Do you know what the National Employment Standards are?

The National Employment Standards

What are they, and what do you need to know?

The National Employment Standards, or NES, are a set of 11 entitlements set out in the Fair Work Act (2009) the Act.

They apply to everyone employed under the national workplace relations system, which essentially means every employer and employee.

As Melbourne employment lawyers, we believe everyone should be up to speed with NES entitlements to ensure fair, productive and agreeable relationships between employers and employees.

Your quick guide to the 11 National Employment Standards

1.     Maximum weekly work hours

Thirty-eight hours per week (plus reasonable additional hours).

2.     Requests for flexible working arrangements

Some employees can request to alter their schedules.

3.     Parental leave entitlements

Up to 12 months of unpaid leave, with the option to request an additional 12 months.

4.     Annual leave

At least four weeks each year.

5.     Personal, carer’s, compassionate, family and domestic violence leave

The entitlements in a 12-month period vary by employment and leave type:

• 10 days of paid personal/carer’s leave for full-time or part-time employees
• 2 days of unpaid carer’s leave
• 2 days of compassionate leave
• 5 days of unpaid family and domestic violence leave

6.     Community service leave

Unpaid leave for volunteer emergency activities, plus up to 10 days’ paid jury service leave.

7.     Long service leave

Paid leave for long-serving employees.

8.     Public holidays

A day off with pay on public holidays for full-time or part-time employees.

9.     Notice of termination

Up to five weeks’ notice for termination and up to 16 weeks of redundancy pay, based on the length of service.

10.  Provision of FWIS (and CEIS if applicable)

Employers must provide the Fair Work Information Statement (FWIS) to new employees. They must also give casual employees the Casual Employment Information Statement (CEIS).

11.  Casual conversion

The right for casual employees to earn a permanent position.

Why are they needed?

The National Employment Standards are a cornerstone of Australia’s labour laws.

By clearly outlining the minimum workplace entitlements, the NES and the Fair Work Act are legal safeguards for employee entitlements.

As well as serving as a safety net for employees, they give employers a clear benchmark in potentially confusing situations like parental leave, termination notice and long service leave.

What you need to know

Individual contracts, collective bargaining agreements, awards and special agreements cannot legally undermine the NES or provide less than the minimum wage.

Doing so could attract penalties of up to $13,320 for individuals and $66,600 for companies per contravention.

So you don’t need a Melbourne employment lawyer to tell you that it pays to know about NES entitlements.

However, individual agreements and awards can offer supplements and conditions that are more favourable than the NES. For example:

• Extra leave entitlements
• Paid volunteer leave
• Augmented long service agreements

Here are some helpful highlights for employers and employees.

What employers need to know

It’s critical your employment contracts remain up-to-date and fulfil the NES obligations.

Breaching the National Employment Standards can carry severe penalties for employers.

However, the Standards vary slightly between states and territories.

So if you are unclear on your obligations, it might be worthwhile contacting a Melbourne employment lawyer for advice.

What employees need to know

Only some of the Standards apply to casual employees or have pro-rata entitlements for casual and part-time employees.

Casual employees are entitled to:

• A 38-hour maximum work week
• 2 days of unpaid carer’s or compassionate leave per occasion
• 5 days of unpaid family or domestic violence leave every 12 months
• Community service leave, but not jury service
• Public holidays
• FWIS and CEIS provisions
• The right to casual conversion (becoming a permanent employee)

Casual employees are also entitled to request flexible working arrangements and take unpaid parental leave. But only if they have been employed for 12 months and expect to continue their position after returning from leave.

Fair Work Australia has helpful information for casual and part-time employees.

If you believe your entitlements are not being met, PCL Lawyers are the Melbourne employment lawyers you can contact for advice and representation.

Exclusions to the NES

One question we hear as employment lawyers is: do the National Employment Standards apply to all Australian employers and employees?

Strictly speaking, the answer is no – there are a small number of exceptions.

The NES also may not apply to some employees in state and local governments or the public sector.

In addition, some areas of Western Australia’s private sector are excluded from NES obligations.

However, it is always safer (not to mention fairer) to err on the side of meeting the minimum entitlements.

Do you need an experienced employment lawyer? Contact PCL Lawyers for help with employment disputes and employment agreements call us on 1300 907 335 to discuss.

About The Author - Glenn Duker

Glenn Duker is Managing Partner, and founder, of PCL Lawyers. Glenn has a Bachelor of Laws / Arts from the University of Melbourne and was admitted to practice more than 25 years ago. He has...