National Employment Standards and what your business must do to comply

A floor you cannot go below

The National Employment Standards (the NES) are the 12 minimum standards that set the baseline terms of almost every employment relationship in Australia's national workplace relations system. They come from Part 2-2 of the Fair Work Act 2009 (Cth) (the Act) and cover everything from maximum weekly hours to superannuation contributions.

For a small or medium business, the NES operate as a legal floor. A modern award, enterprise agreement or employment contract can give an employee more, but nothing can give less. Section 55 of the Act says awards and agreements must not exclude the NES, and a contract term that undercuts them is unenforceable to that extent.

The stakes are higher than many owners realise. Every NES breach is a civil remedy contravention under s 44 of the Act, which exposes your business to court-ordered penalties. And since 1 January 2025, intentionally underpaying an employee is a criminal offence. This guide sets out who the NES apply to, the 12 duties in practical terms, and the consequences of getting them wrong.

Who the NES apply to

The NES apply to employees in the national system, which covers most Australian private-sector employers, including every proprietary company, as well as the Commonwealth and its agencies. If you operate as a sole trader or partnership, it is worth confirming early whether your business sits in the national system or a state system, because the answer determines which laws apply to you.

Within a covered business, the NES apply to:

Full-time and part-time employees: they receive the full set of NES entitlements.
Casual employees: they are covered, but some entitlements are different. Casuals do not accrue paid annual leave (s 87) or paid personal/carer's leave (s 96), and casual service does not count towards notice and redundancy pay (s 117(4)). They do receive paid family and domestic violence leave, compassionate leave, unpaid carer's leave, community service leave, the information statements, and the casual employment notification rights.
Independent contractors: they are not employees and do not receive the NES. Getting this classification wrong is one of the most expensive mistakes a business can make, because the entitlements can be claimed retrospectively.

The small business threshold matters throughout the NES. Under s 23 of the Act, a business is a small business employer if it employs fewer than 15 employees, counting regular casuals and aggregating associated entities. It affects whether you owe redundancy pay, when a casual can give a conversion notification, and how often you must issue the Casual Employment Information Statement.

Maximum weekly hours and reasonable additional hours

Under s 62 of the Act, you must not request or require a full-time employee to work more than 38 hours in a week unless the additional hours are reasonable. For part-time employees, the cap is the lesser of 38 hours and their agreed ordinary hours. Employees may refuse to work additional hours that are unreasonable.

Whether additional hours are reasonable is judged against a list of factors in the Act: risks to health and safety, the employee's personal circumstances including family responsibilities, the needs of the workplace, whether overtime or penalty rates apply, the notice given on both sides, industry patterns, the nature of the role, and any averaging arrangements in an award or agreement. The practical obligation is to roster within the caps, track actual hours worked, and be ready to explain why any overtime was reasonable.

Responding to flexible work requests

Certain employees can request a change to their working arrangements under s 65 of the Act: employees who are pregnant, parents or carers of a child of school age or younger, carers under the Carer Recognition Act 2010 (Cth), employees with a disability, employees aged 55 or over, employees experiencing family and domestic violence, and employees providing care or support to an immediate family or household member experiencing family and domestic violence.

The employee must have 12 months of continuous service (a regular casual needs 12 months of regular employment) and must put the request in writing. Your obligations are set:

respond in writing within 21 days;
before refusing, discuss the request with the employee and genuinely try to reach agreement;
refuse only on reasonable business grounds, stating them in the response;
if a dispute arises, the Fair Work Commission can deal with it, including by arbitration under s 65C.

The 21-day clock is where most businesses slip. A simple register of requests with their due dates prevents the deadline being missed.

Leave: annual, personal/carer's, compassionate and family and domestic violence

Annual leave

Non-casual employees accrue 4 weeks of paid annual leave per year of service, or 5 weeks if they are shiftworkers defined as such by an award or agreement (or, for award-free employees, continuously rostered around the clock and regularly working Sundays and public holidays): s 87. Leave accrues progressively and accumulates from year to year. Pay any leave loading your award requires and track accruals correctly for part-timers.

