National Employment Standards: What you need to know

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National Employment Standards

The Fair Work Act 2009 imposed many new obligations on employers throughout Australia.  In particular, the Fair Work Act established new National Employment Standards (NES).

The National Employment Standards created by the Fair Work Act establish 10 minimum employment entitlements that employers are required to provide to all of their workers.  These entitlements set the bare minimum for what you must comply with. Although you can provide broader benefits, you cannot provide conditions that are less than what the National Employment Standards mandates. These new obligations generally cannot be excluded by an Enterprise Agreement or a Modern Award. Our experienced lawyers know all of the details of the National Employment Standards created by the Fair Work Act, and we fully understand what these new standards require of businesses. You can get help ensuring your company is in compliance by contacting our lawyers for assistance.  You can also review the below list of some of the steps your company can take to ensure full compliance with fair work laws:

1. Establish new scheduling protocols to ensure you comply with new rules for maximum weekly hours.

For full-time employees, the National Employment Standards limits maximum weekly hours to 38 hours per week, subject to reasonable additional working hours when necessary. You need to plan your company scheduling in order to ensure that employees are not routinely being asked to work for longer than the maximum number of hours, unless the request to work longer is classified as reasonable.  Some of the factors used to determine whether the request for more work is reasonable include the employee’s personal circumstances and family responsibilities; the needs of the business; risks to the employee’s safety and health; whether the employee is entitled to overtime; the amount of notice given to the employee regarding the additional hours; the industry standards for overtime; and the nature of the employee’s responsibilities.


2. Establish a policy for responding to requests for flexible working arrangements.

Employees who are responsible for caring for children under school age are entitled under the National Employment Standard to ask for flexible work arrangements from employers. This can include a change in work arrangements to make it easier for the employee to care for the kids. You can refuse requests for flexible work arrangements, but must have a legitimate business reason to do so. Any employee request for flexible work time must be in writing, and the company’s  response also must be written. The written reply has to state whether your business is granting or refusing the request for a flexible work arrangement and must provide justification for any refusal to provide the desired flexibility.


3. Learn the accrual and crediting rules for annual leave.

Although there were annual leave provisions in place before the Fair Work Act set the new national standards, the Act contains different rules for accrual and crediting of leave. Shift workers, for example, may be entitled to additional leave under proposed modern awards. The Fair Work Act also simplified the rules for accusing personal leave, carer’s leave, and compassionate leave.


4. Draft information statements.

Employers are required to provide new employees with information statements as soon as it is practical to do so after the employee begins working.

5. Revise your process for negotiating enterprise agreements.

The National Employment Standard introduced a significant expansion regarding the obligations that employers have to employees, and employers may not contract out of these new obligations. This means your business will need to adjust its customary terms of enterprise agreements and must modify the process of negotiating such agreements in order to ensure that no agreements offer workers less than the minimum standards guaranteed by the National Employment Standard.

Taking these steps will help you to prepare to offer the 10 minimum conditions of employment set forth in the National Employment Standards created by the Fair Work Act.

These 10 conditions address:

  1. The maximum number of hours worked per week
  2. The rights of employees to request flexible work arrangements
  3. An employee’s right to annual leave
  4. An employee’s right to public holidays off
  5. Parental leave available to workers
  6. Long service leave
  7. Compassionate leave, including leave for employees who are sick or who must serve as caregivers to family members
  8. Community service leave, which provides the right to a leave of absence for eligible community service work, as well as for employees who perform emergency management activities or jury service
  9. Notice of termination to employees and rules for redundancy pay
  10. A statement of information employers must provide to workers, called the Fair Work Information Statement.

When an employer does not follow the new standards, the Fair Work Ombudsman may conduct an investigation.  The audit conducted by the Ombudsman could be costly and could ultimately result in penalties and fines.

Employers need to ensure that they are fully in compliance with all national employment standards to avoid legal action. Owen Hodge Lawyers can provide invaluable assistance to your business as you ensure you comply with all obligations as an employer, including the National Employment Standards established by the Fair Work Act. Call us today at 1800 770 780 or contact us via [email protected] to schedule a consultation and learn more about how we can assist your business.

Here at Owen Hodge Lawyers we are always striving to deliver the legal business and employment guidance you need. Read more about employment rights on the Owen Hodge Blog, including our recent post: What are the rights and responsibilities of an employee who is injured at work?

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