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Your employee’s 10 minimum employee entitlements

Updated: 14 December 2019

Hiring employees?

Well you'll need to know about the national employment entitlements (NES) which will apply for all your new hires. 

So what exactly are they?

The NES are 10 minimum employee entitlements that you need to provide all of your employees in Australia.

Importantly, you can provide your employees more but not less generous terms than the NES. 

And I’ll walk you through each of the minimum entitlements in detail below.

And if you are in a hurry, you can skip ahead.

Maximum weekly hours

Your full time employees have a right to work a maximum of 38 hours. 

And, for your part time workers, it's the lesser of 38 hours and their ordinary hours. 

Importantly, your employees may refuse to work unreasonable additional hours. 

So what exactly is unreasonable? 

Below are the factors taken into account:

  • work health and safety risks from working extra hours
  • personal situation like family responsibilities
  • your workplace needs 
  • if your employee is entitled to overtime, penalty rates or other extra pay for the extra hours
  • notice to your employee of the extra work hours 
  • notice by your employee to you of their refusal to work extra hours 
  • ​the usual work patterns in your industry 
  • your employee’s role and their level of responsibility 
  • if the extra hours are covered by your industry award, an enterprise agreement or an agreement to average work hours with your employee; and
  • any other relevant factors. 

Your source: section 62 Fair Work Act 2009 (Cth).

​​Next, we'll look at flexible working arrangements.​​​​​​​​ 

Flexible working arrangements

So what are flexible working arrangements?

Your employee may ask you for a change in their work hours , changes in the pattern and location of work in case of your employee being: 

  • a parent or has responsibility for a child of school age or younger 
  • carer 
  • having a disability 
  • is 55 or older 
  • experiencing violence; or
  • providing care or support to a member of their family or household who needs support because they are experiencing violence.

So who is eligible?

Your employee has the right to ask you for a flexible workplace arrangement if they have been working for you at least 12 months. 

In the case of a casual, your employee should be a long term casual employee and have a reasonable expectation of continuing employment on a regular and systematic basis. 

To break this down further, your casual should be more than a fixed term casual for a holiday, they actually need to be working a set pattern of hours and they expect their employment to continue. 

So how does your employee make the request?

Your employee will need to put their request in writing and set out the change sought and reasons for it. 

And how should you handle these requests?

How to respond to a flexible workplace working arrangement request

You’ll need to  reply in writing to your employee within 21 days. 

Importantly, you can only refuse your employee’s request on reasonable business grounds. 

And reasonable business grounds may include costs, capacity to accommodate their request, productivity or efficiency losses or negative impacts on customer service. 

Finally, you will need to state the reason for any refusal of your employee’s request.

These requirements are in section 65 of the Fair Work Act 2009 (Cth).

As a reminder, the minimum entitlements are just that. There’s nothing stopping you from having a more generous or flexible flexible workplace arrangement for your employees.

What about parental leave? I'll walk you this entitlement next.

Parental leave and related entitlements

Your employees can get parental leave when their child is born or adopted. Entitlements include: 

  • maternity leave
  • paternity and partner leave
  • adoption leave
  • special maternity leave
  • safe job and no safe job leave; and 
  • right to return to old job. 

Your employees have the right to 12 months of unpaid parental leave. And, they can also request an extra 12 months of leave. 

So which of your employees are eligible?

Who is eligible?

All employees in Australia are entitled to parental leave if they have worked for you at least 12 months before:

  • their expected date of birth;
  • before their date of adoption; or 
  • when the leave starts (if the leave is taken after another person cares for the child or takes parental leave)
  • they will have a responsibility for the care of a child. 

Your casuals have the same rights if they have been working for you on a regular and systematic basis for at least 12 months and have a reasonable expectation to do so.  

Also, if your employee has another child, they don’t have to wait another 12 months before taking another period of parental leave. 

Your source is section 70 to section 79B of the Fair Work Act 2009 (Cth).

Annual leave

All your employees (except casuals) are entitled to annual leave. 

Your fill time employees get 4 weeks per calendar year. 

And your part-time employees get a pro-rata based on their ordinary hours of work. 

For example if your employee works 20 hours per week for a year, during that year, they will accumulate 80 hours of annual leave. 

Your shift workers may be entitled to up to 5 weeks of annual leave if your industry award includes this. 

So how does your employee’s annual leave accumulate?

Your employees will accumulate annual leave on their paid leave, community service leave and long service leave. 

Now, your employee’s annual leave will not accumulate when your employee is on unpaid annual, sick/carers, parental and family and domestic violence leave. 

