What Are The National Employment Standards (NES) And Why Do They Matter?

If you're hiring in Australia for the first time, you'll hear the term NES come up early and often. It gets referenced in employment contracts, mentioned by lawyers, flagged in compliance checklists. But very few people actually explain what it is or why it matters for an overseas business managing a small Australian team.

So here's the run-down.

What is the NES?

The National Employment Standards are 11 minimum employment entitlements set out in Australia's Fair Work Act 2009. They apply to every employee in the national workplace relations system, which covers the vast majority of private sector employees across Australia.

The most important thing to understand about the NES is this: it is a floor, not a ceiling. No employment contract, Modern Award, enterprise agreement or workplace policy can provide conditions less than the NES. It doesn't matter what an employment contract says. It doesn't matter what the employee agrees to. If a contract offers less than the NES minimum, the NES wins. Every time.

For overseas businesses used to more flexible employment frameworks, this is a meaningful shift in how employment law works. You can offer more than the NES. You cannot offer less.

The 11 entitlements — what they actually cover

Here's what the NES guarantees every eligible Australian employee:

1. Maximum weekly hours. Full-time employees cannot be required to work more than 38 hours per week plus reasonable additional hours. What counts as "reasonable" has limits under the Fair Work Act. This matters for businesses expecting Australian staff to regularly work extended hours to align with offshore time zones.

2. Requests for flexible working arrangements. Certain employees including parents of school-age children, carers, people with disabilities, and employees over 55 have a legal right to request flexible working arrangements. Employers can refuse on reasonable business grounds but cannot simply dismiss the request.

3. Parental leave. Eligible employees are entitled to up to 12 months of unpaid parental leave, with the right to request a further 12 months. From 1 July 2026, the government-funded Paid Parental Leave scheme increases to 26 weeks. This is separate from any paid parental leave an employer chooses to offer on top.

4. Annual leave. Full-time employees accrue four weeks of paid annual leave per year. Part-time employees accrue on a pro-rata basis. Leave accumulates progressively and unused leave must be paid out when employment ends.

5. Personal and carer's leave. Full-time employees are entitled to 10 days of paid personal leave per year, covering their own illness and caring for family members. Unused leave accumulates year to year but is not paid out at the end of employment.

6. Compassionate leave. Employees are entitled to two days of paid compassionate leave per occasion when an immediate family or household member dies or suffers a life-threatening illness or injury.

7. Family and domestic violence leave. All employees including casuals are entitled to 10 days of paid family and domestic violence leave per year. This applies from day one of employment.

8. Community service leave. Employees can take unpaid leave for certain community service activities including jury duty and voluntary emergency management activities. Jury duty attracts make-up pay obligations in some circumstances.

9. Public holidays. Employees are entitled to be absent on public holidays and to be paid at their ordinary rate for hours they would have worked. 8 national public holidays apply everywhere. Each state adds its own on top, bringing the total to between 9 and 13 per employee depending on where they're based.

10. Notice of termination. Employers must provide written notice of termination based on the employee's length of continuous service. The minimum notice periods under the NES are:

• Less than 1 year of service: 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 continuous service are entitled to an additional week on top of the applicable period. Notice can be worked out or paid in lieu. Employers can offer longer notice periods than the NES minimums but cannot offer less.

11. Redundancy pay. Where a genuine redundancy occurs, employees with at least 12 months of continuous service are entitled to redundancy pay based on their length of service, ranging from 4 weeks pay for 1 to 2 years of service up to 16 weeks for 9 or more years. Redundancy pay is separate from and in addition to notice pay — both apply.

Why the NES matters more than what's in the contract

The practical implication of all of this for overseas employers is straightforward but important: the employment contract sets out the agreed terms, but it cannot contract out of the NES. Every one of the 11 entitlements applies regardless.

This is different to how employment law works in many other countries where negotiated contracts carry more weight. In Australia, the NES is the baseline and it is not negotiable.

Getting this right from the start - correct leave accruals, correct notice periods, correct entitlements on the contract - matters because underpayment and non-compliance with the NES is enforceable by the Fair Work Ombudsman with significant penalties.

How Employer of Record Australia handles this

Every employee we onboard is set up with a contract that meets or exceeds all 11 NES entitlements. Leave accruals are configured correctly from day one, public holidays are managed by state, and entitlements are tracked and paid correctly throughout the employment relationship.

For overseas businesses, this means not needing to become an expert in Australian employment law before hiring your first person. That's what we're here for.

TL;DR

The NES is the non-negotiable minimum standard for every Australian employee. 11 entitlements covering hours, leave, flexibility, parental leave, notice and redundancy. No contract can offer less. Understanding what's in the NES before you hire is the difference between getting it right from day one and discovering gaps later when they're expensive to fix.

We'll be exploring annual leave and public holidays, termination and redundancy, and flexible working entitlements in more depth across our next three articles. If you'd like to talk through what NES compliance looks like for your specific hires, reach out!

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