Personal/carer's leave

Non-casual employees accrue 10 days of paid personal/carer's leave per year, which also accumulates: s 96. Casual employees can take unpaid carer's leave of 2 days per occasion: s 102.

Compassionate leave

All employees, including casuals, get 2 days of compassionate leave for each occasion of serious illness, injury or death of an immediate family or household member, stillbirth or miscarriage: s 104.

Family and domestic violence leave

Since 1 February 2023 (and 1 August 2023 for small business employers, per the Fair Work Ombudsman), all employees including casuals have been entitled to 10 days of paid family and domestic violence leave in each 12-month period under s 106A. It is available in full at the start of each period, does not accumulate, and is not pro-rated for part-timers or casuals. Handle these requests with privacy and sensitivity.

Employees with at least 12 months of service are entitled to 12 months of unpaid parental leave in connection with the birth or adoption of a child, and can request a further 12 months, capped at 24 months after the birth or placement: ss 67 to 76. The extension request must be in writing at least 4 weeks before the current leave ends, and you must respond in writing within 21 days, applying the same genuine-discussion and reasonable-grounds test as flexible work requests: s 76A. Keep in touch days are available during leave, and the employee's job is protected for the period of leave.

Public holidays, community service leave and long service leave

Public holidays

Employees are entitled to be absent from work on a public holiday in the place where they are based, and must be paid at their base rate for ordinary hours they would have worked: ss 114 and 116. You may request an employee to work on a public holiday if the request is reasonable, and the employee may refuse if the request is unreasonable or their refusal is reasonable. The same factors apply in reverse: operational needs, the employee's personal circumstances, whether they could expect to work, and any compensation for working.

Community service leave

Employees are entitled to be absent for eligible community service activities: jury service (including jury selection) and voluntary emergency management activities with recognised bodies such as State Emergency Services: ss 108 and 109. The absence covers the activity plus reasonable travel and rest time.

Long service leave

The NES do not set a national long service leave standard. Entitlements come from applicable award-derived terms or state and territory long service leave laws: s 113. Confirm which scheme applies to each employee and track service accurately, because long service leave accrues over many years and is easy to under-provision.

Notice of termination and redundancy pay

Notice

You must not terminate an employee without giving written notice of the termination day, at least the minimum period in s 117: 1 week for up to a year of service, 2 weeks for 1 to 3 years, 3 weeks for 3 to 5 years, and 4 weeks beyond 5 years, plus an extra week for employees over 45 with at least 2 years of service. You can pay in lieu of notice instead, at the full rate for the hours the employee would have worked.

Redundancy pay

Where a role is genuinely redundant, eligible employees receive redundancy pay under s 119: 4 weeks for 1 to 2 years of service, rising to 16 weeks for 9 or more years. Two exclusions matter to smaller businesses: no redundancy pay is owed if the employee has less than 12 months of service, or if the employer is a small business employer: s 121. If you are planning a restructure, get advice before announcing anything, because the way you communicate a redundancy can create unfair dismissal risk that the NES do not cover.

Information statements and superannuation

Fair Work Information Statement

You must give every new employee the Fair Work Information Statement (the FWIS) before, or as soon as practicable after, they start: s 125. Build it into onboarding so it is never missed, and keep evidence it was given.

Casual Employment Information Statement

Casual employees must also receive the Casual Employment Information Statement (the CEIS) at the start of employment, again around the 6-month mark (for non-small business employers), and at 12 months and each subsequent 12 months: s 125B.

Superannuation

Since 1 January 2025, superannuation contributions are an NES entitlement. Under s 116B, employers must make contributions to a superannuation fund for each employee so as to avoid liability for the superannuation guarantee charge. The Department of Employment and Workplace Relations explains that the change gives employees a direct right to superannuation under the NES, enforceable through the Fair Work system rather than only through the Australian Taxation Office. Employees can also choose their fund, so check the fund details on the employee's superannuation choice form.

