WR 2009/4: National Employment Standards

Last updated: 23 Sep 2009

This page is: current

This Advice is to provide agencies and authorities with key information about the National Employment Standards (NES) and how they will interact with enterprise agreements and other workplace arrangements.

The National Employment Standards

2. The NES are minimum standards that will apply to all employers and employees in the national workplace relations system from 1 January 2010. A summary of the provisions contained in the NES is at Attachment A. Please note that this summary is not intended to be a definitive document and that agencies should seek legal advice or further policy advice where appropriate.

3. The Australian Fair Pay and Conditions Standard will continue to apply until 31 December 2009.

Interaction between agreements and the National Employment Standards

4. The NES will apply to existing agreements and other workplace arrangements (such as common law agreements and determinations made under s.24(1) of the Public Service Act 1999) in operation on 1 January 2010 on a no detriment basis, as well as agreements made on or after 1 January 2010. This means that the NES will prevail over an existing agreement or arrangement to the extent that there is any detriment, in any respect, when compared to an entitlement in the NES.

5. The NES underpin what can be included in enterprise agreements.

6. An enterprise agreement must not include terms that seek to exclude or disregard the NES or any provision of the NES.

7. An enterprise agreement may include the following kinds of terms:

  • terms that are ancillary or incidental to the operation of an entitlement of an employee under the NES;
  • terms that supplement the NES; but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the NES; and
  • terms that have the same effect as provisions of the NES.
8. This would allow, for example, an enterprise agreement to provide for paid leave where an NES entitlement exists for unpaid leave (such as community service leave), as such a term would supplement the NES.

Contravening the National Employment Standards

9. Employers must not contravene any provisions of the NES.

10. A person who contravenes a provision of the NES may be subject to a maximum civil penalty of 60 penalty units (currently equivalent to $6,600) in the case of an individual, and 300 penalty units (currently equivalent to $33,000) in the case of a body corporate, and may also be ordered to pay amounts to a person that should have been paid in accordance with the NES.

11. In addition, all new enterprise agreements must contain a dispute resolution clause in accordance with subsection 186(6)(ii) of the Fair Work Act 2009 (FW Act) that provides for Fair Work Australia (FWA) or another independent person to settle disputes in relation to the NES. Agencies and authorities which are subject to the Australian Government Employment Bargaining Framework (AGEBF) should note that Part 1.9 of the AGEBF requires the adoption of the model dispute resolution term from the Fair Work Regulations 2009 in new enterprise agreements. This model term includes procedures for resolving disputes relating to the NES.

12. When approving an enterprise agreement FWA must be satisfied that the terms of the agreement do not contravene the NES.

Key issues to note for Australian Government agencies

13. This section highlights some important matters regarding the NES that Australian Government agencies should note, based on provisions commonly found in current agreements.

Extension of unpaid parental leave period

14. Section 76 of the FW Act allows for an employee to request an extension of unpaid parental leave for a further period of up to 12 months immediately following the end of the available parental leave period.

15. As the NES operate in conjunction with the Maternity Leave (Commonwealth Employees) Act 1973, Commonwealth employees will be eligible to request additional unpaid leave in accordance with the NES.

Cashing out of annual leave

16. The NES will require an employee to retain a balance of four weeks’ entitlement to paid annual leave after cashing out an amount of the employee’s accrued annual leave.

17. The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 enables the continued operation of a term in a transitional instrument for the cashing out of paid annual leave. However these terms are now subject to the protections set out in subsection 93(2) of the FW Act. These protections are set out in Attachment A at point 4.

Personal/carer’s leave

18. While section 101 of the FW Act provides for employees to cash out personal leave, it remains Australian Government policy not to allow the cashing out of personal leave in Australian Government employment.

19. Under the NES eligible casual employees may be entitled to certain unpaid leave entitlements such as carer’s leave and compassionate leave.

