The National Employment Standards

The National Employment Standards

The National Employment Standards under the Fair Work Act 2009 (Cth) are 12 legislated minimum standards.

What are the 12 National Employment Standards?

1. Maximum weekly hours

The National Employment Standards provide maximum working hours of 38 hours per week for full-time employees. For employees who are not full-time employees (part-time or casual employees), weekly hours must not exceed the lesser of the employee’s ordinary hours or 38 hours.

Calculating an employee’s ordinary hours of work will depend on whether a modern award or an enterprise agreement applies to that employee:

1. Where a modern award or enterprise agreement applies to an employee the ordinary hours of work for that employee will be those hours set out in the modern award or enterprise agreement.

2. Where a modern award or enterprise agreement does not apply to an employee the ordinary hours of work for an award/agreement free employee are the hours agreed to between the employee and their employer.

3. If no such agreement is reached, ordinary hours of work will be the employee’s usual weekly hours of work. Regulations may be made to specify the usual weekly hours of work for an award/agreement free employee who is not a full-time employee and who does not have usual weekly hours of work.

An employee can be required or requested to work reasonable additional hours. There are a number of factors that must be considered in determining whether additional hours are reasonable, including:

any risk to employee health and safety from working the additional hours
the employee’s personal circumstances, including family responsibilities
the needs of the workplace or enterprise in which the employee is employed
notice given by the employer of any request or requirement to work the additional hours
notice given by employee of his or her intention to refuse to work additional hours
whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours
patterns of work in the industry
nature of employee’s role and level of responsibility, and
an employee may refuse to work the additional hours if they are not reasonable.

The National Employment Standards allow modern awards and enterprise agreements to provide for the averaging of hours. This does not undercut the weekly hours guarantee but is relevant in considering if additional hours are reasonable. Employers and award/agreement free employees may also agree on the averaging of hours over a maximum period of 26 weeks [ss 62-64].

2. Requests for flexible working arrangements

The National Employment Standards give employees (who have 12 months of continuous service or regular and systematic service as a casual which is expected to continue) the right to request a change to working arrangements in some circumstances [s 65(1) and (2)].

These circumstances include where the employee [s 65(1)-(1B)]:

is a parent or has responsibility for the care of a child who is of school age or younger
is a carer (under the Carer Recognition Act 2010 (Cth))
has a disability
is 55 years or older
is experiencing family or domestic violence
is supporting a member of their household or immediate family who is experiencing family or domestic violence.

The request must be in writing and detail the change sought and reasons for the change [s 65(3)]. The employer must give the employee a written response within 21 days [s 65A(1)]. The response must [s 65A(2)]:

state that the employer grants the request, or
state what they have agreed following discussion with the employee if it differs from that set out in the original request, or
state that they refuse the request setting out:
- how they have complied with the requirements in considering the request [s 65A(2)(c) and (3)] and their reasons [s 65A(6)].

A request may only be refused if [s 65A(3)]:

the employer has discussed the request with the employee, and
they have genuinely tried to reach an agreement with the employee about making changes to the working arrangements to accommodate the circumstances, and
they have not reached an agreement, and
they have had regard to the consequences of the refusal on the employee, and
the refusal is on reasonable business grounds [s 65A(5)].

In their written reasons for refusal, an employer must:

detail their reasons
set out the employer’s particular business grounds for refusing and how those grounds apply to the request
state what changed working arrangements other than those requested (if any) they could accommodate, and
set out how continued dispute about the request can be referred to the Fair Work Commission under section 65B and to arbitration under section 65C.

The National Employment Standards do not provide a complete definition as to what constitutes reasonable business grounds, but provide examples which include that it would be too costly, or that there is no ability to adapt other employees' work arrangements to accommodate the requested arrangements [s 65A(5)].

These provisions are not intended to displace state and territory laws that provide employee entitlements in relation to flexible work arrangements if they are more beneficial to employees [s 66].

3. Offers and requests to convert from casual to permanent employment

The National Employment Standards provide casual employees a right to become a permanent (full-time or part-time) employee in some circumstances. This is known as ‘casual conversion’ and is outlined in Division 4A of the Act. This can be a requirement for an employer to offer casual conversion, or a right that a casual employee can request themselves. Small business employers do not have to offer casual conversion to casual employees [s 66AA]. However, a casual employee can make a request themselves if certain requirements are met.

