Table of Contents
- 1. Maximum Working Hours
- 2. Requests For Flexible Work Arrangements
- 3. Unpaid Parental Leave
- 4. Annual Leave
- 5. Personal Carer and Compassionate Leave
- 6. Family and Domestic Violence Leave
- 7. Community Service Leave
- 8. Public Holiday Leave
- 9. Notice of Termination
- 10. Redundancy
- 11. Right to Receive a Fair Work Information Statement
- Key Takeaways
- Frequently Asked Questions
As an employer, you must comply with a number of minimum working conditions called the National Employment Standards (NES). You must ensure that the terms of your employment agreements, your policies and the behaviour and actions of managers comply with the standards. Otherwise, you risk facing an employment dispute and the associated financial penalties. This article will outline your minimum obligations as an employer for both permanent and casual employees. Please note that if a modern award or enterprise agreement covers your employees, your minimum employment obligations may be increased.
1. Maximum Working Hours
You cannot require your full-time employees to work more than a standard 38-hour work week unless the additional hours of work requested are reasonable. This is inclusive of any approved leave hours.
Whether your request for additional is reasonable will be examined on a case by case basis. However, some key factors to consider include:
- risks to your employee’s health and safety;
- industry-standard hours;
- whether a modern award or enterprise agreement permits longer hours;
- your employee’s role and level of responsibility; and
- your business’s needs.
The threshold for part-time employees will be the lesser of 38 working hours and the employee’s ordinary hours.
2. Requests For Flexible Work Arrangements
In some circumstances, your employees can request flexible work arrangements regarding:
- the number of hours worked;
- changes in work patterns; or
- work locations.
An employee can request a flexible work arrangement if they:
- are the parent or guardian of a minor;
- are a carer;
- have a disability;
- are over 55;
- experience family or domestic violence; or
- provide support services to a member of their immediate family/household who is experiencing family or domestic violence.
Casual employees who have a reasonable expectation of continuing employment regularly and systematically can also request a flexible work arrangement.
Continue reading this article below the form3. Unpaid Parental Leave
The law entitles certain employees who have provided at least 12 months of service to take up to 12 months of unpaid parental leave. These include:
- permanent employees; and
- casual employees with a reasonable expectation of continuing employment on a regular and systematic basis.
Employees may also provide a written request to extend this leave by 12 months. You must respond to this written request within 21 days as an employer. If you refuse the request, you must have a reasonable business purpose. While the law does not obligate you to provide paid parental leave, you may choose to implement this as a company policy.
4. Annual Leave
Your permanent employees are entitled to four weeks of paid leave at their base pay rate for every year of service. Casual employees are not entitled to annual leave but may be entitled to leave loading. Employees classified as ‘shift workers’ may also be eligible for an additional week of annual leave for each year of service.
5. Personal Carer and Compassionate Leave
All your full-time employees receive at least ten paid personal/carer leave days for each year of service. Employees can only claim paid personal leave days where necessary to manage:
- an illness/injury; or
- the illness/injury of an immediate family member or household member.
All your employees (full-time, part-time and casual) are entitled to two days of unpaid carer leave and two days of paid compassionate leave. An employee can take compassionate leave if their immediate family member:
- is facing a life-threatening illness;
- has experienced a death in their immediate family; or
- their partner has experienced a miscarriage.
6. Family and Domestic Violence Leave
From 1 August 2023, all your employees will be entitled to 10 days of paid family and domestic violence leave. This leave can include:
- time to support and make arrangements for their family; and
- attending court and medical, financial or legal appointments.
Previously, the law only obligated businesses with over 15 employers to provide this period of leave. Family and domestic violence leave will renew each year but cannot accumulate.
7. Community Service Leave
The law entitles your employees to reasonable absences from work to participate in voluntary community service activities. For example, say your employee is a volunteer firefighter. If they must assist with a local emergency, the law entitles them to unpaid leave. Your employees are also entitled to 10 days of paid community service leave where they are participating in jury duty.
8. Public Holiday Leave
Your employees typically have a right to be absent from work on any public holiday. However, you have a right to make a reasonable request that the employee work on a public holiday. While reasonableness is not clearly defined, you should consider the:
- type of employment;
- amount of notice given by yourself or your employee in terms of expectation to work; and
- nature of your workplace and industry.
9. Notice of Termination
You must provide your employees with written notice of termination within the minimum notice period. The required notice period will ultimately depend on the employee’s age and years of service to the company. Employees with less than one year of service will be given one week’s notice. Additionally, employees with more than five years of service and over 45 years of age must be given as much as five weeks’ notice. In saying that, you do not owe minimum notice periods to your casual employees.
10. Redundancy
Your employees who have been made genuinely redundant are entitled to receive a severance payment. The amount of redundancy pay you owe each employee is based on their length of continuous service with your company.
Nevertheless, you are not required to grant a severance payment to an employee if, at the time of notice, you have less than 15 permanent employees, including the impacted staff member. Additionally, casual employees are not entitled to redundancy pay.
11. Right to Receive a Fair Work Information Statement
All your employees have a right to receive a Fair Work Information Statement. Hence, you should provide the statement during the employee’s induction. The statement includes information on the standards detailed above and other rights the employee holds.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
Ensuring compliance with the National Employment Standards is essential when drafting employment agreements and establishing policies. Any employment contract that seeks to diminish, alter or contract out of the above obligations will be unenforceable either in whole or in part. Additionally, if an employee identifies an obligation you failed to uphold, the courts may impose significant penalties.
If you need assistance meeting your employment obligations under the National Employment Standards, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to our lawyers, who are available to answer your questions and draft and review your legal documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
The National Employment Standards set out the eleven minimum working conditions you must uphold for your employees. You must understand your obligations under the law, as any employment agreements or policies you set in place cannot undermine your minimum obligations. You can also give your employees entitlements exceeding the minimum standards as a gesture of goodwill.
Under the National Employment Standards, your permanent employees are entitled to paid annual leave, family and domestic violence leave, community service leave and, in some circumstances, unpaid parental leave and public holiday leave. Casual employees are generally not entitled to paid leave but may be entitled to leave loading in their pay.
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