The Government has invited comments on the exposure draft. Such comments are to be received by 4 April 2008. Our Employment and Workplace Relations Group can assist in this process if you would like to make comment.
- Maximum weekly hours
The maximum weekly hours will be 38 hours for a full-time employee, plus reasonable additional hours. A number of factors must be taken into account in determining whether additional hours are reasonable including whether an employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours.
The proposed maximum weekly hours NES does not deal with the averaging of hours as this will be dealt with in modern awards.
- Requests for flexible working arrangements
There will be a right for employees who are a parent, or have caring responsibilities for, a child under school age to request flexible work arrangements. Flexible working arrangements are stated to include a reduction in hours of work, a change to non-standard start or finish times, working from home or another location, working ‘split-shifts’ or job sharing arrangements.
An employer will only be able to refuse the request on reasonable business grounds. However, whether an employer has reasonable business grounds for refusing a request for flexible working arrangements will not be subject to third party adjudication. While the Government’s new industrial body, Fair Work Australia, will provide general information and assistance to employees as to what may constitute reasonable business grounds, it will not be empowered to impose the requested working arrangements on an employer.
- Parental leave and related entitlements
Consistent with the current entitlement, unpaid parental leave will be available to a full‑time or part-time employee who has completed at least 12 months of continuous service with an employer and to a casual employee employed on a regular and systematic basis over at least a 12-month period prior to the expected birth.
However, the proposed NES will change or extend current parental leave entitlements as follows:
Each parent will have a separate entitlement of up to 12 months unpaid parental leave in connection with the birth or adoption of their child, to be taken consecutively and not concurrently (with the exception of three weeks’ parental leave at the time of birth).
-
A parent who takes 12 months parental leave may request additional leave from their employer of up to 12 months. The employer may refuse the request on reasonable business grounds. While the Government intends that Fair Work Australia will provide general information and assistance to employers as to what constitutes reasonable business grounds, whether an employer has reasonable grounds for refusing a request for additional leave will not be the subject of third party adjudication.
-
There will not be a mandatory period of parental leave for a female employee due to give birth. Rather, the NES will entitle an employee to elect to commence parental leave at any time within six weeks of the expected date of birth of the child.
-
An employer will be required to consult with an employee who is absent on parental leave where the employer has made a decision that is likely to significantly affect the status or pay of the employee’s pre-leave position.
- Annual leave
A full-time employee will continue to be entitled to four weeks of paid annual lave (pro rata for part-time employees). Certain types of shift workers (as designated under a modern award) will be entitled to an additional week of paid annual leave.
Annual leave will accrue progressively rather than for a defined period, and may be taken in any way agreed between an employer and an employee.
Also, the interaction between paid annual leave, public holidays and other kinds of leave and absences will be expressly provided for. For example, an employee could take paid personal/carer’s leave during a period of paid annual leave, subject to satisfying notice and evidence requirements for personal/carer’s leave.
The proposed annual leave NES does not deal with the cashing out of paid annual leave, however rules about cashing-out annual leave will be addressed in modern awards.
- Personal/carer’s leave and compassionate leave
An employee, other than a casual employee, will have an entitlement to:
-
10 days of paid personal/carer’s leave for each year of service;
-
two days of paid compassionate leave ‘per occasion’; and
-
two days of unpaid carer’s leave ‘per occasion’ for genuine caring purposes or family emergencies if paid carer’s leave is exhausted.
A casual employee will have an entitlement to:
two days of unpaid compassionate leave ‘per occasion’; and
-
two days of unpaid carer’s leave ‘per occasion’.
As with the proposed annual leave entitlement, paid personal/carer’s leave will accrue progressively. Also, the amount of accrued paid carer’s leave that can be taken in each year will not be capped.
- Community service leave
An employee will have the right to be absent from work to engage in prescribed community service activities such as jury service and emergency service’s duty. This entitlement will cover all periods an employee is required to provide the community service activity including reasonable travelling time associated with the activity and reasonable rest time immediately following the activity and before recommencing work.
In respect of jury service, an employee, other than a casual employee, will be entitled to ‘make‑up pay’, that is the difference between what the employee received in respect of jury service and the employee’s base rate of pay for their ordinary hours of work for the period of jury service.
- Long service leave
Until a uniform minimum long service leave standard is developed, long service leave entitlements in pre-modernised awards, NAPSAs or State or Territory laws will be preserved to ensure they cannot be bargained away. However, where a workplace agreement, AWA or other specified instrument applies and sets out an employee’s long service leave entitlement, that entitlement will continue to apply.
- Public holidays
An employee will be able to reasonably refuse to work on a public holiday and will be guaranteed payment for ordinary hours at their base rate of pay where an employee is absent from work because of the public holiday.
Whether an employee’s refusal to work a public holiday is reasonable will be dependent on a number of factors including whether the employee is entitled to receive overtime, penalty rates or other forms of compensation for working on a public holiday.
- Notice of termination and redundancy
Consistent with the current position, the proposed notice of termination NES provides that, in order to terminate the employment of an employee, the employer must give the employee at least minimum periods of notice (or pay in lieu of notice) based on the employee’s period of continuous service.
If an employer chooses to make payment in lieu of notice, the employee must be paid their full rate of pay (which includes any loadings, monetary allowances, penalty rates or any other similar separately identifiable amounts) for the hours the employee would have worked had their employment continued until the end of the notice period.
There is also an entitlement to redundancy pay where the employee is employed by a business with 15 or more employees. The amount of severance payment to be paid on redundancy is determined by reference to current award standards of a sliding scale depending on the employee’s period of continuous service. Certain employees are excluded from the right to redundancy, including employees serving a probationary or qualifying period and fixed-term, seasonal and casual employees.
- Fair Work Information Statement
Employers will be required to provide all new employees with a Fair Work Information Statement which will contain information about the NES, modern awards, agreement making, the right to freedom of association and the role of Fair Work Australia.
