Australia NES: All 11 National Employment Standards Explained

The National Employment Standards (NES) are the 11 statutory minimum entitlements that apply to every national-system employee in Australia. They sit in Part 2-2 of the Fair Work Act 2009 (Cth), sections 59 to 131. Modern awards, enterprise agreements and common-law contracts cannot reduce the NES — under Fair Work Act 2009 (Cth), s.55, any term that does so is of no effect to that extent.

This guide walks through each of the 11 entitlements with the section numbers, the practical thresholds, and the recent reforms (Closing Loopholes No. 2 Act 2024, Wage Theft criminalisation from 1 January 2025) that have reshaped employer obligations in 2025–2026.

NES 1. Maximum Weekly Hours (s.62–s.64)

A full-time employee’s ordinary hours are 38 per week, plus reasonable additional hours. Whether additional hours are reasonable is determined under s.62(3) by reference to:

• Risk to health and safety;
• The employee’s personal circumstances (caring responsibilities);
• Operational requirements;
• Notice given;
• The employee’s role and pay level;
• Industry pattern.

An employee may refuse unreasonable additional hours. The 38-hour cap is averaged over a period (typically 4 weeks) under modern award provisions or enterprise agreement terms. Casuals and part-timers are pro-rated.

NES 2. Requests for Flexible Working Arrangements (s.65–s.65C)

Eligible employees can request flexible working arrangements. Eligibility (s.65(1A)) extends to:

• Parents of school-age children;
• Carers (within the Carer Recognition Act 2010);
• Employees with disability;
• Employees aged 55+;
• Employees experiencing family or domestic violence;
• Employees supporting a member of their immediate family or household experiencing family or domestic violence.

The employee must have at least 12 months’ continuous service (or be a long-term casual on regular and systematic basis).

Under s.65A, the employer must respond in writing within 21 days, either granting the request or refusing on reasonable business grounds with specified reasons. Disputes go to the Fair Work Commission for arbitration if internal resolution fails (s.65B–s.65C).

NES 3. Parental Leave and Related Entitlements (s.67–s.85)

Eligible employees (12 months continuous service; casuals on regular and systematic basis for 12 months) are entitled to up to 12 months unpaid parental leave, plus a right to request another 12 months under s.76. The employer may refuse on reasonable business grounds.

From 1 July 2023, parental leave is more flexible — both parents can take leave concurrently and split the entitlement. Adoption-related leave parallels birth leave.

The Australian Government separately funds Paid Parental Leave under the Paid Parental Leave Act 2010 (Cth), but that scheme operates outside the NES.

NES 4. Annual Leave (s.86–s.94)

Full-time and part-time employees: 4 weeks paid annual leave per year of service, accruing progressively (s.87). Some shift workers receive 5 weeks under s.87(3). Casuals: no annual leave (the 25% casual loading compensates).

Annual leave loading of typically 17.5% applies where prescribed by the modern award. Accrued leave is paid out on termination under s.90.

NES 5. Personal/Carer’s Leave, Compassionate Leave, FDV Leave (s.95–s.107)

Three sub-entitlements consolidated in this NES:

The FDV leave entitlement (effective from 1 February 2023 for non-small business; 1 August 2023 for small business) applies to all national-system employees — full-time, part-time and casual — and is renewed in full each 12 months (not pro-rated). This last point is among the most-overlooked compliance gaps for casual-heavy employers.

NES 6. Community Service Leave (s.108–s.112)

Employees may take unpaid leave for voluntary emergency activities (RFS, SES, etc.) and paid leave for jury service for up to 10 days (employer top-up between jury allowance and the employee’s base pay).

NES 7. Long Service Leave (s.113)

The Fair Work Act 2009 (Cth) preserves long service leave entitlements that exist under state and territory legislation — there is no federal LSL standard. Each state has its own LSL Act:

• Long Service Leave Act 1955 (NSW);
• Long Service Leave Act 2018 (Vic);
• Industrial Relations Act 1999 (Qld), Pt 6;
• equivalents in WA, SA, TAS, ACT, NT.

Typical entitlement: 8.667 weeks paid LSL after 10 years of continuous service, with pro-rata payout in some circumstances on termination after 7 years.

NES 8. Public Holidays (s.114–s.116)

Employees are entitled to a paid day off on a public holiday (unpaid for casuals). The employer may request work on a public holiday but the request must be reasonable (s.114(2)), and the employee may refuse if either the request is unreasonable or the refusal is reasonable (s.114(3)).

