Draft National Employment Standards - up for discussion


Draft National Employment Standards - up for discussion

The Federal Government has released its draft National Employment Standards (NES) for comment. The proposed draft Standards are annotated here.


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[Dick Grozier, Director of Industrial Relations, Australian Business Industrial, looks at the recently released draft National Employment Standards.]

The Federal Government has released its draft National Employment Standards (NES) for comment. The proposed draft Standards are annotated here.

The finalised Standards are intended to apply to all employees in the private sector.

The Government is set to legislate the finalised form of the Standards in mid-2008.

The Standards will not come into effect until the full introduction of the new national system - around 1 January 2010.

The Standards are intended to provide guaranteed basic conditions, and will apply in addition to any award provisions that might apply.

Awards, agreements or contracts of employment will not be able to exclude or modify Standards in a way that undermines their safety-net function.

Awards may build on and provide additional industry specific detail about one or more of the Standards.

Importantly, although the Standards will not take effect until about 2010, they are being finalised now, and when they come into effect they will significantly determine terms and conditions that private sector employers will have to apply.

The proposed Standards

There are 10 proposed Standards (NES), which are briefly outlined below. A copy of the discussion paper and draft NES is available from here. (The draft NES are found after p 58 of the discussion paper (at pp i–xxi).) You should try to find time to assess their impact on your business.

Here are the 10 proposed Standards:

  1. Hours of work (38 hrs/week + reasonable additional hours; seven factors to be considered for reasonableness; an average 38 hour/week cycle can be provided by an award).
  2. Flexible work for parents (employee with a pre-school age child may apply in writing for changed working arrangements; employer may only refuse in writing on 'reasonable business grounds' ).
  3. Parental leave (12 months unpaid leave + right for employee's spouse to also take 12 months unpaid leave (up to 24 months in total) or the right for one employee to request up to an additional 12 months - employer may only refuse additional 12 months on 'reasonable business grounds'; paid leave where pregnant employee unable to be transferred to safe job if required; consultation with employee on parental leave about changes in the workplace affecting him or her).
  4. Annual leave (four weeks/year; award to define shift workers for entitlement to additional one week; employer cannot unreasonably refuse annual leave request; award may provide circumstances where employer may direct annual leave or for cashing out leave; public holidays, personal/carer's leave or community service leave while 'on holidays' do not count as annual leave).
  5. Personal/carers and compassionate leave (10 days/year personal/carers leave + two days unpaid carers leave per occasion if entitlement exhausted; no restriction on amount of paid carers leave in any period; two days/occasion paid compassionate leave; two days unpaid carer's or compassionate leave for casuals; evidence of purpose for leave to 'satisfy a reasonable person').
  6. Community service leave (jury service - base rate of pay make-up pay; unpaid leave for emergency service duties; community service leave covers time on duties + reasonable travel and recovery time).
  7. Long-service leave (work with States to develop common standard - existing standards in awards/NAPSAs or State legislation to apply as interim measure).
  8. Public Holidays (Christmas, Boxing, New Year and Australia Day, Good Friday, Easter Monday, Queens Birthday and Anzac Day, substitute days and State/locality days; reasonable right to refuse to work; seven factors to be considered for reasonableness).
  9. Notice of termination and redundancy pay (1–4 weeks notice + one week for employees over 45; employer must give employee written notice of the date of termination before termination - some exceptions; no notice requirements for employees wishing to terminate; 4–16 weeks severance pay for redundant employees of employers with 15+ employees).
  10. Fair Work Information Standard (standard information form about NES; modern awards; agreement making; freedom of association; role of Fair Work Australia to be given to all new employees).


Proposed National Employment Standards - an overview

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