National Employment Standards (NES) Explained for Australian SMBs

Every Australian employer sits on top of the same compliance floor: the National Employment Standards. Eleven minimum entitlements, set in Part 2-2 of the Fair Work Act 2009, that every national-system employee is entitled to. They cannot be reduced by contract, by award, by enterprise agreement, or by any agreement between employer and employee. They are the non-negotiable baseline of Australian employment.

For a Melbourne cafe owner, a Perth logistics business, or a Sydney tech startup, the NES are not an optional reading. They are the minimum the Fair Work Ombudsman holds you to, and they interact with every modern award and enterprise agreement on top. Miss one, and you are exposed to underpayment claims, compliance notices, and in serious cases, civil penalties.

This guide walks through all 11 standards, what each one means in practice for a small business, and where SMB employers most commonly trip up. For the broader Australian HR landscape, including Fair Work compliance and superannuation, see our Australia HR guide.

Who the NES apply to

The NES apply to every national-system employee. In practice that covers:

• Every employee of a constitutional corporation (almost all Pty Ltd companies)
• Commonwealth employees
• Every employee in the ACT or Northern Territory
• Employees of state-referred entities in most jurisdictions

If you run a Pty Ltd small business, you are a national-system employer and the NES apply to every one of your employees, casual or permanent. Some standards (like redundancy pay) have specific small-business exemptions, which we'll flag as we go.

1. Maximum weekly hours

An employer cannot require an employee to work more than 38 hours per week, plus "reasonable additional hours." A full-time employee's standard week is 38 hours. Part-time and casual hours are proportional to that base.

What counts as "reasonable additional hours" depends on the circumstances, the role, and the industry. A full-time salary absorbs some reasonable overtime by definition; a casual hired to cover a shift does not. A good rule of thumb: if overtime is regular, it probably needs to be compensated either through overtime pay or a clearly structured salaried arrangement.

Maximum hours cannot be waived by agreement. An employee can't "agree" to a 60-hour week as a standard arrangement.

2. Flexible working arrangements

Certain employees can request a change to their working arrangements. The right to request applies to employees who:

• Have 12 months of continuous service
• Are parents or carers of a child who is school-aged or younger
• Have a disability
• Are 55 years or older
• Are experiencing family or domestic violence, or supporting someone who is
• Are pregnant

The employee makes the request in writing. The employer has 21 days to respond in writing. The employer can only refuse on reasonable business grounds, and if refusing, must give reasons in writing and suggest alternatives.

The request framework doesn't force the employer to grant every request. But it does force a structured response, and failing to respond in writing within 21 days is itself a compliance breach.

3. Parental leave and related entitlements

Employees who have 12 months of continuous service before the date of birth or adoption are entitled to:

• Up to 12 months of unpaid parental leave
• The right to request an additional 12 months of unpaid leave
• Return-to-work guarantees: the right to return to the same or a comparable position
• Transfer to a safe job during pregnancy if the current role poses a risk
• Special maternity leave for pregnancy-related illness
• Keeping in touch days (up to 10 paid days during leave, by agreement)

Separately, the government-funded Paid Parental Leave scheme provides up to 26 weeks of paid leave for eligible parents from 1 July 2026, paid at the national minimum wage. This is administered by Services Australia, not the employer directly, though many employers handle the paperwork.

From 1 July 2026, superannuation is also paid on government Parental Leave Pay at 12%, funded by the ATO.

4. Annual leave

Every full-time employee is entitled to 4 weeks of paid annual leave per year, accrued progressively throughout the year. Part-time employees accrue pro-rata. Casual employees do not accrue annual leave (their casual loading compensates for this).

Shift-workers who work a seven-day roster system with regular Sundays and public holidays may be entitled to a fifth week of annual leave, as defined in their modern award or agreement.

Annual leave accrues from the first day of employment and rolls over from year to year without a cap. An employee cannot be forced to take annual leave except in specific situations (prolonged shutdown of the business, excessive accrued leave exceeding award-specified thresholds).

On termination, all accrued but untaken annual leave must be paid out in cash.

5. Personal/carer's leave and compassionate leave

Full-time employees are entitled to 10 days of paid personal/carer's leave per year. Part-timers accrue pro-rata. Leave can be used for:

• The employee's own illness or injury
• Caring for an immediate family or household member who is ill, injured, or has an unexpected emergency

Personal leave accrues progressively and rolls over year to year without a cap. In addition to paid personal leave, employees may take up to 2 days of unpaid carer's leave per occasion where they have exhausted paid entitlements.

Compassionate leave: 2 days of paid leave per occasion when an immediate family or household member dies or has a life-threatening illness or injury, or when a stillbirth or miscarriage occurs.

Family and domestic violence leave: 10 days of paid leave per year for all employees (including casuals), for activities related to family and domestic violence. This is a relatively recent addition and is a full-pay entitlement, not pro-rated.

6. Community service leave

Unpaid leave for voluntary emergency management activities (for example, as a volunteer firefighter or SES member), with no upper limit.

For jury service, employees are entitled to up to 10 days of paid leave (less any fees received from the court). Additional time is unpaid but protected.

