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National Employment Standard (NES): Commonly Asked Questions (Part 2)

Posted by: on 8 May 2015 in Compliance

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May 8 – by David Bates 

Our most recent ADP/Workforce Guardian webinar focussing on the last 5 of the ten National Employment Standards (NES) once again proved very popular. In response to the follow-up enquiries we’ve received, we’re pleased to present answers to your most frequently asked questions:

  1. Do Casuals Accrue Long Service Leave? 

Yes. Currently, long service leave entitlements generally remain governed by state and territory-based laws. These laws do allow for the accrual of long service leave by casuals. While each state and territory’s laws are slightly different, the general rule of thumb is that once a casual has completed 10 years’ continuous service with an employer, they’ll become entitled to take long service leave.

  1. What’s Emergency Management Activity Leave? 

This is one of the two types of leave available to employees under the broader heading of ‘Community Service Leave’ (the other is Jury Service Leave). Emergency Management Activity Leave provides employees with the option to take reasonable periods of unpaid leave to perform – as the name suggests – emergency management activities. Examples include service with the Red Cross, Country Fire Authority, and even the RSPCA. In order to take leave, the employee must be a volunteer with a recognised emergency management organisation. Employees are required to let their employer know they want to take leave, and provide an estimated date of return to work. Employers are entitled to ask the employee for evidence to support their leave request, such as a letter from the relevant emergency management organisation.

  1. Do All Employees Get Paid for Public Holidays?

No, there are rules which decide whether an employee is entitled to be paid for public holidays. There are also different rules depending on whether the employee actually worked on the public holiday in question. The starting point is to determine if the employee is covered by a Modern Award. This is because many Modern Awards impose industry or occupation-specific rules around taking – and being paid for – public holidays. Be sure to always check applicable Modern Awards very carefully. When it comes to payment for public holidays that are not worked by an employee, the general rule is that part-time employees are only entitled to payment if they would normally have worked on the day in question.

  1. Do I Always Have to Provide Notice if I Dismiss an Employee?

In most cases, yes, notice will be required. However, there are some exceptions to this general rule. Notice does not need to be given if the employee is:
• on a fixed-term contract that has reached its expiry date, or
• a casual, or
• being dismissed for engaging in serious misconduct, such as theft or violence

It’s important to note that casuals are, however, protected from ‘unfair dismissal’ if they have completed the applicable minimum employment period (6 or 12 months depending on the size of the employer’s business), and they had worked regular and systematic hours with a reasonable expectation of ongoing employment.

  1. How Much Notice Do I Need to Give?

The amount of notice that needs to be provided to eligible employees is based on their period of continuous service, and is as follows:

Period of Continuous Service

Notice

Not more than one year

1 week

More than one year but not more than 3 years

2 weeks

More than 3 years but not more than 5 years

3 weeks

More  than 5 years

4 weeks

Importantly, an employee who has completed two years’ service and who is aged over 45 is entitled to receive an additional weeks’ notice.

 

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