National Employment Standards

The National Employment Standards (NES) is a list of ten minimum entitlements for employees in Australia who are covered by the Fair Work Act 2009. An award, enterprise agreement, other registered agreement or employment contract cannot provide for conditions that are less than the national minimum wage or the NES and they can not be excluded.[1] The NES have applied to employees since 1 January 2010, having replaced the previous five entitlement standard (called the Australian Fair Pay and Conditions Standard) under the WorkChoices legislation.[2]

History

Under the WorkChoices amendments to the Workplace Relations Act 1996, employees were entitled to a system of entitlements in five key areas, called the Australian Fair Pay and Conditions Standard (or APFCS):

  • wages (basic rates of pay and casual loadings)
  • maximum ordinary hours of work (38 per week plus reasonable additional hours)
  • annual leave
  • personal leave (comprising personal/carer's leave, unpaid carer's leave and unpaid compassionate leave)
  • parental leave.

Safety net

Under the National Employment Standards,[3] employees have certain minimum entitlements. Together with pay rates in modern awards (which also generally took effect from 1 January 2010) and minimum wage orders, the NES makes up the safety net that cannot be altered to the disadvantage of the employee.[1]

There are ten minimum conditions covered under the NES: a maximum number of hours in the working week, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal or carer's leave and compassionate leave, long service leave, community service leave, public holidays, notice of termination and redundancy pay, and a fair work information statement.[1][4]

The 10 minimum entitlements of the NES are:

  • Maximum weekly hours
  • Requests for flexible working arrangements
  • Parental leave and related entitlements
  • Annual leave
  • Personal carers leave and compassionate leave
  • Community service leave
  • Long service leave
  • Public holidays
  • Notice of termination and redundancy pay
  • Fair Work Information Statement[4]

The new maximum weekly hour regulation requires additional hours to be reasonable, in the absence of which the maximum weekly hours of work of a full-time employee is 38 hours.[5]

Another change is the 'Requests for Flexible Working Arrangements'. This NES allows parents or carers of a child under school age, or of a child under 18 with a disability, the right to request a change in working arrangements to assist with the child's care.[6]

Casual employees

Casual employees are entitled to a limited number of NES entitlements relating to:

  • unpaid carer's leave
  • unpaid compassionate leave
  • community service leave
  • Fair Work Information Statement.[4]

In some states and territories long serving casuals are eligible for long service leave. Where there is an expectation of ongoing work for a casual and the casual has been employed regularly and systematically for at least 12 months, they have extra entitlements from the NES. These are:

  • the right to request for flexible working arrangements
  • access to parental leave.[7]

Criticism

Not all commentators agreed that the Rudd government had struck the right balance between simplification and appropriate protection. Baird and Williamson,[8] for example, argued that the new minimum standards were detrimental to certain groups, particularly women, because the new awards failed to adequately cover women working in social services, call centres and the health sector.

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References
  1. "National Employment Standards". www.fairwork.gov.au
  2. Fair Work Act 2009
  3. "National Employment Standards" Archived 2015-01-07 at the Wayback Machine. www.tresscox.com.au
  4. Fair Work Information Statement.
  5. National Employment Standards (NES) – Commonwealth of Australia, 2012-05-23
  6. Fair Work Act 2009, Section 65: Requests for Flexible Working Arrangement"] www.fwc.gov.au
  7. Fair Work Act 2009 (Cth), section 61
  8. Baird, M., Williamson, S., (2009) 'Women, Work and Industrial Relations in 2008', Journal of Industrial Relations, 51(3).
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