National Employment Standards

The National Employment Standards (NES) are the cornerstone of employment law for most workers in Australia. The Fair Work Act 2009 introduced the NES to safeguard minimum employment conditions for workers nationwide. Employees who feel that they are not receiving their entitlement under the NES can make a complaint to the Fair Work Commission (FWC). Employers must understand the NES to maintain legal compliance, and employees should grasp the implications to ensure that they can access their workplace rights.

What are the National Employment Standards?

The National Employment Standards are the cornerstone of employment law for most workers in Australia. is composed of twelve minimum entitlements that apply across the national workplace system, although not every type of worker has full entitlement. When an employee is covered by the NES, the minimum entitlements cannot be excluded by any employment contract, modern award, or enterprise agreement.

Maximum weekly hours

The NES sets the maximum hours for full-time employees at 38 hours a week (proportional for part-time workers) plus reasonable extra hours. The meaning of “reasonable additional hours” is variably defined depending on several factors, such as:

• The employee’s personal circumstances
• The needs of the workplace
• The nature of the employee’s work and
• The risk to the employee’s health and safety from working additional hours

Employees can agree with their employer to average their hours over 26 weeks, to allow for periods of high and low work demand, providing there is genuine agreement between the parties and the arrangement is not imposed on the worker.

Requests for flexible working arrangements

Flexible working arrangements might mean changes to the employee’s pattern of work, hours of work, start and finish time, or location of work (eg shifting from the office to working from home). The NES protects the right of certain workers to request flexibility. To qualify for this protection, the employee must have worked for their employer for at least 12 months, and have a statutory right to request flexible work arrangements because they are:

• 55 or older;
• disabled;
• pregnant;
• caring for a young child;
• a carer under the Carer Recognition Act 2010; or
• experiencing domestic and family violence (or supporting or providing care to a household member or immediate family member who is experiencing domestic and family violence).

Employees must follow set rules when making their request for flexible working arrangements. Employers likewise must follow guidelines when responding to the request. Employers can only refuse a request on reasonable business grounds. This refusal must be provided in writing to the employee within 21 days, outlining the reason for the denial. If a dispute over a request cannot be resolved between the employer and employee, the FWC can step in to help.

Conversion from casual to permanent employment

The NES provides casual employees with a pathway to become a full-time or permanent part-time employee. Under this rule, employers must offer casual conversion to employees who work in a regular pattern of hours for 12 months and who will foreseeably continue to work these hours without significant changes.

If an eligible casual employee requests conversion, the employer must respond in 21 days. The employer must consult with the employee and have reasonable grounds to deny a request and provide reasons in a written response. However, small business employers are exempt from these casual conversion requirements.

Parental leave and related entitlements

The NES provides eligible employees with up to 12 months of unpaid parental leave, with an option to request a further 12 months. This entitlement is available to new parents, and employees who adopt a child under 16 years of age or foster a child as part of a permanent care order. This parental leave can extend to partners, allowing parents to share caregiving responsibilities.

Annual leave

All employees except casual employees are entitled to four weeks of paid annual leave under the NES. Part-time workers receive leave on a pro-rata basis, and shift workers may receive an additional week of leave. The employee’s award, contract, or enterprise agreement can offer more leave entitlements, but not less than this standard.

Annual leave progressively accumulates, so if the employee does not take leave, it carries over to the next year, and any outstanding balance must be paid out when the employee leaves their employment.

Personal/carer’s leave/compassionate/family and domestic violence leave

Under the NES, employees have access to leave to ensure that they can manage their personal health issues and family responsibilities without undue financial hardship. These entitlements are:

• 10 days of paid personal/carer’s leave every year, which the employee can use for personal injury or illness or to provide care to a family member or household member;
• 2 days of unpaid carer’s leave per occasion if the employee has exhausted their paid leave allowance;
• 2 days of paid compassionate leave per occasion to deal with the serious illness or death of a close family member or household member; and
• 10 days of paid family and domestic violence leave for themselves or to care for a family member or household member.

Community service leave

Employees are also entitled to unlimited, unpaid leave to fulfil their civic duty without worrying about losing their jobs. The employee can take this leave to participate in specific community service activities, such as voluntary emergency management activities (such as rescue and firefighting work) and jury service (with “make-up” pay for up to 10 days).

Long service leave

Long service leave entitlements vary according to state or territory jurisdiction, but generally, an employee who works for the same employer (or in narrow circumstances, works for different employers in the same industry) for an extended period (7-10 years) is entitled to take paid long service leave. In some jurisdictions, casual workers are also entitled to long service leave.

Public holidays

Under the NES, employees are eligible for paid time off on national and state public holidays and have the right to refuse to work on these holidays on reasonable grounds. When an employee does work on a public holiday, they are entitled to penalty rates of pay or alternative compensation as mandated by their employment contract or award.

Superannuation contributions

From 1 January 2024, the NES includes a right for workers to receive superannuation contributions. Employees covered by the NES can take legal action under the Fair Work Act to recover unpaid or underpaid superannuation.

Notice of termination and redundancy pay

The NES creates minimum notice periods for employment termination, based on the length of service, such as one week for employees with less than a year of service and 4 weeks for employees with over five years of service. Employees over the age of 45 with at least two years of continuous employment receive an additional week of notice.

Redundancy pay also varies according to the length of service, with a maximum of 16 weeks of pay for employees who have served nine or more years with the employer. Smaller businesses that have less than 15 employees are exempt from redundancy pay requirements.

Fair work information statement

Employers must provide all new employees with the Fair Work Information Statement, or the Casual Employment Information Statement. These documents outline the employee’s rights and entitlements under the NES, ensuring that the employee understands their workplace rights from the outset.

Compliance with the NES is a legal requirement across the national workplace network. Employers should regularly review and update workplace policies and employment contracts to ensure that they align with the NES. Additionally, they should provide adequate training to senior personnel and keep accurate employment records. The employment law specialists at Go To Court can provide advice about conforming to the NES or representation to an employee with an entitlement claim. Please contact or phone 1300 636 846 for assistance today.