Submission to the National Employment Standards Inquiry

Submission by the Australian Council of Trade Unions to the House of Representatives Standing Committee on Employment, Workplace Relations, Skills and Training Inquiry into the Operation and Adequacy of the National Employment Standards

Overview

The ACTU welcomes the opportunity to make this submission to the House of Representatives Standing Committee on Employment, Workplace Relations, Skills and Training Inquiry into the Operation and Adequacy of the National Employment Standards (NES). We have argued that the NES should be reviewed to ensure that its provisions are operating as intended, and we are pleased that the Parliament has instigated this process.

The NES provisions in Part 2-2 of the Fair Work Act 2009 (Cth) (FW Act) are an important foundational component of Australia’s safety net of minimum employment protections. Since they commenced operation on 1 January 2010, the NES have not been the subject of dedicated review. They were considered as part of the 2012 Post-implementation Review of the FW Act, and the 2015 Productivity Commission Review of the Workplace Relations Framework (see further below).

While the range of NES entitlements has expanded over time, problems have arisen in the application and interpretation of some NES entitlements by the Fair Work Commission (FWC) and the courts, creating confusion and obstructing their intended operation. In the case of Long Service Leave, plans to replace the fragmented and confusing system with a simple national standard in the early days of the FW Act never eventuated. The world of work has also changed significantly since the NES was first introduced, adding weight to the case for a review to ensure it is fit for purpose.

For this submission the ACTU has closely consulted its affiliated unions on the operation of the NES, and technical difficulties which have arisen in relation to specific NES provisions. The recommendations the ACTU provides are mostly of a technical nature, directed at improving the effective operation of the laws or bringing them closer to their original policy intent. In addition, we raise for consideration five areas where the NES should be expanded to reflect increasingly accepted norms for minimum labour standards: reproductive health leave, cultural and kinship leave, five weeks of annual leave, and minimum standards for predictable hours of work, and improved entitlements to carer’s leave.

The Terms of Reference indicate that the Inquiry will consider the operation and adequacy of the NES with particular reference to:

• the objective and purpose of the NES as part of the safety net framework, as well as individual NES entitlements.
• the extent to which the NES is fit for purpose, having regard to the changing nature of work.
• the role of the NES in promoting the object of the Fair Work Act set out in Section 3.
• the adequacy, relevance and coherence of existing NES entitlements.
• the effectiveness and application of the NES, including opportunities for technical improvements.
• the interaction between the NES and other workplace instruments, including modern awards, enterprise agreements, and individual flexibility arrangements.
• the types of workers covered by the NES and consideration of differences in experience of the NES, including experiences of women, workers over 55, young workers, First Nations workers and workers with disability.
• whether there are any gaps in data information about any of these matters and what action is required to address these
• any related matters.

The Terms of Reference excluded from the scope of this Inquiry the following NES provisions, on the basis that separate statutory reviews either have occurred or will occur (although noting that this does not prevent broader consideration of the interaction of these provisions with other NES entitlements):

1. Division 4 − Request for Flexible Working Arrangements
2. Division 4A − Casual Employment
3. Division 5, Subdivision B − Parental Leave
4. Division 7, Subdivision CA − Family and Domestic Violence Leave

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