December 2018 update to the National Employment Standards (NES)

We previously wrote about the family and domestic violence leave entitlements introduced in Australia for all Industry and Occupation awards. The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 now extends this entitlement to all employees by way of an update to the National Employment Standards. This change is effective from 12 December 2018.

What are family and domestic violence leave entitlements?
Family and domestic leave entitlements allow any employee experiencing such violence to take up to 5 full days unpaid leave per annum to deal with the impact of such violence. The entitlement is available in full at the start of each year of employment. It doesn’t accumulate from year to year and doesn’t have to be taken all at once. It has been available to employees under Industry and Occupation awards since 1 August 2018 and from 12 December 2018 coverage has been extended to all employees.

What are the National Employment Standards?
The National Employment Standards (NES) specify the minimum employee entitlements in Australia. They cannot be excluded or reduced under any contract, award or agreement, although these may provide for entitlements above the NES.

The minimum employee entitlements specified by the NES are:

    1. 1: The maximum weekly hours of work
      For full time employees this is a maximum of 38 hours, plus ‘reasonable’ overtime. Fair Work outlines a number of factors on what is considered ‘reasonable’ overtime. Note some awards or agreements allow for the hours of work to be averaged over a period of time.

      2: The right to request flexible working arrangements
      Full time or part time employees who have been with their current employer for a minimum of 12 months can request changes to their hours/patterns/locations of work in certain circumstances. Casual employees who have had regular and systematic work with their current employer for a minimum of 12 months and reasonably expect this to continue can also request flexible working arrangements. There are specific requirements for how requests are to be submitted by employees and dealt with by employers.

      3: Parental leave and related entitlements
      Employees who have worked more than 12 months with their current employer may be entitled to take unpaid leave of up to 12 months when a child is born or adopted, where they are or will be responsible for the care of the child. Some employers may offer limited paid parental leave so make sure you check your employee’s contract. Eligible employees may also be entitled to the Government funded Parental Leave Pay.

      4: Annual leave
      Full time and part time employees are entitled to four weeks of annual leave per year. This is accumulated in proportion to the ordinary hours worked. It is important to check the relevant award, agreement and employee contract as some allow further provisions. Also shift workers may be entitled to up to 5 weeks of annual leave per year.

      Casual employees have no annual leave entitlement; they receive a loading to compensate for this.

      Unused annual leave must be paid out on termination of employment.

      5: Personal/carers leave, compassionate/bereavement leave and unpaid family and domestic violence leave
      Full time and part time employees are entitled to:
        1. 10 days paid personal/carer’s leave annually. Similar to annual leave this is accumulated in proportion to the ordinary hours worked.
        2. 2 days unpaid carer’s leave each time a member of their immediate family or household member requires care and support due to illness, injury or unexpected emergency. This does not accumulate and only available after the paid personal/carer’s leave entitlement has been exhausted.
        3. 2 days paid compassionate leave each time a member of their immediate family dies or suffers a life threatening injury or illness. This does not accumulate and can be taken any time required.

      Casual employees are entitled to:

        1. 10 days unpaid personal/carer’s leave annually. Similar to annual leave this is accumulated in proportion to the ordinary hours worked.
        2. 2 days unpaid carer’s leave each time a member of their immediate family or household member requires care and support due to illness, injury or unexpected emergency.
        3. 2 days unpaid compassionate leave each time a member of their immediate family dies or suffers a life threatening injury or illness. This does not accumulate and can be taken any time required.

      All employees are entitled to 5 full days unpaid family and domestic violence leave annually. This is the new element bought in by the update to the National Employment Standards. It is not pro-rated based on hours worked and is available in full at the start of each year of work. It does not have to be taken all at once.

      6: Community service leave
      All employees can take community service leave for voluntary emergency management activities and jury duty. This is unpaid except for full time and part time employees undertaking jury duty who must be paid ‘make-up pay’ for the first 10 days. ‘Make-up pay’ is the difference between the employee’s base pay rate for ordinary hours they would normally work and any jury duty payment received.

      7: Long service leave
      Employees who have worked with their current employer for 10 years are entitled to take long service leave. The amount of leave varies according to the state/territory the employee works in.

      Employers who have worked with their current employer for 7 years or more will need to be paid out any unused long service leave entitlement on termination of employment.

      Some exceptions apply:

        1. If an employee was covered by a federal pre-modern award prior to 1 January 2010 that included long service leave entitlements; then those are the entitlements that stand, not the entitlements under the state and territory legislation.
        2. In some industries (eg cleaning, building and construction) long service leave is portable so is carried from employer to employer.

      8: Public holidays
      Full time employees are entitled to receive paid leave on public holidays for the state where they are based for work. Part time employees are entitled to receive paid leave for public holidays for the state where they are based for work, for the hours they would normally have been scheduled to work on that day.

      Casual employees do not receive paid public holidays.

      In some cases a local public holiday may be substituted for a statewide public holiday.

      9: Notice of termination and redundancy pay
      The minimum amount of notice required for termination of employment generally depends on how long the employee has been with the current employer. It is important to check the award, agreement and/or contract as these may extend the notice period beyond the terms of the NES. Where less than the required notice is provided payment in lieu of notice will be required – unless in a case of serious misconduct.

      In the case of genuine redundancy for a part time or full time employee, a payout is made based on the length of continuous service with the current employer. Casual employees do not generally get redundancy pay but it is important to check as some awards or agreements provide for it.

      10: Fair Work Information Statement
      Every new employee must be provided with a copy of the Fair Work Information Statement, either before or soon after commencing employment. The Statement outlines the National Employment Standards and other information about conditions of employment.

    So what do I need to do about this update?

      1. Ensure your managers, payroll officers and/or payroll provider are aware of the update
      2. Consider providing staff with an updated copy of the Fair Work Information Statement or distributing a memo regarding the change
      3. Set out an expectation for how requests for this leave are to be handled to ensure utmost confidentiality
      4. Update internal policy documents regarding leave if relevant.

    For more reading on the National Employment Standards, check out the Fair Work website: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards.

    If you have any questions about the National Employment Standards, call us 03 5339 3200 or contact us here.

    Thanks for reading.

    By Genna Kidd

    The information contained on this website has been provided as general advice only.  The contents have been prepared without taking account of your personal objectives, financial situation or needs.  You should, before you make any decision regarding any information, strategies or products mentioned on this website, consult your own financial advisor to consider whether that is appropriate having regard to your own objectives, financial situation and needs.

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