National Employment Standards

 

Mandatory and enforceable national standards under the Fair Work regime impose statutory conditions on work hours, flexible work, parental leave, annual leave, carer’s leave, community service leave, long service leave, public holiday provisions, notice of termination or pay in lieu, redundancy pay and a fair work information statement.

The FW Act creates National Employment Standards (NES), which took effect from 1 January 2010. The NES are statutory terms and conditions of employment and apply to all employees in the national system (defined in s 13 FW Act), including management employees. They cannot be displaced by awards, enterprise agreements or common law contracts of employment, unless specifically provided for in the FW Act.

Sections 61 to 125 of the FW Act detail the NES. In summary the NES are:

a a maximum of 38 hours per week, subject to additional hours if reasonable and the averaging of hours over a period of time (ss 62–64);

b the right to request flexible working arrangements for an employee in circumstances specified by the FW Act, including caring responsibilities for a child. The employer must respond in writing and can only refuse on reasonable business grounds (s 65);

c parental leave and related entitlements of, among other things, 12 months unpaid parental leave to care for a child (ss 67–85);

d annual leave of four weeks accrued for each year of service or five weeks for shift workers, as defined (ss 86–94);

e personal/carer’s leave of 10 days paid per year with the possibility of further unpaid days in defined circumstances. Compassionate leave of two days per year in defined circumstances (ss 95–107);

f community service leave for an employee to undertake a defined type of community service, such as volunteering for a fire fighting body, in defined circumstances (ss 108–112);

g long service leave as provided by a pre-reform award, unless excluded by an enterprise agreement, and if there is no federal award entitlement, long service leave legislation will apply (s 113);

h the entitlement to be absent from work on the public holidays specified in the FW Act, unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing (ss 114–116);

i notice of termination or pay in lieu according to the table below;

j redundancy pay if the employee’s employment is terminated:

i 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

ii because of the insolvency or bankruptcy of the employer;

k redundancy pay periods are calculated as shown in the table below (ss 117–123); and

l a fair work information statement to be provided by an employer to each of their employees (ss 124–125).

Notice of termination or pay in lieu

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 5 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.

Redundancy pay

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