Every employee has the right to be a member of any Federal or State union which holds registration in relation to their area of employment. Under the Act an employer cannot, amongst other things, refuse employment, dismiss an employee or engage in any adverse action against an employee on the grounds that the employee is, or is not, a member of a union.
Wages, working hours and sick leave
Employees are entitled to be paid for the work performed by them in accordance with the NES, applicable award, enterprise agreement, Act or contract of employment, whichever applies. You should seek advice about which instrument or legislation applies in any given circumstance.
Where an employer is required by the NES, a modern award, or a enterprise agreement to pay an amount to an employee or to pay an amount to a superannuation fund on behalf of an employee, the Act allows employees to sue the employer for the amount of the payment within 6 years after the employer was required to make the payment to the employee or fund. Action to recover unpaid wages may be taken in the Federal Court, the Federal Magistrates’ Court, a Magistrates’ Court or any State Court that is prescribed by the regulations. It is also an offence to breach a term of the NES, an award or Enterprise Agreement – penalties can be imposed and orders the Court can make orders that an employer pay the underpayment.
Under the NES , the maximum number of ordinary hours an employee may work in a week is 38 plus "reasonable additional hours". The NES sets out criteria to be taken into account in determining whether additional hours are reasonable.
Otherwise, the number of hours which an employee must work is specified in whichever modern award or enterprise agreement is applicable to their position.
For employees not covered by an applicable modern award or enterprise agreement, the employment contract should specify the number of hours as provided by the NES.
Under the NES, employees are entitled to a minimum of 10 days paid personal/carer's leave each year. Employees are also entitled to an additional two (2) days unpaid carer's leave if their paid personal leave has been exhausted.
A Modern award or enterprise agreement may also specify an employee's entitlement to sick pay and carer's leave. However it cannot reduce or erode an employee’s entitlement under the NES.
For employees not covered by an applicable modern award or workplace agreement, the employment contract should refer to the minimum entitlements to personal/carer's leave as provided by the NES.
Under the NES, employees are entitled to four weeks paid annual leave each year. Shift workers (as defined under the Act or appropriate modern award or enterprise agreement) are entitled to five weeks paid annual leave each year. Annual leave under the NES accrues on a pro rata basis. Employees may also be entitled to leave loading.
Employees who cease employment before taking their accrued annual leave are entitled to be paid an amount equivalent to their accrued but untaken annual leave.
Modern awards and enterprise agreements may also provide entitlements to annual leave and dictate how and when it may be taken. However, modern awards and enterprise agreements cannot reduce or erode an employees entitlements under the NES.
For employees not covered by a modern award or enterprise agreement, the employment contract should refer to the minimum entitlements to annual leave as provided by the NES. The employment contract should also specify whether or not the employee is entitled to leave loading.
Under the NES and the Act, employees are entitled to observance of public holidays in accordance with Queensland laws and are entitled to a day off, except in certain circumstances. In particular, an employer may request that an employee works on a public holiday provided that the request is reasonable. However, under the NES and the Act employees are not entitled to a higher rate of payment for working on a public holiday. An employee will only be entitled to a higher rate of payment for work undertaken on a public holiday if an applicable award, enterprise agreement or contract of employment provides for this.
Most modern awards provide that if an employee works on a public holiday they are entitled to be paid a penalty or loading calculated upon their ordinary rate of pay. Where an award, enterprise agreement or contract of employment provides that an employee is entitled to a penalty or loading for working on a public holiday, the term must be complied with.
The NES also states that an employee may refuse an employer’s request to work on a public holiday provided that the refusal is reasonable.
Superannuation and long service leave
Federal superannuation legislation requires that employers pay superannuation for all employees. The rate payable may vary from organisation to organisation and from employee to employee. Employees are entitled to choose their preferred superannuation fund except where certain modern awards, enterprise agreements or contracts of employment provide otherwise.
The Queensland Industrial Relations Act 1999 guarantees a minimum long service leave entitlement to all employees. The minimum is 8.6667 weeks for the first 10 years continuous service. Employees are entitled to a proportionate payment for long service leave if employment is terminated (generally for reasons other than the employee's conduct, capacity or performance) after 7 years continuous service with the one employer. In most cases, the entitlement to long service leave under the Queensland Industrial Relations Act 1999 has not been affected by the Act.
Parental leave (including maternity leave, paternity leave and adoption leave)
The NES and the Act provide for minimum entitlements to parental leave. Full-time, part-time and long-term casual employees can take 12 months unpaid parental leave to be the primary carer of a new born or newly adopted child. Both parents are entitled to take unpaid parental leave, provided that they are both national system employees. There is also a right to request an extension to parental leave of up to a further 12 months. This request may only be refused by the employer if they have reasonable business grounds for doing so.
To be entitled to take parental leave an employee must have completed 12 months of continuous service with the employer, or in the case of a long-term casual employee have been employed with the employer on a regular and systematic basis for a sequence of periods during a period of at least 12 months.
An employee who has completed parental leave is entitled to return to the same position he or she held prior to the leave.
Modern awards, enterprise agreements and contracts of employment (and policies) may also make provision for parental leave (paid and/or unpaid). However, modern awards, enterprise agreements and contracts of employment cannot reduce or erode an employees entitlements under the NES.
Paid Parental Leave
On 1 January 2011, Australian Government implemented a paid parental leave scheme which is offered to working parents in addition to any employer-funded paid parental leave entitlements.
The scheme is set out in the Paid Parental Leave Act 2010 (Cth) and provides government-funded parental leave pay at the National Minimum Wage for a maximum period of 18 weeks, and can be received before, after, or at the same time as existing entitlements such as annual leave, long service leave, and employer-funded paid parental leave. This Government scheme is administrated by the Family Assistance Office. If an employee returns to work before exhausting their 18 week entitlement, the remainder may be transferred to the other parent provided that the other parent is the primary care-giver at that time.
The Act provides that casual employees are entitled to a casual loading added to their base hourly rate. The casual loading is set by Fair Work Australia for award and agreement free employees in their annual minimum wage orders whilst the loading applicable to award and agreement employees are set out in the respective instruments.
Casual employees may have their employment terminated without notice.
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