The National Employment Standards are 11 minimum employment entitlements that apply regardless of what a contract or award may say. They apply to all permanent employees – full-time and part-time, employed in private medical practice. Only certain entitlements apply to casual employees.
Maximum weekly hours
For full-time employees this is 38 hours and for part-time and casual employees this is either 38 hours or the employee’s ordinary weekly hours, whichever is less. An employer must not request or require an employee to work more than their maximum hours of work per week unless the additional hours are reasonable.
Request for flexible working
Eligible employees may make requests for flexible working arrangements. This may include changes in hours such as start and finish times, patterns of work such as split shifts or job sharing, and location of work such as working from home. The request must be made in writing and employers are required to respond in writing within 21 days. A refusal can only be made based on reasonable business grounds.
Conversion from casual to permanent
Employers must make a written offer to eligible casual employees to convert to permanent employment, within 21 days of their 12-month anniversary. Businesses with less than 15 employees are exempt from this requirement. Some casual employees may also be able to request that their employer convert them to permanent employment after they have completed 12 months of service.
Parental Leave and related entitlements
Parental leave includes maternity leave, paternity and partner leave, adoption leave, special maternity leave, and “no safe job” leave. Eligible employees are entitled to take up to 12 months of unpaid parental leave, with the option to request up to an additional 12 months leave. To be eligible, employees must have completed 12 months of continuous service, and this may include long term casual employees who work regular and systematic hours. When returning from parental leave, employees are entitled to the job they had before going on an available position nearest in status and pay for which they are qualified
Full-time employees get four weeks of paid annual leave per year (pro rata entitlement for part-time employees based on their ordinary hours of work). Casual employees are not entitled to paid annual leave. Annual leave accrues progressively and does not expire if it’s not used within a set time frame. Employees will continue to accrue annual leave when they are on paid leave, including annual leave, personal/carers leave and long service leave. Annual leave is taken by agreement between employer and employee. Accrued leave must be paid out on termination of employment.
Other types of leave
Full-time employees are entitled to 10 days of paid personal/carers leave per year, with pro rata for part-time employees based on their ordinary hours of work. Casual employees are not entitled to paid personal/carers leave. Personal/carers leave accrues progressively and accumulates from year to year. An employee may take personal/carers leave when they are unable to work because they are sick or injured, to care for an immediate family or household member, who is sick or injured, or to help in a family emergency. An employee is required to give their employer notice of the leave as soon as practicable. Employers are entitled to request evidence that would satisfy a reasonable person. If the employee has no paid personal/carers leave entitlement accrued, there’s an entitlement of two days’ unpaid carer’s leave per occasion which is also available to casuals. Personal carer’s leave is not paid out on termination.
All employees are entitled to two days of compassionate leave per occasion. This is also known as bereavement leave and can be taken when an immediate family member dies or contracts a life-threatening illness or injury.
Family and domestic violence leave:
The entitlement is for five days of unpaid family and domestic violence leave each year. The leave does not accumulate if unused. Employers need to be aware of confidentiality around staff requesting this type of leave.
Community Services Leave:
Under the NES employees can be absent from work to engage in a voluntary emergency management activity, such as firefighting, reservist duties and other rescue services. This leave also includes jury duty. Community service leave is unpaid, except for jury duty.
Long Service Leave:
The NES refers to the long service leave legislation in each state. Under the NSW Long Service Leave Act, an employee is entitled to two months (or 8.67 weeks) paid LSL after 10 years of continuous service. This also includes casual employees. There are some situations where an employee may be entitled to a pro rata payment after five years of service.
Employees are entitled to be absent from work on a public holiday, and if their ordinary hours fall on that day, they are entitled to be paid. You may make a reasonable request for employee to work on a public holiday, but the employee may refuse the request if they have reasonable grounds.
Termination of employment
An employer must provide an employee with written notice of termination.
The minimum notice period depends on the employee’s period of continuous service. There are times when notice of termination doesn’t apply, such as for casual employees, true fixed term employees, and employees who are terminated because of serious misconduct. Redundancy pay may apply in certain circumstances and is also based on the period of continuous service.
Fair Work information statements
Finally, employers must give all employees a copy of the Fair Work Information statement, and if they are a casual employee, the Casual Employment Information Statement as well. This needs to be done before or as soon as possible after they start employment.
Felicity Buckley, Workplace Relations Advisor