The Federal Court of Australia decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 clarified that an employer must first request the work — assuming the employee will work without a request is a contravention.

NES 9. Notice of Termination & Redundancy Pay (s.117–s.123)

Notice of Termination (s.117)

Plus 1 additional week if the employee is over 45 with at least 2 years’ continuous service (s.117(3)).

The employer can pay in lieu. The contract or modern award may require longer notice — that prevails. Serious misconduct allows summary dismissal without notice (s.117(2)(b)).

Redundancy Pay (s.119)

Scale from 4 weeks (1 year service) up to 16 weeks (≥ 9 years service); after 9 years it tapers back. Small business employers (fewer than 15 employees) generally do not owe redundancy pay (s.121(1)(b)).

The redundancy must be a “genuine redundancy” under s.389 — the role no longer required, consultation per the modern award completed, and redeployment reasonably considered.

NES 10. Superannuation (s.116, as inserted from 1 Jan 2024)

Superannuation is now an NES entitlement under Fair Work Act 2009 (Cth), s.116, as inserted by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth). Operationally, employer obligations are administered under the Superannuation Guarantee (Administration) Act 1992 (Cth), s.19:

• 11.5% of ordinary time earnings from 1 July 2024;
• 12.0% from 1 July 2025.

Contributions are paid quarterly to the employee’s chosen or stapled fund. Reference: https://www.ato.gov.au/businesses-and-organisations/super-for-employers.

NES 11. Fair Work Information Statement & Casual Employment Information Statement (s.124–s.125B)

The Fair Work Information Statement (FWIS) must be given to every new national-system employee before, or as soon as practicable after, they start (s.124). It explains the NES, modern awards, enterprise agreements, the right to request flexible working arrangements, and the role of the FWO and FWC.

The Casual Employment Information Statement (CEIS) must be given to every new casual at engagement and again at 6, 12 months and every 12 months thereafter (s.125B). For small business, the obligation is at start and at 12 months from the 26 August 2024 amendments.

Statements (downloadable PDFs):

• FWIS: https://www.fairwork.gov.au/employment-conditions/information-statements/fair-work-information-statement
• CEIS: https://www.fairwork.gov.au/employment-conditions/information-statements/casual-employment-information-statement

Failure to provide either is a civil penalty contravention under s.539.

How the NES Interacts with Modern Awards and Contracts

The three-tier structure of Australian employment law:

1. NES — applies to every national-system employee.
2. Modern award — industry- or occupation-based instrument made by the FWC under Fair Work Act 2009 (Cth), Pt 2-3. Cannot reduce the NES (s.55).
3. Enterprise agreement / common-law contract — must satisfy the better off overall test against the relevant award (s.193) and cannot exclude the NES.

Practical implication: a clause in any contract that purports to provide less than the NES is void to the extent of the inconsistency, and the NES standard applies. A clause that provides more than the NES is enforceable.

Recent Reforms (2024–2025) Affecting the NES

Penalties for Non-Compliance

Under Fair Work Act 2009 (Cth), s.539 and s.546:

• Civil penalties for NES contravention: up to 60 penalty units for an individual / 300 penalty units for a body corporate per contravention.
• Serious contraventions (s.557A): up to 600 / 3,000 penalty units.
• Wage Theft (s.327A — operative 1 January 2025): intentional underpayment is a criminal offence — maximum 10 years imprisonment / fines up to 3× the underpayment or 5,000 penalty units (individuals) / 25,000 penalty units (body corporate).

Conclusion

The 11 NES entitlements are the floor of Australian employment law for all national-system employees. They cover hours, flexibility, parental leave, paid annual and personal/carer’s leave, FDV leave, community service, LSL, public holidays, termination notice and redundancy, superannuation, and information statements. For employers, NES compliance is non-negotiable, and 2024–2025’s reforms have raised both the entitlements (FDV for casuals, superannuation as NES) and the consequences (wage theft criminalisation). An employment contract that meets the NES on every line is the minimum starting point — not an aspirational target.

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Disclaimer

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Sources

• Fair Work Act 2009 (Cth): https://www.legislation.gov.au/Series/C2009A00028
• Fair Work Ombudsman — National Employment Standards: https://www.fairwork.gov.au/employment-conditions/national-employment-standards
• FWO — FWIS: https://www.fairwork.gov.au/employment-conditions/information-statements/fair-work-information-statement
• FWO — CEIS: https://www.fairwork.gov.au/employment-conditions/information-statements/casual-employment-information-statement
• ATO — Super for employers: https://www.ato.gov.au/businesses-and-organisations/super-for-employers