4. Parental leave and related entitlements

The National Employment Standards give employees (who have 12 months of continuous service or regular and systematic service as a casual which is expected to continue) access to up to 24 months unpaid leave in relation to the birth of a child or the placement for adoption of a child under 16 years old [ss 67-79]. This entitlement extends to same sex couples. Parents impacted by stillbirth or infant death who would have been entitled to unpaid parental leave that is birth-related, if the child had been born alive, is still entitled to the leave [s 77A(1)].

An employee is entitled to 12 months unpaid parental leave in the first instance [s 70]. An extension to this leave may also be sought, as outlined below.

The Fair Work Act 2009 (Cth) also gives access to flexible unpaid parental leave options. An employee may take up to 100 days of unpaid parental leave (flexible unpaid parental leave) during the 24‑month period starting on the date of birth or day of placement of the child if certain requirements are met [see section 72A]. A pregnant employee may take this leave from 6 weeks before the expected date of birth of the child [s 72A(2A)]. The employee must take the flexible unpaid parental leave as a single continuous period of one or more days, or separate periods of one or more days each[ s 72A(3)]. The flexible unpaid parental leave is unpaid parental leave, and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70 of the Act [s 72A(5)]. From 1 July 2023, there is no longer a restriction on taking ordinary unpaid parental leave following a period of flexible unpaid parental leave. Flexible unpaid leave can now be taken either prior to or following a period of ordinary unpaid parental leave under section 70 of the Act.

Please visit the Fair Work Ombudsman Maternity & Parental Leave website for further information.

An employee who has taken 12 months of unpaid parental leave may request an extension for a further period of up to 12 months. The available extension period will be reduced by any parental leave or special maternity leave taken by the employee’s partner. A request for extension may only be refused on reasonable business grounds. The request must be in writing at least 4 weeks before the end of the initial parental leave period of 12 months [s 76(2)]. The employer must give the employee a written response within 21 days which must either:

state that the employer grants the request, or
state what they have agreed to following discussion with the employee if it differs for the period set out in the original request, or
state that they refuse the request setting out:
- how they have complied with the requirements in considering the request [s 76A(2)(c)] and their reasons [s 76A(6)].

A request may only be refused if [s 76A(3)]:

the employer has discussed the request with the employee
they have genuinely tried to reach an agreement with the employee about the extension of the period of unpaid parental leave
they have not reached an agreement
they have had regard to the consequences of the refusal on the employee, and
the refusal is on reasonable business grounds [s 76A(5)].

The National Employment Standards do not provide a complete definition as to what constitutes reasonable business grounds, but provide examples which include that it would be too costly, or that there is no ability to adapt other employees' work arrangements to accommodate the requested arrangements [s 76(5)].

In their written reasons for refusal, an employer must:

detail their reasons
set out the employer’s particular business grounds for refusing and how those grounds apply to the request
state what changed working arrangements other than those requested (if any) they could accommodate, and
set out how continued dispute about the request can be referred to the Fair Work Commission under section 65B and to arbitration under section 65C.

The Fair Work Ombudsman and Services Australia have information available about the Australian Government Parental Leave Pay (PLP) system.

5. Annual leave

The National Employment Standards provide 4 weeks paid annual leave for each year of service. A shift worker (as defined by a modern award or enterprise agreement or, in the case of an award/agreement free employee, the Fair Work Act 2009 (Cth)) is entitled to 5 weeks annual leave.

Modern awards and enterprise agreements may include provisions dealing with cashing out of annual leave. Employers and award/agreement free employees may also agree to cash out. An agreement to cash out annual leave must be in writing and the payment must be for the full amount that the employee would have been paid if the employee had taken the leave. The employee must retain a balance of 4 weeks annual leave after the cash out.

Awards and agreements can also include provisions about taking or directing the taking of annual leave [ss 86-94].

6. Personal/carer's leave and compassionate leave, and paid family and domestic violence leave

Under the National Employment Standards, employees (other than casual employees) are entitled to 10 days paid personal/ carer’s leave. In August 2020, the High Court held that what is meant by a "day" or "10 days" must be calculated by reference to an employee's ordinary hours of work. One "day" refers to a 'notional day' consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. Therefore, the entitlement to "10 days" of paid personal/carer's leave can be calculated as 1/26 of an employee's ordinary hours of work in a year.

