The National Employment Standards (NES) are the minimum standards of employment set out in the Fair Work Act 2009 (Act) which apply to all national system employees and employers.
The NES commenced on 1 January 2010 and created safety net entitlements for all national system employees. Modern awards and enterprise agreements may contain ancillary and supplementary terms but must not exclude the NES or provide for any less generous entitlements.
The NES can apply differently to award or agreement-free and casual employees. However, if any agreements made before the commencement of the NES contain terms detrimental to employees compared to the NES, those terms have no effect.
Purpose of the National Employment Standards
The National Employment Standards (NES) are a set of minimum entitlements that must be provided to all national workplace system employees in Australia. These minimum employment standards include hours of work, flexible working arrangements, and leave and related entitlements, amongst others. Together, the NES and national minimum wage provide the minimum entitlements for most businesses in Australia.
National Employment Standards
1. Maximum weekly working hours – 38 per week for a permanent full-time employee, plus reasonable additional hours.
2. Requests for flexible working arrangements – an entitlement allowing certain employees to request a change in their working arrangements because of their particular circumstances.
3. Parental leave and related entitlements – up to 12 months unpaid leave for employees who have been employed in the business for the preceding 12 months, and are expected to continue to be employed on a regular and systematic basis, plus a right to request an additional 12 months unpaid leave; further entitlements may apply depending on the employee’s specific circumstances.
4. Annual leave – four weeks paid leave per year for permanent employees, plus an additional week for certain shift workers.
5. Personal/carer’s leave, compassionate leave, and unpaid family and domestic violence leave – 10 days paid personal/carer’s leave for permanent employees (two days unpaid carer’s leave for casuals) per year and two days paid compassionate leave per occasion (unpaid for casuals) as well as five days unpaid family and domestic violence leave for both permanent and casual employees per year.
6. Community service leave – unpaid leave for voluntary emergency activities. Leave for jury service, with an entitlement to ‘make-up pay’ for up to 10 days for jury duty for permanent employees if evidence is provided.
7. Long service leave – an entitlement for employees based on the length of their continuous service within the business, usually derived from a pre-modern award, registered agreement, or state or territory legislation, depending on the circumstances.
8. Public holidays – a paid day off on a public holiday for permanent employees if they ordinarily would have worked it, except where reasonably requested to work, in which case a higher pay rate may apply.
9. Notice of termination and redundancy pay – up to five weeks’ written notice of termination or payment in lieu (depending on the circumstances), and up to 16 weeks’ severance pay on redundancy (unless you are a small business employer or covered by an industry-specific redundancy scheme), based on the employee’s total length of continuous service within the business.
10. Provision of a Fair Work Information Statement – this must be provided by employers to all new employees and contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, union rights of entry, transfer of business, and the respective roles of the Fair Work Commission and the Fair Work Ombudsman.
11. Employee choice about casual employment - There are pathways for a casual employee to become a full-time or part-time employee in some circumstances.
12. Casual Conversion and Casual Employment Information Statement – Employers must give every new casual employee a Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start their new job. The Statement provides a definition of casual employment, and information on applicable entitlements, including the circumstances in which a casual employee may convert to permanent employment. The CEIS is now required to be provided more frequently depending on the size of your business as per the latest Closing Loopholes 2.0 amendments. A CEIS must also be provided to a new casual employee before, or as soon as possible after, they start working for you.
It must also be provided at the following times:
- For small business employers - After 12 months of employment.
- For other employers - After 6 and 12 months of employment, and then after every 12 months of employment.
13. Superannuation - Employers must make contributions to eligible employees’ super funds under super guarantee laws. Super is also a NES entitlement (some exclusions apply).
Application of National Employment Standards
Terms in awards, registered agreements and employment contracts cannot exclude or provide for an entitlement less than the NES, and those that do have no effect. However, these terms may affect the application or operation of NES in certain ways. For instance, they may specify terms around:
- Substitution of public holidays.
- Averaging an employee’s ordinary hours of work.
- Cashing out taking paid annual leave.
- Cashing out of paid sick and carer’s leave.
- Extra sick and carer’s leave or annual leave in exchange of foregoing pay (equivalent to that amount).
- Super obligations.
- Situations in which redundancy entitlements do not apply.
Casual employees and National Employment Standards
Casual employees get only certain entitlements within the NES (rules and exclusions apply):
- Maximum weekly hours.
- 2 days of unpaid carer’s leave and 2 days of unpaid compassionate leave per occasion.
- 10 days of paid family and domestic violence leave (in a 12-month period).
- Community service leave (except paid jury service).
- Public holidays.
- The Fair Work Information Statement and the Casual Employment Information Statement.
- The right to super contributions.
- Right to casual conversion.
In some states and territories, casuals are eligible for long service leave.
Casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with the exception of ongoing employment are also entitled to:
- Make requests for flexible working arrangements.
- Parental leave and related entitlements.
For free initial advice on the National Employment Standards and your obligations as an employer, call our expert team at Peninsula.
This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.
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