Employment Lawyers NSW

The last of the series of emails relating to the National Employment Standards (NES).

The 6th NES – Community service leave

You must allow your employees leave to engage in eligible community service activity.

Eligible community service activity includes:

a) jury service; and
b) voluntary activity that involves dealing with an emergency or natural disaster, when requested to do so by a recognised emergency management body, or if the circumstances do not permit such a request to be made, when it would be likely that such a request would have been made if the circumstances permitted.

The Government may prescribe other eligible community service activity by regulation, but have not done so yet.

It is important to note that to be eligible for voluntary emergency management activity, the employee must be a member of a recognised emergency management body (or have a member-like association with the body).

An employee is entitled to community service leave for the duration of any period for which they are engaged in an eligible community service activity (including any reasonable travel time), and for reasonable rest time after the community service activity.

Community service leave is unpaid, except when such leave is taken to undertake jury service – your permanent employees will be entitled to be paid for up to 10 days of jury service, at their base rate of pay for ordinary hours worked, less any jury service pay that is payable to them by the State.

The 7th NES – Long service leave

For the most part, this will continue to be regulated by state and territory legislation or the terms of an applicable award or agreement as in the past, and there is no change.

However, the government may seek to establish a national standard for Long Service Leave in the future.

There may be some changes to some specific industry schemes, for example the long service leave scheme that applies to workers in the black coal industry.

The 8th NES – Public holidays

Your employees are entitled to be paid at their base rate of pay for ordinary hours worked when absent on a public holiday.

You are permitted to ask an employee to work on a public holiday. However, your employee can refuse to work if they have reasonable grounds for doing so.

The 9th NES – Notice of termination and redundancy pay

Notice of termination

There has been no change to the notice of termination obligations. Table 1 sets out the period of notice you must give (or pay in lieu of) if you terminate an employee for other than serious misconduct. You can still terminate an employee’s services for serious misconduct without provision of notice.

Table 1

An employer must provide the following minimum periods of notice (or make a payment in lieu of notice) to an employee on termination of employment:

Employee’s period of continuous service with the employer at the end of the day that notice is given Period
Not more than 1 year 1 week
More than 1 year but not more than 3 years 2 weeks
More than 3 years but not more than 5 years 3 weeks
More than 5 years 4 weeks

Redundancy pay

If you are required to retrench an employee because their position has become redundant, you will have to pay the employee redundancy pay in accordance with Table 2, unless your business employs less than 15 people (including regular casuals with at least 12 months service).

Table 2

The proposed redundancy pay NES provides that an employee is entitled to redundancy pay if the employee’s employment is terminated at the initiative of the employer because the employer no longer requires the employee’s job to be done by anyone because of the insolvency or bankruptcy of the employer. However, there is no entitlement to redundancy if the employee is employed by a business with fewer than 15 employees. The calculation of redundancy pay is based on an employee’s period of continuous service in accordance with the following:

Employee’s period of continuous service with the employer at the end of the day that notice is given Period
At least 1 year but less than 2 years 4 weeks
At least 2 years but less than 3 years 6 weeks
At least 3 years but less than 4 years 7 weeks
At least 4 years but less than 5 years 8 weeks
At least 5 years but less than 6 years 10 weeks
At least 6 years but less than 7 years 11 weeks
At least 7 years but less than 8 years 13 weeks
At least 8 years but less than 9 years 14 weeks
At least 9 years but less than 10 years 16 weeks
At least 10 years 12 weeks

Special provisions relating to service and this redundancy pay

For the purpose of this redundancy pay, the service of an employee will count from the commencement date of their employment provided that:

a) the employee commenced employment with you prior to 1 January 2010, and
b) their pre 1 January 2010 award/registered agreement provided for an entitlement to redundancy pay.

In all other cases, the service of the employee will be deemed to have commenced on the earliest of 1 January 2010 or the date they commenced employment with you post 1 January 2010.

The 10th NES – Fair Work Information Statement

You will have to provide all of your new employees with a Fair Work Information Statement.

Notes in relation to all NES:

  • The NES set out minimum statutory entitlements. If your contract with your employee (whether verbal or written) provides your employee with greater entitlement, contractually you must pay same.
  • This series of emails has contained general information only. You need to make your own enquiry to satisfy yourself that you will be compliant with the NES, and generally, from 1 January 2010.
  • Recent legislative changes by the NSW and Federal Governments will make the NES and the Fair Work Act applicable to almost all NSW employers from 1 January 2010 – including sole traders and partnerships of individuals.

If you have any questions relating to the above, please do not hesitate to contact our Employment Law Team.


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