All employees are entitled to 2 days of unpaid carer’s leave per occasion (this entitlement applies to casual employees and other employees who have exhausted their paid leave entitlement).

Employees are also entitled to 2 days of paid compassionate leave per occasion (for casual employees, this is an unpaid entitlement). This includes up to 2 days of paid leave if the employee or their current spouse or de facto partner has a miscarriage (unpaid for casual employees).

Carer’s leave and compassionate leave entitlements may be taken in relation to a member of the employee’s household or ‘immediate family’ (this includes extended and blended families, de facto partners, step-relationships and adoptive relationships).

When taking personal/carer’s leave and compassionate leave, employees must:

provide notice to their employer as soon as is reasonably practicable (which may be a time after the leave has started);
state the period, or expected period, of the absence if required by the employer—provide evidence that would satisfy a reasonable person of their entitlement to take the relevant kind of leave. Modern awards and enterprise agreements may include further rules relating to evidence requirements, such as the provision of medical certificates.

Modern awards and enterprise agreements may allow for the cashing out of personal leave, provided certain conditions are met to ensure employees are protected (that is, the employee must retain a balance of 15 days paid leave after the cash out). An award/agreement free employee is not able to cash out personal/carer’s leave [ss 95-106].

NOTE:

To be protected from unlawful dismissal due to temporary absence due to illness [s 352 of the Fair Work Act 2009 (Cth)], a medical certificate should be provided to the employer within 24 hours or as is reasonable in the circumstances [see regulation 3.01 Fair Work Regulations 2009 (Cth)]. It is always advisable to provide a medical certificate to your employer if absent due to illness as soon as possible.

From 1 February 2023, most employees (full-time, part-time, or casual) are entitled to 10 days of Paid Family and Domestic Violence Leave per 12 months of service. This entitlement commenced for employees of small businesses (less than 15 employees) on 1 August 2023. More information is available on Getting help from an employer or from the Fair Work Ombudsman.

7. Community service leave

The National Employment Standards provides a paid entitlement for employees required to attend jury service and unpaid leave for those who engage in a voluntary emergency management activity.

An employee is entitled to be paid by their employer for a period of up to 10 days while they are absent from work during a period of jury service. An employer may require the employee to obtain payments to which they are eligible from the applicable State/Territory or Commonwealth body; these payments will reduce the amount payable to the employee.

These provisions are not intended to displace State and Territory laws that provide employee entitlements in relation to engaging in eligible community service activities, if they are more beneficial to employees [ss 108-112].

8. Long service leave

The Federal government will work with the States and Territories to develop a uniform minimum long service leave standard. The National Employment Standards provide transitional arrangements while the new national standard is being developed.

Existing agreement entitlements continue to apply in South Australia [the Long Service Leave Act 1987 (SA)].

If an agreement is terminated, the National Employment Standards entitlement to Long Service Leave (the entitlement in the relevant pre-modernised award or, in some cases, pre-commencement multi-State agreement) or State/Territory legislation will apply in any future agreement.

There is limited scope to discount Long Service Leave where a pre-commencement agreement specifically excluded Long Service Leave [s 113].

9. Public holidays

The public holidays National Employment Standard allows employees to be absent from work on specified public holidays and to be paid for the hours they would normally work.

Public holidays may be substituted by agreement between an employer and an award/agreement free employee or if permitted under the terms in a modern award/enterprise agreement.

An employer may request an employee to work on a public holiday if the request is reasonable. The request may be refused if it is unreasonable or the employee’s refusal is reasonable. The National Employment Standard provides a non-exhaustive list of factors to be taken into account when determining the reasonableness of a request or refusal, which include [ss 114-116]:

the nature of the employer’s workplace and the work performed by the employee
the employee’s personal circumstances, including family responsibilities
whether the employee could reasonably expect that the employer might request work on the public holiday
whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working on the public holiday, or receives remuneration that takes into account the expectation the employee will work on a public holiday
the type of employment of the employee (for example, full‑time, part‑time, casual or shift work)
the amount of notice in advance of the public holiday given by the employer when making the request
in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request.

