NATIONAL EMPLOYMENT STANDARDS

Newsflash - 15 February 2008

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Following the release of the Workplace = Relations=20 Amendments (Transition to Forward with Fairness) = Bill=20 2008, on 14 February 2008 the Government = released=20 the Discussion Paper =96 National Employment Standards = Exposure=20 Draft. The Exposure Draft includes the = 10=20 National Employment Standards (the NES) which, = together=20 with the modernisation of Awards, will form an=20 enforceable safety net to protect fair minimum = wages and=20 conditions for working Australians.

The NES represent the key minimum = entitlements for=20 all employees which will be guaranteed in=20 legislation. In summary, the proposed NES = are:

1. Maximum weekly hours

The maximum weekly hours are 38 hours for = full-time=20 employees, subject to reasonable additional = working=20 hours. Unlike the Howard Government=92s = Australian=20 Fair Pay and Conditions Standard, the NES does = not=20 provide for the averaging of hours but the = proposed NES=20 expressly permit modern Awards to deal with = averaging of=20 hours arrangements.

2. Requests for flexible working=20 arrangements

An employee with a child under school age or = with=20 responsibility for the care of a child under = school age=20 may make a request in writing to the employer = for=20 flexible working arrangements and the employer = must=20 respond in writing to the request within 21 = days. =20 An employer may only refuse the request on = =91reasonable=20 business grounds=92.

3. Parental leave and related = entitlements

The proposed NES provides that each parent = (who is an=20 eligible employee) may be absent from work for = separate=20 periods of up to 12 months of unpaid parental = leave in=20 association with either the birth of a child to = an=20 employee or their spouse or the adoption of a = child=20 below school age. An employee who takes 12 = months=92=20 parental leave may also request additional leave = of up=20 to 12 months and the employer may only refuse on = reasonable business grounds.

4. Annual leave

An employee (other than a casual employee) is = entitled to 4 weeks of paid annual leave and a = shift=20 worker will be entitled to an additional week of = paid=20 annual leave.

5. Personal/carer=92s leave and = compassionate=20 leave

An employee (other than a casual employee) is = entitled to:

10 days of paid personal/carer=92s leave = for each=20 year of service;=20
2 days of paid compassionate leave per = occasion;=20
2 days of unpaid carer=92s leave per = occasion (if=20 paid carer=92s leave is exhausted).

A casual employee is entitled to:

2 days of unpaid compassionate leave per = occasion;=20 and=20
2 days of unpaid carer=92s leave per = occasion.=20

6. Community service leave

An employee is entitled to be absent from = work to=20 engage in prescribed community service = activities such=20 as jury service and emergency service = duties. In=20 relation to jury service leave, an employee = (other than=20 a casual employee) is entitled to =91make-up = pay=92 which is=20 the difference between what the employee = receives in=20 respect of jury service (not including any = expense=20 related allowances) and the employee=92s base = rate of pay=20 for their ordinary hours of work for the time = that the=20 employee is absent on jury leave.

7. Long=20 service leave

Until a = uniform=20 long service leave NES is developed, long = service leave=20 entitlements in pre-modernised awards, NAPSAs or = state=20 or territory laws will be preserved to ensure = they=20 cannot be bargained away.

8. Public=20 holidays

An = employee is=20 entitled to be absent from work on public = holidays and=20 is also entitled to be paid for his or her = ordinary=20 hours that would have normally been worked at = their base=20 rate of pay. An employer is permitted to=20 reasonably request an employee to work on a = public=20 holiday. An employee may refuse the = request if it=20 is not reasonable or if the employee=92s refusal = is=20 reasonable.

9. Notice of=20 termination and redundancy pay

An = employer must=20 provide the following minimum periods of notice = (or make=20 a payment in lieu of notice) to an employee on=20 termination of employment:

Employee's period of continuous = service=20 with the employer
at the end of the = day that=20 notice is given
Period

Not more than 1 year 1 week

More than 1 year but not more than 3 = years 2 weeks

More than 3 years but not more thatn 5=20 years 3 weeks

More than 5 years 4 weeks

The proposed redundancy pay NES provides that = an=20 employee is entitled to redundancy pay if the = employee=92s=20 employment is terminated at the initiative of = the=20 employer because the employer no longer requires = their=20 job to be done by anyone because of the = insolvency or=20 bankruptcy of the employer. However there = is no=20 entitlement to redundancy if the employee is = employed by=20 a business with fewer than 15 employees. = The=20 calculation of redundancy pay is based on an = employee=92s=20 period of continuous service in accordance with = the=20 following:

=

Employee's period of continuous=20 service with the employer
at the end = of the=20 day that notice is given Period

At least 1 year but less than 2 = years 4 weeks

At least 2 years but less = than 3=20 years 6 weeks

At least 3 years but less = than 4=20 years 7 weeks

At least 4 years but less = than 5=20 years 8 weeks

At least 5 years but less = than 6=20 years 10 weeks

At least 6 years but less = than 7=20 years 11 weeks

At least 7 years but less = than 8=20 years 13 weeks

At least 8 years but less = than 9=20 years 14 weeks

At least 9 years but less = than 10=20 years 16 weeks

At least 10 years 12 weeks

10. Fair Work=20 Information Statement

Am = employer will be=20 required to give each new employee the Fair Work = Information Statement which will contain = information=20 regarding the NES, modern Awards, agreement = making, the=20 right to freedom of association and the role of = Fair=20 Work Australia.

The Government is now seeking = comments and=20 submissions about the operation of the NES from=20 stakeholders and interested parties with a view = to the=20 finalised NES being included in the = Government=92s=20 substantive legislation to be introduced into = Parliament=20 later this year. The NES will commence = operation=20 on 1 January 2010.

If you have any questions regarding = the NES=20 or the Workplace Relations Amendments = (Transition to=20 Forward with Fairness) Bill 2008, please=20 contact:=20

Peta=20 Tumpey
Partner
Phone: 61 2 9228 = 9363
Peta_Tumpey@tresscox.com.au

Nicholas Duggal
Senior=20 Associate
Phone: 61 3 9602 9744
Nicholas_Duggal@tresscox.com.au

Sydney	+61 2 9228 9200
Melbourne	+61 3 9602 9444
Brisbane	+61 7 3004 = 3500

Member Firm for NSW and QLD.
Fin= d=20 out=20 = more