This chapter and the two chapters ('Protection for your rights at work' and 'Occupational health and safety') should be read together when considering the law covering the rights, entitlements and obligations of employees in Victoria.

Contributor

Beth Stewart

Solicitor, Lander & Rogers

National Employment Standards

Last updated

1 July 2020

What are the National Employment standards?

The FW Act created the National Employment Standards (NES), which took effect on 1 January 2010. Detailed information about the NES is in sections 61–125 of the FW Act. The NES are statutory terms and conditions of employment that apply to all employees in the national system (defined in s 13 FW Act), including management employees. The NES cannot be displaced by awards, enterprise agreements or common law contracts of employment, unless that is specif­ically provided for in the FW Act.

The 12 National Employment Standards

In summary, the NES are:

  • Employees are to work a maximum of 38 hours per week, subject to additional hours if reasonable. These hours may be averaged over a period of time (ss 62–64 FW Act).
  • Employees have the right to request flexible working arrangements if they are experiencing circumstances specified by the FW Act. These circumstances include the employee:
    • having a disability;
    • being a carer within the meaning of the Carer Recognition Act 2010 (Cth);
    • being aged 55 years or older;
    • experiencing family violence or supporting someone who is experiencing family violence;
    • having caring responsibilities for a child.
      The employer must respond in writing and can only refuse on reasonable business grounds (s 65).
  • Employees are entitled to parental leave and related entitlements of, among other things, up to 12 months of unpaid parental leave to care for a child (ss 67–85).
  • Employees are entitled to annual leave of four weeks accrued for each year of full-time service or five weeks for shift workers, as defined in the FW Act (ss 86–94).
  • Employees are entitled to personal or carer’s leave of 10 days paid per year with the possibility of further unpaid days in circumstances defined in the FW Act. Employees are entitled to compassionate leave of two days per year in circumstances defined in the FW Act (ss 95–107).
  • Employees are entitled to community service leave to undertake community service, such as volunteering for a fire-fighting body. Types of community service and circumstances are defined in the FW Act (ss 108–112).
  • Employees are entitled to long service leave when they have worked for the same employer (or in some cases, in the same industry) for a long time (s 113).
  • Employees are entitled to be absent from work on the public holidays specified in the FW Act, unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing (ss 114–116).
  • Employees are entitled to receive notice of termination or pay in lieu according the table on the next page.
  • Employees are entitled to redundancy pay if an employee’s employment is terminated:
    • at the employer’s initiative because the employer no longer wants the job of the employee done by anyone, except where this is due to the ordinary and customary turnover of labour; or
    • because of the employer’s insolvency or bankruptcy.
      Redundancy pay periods are calculated as shown in the table below (ss 117–123).
  • An employer must provide a Fair Work Information Statement to each of their employees (ss 124–125).
  • Employees are entitled to family and domestic violence leave of five days unpaid each year (ss 106A–106E).
Employee’s period of continuous service with the employer at the end of the day the notice is givenPeriod
Not more than 1 year1 week
More than 1 year but not more than 3 years2 weeks
More than 3 years but not more than 5 years3 weeks
More than five years4 weeks
Notice of termination or pay in lieu

Note: The period of notice is increased by one week if the employee is over 45 years old and has completed at least two years of continuous service with the employer.

Employee’s period of continuous service with the employer on terminationRedundancy pay period
At least 1 year but less than 2 years4 weeks
At least 2 years but less than 3 years6 weeks
At least 3 years but less than 4 years7 weeks
At least 4 years but less than 5 years8 weeks
At least 5 years but less than 6 years10 weeks
At least 6 years but less than 7 years11 weeks
At least 7 years but less than 8 years13 weeks
At least 8 years but less than 9 years14 weeks
At least 9 years but less than 10 years16 weeks
At least 10 years12 weeks
Redundancy pay

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