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The FW Act creates National Employment Standards (NES) which took effect from 1 January 2010. The NES are statutory terms and conditions of employment and apply to all employees in the national system (defined in section 13 of the FW act), including management employees. They are enforceable by statute and cannot be displaced by awards, enterprise agreements orcommon law contracts, unless specifically provided for in the FW Act.

Sections 61 to 125 of the FW Act detail the NES. In summary the NES are:

  • a maximum of 38 hours per week, subject to additional hours if reasonable and the averaging of hours over a period of time (ss62-4);
  • the right to request flexible working arrangements for an employee who has caring responsibilities for a child. The employer must respond in writing and can only refuse on reasonable business grounds (s65);
  • parental leave and related entitlements of, amongst other things, 12 months unpaid parental leave to care for a child (ss67-85);
  • annual leave of four weeks accrued for each year of service or five weeks for shift workers, as defined (ss86-94);
  • personal/carer's leave of 10 days paid per year with the possibility of further unpaid days in defined circumstances. Compassionate leave of two days per year in defined circumstances (ss95-107);
  • community service leave for an employee to undertake a defined type of community service, such as volunteering for a fire fighting body, in defined circumstances (ss108-112);
  • long service leave as provided by a pre-reform award, unless excluded by an enterprise agreement, and if there is no Federal Award entitlement, long service leave legislation will apply (s113);
  • the entitlement to be absent from work on the public holidays specified in the FW Act, unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing (ss114-6);
  • notice of termination or pay in lieu according to Table 1 (below);
  • redundancy pay if the employee's employment is terminated:
    at the employer's initiative because the employer no longer wants the job of the employee done by anyone, except where this is due to the ordinary and customary turnover of labour; or
    because of the insolvency or bankruptcy of the employer. 
    Redundancy pay periods are calculated as shown in Table 2, below (ss117-123); and
  • a fair work information statement to be provided by an employer to each of their employees (ss124-5).                    
TABLE 1
Employee's period of continuous service with the employer
  at the end of the day the 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 than 5 years 3 weeks
   More than 5 years 4 weeks

 Note: The period of notice is increased by one week if the employee is over 45 years old and has completed at least two years of continuous service with the employer.

TABLE 2
Employee's period of continuous service
with the employer on termination
Redundancy Pay Period
   At least 1 year but less than 2 years 4 weeks
   At least 2 years but les than 3 years 6 weeks
   At least 3 years but less than 4 years 7 weeks
   At least 4 years but less than 5 years 8 weeks
   At least 5 years but less than 6 years 10 weeks
   At least 6 years but less than 7 years 11 weeks
   At least 7 years but less than 8 years 13 weeks
   At least 8 years but less than 9 years 14 weeks
   At least 9 years but less than 10 years 16 weeks
   At least 10 years 12 weeks

 

 

 

 

 

 

 

 

 

 

 

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