The National Employment Standards apply to employees across Australia where they are Award free, and no Enterprise Agreement applies to their role. This set of standards provide the minimum entitlements for employees in Australia (although some rights are slightly different for casual employees).
What Do I Need to Provide New Employees
Section 125 of the Fair Work Act 2009 (Cth) makes it clear that is essential that you as the employer understand these requirements and provide your employees with an up-to-date statement when they start employment with you.
It is very important to provide your employees with this information statement. If you do not provide the information statement, you will be in breach of s 125. The maximum penalty for a breach by a business is $54,000 and $10,800 for an individual.
You should review the information statement and make sure that you understand your obligations as an employer and that any agreements you have with employees are not in breach of this.
This information statement is usually provided to the employee along with their written contract of employment and any other forms required when they start their employment such as:
- the Superannuation (Super) Standard Choice Form, which your employee can use to nominate their chosen superannuation fund;
- the Tax File Number Declaration Form;
- any handbooks, policies or additional forms you require the employee to fill in and sign.
Updates to the Information Sheet
The National Employment Standards address the following entitlements which are set out in Division 1 – 12 of the Fair Work Act 2009 (Cth):
- Maximum weekly hours (This sets out the maximum number of hours, for example, 38 hours for full-time workers)
- Requests for flexible working arrangements (this provides workers’ rights in relation to requesting flexibility)
- Parental leave and related entitlements (this provides workers’ rights in relation to taking maternity leave)
- Annual leave (this sets out that 4 weeks per year of annual leave are accrued each year and on a pro-rata basis for part-time employees)
- Personal/carer’s leave and compassionate leave (this provides for 10 days per year of personal leave)
- Community service leave (this provides for workers’ rights in relation to taking leave to do community work such as volunteer fire-fighting or jury duty)
- Long service leave (this addresses workers’ rights in relation to how long service leave can be accrued)
- Public holidays (this addresses workers’ rights in relation to taking public holidays or pay if working on a public holiday)
- Notice of termination and redundancy pay (this sets out a worker’s right to procedural fairness when being terminated and the process of redundancy)
The statement also specifically addresses issues that employees should be aware of when starting a new role:
- Modern Awards – this is addressed to educate employees about Awards that may apply to their role. As well as where to find out more information about Awards to ensure they are paid correctly.
- Agreement Making – to address how an enterprise agreement may be in place between the employer and the employee and how these terms may affect the employee. As well as the process of negotiating the enterprise agreement.
- Individual Flexibility Arrangements – to address how the employer and the employee can make a flexibility arrangement as this is allowed for in relation to modern awards or enterprise agreements. For example, if there is a written agreement that sets out that the parties would like to make an amendment to the agreement or the award. The employee cannot be forced into agreeing to an amendment but can make an arrangement where it suits then.
- Freedom of Associate and Workplace rights – this reiterates to employees that they can enforce their rights. For example, as an employer, you cannot take adverse action against an employee when they try to enforce one of their rights.
- Right of Entry – this lets employees know that permit holders can access workplaces in certain circumstances, (often a union official).
- Fair Work Ombudsman and Fair Work Commission – this sets out and educates employees on the Fair Work Ombudsman and the Fair Work Commission, as they have two different roles. The Fair Work Ombudsman focuses on the education of employees and employers, although they do still how powers to commence proceedings.
The Fair Work Commission hears matters such as unfair dismissal claims and other workplace matters in relation to issues between employees and employers.
As an employer, you must keep on file an up to date Fair Work Information Statement and provide it to any new employees. You should also make sure that you understand which employment entitlements apply to your employees, whether they are Award free or not and whether any other agreements apply to the employee. Once you confirm the status of your employee, you should be sure that your policies and employment agreements reflect these requirements. If you have any questions about your employee’s entitlements, your obligations as an employer or how the NES effect your business speak to an employment lawyer and they can help protect your business.
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