Casual employment: the new notification pathway

Since 26 August 2024, the old model of employers offering casual conversion has been replaced by an employee-driven pathway, summarised by the Fair Work Ombudsman. A casual employee who believes they no longer meet the definition of casual employee in s 15A can give you a written notification after 6 months of employment (12 months if you are a small business employer): s 66AAB.

Your obligations on receiving a notification:

respond in writing within 21 days;
consult with the employee first;
accept the notification unless you have fair and reasonable operational grounds not to, and set those grounds out in your response;
if you accept, specify the change to full-time or part-time employment, the new hours, and the effective date: s 66AAC.

Casual employment is now itself listed as an NES matter in s 61(2)(ba), so a failure to respond properly is a direct NES contravention. Diarise the 6-month and 12-month dates for every casual on your books.

What happens if you get it wrong

A breach of any NES provision is a contravention of s 44. The maximum civil penalty is 60 penalty units for an individual and 300 for a body corporate per contravention: ss 539 and 546. Each penalty unit is currently $313, so a single contravention can cost a company up to $93,900, and penalties are assessed per employee and per entitlement, so a payroll error affecting several staff multiplies quickly.

The Fair Work Ombudsman can investigate, issue compliance notices and infringement notices, and take court proceedings to recover underpayments and penalties. It publishes its litigation outcomes, and a finding against you can carry reputational damage well beyond the dollars.

The most serious change is criminal. Under s 327A, an employer who intentionally fails to pay amounts required by the Act or a fair work instrument commits an offence punishable for an individual by up to 10 years' imprisonment and fines of up to three times the underpayment or 5,000 penalty units, and for a body corporate by fines of up to three times the underpayment or 25,000 penalty units. This offence commenced on 1 January 2025, so the phrase "wage theft" is now part of the NES compliance landscape, not just a slogan.

A compliance checklist you can act on this week

Work through these items every time you bring on a new employee, and once a year for every existing role:

Onboarding: issue the FWIS to every new employee and the CEIS to every new casual, and keep records.
Classification: confirm each worker's status as employee or contractor, and full-time, part-time or casual, before they start.
Hours: roster within 38 hours plus reasonable additional hours, and record actual hours worked.
Leave tracking: maintain accurate annual leave, personal/carer's leave and long service leave accruals, and show balances on payslips.
21-day deadlines: keep a register of flexible work requests, parental leave extension requests and casual notifications, with response dates.
Public holidays: map the year's public holidays in your rostering calendar and budget for award penalty rates.
Superannuation: confirm contributions are being made to each employee's chosen fund from the first pay period.
Offboarding: check notice, redundancy pay and final pay against the NES, the award and the contract before anyone leaves.
Annual audit: once a year, compare your pay rates, leave and hours against the NES and the applicable award for every role.

When a lawyer earns their fee

The NES look simple until a specific question arises. A workplace lawyer can help with the assessments that carry the most risk: whether a worker is genuinely an employee or a contractor, whether a casual is really a casual under the s 15A definition, which award (if any) covers each role, how to structure a restructure or redundancy without unfair dismissal exposure, and how to respond if the Fair Work Ombudsman comes knocking. They can also draft the contracts and policies that make NES compliance routine rather than reactive, and review your payroll setup before a small error becomes a penalty or a criminal exposure.

The NES moved under you in 2024 and 2025

If your compliance habits are a few years old, they are out of date. In just over a year, the NES gained superannuation as a direct entitlement, the casual conversion regime was replaced by the notification pathway, and intentional underpayment became a crime. The specific thing to check this week is your superannuation payments: confirm you are paying the correct rate into the fund each employee has chosen, because superannuation is now an NES entitlement that the Fair Work Ombudsman can pursue like any other underpayment. Then set up the 21-day response diary for flexible work, parental leave and casual notifications. Those two actions address the newest and most frequently missed duties in the current NES.