1. Minimum Working Conditions
The NES of the Fair Work Act constitute a safety net for employees within the federal system. The NES are designed to complement the key industrial instruments under the Fair Work Act – being modern awards and enterprise agreements. As well as legislating minimum standards, the NES allow many issues to be addressed in awards and agreements. Modern awards provide for minimum wages, which explains their absence from the NES.
2. Maximum Working Week
The NES provides for a 38-hour week and the notion of an employer’s right to request “reasonable additional hours”. Assessment of whether additional hours are “reasonable” involves factors, which include the employee’s remuneration, patterns of work in the industry, and the nature of the employee’s role.
Recent amendments to the NES expand the categories of employees who may request flexible work arrangements to include:
- employees who are parents, or have responsibility for the care of a child who is of school age or younger;
- employees who are parents, or have responsibility for the care of a child who is disabled;
- employees who are carers within the meaning of the Carers Recognition Act 2010 (Cth), such as carers of people with medical conditions, disabilities, mental illnesses or the elderly, with the exception of people who are acting as carers under contracts of service, as volunteers, or as part of an education requirement;
- employees who have a disability;
- employees who are aged 55 years or older; and
- employees who are experiencing family violence, or providing care or support to another member of their family/household who are experiencing family violence.
The NES entitles employees to be absent on certain public holidays. The NES preserves the right of an employer to make a reasonable request that an employee work on a holiday, as well as the employee’s right to refuse upon reasonable grounds. Under the NES, employees who would usually work on the public holiday are entitled to their base rate of pay for the hours ordinarily worked on that day or part of that day.
Notice of Termination and Redundancy Pay
Notice must be given in writing, on a date before that of the termination. Though minimum periods of notice to be given by the employer are set out in the legislation, modern awards and enterprise agreements may include terms specifying periods of notice to be given by the employer.
Fair Work Information Statement
The NES requires employers to provide their employees with the “Fair Work Information Statement” prepared by the FWO. The Statement includes information on such matters as right of entry, termination of employment and the NES themselves.
Modern Awards and Enterprise Agreements
Modern awards apply to most employees and employers in the federal workplace relations system. Each modern award covers an industry and/or occupation. Most employees, other than senior employees, who work in an award covered industry or occupation will be covered by that award.
4. Employer’s Obligation to Provide a Healthy and Safe Workplace
Historically, occupational, health and safety laws have largely been a matter for each State and Territory. This split created difficulties for governments, businesses and individuals due to differences between the jurisdictions.
Accordingly, there has been a move towards the national harmonisation of occupational health and safety laws. The harmonised laws impose a primary duty of care on persons conducting a business or undertaking, in relation to the work being performed in that business or undertaking. This obligation reaches beyond employers, to a wider group of legal entities and individuals.