The 10 National Employment Standards are:

1. Maximum Weekly Hours

o The NES provide maximum working hours of 38 hours per week for full-time employees. For employees who are not full-time employees (e.g. part-time or casual employees), weekly hours must not exceed the lesser of the employee’s ordinary hours or 38 hours.

o An employee can be required or requested to work reasonable additional hours. There are a number of factors that must be considered in determining whether additional hours are reasonable, including:

- any risk to employee health and safety from working the additional hours;

- the employee’s personal circumstances, including family responsibilities;

- the needs of the workplace or enterprise in which the employee is employed;

- notice given by the employer of any request or requirement to work the additional hours;

- notice given by employee of his or her intention to refuse to work additional hours;

- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours;

- patterns of work in the industry; and

- nature of employee’s role and level of responsibility.

o An employee may refuse to work the additional hours if they are not reasonable.

2. Requests for Flexible Working Arrangements

o The NES give employees the right to request a change to working arrangements if they have 12 months continuous service and are parents of, or have responsibility for the care of, a child under school age, or a disabled child under 18.

o The request must be in writing and detail the change sought and reasons for the change. A written response must be received from the employer within 21 days and state whether the employer grants or refuses the request.

o A request may only be refused on reasonable business grounds. Fair Work Australia will be able to provide information on what constitutes reasonable business grounds. The National Employment Standards does not provide a definition as to what constitutes ‘reasonable business grounds’, but factors that may be relevant could include:

§ the effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;

§ the inability to organise work among existing staff; and

§ the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.

3. Parental Leave and Related Entitlements

o The NES provide access to up to 24 months unpaid leave in relation to the birth of a child or the placement for adoption of a child under 16. This entitlement extends to same sex couples.

o The employee taking leave must have completed 12 months of continuous service before qualifying for this entitlement.

o Each member of an employee couple may each take up to 12 months leave. An employee who has taken 12 months of unpaid parental leave may request an extension for a further period of up to 12 months. The available extension period will be reduced by any parental leave or special maternity leave taken by the employee’s partner. A request for extension may only be refused on reasonable business grounds.

o Leave cannot be taken concurrently; other than a period of up to 3 weeks around the time of birth or adoption (Sections 67-79).

o A casual employed on a regular and systematic basis over at least a 12-month period prior to the expected date of birth who has a reasonable expectation of continuing regular employment is also entitled to unpaid parental leave.

4. Annual Leave

o The NES provide 4 weeks paid annual leave for each year of service. A shift worker (as defined by a modern award or enterprise agreement or, in the case of an award/agreement free employee, the Fair Work Act 2009) is entitled to 5 weeks annual leave.

o Modern awards and enterprise agreements may include provisions dealing with the taking of annual leave, including the cashing out of it. Employers and award/agreement free employees may also agree to cash out. An agreement to cash out annual leave must be in writing and the payment must be for the full amount that the employee would have been paid if the employee had taken the leave. The employee must retain a balance of 4 weeks annual leave after the cash out.

5. Community Service Leave

o The NES provides a paid entitlement for employees required to attend jury service and unpaid leave for those who engage in a voluntary emergency management activity.

o An employee is entitled to be paid by their employer for a period of up to 10 days while they are absent from work during a period of jury service. An employer may require the employee to obtain payments to which they are eligible from the applicable State/Territory or Commonwealth body; these payments will reduce the amount payable to the employee.

o These provisions are not intended to displace State and Territory laws that provide employee entitlements in relation to engaging in eligible community service activities, if they are more beneficial to employees (Sections 108-112).