On 20 March, 2009 the federal parliament passed the Fair Work Act 2009 (FW Act). The FW Act sets out 10 minimum conditions of employment. These National Employment Standards (NES) will take effect on 1 January, 2010 and will replace the existing Australian Fair Pay and Conditions Standard. Together with modern awards, the NES will constitute the government’s new safety net. The 10 matters covered by the NES are:

• Maximum weekly hours of work – The NES provide for a maximum of 38 ordinary hours of work for full time employees. Employers can ask an employee to work more than 38 hours, either through a direct request or by implication (eg because the job cannot be completed unless additional hours are worked). Such a request must be reasonable. Reasonableness will depend on circumstances such as an employee’s health and safety, employee’s personal circumstances, notice of the request etc.

• Requests for flexible working arrangements – A new entitlement, allowing parents or carers of children under school age and those who have a child under the age of 18 with a disability, to request a change in working arrangements to assist with the care of the child. Employees must have worked for the employer for at least 12 months before making such a request, or must be long – term casuals with an expectation of ongoing employment. The employee must make the request, setting out the change sought and the reasons, in writing. The employer must respond in writing within 21 days, and if refused set out the reasons why.

• Parental Leave – The NES increase the total amount of unpaid parental leave (which includes birth – related leave and adoption related leave) that an employee can request from 12 to 24 months.  Each parent can take up to 12 months unpaid leave (to run consecutively) or one parent can request up to 24 months’ leave. Leave has to be taken in a single continuous period. The NES specifically permit same – sex de facto partners to take parental leave. Employees must give their employer 10 Weeks’ written notice of the proposed parental leave start and end dates.

• Annual Leave – Annual leave entitlements under the NES are the same, i.e. four weeks’ annual leave. Leave is accrued and paid according to the ordinary hours of work.

• Personal / carer’s and compassionate leave – Personal / carer’s leave accrues at the rate of 10 days per year. Paid carer’s leave that an employee can use is no longer capped at 10 days per year. If there is a public holiday while an employee is on leave, the employee is not taken to be on personal / carer’s leave on that day. Casual employees are not entitled to any paid leave but may be entitled to take up to two days unpaid personal / carer’s or compassionate leave at a time.

• Community service leave – Employers must allow their employees to take unpaid leave for eligible community service activity such as jury duty or voluntary emergency management. Employers will have to pay full – time and part – time employees undertaking jury duty for a period of up to 10 days.

• Long service leave – Will continue to be regulated by state and territory legislation, awards and agreements, for the time being.

• Public Holidays – The NES provides for payment when an employee is absent on prescribed public holidays. The employer must pay an employee’s base rate of pay for ordinary hours that would have been worked on that day. An employer can make a reasonable request that an employee work on a public holiday, and an employee can refuse on reasonable grounds. (Reasonableness as described above).

• Notice of Termination and Redundancy Pay – Provides for written notice of termination and for redundancy pay. The NES sets out the period of notice that an employer must give based on length of service (from one week where an employee has up to a year’s service progressing to four weeks’ notice where an employee has more than five years service). The NES sets out the redundancy pay scale, providing for four weeks’ pay for employees with one to two years’ service progressing to 16 weeks’ for employees with 9 – 10 years. This reduces to 12 weeks’ pay for employees with at least 10 years’ service because, in many jurisdictions, this is when long service leave kicks in. An employer does not have to pay redundancy pay if it is classified as a small business (fewer than 15 employees) or the employee being made redundant has less than one year’s service.

Modern Awards

Modern Awards are to be tailored to particular industries and occupations. These awards are to take effect on 1 January, 2010. The modern awards may contain a further 10 minimum employment standards in addition to the 10 National Employment Standards, which are as follows:

• Minimum wages – this includes skill – based classifications and career structures, incentive – based payments and bonuses, wage rates, and other arrangements to apprentices and trainees
• The type of employment – for example whether an employee is permanent or casual, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities, including quality part – time employment and job sharing
• Arrangements for when work is performed – including hours of work, rostering, rest breaks and meal breaks
• Overtime rates
• Penalty rates for employees working unsocial, irregular or unpredictable hours, on weekends or public holidays, and as shiftworkers
• Provisions for minimum annualised wage or salary arrangements that have regard to the patterns of work in an occupation, industry or enterprise as an alterative to the payment of penalty rates, with appropriate safeguards to ensure individual employees are not disadvantaged
• Allowances including reimbursements of expenses, higher duties and disability – based payments
• Leave, leave loading and the arrangements for taking leave
• Superannuation, and
• Consultation, representation and dispute – settling procedures

As of the 1st of January, your workplace will be liable for changes. The Lawyers at the Quinn Group are able to help you and your workplace manage and implement these changes For more information on the new National Employment Standards contact us on 1300 QUINN or click here to submit and online enquiry.