National Employment Standards

1 Feb

The FW Act created the NES, which took effect on 1 January 2010. Detailed information about the NES is in sections 61–125 of the FW Act. The NES are statutory terms and conditions of employment that apply to all employees in the national system (defined in FW Act s 13), including management employees. The NES cannot be displaced by awards, enterprise agreements or common law contracts of employment, unless that is specifically provided for in the FW Act.
In summary, the NES are:
1. Employees are to work a maximum of 38 hours per week, subject to additional hours if reasonable. These hours may be averaged over a period of time (FW Act ss 62–64).
2. Employees have the right to request flexible working arrangements if they are experiencing circumstances specified by the FW Act (ss 65–66). These circumstances include the employee:
- being pregnant;
- having a disability;
- being a carer within the meaning of the Carer Recognition Act 2010 (Cth);
- being aged 55 years or older;
- experiencing family violence or supporting someone who is experiencing family violence; or
- having caring responsibilities for a child who is of school age or younger.
The employer must respond in writing and can only refuse on reasonable business grounds (FW Act s 65).
3. Eligible casual employees are entitled to receive an offer of casual conversion to a full-time or parttime (permanent) position, unless the employer has reasonable grounds not to make an offer. The casual conversion rule does not apply to small business employers (FW Act ss 66AA–66M).
An employee is eligible for an offer of casual conversion if:
- the employee has been employed by the employer for a period of 12 months; and
- during at least the last six months of that period, the employee has worked a regular pattern of hours on an ongoing basis that, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).
Reasonable grounds for deciding to not make an offer of casual conversion include where:
- the employee’s position will cease to exist in the 12 months after the time of deciding to not make the offer;
- the hours of work that the employee is required to perform will be significantly reduced in that period;
- there will be a significant change in the days or times that the employee’s hours of work are required to be performed that cannot be accommodated within the days or times the employee is available to work during that period; and
making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a state or territory.
4. Employees are entitled to parental leave and related entitlements of, among other things, up to 12 months of unpaid parental leave to care for a child (FW Act ss 67–85).
5. Employees are entitled to four weeks of annual leave accrued for each year of full-time service or five weeks for shift workers, as defined in the FW Act (ss 86–94).
6. Employees are entitled to leave in the following circumstances defined in the FW Act (ss 95–107):
- personal or carer’s leave of 10 paid days per year with the possibility of further unpaid days (personal or carer’s leave is unpaid for casual employees);
- compassionate leave of two paid days for each permissible occasion (compassionate leave is unpaid for casual employees); and
- family and domestic violence leave of 10 paid days per year, which is accrued in full at the start of each 12-month period of the employee’s employment, but does not accumulate from year to year. This applies to casual employees as well as full-time and part-time employees and covers employees assisting a close relative (FW Act s 106A).
7. Employees are entitled to community service leave to undertake community service, such as volunteering for a fire-fighting body. Types of community service and circumstances are defined in the FW Act (ss 108–112).
8. Employees are entitled to long service leave when they have worked for the same employer (or in some cases, in the same industry) for a long time. The minimum service period before an employee can take long service leave is outlined in state legislation, awards or enterprise agreements (FW Act s 113).
9. Employees are entitled to be absent from work on the public holidays specified in the FW Act, unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing (FW Act ss 114–116).
10. Employees are entitled to receive notice of termination or pay in lieu of notice. Employees are also entitled to redundancy pay if an employee’s employment is terminated:
- at the employer’s initiative because the employer no longer wants the job of the employee done by anyone, except where this is due to the ordinary and customary turnover of labour; or
- because of the employer’s insolvency or bankruptcy
Periods of notice of termination or pay in lieu and redundancy pay are calculated as shown on the Fair Work Ombudsman’s website (FW Act ss 117–123).
11. An employer must provide a Fair Work Information Statement and (in the case of casual employees) a Casual Employment Information Statement to each of their employees (FW Act ss 124–125B).