A Jargon-Free Guide to the National Employment Standards

In 2010, the Australian Government established the National Employment Standards (NES) to provide a set of 11 minimum requirements that all employers must comply with.

The NES covers a range of topics such as maximum weekly hours, annual leave, parental leave, and notice of termination, among others. 

The purpose of the NES is to provide a safety net of minimum employment conditions that all workers in Australia are entitled to. By ensuring that all employers treat their workers fairly and provide them with basic protections, the NES helps to create a level playing field for businesses and employees alike. 

While the NES is not meant to be an exhaustive list of employee rights, it provides an important foundation on which employers and employees can build fair and productive working relationships.

Unfortunately, Fair Work documents are often filled with legal jargon, making it difficult to understand exactly what obligations you have to adhere to.

So, to help ensure that you are treating your employees fairly and that you’re remaining compliant, here is an easy-to-understand, jargon-free guide to the National Employment Standards.

• Maximum weekly hours of work
• Request flexible working arrangements
• Parental leave and related entitlements
• Annual leave
• Personal/carer's leave and compassionate leave
• Community service leave
• Long service leave
• Public holidays
• Notice of termination and redundancy pay
• Fair Work Information Statement
• The right to request a casual conversion

Now let’s look at each one in more detail.

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Factors which determine whether extra hours are reasonable include: 

• risks to the employee's health and safety, 
• an employee’s family obligations, 
• whether the employee is being paid overtime, and 
• business needs. 

In most cases, working reasonable additional hours is only allowed if it is truly necessary and would not unduly impact the employee's wellbeing.

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This means that employees can request things like reduced hours, flexible start and finish times, and the ability to work from home. 

While employers are not required to grant every request, they must give each request serious consideration. 

Eligible employees include: 

• Parents 
• Carers 
• Employees with disabilities 
• Employees aged 55 years or older
• Employees experience domestic or family violence 
• Employees who care for immediate family members who are experiencing domestic or family violence 

Example

Megan wants to start working at 9:30 am instead of 8:00 am so she can take her daughter to school. She is an eligible employee because she is a parent, so she can request flexible working arrangements to help her care for her daughter.

Philip, who is a 57-year-old employee, wants to finish early on Fridays to pick up his grandchildren from school. He can request flexible working arrangements because he is over 55 years old and therefore eligible to do so.

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Parental leave applies to: 

• Birth-related leave (including in relation to premature birth, stillbirth or infant death)
• Paternity and partner leave
• Adoption-related leave (including pre-adoption leave)
• Unpaid special maternity leave

Other related entitlements under this standard include the right to return to their employment position after the maternity leave and the request to transfer to a job position with a safer description. 

To be eligible for parental leave, employees must have completed 12 months of continuous service with their employer. They are then entitled to up to 12 months of unpaid leave, as well as the right to ask for an additional 12 months of unpaid leave.

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Annual leave can be taken all at once, or in smaller blocks depending on how much leave they have accrued at the time of the request. 

Example

Gregory is a part-time admin employee at a pathology lab. He averages around 20 hours per week for a year. So, during that year, he will accrue 80 hours of annual leave (which is equivalent to 4 weeks work).

Certain shift workers generally receive an extra week of annual leave, so they can take up to five weeks each year. 

You might be interested in reading: Everything You Need to Know About Annual Leave

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There are a different number of leave days depending on the purpose of the leave that a full-time employee intends on taking:

• 10 days paid personal/carer’s leave
• 2 days unpaid carer’s leave as required
• 2 days paid compassionate leave as required
• 5 days unpaid family and domestic violence leave (in a 12-month period)

Part-time employees can also take personal/carer’s leave, compassionate leave, and domestic violence leave, but you will need to calculate the number of applicable days on a pro-rata basis. 

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Voluntary emergency activities include activities undertaken in response to a natural disaster or an imminent threat of serious damage to property or the environment, such as firefighting or cleaning efforts are a flood.

The number of days that employees are entitled to take will depend on how long they engage in the community service activity. 

Jurors can take up to 10 days of paid leave. 

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Depending on state and territory laws, modern awards and enterprise agreements, employees can take long service leave after a period ranging from 7 to 15 years. 

Example 

Luke has worked for Lowes at Westfield Miranda in NSW for 12 years. Because he ​​been working for the same employer for more than 10 years, he is entitled to 2 months (or 8.67 weeks) paid leave according to the NSW laws. 

