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The National Employment Standards

The National Employment Standards (NES) provide the ten minimum conditions of employment for all employees across Australia, including part-time and casual employees.

From 1 January 2010, there are ten new National Employment Standards (NES) covering:

  • all constitutional corporations (Pty Ltd companies) across Australia
  • sole traders and partnerships in Queensland, NSW, the ACT, Victoria, Tasmania, South Australia and the Northern Territory

All employees are entitled to the benefit of the NES, even managerial or non-award staff. These minimum standards are summarised below.

Can I change the NES entitlements?

You cannot exclude or provide for an entitlement less than the NES. Any terms in awards or agreements that do this will have no effect. Penalties apply to employers who fail to observe the NES.

However awards and agreements may provide for additional entitlements over and above those provided in the NES, such as additional annual leave. If this is the case, you must provide the greater entitlement to your employees.

The Ten NES

1. Hours of work
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You must not ask or require your employees to work more than the following number of hours in a week unless additional hours are reasonable:

  • full time employees – 38 hours;
  • other employees – the lesser of:
    • 38 hours; and
    • the employee’s ordinary hours of work in a week
How do I know if additional hours are reasonable?

You will need to consider things like:

  • OHS;
  • the employee’s personal circumstances (including family responsibilities);
  • the needs of the business and patterns of work in the industry;
  • whether the employee is paid penalty rates;
  • the notice you have given of a request to work overtime;
  • the employee’s role and level of responsibility
2. Flexible hours
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Parents, or those who have responsibility for the care of a child, may make written requests for flexible working arrangements (i.e. part time work, job share) if they have children under school age or have children with a disability. 

You may only refuse the request if you have reasonable business grounds to do so.

3. Parental leave
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An employee, male or female, is entitled to 12 months of unpaid parental leave for the birth of a child of the employee or the employee’s spouse or de facto partner or the adoption of a child. The employee requesting leave must have or will have a responsibility for the care of the child.

4. Annual leave
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All employees (except casual employees) are entitled to 4 weeks annual leave for each 12 months of service. Shift workers are entitled to 5 weeks annual leave.

5. Personal/carer's leave and compassionate leave
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Paid personal/carer’s leave

All employees (other than casuals) are entitled to 10 days paid personal/carer’s leave for each year of service. The employee can take this leave:

  • if they are not fit for work because of personal illness or injury;
  • to care for or support a member of their immediate family or household who requires that care or support due to personal illness or injury or an unexpected emergency

Unpaid personal/carer’s leave

All employees are entitled to 2 days of unpaid carer’s leave for each occasion if paid personal/carer’s leave is not available to them (i.e. because they have exhausted their paid entitlement or are casuals).

Paid compassionate leave

Employees, other than casuals, are entitled to 2 days of paid compassionate leave for each occasion when a member of their immediate family or household:

  • gets an injury a personal illness that poses a serious threat to his or her life; or 
  • dies

Compassionate leave can either be taken as:

  • a single continuous 2 day period; or
  • 2 separate periods of 1 day each; or
  • any separate periods to which the employee and his or her employer agree

Unpaid compassionate leave

A casual employee is also entitled to take compassionate leave in the circumstances described above, however this entitlement is unpaid.

6. Community service leave
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An employee is entitled to be absent from work if they engage in a ‘community service activity. This includes:

  • jury service (including attendance for jury selection);
  • a voluntary emergency management activity such as an activity involving a natural disaster where the employee is a member of an emergency services body (e.g. fire fighting, civil defence, rescue body) and the body requests assistance (or it would have been reasonable for such a request to have been made had circumstances permitted this).

Do I have to pay my employees if they are on jury service?

Yes, unless they are a casual. They must get the difference between their jury service pay and their base rate of pay for their ordinary hours of work for the period of leave for up to 10 days in total. 

7. Long service leave
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Existing entitlements form part of the NES. These entitlements are found in the Fair Work Act and state or territory long service leave laws. 

Certain exceptions to this apply, e.g. where an ITEA, collective agreement or AWA was made before 1 January 2010 and which deals with long service leave entitlements, and the terms of the agreement will prevail over the state or territory long service leave laws. 

From 1 January 2010, if a pre-modernised award does not apply to an employee, long service leave entitlements will be in accordance with state or territory long service leave laws. 

Eventually, long service leave entitlements will be covered by a uniform national long service leave standard. This is not expected to take place until 2015.

8. Public holidays
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Employees are entitled to be absent from work on a day that is a public holiday in the place where the employee is based for work purposes.

You will need to pay your employees at their base rate of pay for the employee’s ordinary hours of work on the day/part-day.

Can I ask my employees to work on a public holiday?

You can request that your employees work on a public holiday if the request is reasonable. The employee may refuse the request if it is not reasonable or their refusal is reasonable. To determine what is reasonable you need to consider issues such as the nature and needs of your business, the occupation involved and any personal circumstances that might affect the employee. 

9. Termination and redundancy
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What minimum notice must I provide my employee if I am going to terminate their employment?

If you are terminating the employment of your employee, you need to provide at least the following notice period (or pay the employee in lieu of this notice):

Period of continuous service Notice
Not more than 1 year 1 week
1 year but less than 3 years 2 weeks
3 years but not more than 5 years 3 weeks
More than 5 years 4 weeks

If the employee is over 45 years old and has completed at least 2 years of continuous service with the employer, this notice period must be increased by 1 week.

You will not need to provide this notice period to casuals, people fired for gross misconduct and to fixed term contract employees at the end of their contract.  

What redundancy pay must I pay to an employee who I am making redundant?

If an employee is made redundant, the following minimum redundancy payment will need to be made to the employee, except:

  • where the employee has been employed for less than 12 months;
  • where the employer is a ‘small business employer

A ‘small business employer’ is an employer who, at a particular time, employs fewer than 15 employees (this is based on a head count and also includes casuals employed on a regular and systematic basis).

Period of continuous service Redundancy pay
At least 1 year but less than 2 4 weeks
At least 2 years but less than 3 6 weeks
At least 3 years but less than 4 7 weeks
At least 4 years but less than 5 8 weeks
At least 5 years but less than 6 10 weeks
At least 6 years but less than 7 11 weeks
At least 7 years but less than 8 13 weeks
At least 8 years but less than 9 14 weeks
At least 9 years but less than 10 16 weeks
At least 10 years 12 weeks
10. Fair Work Information Statement
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The Fair Work Ombudsman has published a ‘Fair Work Information Statement’ which details the rights and entitlements of employees and includes information about the NES, modern awards, agreement making and union rights. 

You must give the Fair Work Information Statement to all new employees before they start or as soon as soon as practicable after they start.

You can download the Fair Work Information Statement from the Fair Work Australia website.


To find out more, contact HIA InfoCentre

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