The National Employment Standards (NES) are 10 universal employment entitlements that are found in Part 2-2 of the Fair Work Act 2009 (FW Act) that apply to national workplace relations system employees. Parts of the NES may also extend to employees beyond the national workplace relations system. They include entitlements such as annual leave, maternity leave, parental leave, sick leave, compassionate leave, and so on (Fair Work Ombudsman). Show
The 10 NES are minimum standards that cannot be overridden by the terms of enterprise agreements or awards. The 10 NES entitlements relate to the following matters: 1. Maximum of 38 weekly hours of work
2. Requests for flexible working arrangements
3. Parental leave and related entitlements – each employee is entitled to up to 12 months unpaid leave
4. Annual leave
5. Personal/carer's leave and compassionate leave
6. Community service leave
7. Long service leave
8. Public holidays
9. Notice of termination and redundancy pay
10. The Fair Work Information Statement is available from the Fair Work Ombudsman. Must be provided by employers to all new employees, and contains information about the NES, Trade union rights of entry, employees right to freedom of association, modern awards, agreement-making, termination of employment, individual flexibility arrangements, transfer of business, and the respective roles of the Fair Work Commission and the Fair Work Ombudsman. Am I covered by the NES?Yes! All employees in the national workplace relations system are covered by the NES regardless of the award, registered agreement or employment contract that applies (however only certain entitlements apply to casual employees). Casual employees only get certain NES entitlements which are:
In some states and territories long serving casuals are eligible for long service leave. In Victoria, providing that the employee has had continuous employment with one employer and there has been no longer than a three month absence between two periods of employment then LSL is accrued by the employee. Independent contractors and business owners are usually not employees and would not be eligible for long service leave provided by the LSL Act. In addition, 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 flexible working arrangements
The National Employment Standards (NES) are 10 minimum legislative requirements to which all employees are entitled. When your workplace makes an Enterprise Agreement, these agreements can provide superior entitlements, but cannot provide for anything less than provided for by the NES. Pay rates are not covered by the NES – they're specified in awards. It is illegal to pay an employee less than the award rate of pay. To view the latest National Employment Standards go to the Fair Work Ombudsman website. The NES 10 minimum entitlementsHours of work38 hours per work plus reasonable additional hours. An employee can refuse unreasonable additional hours. Flexible work for parentsAn employee who has caring responsibilities for a child under school age or a child under 18 with a disability may request a change to workplace arrangements to accommodate caring responsibilities. This request can only be refused on reasonable business grounds. Parental leaveAn employee is entitled to 12 months unpaid parental leave and to seek a second period of 12 months unpaid leave. The request can only be refused on reasonable business grounds. The decision to refuse the request is not reviewable under the NES although Agreements can provide for a right to review this decision. Annual leaveEmployees are entitled to 4 weeks annual leave and shift workers 5 weeks. Agreements can allow employees to cash out annual leave by agreement, so long as the employee's remaining accrued annual leave entitlement is 4 weeks. Agreement-free employees can cash out annual leave by agreement on the same conditions. Personal, carers, compassionate leave10 days personal/carers leave. An employee is also entitled to an additional 2 days unpaid carer's leave per occasion and 2 days paid compassionate leave per occasion. Agreements can allow employees to cash out personal leave by agreement, so long as the employee's remaining personal leave entitlement is 15 days. Community service leaveThis applies for jury service and voluntary emergency management activities, such as CFA. Leave is unpaid, except for the first 10 days of jury service where the employee is not casual. Long service leaveEmployees are entitled to long service leave in accordance with pre-existing entitlements. Public holidaysAn employee is entitled to be absent from his/her employment on a day that is a public holiday where the employee is based. An employee may refuse a request to work on a public holiday if the request to work is unreasonable, or the reusal to work is reasonable. Termination of employment and redundancyAn employer must give a minimum notice period for termination of employment and redundancy. The period is dependent on the years of service. Where an employee's employment is terminated for redundancy reasons, the employee is entitled to redundancy pay. The amount of redundancy pay is dependent on the years of service. Information statementEmployers must give all employees on commencement of their employment a statement advising the employee of their entitlements and rights under the Act Statement to be published by Fair Work Australia.
