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The Rudd government has released the final version of the National Employment Standards (NES) which will apply from January 2010 when the forward with fairness regime commences. The final draft has incorporated some of the changes suggested during the consultation process on the exposure draft NES released in February 2008 (see our February 2008 Employment Alert).

The NES sets minimum standards in relation to hours of work, requests for flexible work arrangements, parental leave, annual leave, personal/carer's leave and compassionate leave, community service leave, public holidays, long service leave, notice of termination and redundancy pay and requires employers to provide employees with a "Fair Work Information Statement".

The NES will apply to all Federal system employees from January 2010.

The final NES will be included in the Bill containing the Government's substantive legislative changes to the workplace relations system, due to be released later this year. In the meantime, the AIRC will use the NES in the award modernisation process.

Modern awards cannot exclude the NES, but may include provisions that are ancillary or incidental to the NES or provisions that supplement the NES, so long as they are not detrimental to an employee.

The interaction between the NES and workplace agreements and enterprise specific awards is expected to be dealt with in the main Bill later this year.

The final NES makes the following key changes to the exposure draft NES released earlier this year.

Maximum weekly hours

The list of relevant considerations in deciding whether a requirement or request to work more than the maximum weekly hours is reasonable, has been extended to include an employee's level of remuneration, role and responsibilities, the usual pattern of work in the industry and any averaging of hours of work in a modern award.

Further, in relation to part-time employees, the NES now provides that where an employee is not a full-time employee his or her maximum weekly hours will be the lesser of 38 hours and the employee's ordinary hours of work in a week.

Requests for flexible working arrangements

The right to request a flexible working arrangement now only arises once an employee has completed at least 12 months of continuous service with the employer. Casual employees must be engaged on a regular and systemic basis for at least 12 months prior to making a request and must have a reasonable expectation of continuing engagement on a regular and systemic basis.

Where an employer refuses a request for a flexible working arrangement, the NES now clarifies that the employer's reason must be included in the written response to the employee.

Parental leave

If a pregnant employee continues working during the 6 weeks prior to giving birth, the employer may require the employee to provide a medical certificate stating whether the employee is fit to work and, if the employee is fit to work, whether it is inadvisable for the employee to continue working in her present position.

The employer may require the employee to take unpaid parental leave if the employee does not provide a medical certificate as required, is not fit for work, or is not fit to work in her present position and no safe job is available.

The employer may now require a pregnant employee to provide a medical certificate as evidence of pregnancy or associated illness, miscarriage, or as evidence that the employee is not fit to continue working in her present position.

Employees may extend their parental leave on four weeks written notice if they have taken less than their available period of unpaid parental leave and may reduce their parental leave if the employer agrees.

The provisions in relation to parental leave have been amended to reflect that employees taking parental leave may be members of same sex couples.

Annual leave, personal / carer's leave and compassionate leave

Modern awards may include provisions for the cashing out of annual leave as well as personal/carer's leave.

Where a modern award allows for the cashing out of leave, the award must prohibit the employer from coercing an employee to cash out leave and must require the employer to pay employees who cash out leave the full amount they would have been entitled to had they taken the leave.

Modern awards may now include specific requirements on the type of evidence an employee must provide in order to take paid personal/carer's leave, unpaid carer's leave or compassionate leave.

Jury leave

Employers are now only required to pay employees for the first 10 days that they are absent for a particular jury service summons.

Absence on public holiday

When assessing whether it is reasonable for an employer to request an employee to work on a public holiday, the type of employment of the employee (eg full-time, part-time, casual, or shiftwork) is now one of the relevant factors to be taken into account.

Where an employee is absent on a public holiday, the employer must pay the employee at the employee's base rate of pay for the ordinary hours of work on that day.

The NES makes it clear that casual and part-time employees who are not rostered to work and do not work on a public holiday are not entitled to payment.

Notice of termination / redundancy pay

A modern award may include provisions specifying how much notice of termination an employee is required to give.

The NES makes it clear that redundancy pay is not triggered where an employee's employment is terminated at the initiative of the employer but is due to the ordinary and customary turnover of labour.

The redundancy provisions in the NES will not apply to employees covered by a modern award which has an industry-specific redundancy scheme.

The final NES are available at www.workplace.gov.au

Key points for employers

- The NES will come into force in January 2010. In the meantime, employers should consider the NES in developing workplace agreements, employment contracts and policies.

- Employers should consider the NES as part of the award modernisation process to ensure that necessary provisions in relation to the NES are included in modern awards.

Blake Dawson