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If you’re running a business in Australia or planning to hire employees for the first time, it’s important to understand the rules set by the Australian NES (National Employment Standards). These are the fundamental workplace entitlements that apply to employees under the Fair Work Act 2009, setting out a clear baseline for what you need to provide as an employer. Whether you’re hiring one staff member or building a large team, getting on top of NES compliance early will help you avoid common legal pitfalls, build a positive workplace culture, and focus on growing your business with confidence.
In this guide, we’ll break down exactly what the NES is, who it applies to, key minimum entitlements you need to know, and practical steps to ensure you’re meeting NES employment standards in your workplace. We’ll also share some helpful links to further resources from the Sprintlaw team. If you want to make sense of the NES in plain English, you’re in the right place.
What Is the Australian NES?
The Australian NES (National Employment Standards) are a set of 11 minimum employment entitlements that must be provided to all employees covered by the national workplace relations system in Australia. Think of the NES as the foundation of fair workplace conditions – they can’t be reduced or ignored, even if you and your employee agree to something different.
In fact, every employment contract in Australia is subject to the NES. This means that, no matter what’s written in your agreement or award, you must always uphold these basic standards. If you breach them – knowingly or not – you risk legal penalties, back pay claims, or even prosecution by the Fair Work Ombudsman.
Who Does the NES Apply To?
A question we receive often is: Who does the NES apply to? The answer is: almost all employees in Australia.
- All employees covered by the Fair Work Act 2009: This includes employees of any company, sole trader, partnership, or trust engaged in business in Australia, except for a few limited exclusions (like some state government and local government employees in certain states).
- Full-time, part-time, and casual staff: Each type of employee is entitled to certain parts of the NES, with minor differences (for example, casuals have some entitlements tailored to their nature of work – more on this below).
- No exceptions for small business: Even if you only have one employee, the NES still applies.
If you’re not sure whether your workers are truly employees (not contractors), it’s a good idea to get advice – misclassifying workers is a common trap. Read more in Sprintlaw’s guide on employees and contractors.
Why Does NES Compliance Matter for Employers?
Complying with the National Employment Standards isn’t just about doing the right thing by your staff (though that’s always important). It’s also essential for:
- Legal protection: Avoiding penalties and legal disputes (claims for back pay can go back up to six years).
- Building trust: Attracting and retaining good employees who know you’ll treat them fairly.
- Workplace culture: Fostering a positive company reputation and reducing staff turnover.
- Business growth: Freeing you up to focus on expanding your business, rather than worrying about compliance mistakes.
Navigating the NES might seem daunting at first, but once you’re across the basics, staying compliant becomes second nature – especially with the right contracts and workplace policies in place.
What Are the 11 National Employment Standards?
Ready to get down to brass tacks? Here’s a breakdown of the 11 NES minimum entitlements. You’ll notice these standards cover everything from working hours to leave entitlements and redundancy:
- Maximum Weekly Hours: Capped at 38 hours per week for a full-time employee, plus reasonable additional hours (with guidelines on what’s “reasonable”). See more on maximum weekly hours.
- Requests for Flexible Working Arrangements: After 12 months’ service, certain employees (like parents, carers, people with disabilities) can request flexible work hours or arrangements. Employers can only refuse on reasonable business grounds.
- Parental Leave and Related Entitlements: Up to 12 months’ unpaid parental leave and the right to request an additional 12 months. Includes adoption leave, and special maternity leave. Read more in our Parental Leave Guide.
- Annual Leave: 4 weeks paid annual leave for full-time (pro-rata for part-time) employees, plus extra for certain shift workers.
- Personal/Carer’s Leave, Compassionate Leave, and Unpaid Family and Domestic Violence Leave: 10 days paid personal/carer’s leave, 2 days unpaid carer’s leave, 2 days compassionate leave (per occasion), and 5 days of unpaid family and domestic violence leave each year. See our article on personal and carers leave.
- Community Service Leave: Unpaid leave for voluntary emergency activities and jury duty (with some paid jury duty leave).
- Long Service Leave: Entitlement to long service leave based on your state/territory laws or the applicable award/enterprise agreement.
- Public Holidays: A right to take a day off for public holidays, unless reasonable grounds exist to request the employee to work. You can’t pay less than their base rate for a public holiday.
- Notice of Termination and Redundancy Pay: Minimum notice periods (usually 1–5 weeks depending on length of service and age), plus redundancy pay (if applicable) for eligible employees. Under the NES, small businesses (fewer than 15 employees) are exempt from redundancy pay, but not notice requirements. Read our guide to redundancy entitlements for details.
- Fair Work Information Statement: You must give all new employees a copy of the latest Fair Work Information Statement (and the Casual Employee Information Statement if employing casual staff).
- Casual Conversion: Eligibility for “casual conversion” (becoming a permanent employee) for long-term regular casuals, with specific rules about when offers must be made and how requests work.
Many of these standards also tie into other entitlements under the Modern Awards and enterprise agreements. It’s illegal to give less than what the NES requires – even if your employee agrees or signs a contract with different terms.
How Do NES Standards Work With Awards and Employment Contracts?
