National Employment Standards Safety-Net, June 2008

  • On 16 June 2008, the Government released the final version of the 10 minimum National Employment Standards (NES).
  • The NES replace the Howard government’s basic Australian Pay and Conditions Standard. The NES are a key element of the Rudd Government’s new modern workplace relations system and will come into effect on 1 January 2010.
  • The NES are:

1. Maximum weekly hours of work

Include a standard 38-hour week for full-time employees, with provision for requiring employees to work additional hours within the week, but not unreasonable additional hours.

2. Request for flexible working arrangements

Reinstates the former "right to request" flexible work until children reach school age, with employers only able to refuse on reasonable business grounds. The request must be in writing and set out the details of the changes sought and reasons for the change.

An employee is not entitled to make a request unless the employee has completed at least 12 months of continuous service immediately before making the request (for casual employees, the employee needs to have been engaged by the employer on a regular and systematic basis for a sequence of periods during a period of at least 12 months immediately before making the request and has a reasonable expectation of continuing engagement).

3. Parental leave and related entitlements

Parents to have a right to separate periods of 12 months unpaid leave, up to a total of 24 months (if parents want one parent to take a further 12 months after they have taken the first 12 months, then they must make a request, with employers only able to refuse such requests on reasonable business grounds).

If one of parent takes a period of unpaid parental leave, the other parent employee may take a period of unpaid parental leave (concurrent leave) during the first parent’s period of leave, only if:

(a) the concurrent leave must be for a period of 3 weeks or less; and

(b) the concurrent leave must not start before, and must not end more than 3 weeks after the date of birth of the child (or the day of placement of the child if the leave is adoption related),

Unless the employer agrees otherwise.

A female employee is entitled to a period (the actual period has not been specified in the standards) of unpaid special maternity leave if she is unfit for work during that period because:

(a) she has a pregnancy-related illness; or

(b) she has been pregnant, and the pregnancy ends within 28 weeks of the expected date of birth of the child otherwise than by the birth of a living child.

4. Annual leave

4 weeks paid annual leave for full-time employees, pro rata leave for part-time employees and an additional week’s leave for shift workers.

A modern award may include provisions for the cashing out of paid annual leave, requiring an employee (or allowing for an employee to be required) to take paid annual leave in particular circumstances or otherwise dealing with the taking of paid annual leave.

5. Personal/Carer’s leave and compassionate leave

10 days a year of paid personal/carer’s leave for full-time employees (pro rata for part-timers), plus 2 days a year of paid compassionate leave on the death or serious illness of a family member or a person the employee lives with, plus 2 days a year of unpaid personal leave for "genuine caring purposes" and family emergencies.

A modern award may include provisions for the cashing out of paid personal/carer’s leave.

6. Community service leave

Paid leave for prescribed community service activities, such as paid leave for jury service and reasonable unpaid leave for emergency services duties. Other eligible community service activities are to be prescribed in the regulations.

An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if:

(a) the period consists of one or more of the following:

(i) time when the employee engages in the activity;

(ii) reasonable travelling time associated with the activity;

(iii) reasonable rest time immediately following the activity; and

(b) unless the activity is jury service—the employee’s absence is reasonable in all the circumstances.

7. Long service leave

Long service leave entitlements will reflect arrangements in current state laws or federal awards or agreements, while employees who accrue leave under the transitional arrangements won’t be disadvantaged.

8. Public holidays

Guarantees 8 national public holidays, plus public holidays prescribed in State law and local public holidays.

9. Notice of termination and redundancy pay

Minimum notice requirements of up to 4 weeks notice (progressing from 1 week for employees with less than 12 months service to 4 weeks for workers with more than 5 years service) for all employees plus an extra week for workers aged over 45. Employees in workplaces with 15 or more employees are also entitled to severance pay of up to 16 weeks after 9 years service and 12 weeks after 10 years service.

10. Fair Work Information Statement

Employers to provide all new employees with a Fair Work Information Statement containing prescribed information about rights and entitlements.

  • The Government has today issued a revised Award Modernisation Request to the Australian Industrial Relations Commission (AIRC) attaching the NES to assist in its task of modernising awards.

What does this mean for your business?

Every business, regardless of the type of employees they have, will be required to comply with the NES. This means businesses will need to review their employment contracts and policies to comply. Businesses will also need to think about the way they structure their work environment in terms of providing flexibility.

For more information contact Andrew Bland at [email protected].

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