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Terms in this set (12)
What are the 10 National Employment Standards?
The 10 minimum entitlements of the NES are:
Maximum weekly hours
Requests for flexible working arrangements
Parental leave and related entitlements
Personal/carer's leave, compassionate leave and unpaid family and domestic violence leave
Community service leave
Long service leave
Notice of termination and redundancy pay
Fair Work Information Statement
Casual employees on the NES
Casual employees and the NES
Casual employees only get NES entitlements relating to:
unpaid carer's leave
unpaid compassionate leave
unpaid family and domestic violence leave
community service leave
the Fair Work Information Statement.
In some states and territories long serving casuals are eligible for long service leave.
Casual employees after 12 months
Where there is an expectation of ongoing work for a casual and the casual has been employed regularly and systematically for at least 12 months, they have extra entitlements under the NES.
the right to request for flexible working arrangements
access to parental leave.
What are the maximum weekly hours of work?
An employer must not request or require an employee to work more than the following hours of work in a week, unless the additional hours are reasonable:
for a full-time employee, 38 hours or
for an employee other than a full-time employee, the lesser of:
the employee's ordinary hours of work in a week.
What factors determine whether additional hours are reasonable?
In determining whether additional hours are reasonable or unreasonable, the following must be taken into account:
- any risk to employee health and safety
- the employee's personal circumstances, including family responsibilities
- the needs of the workplace or enterprise
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of ) working additional hours
- any notice given by the employer to work the additional hours
- any notice given by the employee of his or her intention to refuse to work the additional hours
the usual patterns of work in the industry
the nature of the employee's role and the employee's level of responsibility
- whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee
any other relevant matter.
There is no requirement for an employer and employee to enter into an averaging arrangement.
Under the general workplace protections provisions of the Fair Work Act 2009, it is unlawful for an employer to force (or try to force) an employee to make (or not make) an averaging arrangement.
Where identified, the Fair Work Ombudsman can initiate legal action against the employer.
For more information on general protections, please see our Protections at work fact sheet.
What terms must be included in an enterprise agreement?
An enterprise agreement is an agreement about permitted matters which are:
terms about the relationship between each employer and the employees covered by the agreement
terms about the relationship between each employer and any employee organisations (e.g. a trade union) who will be covered by the agreement
deductions from wages for any purpose authorised by an employee covered by the agreement
how the agreement will operate.
An enterprise agreement must contain the following terms:
1. nominal expiry date for the agreement which is no longer than four years from the date the Fair Work Commission approves the agreement
2. dispute settlement procedure, which must authorise either the Fair Work Commission or someone else that is independent of those covered by the agreement to settle disputes about any matters under the agreement in relation to terms of a modern award or the National Employment Standards ('NES')
3. a flexibility term that allows for the making of individual flexibility arrangements (IFAs) for the purpose of meeting the genuine needs of the employer and employees. These are arrangements between an employer and an individual employee that vary the operation of the enterprise agreement in relation to the employee (see What is an Individual Flexibility Arrangement? below)
4. a consultation term, which requires the employer to consult their employees about any major workplace changes that are likely to have a significant effect on them and allows the employees to have representation in that consultation. If there is no such consultation term, the model consultation term will apply.
What can't be included in an enterprise agreement?
An enterprise agreement cannot include any unlawful content.
1. A discriminatory term
2. an objectionable term (which are terms that require or allow payment of a bargaining services fee, or a contravention of the general protections provisions of the Fair Work Act 2009)
3. A term that confers an entitlement or remedy in relation to unfair dismissal before the employee has completed the minimum employment period
a term that excludes, or modifies, the application of unfair dismissal provisions in a way that is detrimental to, or in relation to, a person
4. a term that is inconsistent with the industrial action provisions
5. A term that provides for an entitlement to right of entry
6. a term that allows for the exercise of any State or Territory OHS legislative right of entry in a manner different to the rights set out in the right of entry provisions of the Fair Work Act 2009.
7. The Fair Work Commission will review enterprise agreements for any unlawful content. The Fair Work Commission cannot approve an enterprise agreement that contains unlawful content.
Terms in an enterprise agreement, transitional instruments (award or agreement-based), and modern awards cannot exclude the NES, and those that do will have no effect.
An employer must notify their employees of the right to be represented by a bargaining representative during the bargaining of an enterprise agreement (other than a greenfields agreement) as soon as possible, and not later than 14 days after the notification time for the agreement (usually the start of bargaining)
Who can be a bargaining representative?
1. an employer that will be covered by the agreement
2: a trade union who has a member that would be covered by the agreement (unless the member has specified in writing that he or she does not wish to be represented by the trade union, or has appointed someone else)
3. A trade union who is entitled to represent one or more employees who will be covered by a greenfields agreement
a trade union that has applied to the Fair Work Commission for a low paid authorisation that relates to the agreement
4. A person specified in writing as their bargaining representative by either an employer or employee who would be covered by the agreement.
What are the requirements of good faith bargaining?
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