IR Q&A Issue 8

Posted 20 December 2018

IR Q&A Issue 8

Q: What are the National Employment Standards and can I contract out of them? 

A: The National Employment Standards (NES) are provided for in Part 2-2 of the Fair Work Act 2009 (Cth). The NES sets out the minimum conditions of employment for all workers in Australia.

 

Summary of the minimum National Employment Standards (NES)

 1. A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional hours;

 2. A right to request flexible working arrangements to care for a child under school age, or a child under the age of 18 with a disability;

 3. Parental and adoption leave of 12 months (unpaid), with a right to request an additional 12 months;

 4. Four weeks’ paid annual leave each year plus an additional week for certain shift workers (pro-rata for part-time employees);

 5. Ten days paid personal/carer’s leave each year (pro-rata for part-time employees), two days of paid compassionate leave for each permissible occasion, two days of unpaid carer’s leave for each permissible occasion and five days of unpaid family and domestic leave (in a 12 month period);

 6. Community service leave for jury service or activities dealing with certain emergencies or natural disasters.  This leave is unpaid except for jury service which is paid for up to 10 days;

 7. Long Service Leave;

 8. A paid day off for public holidays, except where reasonably required to work;

 9. Notice of termination and redundancy pay;

 10. The right for new employees to receive a copy of the Fair Work Information Statement.

 Casual employees only get the following NES entitlements:

  • Unpaid carer’s leave
  • Unpaid compassionate leave
  • Unpaid family and domestic violence leave
  • Community service leave
  • The Fair Work Information Statement

Source: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards

 

You cannot contract out of your obligations under the NES although you might choose to provide other beneficial conditions of employment, such as 6 weeks’ of paid annual leave entitlements instead of 4!

 

Q: I’ve got a few casuals that work with us currently but I have heard that I will need to give them the right to convert to full-time.  Is this true?

A: In short, yes there is now an entitlement for a casual worker, who has been engaged on a regular and systematic basis for a minimum of 12 months, to elect to request to convert to a permanent role (e.g. full-time or part-time).  Employers under a majority of the Modern Awards will now have to provide any eligible casual with a copy of the clause in the applicable Award regarding the casual conversion by 1 January 2019 (or in the first 12 months of their employment if they commenced with you after 1 October 2018).

For some Awards though, the right to elect to covert from casual to a permanent position is not new.  For example, the casual conversion entitlement has been in the Building and Construction General On-Site Award 2010 for quite some time.

My advice would be to consult the Award that applies to your workers and to determine whether your casuals are eligible to convert.  The casual conversion clauses may differ slightly between Awards, as might the process of consulting with eligible employees, notice period requirements, processes for conversion and reasons for refusal. 

 

Q: Are there penalties if I refuse entry to a permit holder?

A: Yes – and the penalties are quite significant!  

An entry permit holder is able to enter your workplace for specified purposes, such as investigating a suspected breach of the Fair Work Act 2009 (Cth) or a breach of the Work, Health and Safety Act 2011 (ACT).

There are certain things that they must do to exercise their right of entry powers, such as showing their entry permit, being entitled to represent workers at the workplace and by providing the required notice.  If the entry permit holder has not done what is required, you may have grounds to refuse access to your workplace.

Where you hinder or obstruct an entry permit holder exercising their right of entry powers, you might be breaching your obligations under the legislation and face penalties for doing so.  This might be where you refuse or unduly delay entry, refuse or fail to comply with a lawful request to provide access to records or documents, intentionally hinder or obstruct a permit holder from exercising their right to enter. 

If you have an Apple phone, make sure you download the Right of Entry app.  We are currently working on the Android version and hope to have this available shortly.

 

If you have any queries or would like to ask a question, please contact me on 6175 5919 or email kburt@mba.org.au

 

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