Several standards protections that apply to human resources are found in the Australian legislation.1 The legislative provision in the Australian law that offers protection when it comes to human resources in businesses is the Fair Work Act 2009 (Fair work).2 This was designed to ensure that workplace rights were upheld and standards guaranteed without compromising the competitive edge of the Australian marketplace. This provision in the Australian legislation provided a haven for employees, and it constitutes of two parts. These portions included the new modern awards and the National Employment Standards (NES). The National Employment Standards comprised of the conditions provided to employers. Employees’ wages must have a specific minimum limit that is to be observed by employers.3 The employers have to observe and adhere to the maximum hours the employees have to work in a week. They also have to see conditions for leave days, holidays, and notice of termination.4 Employees also have the right to request flexible working hours from employers.
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The Fair Work Act of 2009 created the Fair Work Commission (FWC). It was one of the reforms to the industrial relations in the Rudd Government. The Fair Work Commission has several functions. One of the functions includes the setting of the minimum wage. It also helps resolve disputes and approve enterprise agreements. This paper will discuss the National Employment Standards, as described in the Fair Work Act 2009.
The National Employment Standards
There are ten national employment standards under the Fair Work Act 2009. These are the minimum standard that employers must adhere to when it comes to employment. These standards may not be displaced despite the variation in agreements within the business.5 These standards affect everyone in the national workplace relations system. Even the casual workers benefit partially from the entitlements. The individuals who are covered by these minimum standards include the following.
- Those working in Victoria (Northern territories)
- The employees of the constitutionals corporation – these include those in the Pty and Ltd companies6
- All employees in the Commonwealth and its authority
- Maritime and waterside workers and flight crew – specifically those working for businesses abroad or interstate
- Employees in single businesses, partnerships, organizations, and non-profit organizations in New South Wales, Tasmania, among other areas
The Ten National Employment Standards
Maximum weekly hours
The entitlement of the maximum number of hours in a week is outlined in Division 3, Section 62 of the Fair Work Act 2009. It provides that an employer must not force an individual to work more than a particular number of hours per week.7 The additional hours should also be provided only if there is a reasonable cause. Full-time employees are not expected to work for more than 38 hours. A part-time employee, on the other hand, should work for fewer hours as compared to those of a full-time employee (less than 38). For this reason, an employee has the right to refuse to work if the employer is unfair while requesting for extra hours. The NES also provides employees with a way of determining whether the additional hours are reasonable or not. If employees determine that the additional hours are reasonable, they need to refuse to work.
The extra work may be considered unreasonable if it negatively affects the employee. For example, if it would pose a safety and health risk, the employee is not expected to comply. This may also be the case if the additional time to be worked would interfere with the employees’ personal responsibilities such as family responsibility. Another factor that should be considered by the employee is the needs of the workplace. Factors such as entitlement to receive overtime or other forms of compensation may also determine whether working extra hours would be reasonable or not. The nature of the roles and responsibilities of the employee in the workplace would also be a factor to consider. The total number of hours worked by an employee includes the time taken during leaves and other similar days.
Requests for flexible working arrangements
This entitlement is found in Division 4, Section 65. In this section, an employee has the right to request the employer to provide flexible working hours. An employee who has a great responsibility of caring for an underage child may also request for the same. Some may require taking care of children with disabilities. Therefore, they should provide their reasons for such flexible working arrangements. This may also include the changing of the location or workplace.
However, the employee must have worked in that organization for at least a year in order to qualify. As for casual employees, they must have worked for a long time in the organization or expects to work for long in the future. When making such requests, the employee must put it in writing and state the various reasons for applying for it. On the other hand, the employer must also provide a written response within three weeks. The employer might grant or refuse the request. If he refuses, he must do this on reasonable grounds and must write down the various reasons.
Parental leave and related entitlements
These provisions are outlined in Division 5, Section 67. There is a requirement that must be met for one to qualify for parental leave. For instance, one must have worked for at least twelve consecutive months for the organization. As for casual workers, they must have worked in the organization on a long-term basis or should be planning for the same. Birth-related leaves and adoption-related leaves are also provided for section 70. Such employees may take unpaid leave for one year. This may be due to the birth of a child or placement (adoption) of one.8 This is also provided if the individual would need to take care of a child.
This entitlement is provided under Division 6, Section 86. Every individual is entitled to annual leave every year. One is entitled to a one-month paid leave each year. Shift workers usually enjoy a 5-week paid leave. Employers are expected to provide payments for paid annual leave. However, public holidays are not considered working days. Therefore, those on paid annual leave during this period are not entitled to pay for that day.
Personal/Carer’s leave and compassionate leave
Ten personal or carer’s leave days are provided for workers annually. This entitlement is provided under Division 7, Section 95. This type of paid leave is also provided for employees who have been considered unfit for work due to injury or disease. It may also be provided if the worker needs to provide care to a family member. Others may need to take care of another employee’s family member who is in need. However, payment is not provided if the period at which one is on such a leave falls on a public holiday. Employees also have a right to receive two days of unpaid carer’s leave. This is usually provided if an emergency that affects the member occurs. This period could be continuous or made up of separate periods that add up to the same period.9
Compassionate leave is also provided to employees whose family members are terminally ill or seriously injured. This is also provided if the employee’s family member dies.
