From 1 January 2010, employees covered by federal law will have
minimum entitlements prescribed by the National Employment
Standards (NES). These entitlements cannot be modified or
The NES are minimum standards that apply to all Australian
employees covered by Federal law regardless of their industry or
occupation and will operate in addition to award provisions.
The NES can only be modified in certain limited circumstances,
such as through modern awards, which may include supplementary or
incidental provisions to clarify or expand the entitlements under
The key changes are:
Maximum weekly hours of work – the maximum weekly
hours of work will continue as 38 hours per week, plus reasonable
additional hours. Unlike the Australian Fair Pay & Conditions
Standard, the NES do not allow an employer and employee to agree on
an applicable averaging period (although an averaging period may be
specified in an award).
Flexible working arrangements for parents – after 12
months' continuous service, employees caring for children under
school age may request flexible working arrangements. Employers may
refuse only on reasonable business grounds and must set out those
grounds in a written response to the employee.
Parental leave – after 12 months' continuous
service, employees will continue to be entitled to 12 months'
unpaid parental leave and can request an extension of up to another
12 months' leave. The employer may refuse this request only on
reasonable business grounds.
Cashing out leave – the ability to cash out leave is
a matter that can be dealt with in modern awards only.
Community service leave – employees engaging in
community service activities, including jury service and voluntary
emergency management activities, can take reasonable leave for the
period of those activities, plus reasonable travel and rest
Notice of termination and redundancy pay – the NES
will introduce severance pay (to a maximum of 16 weeks' pay)
for employees made redundant, except in small businesses (fewer
than 15 full-time equivalent employees) or for probationary or
Fair Work Information Statement – employers will be
required to give employees a statement (to be published by Fair
Work Australia) either before, or as soon as practicable after,
commencement of employment.
The NES also provide protection for annual leave, long service
leave and personal/carer's leave.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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