National Employment Standards 

The federal industrial laws, create 11 minimum employment entitlements in the National Employment Standards (NES). These standards apply to all national system employers and employees. In addition, the Notice of Termination and Parental Leave provisions of the NES apply to non-national system employers and employees. Most of the NES have been incorporated into all modern awards. The NES also apply as a minimum to all employees covered by workplace agreements, and all award free employees. The NES are:

• maximum weekly hours of work;
• requests for flexible working arrangements;
• offers and requests to convert from casual to permanent employment;
• parental leave;
• annual leave;
• personal/carer’s leave and compassionate leave;
• family and domestic violence leave
• community service leave;
• long service leave;
• public holidays;
• notice of termination and redundancy pay;
• Fair Work Information Statement;

Maximum weekly hours of work

Maximum working hours under the NES are 38 hours per week for full-time employees and for part-time employees their ordinary hours or 38 hours whichever is less. Modern awards or enterprise agreements set out what are ordinary hours of work. The Pastoral Award 2020 specifies ordinary hours of work for employees on dairy farms as 152 hours over 4 consecutive weeks. For award-free employees the ordinary hours of work are those agreed to by the employer and the employee, up to 38 hours per week. Employees can be required or requested to work reasonable additional hours in addition to ordinary hours. There are a number of factors that must be considered in determining whether additional hours are reasonable, including:

• any risk to employee health and safety from working the additional hours;
• the employee’s personal circumstances, including family responsibilities;
• the needs of the workplace or enterprise in which the employee is employed;
• notice given by the employer of any request or requirement to work the additional hours;
• notice given by the employee of his or her intention to refuse to work additional hours;
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours;
• patterns of work in the industry; and
• the nature of the employee’s role and level of responsibility.

To determine whether the hours are reasonable, employers need to weigh up all of the above factors. Employees can refuse to work the additional hours if they are not reasonable.

Averaging of hours

The Pastoral Award 2020 provides for ordinary hours of work to be averaged over a period of four consecutive weeks. Employers and award-free employees can agree to average ordinary hours of work over a 26-week period so long as the average does not exceed 38 hours per week for full-time employees. The agreement to average hours of work must be in writing.

Back to top

Requests for flexible working arrangements

The laws about requests for flexible working arrangements were modified on 6 June 2023.

Requests may be made in the following circumstances:

• The employee is pregnant;
• If the employee is a parent, or has the responsibility for the care, of a child who is of school age or younger:
• The employee is a carer (within the meaning of the Carer Recognition Act 2012);
• The employee has a disability;
• The employee is 55 or older;
• The employee is experiencing family and violence;
• The employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

In addition, parents or those who have responsibility for the care of a child and who are returning from a period of parental leave or adoption leave may request to work part-time to assist the employee to care for the child. Permanent employees can make a request for flexible working arrangements if they have completed 12 months’ continuous service with the employer. Casual employees who have worked for the employer on a regular and systematic basis during a period of at least 12 months and who have a reasonable expectation of continuing work can also make a request for flexible working arrangements. The request must be in writing and provide details of the change sought and reasons for the change. The employer and the employee must discuss the request and genuinely try to reach an agreement which will accommodate the employee’s circumstances having regard to the following:

• the needs of the employee arising from their circumstances;
• the consequences for the employee if changes in working arrangements are not made; and
• any reasonable business grounds for refusing the request.

Employers must respond to the request in writing within 21 days and give reasons if the request is refused. A request may only be refused on reasonable business grounds which should be specified in the written response. If the request is refused employees must also be provided with details of the reasons for the refusal and details of how the reasonable business grounds apply to them.  In addition, the written response must state whether or not there are any changes in working arrangements that the employer can offer to the employee to better accommodate the employee’s circumstances and if so these changes must be set out in the response. If the employer and the employee reach an agreement on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

What are reasonable business grounds?

Fair Work Act provides the following list of matters which may amount to reasonable business grounds, but there may be others:

• That the new working arrangements would be too costly for the employer;
• That there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
• That it would be impractical to change the working arrangements of other employees or recruit new employees to accommodate the new working arrangements requested by the employee;
• That the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
• That the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

The letter must also inform the employee that they can access the Fair Work Commission dispute resolution jurisdiction if they do not agree with the decision.

Back to top

Offers and requests to convert from casual to permanent employment

The law about offers and requests to convert from casual to permanent employment changed in 2021 Casual conversion means the right of a casual employee to request that their casual employment be made permanent employment. There are different rules for small businesses (less than 15 employees) and large businesses as of 27 September 2021 The Pastoral Award 2020 incorporates the National Employment Standard about casual conversion. Some provisions apply as of 27 March 2021. Visit employees page or download Casual Employment Information Statement for more information.