Redundancy arrangements and interaction with the NES

20. Agencies need to be aware that the NES provide greater redundancy pay entitlements than the APS in some circumstances and that the NES overrides the standard APS entitlement where it is more generous.

21. The NES provide a greater entitlement when the employee’s length of service is at least two years but less than three years and when the employee’s length of service is at least three years but less than four years. The typical APS redundancy entitlement for two to three years service is four weeks (plus pro rata for completed months of service) compared to the NES redundancy entitlement which is six weeks. The typical APS redundancy entitlement for three to four years service is six weeks (plus pro rata for completed months of service) compared to the NES redundancy entitlement which is seven weeks.

22. Part 4.5 of the Supporting Guidance to the AGEBF provides further information on the redundancy requirements applicable to APS enterprise agreements made on or after 1 September 2009, including the interaction between APS redundancy entitlements and the NES.

Provision of the information statement

23. From 1 January 2010 employers must provide new employees with a copy of the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment. The Fair Work Ombudsman will prepare and publish the Fair Work Information Statement.

DEEWR assessments

24. Where an enterprise agreement or collective determination has been provided to DEEWR for assessment, DEEWR will seek to identify potential inconsistencies with the NES and provide advice, to the extent possible.

Further information and advice

25. Should you require any further information or assistance on this matter, please contact your APSC Client Contact directly, email agebf@apsc.gov.au.

Helen Bull

Branch Manager
Public Sector Branch

Attachment A: Summary of provisions in the National Employment Standards (NES)

Chapter 2, Part 2-2 of the Fair Work Act 2009 sets out the NES.

1. Maximum weekly hours of work (division 3)

An employer must not request or require an employee to work more than 38 hours in a week for a full time employee, or the lesser of 38 hours and the employee’s ordinary hours of work in a week for an employee who is not a full-time employee, unless the additional hours are reasonable. The NES set out the criteria for determining whether additional hours are reasonable.

2. The right to request flexible working arrangements (division 4)

If an employee is a parent or has responsibility for the care of a child, the employee may request a change in working arrangements, to assist them care for the child. The child must be under school age[1] or under 18 and have a disability.

Employees can request a change if they:

  1. have completed at least 12 months of continuous service with the employer immediately before making the request; or
  2. they are a long term casual employee of the employer immediately before making the request; and have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

3. Parental leave and related entitlements (division 5)

Employees can access unpaid parental leave if they:

  1. have completed at least 12 months of continuous service with the employer immediately before making the request; or
  2. they are a long term casual employee of the employer immediately before making the request; and have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

An employee is entitled to 12 months of unpaid parental leave if:

  1. the leave is associated with:
    1. the birth of a child of the employee or the employee’s spouse or de facto partner; or
    2. the placement of a child, who is 16 years of age or under, with the employee for adoption (provided that the child has not, or will not have, lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and is not (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner); and
  2. the employee has or will have a responsibility for the care of the child.

This NES also provide entitlements regarding unpaid special maternity leave, the transfer to a safe job if required during pregnancy, a return to work guarantee, and an unpaid pre-adoption leave entitlement.

The NES allow for an employee to request an extension of unpaid parental leave for a period of up to 12 months immediately following the end of the available parental leave period. The maximum period of any such extension is affected by any parental leave taken, or to be taken, by the employee’s spouse.

Note the NES operate in conjunction with the Maternity Leave (Commonwealth Employees) Act 1973, meaning that eligible employees continue to be entitled to a period of paid leave.

4. Annual leave (division 6)

This provision entitles employees (other than casual employees) to 4 weeks of paid annual leave; or 5 weeks of paid annual leave if the employee is a shiftworker for the purpose of the NES.

If an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Paid annual leave can only be cashed out if:

  1. a modern award or enterprise agreement includes terms providing for the cashing out of paid annual leave by an employee; or
  2. an employer and an award/agreement free employee agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave.

The terms relating to cashing out paid annual leave must require that:

  1. paid annual leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks;
  2. each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and
  3. the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave. The employee is not entitled to payment for untaken annual leave if service with the first employer counts as service with the second employer.

