A cornerstone of Australia’s current employment laws is the National Employment Standards (“NES”), which detail the legal obligations an employer has to their employees. If you own a business and employ staff it is important that you have up to date employment contracts in place for your employees and further are aware of the obligations, you have to each of your employees under the NES.
Breaching these standards can have serious financial consequences for you as a business, as highlighted in the recent case of Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 2762.
In this case the employer and its HR manager were found to have breached section 44 and section 117 of the Fair Work Act (“the Act”), by failing to correctly fulfil their legal obligations under the NES.
In this case the employment of an employee, who was on workers’ compensation, had their employment terminated and was provided with 28 days’ notice of this termination.
The employee argued against this and took the matter further, where the Federal Circuit Court found that the notice period given was in breach of the Fair Work Act and the NES, which provided that the employee be provided with five weeks’ notice of termination and the employee was therefore entitled to a full five weeks notice period, meaning that a further two days’ notice were required to be provided to the employee, which resulted in them facing a loss of $181.66 as a result of the employer’s actions.
The court found that the employer’s conduct in failing to provide proper notice, or payment in lieu was in clear breach of the Act and they provided no satisfactory excuse as to why the correct notice period was not provided to the employee.
In addition to this, the employer’s HR manager admitted that they were aware of the NES provided for by the Act and the requirements as to the amount of notice that were to be given to the employee upon termination of their employment. There court therefore found that the HR manager was individually liable for the breach of the employer due to the accessorial liability provision of the Act.
The Court imposed a substantial penalty upon both the employer and the HR manager to highlight the seriousness of such a breach of the Act and the NES, with the employer being ordered to pay the employee $20,400.00 and the HR manager to pay pay a further $1,020.00 to the employee.
The National Employment Standards:
The NES are 10 minimum entitlements that are provided to all employees in the course of their employment and cover the following:
- Maximum weekly hours
- Requests for flexible working arrangements
- Parental leave and related entitlements
- Annual leave
- Personal carers leave and compassionate leave
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy pay
- Fair Work Information Statement