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National Employment Standards
From 1 January 2010, employers and employees in the national workplace system are covered by the National Employment Standards (NES).
Under the NES, employees have certain minimum conditions. Together with pay rates in modern awards (which also generally take effect from 1 January 2010) and minimum wage orders, the NES makes up the safety net that cannot be altered to the disadvantage of the employee.
The NES include minimum entitlements to leave, public holidays, notice of termination and redundancy pay.
In addition to the NES, generally an employee's terms and conditions of employment can come from a modern award, pre-modern award, agreement and/or state or federal laws.
The 10 National Employment Standards
(aka the Ten Commandments)
What are the National Employment Standards?
The National Employment Standards (or NES for short) is a set of 10 basic entitlements that were introduced by the Labor government's Fair Work Act 2009.
These 10 basic entitlements are considered the absolute minimum terms and conditions of employment, and they will override any term or clause that tries to set a standard that is inferior to them.
So without further ado, here is a list of the 10 National Employment Standards and a brief description of what they do.
1. 38 Maximum Hours of Work a Week
According to the National Employment Standards, no employee must work more than 38 hours a week.
Unfortunately, as good as this may sound, there are still ways that an employer can get around this against the employee's wish.
As a professional, it is likely that you will be asked to work more than 38 hours a week, but do you have the right to refuse these hours? Read our Reasonable Hours FAQ sheet for more information.
2. Right to Request Flexible Working conditions;
Every employee has the right to ask for flexible working conditions, be it in the form of different starting hours or reduced weekly hours. But is there a guarantee? Unfortunately not. More information can be found in the Flexible Working Conditions FAQ.
3. Unpaid Parental Leave
Every parent has the right to take unpaid parental leave for the birth or adoption of a child. There are intricate rules governing when the leave can be taken, how long, and how the employee can return to work.
There is also the option of applying for Paid Parental Leave from the Federal Government for the birth of a child. More on this can be found in our Parental Leave and the PPL Scheme FAQ.
4. Annual Leave
Annual leave, Recreational leave, Holiday leave... call it what you want, it's the thing that most employees look forward to in a working year.
As always, there are rules and regulations on how annual leave can be taken (and how you can be forced to take it) so have a read of our Annual Leave FAQ sheet for more information.
5. Personal Leave
Not just for sick days, personal leave includes other forms of leave such as carer's leave for caring for a loved one, or compassionate leave for saying goodbye.
It's not all doom and gloom (it almost is) but don't make it worse by getting caught out. Read our FAQ sheet for hints and tips on how to take personal leave properly.
6. Community Service Leave
Includes jury leave, defence leave and emergency services leave. Basically leave for you to go out and save the world, but don't leave home without first reading our FAQ sheet.
7. Long Service Leave
Once you've clocked over 10 years with an employer it's time to take an extended break.
Rules vary from State to State, and each and every State and Territory has its own Long Service Leave legislation - some have more than one!
Our FAQ sheet will help you understand what your entitlements are, and believe us when we say that there is a lot to digest here.
8. Public Holidays
The days that everybody looks forward to. Again, each State has their own idea about what constitutes a Public Holiday, so read our FAQ to find out when you should be breaking out the bubbly, and when you should save it...
9. Note of Termination and Redundancy Pay
Leaving your job is never easy, and the sheer number of rules around it makes doubly certain that there will be more than enough things for you to think about. Have a read of our FAQ to find out how to make parting a sweeter sorrow than it frequently isn't.
10. Fair Work Information Statements
The Government wants you to know your rights. We do too. The Government information sheets do a bit of that, but our FAQ's do way more. Have a read to find out what's what.
Who do they apply to?
The intention behind the National Employment Standards is to have a uniform set of standards that applies to every employee in Australia.
However, it's not that easy to rope every employee in given our previous industrial relations system(s). Previously, there were State based systems, and then there was the Federal based system. The Government tried to centralise everything with the Fair Work Act 2009 and it has worked to an extent, but not entirely.
To cut a long story short, you will be covered by the National Employment Standards if you are employed in the private sector (ie not a government authority) by an Australian constitutional corporation or sole trader (ie but not a trust, partnership etc).
It's even simpler for Victorians - EVERYONE is covered by the Federal Workplace system, so therefore everyone is covered by the NES.
Easy? Not really. Give us a call if you have any doubts and we can set you on the right path.
Can my employer set a condition below the National Employment Standard?
The short and simple answer is a resounding ‘No'.
The NES are a set of national minimum conditions, and you can't go below the minimum, right?
What can I do if my employer breaches a term of the National Employment Standard?
There may be a lot of things you can do, or there may be very little. Give us a call to find out.
We may be able to help you recover lost entitlements, enforce benefits, or even seek orders against a company for compensation. We may even be able to ask the Court to fine the company for bad behaviour.
In other words, easy as they appear to be to understand, there are lots of rules around the National Employment Standards, and if you have any doubts or questions whatsoever, you should definitely read our FAQ sheets and give us a call.