In this context, agencies should note that the existing arrangements regarding the portability of accrued paid leave entitlements will continue to apply within the APS.

5. Personal/carer’s leave and compassionate leave (division 7)

For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave. This entitlement does not apply to casual employees.

An employee, including a casual employee, is entitled to 2 days of unpaid carer’s leave for each permissible occasion when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of:

  1. a personal illness, or personal injury, affecting the member; or
  2. an unexpected emergency affecting the member.

An employee, including a casual employee, is entitled to 2 days of compassionate leave (unpaid in the case of a casual employee) for each permissible occasion when a member of the employee’s immediate family, or a member of the employee’s household:

  1. contracts or develops a personal illness that poses a serious threat to his or her life; or
  2. sustains a personal injury that poses a serious threat to his or her life; or
  3. dies.

6. Community service leave (division 8)

The NES provide an entitlement to be absent from employment for a period if engaging in eligible community service activity. The period consists of time when the employee engages in the activity, reasonable travelling time associated with the activity and reasonable rest time immediately following the activity.

An employee’s absence from work on community service leave is unpaid, unless the employee is absent on jury service leave in which case full-time and part-time employees are paid in accordance with section 111 of the FW Act.

The employee’s absence while undertaking an eligible community service activity (other than jury duty) must be reasonable in all the circumstances

7. Long service leave (division 9)

Employees will be entitled to long service leave in accordance with applicable award-derived (or in some cases agreement-derived) long service leave terms.

Please note that the Long Service Leave (Commonwealth Employees) Act 1976 will continue to apply to Commonwealth employees as before.

8. Public holidays (division 10)

An employee is entitled to be absent from employment on a public holiday. However, an employer may request an employee to work on a public holiday if that request is reasonable.

The following are public holidays:

  1. each of these days:
    1. 1 January (New Year’s Day);
    2. 26 January (Australia Day);
    3. Good Friday;
    4. Easter Monday;
    5. 25 April (Anzac Day);
    6. the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
    7. 25 December (Christmas Day);
    8. 26 December (Boxing Day);
  2. any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.

9. Notice of termination and redundancy pay (division 11)

An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

The employer must not terminate the employee’s employment unless:

  1. the time between giving the notice and the day of the termination is at least the minimum period of notice required under the FW Act; or
  2. the employer has paid the employee payment in lieu of notice.

Note that the NES have greater redundancy pay entitlements than the APS in some circumstances. The NES override the standard APS entitlement where it is more generous.

The following table provides a comparison between the NES redundancy provisions and typical APS redundancy payment arrangements:

Length of service NES redundancy Typical APS redundancy
Less than 1 year Nil 4 weeks
At least 1 year but less than 2 years 4 weeks 4 weeks
At least 2 years but less than 3 years 6 weeks 4 weeks + pro rata for completed months of service
At least 3 years but less than 4 years 7 weeks 6 weeks + pro rata
At least 4 years but less than 5 years 8 weeks 8 weeks + pro rata
At least 5 years but less than 6 years 10 weeks 10 weeks + pro rata
At least 6 years but less than 7 years 11 weeks 12 weeks + pro rata
At least 7 years but less than 8 years 13 weeks 14 weeks + pro rata
At least 8 years but less than 9 years 14 weeks 16 weeks + pro rata
At least 9 years but less than 10 years 16 weeks 18 weeks + pro rata
At least 10 years but less than 11 years 12 weeks 20 weeks + pro rata
11 years or more 12 weeks 22 weeks up to a maximum of 48 weeks

10. Provision of a Fair Work Information Statement (division 12)

An employer must give new employees the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment. The statement will detail the rights and entitlements of employees under the new system and how to seek advice and assistance. The Fair Work Ombudsman will develop the Fair Work Information Statement.


[1] ‘School age’ is defined to be the age at which a child is required to start attending school under the applicable State or Territory legislation (FW Act, s.12).