Minimum Entitlements of Employment

    The Bill creates a new system of industrial instruments that protect the minimum entitlements of employees and set the terms of their employment:
  • the Australian Fair Pay and Conditions Standards (AFPCS) will be replaced by the National Employment Standards (NES);
  • the current system of Federal awards, preserved awards, and notional agreements will be replaced by the Modern Award system;
  • Collective Agreements will be replaced by Enterprise Agreements; and
  • it is intended that common law contracts will be used after the phasing out of individual statutory agreements (AWA’s and ITEA’s).

National Employment Standards

The National Employment Standards are due to commence operation on 1 January 2010.

  1. Maximum Weekly Hours:

    Authorised leave and absence will be treated as hours worked.  The maximum remains at 38 hours per week plus reasonable additional hours.  In calculating the average hours of work for award/agreement free employees, the hours may be averaged over 26 weeks (compared to the current 52 weeks).
  2. Requests for Flexible Working Arrangements:

    Parents who had the responsibility for the care of a child under school age, who have completed 12 months continuous service, may make a written request for flexible working arrangements.

    The employer must respond to the request within 21 days, and may refuse the request only on reasonable business grounds (providing reasons). Disputes about this matter may be referred to FWA for advice and assistance.
  3. Parental Leave and Related Entitlements:

    Like the provisions under the current Act, employees will be entitled to 12 months unpaid parental leave, however the Bill permits employees to request an extension of their unpaid parental leave for up to 12 months, potentially doubling the current entitlement.

    The Bill also introduces concepts of: a “safe job”, which a pregnant female employee may request to be transferred to, and where no safe job exists, the employee will be entitled to “paid no safe job leave”, and also the ”employee couple” who may take up to 24 months’ parental leave (aggregated between them).
  4. Annual Leave:

    The current entitlement to four weeks of paid annual leave remains, with shift workers being entitled to five weeks paid annual leave.

    The Bill permits all employees to cash out annual leave, with agreement with their employer, provided they retain four weeks of annual leave entitlement after the cashing out. This replaces the requirement for such a request to be contained in a Workplace Agreement.
  5. Personal/Carer’s Leave and Compassionate Leave:

    Paid personal/carer’s leave may be cashed out provided there is a term in a modern award or enterprise agreement applicable to the employee which permits the cashing out, and provided that 15 days of paid leave remains after the cashing out.
  6. Community Service Leave:

    This includes jury service and voluntary emergency services.

    An employee who is on jury service is entitled to be paid by their employer their base rate of pay for their ordinary hours worked, for the first 10 days of absence.
  7. Long Service Leave:

    The Bill preserves the status quo in relation to long service leave, by drawing on current state and territory legislation and awards and agreements.  The Bill’s explanatory memoranda states that the Government is working with state and territory governments to develop nationally consistent long service leave entitlements, to be contained in the NES.
  8. Public holidays.

    Employers may make reasonable requests for employees to work on public holidays.
  9. Notice of Termination and Redundancy Pay:

    The Bill includes an entitlement to redundancy pay that is in accordance with the entitlements currently found in Federal awards.

    Redundancy pay may not be payable if the employer obtains “other acceptable employment” for the employee or cannot pay the amount, in which case the employer can apply to FWA to pay a lower amount of redundancy pay (which may be nil) that FWA considers appropriate.
  10. Fair Work Information Statement:

    The statement will be published by FWA and will contain information regarding the NES, modern awards, agreement making, freedom of association, the role of FWA, and the role of the Fair Work Ombudsman.

    The Fair Work Information Statement must be provided to each employee as soon as practicable after the employee starts employment.
  11. Miscellaneous

    The Bill states that an employee is not entitled to take or accrue any leave whilst the employee is absent from work receiving workers’ compensation benefits, unless the relevant workers’ compensation legislation permits the worker to do so.