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National Employment Standard (NES): Commonly Asked Questions (Part 1)

Posted by: on 28 April 2015 in Compliance, Human Capital Management

April 28 – by David Bates 

Last month’s ADP/Workforce Guardian webinar focusing on the first 5 of the ten National Employment Standards (NES) proved extremely popular. We regard this as further evidence of the difficulties many employers face when trying to understand – and comply with – Australia’s extremely complex employment laws.

After the webinar we received a large number of follow-up questions about the NES. So this week we’ve provided answers to the most common questions:

  1. Can I impose a standard 40 hour working week?

You can, but this will create a number of risks, especially if your employees are covered by a Modern Award.

The NES imposes a maximum ordinary working week of 38 hours plus ‘reasonable additional hours’. The NES also contains a list of factors that you can take into account when deciding whether a request for an employee to work more than 38 hours is ‘reasonable’.

We accordingly recommend you’re working arrangements – and your employment contracts – expressly reflect this wording.

Remember too that if that if an employee is covered by a Modern Award, you will almost certainly be required to pay overtime rates for all hours worked over and above the 38 hour maximum each week.

Also remember that employees have a right to refuse your request for additional hours if your request is unreasonable, or your employee’s refusal is itself reasonable in the circumstances.

  1. What is the Fair Work Information Statement

The Fair Work Information Statement is a document published by the Commonwealth Government which must be given to all employees engaged after 1 January 2010.

This Statement contains information about the key elements of the new Fair Work system, such as the role of the Fair Work Commission and the Fair Work Ombudsman (FWO), the NES, Modern awards, Enterprise Agreements making and Freedom of Association (the right of an employee to join, or not join, a trade union).

The Fair Work Information Statement also contains information about Individual Flexibility Arrangements (IFAs), employee records and privacy and termination of employment rights.

You can download this document from your Workforce Guardian from ADP subscription service, and you can also store signed and dated copies in the employee’s online employee file for safe-keeping. Employers who fail to issue the Fair Work Information Statement can face penalties of up to $51,000!

  1. When Does an Employee Begin Accruing Paid Leave?

All employees – apart from casuals – begin accruing paid annual leave and paid personal/carer’s leave from their very first day of employment.

Note that leave accrues gradually throughout each year of service, and should not be granted to the employee as a ‘lump-sum’ either at the beginning or end of each year of employment.

Unused annual leave (and leave loading, if applicable) needs to be paid out at the end of an employee’s employment. In contrast, unused personal/carer’s leave is not generally paid out.

  1. Are Casuals Entitled to Unpaid Parental Leave?

Yes, provided the employee has completed 12 months of employment prior to the child’s birth or adoption, and the employee has been working ‘regular and systematic hours’ and has a ‘reasonable expectation’ of ongoing employment.

  1. When Can an Employee Take Personal Leave?

An employee may take personal leave when:
a) They are ill or injured, and
b) They are unfit for work

Note that this means an employee does not have an entitlement to take paid personal leave if their appointment is a ‘routine check-up’ or ‘pre-operative appointment’ because they are otherwise ‘fit for work’ at the time.

In these circumstances we recommend providing the employee with access to their annual leave or leave without pay.

We trust these responses are helpful, and that you’ll join us for our future webinars.


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TAGS: Fairwork HR Human resources