In the case of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 handed down by the Full Court of the Federal Court of Australia on 28 March 2023, the distinction between a requirement or a request that an employee work a public holiday was considered. Their Honours stated at paragraphs 30 and 31:

Section 114 comprises one of the suite of NES which provide specific minimum entitlement protections for employees. It is clear from s 114(1) that the prima facie position is that an employee is entitled to be absent from his or her employment for a day or part day that is a public holiday. Not only is the employee entitled to be absent but also is entitled to be paid for that day of absence: s 116. The NES comprise standards which apply to the employment of employees, which “cannot be displaced”, regardless of contractual compulsion or where, as recognised under the [Fair Work] Act, an enterprise agreement includes terms of the kind referred to in s 55(5): s 61(1) of the FW Act. Furthermore, in circumstances where those provisions are contravened, an employer can be the subject of civil penalties by operation of s 44.

31 An employee is entitled to be absent from work on a public holiday, unless the exceptions under s 114(2)–(3) apply: An employer has “request[ed]” the employee to work and the request is reasonable (s 114(2), 3(a)) or the employee’s refusal is not reasonable (s 114(3)(b)).

10. Superannuation contributions

From 1 January 2024, the National Employment Standards include a right to superannuation contributions [s 116B]. While employers were already required to pay superannuation contributions for eligible employees under superannuation guarantee legislation prior to 1 January 2024, including it in the National Employment Standards will facilitate the recovery of unpaid or underpaid superannuation under the Fair Work Act 2009 (Cth).

The Australian Taxation Office (ATO) will remain the primary agency responsible for ensuring compliance with superannuation contribution requirements. Section 116D of the Fair Work Act 2009 (Cth) prevents an application to the courts for recovery of superannuation under the National Employment Standards if the ATO has already commenced legal proceedings in respect of the same matter.

11. Notice of termination and redundancy pay

An employer must provide an employee with written notice of the day of termination of employment [ss 117-118].

An employer must provide notice of termination or payment in lieu of that notice. The required period of notice is set out in a table in the National Employment Standards.

An employee who has worked continuously for one year or more, whose position is made redundant (as defined in the National Employment Standards) is entitled to a payment based on years of continuous service with an employer. Businesses with less than 15 employees are exempt from this National Employment Standard [ss 119-121].

Exclusions apply including:

an employee employed for a specified period of time, for a specified task, or for the duration of a specified season
an employee whose employment is terminated because of serious misconduct
a casual employee
in some situations where the employer has found suitable alternative employment for the employee
where there is an industry-specific scheme for redundancy in the modern award
an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement [see generally ss 120-123].

12. Fair Work Information Statement and Casual Employment Information Statement

The National Employment Standards require employers to give each new employee a copy of the Fair Work Information Statement containing information on key elements of the new system. Key elements include the roles of the Fair Work Commission and the Fair Work Ombudsman, the National Employment Standards, modern awards, agreement making and freedom of association. The Fair Work Information Statement must also contain information on individual flexibility arrangements, employee records and privacy and termination of employment.

An employer must give each new employee a copy of the Fair Work Information Statement (published by, and available from the Fair Work Ombudsman) prior to or as soon as practicable after commencement of employment [ss 124-125].

The National Employment Standards also require that employers must give a Casual Employment Information Statement (CEIS) to new casual employees when they start work. If an employer employs the employee more than once in a 12-month period, the CEIS is not required to be given more than once. Transitional rules apply for existing workers. Small business employers need to give their existing casual employees (employed before 27 March 2021) a copy of the CEIS as soon as possible after 27 March 2021. All other employers have to give their existing casual employees (employed before 27 March 2021) a copy of the CEIS as soon as possible after 27 September 2021 [see sections 47, 47A, 125A, 125B].

The National Employment Standards apply for employees not covered by awards or enterprise agreements

The National Employment Standards operate even if an employee is not covered by a modern award or enterprise agreement. The national minimum wage also applies to those employees.

The Miscellaneous Award 2020is the modern award which provides minimum entitlements for employees who are not covered by another (industry or occupation-based) modern award and who are performing work of a similar nature to that which has historically been regulated by award.

The National Employment Standards : Last Revised: Wed Jan 3rd 2024
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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