The start of the Fair Work System in 2010 saw the introduction of modern awards and the National Employment Standards (NES). The NES sets out 10 minimum entitlements for all employees and must be read in conjunction with any relevant award/s that apply to those employees.
The 10 minimum entitlements are:
- Maximum weekly hours
- Requests for flexible working arrangements
- Parental leave and related entitlements
- Annual leave
- Personal/carer’s leave and Compassionate Leave
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy
- Fair Work Information statement.
Maximum weekly hours
The NES provides for a maximum of 38 ordinary hours to be worked per week and allows for reasonable additional hours, where those additional hours can be shown to meet a set of criteria of reasonableness set out in the NES. These include such things as the employee’s role and level of responsibility; the needs of the workplace; whether the employee is entitled to be paid for overtime; any risk to the employee’s health and safety from working the additional hours; the employee’s personal circumstances, including family responsibilities; any notice given by the employer for the need to work the additional hours; and the usual patterns of work in the industry in which the employee works.
Requests for flexible working arrangements
An employee may request a change in his/her working arrangements if the employee:
- is a parent having the responsibility for the care of a child of school age or younger
- is a carer
- has a disability
- is 55 years of age or older
- is experiencing violence from a member of the family, or
- provides care or support to a member of his/her immediate family or household because that member is experiencing violence from their family.
Any request for flexible working arrangements must be in writing – setting out the details of the change requested and the reasons for the change. The employer has 21 days to consider the request and must give a written response to the request. The employer may refuse the request only on reasonable business grounds and must state those grounds in the written response. ‘Reasonable business grounds’ for refusal could include matters such as:
- the requested arrangements are too costly
- it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request, or
- the request would result in a significant loss of productivity or have a significant negative impact on customer service.
Parental leave and related entitlements
This provision allows an employee, including a casual (female and/or male) with at least 12 months employment with their employer prior to the expected date of birth or the date of adoption, to access unpaid maternity leave; paternity and partner leave and adoption leave. Parental leave can be taken when an employee gives birth, or an employee’s spouse or de facto partner gives birth, or an employee adopts a child under 16 years of age.
The provision contains numerous procedural requirements, which detail rules concerning timelines for applying for parental leave; evidence requirements; extending or reducing a period of parental leave; transfer to a safe job, and a return to work guarantee.
Annual leave
The NES gives all employees an entitlement to four weeks annual leave (five weeks for continuous shift workers) and makes clear that taking of annual leave requires mutual agreement between the employee and the employer. This provision states that, on termination, an employee must be paid for any outstanding annual leave accrual what they would have been paid had they physically taken the leave – effectively inferring that leave loading is payable at time of termination.
Entitlement to annual leave loading does not come via the NES but through whatever award the employee is covered by, if any, consequently managerial employees not covered by an award would only be paid leave loading if their employer chose to do so.
Personal/carer’s leave and compassionate leave
Personal leave is what was previously known as sick leave. This provision allows a full-time permanent employee 10 paid days per year, which accrue progressively through the year. The entitlement is cumulative, so that any accrual not accessed in one year carries on into the next, indefinitely, but there is no payout of unused accrual at time of termination. Permanent part-time employees also accrue personal leave based on their actual hours of work, but casuals do not.
Carer’s leave allows an employee to use their accrued personal leave to provide care or support to a member of the employee’s immediate family or household when that person requires care or support due to personal illness, personal injury or an unexpected emergency affecting the member. An employer can require the employee to provide proof of their claim for carer’s leave, and the employee can access whatever personal leave they have accrued as carer’s leave.
Immediate family is an employee’s:
- spouse
- de facto partner
- child
- parent
- grandparent
- grandchild
- sibling, or a
- child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.
The compassionate leave provisions allow an employee up to two paid days absence for each occasion when a member of the employee’s immediate family or household either contracts or develops a personal illness or injury that poses a serious threat to his or her life or dies. Notice and evidence obligations apply. A casual can claim compassionate leave but has no entitlement to be paid for the absence.
Community service leave
This covers jury service and voluntary emergency management activity such as Rural Fire Brigade and SES. Employees called up to serve on a jury are entitled to have 10 days of the service covered by make-up pay, i.e. the employer pays them the difference between what they would normally have been paid for ordinary hours of work and what the court pays them for attendance on a jury. Voluntary emergency management service does not attract any make-up pay, or any paid leave entitlement.
Long service leave
Because there is currently no national long service leave legislation, the NES requires that employers must continue to apply whatever legislation applied to the business prior to the commencement of the Fair Work System. If the business was previously covered by State award/s then the appropriate State legislation continues to apply, and if the business was previously already in the Federal award system the business continues to apply the Federal Long Service Leave legislation. (For the motor industry, the pre-existing Federal long service leave legislation was the Federal Vehicle Industry –Repair Services and Retail (Long Service Leave) Award.)
Public holidays
This provision entitles a permanent employee to be paid while absent from work on a public holiday and local show days, where applicable. There are various detailed requirements covering working on a public holiday and refusing to work on a public holiday. Payment is made only if the employee would normally have worked on the day.
Notice of termination and redundancy
Minimum notice periods, which depend on length of service, are set out in this provision. (Awards oblige employees to give the same notice as is required by the employer or to forfeit pay equivalent to the notice required.) The employer must provide a written notice of termination to the employee and is able to pay in lieu of having the employee work out the notice.
In a redundancy situation, the same notice obligations apply as for any other poor performance based termination, but if the business employs 15 or more employees then redundancy pay will be payable over and above the notice – again based on length of service. The NES contains a table showing the required payment.
Businesses with fewer than 15 employee are not obliged to pay redundancy pay. In determining the number of employees in a business you are required to take into account employees of any related entity.
An employer may be able to avoid payment of redundancy pay under circumstances where he is directly instrumental in securing alternative employment for the employee which is no less advantageous in pay and conditions than what the employee was previously employed on.
Fair Work Information Statement
All new employees must be given a copy of the Fair Work Information Statement, which is published by the Fair Work Ombudsman (FWO), as soon as possible after commencement. The Statement is available at the FWO website.
NB: The above information is provided by way of general comment only and it is important to refer to the actual document for the full details of each provision.
For more information seek guidance from your professional advisor or contact MTA Global – email info@aada.asn.au to register and access AADA Industrial Relations and Workplace Health and Safety related services at a special member rate.
Ted Kowalski
Contributor