Understanding the Differences in Minimum Employment Standards: The NES vs. Western Australia’s State System

In Australia, employment standards are regulated by both federal and state laws, but there can be significant differences depending on whether an employee is governed by the National Employment Standards (NES) under the Fair Work Act, which is a Federal (or Commonwealth) Act, or falls within the State industrial relations system in Western Australia. Employers and employees need to understand the nuances between these two systems, as they determine entitlements like pay, leave, and conditions of employment.

In this blog post, we’ll explore the key differences between the minimum employment standards under the National Employment Standards (NES) and those provided for under the State system of WA, so that both employers and employees can understand their rights and obligations

1. The National Employment Standards (NES): An Overview

The Fair Work Act 2009 sets out the National Employment Standards (NES), which apply to most employees across Australia. The NES guarantees a minimum set of rights and conditions for employees covered by the national system, including the following key provisions:

Maximum weekly hours: The standard working week is 38 hours, plus reasonable additional hours.
Requests for flexible working arrangements: Employees with specific family or caring responsibilities can request changes to their working hours or location.
Parental leave: Employees are entitled to 12 months of unpaid parental leave, with the option to extend for another 12 months.
Annual leave: Employees are entitled to 4 weeks of paid annual leave per year.
Personal/carer’s leave: Employees are entitled to 10 days of paid personal leave per year, which can be used for illness or caring for a sick family member.
Public holidays: Employees are entitled to be absent on public holidays with pay, unless the employer requires them to work.
Notice of termination and redundancy pay: Employees are entitled to a minimum notice period if their employment is terminated, or they are made redundant.
Fair Work Information Statement: Employers must provide employees with a Fair Work Information Statement outlining their rights under the Fair Work Act.

The Fair Work Commission (FWC) oversees the NES and other matters under the national industrial relations system, which governs most employees in Australia.

2. The State System of Western Australia

Western Australia, however, has its own industrial relations system, which applies to certain employees who are not covered by the national system. This includes employees working in State government departments, certain private sector employees, and employees in industries that are regulated by state awards. The key difference is that employees under WA’s State system are governed by the Industrial Relations Act 1979 (WA), and State Awards.

3. Differences

For businesses in WA that operate under the State industrial relations system, the minimum employment standards differ from the NES in several key areas. The most significant differences include:

a) Coverage of Employees

The Fair Work Act applies to employees who are either covered by a modern award, enterprise agreement, or are national system employees. This covers most employees in Australia, including those in private sector businesses.

However, employees working in WA’s state system are generally covered by the Industrial Relations Act 1979 (WA), which applies to employees working in certain industries not covered by the Fair Work Act. The state system often applies to:

WA public sector employees
Employees working for local councils
Employees in certain industries (e.g., construction, hospitality, etc.)

b) Leave Entitlements: Annual, Sick, and Parental Leave

Annual Leave:

NES: Full-time employees under the national system are entitled to 4 weeks of paid annual leave each year (with some employees in specific industries entitled to 5 weeks).
WA State System: Employees covered by WA’s industrial relations system may have different annual leave provisions. For instance, employees under WA awards may have access to 5 weeks of annual leave, which is more generous than the 4 weeks provided under the NES.

Sick Leave/Personal Leave:

NES: Employees under the national system are entitled to 10 days of paid personal/carer’s leave annually, which includes sick leave and leave for caring for a family member.
WA State System: Similarly, under WA’s state industrial system, employees are also entitled to 10 days of paid sick leave per year. However, some WA awards or agreements might offer more generous sick leave entitlements, or employees in particular sectors may have different sick leave conditions.

Parental Leave:

NES: Employees covered by the NES are entitled to 12 months of unpaid parental leave, with an additional 12 months available if requested by the employee.
WA State System: The parental leave provisions under the WA system align with the federal system in terms of entitlements to unpaid leave. However, the WA system may have specific provisions for state government employees, which can differ in the way the leave is managed or applied. WA’s industrial relations system may offer more flexibility in certain circumstances.

c) Public Holidays

NES: Under the NES, employees are entitled to be absent from work on public holidays and to receive payment for the day unless they agree to work on the public holiday or the work is essential.
WA State System: In the WA State system, employees are also entitled to be absent on public holidays and generally receive payment for public holidays unless required to work. Some state awards may offer additional compensation for working on public holidays, such as a higher rate of pay or alternative time off.

d) Termination and Redundancy

NES: Under the NES, employees are entitled to a minimum period of notice of termination (depending on their length of service), and may also be entitled to redundancy pay in cases of dismissal due to redundancy. The amount varies depending on the length of service.
WA State System: The WA industrial system also provides employees with rights to notice of termination and redundancy pay, which are broadly similar to those under the NES. However, the redundancy pay calculations may differ slightly in some WA awards or agreements, depending on the industry.

e) Right to Request Flexible Working Arrangements

NES: The NES gives employees who have caring responsibilities or other specific needs the right to request flexible working arrangements, such as changes to hours, location, or patterns of work. Employers are required to consider these requests and can only refuse them based on reasonable business grounds.
WA State System: The WA industrial relations system does not specifically mandate the same right to request flexible working arrangements as the NES. However, certain WA awards and agreements may include similar provisions for specific industries.

f) Awards and Enterprise Agreements

NES: In the national system, employees are covered by modern awards that set out minimum wages, conditions, and entitlements.
WA State System: Employees in the WA system may be covered by State awards and agreements, which are specific to WA’s industrial relations system. These state awards and agreements can be more specific to industries in WA and may offer more generous entitlements in some cases.

Conclusion: The Key Takeaways

The National Employment Standards (NES) under the Fair Work Act set a nationwide baseline for employee rights and conditions, while the State industrial relations system in Western Australia applies to a more limited group of employees, such as those in the state public sector and certain industries.

The key differences between the NES and WA’s State system include:

Some entitlements, such as annual leave, may be more generous under the WA state system.
The WA state system does not provide an automatic right to request flexible working arrangements, as is the case under the NES.
Employees under the NES have a federal baseline of rights, while WA’s State system has entitlements governed by State awards and agreements, which can vary between industries.

For employers in WA, it’s critical to determine whether they are subject to the national system or the state system and ensure they comply with the relevant employment standards for their employees. When in doubt, seeking legal advice is always a good idea to navigate these complexities and ensure compliance with the appropriate laws.