 9 years
|At least 9 years but less than 10 years
|At least 10 years
10. Fair Work Information Statement
Am 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.
The Government is now seeking comments and submissions about the operation of the NES from stakeholders and interested parties with a view to the finalised NES being included in the Government’s substantive legislation to be introduced into Parliament later this year. The NES will commence operation on 1 January 2010.
If you have any questions regarding the NES or the Workplace Relations Amendments (Transition to Forward with Fairness) Bill 2008, please contact:
Phone: 61 2 9228 9363
Phone: 61 3 9602 9744
To see the contact details of the entire TressCox Employment & Industrial Relations Team, please click here.