What kinds of awards and agreements do the NES apply to?
The NES applies to all employees covered by the national workplace relations system regardless of the award, agreement or contract of employment that applies to an employee.
Employees covered by awards and agreements
Awards, agreements and award and agreement based transitional instruments may supplement the NES by providing entitlements that do not disadvantage employees in comparison with the NES.
A certain amount of flexibility is also allowed in the operation of the NES. For example, awards and agreements may specify terms that are flexible in relation to:
- averaging an employee’s ordinary hours of work
- the cashing out of and taking paid annual leave
- the cashing out of paid personal / carer’s leave
- the substitution of public holidays
- situations in which redundancy pay entitlements do not apply.
Important! Terms in awards, agreements, transitional awards and agreements and employment contracts cannot exclude, or provide for an entitlement less than the NES.
Employees not covered by awards & agreements
Employers and employees who are not covered by an award agreement, or a transitional award or agreement (award/agreement free employees) may also make agreements that vary the operation of the NES in certain ways.
They may make agreements about the following:
- averaging of hours of work, subject to conditions such as a maximum of 26 weeks
- the cashing out of or taking paid annual leave
- the substitution of public holidays
- extra annual leave in exchange for foregoing an equivalent amount of pay
- extra personal / carer’s leave in exchange for foregoing an equivalent amount of pay.
In all other cases, employment contracts can only provide entitlements that are equal to, or more favourable to the employee.
The NES are guaranteed minimum standards
An employer cannot provide an employee with an agreement with entitlements that are less than the NES.
Employers who contravene provisions of the NES may face penalties of up to $6,600 for an individual and $33,000 for a corporation.