National Employment Standards

As an Employee you are entitled to a minimum standard of entitlements. From 1 January 2010 these minimum entitlements are contained in the National Employment Standards however relevant contracts and awards may impact what the standards are for your particular position.

National Employment Standards

The National Employment Standards were introduced in January 2010 and comprises of ten (10) minimum standards of employment involving minimum entitlements around maximum weekly hours of work, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal and compassionate leave, community service leave, long service leave, public holidays, termination and redundancy pay as well as provision of a Fair Work Information Sheet[1]. The Standards are geared towards permanent employees, both full time and part time, however some of the standards also cover those employed on a casual basis.

38 Hour Week

Maximum weekly working hours are currently set at 38 hours in accordance with the National Employment Standards however reasonable additional hours and overtime is provided for. Reasonable is a subjective term and when determining whether additional hours are reasonable factors need to be considered including whether there is a risk to the employee’s health and safety, personal circumstances of the employee, notice provided, usual patterns of work in the industry, nature of the role and level of responsibility, whether the employee will be remunerated amongst other relevant matters.

Flexible Working Arrangements

The normal 9am to 5pm in the office is not always suitable or relevant, depending on the position, industry or personal circumstances. You may be eligible to request a flexible arrangement provided that you have completed a minimum of 12 months continuous service immediately prior to the request being made. This standard also covers casual employees provided that they have been employed on a regular and systematic basis for a period of at least 12 months and that there is a reasonable expectation that the employment shall continue.

Grounds for requesting flexible arrangements may include having a disability, being a parent or carer or experiencing family violence and flexibility requested may include change of hours, change of patterns of work or altering the location of work (i.e from home or another location). It is important to consider the request and be reasonable with the terms. The request should be put in writing to your employer, who then has 21 days to consider the request and provide a response including any grounds for refusal. The employer may refuse the request however only on reasonable grounds such as the proposal being too costly for the employer, having a significant impact on customer relations, significant loss of efficiency or simply impracticality. For example, asking to work from home as a swim teacher, when you don’t have a pool, is simply impractical.

Parental Leave & Related Entitlements

The National Employments Standards provides for parental leave along with related entitlements including unpaid special maternity leave, a right to transfer to a safe job or to ‘no safe job’ leave, consultation requirements, a guarantee to return to work as well as unpaid pre-adoption leave. These entitlements cover all employees provided they have completed at least 12 months continual service and if a casual employee that they would have a reasonable expectation of continuing employment on a regular and systematic basis.

Parental leave covers relationships whether married, de facto as well as same-sex relationships and provides cover for the birth of a child of the employee, employee’s spouse or de facto partner and for the placement of a child under the age of 16 with the employee for adoption. The standard for parental leave is 12 months unpaid, however a further 12 months may be requested and should not be rejected unless there are reasonable grounds to do so, including the effect on the business, the inability to manage current work as well as an inability to replace the employee for the period of time.

There are various other related entitlements to parental leave however in particular that an employee is guaranteed to return to work following an unpaid period of parental leave, entitling them to either their pre-parental leave position or alternatively if that position is not available a position that is available and nearest in statutes and pay to the position previously in. As an Employer, you should ensure that any employee hired to fill a position of an employee on parental leave, is aware that the engagement is temporary and that the employee on leave has a guarantee to return to work when the unpaid leave concludes.

Annual Leave

Annual leave, often referred to as holiday pay, allows an employee to be paid whilst having time off from work. An employee is generally entitled to 4 weeks annual leave based on their ordinary hours of work, however shift workers may be entitled up to 5 weeks. Many positions commence with a probationary period, however it is important to know that your leave entitlements begin accruing on the date you commence employment and that any entitlements in this regard will roll over from year to year. Leave will accumulate gradually whether at work or on paid leave however will not accrue on unpaid leave.

Your employer may have regulations around the taking of Annual leave however it is important to note that your request should not be denied unless upon reasonable grounds.

Personal & Compassionate Leave

As an employee you are also entitled to personal and compassionate leave, which includes sick and carer’s leave, compassionate or bereavement leave as well as family and domestic violence leave. These leave entitlements may be taken when it affects the employee or their immediate family (child, spouse, household member, parent, sibling or grandparent) however also includes step-relations.

Compassionate and bereavement leave is provided for up to 2 days paid leave, however this does not accrue and further leave may be taken by agreement with the employer or alternatively unpaid leave. This are similar provisions for family and domestic violence however up to 5 days is provided under this and it is unpaid leave unless otherwise agreed or provided for.