If you run a business and have employees, you should be familiar with NES. It is extremely important that all employers abide by the employment entitlements laid down by NES. However, employers could be in trouble if they are undercutting these entitlements. This article will briefly outline what is meant by NES and the 11 employment entitlements. What is NES?NES is short for National Employment Standards, and as its name suggests, it is a list of the minimum employment standards. As the NES are national standards, they apply to all employees in Australia. Furthermore, as NES contains the minimum standards, these standards cannot be contracted out of. Thus, it is illegal for employers to provide conditions that do not meet NES. Any entitlements that are provided for in any award, enterprise agreement or employment contract must not undermine NES. Therefore, awards, enterprise agreements and employment contracts can provide for additional employment entitlements but not less than the NES. So, to ensure that you are running your business and managing your employees in accordance with NES, here are the 11 employment entitlements and standards: 1. Maximum Weekly HoursMany employers are well aware of the fact that they usually cannot request that an employee work more than 38 hours per week. However, there are circumstances that allow employers to request their employees to work some additional hours. But, any hours that exceed 38 hours per week must be reasonable. To determine the reasonableness of additional work hours, the court will consider:
2. Flexible Working ArrangementsUnder NES, employees who have worked for the same employer for at least 12 months can request that their employer consider flexible working arrangements. Flexible working arrangements may include, changes to work hours, work patterns or locations (e.g. working from home). Additionally, NES outlines that certain employees requests must be reasonably and respectfully considered. To find out who these certain employees are, follow this link. 3. Requests and Offers of Casual ConversionNow, this may be a new one for you. A casual employee, whom has worked for their employer for 12 months, must receive an offer to covert their employment to either part-time or full-time employment. Please note, this requirement does not apply to employers of small businesses. In other words, if you are a small business employer, you are not required to following this conversion entitlement.
Use our employment agreement to hire your employee the right way and protect your business. Get now 4. Parental EntitlementsEmployees who have worked for their employer for at least 12 months will be eligible for all parental leave entitlements. These entitlements include: maternity leave, paternity and partner leave, adoption leave and special maternity leave. Further, it is extremely important that all employers abide by parental leave entitlements, as refusing to offer these entitlements can give rise to your employees bringing claims of Discrimination and Unfair Dismissal. 5. Annual LeaveMany employers and employees are aware of the 4 weeks annual leave entitlement. However, many do not know that it originated from NES. Now, 4 weeks is the minimum entitlement, however your modern award, enterprise agreement or employment contract may stipulate for larger amounts of leave. For instance, shift workers generally accrue more than 4 weeks due to the strenuous hours of work. To calculate how much annual leave your employer should be providing, check out Fair Work’s Annual Leave Tool. 6. Personal/Carer’s Leave, Compassionate Leave and Unpaid Family/Domestic Violence LeavePersonal and carer’s leave, also known as sick leave, refers to the 10 days of leave available to employees who are ill or must care for an ill family member. Alternatively, compassionate leave is only available for 2 days and is commonly taken when an employees family member dies or develops a serious illness or condition. Also, employees may take up to 5 days of unpaid family and domestic violence leave if they are experiencing violence at the hands of a close relative. 7. Community Service LeaveThis type of leave may only be taken when employees are required for voluntary community activities, such as jury duty. If the activity is some activity other than jury duty, then the leave is generally unpaid. 8. Long Service LeaveLong service leave is the amount of leave that an employee accrues from having worked for the same employer for a sufficient period of time. Even though long service leave is an employment entitlement that originates from the NES, each state and territory have different laws pertaining to this type of leave. However, if you have been working for your employer before the enactment of the modern awards, being before 1 January 2010, your long service leave entitlements will come from the pre-modern awards. 9. Public HolidaysMost employees will receive time off work on public holidays. Only the public holidays of the state or territory your employment is based in will apply to your employment entitlements. In NSW, public holidays include:
10. Notice of Termination and Redundancy PayBoth employers and employees should give each other notice of the termination of their employment relationship. Notice is an extremely important aspect of Employment Law and includes many different rules and legal requirements. A Letter of Resignation is the most common way to give notice. However, if your employment ends because of a genuine redundancy, the redundant employee shall receive at least 16 weeks of severance pay. 11. Fair Work Information Statement and Casual Employment Information StatementAll employers must provide new employees with a copy of the Fair Work Information Statement or Casual Employment Information Statement. Importantly, these statements set out all aspects of the NES to ensure new employees are informed about their rights and responsibilities. These statements can be found on the Fair Work Website. Key TakeawaysThere are 11 employment entitlements that make up the NES. All employers must abide by the 11 NES and cannot contract out of its terms and requirements. An award, enterprise agreement or employment contract may provide for additional entitlements, so long as they do not provide for lesser entitlements. NES has the objective are creating consistent employment entitlements, to ensure all working Australians are being well compensated for their hard work and efforts. |
What are the 10 minimum entitlements of the national employment standards that are required for all employees?
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