Parental leave

This standard applies to national system and non-national system employers in WA. The NES provide up to 24 months unpaid leave for the birth of a child or the placement for adoption of a child under 16 years of age. This entitlement also applies to same sex couples. The employee taking parental leave must have completed 12 months of continuous service immediately before qualifying for this entitlement. Casual employees employed on a regular and systematic basis over at least a 12-month period prior to the expected date of birth or adoption who have a reasonable expectation of continuing regular employment are also entitled to unpaid parental leave. Each member of an employee couple can take up to 12 months leave. In addition, an employee who has taken 12 months of unpaid parental leave can request an extension for a further period of up to 12 months. Any extension period is reduced by any parental leave or special maternity leave taken by the employee’s partner. A request for the extension of parental leave may only be refused on reasonable business grounds.

Concurrent parental leave

Parents can take parental leave at the same time.

Flexible unpaid parental leave

Employees can take part of their 12 months of unpaid parental leave flexibly, at any time within 24 months of the child’s birth or adoption.

The amount of parental leave that can be taken as flexible parental leave depends on when the child is born or placed for adoption:

• before 1 July 2024 – up to 100 days
• between 1 July 2024 and 30 June 2025 – up to 110 days
• between 1 July 2025 and 30 June 2026 – up to 120 days
• on or after 1 July 2026 – up to 130 days.

Flexible unpaid parental leave can be taken as:

• a single continuous period of one day or longer
• separate periods of one day or longer each.

Transfer to a safe job

If an employee is pregnant and is advised not to continue in her present position due to hazards associated with the job or due to illness or risks associated with the pregnancy, the employer must transfer the employee to a safe job without reduction in pay. The employer may request evidence in the form of a medical certificate.

If no safe job is available, and the employee is entitled to unpaid parental leave, the employer must pay the employee at the employee’s base rate of pay for ordinary hours until the risk is ended (usually the end of the pregnancy). This period of leave does not reduce the amount of maternity leave which can be taken.

If no safe job is available, and the employee is not entitled to unpaid parental leave, the employee must be given unpaid leave until the risk has ended (usually the end of the pregnancy).

Extending unpaid Parental leave

An employee taking 12 months parental leave can request an extension of up to a further 12 months leave (up to 24 months in total).

The request must be in writing and given to the employer at least 4 weeks before the end of the employee’s initial period of parental leave.

The employer must respond in writing within 21 days, stating whether they grant or refuse the request. They can only refuse if:

• they’ve discussed and genuinely tried to reach an agreement with the employee about an extension
• they’ve considered the consequences for the employee of refusing the extension, and
• there are reasonable business grounds to do so.

For further information about unpaid parental leave go to the Fair Work Factsheet on eligible unpaid parental leave.

Back to top

Annual leave

The NES provide for four weeks paid annual leave for each year of service. Annual leave accrues progressively throughout the year and from year to year. Part-time employees also accrue annual leave on a pro-rata basis depending on the hours they work. Casual employees do not receive annual leave as the casual loading compensates them for this entitlement.

Payment for annual leave is calculated on what the employee would have received for the employee’s base rate of pay for ordinary hours of work. The employee’s base rate of pay does not include the following:

• incentive based payments and bonuses;
• loadings;
• monetary allowances;
• overtime or penalty rates.

For employees in the dairy industry covered by the Pastoral Award 2020, the ordinary hours of work are 152 hours over four consecutive weeks.

Payment of accrued annual leave upon termination of employment

Any annual leave which has accrued must be paid out if the employment is terminated.

Annual leave and the Pastoral Award 2020

The Pastoral Award 2020 specifies that payment for annual leave is the wages the employee would have received for ordinary hours of work had they not been on leave.

Leave loading

Annual leave loading is an award entitlement so it only applies to award employees. The Pastoral Award 2020 provides for a 17.5% annual leave loading to be paid when leave is taken and upon termination if any annual leave is paid out.

Public holidays

If a public holiday falls when an employee is on annual leave, the employee is taken not to be on paid annual leave on that day. Instead the NES about public holidays will apply and the employee will be entitled to be paid for the public holiday at the employee’s base rate of pay for ordinary hours of work

Other forms of leave taken while on annual leave

If an employee is eligible for another form of leave, other than unpaid parental leave, while on annual leave, or is entitled to be absent from work on community service leave, the employee is taken not to be on annual leave during that time. For instance if the employee is eligible for personal leave or carer’s leave while on annual leave, the NES about payment for personal/carer’s leave will apply.

Cashing out of annual leave – Award/Agreement free employees

Award/agreement free employees may agree with their employer to cash out annual leave.

Each agreement to cash out annual leave must be in writing and the payment must be for the full amount that the employee would have been paid if the employee had taken the leave. A separate agreement is required each time annual leave is cashed out.

Use this template for cashing out of annual leave for award/agreement free employees. This agreement should be kept with the employee’s employment records.

Directing employees to take annual leave

Non-award employees: for Award/Agreement free employees, the requirement to take accrued annual leave must be reasonable, for instance the employee must have accrued a large amount of annual leave.

Pastoral Award 2020 employees: read about cashing out of annual leave, directing employees to take leave (inc. excessive leave) and taking annual leave in advance for Pastoral Award 2020 employees

Personal / carer’s leave and compassionate leave

Under the NES, employees (other than casual employees) are entitled to 10 days’ paid personal / carer’s leave for each year of service.