Sick and Carer’s leave is provided for permanent full time or part time employees and the standard is ten days or pro-rata for part-time employees. Similar to annual leave, personal leave is accrued from the day you commence employment and rolls over year to year. You may be asked to provide evidence of the requirement for leave which may include a medical certificate, however a Statutory Declaration will generally also be acceptable. If you need to take extended sick leave, you may take up to 3 months (consecutively or in a 12 month period), paid, unpaid or a combination of both, sick leave and you will generally be protected from dismissal.

Community Service Leave

Employees, both permanent and casual, are entitled to take community service leave for activities including jury duty or voluntary emergency management activities. Emergency Management Activities will be activities including natural disasters, that are undertaken on a voluntary basis and that the employee has been requested to engage.  Groups such as State Emergency Services or Rural Fire Fighters would be considered as emergency management activities however will also include civil defence groups, emergency disaster groups or even the RSPCA. An Employee should give as much notice as possible, though this may be after the fact and provide the period (or expected period) of leave required.

Jury duty is generally a requirement of all Australian Citizens over the age of eighteen however in certain circumstances it may not be appropriate for you to partake or you may seek to be excused. If a permanent employee does attend Jury Duty the employer should provide make up pay, being the difference between any jury duty payment the employee receives and their ordinary pay. The employer has reasonable grounds that evidence is provided of steps taken to obtain payment for your service along with a total amount paid, or payable, to the employee.

Long Service Leave

The National Employment Standards provide that employees are entitled to Long Service Leave however the particulars of the leave are state based. In Queensland the Long Service Leave entitlements, as a minimum, are provided for by Industrial Relations. In Queensland Full-Time employees are entitled to take 8.6667 weeks of paid leave after a period of 10 consecutive years service. An employee may be entitled to a possible pro-rata payment on termination or by leave by agreement with their employer.

Casual and regular part time employees may also be entitled to long service leave after a period of 10 continuous years’ service however their entitlement would be based on their total number of ordinary hours worked.  This may cause issues when an employee has been part of mixed employment, being casual, part time and/or full time and accordingly it is vital that careful and thorough records are kept to ensure that any entitlements accrued are accurate.

Public Holidays

Public Holidays may vary state to state, or even between localities within a state. An Employer may request that an employee work on a public holiday however, depending on the state and any award or agreement, the employee may decline or work or alternatively be entitled to remuneration or a day in lieu. Should you work on a regular roster system, the employer cannot reasonably amend your hours or schedule to prevent your hours falling on a public holiday.

A list of the regulated public holidays may be found at https://www.fairwork.gov.au/leave/public-holidays/list-of-public-holidays#QLD.

Notice of Termination

Whether the employment is terminated by the Employee or the Employer there are notice periods. For dismissal, the person terminating the employment (whether employee or employer) will generally be required to give between 1 and 5 weeks notice depending on the length of employment and the age of the employee (an employee over the age of 45 is to be given a further week above the standard) however an award, contract or agreement may set out longer periods of time[2]. The exception to this is when the employer is terminating the employment on the grounds of serious misconduct in which case instant dismissal may occur or if the employee is employed on a casual basis. The Employer is generally required to provide written notice with details of the last date of work.

An Employer and Employee may mutually agree to a lesser notice period or alternatively to notice being paid out in lieu from the employee’s entitlements.  If an Employee fails to attend in the notice period without leave then the employer may be able to withhold paying out entitlements in lieu of that period. At the end of the employment any annual and long service leave owing to the employee must be paid to them.

Should an Employee believe that they have been unfairly dismissed, whether due to discrimination, a reason that is harsh, unjust or unreasonable or for another protected right, it is critical that they obtain advice as soon as possible as they have 21 days from the date they are dismissed to lodge an Application for Unfair Dismissal with the Fair Work Commission.

Fair Work Information Sheet

At the commencement of employment an employee may be provided with an employment packet including a role description and a contract however this is not a requirement. However, an Employer is required to provide ALL new employees with a copy of the Fair Work Information Statement [3] which contains the information of the National Employment Standards. This statement may be provided in person, by mail, email or fax or by provided a link to the relevant website.

Employment provides obligations on both the Employer and the Employee to ensure that everyone is aware of the National Employment Standards and that the standards are complied with along with awareness of relevant awards and agreements. In all employment matters it is important to obtain advice early on whether from Industrial Relations, Fair Work, a relevant union or independent legal advice to ensure that all parties are aware of their options, rights and obligations and to attempt to resolve any concerns.

[1] https://www.fairwork.gov.au/employee-entitlements/national-employment-standards

[2] https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/dismissal-how-much-notice

[3] https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/fair-work-information-statement

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