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National Employment Standards (NES)
Practical Law ANZ Glossary w-001-0226 (Approx. 5 pages)
Glossary
National Employment Standards (NES)
A safety net of legislated minimum employment standards set out in Part 2-2 of the Fair Work Act 2009 (Cth) (FW Act).
The NES relate to:
- Requests for flexible working arrangements (Division 4 of Part 2-2, FW Act; see Practice note, NES: Requests for flexible working arrangements).
- Casual choice to initiate a change to permanent employment (Division 4A of Part 2-2, FW Act; for guidance on the:
- casual conversion mechanism as first introduced under Division 4A of Part 2-2, see Practice notes, Practice note, NES: (1) Employer's obligation to offer casual conversion (pre-26 August 2024) and Practice note, NES: (2) Employee's residual right to request casual conversion (pre-26 August 2024); and
- amended casual conversion mechanism under Division 4A of Part 2-2, see Practice note, NES: Casual employee's choice to initiate conversion (from 26 August 2024).
- Unpaid parental leave and related entitlements (Division 5 of Part 2-2, FW Act; see Practice note, NES: Unpaid parental leave).
- Annual leave (Division 6 of Part 2-2, FW Act; see Practice note, Annual leave).
- Personal/carer's leave, compassionate leave and paid family and domestic violence leave (Division 7 of Part 2-2, FW Act; see Practice notes, Personal/carer's leave and NES: Family and domestic violence leave).
- Community service leave (Division 8 of Part 2-2, FW Act).
- Long service leave (Division 9 of Part 2-2, FW Act).
- Public holidays (Division 10 of Part 2-2, FW Act).
- Superannuation contributions (Division 10A of Part 2-2, FW Act; see Practice note, NES: Super entitlement).
- Notice of termination and redundancy pay (Division 11 of Part 2-2, FW Act; see Practice notes, Statutory notice of termination of employment and The statutory entitlement to redundancy pay).
The NES apply to all national system employees (except in some cases casuals) at all times, whether as a direct entitlement or as a minimum standard underpinning entitlements under a modern award, enterprise agreement or contract of employment.
Part 6-3 of the FW Act extends the NES entitlements to parental leave and related entitlements (Division 5 of Part 2-2, FW Act) and to notice of termination or payment in lieu of notice (Subdivision A of Division 11 of Part 2-2, FW Act) to non-national system employees. For the purposes of these entitlements, employee has its ordinary meaning (section 742, FW Act). For more information, see Practice note, Unpaid parental leave: Extension to non-national system employees and employers.
The NES cannot be displaced, even by the terms of a contract of employment, modern award or enterprise agreement. For example, employers cannot contract out of their obligation to provide personal or carer's leave in accordance with the NES. However, this does not prevent an employer and employee from agreeing to, or a modern award or enterprise agreement providing for, a more generous entitlement.
For guidance on potential avenues for resolving NES disputes, see Practice note, NES: Civil remedies and dispute resolution.