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It’s also worth noting that public holidays are dependent on where your employee works, not where they are working on the day of the public holiday. 

Example 

Laura works for a company based in Sydney. During October however, she was sent to complete a job in Brisbane. During her interstate visit, Sydney observed Labour Day on 3 October. As Laura’s usual place of employment is Sydney, she is entitled to the public holiday  for that day, even though it is not a public holiday in Queensland where she is physically working.

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The NES also proposes redundancy pay according to an employee’s period of continuous service: 

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Under the NES, employers must provide the Fair Work Information Statement to all new employees. It is also mandatory for casual employees to receive the Casual Employment Information Statement.

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Within 21 days after an employee's 12-month anniversary, employers (except small business employers) must make a written offer to convert the employee to permanent employment if:

• they have worked there for at least 12 months;
• has worked a regular pattern of hours on an ongoing basis for at least the last 6 month; and
• could continue working these hours as a full-time or part-time employee without significant changes.

If you decide not to convert a casual employee’s contract after 12 months, you need to inform them, in writing, of the reasons why within 21 days. It’s worth noting that you can only refuse casual conversion if there are reasonable grounds to do so, including:  

• there would be significant changes to their hours of work;
• the position may not exist in the next 12 months;
• the position may reduce in the number of hours within the next 12 months, or 
• there would be significant changes in the working day and times within the next 12 months that don’t suit the employee’s availability

Example 

Patrica works as a casual employee at Coles and is responsible for stocking shelves. After working there for 12 months, her employer wrote her letter to inform her that they won’t be making an offer to convert her casual employment to permanent. 

Their reasoning was because Patricia had only worked a regular pattern of work for the last 3 months.

She continues to work a regular pattern of work for the next 3 months, meaning she has now worked a regular pattern of work for the last 6 months. She then checks that she is eligible and makes a request to her employer to reconsider the conversion. 

Even though they wrote to her 2 months ago, Patricia’s employer has to consider her request. 

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There are, however, certain limitations on the entitlements that apply to casual employees. In other words, you don’t need to afford all of the minimum entitlements under the NES to your staff who are employed on a casual basis. 

The Fair Work does, however, mandate that you cover the following standards for all casual employees: 

• The maximum of 38 hours per week 
• At least 2 days unpaid carer’s leave and 2 days unpaid compassionate leave per occasion
• At least 5 days unpaid family and domestic violence leave (in a 12-month period)
• Community service leave (except paid jury service)
• Public holidays (unless it’s reasonable to expect them to work) 
• The right to casual conversion 

In addition, you must allow your casual employees to submit requests, should they wish, to take parental leave or for flexible working arrangements if they have been working for you for at least 12 months and you reasonably expect them to continue working there in the future. 

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This helps to ensure that all employees have access to basic rights and entitlements, no matter where they work.

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The standards cover topics such as hours of work, annual leave, personal/carer's leave, parental leave, and more. Understanding these standards is important for all employers, as non-compliance can result in penalties of up to $66,000. 

To mitigate the potential risk of non-compliance, you may want to consider implementing cloud payroll to automate your processes. Cloud pay payroll can help ensure compliance with the national employment standards by providing tools and resources that make it easy to understand and comply with the standards. 

Beyond helping with NES compliance, cloud payroll software, such as Employment Hero Payroll, can provide a range of other tools to make managing your payroll obligations easier. 

Here’s how Employment Hero cloud payroll works:

• Time and Attendance
  Employees clock their time using NoahFace time and attendance software that syncs all data with Employment Hero's cloud payroll software.
• Live Timesheet Approval
  No more manual entries or paper timesheet approvals. Supervisors and managers approve time and attendance on the go directly on Employment Hero Payroll.
• Automated Modern Awards Compliance
  Employment Hero Payroll’s pre-built modern Awards make it easy for payroll managers to pay staff correctly, each and every pay run.
• Automated Payslips
  Create and customise Fair Work compliant payslips that can be easily accessed in the Employment Hero Payroll cloud.
• Payroll Complete In Under an Hour with Employment Hero Payroll
  Never get it wrong. No back pay calculations. No inefficient manual interpretation. No data re-entry. Stress-free paydays that take less than an hour to complete!

If you’re interested in moving from a manual payroll system to Employment Hero Payroll, get in touch with us today for a free demo.