Proctor : August 2018
43 PROCTOR | August 2018 Your legal workplace Basic entitlements – the National Employment Standards by Robert Stevenson In my last column, I spoke about the Fair Work Act National Employment Standards (NES) being the foundation of the hierarchy of employment law instruments. This is because these standards apply to all employees regardless of level and income and cannot be contracted out of. I want to spend a little bit of time explaining these standards as the starting point for any consideration of employee rights. There are 10 standards relating to: • maximum weekly hours • requests for flexible working arrangements • parental leave • annual leave • personal/compassionate leave • community service leave • long service leave • public holidays • notice of termination/redundancy pay • Fair Work information statement Maximum weekly hours – The standard provides that an employer must not request or require a full-time employee to work more than 38 hours a week unless the additional hours are reasonable. An employee may refuse to work unreasonable additional hours and the NES contains a list of factors to be considered in deciding whether additional hours are reasonable. Award- covered employees are also subject to award requirements for overtime and penalty rates. For award-free employees, these hours can be averaged by agreement over a period of up to 26 weeks. It is common for employment contracts with award-free employees to include specific provision for working additional reasonable hours. Requests for flexible working arrangements – Employees (including casuals) with more than 12 months’ service can make a request to change their working arrangements because of their circumstances if the employee: • is the parent, or has responsibility for the care of a child of school age or younger (which includes a part-time work request by parents returning to work after taking parental leave) • is a carer within the meaning of the Carer Recognition Act 2010 (Cth) • has a disability • is55orolder • is experiencing violence from a member of their family or provides care and support to an immediate family member or a household member who requires that support because they are experiencing domestic violence. Possible types of flexible working arrangements may, for example, include a reduction in hours, non-standard start or finish times, working from home or job-sharing arrangements. The employee must make the request in writing and set out details of the change sought and reasons. Employers are required to respond in writing within 21 days stating whether the request is agreed to or refused. Employers can only refuse a request on reasonable business grounds and must include details of the reasons for refusal in their response to the request. The Fair Work Act contains an inclusive list of what might be reasonable business grounds, including cost, ability to change the working arrangements, practicability, significant loss of efficiency/ productivity and significant negative impact on customer service. Employees do not have an automatic right to challenge a refusal but may be able to bring action under the Fair Work Act’s discrimination and general protections provisions and dedicated discrimination legislation. If an employer can’t agree to the request that is made, discussions should be had with the employee to see whether any compromise arrangement can be reached. If there is a change, then both parties should be clear about how long that change will operate for (and this should be done in writing). If the change is to be permanent, then the employment contract should be changed by agreement. Rob Stevenson is the Principal of Australian Workplace Lawyers, firstname.lastname@example.org .