The NES apply to all employees covered by the national workplace relations system, however only certain entitlements apply to casual employees. The national workplace relations system covers those who are employed by a constitutional corporation (these are corporations that are usually Pty Ltd or Ltd companies) as well as certain other classes of employee such as those employed by most States’ Government. There are two NES entitlements that apply to all full-time and part-time employees, whether they are covered by the national workplace relations system or not. These are:
- parental leave and related entitlements (this also applies to casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment).
- notice of termination.
Only certain NES entitlements apply to casual employees. These are:
- two days unpaid carer’s leave and two days unpaid compassionate leave per occasion.
- maximum weekly hours.
- community service leave (except paid jury service).
- to have a day off on a public holiday, unless reasonably requested to work by the employer.
- provision of the Fair Work Information Statement.
In addition, casual employees who have been employed for at least 12 months by an employer on a regular and systematic basis and with an expectation of ongoing employment are entitled to:
- make requests for flexible working arrangements.
- parental leave.
The NES are set out in the Fair Work Act 2009 and comprise 10 minimum standards of employment. In summary, the NES involve the following minimum entitlements:
- Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.
- Requests for flexible working arrangements – allows parents or carers of a child under school age or of a child under 18 with a disability, to request a change in working arrangements to assist with the child’s care.
- Parental leave and related entitlements – up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption related leave.
- Annual leave – 4 weeks paid leave per year, plus an additional week for certain shift workers.
- Personal / carer’s leave and compassionate leave – 10 days paid personal / carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
- Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
- Long service leave – a transitional entitlement for certain employees who had certain LSL entitlements before 1/1/10 pending the development of a uniform national long service leave standard.
- Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
- Notice of termination and redundancy pay – up to 4 weeks notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
- Provision of a Fair Work Information Statement – employers must provide this statement to all new employees. It contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, rights of entry, transfer of business, and the respective roles of Fair Work Australia and the Fair Work Ombudsman. Click here for a copy of the Statement.
The NES applies to all employees covered by the national workplace relations system regardless of the award, agreement or contract of employment that applies to an employee. Awards, agreements and award and agreement based transitional instruments may supplement the NES by providing entitlements that do not disadvantage employees in comparison with the NES. A certain amount of flexibility is also allowed in the operation of the NES. For example, awards and agreements may specify terms that are flexible in relation to:
- averaging an employee’s ordinary hours of work
- the cashing out of and taking paid annual leave
- the cashing out of paid personal / carer’s leave
- the substitution of public holidays
- situations in which redundancy pay entitlements do not apply
Any terms in awards, agreements, transitional awards and agreements and employment contracts cannot exclude, or provide for an entitlement less than the NES.
Employers and employees who are not covered by an award agreement, or a transitional award or agreement (award/agreement free employees) may also make agreements that vary the operation of the NES in certain ways.
They may make agreements about the following:
- averaging of hours of work, subject to conditions such as a maximum of 26 weeks
- the cashing out of or taking paid annual leave
- the substitution of public holidays
- extra annual leave in exchange for foregoing an equivalent amount of pay
- extra personal / carer’s leave in exchange for foregoing an equivalent amount of pay
In all other cases, employment contracts can only provide entitlements that are similar to, or more favourable to the employee.
An employer and an employee cannot make an agreement with entitlements that are less than the NES.