What are the National Employment standards?
The Fair Work Act 2009 (Cth) (‘FW Act’) created the National Employment Standards (NES), which took effect on 1 January 2010. Detailed information about the NES is in sections 61–125 of the FW Act.
The NES are statutory terms and conditions of employment that apply to all employees in the national system (defined in s 13 FW Act), including management employees.
The NES cannot be displaced by awards, enterprise agreements or common law contracts of employment, unless that is specifically provided for in the FW Act.
The 11 National Employment Standards
In summary, the National Employment Standards (NES) are:
National Employment Standard 1
Employees are to work a maximum of 38 hours per week, subject to additional hours if reasonable. These hours may be averaged over a period of time (ss 62–64 FW Act).
National Employment Standard 2
Employees have the right to request flexible working arrangements if they are experiencing circumstances specified by the FW Act (ss 65–66). These circumstances include the employee:
- having a disability;
- being a carer within the meaning of the Carer Recognition Act 2010 (Cth);
- being aged 55 years or older;
- experiencing family violence or supporting someone who is experiencing family violence; or
- having caring responsibilities for a child.
The employer must respond in writing and can only refuse on reasonable business grounds (s 65 FW Act).
National Employment Standard 3
Eligible casual employees are entitled to receive an offer of casual conversion to a full-time or part-time (permanent) position, unless the employer has reasonable grounds not to make an offer. The casual conversion rule does not apply to small business employers (ss 66AA–66M FW Act).
An employee is eligible for an offer of casual conversion if:
- the employee has been employed by the employer for a period of 12 months; and
- during at least the last six months of that period, the employee has worked a regular pattern of hours on an ongoing basis that, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).
Reasonable grounds for deciding to not make an offer of casual conversion include where:
- the employee’s position will cease to exist in the 12 months after the time of deciding to not make the offer;
- the hours of work that the employee is required to perform will be significantly reduced in that period;
- there will be a significant change in the days or time that the employee’s hours of work are required to be performed that cannot be accommodated within the days or times the employee is available to work during that period; and
- making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a state or territory.
National Employment Standard 4
Employees are entitled to parental leave and related entitlements of, among other things, up to 12 months of unpaid parental leave to care for a child (ss 67–85 FW Act).
National Employment Standard 5
Employees are entitled to four weeks of annual leave accrued for each year of full-time service or five weeks for shift workers, as defined in the FW Act (ss 86–94).
National Employment Standard 6
Employees are entitled to leave in the following circumstances defined in the FW Act (ss 95–107):
- personal or carer’s leave of 10 days paid per year with the possibility of further unpaid days;
- compassionate leave of two days per year; and
- family and domestic violence leave (unpaid) of five days each year.
National Employment Standard 7
Employees are entitled to community service leave to undertake community service, such as volunteering for a fire-fighting body. Types of community service and circumstances are defined in the FW Act (ss 108–112).
National Employment Standard 8
Employees are entitled to long service leave when they have worked for the same employer (or in some cases, in the same industry) for a long time (a minimum of seven years) (s 113 FW Act).
National Employment Standard 9
Employees are entitled to be absent from work on the public holidays specified in the FW Act (ss 114–116), unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing.
National Employment Standard 10
Employees are entitled to receive notice of termination or pay in lieu of notice.
Employees are also entitled to redundancy pay if an employee’s employment is terminated:
- at the employer’s initiative because the employer no longer wants the job of the employee done by anyone, except where this is due to the ordinary and customary turnover of labour; or
- because of the employer’s insolvency or bankruptcy.
Periods of notice of termination or pay in lieu and redundancy pay are calculated as shown in the tables below (ss 117–123 FW Act).
National Employment Standard 11
An employer must provide a Fair Work Information Statement and (in the case of casual employees) a Casual Employment Information Statement to each of their employees (ss 124–125B FW Act).
|Employee’s period of continuous service with the employer at the end of the day the notice is given||Period|
|Not more than 1 year||1 week|
|More than 1 year but not more than 3 years||2 weeks|
|More than 3 years but not more than 5 years||3 weeks|
|More than five years||4 weeks|
Note: The period of notice is increased by one week if the employee is over 45 years old and has completed at least two years of continuous service with the employer.
|Employee’s period of continuous service with the employer on termination||Redundancy pay period|
|At least 1 year but less than 2 years||4 weeks|
|At least 2 years but less than 3 years||6 weeks|
|At least 3 years but less than 4 years||7 weeks|
|At least 4 years but less than 5 years||8 weeks|
|At least 5 years but less than 6 years||10 weeks|
|At least 6 years but less than 7 years||11 weeks|
|At least 7 years but less than 8 years||13 weeks|
|At least 8 years but less than 9 years||14 weeks|
|At least 9 years but less than 10 years||16 weeks|
|At least 10 years||12 weeks|