The National Employment Standards (NES) are ten minimum employment entitlements that must be provided to all employees. Together with awards that apply nationally for specific industries and occupations, the national minimum wage and protection from unfair dismissal, they form the Fair Work system – our national workplace relations system.
There are ten minimum entitlements for employees set out in the National Employment Standards. We have provided a summary below, all data and information referenced has been taken from the Fairwork website.
1. Maximum weekly hours
The NES mandates that an employer must not request or require an employee to work more than a certain number of hours in a week unless the additional hours are reasonable.
- What are the maximum weekly hours of work in Australia?
For full-time employees, the maximum weekly hours is 38; for non full-time employees, the maximum is the lesser of 38 hours or that employee’s ordinary weekly hours.
- When is it ‘reasonable’ to be asked to work additional hours?
When assessing whether a request to work additional hours is reasonable, Fair Work will consider the employee’s personal circumstances, their role and level of responsibility, any risk to their health and safety associated with the additional hours, and whether they’re entitled to receive overtime or penalty payments. Fair Work will also look at the needs of that workplace and the usual patterns of work in that industry.
2. Flexible working arrangements
Flexible working arrangements might include changes to an employee’s hours of work, patterns of work or locations of work. New rules apply regarding the treatment of requests for flexible working arrangements, which mean that an employer must discuss the request with that employee and try to reach an agreement before responding to their request. Requests can only be refused on reasonable business grounds; if refused, the employer must provide the employee with a written response.
- Who can request flexible working arrangements?
Employees (other than casual employees) who have worked with the same employer for more than 12 months can request flexible working arrangements if they:
- Are the parent or guardian of a child who is school-aged or younger
- Are a carer
- Have a disability
- Are 55 years old or more
- Are experiencing family violence
- Provide care or support to a member of their household or immediate family due to family or domestic violence
Casual employees who meet these criteria can request flexible working arrangements if they’ve been working for the same employee regularly for at least 12 months, and there’s a reasonable expectation that they’ll continue to do so.
- How do I request flexible working arrangements?
Any request for flexible working arrangements should be in writing, explain what changes are being requested (e.g. changes to start and finish times, working from home or job sharing) and the reason for the request.
- When can an employer deny a request for flexible working?
An employer can only refuse a request for flexible working arrangements on reasonable business grounds. This might be because the arrangement will be too costly for the business, other employees’ working arrangements can’t be changed to accommodate the request, or it’s impractical to do so, or the request would result in a significant loss of productivity or have a substantial adverse effect on customer service.
3. Maternity and parental leave
Employees can take parental leave when a child is born or adopted. When an employee, their spouse or de facto partner gives birth, or they adopt a child under 16 years of age, they may be entitled to maternity leave, paternity and partner leave or adoption leave. All employees who have responsibility for the care of a child are entitled to parental leave, though they must meet certain requirements to receive it.
- Who is eligible for maternity and parental leave?
Employees are eligible for parental leave if they have worked for their employer for at least 12 months before the expected date of birth or date of adoption, and will have responsibility for the care of a child.
Casual employees are eligible for unpaid parental leave if they’ve been working for the same employee regularly for at least 12 months, and there’s a reasonable expectation that they’ll continue to do so.
- How much parental leave am I entitled to?
Australian employees are entitled to 12 months of unpaid parental leave. They can also request an additional 12 months of leave following the initial leave period.
- How do I request to extend my unpaid parental leave?
Employees can generally request an extension of a further 12 months leave (up to 24 months leave in total). The request must be in writing and given to your employer at least four weeks before the end of your initial period of parental leave.
4. Annual leave
All employees except casual workers are entitled to paid annual leave. Full-time and part-time employees get four weeks of annual leave based on their ordinary hours of work (for example, an employee who works 25 hours each week is entitled to 100 hours of annual leave). Shift workers may get up to five weeks of annual leave each year.
- Do I have to take my annual leave each year?
Annual leave can be taken as soon as it’s accumulated, however it doesn’t have to be taken each year. It’s up to each employer and employee to agree on when and for how long annual leave can be taken, however an employer must not unreasonably refuse an employee’s request to take annual leave.
- Can I take annual leave in advance?
Some awards and agreements allow employees to take annual leave in advance where their employer has agreed to it in writing. The agreement must be signed by the employer and employee and detail how much annual leave is being taken in advance and the date this leave will start.
If an employee takes leave in advance and their employment ends before they’ve accumulated it back, their employer can deduct the amount of leave still owing from their final pay.
- Can my employer force me to take annual leave?