7. Long service leave

Long service leave (LSL) is the most idiosyncratic NES because the detailed rules sit in state and territory legislation, not the Fair Work Act. Broadly, employees become entitled to LSL after 7 to 10 years of continuous service, with entitlements ranging from 6 to 13 weeks depending on state.

For a national employer operating across multiple states, the correct legislation is usually the state where the employee is based, not where the company is headquartered. Our state-by-state LSL guide walks through the specifics for NSW, VIC, QLD, WA, SA, TAS, ACT, and NT.

8. Public holidays

Employees are entitled to a paid day off on public holidays, unless reasonably requested to work. If reasonably requested and the employee works, they are typically entitled to penalty rates under the applicable modern award.

What counts as "reasonably requested" depends on the business, the notice given, the employee's personal circumstances, and the industry. Retail and hospitality work has historically involved working public holidays with penalty rates; office work typically does not.

Casual employees don't get paid for a public holiday they don't work, but they are protected from adverse action for refusing a public holiday shift on reasonable grounds.

The list of public holidays varies by state. National holidays (New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Christmas, Boxing Day) apply everywhere; state-specific holidays vary.

9. Notice of termination and redundancy pay

Notice of termination by the employer depends on the employee's length of service:

Length of service	Notice period
1 year or less	1 week
1 to 3 years	2 weeks
3 to 5 years	3 weeks
More than 5 years	4 weeks

Employees aged 45 or over with at least 2 years of service get an additional 1 week on top.

The employer can pay the employee out in lieu of serving notice.

Redundancy pay depends on length of service and ranges from 4 weeks (for 1 year of service) up to 16 weeks (for 10 years or more). Small businesses (fewer than 15 employees) are generally exempt from redundancy pay under the NES, though award provisions may apply.

Serious misconduct terminations do not require notice or pay in lieu.

10. Superannuation

Employers must make Superannuation Guarantee contributions to each eligible employee's super fund. From 1 July 2025, the rate is 12% of ordinary time earnings (OTE), and this is the final stage of a legislated ramp-up.

From 1 July 2026, Payday Super takes effect: super contributions must be made at the same time as wages, with payment reaching the super fund within seven business days. This is a major operational shift from the current quarterly model.

Our deep-dive on the Superannuation Guarantee covers the rate, eligible earnings, Payday Super mechanics, and the Super Guarantee Charge that applies when contributions are late.

11. Fair Work Information Statements

Every employer must provide a copy of the Fair Work Information Statement to each new employee before or as soon as practicable after they start work. For casual employees, the Casual Employment Information Statement must be provided:

• Before or as soon as practicable after starting
• Again at 12 months of service
• For small business employers, again at 6 months
• For non-small-business employers, again at 12 months

These are standard documents issued by the Fair Work Ombudsman. You don't draft them; you just give them to the employee. Failing to do so is a compliance breach even if every other aspect of the employment is correct.

How the NES interact with awards and agreements

The NES are the floor. On top of them sit:

• Modern awards: industry- or occupation-specific minimum conditions, currently 121 in total
• Enterprise agreements: negotiated collective agreements that must pass the Better Off Overall Test against the relevant award
• Employment contracts: individual arrangements that can improve but not reduce NES or award entitlements

A modern award or enterprise agreement cannot reduce NES entitlements. If an award is silent on something the NES covers, the NES applies. If a contract provides more than the NES, the contract applies. If a contract tries to provide less than the NES, the NES override.

Our guide to modern awards covers how to identify the right award for your employees and how classification levels set pay rates.

Where SMB employers most often trip up

• Not providing Fair Work Information Statement or Casual Employment Information Statement to new hires
• Treating casual loading as a substitute for all entitlements (it substitutes for annual and personal leave, but not other NES entitlements)
• Missing the 21-day response window on flexible work requests
• Applying the wrong notice period (forgetting the +1 week for over-45s with 2+ years)
• Assuming the small-business redundancy exemption means no obligations at all (notice of termination still applies)
• Not paying out accrued annual leave on termination
• Failing to pay family and domestic violence leave at the employee's full rate
• Missing LSL entitlements because the complexity sits in state law, not Fair Work

Each of these can trigger a Fair Work Ombudsman inquiry, a compliance notice, or in serious cases, civil penalty proceedings. The common pattern in enforcement cases is that the breach is individually small, but repeated across an employer's workforce for years, producing substantial back-pay orders.

Key points

• The 11 NES are the non-negotiable minimum entitlements for every national-system employee
• Maximum 38-hour week plus reasonable additional hours
• 4 weeks annual leave, 10 days personal leave, 2 days compassionate leave, 10 days family and domestic violence leave (all with pro-rata variations for part-timers)
• Up to 12 months unpaid parental leave plus right to request another 12
• Long service leave governed by state legislation, typically 7 to 10 years to accrue
• Notice of termination scales with service; redundancy pay up to 16 weeks (small business exemption applies)
• Superannuation Guarantee currently 12%, transitioning to Payday Super from 1 July 2026
• Fair Work Information Statement and Casual Employment Information Statement must be provided

The NES are designed to be readable by any employer, not just HR professionals, and the Fair Work Ombudsman provides plain-language guidance on each. Your record-keeping discipline is what separates compliance from a costly audit finding, whatever the specific standard in question.