Major Changes Introduced by the National Employment Standard (NES)
You are here:In this section, we look at the major aspects of the NES - the National Employment Standard which replaces the Australian Fair Pay and Conditions Standard introduced by Work Choices.
The new National Employment Standards (NES) - the Major Changes
STOP PRESS - under the proposed transitional arrangements released to Parliament by the Deputy Prime Minister on 19 March 2009, instruments entered into prior to the Fair Work Act coming into effect will need to meet the minimum standards imposed by the NES, as well as the minimum wages under modern awards.
The new National Employment Standards (NES) are generally much the same as the Australian Fair Pay and Conditions Standard introduced by Work Choices. However, there are a few key differences which we identify below -
- Parental Leave - a parent employee will now have the right to request up to an extra 12 months of unpaid parental leave. This can only be refused on 'reasonable business grounds' and must give written reasons within 21 days.
There is also a new obligation on the employer to consult with an employee on parental leave if the employer makes a decision that will significantly affect the employee's pre-parental leave position. - Flexible Work for Parents - this is a new entitlement. Employees (subject to qualifying criteria similar to those for parental leave) may request a change in working arrangements if a parent or carer of a child under school-age.
The request must be in writing and as for extending parental leave beyond 12 months, written reasons must be provided within 21 days if refused by the employer.
Comment - it appears the employer's decision not to grant flexible work for parents or to extend parental leave isn't reviewable, as long as the reasons are given in writing and are 'reasonable'. At the very least, it creates a moral obligation for the employer to come up with solid reasons why the request isn't reasonable.
However, we believe an employer's response could eventually be used to support an employee's claim for discriminatory conduct by an employer who refuses an employee's request.
- Community Service Leave - although not necessarily a new condition, this was not previously part of the Australian Fair Pay and Conditions Standard and is highly topical given the Victorian bushfires. Employees are entitled to time off for eligible community service activities, such as fire-fighting, civil defence and rescue activities with recognised organisations. There is also a new entitlement to paid jury service of up to 10 days for non-casual employees.
- Redundancy Pay - this is a significant new national standard for employers with more than 15 employees, particularly for non-award employees such as most management workers. In the absence of comapny redundancy policies, many of these management employees had no right to redundancy pay.
The redundancy standard under the NES is the existing Federal award redundancy standard. - Fair Work Information Statement - similar in function to the defunct Work Choice Information Statement, this statement needs to be given to all new employees and provides general information about the NES, modern awards, agreement making, freedom of association and the role of various government bodies such as Fair Work Australia and the Fair Work Ombudsman.
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