Updated: Sep 18, 2019
The NES, or National Employment Standards (“NES”) are a set of Australian employment entitlements that must be provided to all employees. They are the minimum standards that must be afforded to employees. So, if the headline captured your attention and you had no idea of what the NES was until now, the answer to my question is likely to be a resounding yes! If on the other hand you have heard of the NES (and hopefully at a minimum that’s all human resource managers reading this), but you haven’t really put any checks and balances in place in your workplace, odds are you may still breaching the NES.
In either case it’s time to take stock and get on top of your obligations. Failing to do so could leave the business, and human resource managers personally, open to a claim by an employee and criticism or even penalties imposed by Fair Work.
1 - Learning from others
From my experience employers generally want to do the right thing by their employees, but often unwittingly breach their employees rights under the NES.
The 10 minimum entitlements of the NES are:
Maximum weekly hours
Requests for flexible working arrangements
Parental leave and related entitlements
Personal carers leave and compassionate leave
Community service leave
Long service leave
Notice of termination and redundancy pay
Fair Work Information Statement
2 - Understanding the NES
Often the breach can involve the simplest of requirements under the NES, namely number 10 in the list; the Fair Work Information Statement. When employing a new staff member, employers are required to provide their new employees the Fair Work Statement prior to (or as soon as possible after) commencing the new job. Getting this right is the first step in creating a legally compliant workplace and is as simple as giving it to the employee in person, by mail, by email, by emailing a link to the Fair Work website, or by fax. A copy of the statement can be located and downloaded here. If you’re not getting this simplest of tasks right, chances are you may have other issues in your workplace that need tidying up.
More often than not complaints arise around termination and redundancy pay. And to be fair, questions around these matters can often be complex for even the most seasoned workplace professionals. That said, complex or not, it is important that workplaces get this right.
3 - Case studies
In the case of Cerin v ACI Operations Pty Ltd & Ors  FCCA 2762, both the company and the HR Manager were ordered to pay a penalties of $20,400 and $1,010 respectively for breaching the NES by failing to take into consideration the Fair Work Act 2009 (Cth) ("Fair Work Act"), namely s117, being the requirement for notice of termination or payment in lieu.
On the NES Judge Simpson held:
"The National Employment Standards are the minimum standards governing almost all employment relationships in Australia. Relevantly, they require employers to provide employees with appropriate notice of termination of employment or a payment in lieu of notice. Notice of termination is an important entitlement which, normally, would give employees time to process their termination and to make arrangements to find new employment.”
In imposing the penalty, the Court found that the HR manager had many years of experience, was responsible for human resources matters within the workplace and was aware of the NES. Importantly the Judge stated:
“The penalty that I propose to make will be a warning to employers of the need to comply with the legislation to the letter.”
So, what’s the take home? If you’re not currently referring to the Fair Work Act to ensure you are complying with the minimum standards under the NES, you need to start doing so. And if you’re unsure, get legal advice! It could save you thousands.
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