Community Service Leave
This entitlement is found in Division 8, Section 108. This entitlement provides that an employee may be absent from work if he or she needs to engage in community service. The leave days should include travel time, time to conduct the activity, and time to rest. The individual is required to give his employer notice of absence. He must give the notice as soon as possible and advise the employer about the expected period of the absence. Some employers might need evidence that the employee was engaged in eligible community service activities.10 Therefore, the employee should provide evidence in this case. During this period, the employer must pay the employee using the average rate (unless the employee is a casual worker).
Long Service Leave
This entitlement is outlined in Division 9, Section 113. This entitlement is provided in accordance with the applicable award schemes. If such award-derived service leaves are provided in the organization, then an employee is entitled to such leaves.
The entitlement to public holidays is provided in Division 10, Section 114. Employees have a right to be absent on public holidays. However, some bosses may request the workers to work on certain public holidays. Therefore, this should be the case only if the request is reasonable. However, the employee may refuse if he determines that the request is unreasonable. He may also refuse if his reason is valid enough. In this case, several factors must be considered. One of the factors includes the nature of the workplace and work done by the employee. The employee’s personal circumstances must also be considered. This may be in terms of family responsibilities.
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Another factor to consider is whether payment or other forms of compensation would be provided. During the time an employee is absent, the employer must provide payment. The type of employment of a particular worker should also be considered – whether part-time, casual, or full-time. When an employer needs to request for the worker to work during this period, he must do it in advance. The employee, on the other hand, must also provide a refusal notice in advance.
Notice of Termination and Redundancy Pay
This entitlement is provided for and outlined in Division 11, Section 117. In case an employer needs to terminate the employment of a particular employee, he needs to provide written notice of the day of termination.11 The day of termination cannot come before the day the notice is given. Before the employer terminates employment, he must do two things. Firstly, he must provide notice in advance, and this must meet the provisions for a minimum period of notice. Secondly, he must provide the employee with a payment equal to the amount the employer would have provided. Section 119 provides for the entitlement to redundancy pay.
Fair Work Information Statement
Ombudsmen are charged with the responsibility of preparing and publishing the Fair Work Information Statement.12 The statement must contain certain information. These include information on modern awards and the minimum employment standards. Information about the employees’ rights, the conditions for termination of employment, and working arrangements should also be included. Upon entry, employees should be provided with the Fair Work Information Statement by their employers.
The Fair Work Act 2009 outlines the 10 National Employment Standards (NES). These are the minimum standards that are applicable to employment. One of the areas that are involved includes the maximum weekly hours, whereby employees are entitled only to work a certain amount of time per week. The employees may also request flexible working arrangements if the current working hours are interfering with the major responsibilities of the employee. The employee may also request a change in location of the workplace if the reason is valid. The NES also outlines provisions for parental leave, which may be applicable where an individual gives birth or adopts a child. Other leave days that are entitled to employees include days one is involved in community service and leave due to long service in the organization. Public holidays are also provided to the employees.
During leave days and holidays, employers must provide full payment to the employees. If the employer wishes the employee to work on a holiday, he must provide a valid reason or provide additional payment or some other form of compensation. Otherwise, the employee has a right to refuse without fear of punishment. Notice of termination and redundancy pays must also be provided. All these entitlements are meant to protect the rights of the employees in the workplace and ensure employee satisfaction.13 In the long run, this is expected to increase productivity and enhance the economy of the country.
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Hardy, Tess, and John Howe. “Partners in enforcement: The new balance between government and trade union enforcement of employment standards in Australia.” Australian Journal of Labour Law 23(2010): 1-38.
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1 Rae Cooper, “Forward with fairness: Industrial Relations under labour in 2008,” Journal of Industrial Relations 51(2009): 286.
2 Rae Cooper and Brandon Ellem, “Fair Work and the Re-regulation of Collective Bargaining,” Australian Journal of Labour Law 22(2009): 294.
3 Rae Cooper, “The ‘New’ Industrial Relations and International Economic Crisis: Australia in 2009,” Journal of Industrial Relations 52(2009): 270.
4 Mirian Baird, Betty Frino and Sue Williamson, “Paid maternity and paternity leave and the emergence of ‘Equality bargaining’ in Australia: An analysis of Enterprise Agreements,” Australian Bulletin of Labour 35(2009): 678.
5 Rae Cooper, “The ‘New’ Industrial Relations and International Economic Crisis: Australia in 2009,” Journal of Industrial Relations 52(2009): 270.
6 Bruce Hearn-Mackinnon, “Employer matters in 2007,” Journal of Industrial Relations 50(2008): 463–474.
7 Ronald Hall, “The politics of industrial relations in Australia in 2007,” Journal of Industrial Relations 50(2008): 379.
8 Sue Williamson, “Women, work and industrial relations in 2009,” Journal of Industrial Relations 52(2010): 361.
9 Carolyn Sutherland and Joellen Riley, “Industrial legislation in 2009,” Journal of Industrial Relations 52(2010): 277.
10 Bruce Hearn-Mackinnon, “Employer matters in 2008,” Journal of Industrial Relations 51(2009): 357.
11 Rae Cooper, “The ‘New’ Industrial Relations and International Economic Crisis: Australia in 2009,” Journal of Industrial Relations 52(2009): 270.
12 Tess Hardy and John Howe, “Partners in enforcement: The new balance between government and trade union enforcement of employment standards in Australia,” Australian Journal of Labour Law 23(2010): 13.
13 Paul Gollan, “Australia industrial relations reform in perspective: Beyond work choices and prospects under the Fair Work Act 2009,” Asian Pacific Journal of Human Resources 47(2009): 269.