An employer can direct an employee to take annual leave if their award or agreement allows it and the request is reasonable. Common examples of reasonable requests to take annual leave include if an employee has an excessive annual leave balance, or the employer has an annual shutdown period (such as between Christmas and New Year).
- How much annual leave is considered ‘excessive’?
An annual leave balance is generally considered to be excessive if an employee has accrued more than 8 weeks of annual leave, or 10 weeks of annual leave if they’re a shift worker.
5. Personal/carer’s leave, compassionate leave and family and domestic violence leave
These forms of leave are designed to help an employee deal with personal illness, caring responsibilities, family emergencies, family and domestic violence leave, and the death or serious illness of close family members.
- How much personal/carer’s leave do I get?
This leave covers both sick leave and carer’s leave. Full-time employees get 10 days each year, while part-time employees receive a pro-rata amount based on their hours of work.
- When can I take personal leave?
Employees can take personal leave if they’re unfit for work because of illness or injury, or must support a member of their immediate family or household due to illness, injury or unexpected emergency.
- Who can I take carer’s leave to support?
You can take carer’s leave to provide care or support to a member of your immediate family or household. This might include your spouse, de facto partner, child, parent, grandparent, grandchild or sibling, or those of your spouse or de facto partner.
- Does my personal/carer’s leave accrue?
Personal/carer’s leave accumulates from year to year and continues to accrue when you take a period of paid personal/carer’s leave or annual leave.
6. Community service leave
Community service leave allows employees to be absent from work to assist with a voluntary emergency management activity (such as dealing with a natural disaster) or jury duty or selection. Employees must be a member of, or have a member-like association with, a recognised emergency management body to access community service leave.
- Is community service leave paid?
Under the National Employment Standards, community service leave is unpaid except in the case of jury duty.
- Is jury duty paid in Australia?
Full-time and part-time employees must be paid ‘make-up pay’ for the first 10 days of jury selection and jury duty in Australia. Make-up pay is the difference between any jury duty payment an employee receives from the court and that employee’s base pay rate for the ordinary hours they would have worked if not performing jury duty. Casual employees don’t get paid for jury duty under the National Employment Standards but they may be entitled to payment under state or territory laws.
7. Long service leave
Employees get long service leave after a lengthy period working for the same employer. Most employee’s entitlements to long service leave are mandated by state or territory laws which set out how long an employee has to work to get long service leave, and how much long service leave that employee gets.
- What is ‘portable long service leave’?
Employees in the coal mining, cleaning and building and construction industries have access to portable long service leave, which means they keep their long service leave entitlement even if they work on different projects for one or more employers.
8. Public holidays
Employees receive difference entitlements on public holidays, which may be different depending on the state or territory they work in. Fair Work provides a complete list of public holidays for each state and territory in Australia at https://www.fairwork.gov.au/leave/public-holidays/list-of-public-holidays.
- What do I get paid if I’m absent from work on a public holiday?
If a full-time or part-time employee is absent from work on a day or part-day that is a public holiday, their employer must pay them the base rate of pay for that employee’s ordinary hours of work on that day. This base rate excludes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates.
9. Notice of termination and redundancy pay
The National Employment Standards establish the minimum entitlement to the notice period, or payment in lieu of notice that an employer must give an employee to end their employment. An employer must provide an employee with written notice of the day of termination when ending their employment and must not terminate an employee unless they have given the minimum period of notice or paid the employee in lieu of giving notice.
- How much notice does my employer need to give when terminating my employment?
The minimum notice period required depends on the period of continuous service you’ve provided to that employer. Under the National Employment Standards, if you’ve been employed for:
- 1 year or less – you’re entitled to a minimum of 1 weeks’ notice
- between 1-3 years – you’re entitled to a minimum of 2 weeks’ notice
- more than 3 years – 5 years – you’re entitled to a minimum of 3 weeks’ notice
- more than 5 years – you’re entitled to a minimum of 4 weeks’ notice
Employees over 45 years old who have completed at least two years of service are given an additional week of notice.
- What redundancy pay am I entitled to?
Employees whose roles are made redundant receive redundancy pay based on their continuous period of service with that employer. This amount is paid at the employee’s base rate for ordinary hours worked and does not include incentive-based payments and bonuses, loading, monetary allowances, overtime or penalty rates.
10. Provision of a Fair Work Information Statement
Under the National Employment Standards (NES), a Fair Work Information Statement must be given to each new employee when they start work. This statement contains information about the NES, modern awards, the Fair Work Act and Fair Work Commission, termination of employment and more.
A copy of the statement is also available on the Fair Work website at www.fairwork.gov.au/fwis.
This article does not constitute legal advice. If you have questions about National Employment Standards, please consult a legal professional.