The National Employment Standards (‘NES’) are ten minimum employment entitlements that must be provided to all employees. The NES are fundamental to the federal system of industrial relations in Australia and together with the national minimum wage, make up the minimum entitlements for employees in Australia. The NES apply to all employees regardless of their wage, level of seniority or experience and apply to all types of employees.
Whilst employers and employees can add to or supplement the NES, an award, an employment contract, an enterprise agreement or other registered agreement cannot provide for conditions that are less than the national minimum wage or the NES. In other words, the NES cannot be excluded by any employer or employee.
The ten minimum entitlements which make up the NES
- Maximum weekly hours of work – The maximum is 38 hours per week, plus reasonable additional hours.
- Flexible working arrangements – This provides a right for certain employees to request flexible working arrangements.
- Parental leave and related entitlements – Eligible workers are entitled to up to 12 months unpaid leave (and with a right to request a further 12 months), plus certain other forms of maternity, paternity or adoption-related leave. Parents impacted by stillbirth or infant death are also entitled to access 12 months of unpaid parental leave and parents are entitled to access flexible unpaid parental leave options.
- Annual leave – Eligible workers are entitled to four weeks paid leave per year, plus an additional week for certain shift workers.
- Personal leave – Available for sick and carers leave (also known as personal/carers leave). The yearly entitlement is based on an employee’s ordinary hours of work and is ten days for full-time employees and pro-rata for part-time employees. Employees are further entitled to two days compassionate leave each time an immediate family or household member dies or suffers a life-threatening illness or injury.
- Community service leave – This type of leave allows for unpaid leave for voluntary emergency management activities and for jury service, plus a limited right to compensation for lost wages while on jury duty.
- Long service leave – There are different entitlements in different states of Australia. In Queensland, the entitlement to long service leave is based on a qualifying period of continuous service. Employees are entitled to take 8.6667 weeks of paid long service leave after a period of 10 years continuous A period of unpaid leave does not necessarily break the continuity of service. However, any periods of unpaid leave will also not necessarily count towards your total period of service. A period of unpaid leave includes the Australian Government Parental Leave Pay Scheme.
- Public holidays – Gazetted public holidays provide for a paid day off, except where reasonably requested to work.
- Notice of termination and redundancy pay – This provides for notice periods for termination calculated on the period of continuous service by the employee.
- Fair Work information statement – Employers are obliged to provide employees a copy of this statement on being employed.
Who does the NES cover?
The NES covers all employees (full time, part-time, permanent and casuals for certain entitlements) in the national workplace relations system (private sector employees) regardless of the modern award, registered agreement or employment contract that applies.
The national workplace relations system includes a collection of legislation that applies to most employees and employers in Australia, including most private sector employees in Queensland. It includes the Fair Work Act 2009, the National Employment Standards Registered Agreements and Awards.
What about casual employees?
Casual employees are only entitled to:
- unpaid carers leave;
- unpaid compassionate leave;
- unpaid family and domestic violence leave;
- community service leave; and
- the Fair Work information statement.
If a casual employee has been employed regularly and systematically for at least 12 months they have extra entitlements including:
- the right to request flexible working arrangements; and
- access to parental leave.
In Queensland, the qualifying period for long service leave entitlements for casual or regular part-time employees is the same as that for full-time employees (after 10 years of continuous service).
It is illegal for employers to misrepresent the basis upon which its employees are employed in order to subvert their NES requirements. For example, an employer should not employ a worker on a ‘casual’ basis, in order to reduce their NES obligations, when in fact that worker should be employed on a ‘permanent’ basis.