National Employment Standards Finalised

Earlier this year we alerted you to the release of the Federal government’s discussion paper setting out its proposed National Employment Standards (Standards). The Standards are designed to replace the current Australian Fair Pay and Conditions Standard and minimum conditions of employment set out in the Workplace Relations Act 1996 (Cth) and act as a new safety net for Australian employees.

Yesterday, the government released the final version of the Standards.

The Standards will not apply to Australian workplaces until 1 January 2010; however they will be vital to the development over the next 18 months of modern awards created by the Australian Industrial Relations Commission (Commission).

There are no real surprises in the final version of the Standards. 

However, the government has made a few changes in response to the feedback received from business and union representatives since the draft was released in February.  For example, employers are now required to pay jury service leave to employees for a maximum of ten days; the draft Standards did not provide for such a limit.

Another change from the draft Standards is that an employee, apart from a casual employee, must have completed at least 12 months of continuous service with an employer before they are entitled to make a request for flexible working arrangements to allow the employee to care for a child.  Casual employees must have been engaged on a regular and systematic basis for at least 12 months before being entitled to make such a request.

An area of uncertainty is the question of how modern awards and the Standards will interact.  In particular, the exact nature of flexibility clauses in modern awards. 

Flexibility clauses will allow employers and employees to tailor their work arrangements under a modern award.  For example,  a particular modern award may set out the standard start and finish times for all employees covered by the modern award.  An employer and individual employee may agree that, because of the employee’s childcare arrangements, the employee will regularly start and finish work early, that is outside the hours set by the modern award.

A summary of the Standards is set out below.

Maximum Weekly Hours

• Full-time employees to work a maximum 38-hour week.
• Employer may request or require an employee to work reasonable additional hours.
• Employee may refuse additional hours if they are unreasonable.

Request for flexible working arrangements

• Parent or carer of a child may request a change in work arrangements.
• Employee, other than a casual employee, must have at least 12 months of continuous service before able to request.
• Casual employee must be employed on systematic basis for at least 12 months before able to request.

Parental leave and related entitlements

• Employee who has at least 12 months of continuous service qualifies for 12 months of unpaid parental leave.
• Other parent is allowed to take 12 months of unpaid leave subsequently, but not concurrently.
• Up to three weeks of concurrent leave may be taken at the time of birth or adoption.
• An additional 12 months of unpaid leave available if employer agrees.

Annual leave

• Four weeks for full-time employees, five weeks to award defined shift workers.
• Cashing out of annual leave in accordance with a term of an award.

Personal/Carer’s leave and compassionate leave

• Ten days of paid personal/carer’s leave.
• Two days of unpaid carer’s leave per occasion needed when paid personal/carer’s leave entitlements are exhausted.
• Two days of compassionate leave per occasion needed.

Community service leave

• Available for jury service or voluntary emergency management.
• Employers required to pay employee for first 10 days of jury service only.

Long service leave

• Entitlement to award-derived long service leave continues.
• Exceptions where long service leave dealt with in certain instruments including a workplace agreement made before the Standards commence operation and a pre-reform AWA.
• Long service leave entitlements planned to change in the future when a consistent national standard is agreed between the States and the Federal government.

Public holidays

• Eight national public holidays plus days designated in States and Territories.
• Employer may make reasonable request for employee to work a public holiday.

Notice of termination and redundancy pay

• Period of notice dictated by length of employment.
• National redundancy pay standards.

Fair Work Information Statement

• To be presented to every new employee.

FURTHER ENQUIRIES