- The National Employment Standards dictates the minimum entitlements small business owners need to provide for their employees.
- This covers maximum working hours, flexible work, leaves, public holidays, termination, and redundancy.
- Both employees and employers need to know their obligations and rights to avoid any issues.
As an employee, you should know that you are entitled to a minimum standard of entitlements. And as an employer, small business owners need to know their obligations and rights. These standards started from 1st January 2010 and are contained in the National Employment Standards. However, relevant contracts and awards may impact what the standards are for your job or role.
The National Employment Standards
The National Employment Standards was introduced in January 2010 and comprises of ten minimum employment standards and entitlements around:
- maximum weekly hours of work
- requests for flexible working arrangements
- parental leave and related entitlements
- annual leave
- personal and compassionate leave
- community service leave
- long service leave
- public holidays
- termination and redundancy pay
- provision of a Fair Work Information Sheet
These standards are geared towards permanent employees, both full time and part time, however, some of the standards also cover those employed on a casual basis.
1. 38-hour week standards
Maximum weekly working hours are currently set at 38 hours in accordance with the National Employment Standards. However, reasonable additional hours and overtime is also provided for. Reasonable is a subjective term and when determining whether additional hours are reasonable factors, they need to be considered including whether there is a risk to the employee’s health and safety, personal circumstances of the employee, notice provided, usual patterns of work in the industry, nature of the role and level of responsibility, whether the employee will be remunerated amongst other relevant matters.
2. Flexible working arrangement entitlements
The normal 9 am to 5 pm in the office is not always suitable or relevant, depending on the position, industry or personal circumstances. You may be eligible to request a flexible arrangement if you have completed a minimum of 12 months continuous service immediately prior to the request being made. This standard also covers casual employees if they have been employed on a regular and systematic basis for a period of at least 12 months and there is a reasonable expectation that the employment shall continue.
Grounds for requesting flexible arrangements may include having a disability, being a parent or carer, or experiencing family violence. The flexible working arrangements may include change of hours, change of work patterns or altering the location of work (i.e. from home or another location). It is important for you to consider the request and be reasonable with the terms.
The request should be put in writing to your employer, who then has 21 days to consider the request and provide a response including any grounds for refusal. The employer may refuse the request, only on reasonable grounds such as the proposal being too costly for the employer, having a significant impact on customer relations, a significant loss of efficiency, or simply, impracticality. For example, asking to work from home as a swim teacher, when you don’t have a pool, is simply impractical.
3. Parental leave & related entitlements
The National Employments Standards provides for parental leave along with related entitlements including unpaid special maternity leave, a right to transfer to a safe job or to ‘no safe job’ leave, consultation requirements, a guarantee to return to work as well as unpaid pre-adoption leave. These entitlements cover all employees provided they have completed at least 12 months continual service and, if a casual employee, that they would have a reasonable expectation of continuing employment on a regular and systematic basis.
Parental leave covers relationships whether married, de facto as well as same-sex relationships and offers cover for the birth of a child of the employee, employee’s spouse or de facto partner and for the placement of a child under the age of 16 with the employee for adoption. The standard for parental leave is 12 months unpaid, however a further 12 months may be requested and should not be rejected unless there are reasonable grounds to do so, including the effect on the business, the inability to manage current work as well as an inability to replace the employee for the period of time.
There are various other related entitlements to parental leave. In particular, an employee is guaranteed to return to work following an unpaid period of parental leave, entitling them to either their pre-parental leave position or if that position is no longer available, a position that is available and nearest in statutes and pay to the position previously. As an employer, you should ensure that any employee hired to fill a position of an employee on parental leave, is aware that the engagement is temporary and that the employee on leave has a guarantee to return to work when the unpaid leave concludes.
4. Annual leave entitlements
Annual leave, often referred to as holiday pay, allows an employee to be paid whilst having time off from work. An employee is generally entitled to 4 weeks annual leave based on their ordinary hours of work. However, shift workers may be entitled up to 5 weeks.
Many positions commence with a probationary period, and your leave entitlements begin accruing on the date you commence employment and that any entitlements in this regard will roll over from year to year. Leave will accumulate gradually whether at work or on paid leave but will not accrue on unpaid leave. Your employer may have regulations around the taking of annual leaves, but it is important to know that your request should not be denied unless upon reasonable grounds.
5. Personal & compassionate leave entitlements
As an employee you are also entitled to personal and compassionate leave, which includes sick and carer’s leave, compassionate or bereavement leave as well as family and domestic violence leave. These leave entitlements may be taken when it affects the employee or their immediate family (child, spouse, household member, parent, sibling or grandparent) but it also includes step-relations.
