Flexible Working, Parental Leave and the Australian NES Entitlements Overseas Employers Overlook

By Jasmin Robertson

The NES entitlements that generate the most questions are the obvious ones - annual leave, notice periods, redundancy. But there are several others that overseas employers consistently overlook until they’re directly relevant, usually at the worst possible time.

This is the last article in our four-part NES series. Here’s what’s worth knowing before you need it.

Flexible working requests - stronger than most employers realise

The right to request flexible working arrangements has been part of the NES since 2009, but 2023 reforms significantly strengthened both employee rights and employer obligations. This is an area where overseas employers frequently underestimate their legal exposure.

Employees who have completed at least 12 months of continuous service can formally request flexible working arrangements if they are a parent or have caring responsibilities for a child of school age or younger, a carer under the Carer Recognition Act, living with a disability, aged 55 or older, experiencing family or domestic violence, or pregnant.

A request can cover changes to hours of work, start and finish times, patterns of work, or location of work including working from home.When a request comes in, the employer must genuinely discuss it with the employee, consider it properly, and respond in writing within 21 days. A refusal must be based on reasonable business grounds and must explain what alternatives were considered.

Here’s where it gets serious for overseas employers: since the 2023 reforms, the Fair Work Commission can now hear disputes about flexible work requests and, if it finds a refusal was unreasonable, order the employer to grant the arrangement. This is not a soft obligation. And refusing a request from an employee with a disability, where the arrangement would help them continue working, can also constitute disability discrimination on top of the Fair Work Act breach.

For a business managing Australian employees from overseas, the practical implication is straightforward: take these requests seriously, follow the process correctly, and document everything.

Parental leave - what’s changed and what it means

Australia’s parental leave system has two distinct parts that overseas employers often conflate.

The first is the NES unpaid parental leave entitlement. Employees who have completed at least 12 months of continuous service are entitled to up to 12 months of unpaid parental leave, with the right to request a further 12 months. During this time, their position is protected. When they return, they are entitled to return to their pre-leave role or an equivalent position. The employer does not fund this leave - it is simply job-protected time off.

The second is the government-funded Paid Parental Leave scheme, administered through Services Australia. From 1 July 2026 this scheme provides 26 weeks of paid leave at the national minimum wage rate of $1,004.70 per week, fully shareable between both parents. This is government funded, not employer funded. It comes out of the government’s pocket, not the employer’s.

The distinction matters because overseas businesses sometimes assume they are required to fund paid parental leave directly. For most employees, they are not. The government scheme covers it. An employer choosing to offer additional paid parental leave on top of the government scheme is providing a benefit beyond the NES minimum, which is common for professional roles but not a legal requirement.

One significant change that took effect from 1 July 2025: superannuation is now paid on government-funded parental leave for the first time. That means employees on parental leave are accruing super during their government-funded leave period, adding approximately $2,800 to $3,500 in additional super contributions over a 26-week period.

Family and domestic violence leave - from day one

All employees, including casuals, are entitled to 10 days of paid family and domestic violence leave per year. Unlike most other NES entitlements, this applies from the first day of employment with no qualifying period.

This is leave an employee can take to deal with the impacts of family or domestic violence - attending court, accessing police services, attending medical appointments, organising alternative accommodation or childcare, or other related activities.

Confidentiality obligations apply to how this leave is handled. Employers are prohibited from including identifying information on payslips that would signal the leave reason to a third party. For overseas businesses managing payroll from offshore, this is a detail that needs to be correctly configured from day one.

Casual conversion - worth understanding

Casual employees who have been employed on a regular and systematic basis for at least 6 months have the right to request conversion to permanent employment. Since Employer of Record Australia is the legal employer, our employee count applies across all clients, meaning the 6-month threshold is relevant for all employees we onboard regardless of how many Australian staff the end client has.

Employers can refuse on reasonable grounds but must respond in writing within 21 days of the request.

This matters for overseas businesses who use casual arrangements expecting ongoing flexibility. Once an employee is working regular predictable hours over an extended period, they may have both the right to request conversion and, under recent Fair Work reforms, a genuine argument that they are not truly casual at all.

How Employer of Record Australia manages these entitlements

All of the entitlements covered in this series are set up correctly from the start of every engagement we manage. Flexible working request processes, parental leave administration, family and domestic violence leave configuration, casual classification - these are not things our clients need to figure out as they go. They’re handled as standard.

For overseas businesses, that means not discovering an entitlement gap at the exact moment an employee exercises a right. Which is genuinely the worst time to find out.

TL;DR

Flexible working requests carry real legal weight since the 2023 reforms - refusing incorrectly can result in Fair Work Commission orders. Parental leave has two parts: 12 months NES unpaid leave plus the government-funded paid scheme, now at 26 weeks from 1 July 2026. The government, not the employer, funds the paid component. Family and domestic violence leave applies to all employees from day one. Casual employees working regular hours can request conversion to permanent employment after 6 months - and since Employer of Record Australia is the legal employer, that threshold applies to all employees we onboard.

That wraps up our four-part NES series. If you’d like to talk through what any of these entitlements look like for your specific hires, reach out!

Jasmin Robertson is Operations Manager at Employer of Record Australia, a Brisbane-based EOR, sponsorship and recruitment business helping global companies hire in Australia.