The Fair Work Act sets out minimum working conditions called the National Employment Standards or NES for short. The standards are prescriptive and mandate strict compliance. Businesses cannot contract out of their obligations. It is then essential that all employers are well acquainted with the scope and operation of the NES.
Relevantly, the express terms of the contract will typically indicate a breach of the NES. For example, where an employer seeks to assert that an employee is only entitled to four annual leave days per year when the set minimum under the NES is well above this figure. At other times, a breach can be implicit. For example, where an employer reprimands an employee for taking too many annual leave days despite having not exceeded the nationally prescribed number of days allocated to them. Below, we explain the ten national employment standards employers must abide by.
1. Minimum Working Hours
An employer cannot require an employee to work more than a standard 38 hour work week unless the additional hours of work requested are reasonable. Reasonableness will be examined on a case by case base.
2. Unpaid Parental Leave
Under the National Employment Standards, an employer must permit permanent employees and long-term casuals, with at least 12 months service, to take up to 12 months unpaid parental leave. Many employers find themselves in a difficult position when an employee takes unpaid parental leave and is made redundant upon their return. In such circumstances, the courts will look at whether the redundancy was genuine or merely an opportunistic move by the employer to dismiss the returning employee.
3. Annual Leave
Permanent employees are entitled to four weeks paid leave at the employee’s base rate for every year of service. Casual employees are not entitled to annual leave but may be entitled to leave loading. Many employers afford their employees annual leave above the National Employee Standard threshold as a gesture of goodwill and as a means of showing appreciation for the employee’s service. Although employees appreciate such gestures, there is no requirement to provide more than four weeks annual leave.
4. Flexible Working Conditions
In circumstances where an employee has worked for the same employer for more than a year, they have a right to request flexible working arrangements. The right is qualified and afforded only to those can demonstrate that they are either:
- The parent or guardian of a minor;
- Suffer from a disability;
- Over 55 years of age;
- Subject to violence (family or domestic); or
- Provide support services to a member of their immediate family/household who is experiencing violence (family or domestic).
5. Personal Carer and Compassionate Leave
All full-time employees receive a prescribed number of paid personal carer leave days. At present, the legislative minimum is ten days in any 12 month period. Employees can only claim paid personal leave days where necessary to manage an illness/injury or the illness/injury of an immediate family member of member of the household. All employees (full-time, part-time and/or casual) are also entitled to 2 days unpaid carer leave.
6. Community Service Leave
Employees may be entitled to reasonable absences from work to participate in voluntary community service activities, such as emergency management activities.
7. Public Holiday Leave
Employees typically have a right to be absent from work on any day that is considered a public holiday in their jurisdiction. However, the employer has a right to make a reasonable request and ask that the employee work on that day. Again, reasonableness will be judged on the facts of the case and will largely depend on the factual matrix on each occasion.
8. Notice of Termination
Employees are entitled to a minimum notice period of termination. The period of notice will ultimately depend on the employees years of service to the company. Employees with less than one year of service are to be given one weeks notice. Employees with more than five years service and who are over 45 years of age need to be given as much as five weeks notice.
Employees who have been made genuinely redundant are entitled to receive a severance payment according to a schedule as set out in section 119(2) of the Fair Work Act.
10. Right to Receive a Fair Work Information Statement
All employees have a right to receive a Fair Work information statement under the NES and employers should ensure the statement is provided at the time of induction.
Employment contracts that seek to diminish, alter or contract out of the NES will be unenforceable either in whole or in part. As such, employers must familiarise themselves with the standards. If you have any questions about the NES or need assistance drafting your employment contract so it complies with the standards, get in touch with our employment lawyers on 1300 544 755.