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From the 1st of January 2010, the second round of significant changes under the Fair Work Act come into play. Many of these 10 standards are simply a restatement of conditions of employment that employers will be familiar with; others however, introduce new minimum standards that will be new to most employers.
These standards and the Fair Work Act apply to all businesses in Victoria, the A.C.T. and the Northern Territory and businesses who classify as a national system employer defined as an incorporated entity such as a trading Pty Ltd – which is the vast majority of businesses operating in Australia.
Conditions set out in Awards and Agreements will override those contained in the National Employment standards if they are more generous that the standard. This is referred to as the Better Off Overall Test (BOOT). Detailed below is a brief synopsis of the 10 standards.
1. Maximum Weekly Hours
The maximum number of “ordinary hours” that an employee may work in any given week is set at a maximum of 38. An employee may still be required or requested to work “reasonable additional hours”, however the employee can refuse to work these hours if they are “unreasonable”. The issue of reasonableness should be assessed on all factors surrounding the request. Ordinary hours may also be subject to Award or Agreements relevant to certain industries. This standard also allows for the “averaging of hours” worked over a period of 26 weeks to account for any significant fluctuations in the hours an employee works from week to week.
2. Requests for Flexible Working Arrangements
This standard allows employees with certain carer responsibilities to request flexible working arrangements to assist in their carer responsibilities. Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
To be eligible for a request the employee must:
• Be a parent or have responsibility for a child who is under school age or is under 18 and has a disability.
• Have completed at least 12 months of continuous service with the employer immediately before making the request or
• For a casual employee – the employee is o A long term casual employee of the employer immediately before making the request and o Has a reasonable expectation of continuing employment on a regular and systematic basis. Requests must be made in writing, and responded to in writing within 21 days. Requests can only be refused on reasonable business grounds and the onus is on the employer to demonstrate that they have undertaken a fair and considered assessment.
3. Parental Leave and Related Entitlements
This standard allows eligible employees to request up to 24 month unpaid leave in relation to the birth or adoption of a child. To be eligible the employee must have 12 months of continuous service. This is an extension on the common 12 months leave and partners may share in the 24 months across separate organizations.
4. Annual Leave
This remains at the standard minimum of 4 weeks per year of service. Shift workers are entitled to 5 weeks per year of service. This standard also allows for the cashing out of leave subject to Awards and Agreements.
5. Personal/Carer’s Leave and Compassionate Leave
All employees, except casuals, are entitled to a minimum of 10 paid personal/carer’s leave days per year. Employees are also entitled to two days of unpaid personal/carers leave and two days of paid compassionate leave per occasion. Again, cashing out may be permitted under Agreements or Awards.
6. Community Service Leave
The standard provides that employees are entitled to take up to 10 days of paid leave per year to perform jury service and unlimited, unpaid leave to perform emergency management activities e.g. SES, CFA.
7. Long Service Leave
The Commonwealth Government is working with the State and Territory Governments to establish a uniform national long service leave entitlement. Until this is completed, existing entitlements under State law will continue to apply.
8. Public Holidays
The standard confirms that all employees are entitled to eight paid public holidays per year on those days traditionally recognized as holidays:
New Years Day – 1st January
Australia Day – 26th January
Good Friday
Easter Monday
Anzac Day – 25 April
Queen’s Birthday Holiday
Christmas Day – 25th December
Boxing Day - 26 December
State specified days such as Melbourne Cup Day are in addition to these entitlements.
9. Notice of Termination and Redundancy Pay
This standard requires employers to provide an employee with written notice on the day of termination. Depending on the years of service, different levels of termination pay is required and is centred on the concept of period of notice.
The standard also required that if employees are made redundant, they be provided with redundancy payments based on years of service. This does not apply if the employer has less than 15 full time equivalent employees.
10. Fair Work Information Statement
All new employees must be given a copy of the Commonwealth Government’s Fair Work Information Statement by their employer prior to commencing employment or as soon as practicable after they begin work.
It should also be noted that the Fair Work Act places significant emphasis on record keeping and unfair dismissals.
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