National Employment Standards: the foundation of all employment obligations

The National Employment Standards outline the minimum work conditions for employees across Australia, protecting them from unfair treatment and ensuring fair and consistent work rights, while also ensuring that employers meet their legal requirements. 

Most employers are familiar with awards and enterprise agreements, but sitting underneath all of that is a quieter set of rules that apply to almost every employee in Australia: the National Employment Standards (NES). 

The NES are the minimum employment entitlements set out in the Fair Work Act 2009. They form the legal safety net for employees and cannot be overridden even if an award, agreement or contract says otherwise. 

The NES currently cover maximum weekly hours, flexible working arrangements, casual employment, parental entitlements, annual leave, personal/carer’s leave, compassionate leave and domestic violence leave, community service leave, long service leave, public holidays, superannuation contributions, redundancy payments and notice of termination, and fair work information statements. Whether you employ one person or one hundred, the NES applies.  

A refresher on the key concepts 

At their core, the NES are about fairness, predictability and basic security at work. Some entitlements, like annual leave and personal leave, are well understood. Others, such as flexible work requests or unpaid parental leave, have evolved significantly in recent years and can catch employers out if policies or practices haven’t kept pace. 

Recent changes that are worth reviewing include: 

Paid family and domestic violence leave 

Family and domestic violence leave is now a well-established part of the NES, and it has continued to evolve over recent years. From 2023, all employees are now entitled to 10 days of paid family and domestic violence leave each year. Leave is available in full from day one of employment and renews every 12 months on the employee’s work anniversary, but it does not accumulate from year to year. Importantly, this right is available to all employees, including casual employees who are not usually entitled to other types of paid leave.  

Flexible work requests 

More employees can now request flexible working arrangements, including employees who are pregnant, those with caring responsibilities, employees with disabilities, those over 55 years old, or employees experiencing family and domestic violence. Recent changes in the NES have strengthened the process employers must follow to respond to any flexible work requests; employers must genuinely discuss the requests with the employee, consider alternatives if the request cannot be accommodated, and only refuse on reasonable business grounds, clearly explained in writing within 21 days. Disputes about flexible work requests can now be dealt with by the Fair Work Commission if an agreement cannot be reached. 

Parental leave flexibility 

Parental leave rights under the NES have evolved in recent years. The fundamental rights remain: employees are still entitled to up to 12 months of unpaid parental leave, with the option to request a further 12 months off. However, unpaid parental leave can now be taken more flexibly, with employees able to take up to 100 days of their parental leave in separate blocks, rather than as one continuous period, and those blocks can be spread out over 24 months following the birth or adoption of a child. For employees, this means parental leave may involve staggered absences, partial return to work, or changing patterns over time.  

Also worth noting is that casual employees who have worked regularly and systematically over the preceding 12 months, and who have a reasonable expectation of continuing work, have the same rights to unpaid leave as a permanent employee. 

Casual employees’ right to move to permanent employment 

Casual employees have a right to seek permanent employment where their work pattern no longer reflects genuine casual engagement. When a casual employee has worked regularly and consistently over a period of time and has a reasonable expectation for that work to continue, they may be eligible to request conversion to full-time or part-time employment. Requests can only be refused on reasonable grounds, such as where the work is genuinely short term, irregular or expected to cease. 

The NES under review 

Towards the end of 2025, the Australian Government announced an inquiry into the operation and adequacy of the NES to consider whether the standards are still fit for purpose and continue to meet the needs of workers, employers and the broader community. For businesses, this is a timely reminder that the NES are not static. They shift in response to economic conditions, social expectations and court decisions, and compliance needs ongoing attention. 

What should employers do now? 

For businesses, the best starting point is to regularly revisit employment contracts, workplace policies and payroll practices to ensure they remain aligned with the regulatory framework. 

The NES are the foundation. Getting them right reduces risk, supports your workforce and helps your business stay on solid ground. 

Further information 

To review the NES in full, visit www.fairwork.gov.au/employment-conditions/national-employment-standards. 

Disclaimer 

The information provided is general in nature and is not legal advice. Employers should seek professional advice about their specific circumstances.

This article was first published in the Autumn 2026 edition of AFG.