The NES contains ten minimum standards which apply to all employees, including casuals and contractors. An employment contract must meet the National Employment Standards.
You may be wondering how to write an employment contract that complies with the National Employment Standards (NES) and will not breach the Fair Work Act. The Fair Work Act sets out minimum standards of employment for all employees in Australia.
Farrah Motley wrote this article. Farrah is a qualified Australian lawyer and the Director of Prosper Law. Farrah is an experienced employment contract lawyer and provides employment law advice across Australia.
Modern award or enterprise agreement
Modern awards can differ from each other if they are made by different industrial relations commissions or tribunals, but all modern awards must meet certain minimum standards for an award to be valid.
The following are entitlements provided by modern award:
- hours of work
- penalty rates
Modern award or enterprise agreement prevails over a contract
The NES is generally inconsistent with terms of a contract of employment that provide for less than the minimum entitlements set out in the NES.
For example, if you have an employment contract and it says the employer can terminate the employment at any time without notice, this is not consistent with section 21 of the Fair Work Act 2009 (Cth), which provides that a modern award or enterprise agreement prevails over a contract of employment.
This means that if the employee works under an enterprise agreement, then it overrides the terms in the employment contract about dismissal on notice.
However, if the employee works under a modern award and not an enterprise agreement then section 21 of the Fair Work Act 2009 (Cth) does not apply. In this case, the employer can terminate your employment at any time without notice.
Fair Work Act 2009
The Fair Work Act 2009 (the “Fair Work Act”) sets out the national minimum standards of workplace relations in Australia, which apply to all employers and employees.
The Fair Work Commission (“the Commission”) administers the Fair Work Act, administers the National Employment Standards (NES) and has powers to deal with contraventions of those laws when they occur.
Terms in an employment contract that might fall foul of the Fair Work Act
Employment contracts come in many forms, from simple agreements to offer employment, to full-blown contracts of employment. The type of contract you have depends on what the employer decides is appropriate for the job.
Employers should also be aware that some terms in an employment contract may not comply with the Fair Work Act. For example, wages, superannuation and other payroll issues are covered by modern awards and enterprise agreements.
For this reason, employers should always get advice before entering into any agreement with an employee or when negotiating with an employee about a change to an existing contract.
If you are an employer, it is your responsibility to ensure that all employees receive their wages and other entitlements on time. It is also important that you give each employee a copy of their modern award as soon as possible after hiring them so they know what rights and responsibilities apply to them.
If you have any questions about your employment contracts or employees’ work arrangements, it is recommended to seek legal advice from a competent employment contract lawyer.
National Employment Standards
The National Employment Standards (NES) are minimum standards that apply to most employees. They include things like minimum wages, paid leave and public holidays. The NES apply to employees regardless of the award, registered agreement or employment contract that applies.
The Fair Work Act 2009 provides that individual employment agreements should be in writing to reflect their terms and conditions of employment, including any NES provisions.
There are 11 minimum entitlements of the NES:
- Maximum weekly hours
- Requests for flexible working arrangements
- Offers and requests to convert from casual to permanent employment
- Parental leave and related entitlements
- Annual leave
- Personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy pay
- Fair Work Information Statement and Casual Employment Information Statement
A contract cannot override the NES
The NES is a minimum standard, not an absolute one. They apply to all employees, including casuals and contractors.
The NES provides minimum standards for the treatment of all workers in a workplace and the employment relationship between employer and employee must comply with these standards.
A contract cannot override the application of these standards—it can only grant rights or impose obligations on an employee if these are provided for by law or as part of their agreement with the employer.
If a contract of employment is silent on an issue, then the National Employment Standards (NES) may apply. The NES are minimum standards that apply to all employees in Australia, even if their employment agreements say otherwise or something else in their contract says differently.
Employees can make claims for unpaid wages and entitlements under these laws and contracts cannot oust the application of them. This means that if a modern award or enterprise agreement contains terms relating to leave, it would be unlawful for an employer to seek to enforce its own terms instead of those set out in the law or agreement.
The Fair Work Act also gives employees other rights that may be claimed through various available remedies such as unfair dismissal, breach of contract and industrial action-related disputes (among others). Employers should ensure they comply with all applicable laws before engaging new staff members, so they do not expose themselves unnecessarily by failing to prepare properly ahead of time.
How can Prosper Law help?
Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, legal counsel and employment law.
If you need to talk to an employment contract lawyer, get in touch today.
Contact the team at Prosper Law today to discuss how we can provide you with employment law advice and help you with your legal needs for a fixed fee or at affordable hourly rates.
Farrah Motley | Director
p: 1300 003 077
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