Recently the Government announced details of the long
awaited safety net for Australian workers known as the National
Employment Standard. The new Standard, which expands on the
Australian Fair Pay and Conditions Standard introduced by the
Howard Government and contains 10 minimum employment standards
which will form the basis upon which modern awards will be
The Standard takes effect from 1 January 2010. In the
interim the Australian Fair Pay and Condition Standard will
continue to apply.
The new standards govern maximum weekly hours of work,
requests for flexible working arrangements, termination, public
holiday and redundancy arrangements and parental, carers,
annual, community service and long service leave. The terms and
conditions of employees who fall under the federal system must
meet the Standard.
The Government is promoting the new Standard as simpler than
the former Standard, while providing stronger core conditions.
The Standard does not contain the level of detail provided in
the previous document.
There are numerous changes. For example, certain employee
entitlements in relation to parental leave removed by Work
Choices have now returned: the Standard reintroduces the
ability of an employee to request a second year of unpaid
leave; and provides that employees may request flexible working
arrangements to care for children under school age, such a
request may only be refused by the employer on reasonable
Even where no obvious differences between the two Standards
are apparent, there are subtle differences which may have
implications for employers. An example is with respect to the
respective sections dealing with maximum weekly hours. Under
the former Standard an employee could not be requested or
required to work more than 38 hours per week and
"additional reasonable hours". The new Standard,
however, provides that an employee's hours of work must
not exceed 38 hours, and although the employer may request the
employee to work additional hours, the Standard specifically
provides that the request may be refused by the employee if the
additional hours are unreasonable.
Jury service, redundancy pay and long service leave is also
now regulated by the federal system and appears and is covered
in the Standard.
Notably, employers will also have to provide a Fair Work
Information Statement to new employees.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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