Here are some common questions with answers in regards to the National Employment Standard. It further highlights the extremely complex employment laws we have here in Australia and the need for business' to gain a stronger understanding.

1. National Employment Standard (NES)
ADP Insider
National Employment Standard (NES):
Commonly Asked Questions
April 28, 2015 - by David Bates
Last month’s ADP/Workforce Guardian webinar
focusing on the first 5 of the ten National
Employment Standards (NES) proved extremely
popular. We regard this as further evidence of
the difficulties many employers face when trying
to understand – and comply with – Australia’s
extremely complex employment laws.
After the webinar we received a large number of
follow-up questions about the NES. So this week
we’ve provided answers to the most common
questions:
1. Can I impose a standard 40 hour working
week?
You can, but this will create a number of risks,
especially if your employees are covered by a
Modern Award.
The NES imposes a maximum ordinary working
week of 38 hours plus ‘reasonable additional
hours’. The NES also contains a list of factors that
you can take into account when deciding whether
a request for an employee to work more than 38
hours is ‘reasonable’.
We accordingly recommend you’re working
arrangements – and your employment contracts –
expressly reflect this wording.
Remember too that if that if an employee is
covered by a Modern Award, you will almost
certainly be required to pay overtime rates for
all hours worked over and above the 38 hour
maximum each week.
Also remember that employees have a right to
refuse your request for additional hours if your
request is unreasonable, or your employee’s
refusal is itself reasonable in the circumstances.
2. What is the Fair Work Information Statement
The Fair Work Information Statement is a
document published by the Commonwealth
Government which must be given to all employees
engaged after 1 January 2010.
This Statement contains information about the
key elements of the new Fair Work system, such
as the role of the Fair Work Commission and the
Fair Work Ombudsman (FWO), the NES, Modern
awards, Enterprise Agreements making and
Freedom of Association (the right of an employee
to join, or not join, a trade union).
The Fair Work Information Statement also
contains information about Individual Flexibility
Arrangements (IFAs), employee records and
privacy and termination of employment rights.
You can download this document from your
Workforce Guardian from ADP subscription
service, and you can also store signed and dated
copies in the employee’s online employee file for
safe-keeping. Employers who fail to issue the Fair
Work Information Statement can face penalties of
up to $51,000!
3. When Does an Employee Begin Accruing Paid
Leave?
All employees – apart from casuals – begin
accruing paid annual leave and paid personal/
carer’s leave from their very first day of
employment.
Note that leave accrues gradually throughout
each year of service, and should not be granted
to the employee as a ‘lump-sum’ either at the
beginning or end of each year of employment.
Unused annual leave (and leave loading, if
applicable) needs to be paid out at the end of an
employee’s employment. In contrast, unused
personal/carer’s leave is not generally paid out.
4. Are Casuals Entitled to Unpaid Parental
Leave?
Yes, provided the employee has completed
12 months of employment prior to the child’s
birth or adoption, and the employee has been
working ‘regular and systematic hours’ and has a
‘reasonable expectation’ of ongoing employment.
5. When Can an Employee Take Personal Leave?
An employee may take personal leave when:
a) They are ill or injured, and
b) They are unfit for work
Note that this means an employee does not
have an entitlement to take paid personal leave
if their appointment is a ‘routine check-up’ or
‘pre-operative appointment’ because they are
otherwise ‘fit for work’ at the time.
In these circumstances we recommend providing
the employee with access to their annual leave or
leave without pay.
We trust these responses are helpful, and that
you’ll join us for our future webinars.
See more at: www.adppayroll.com.au/adpinsider
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"Employers who fail to issue the
Fair Work Information Statement
can face penalties of up to $51,000."
David Bates
Managing Director
Workforce Guardian
Commonly asked questions