Flexible work shock

Annual leave

As is currently the case, the NES says employees are entitled to four weeks of annual leave, although there is a little wrinkle – employees who fall under the definition of shift workers get an additional week of annual leave for every year of service with their employer.

Leave periods must be agreed to be the employer and employee and the employer “must not unreasonably refuse to agree to a request”.

Personal/carer’s leave and compassionate leave

One area where there is little change. Employees will be entitled to 10 days personal/carer’s leave when they can’t come to work because of illness or injury, or when a member of their “immediate family or household” is either injured, ill or has an “unexpected emergency”. Further, an employee is entitled to two days’ unpaid carer’s leave occasion when a family member if ill or has an emergency.

Community service leave

These provisions cover jury duty and volunteers who are part of emergency management services (such as the State Emergency Service of Country Fire Authority). Employees must give their employer notice as soon as is practical, and except in the case of employees on jury duty, community service leave is unpaid. For jury duty, employees are entitled to their normal pay for the first 10 days of jury duty.

Long service leave

This is one area the NES is rather silent on. Rather than setting down specific rules, it refers employees to existing agreements, awards or workplace determinations. In other words, whatever you’ve got now probably stands.

Public holidays

As is currently the case, the NES sets out the standard public holidays that an employee is entitled to. An employer may request an employee to work on a public holiday, but this can be refused by an employee if it is unreasonable.

In determining if a request of a refusal or a request to work on a public holiday is unreasonable, the nature and role of the employers business, the role of the employee and the payment of compensation must all be considered.

Notice of termination and redundancy pay

Notice periods for termination have not changed under the NES, ranging from one weeks’ notice for employees who have been working for less than one year up to four weeks’ notice for workers with more than five years’ service. If the employer is over 45 years old and has been with you more than two years, you’ll need to add another weeks’ notice.

But the big change is around redundancy pay – for the first time, redundancy entitlements will be set down in law for any company with 15 or more employees. The redundancy provisions range from four weeks for an employee who has one year of continuous services through to 16 weeks for an employee with nine to 10 years’ service.

There are some exceptions to the redundancy pay provisions, including contract workers, contract workers, casual or seasonal employees and employees terminated for serious misconduct.

Kathryn Dent says the new redundancy provisions could hit small and medium sized businesses hard, particularly if they have not operated under an award.

“This actually creates an obligation that they didn’t have in the past. The imposition of a severance payment that has to be paid straight away could be quite significant.”

Provision of a Fair Work Information Statement

The final requirement under the NES is that all new employees are given a copy of the Fair Work Information Statement, which sets out “the 10 National Employment Standards, modern awards, agreement making, freedom of association and the role Fair Work Australia (FWA)”.

The statement can be downloaded here.

While the FWIS is only required to be distributed to new employees, Davies and McDonald from Sparke Helmore suggest distributing it to all employees in the New Year.