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Employment entitlements under the National Employment Standards

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Employment entitlements under the National Employment Standards

The Fair Work Act National Employment Standards provide minimum employment standards which must be applied to all employees and employment contracts. These standards govern how employment law is applied to the relevant areas.  The entitlements cannot be contracted out of an employment contract.

The National Employment Standards 10 minimum standards:

1. Maximum weekly hours
2. Requests for flexible working arrangements
3. Offers and requests to convert from casual to permanent employment
4. Parental leave and related entitlements
5. Annual leave
6. Personal carers leave and compassionate leave and unpaid family and domestic violence leave
7. Community service leave
8. Long service leave
9. Public holidays
10. Notice of termination and redundancy pay
11. Fair Work Information Statement and Casual Employment Information Statement

Who does the National Employment Standards apply to?

The National Employment Standards apply to all employees regardless of the award or employment contract.

Casual employees are entitled to the following National Employment Standards:

1. Offers and requests to convert from casual to permanent employment
2. Unpaid carer’s leave
3. Unpaid compassionate leave
4. Unpaid family and domestic violence leave
5. Unpaid community service leave
6. Fair Work Information Statement and the Casual Employment Information Statement

Further entitlements can apply to a casual employee who has been employed regularly for at least 12 months and there is an expectation of ongoing work.

Maximum weekly hours

The standard provides a full-time employee must not be requested or required to work more than 38 hours per week, unless the additional hours are reasonable. An employee is entitled to refuse to work additional hours that are unreasonable.

The National Employment Standards offer a range of circumstances that can be considered in determining whether additional hours are unreasonable. Some of circumstances include:

• any risk to employee health and safety
• the employee’s personal circumstances
• the needs of the workplace or enterprise
• notice given by the employer to work the additional hours
• notice given by the employee refusing additional hours
• the usual patterns of the industry
• the nature of the role and the level of responsibility

Requests for flexible working arrangements

An employee may make a request to their employer to change their working arrangements. An employee can only refuse the request on reasonable business grounds.

The following scenarios give rise for an employee to request a change in their working arrangements:

• the employee is a parent, or has responsibility for the care, of a child who is school age or younger
• the employee is considered a carer under the Carer Recognition Act 2010 (Cth)
• the employee has a disability
• the employee is 55 or older
• the employee is experiencing violence from a family member, or is providing care or support to a family member who is experiencing violence from their family

An employee may request various changes in working arrangements such as a reduction in hours, changes to start and finish times, job sharing and working from home.

Who can make a request?

Employees must have completed at least 12 months of continuous work for the employer immediately before making the request. A casual employee will be entitled to make a request if they have been employed regularly for at least 12 months and there is a reasonable expectation of ongoing work.

Making the request

The request to an employer must be made in writing and include the details of the change being sought and the reason why. The employer must give the employee a written response to the request within 21 days that states whether they grant or refuse the request. If the employer refuses the request they must provide reasons for the refusal.

The following are examples of reasonable grounds for refusal under the NES:

• requested working arrangements are too costly
• no capacity to fulfil the change
• impractical to accommodate the change
• the change would likely result in a significant loss of efficiency or productivity

What if the request is refused?

If the employer and employee do not agree on a requested change the National Employment Standards encourage the parties to come to a compromise and reach an agreement on a change that satisfies both their needs.

If an employer unfairly refuses to grant the employee’s request, the employee may be able to bring an action under relevant discrimination legislation or under the Fair Work Act 2009 general protection or discrimination provisions.

Aitken Whyte Lawyers – Brisbane Solicitors

Contractual documents

Aitken Whyte Lawyers can assist you in clarifying the terms of employment by drafting appropriate employment or other contractual documents. We will write your agreements or employment contracts so that the terms between the parties are clearly set out and to minimise the risk of there being a dispute about what they mean.

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