A lot of attention is given to the express terms that permeate a well-drafted employment contract. While the benefits of a detailed and thorough employment contract cannot be overstated, labour hire employers need to be aware that there are a myriad of rights that are implied into the employer-employee relationship as a matter of law.

In particular, the Fair Work Act creates a national safety net of minimum working conditions called the National Employment Standards or NES. The National Employment Standards cannot be contracted out of, so it is essential that any prudent labour hire employer be well aware of their scope and operation.

The 10 National Employment Standards

Minimum working hours: Under the National Employment standards an employer must not require an employee to work more than a standard 38-hour work week, unless the additional hours of work requested are reasonable.

Flexible working conditions: An employee who has worked with the same labour hire employer for at least 12 months can request flexible working arrangements if they are the parent or carer of a minor, have a disability, are aged 55 years or older, are experiencing family and/or domestic violence or provide care to a member of their immediate family or a member of their household who requires care and support due to family and/or domestic violence.

Unpaid parental leave: Under the National Employment Standards a labour hire employer must permit permanent employees and long-term casuals, with at least 12 months service, to take up to 12 months unpaid parental leave.

Annual leave: Permanent employees are entitles 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.

Personal carer and compassionate leave: Full-time employee are entitled to 10 days of paid personal carer leave to allow them to manage their own illness/injury or the illness/injury of an immediate family member or household member. In addition to this, all employees are entitled to two days unpaid carer leave.

Community service leave: Under the National Employment Standards employees may be entitled to reasonable absences from work to engage in voluntary community service activities, i.e. emergency management activities.

Public holiday leave: Employees have a right to be absent from work on public holidays. However, the employer has a right to make a reasonable request and ask that the employee work on that day.

Notice of termination: Employees are entitled to a minimum notice period of termination, depending on their years of service. Employees with less than 1 year of service are to be given 1 week’s notice. Employees with more than 5 years service who are over 45 years of age need to be given as much as 5 weeks’ notice.

Redundancy payments: Employees who have been made redundant have an entitlement to receive a severance payment according to a schedule set out in section 119(2) of the Fair Work Act.

Right to receive a fair work information statement: Under the National Employment Standards all employees have a right to receive a fair work information statement.

Conclusion

Employment contracts that seek to diminish or contract out of the National Employment Standards will be found to be unenforceable either in whole or in part. As such, it is essential that a labour hire company not only acquaint themselves with the standards, but ensure that their current employment contracts do not indirectly contravene the standards. If you would like more information or assistance with the same, our employment legal team at LegalVision would be happy to assist you.

Vanja Simic

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