The NES is the universal “floor” of workplace entitlements in Australia, but your employees might also be covered by:
- Modern Awards: Industry- or occupation-specific documents that give extra pay rates, penalty rates, allowances, or conditions (find more in our Award Wages Guide).
- Enterprise Agreements: Agreements made at a particular business level, between you and a group of employees (and sometimes their union), which must meet or exceed the NES.
- Individual Contracts: Every employee should have a written contract outlining pay, duties, and how the NES (and any award or agreement) applies. See our employment contract templates guide for more.
No matter what, you cannot “contract out” of the NES. If you’re unsure, it’s best to get a contract review from a legal expert to spot any issues.
What NES Entitlements Apply to Casual Employees?
Casual staff have a slightly different relationship with the NES. They are entitled to:
- Unpaid carer’s leave, unpaid compassionate leave, and unpaid family and domestic violence leave
- Community service leave
- Public holidays (unpaid if not rostered on the holiday)
- Shift the right to receive the Fair Work Information Statement and Casual Employee Information Statement
- Eligibility for “casual conversion” after 12 months, if they’ve had regular hours
They do not receive annual leave, paid sick/carer’s leave, or redundancy pay. However, they are usually paid an extra “casual loading” (often 25%) to make up for these missing entitlements. For more, review our article on casual loading.
Flexible Work Arrangements Under the NES
Workplace flexibility is one of the key NES standards. Under the NES, eligible employees can request flexible working arrangements after 12 months’ continuous service (or immediately if they’re a regular casual with a reasonable expectation of continuing work). This might involve:
- Adjusting start/finish times
- Working from home
- Reducing hours or job sharing
You must give careful consideration to these requests and can only refuse on “reasonable business grounds” (for example, if the flexible hours would be too hard on operations or other staff). See our resource on flexible work arrangements for more guidance on processing these requests well.
How To Ensure Compliance With the NES
Whether you’re new to hiring or growing your team, here’s a step-by-step approach to getting NES compliance right:
- Understand the NES basics: Review each of the 11 minimum entitlements and make sure you know how they relate to your workplace (full-time, part-time, or casual staff).
- Check applicable Modern Awards: Many industries have their own award on top of the NES. Look up which award applies to your business and employees.
- Get employment contracts in place: Every staff member should have a written employment contract that incorporates the NES (and any extra terms). Don’t use generic templates – they could leave you legally exposed.
- Set up workplace policies: Make sure your employee handbook includes clear policies on leave, bullying, workplace health and safety, flexible work, and performance management. See our Guide to Writing Staff Policies.
- Keep good records: Document all requests for leave, flexible work, or termination decisions. Provide employees with the right information statements as required by law.
- Consult a legal expert: Whenever you have doubts – like when a Modern Award is unclear or you’re restructuring – ask for advice. It’s often more expensive to fix mistakes than to do things correctly the first time.
Do Employers Need Any Special Documents for NES Compliance?
Some of the most important legal documents for NES and Fair Work compliance include:
- Employment Agreements: Clearly outline pay, hours, entitlements, and NES compliance for each role and type of hire. See our guide to employment contracts.
- Workplace Policies: These manage expectations across leave, performance, discrimination, workplace health and safety, and more. For more, see our staff handbook guide.
- Fair Work Information Statement: Must be given to all new employees (template is available on the Fair Work Ombudsman’s website).
- Casual Employment Information Statement: If employing casuals, you must provide this extra info handout.
- Time and pay records: Keep detailed records of hours worked, leave taken, and pay provided so you can demonstrate compliance if challenged.
If you need custom contracts or a suite of policies for your business, Sprintlaw can help draft and tailor these documents to your specific needs and industry.
Penalties for Non-Compliance With NES Legislation
Not following NES employment standards can lead to serious trouble. The Fair Work Ombudsman conducts regular audits and investigates complaints. If you’ve breached the minimum standards, you may face:
- Orders to pay or reinstate employees
- Back-pay claims for underpaid entitlements (going back up to six years)
- Financial penalties (up to $18,780 for individuals and $93,900 for companies per breach)
- Negative publicity (which can hurt recruitment and reputation)
Even accidental non-compliance can be costly. That’s why it’s crucial to check your internal processes, review contracts and policies, and seek help if you’re not sure where you stand.
Key Takeaways: NES Compliance for Australian Businesses
- Australian NES (National Employment Standards) set out 11 minimum workplace entitlements every employer must provide under the Fair Work Act 2009.
- The NES applies to almost all employees, whether full-time, part-time, or casual (with different entitlements for casuals).
- You cannot contract out of the NES – any agreement, policy or award that offers less than the NES is illegal and unenforceable.
- Modern Awards, enterprise agreements and employment contracts must all meet or exceed the NES.
- Employers must provide information statements, accurate pay and leave records, a compliant employment contract for each employee, and clear workplace policies.
- Penalties for breaches are severe; proactive compliance saves time, money, and stress in the long run.
- Getting the right legal documents in place and seeking legal advice can help ensure you stay compliant with all relevant NES legislation.
If you would like a consultation on NES compliance or employment law for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
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