National Employment Standards

Based on the contribution of Craig Dowling and Neill Campbell for The Law Handbook 2016, published by Fitzroy Legal Service, originally amended by ClareMcKenzie for the NT Law Handbook, as amended by Bradley Allen Love Lawyers, Canberra, by Gabrielle Sullivan, May Oboodi and Robert Allen and current to March 2018.

The National Employment Standards (NES) are minimum employment standards that apply to employees covered by the Fair Work Act, which includes most employees in Australia. The NES are enshrined in legislation and therefore cannot be displaced by Awards, Enterprise Agreements or employment contracts (unless specifically provided for in the Fair Work Act).

While permanent employees (namely full-time and part-time employees) are entitled to the benefit of all the standards, casual employees are only entitled to a limited number of the benefits. In order to determine which standards are applicable to a particular casual employee, regard must be had to the specific circumstances of their employment.

Two key standards, notice of termination or payment in lieu, and redundancy pay are discussed in greater detail below.

In summary, the ten NES found in Part 2-2 of the Fair Work Act are:

1. Full-time employment means a maximum of 38 hours per week, subject to additional hours if reasonable and the averaging of hours over a period of time;
2. The right to request flexible working arrangements in circumstances specified by the Fair Work Act, including caring responsibilities for a child. The employer must respond in writing and can only refuse on reasonable business grounds;
3. Parental leave and related entitlements of, among other things, 12 months unpaid parental leave to care for a child;
4. Annual leave of four weeks accrued for each year of service (or five weeks for shift workers), as defined;
5. Personal/carer's leave of 10 days paid per year with the possibility of further unpaid days in defined circumstances, and compassionate leave of two days per year in defined circumstances;
6. Community service leave for an employee to undertake a defined type of community service, such as volunteering for a fire fighting body, in defined circumstances;
7. Long service leave as provided by a pre-reform award, unless excluded by an Enterprise Agreement. If there is no Federal Award or Enterprise Agreement entitlement, the Long Service Leave (Portable Schemes) Act 2009 (ACT) or Long Service Leave (Commonwealth Employees) Act 1976 (Cth) will apply;
8. The entitlement to be absent from work on public holidays specified in the Fair Work Act, unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing;
9. Notice of termination or pay in lieu and redundancy pay (discussed further below); and
10. Employers must provide employees with a Fair Work Information Statement, available at www.fairwork.gov.au.

Notice of termination or pay in lieu

Notice of termination and pay in lieu of termination are key elements of the NES. Pay in lieu occurs when, instead of giving an employee notice that their employment is to be terminated, an employer pays the employee’s wages for a period in lieu of giving them notice. In short, instead of giving notice of between 1 or 4 weeks (depending on the employee’s period of service), the employer can immediately terminate their employment provided they pay the employee’s wages for the applicable period, as set out in the following table.

Employee’s period of continuous service with the employer at the end of the day the notice is given	Period*
Not more than 1 year	1 week
More than 1 year but not more than 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks
*The period of notice is increased by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer.

Redundancy pay

Redundancy occurs when an employer no longer requires an employee’s job to be performed by anyone. Often, an employee is made redundant when the employer goes out of business. However, redundancies may also be necessary as a result of changing business needs and conditions.

Nevertheless, it may be the case that employee can bring an unfair dismissal claim if they were not made genuinely redundant. This is discussed further at Unfair Dismissal.

When an employee is made redundant, the NES requires that permanent employee receive redundancy pay. The amount of redundancy pay the employee is entitled to equals the total amount payable to the employee for the redundancy pay period at the employee’s base rate of pay for their ordinary hours of work according to the table below:

Employee’s period of continuous service with the employer on termination	Redundancy pay period*
At least 1 year but less than 2 years	4 weeks
At least 2 years but less than 3 years	6 weeks
At least 3 years but less than 4 years	7 weeks
At least 4 years but less than 5 years	8 weeks
At least 5 years but less than 6 years	10 weeks
At least 6 years but less than 7 years	11 weeks
At least 7 years but less than 8 years	13 weeks
At least 8 years but less than 9 years	14 weeks
At least 9 years but less than 10 years	16 weeks
At least 10 years	12 weeks
*The redundancy pay period may also be increased for employees who are over 45 years old and who have completed at least 2 years of continuous service with the employer.