industrial instruments

HR Hot Tip – What terms and conditions apply to employees who are not covered by an industrial instrument?

24 November 2020

Welcome to our series of HR interviews with Lawyer Monika Nosal who answers some of the most common questions asked by HR managers regarding employees’ legal entitlements.

An employee not covered by an industrial instrument is considered to be “award and agreement free”. They are entitled to at least the:

  • National minimum wage
  • National Employment Standards (NES) (employees in the national system)

The NES sets out the minimum terms and conditions for employees in Australia.

The NES consists of the following 10 minimum employment entitlements are:

  • Maximum weekly hours
  • Requests for flexible working arrangements
  • 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

All employees in the national workplace relations system are covered by the NES regardless of the modern award, registered agreement or employment contract that applies.

However, casual employees only get certain NES entitlements relating to:

  • unpaid carer’s leave
  • unpaid compassionate leave
  • unpaid family and domestic violence leave
  • community service leave
  • the Fair Work Information Statement.

It is important to note that long-serving casuals are entitled to long service leave in some States and Territories.

Employers obligations under the NES, modern awards, enterprise agreements and contracts can be complex, overlapping, and at times confusing.

Employers need to familiarise themselves with and understand their legal obligations in order to avoid any possible claims by employees (both existing and former) and unsuccessful job applicants, as well as prosecution by the Fair Work Ombudsman. Under the accessorial liability provisions of the Fair Work Act 2009 (Cth), employers and individuals such as directors and HR managers can be personally held accountable for breaching workplace laws in certain circumstances.

A HR Legal Audit conducted by Rigby Cooke can provide the HR function and, in turn, provide employers with comfort in knowing that they are legally compliant, or at least provide advance warning of any potential compliancy issues before they become problematic.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

Liability limited by a scheme approved under Professional Standards Legislation.

©2020 Rigby Cooke Lawyers