The Fair Work Act 2009 (Cth) contains the minimum standards applicable to all national system employees. These standards are known as the National Employment Standards (“NES”) and are minimum safety nets which cover the following:
- 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 holiday leave; and
- Notice of termination and redundancy pay.
The NES cannot be excluded by a Modern Award or Enterprise Agreement.
SO WHAT DOES THE NES INCLUDE?
1. Maximum weekly hours of work
A full-time employee is not required to work more than 38 hours per week unless the additional hours are reasonable. There are similar provisions for non full-time employees whereby they are not permitted to work 38 hours or more than the employee’s ordinary hours of work, or whichever of the two is the lesser amount of hours. When determining whether additional hours are reasonable, there must be a consideration of the employee’s health and safety, personal circumstances including family responsibilities, whether the employee is entitled to receive overtime payments or penalty rates, notice given to the employee regarding the overtime, the usual patterns of work in the industry in which the employee works and also the nature of the employee’s role and their responsibility.
2. Requests for flexible working arrangements
If an employee has completed 12 months’ continuous service, and is a parent or carer of a child that is either under the school age or is under the age of 18 but has a disability, they may request a flexible working arrangement to assist them to care for their child. This can include a change in hours of work, changes in patterns of work and changes in location of work. An employer may refuse any such request on reasonable business grounds.
3. Parental leave
An employee who has completed at least 12 months’ continuous service is entitled to 12 months of unpaid parental leave if the leave is associated with the birth of a child of the employee or the employee’s spouse or de facto partner and the employee will have a responsibility for the care of the child. Parental leave is also available in relation to the adoption of a child. Casual employees will only be entitled to parental leave if they have been a long term employee with regular and systematic hours.
4. Annual leave
Full-time and part-time employees are entitled to four weeks of paid annual leave per year, or five weeks of paid annual leave if a Modern Award or Enterprise Agreement applies in accordance with which the employee is defined as a shift worker. Casual employees are not entitled to paid annual leave.
5. Personal leave
For each year of service an employee is entitled to 10 days of personal/carer’s leave if they, or a member of their immediate family or household are unfit for work due to a personal illness or injury or unexpected emergency. If a member of the employee’s family contracts or develops a personal illness or injury that poses a serious threat to their life or dies, an employee is entitled to two days of compassionate leave per occasion. Casual employees are not entitled to paid personal or carer’s leave.
6. Community service leave
An employee who engages in an eligible community service (most commonly jury service or a voluntary emergencies management activity) will be entitled to be absent from his or her employment in order to volunteer for that activity.
7. Long service leave
Employees are entitled to long service leave in accordance with any applicable award derived entitlements, or otherwise in accordance with state or territory legislation. Special provisions apply for employees who derived any long service leave entitlements under pre Fair Work Act instruments.
8. Public holiday leave
An employee is entitled to be absent from his or her employment on a day that is a public holiday. An employer may request an employee to work on a public holiday if the request is reasonable. If the request is not reasonable, then the employer can refuse to work on the public holiday. In determining whether a request for refusal to work on a public holiday is reasonable, it is important to take into account the nature of the employee’s workplace and the nature of the work performed by the employee, the employee’s personal circumstances including family responsibilities, whether the employee could reasonably expect that the employer might request work on the public holiday, whether the employee is entitled to receive overtime payments, penalty rates or other compensation, whether the employee is full-time, part-time, casual or a shift worker, the amount of notice in advance for the request to work on the public holiday.
An employee that is absent from his or her employment on the day or part day that is a public holiday is entitled to pay at the employee’s base rate of pay for the employee’s ordinary hours of work on the day of the public holiday. If the employee does not have ordinary hours of work on a public holiday the employee is not entitled to payment under this section. This means that if a casual employee is not rostered on the public holiday or a part-time employee whose normal hours do not include the day of the week which the public holiday occurs, they will then not be entitled to be paid for that holiday.
9. Notice of termination or payment of lieu of notice
An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the termination, in accordance with the provision of the FW Act. The relevant notice periods are as follows:
| Period of Employment | Notice Period |
| Less than one year | One week |
| More than one year, but not more than three years | Two weeks |
| More than three years, but nor more than five years | Three weeks |
| More than five years | Four weeks |
If the employee is over the age of 45 years old and completed at least two years of continuous service with the employer then the notice period is increased by one week. Instead of notice, the employer is entitled to pay the amount the employee would have earned in the notice period.
FAIR WORK INFORMATION SHEET
It is now also a requirement that an employer give each new employee a copy of the Fair Work Information sheet before the employee starts work. This information sheet contains important information about the NES, modern awards and other matters. The Fair work Information sheet is available from the Fair Work Ombudsman website at www.fairwork.com.au
COMMON LAW CONTRACTS
The Fair Work Act doesn’t cover everything and this is why employment contracts may be beneficial. Things that may be included in employment contracts are provisions that relate to:
- Confidential information;
- Intellectual property and moral rights;
- Restricted activities;
- Requirement for medical examinations;
- Responsibilities and duties of the employer;
- Employee conduct;
- Investigation and suspension; and
- Obligations on the termination of employment.
It is important to note that employment contracts cannot contain terms less favourable than the minimum NES standards.
If you believe your employer is in breach of one of these standards, your contract of employment does not provide for any of these national employment standards or you wish to draw up a new employment contract for your business or review a current contract, please contact Lynn & Brown Lawyers on (08) 6141 1513 to arrange an appointment to discuss your options.