Also, your employee will not accumulate any annual leave while being paid by the Paid Parental Leave Scheme. 

This annual leave information is in section 87 of the Fair Work Act 2009 (Cth).

Leave - personal/carer’s, compassionate, family and domestic violence

Personal/carer's leave

Personal/carer's leave lets your employees take time off for personal illness or to care for their immediate family or household members. 

So who exactly is an immediate family member?

Immediate family member

An immediate family member includes a spouse, former spouse, de facto partner, child, parent, grandparent, grandchild, sibling OR the child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de facto partner). 

And step relations also benefit from this leave. 

Importantly, both your full and part-time employees are paid 10 days for each year of their employment. There’s no pro rata for your part-time employees. 

So how does personal/carer's leave accumulate?

Your Full-time and part-time employees accumulate personal and carer’s leave from their first day of work. This leave also accumulates when your employee is on paid annual leave, paid sick and carer’s leave, community service leave including jury duty and long service leave and long service leave. 

However, your employees will not accumulate personal/carer’s leave when they are taking unpaid annual, personal/carer’s, parental leave or family and domestic violence leave. 

And how much leave can your employees take? 

The answer is that there’s no minimum or maximum limit on the amount of paid sick leave that your employee can take. 

Now, if your employee’s personal/carer's leave runs out, they may be able to take unpaid carer’s leave. 

The above information for personal/carer’s leave is based on section 96 and 97 of the Fair Work Act 2009 (Cth).

Compassionate leave

All of your employees (including casuals) may take compassionate leave (sometimes called bereavement leave). 

Your employees may take compassionate leave if a member of their immediate family or household dies or contracts or develops a life-threatening illness or injury. 

The immediate family definition was explained previously, you can refer to the personal/carer’s leave section for this. 

So what is the leave entitlement for your employees?

Your employees are entitled to 2 days of compassionate leave each time an immediate family or household member dies or suffers a life threatening illness or injury. 

Your employees can take the leave either as a 2-day period or 2 separate periods of 1 day each or any separate periods that you agree with your employee. 

So which employees are paid for compassionate leave? 

Your full-time and part-time employees are paid compassionate leave and your casual employees receive unpaid leave.  

And, the calculation is based on the ordinary hours your employee’s would have worked during the leave. 

Also, you can make reasonable requests for evidence e.g. death, funeral notice or statutory declaration.  

Your source reference for compassionate leave is section 12 and 104 - 106 of the Fair Work Act 2009 (Cth). 

Unpaid family and domestic violence leave

All of your employees (including part-time and casual) get 5 days unpaid family and domestic violence leave each year. 

Domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative that seeks to coerce or control the employee or cause them harm or fear. 

And who is a close relative?

Close relative

Your employee’s close relative includes their current or former spouse, de facto partner, partner, child, parent, grandparent, grandchild or sibling.

Also, this includes a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules. 

The source reference for family and domestic violence leave is sections 106A - 106E and section 107 of the Fair Work Act 2009 (Cth).

Community service leave

Your full time, part-time and causal employees get community service leave for voluntary emergency management activities and jury duty. 

Your employee’s are able to take community service leave while they are engaged in the activity and for reasonable travel and rest time. Also, there is no limit on the amount of community service an employee can take. 

Your employees must give you a notice of absence as soon as possible which may be after their leave starts and tell you how long they expect to be away.

This legal information about community service leave is from section 110 of the Fair Work Act 2009 (Cth).

Long service leave

Your employee’s get long service leave after working for you a long time. And, your employee’s entitlements are based on the state or territory they are working in. 

The weeks below are rounded up, in many cases there is an extra ⅓ or ⅔ week because of the definition of a month.

New South Wales

In New South Wales, the Long Service Leave Act 1955 applies. Your employees get at least 2 months of long service leave after 10 years of continuous service. 

Also, for each additional 5 years, they are entitled to an additional month of leave.

Victoria

In Victoria, the Long Service Leave Act 1992 applies. Your employees get 8 weeks of leave after completing 10 years of continuous employment. Also, for each additional 5 years, employees receive 4 extra weeks of leave. 

Queensland

In Queensland, the Industrial Relations Act 1999 applies. From 3 June 2001, your employee’s long service leave is 8 weeks after 10 years of continuous employment and extra long service for each extra 5 years of work.

And, if your employees start date was before 3 June 2001, there are some transitional arrangements in place.

Australian Capital Territory

In the Australian Capital Territory, the Long Service Leave Act 1976 applies. 

Your employees receive 6 weeks of leave after working at least 7 years of continuous service. And, for each year of continuous service, your employees accrue ⅕ of a month long service leave. 

