What Are the National Employment Standards (NES)? A Plain-English Guide for Australian SMEs

The National Employment Standards (NES) are 11 minimum employment entitlements set out in the Fair Work Act 2009 that apply to almost every employee in Australia’s national workplace relations system. They cover things like maximum weekly hours, annual leave, personal/carer’s leave, notice of termination and redundancy pay. No award, enterprise agreement or employment contract can offer less than the NES — and if one tries to, that clause simply doesn’t apply. For small and medium business owners without an internal HR team, the NES is the compliance floor everything else sits on top of.

This guide breaks down each entitlement, who it applies to, and where SME owners most commonly get it wrong.

What Is the NES, in Simple Terms?

Think of the NES as the non-negotiable baseline of Australian employment law. It was introduced under the Fair Work Act 2009 (Cth) and has applied to employees since 1 January 2010. It sets 11 minimum standards that every “national system employer” — which includes the vast majority of Pty Ltd companies, sole traders in most states, and all employers in the ACT and NT — must provide.

On top of the NES sit two other layers:

Modern Awards — industry or occupation-specific minimums (pay rates, allowances, rostering rules) that build on the NES.
Enterprise agreements and employment contracts — can offer more than the NES, but never less.

The Fair Work Ombudsman is explicit on this point: workplace instruments cannot exclude the NES or provide for conditions below it.

The 11 NES Entitlements

According to the Fair Work Commission and Fair Work Ombudsman, the 11 NES entitlements are:

1. Maximum weekly hours

A 38-hour week for full-time employees, plus “reasonable” additional hours. Whether extra hours are reasonable depends on factors such as health and safety risk, the employee’s personal circumstances, whether they’re compensated (e.g. overtime), and how much notice was given.

2. Requests for flexible working arrangements

Employees with at least 12 months’ service (or eligible casuals) can request flexible arrangements — for example, if they’re a parent of a school-aged child, a carer, over 55, living with disability, or experiencing family and domestic violence. Since 2023 reforms, an employer can only refuse on reasonable business grounds, and must genuinely try to reach agreement with the employee first. If a dispute can’t be resolved, it can go to the Fair Work Commission.

3. Offers and requests to convert from casual to permanent employment

Following the Closing Loopholes reforms, casual employees now have a defined pathway (“employee choice”) to request conversion to permanent employment where the underlying role is no longer genuinely casual. Employers must also give new casual employees the Casual Employment Information Statement (CEIS), which was updated in 2024 to reflect the new pathway.

4. Parental leave and related entitlements

Eligible employees can take up to 12 months’ unpaid parental leave, with the right to request an additional 12 months (the employer can refuse the second 12 months only on reasonable business grounds). This is separate from the government-funded Paid Parental Leave scheme, which is administered but not funded by employers.

5. Annual leave

4 weeks of paid annual leave per year (pro-rata for part-time employees), with an extra week for certain continuous shift workers. Annual leave accrues progressively during a year of service and accumulates if unused.

6. Personal/carer’s leave, compassionate leave and FDV leave

10 days’ paid personal/carer’s leave per year (covers sick leave and caring for an immediate family or household member), pro-rata for part-time employees and accruing progressively.
2 days’ unpaid carer’s leave per occasion, available to casuals and to employees who’ve used up their paid entitlement.
Paid compassionate/bereavement leave for events such as the death or life-threatening illness of a family member.
10 days’ paid family and domestic violence leave per year, available to full-time, part-time and casual employees.

7. Community service leave

Unpaid leave for voluntary emergency management activities, plus paid leave for jury duty (up to 10 days, with a make-up pay obligation for many employers).

8. Long service leave

A entitlement generally carried over from pre-modern awards or state/territory long service leave laws, preserved by the NES.

9. Public holidays

Employees are entitled to be absent on a public holiday without loss of pay (for their ordinary hours), unless an employer reasonably requests they work and the employee reasonably agrees.

10. Notice of termination and redundancy pay

Notice of termination ranges from 1 to 4 weeks depending on length of service, plus an extra week if the employee is over 45 with at least 2 years’ service.
Redundancy pay ranges from 4 to 16 weeks’ pay based on continuous service, with a step-down to 12 weeks for employees with 10+ years’ service (they’re assumed to have long service leave instead).
Small business employers (fewer than 15 employees) are generally exempt from paying redundancy pay under the NES — this is one of the most important and most misunderstood NES provisions for SMEs. The headcount is taken at the time notice is given and includes regular casuals.

11. Fair Work Information Statement (FWIS)

Employers must give every new employee a copy of the FWIS “as soon as practicable” after they start. It explains the NES, Modern Awards, enterprise agreements, and how to contact the Fair Work Ombudsman and Fair Work Commission. New casual employees must also receive the CEIS at the same time. Always use the current version from fairwork.gov.au — the FWO updates it periodically when legislation changes, and giving an outdated version is technically a breach.

Which Employees Get the Full NES – and Which Get Less?

Full-time and part-time employees are entitled to all 11 NES standards.

Casual employees only receive a subset, including:

unpaid carer’s leave, compassionate leave, FDV leave and community service leave,
public holidays (unpaid, unless they’d otherwise have worked),
the FWIS and CEIS,
casual conversion rights, and
after 12 months of regular and systematic employment with a reasonable expectation of continuing work — the right to request flexible working arrangements and take unpaid parental leave.

Casuals don’t get paid annual leave or paid personal/carer’s leave — the 25% casual loading is intended to compensate for this.