Compassionate and bereavement leave is provided for up to 2 days paid leave, however, this does not accrue, and further leave may be taken by agreement with the employer or alternatively, unpaid leave. There are similar provisions for family and domestic violence, however, up to 5 days is provided under this and it is unpaid leave unless otherwise agreed or provided for by your employer.
Sick and carer’s leave is provided for permanent full-time or part-time employees and the standard is ten days or pro-rata for part-time employees. Like annual leave, personal leave is accrued from the day you commence employment and rolls over year to year. You may be asked to provide evidence of the requirement for leave which may include a medical certificate but in some cases, a Statutory Declaration will generally also be acceptable. If you need to take extended sick leave, you may take up to 3 months (consecutively or in a 12-month period), and it can be paid, unpaid or a combination of both and you will generally be protected from dismissal.
6. Community service leave entitlements
Employees, both permanent and casual, are entitled to take community service leave for activities including jury duty or voluntary emergency management activities. Emergency management activities are activities involving natural disasters, that are undertaken on a voluntary basis and that the employee has been requested to engage. Groups such as State Emergency Services or Rural Fire Fighters would be considered as emergency management activities as well as civil defence groups, emergency disaster groups or even the RSPCA. An employee should give as much notice as possible, providing the period or expected period of leave required, though this may be after the fact.
Jury duty is generally a requirement of all Australian citizens over the age of 18. In certain circumstances, it may not be appropriate for you to partake or you may seek to be excused. If a permanent employee does attend jury duty, the employer should provide make up pay, being the difference between any jury duty payment the employee receives and their ordinary pay. The employer has reasonable grounds that evidence is provided of steps taken to obtain payment for your service along with a total amount paid, or payable, to the employee.
7. Long service leave entitlements
The National Employment Standards provide that employees are entitled to long service leave, but the details are state based. In Queensland, the long service leave entitlements, as a minimum, are provided for by Industrial Relations. Full-time employees are entitled to take 8.6667 weeks of paid leave after a period of 10 consecutive years’ service. An employee may be entitled to a possible pro-rata payment on termination or by leave by agreement with their employer.
Casual and regular part-time employees may also be entitled to long service leave after a period of 10 continuous years’ service. However, their entitlement would be based on their total number of ordinary hours worked. This may cause issues when an employee has had mixed employment, being casual, part time and/or full time. Therefore, it is vital that careful and thorough records are kept to ensure that any entitlements accrued are accurate.
8. Public holidays entitlements
Public holidays may vary state to state, or even between localities within a state. An employer may request that an employee work on a public holiday. Depending on the state and any award or agreement, the employee may decline to work or be entitled to remuneration or a day in lieu. Should you work on a regular roster system, the employer cannot reasonably amend your hours or schedule to prevent your hours falling on a public holiday.
A list of the regulated public holidays may be found at Fair Work's website
9. Notice of Termination
Whether the employment is terminated by the employee or the employer, there are notice periods. For dismissal, the person terminating the employment (whether employee or employer) will generally be required to give between 1 and 5 weeks’ notice depending on the length of employment and the age of the employee (an employee over the age of 45 is to be given a further week above the standard).
However, an award, contract or agreement may set out longer periods of time. The exception to this is when the employer is terminating the employment on the grounds of serious misconduct, in which case instant dismissal may occur or if the employee is employed on a casual basis. The employer is generally required to provide written notice with details of the last date of work.
An employer and employee may mutually agree to a lesser notice period or have the notice being paid out in lieu from the employee’s entitlements. If an employee fails to attend work in the notice period without leave, then the employer may be able to withhold paying out entitlements in lieu of that period. At the end of the employment, any annual and long service leave owing to the employee must be paid to them.
Should an employee believe that they have been unfairly dismissed, whether due to discrimination, a reason that is harsh, unjust or unreasonable or for another protected employee right, it is critical that they obtain advice as soon as possible as they have 21 days from the date they are dismissed to lodge an Application for Unfair Dismissal with the Fair Work Commission.
10. Fair Work Information Sheet
At the commencement of employment, you may be provided with an employment packet including a role description and a contract even though this is not a requirement. However, an employer is required to provide ALL new employees with a copy of the Fair Work Information Statement, which contains the information of the National Employment Standards. This statement may be provided in person, by mail, email, fax or a link to the relevant website.
Employment provides obligations on both the employer and the employee to ensure that everyone is aware of the National Employment Standards and that the standards are complied with along with awareness of relevant awards and agreements. In all employment matters, it is important to obtain advice early on whether from Industrial Relations, Fair Work, a relevant union or independent legal advice to ensure that all parties are aware of their options, rights and obligations and to attempt to resolve any concerns and issues.