The above leave does not apply for public sector employees or some employees in the building and construction industry, contract cleaning industry or employees covered by the Portable Schemes Act 2009.

Western Australia

In Western Australia, your employees receive 8 weeks of long service leave after 10 years of continuous employment. Also, after each 5 years they receive 4 weeks leave. 

Northern Territory

In the Northern Territory, your employees are covered by the Long Service Leave Act 1976. 

Your employees receive 13 weeks of long service leave after 10 years continuous service. They also receive an extra week of leave for each extra 5 years of service.

South Australia

In South Australia, your employees are covered by the Long Service Leave Act 1976. 

Your employees receive 13 weeks long service leave after completing at least 10 years of continuous employment. Also, they receive 4 weeks leave for each extra 5 years of continuous service. 

And finally, last but not least, Tasmania…

Tasmania

In Tasmania, your employees are covered by the Long Service Leave Act 1976. Your employees receive 8 weeks long service leave after 10 years of continuous employment and 4 weeks for each extra 5 years. 

Like long service leave, public holidays vary based on the state your employees work in. We’ll discuss public holiday’s next.

Public holidays

Your employees may reasonably refuse to work on a public holiday and they are entitled to be paid for those public holidays.

Under the national employment standards, the days below are public holidays: 

  • 1 January (New Year’s Day) 
  • 26 January (Australia Day) 
  • Good Friday
  • Easter Monday
  • 25 April (Anzac Day) 
  • Queens birthday 
  • 25 December (Christmas Day) 
  • 26 December (Boxing Day) 
  • Any other day or part-day under a state or territory law that is to be observed generally as a public holiday.

You may have an industry awards that allows you and your employees to agree to substitute public holidays for another day. 

So what are reasonable grounds for requesting or refusing to work on a public holiday? Below are the factors.

  • your workplace - business requirements and your employee’s role 
  • your employee’s personal circumstances
  • if your employee could expect that they may be required to work on a public holiday 
  • if the employee is entitled to overtime, penalty or other extra pay to cover for instances where they may need to work public holidays
  • your employee’s status as full-time, part-time, casual or shift worker
  • yours and your employee’s amount of notice before the public holiday 
  • any other relevant matter.

And what do you need to pay your workers if they are not working because of a public holiday?

You’ll only need to pay your employees for a public holiday if the public holiday would be one of their workers.

For example, a part-time employee is not entitled to payment if their part-time hours do not include the day of the week which the public holiday falls.

Notice of termination and redundancy pay 

Notice

Your employees are entitled to a notice period when their employment ends. 

If you terminate a worker, you’ll need to give them written notice and you can do this by: 

  • delivering it personally 
  • leaving it at the employee’s last known address; or 
  • sending it by pre-paid post to the employee’s last know address.

And, if your employee has resigned, they can give  you notice verbally, it does not have to be in writing.

Also, notice can be paid out instead of worked. These are the options you have:

  • you can let your employee work through the notice period;
  • you can pay it out to them (pay in lieu of notice); or 
  • give a combination of the two.

Even if you end your employee’s employment during probation, they are still paid notice.

And in the case of serious misconduct, you don’t need to give your employee any notice of termination. 

But, you will still have to pay your employee all their entitlements.For example, time worked, annual leave and long service leave if its owed.

Serious misconduct examples include: theft, fraud, assault, refusing to carry out a lawful and reasonable instruction and causing a risk to someone’s health and safety or to the reputation or profits of your business.

Redundancy pay

Your employee’s position will be redundant if you don’t need their position to be done by anyone or if you become insolvent or bankrupt.

You’ll have to make sure that you follow the rules in any industry award or enterprise agreement or other registered agreement.

Your employee’s may lodge an unfair dismissal claim against your business if their dismissal is not a case of genuine redundancy.

For example, if any of the below apply, it won’t be a genuine redundancy. 

  • the employee’s job still needs to be done by someone;
  • you did you follow consultation requirements; and 
  • you could have reasonably given your employee another job in your business or an associated entity. 

Fair work information statement

As an employer, you’ll need to give your new employees a copy of the fair work information statement. It has information about your employee’s condition of employment. 

And, you can find the information statement on the fair work website.

You can give the statement to your employee in person, by mail, email, by sending a link to the fair work website or by fax.

I wish you every success in your ventures!


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Vivian Michael
 

Vivian Michael is a lawyer and founder of Michael Law Group. Vivian's mission is to deliver the best quality business legal services to entrepreneurs launching an Australian business, wherever they are in the globe.

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