Practical Examples

Example 1 — Notice and redundancy in a 12-person business. A Melbourne café with 12 employees needs to close its second site and make one full-time supervisor of 4 years’ service redundant. Because the business employs fewer than 15 people, it’s exempt from NES redundancy pay. However, it must still give the supervisor 3 weeks’ notice (or pay in lieu), consult in line with any applicable award (likely the Hospitality Industry (General) Award), pay out accrued annual leave, and ensure the redundancy is genuine — the role must actually cease to exist, not just be reassigned to someone else at a lower rate.

Example 2 — Flexible work request from a parent. An employee at a 20-person accounting firm, who has 18 months’ service and a child starting school, requests to shift from 9am–5pm to 8am–4pm. Because the business has 15+ employees, the employer must respond in writing within 21 days, and if it wants to refuse, it needs to first discuss the request, genuinely try to reach agreement on an alternative, and be able to point to reasonable business grounds — not just preference — for any refusal.

Common Mistakes SMEs Make with the NES

Assuming the NES doesn’t apply because “we’re too small.” Business size affects redundancy pay obligations only — every other NES entitlement applies regardless of headcount.
Giving out an outdated Fair Work Information Statement. The FWIS is updated periodically; using an old PDF saved from years ago is a compliance gap.
Forgetting the CEIS for casual staff. Many SMEs give casuals the FWIS but not the separate Casual Employment Information Statement.
Confusing “no redundancy pay” with “no obligations at all.” Small business employers still owe notice, consultation (where an award applies), and a genuinely fair redundancy process.
Refusing flexible work requests without proper grounds or process. A simple “no” isn’t enough — the employer must discuss the request and genuinely attempt to reach agreement before relying on reasonable business grounds.
Applying award or contract terms that undercut the NES. Any clause that tries to reduce an NES entitlement is void to that extent, even if the employee agreed to it.
Miscounting employees for the small business threshold. The 15-employee count includes regular casuals and employees of associated entities — get this wrong and a “small business” redundancy could turn into an underpayment claim.

Staying on top of these details is a core part of ongoing HR compliance — and it’s exactly where many otherwise well-run small businesses fall behind, simply because no one owns the task of tracking legislative updates.

NES Compliance Checklist for SME Owners

[ ] Every new employee receives the current Fair Work Information Statement on or before their first day

[ ] Every new casual employee also receives the current Casual Employment Information Statement

[ ] Employment contracts reference — and don’t attempt to override — the NES

[ ] Annual leave, personal leave and FDV leave accruals are tracked accurately in payroll

[ ] You know your correct headcount for the small business redundancy exemption (fewer than 15 employees, counting regular casuals)

[ ] Notice periods and redundancy pay are calculated against the current NES tables, not assumed from memory

[ ] Flexible work requests are responded to in writing within 21 days, with genuine consideration first

[ ] Relevant Modern Award(s) have been identified and checked against the NES for anything more generous

[ ] Someone in the business is responsible for monitoring Fair Work Act and NES updates

How HR Excellence Partners Supports SMEs

Understanding the NES is one thing — applying it correctly across contracts, payroll, leave systems and terminations is another. Most SME owners we work with aren’t short on good intentions; they’re short on time, and on someone who can confirm they’re getting the detail right before it becomes a Fair Work dispute or an underpayment claim.

HR Excellence Partners helps Australian business owners translate the NES and the wider Fair Work framework into practical, compliant day-to-day practice — from onboarding documentation and award coverage through to leave management and safe, well-handled redundancies.

The best starting point is our free HR Health Check — a structured review of where your current HR practices stand against your NES and Modern Award obligations, with clear, practical next steps. Use code HEPFREE at checkout to have the cost of your HR Health Check waived.

Book your free HR Health Check →

Vas Papadopoulos
Founder & Principal HR Consultant
HR Excellence Partners
vas@hrexcellencepartners.com.au
hrexcellencepartners.com.au
+61 432 244 744

References

Fair Work Ombudsman, National Employment Standards — https://www.fairwork.gov.au/employment-conditions/national-employment-standards
Fair Work Commission, National Employment Standards — https://fwc.gov.au/agreements-awards/minimum-wages-and-conditions/national-employment-standards
Fair Work Ombudsman, Notice of termination and redundancy pay (fact sheet) — https://www.fairwork.gov.au/tools-and-resources/fact-sheets/minimum-workplace-entitlements/notice-of-termination-and-redundancy-pay
Fair Work Ombudsman, Redundancy pay — https://www.fairwork.gov.au/ending-employment/redundancy/redundancy-pay
Fair Work Ombudsman, Who doesn’t get redundancy pay — https://www.fairwork.gov.au/ending-employment/redundancy/who-doesnt-get-redundancy-pay
Fair Work Ombudsman, Dismissal — https://www.fairwork.gov.au/ending-employment/dismissal
Fair Work Ombudsman, Fair Work Information Statement (PDF) — https://www.fairwork.gov.au/sites/default/files/migration/724/Fair-Work-Information-Statement.pdf
Fair Work Ombudsman, Small business and the Fair Work Act best practice guide — https://www.fairwork.gov.au/tools-and-resources/best-practice-guides/small-business-and-the-fair-work-act
Fair Work Act 2009 (Cth), s.61 and Part 2-2 — https://www.legislation.gov.au/Details/C2024C00622
Department of Employment and Workplace Relations, Small business redundancy exemption — https://www.dewr.gov.au/item-09

This article is general information only and does not constitute legal advice. Entitlements, thresholds and award coverage can change and should be confirmed against current Fair Work Ombudsman guidance or a qualified HR/workplace relations advisor for your specific circumstances.

What Are the National Employment Standards (NES)? A Plain-English Guide for Australian SMEs

What Is the NES, in Simple Terms?