Personal/carer’s leave accrues progressively throughout the year and from year to year and there is no cap on how much of this leave can be used for carer’s leave. Personal/carer’s leave and compassionate leave accrue on the basis of the employee’s ordinary hours of work.

Personal leave can be taken if the employee is not fit for work due to personal illness or injury.

Payment for personal/carer’s leave is at the employee’s base rate of pay for ordinary hours of work

Back to top

Carer’s leave

Carer’s leave can be taken to provide care or support for a member of the employee’s household or immediate family due to personal illness or injury or an unexpected emergency. Immediate family is defined to mean:

• a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
• a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee

Immediate family includes extended and blended families, de facto partners, step-relationships, adoptive relationships and same sex relationships.

All employees, including casual employees are entitled to two days of unpaid carer’s leave per occasion. Permanent employees can only take unpaid carer’s leave if they have used up all of their paid carer’s leave entitlement.

Back to top

Compassionate leave

Employees are also entitled to two days of paid compassionate leave per occasion and casual employees are entitled to two days unpaid compassionate leave.

Compassionate leave can be taken on two separate days or any other period as agreed between the employer and the employee.

Compassionate leave is available for employees to spend time with a member of their immediate family or household who has developed personal illness or injury or after the death of a member of their immediate family or household.

Payment for compassionate leave is at the employee’s base rate of pay for ordinary hours of work

Notice and evidence requirements

When taking personal/carer’s leave and compassionate leave, employees must do the following or they are not entitled to take the leave:

• notify their employer as soon as is reasonably practicable (which can be a time after the leave has started);
• state the period, or expected period, of the absence;
• if required by the employer, provide evidence that would satisfy a reasonable person of their entitlement to take the leave (this can be a medical certificate or statutory declaration).

This statutory declaration can be used if required to provide evidence.

Enterprise agreements can specify further rules about evidence requirements, such as the provision of medical certificates.

Cashing out of personal/carer’s leave

Personal/carer’s leave can only be cashed out if it is a term of an award or enterprise agreement.

The Pastoral Award 2020 does not provide for cashing out of personal/carer’s leave. Therefore employees, including employees covered by the Pastoral Award 2020, can only cash out accrued personal/carer’s leave if it is a term of an enterprise agreement.

Each agreement to cash out personal/carer’s leave must be in writing and the payment must be for the full amount that the employee would have been paid if the employee had taken the leave. A separate agreement is required each time personal/carer’s leave is cashed out. Use this template for cashing out of personal leave.

If accrued personal/carer’s leave is cashed out the employee must retain a balance of 15 days to be taken as paid leave.

Back to top

Payment of accrued personal/carer’s leave on termination of employment

Unused personal/carer’s leave does not have to be paid on termination unless there is a term in a workplace agreement or award providing for cashing out of personal carer’s leave. The Pastoral Award 2020 does not permit the cashing out of personal/carer’s leave.

Community service leave

The NES provide an entitlement to leave for all employees required to attend jury service and for those who engage in a voluntary emergency management activity.

Jury service leave

Employees (excluding casual employees) are entitled to be paid by their employer for a period of up to 10 days while they are absent from work during a period of jury service. Payment for jury service leave is the employee’s base rate of pay for ordinary hours of work. Employers can require the employee to obtain payments for jury service leave from the applicable State/Territory or Commonwealth body and these payments will reduce the amount payable to the employee.

Notice requirements – jury service leave

Employers can request evidence that the employee has taken steps to obtain any available payments and evidence of the payments from the State/Territory or Commonwealth body for the first 10 days of the jury service leave. If this is not provided the employer does not have to make the payment for jury service leave.

Voluntary emergency management activities

Employees are entitled to unpaid leave to engage in voluntary activities which involve dealing with a natural disaster or emergency if they are voluntary members of the emergency management body and the body has requested them to attend. Emergency management bodies include fire fighting bodies, civil defence and rescue.

Notice requirements – community service leave

Employees must give employers notice of the need for community service leave as soon as possible and advise the employer of the expected length of the absence. Employers can also require employees to give them reasonable evidence of the need for the leave.

Family and Domestic Violence Leave 

Family and Domestic Violence Leave is a National Employment Standards entitlement of 10 days’ paid leave per 12-month period for domestic violence victims to deal with family and domestic violence.

From 1 August 2023, all farm businesses regardless of size, will be subject to the National Employment Standard relating to this entitlement.

Family and domestic violence means

Violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.

Close relative means the following:

a member of the employee’s immediate family; or

is related to the employee according to Aboriginal or Torres Strait islander kinship rules.

Immediate family means

• a spouse, de facto partner, child, parent, grandparent, grandchild, sibling of employee;
• a spouse, de facto partner, child, parent, grandparent, grandchild, sibling of employee’s spouse or de facto partner;

When does family and domestic violence leave commence?

Family and Domestic Violence Leave applies in full to all employees including part time and casual employees as of 1 February 2023 or 1 August 2023 for small business employers.

Employees who are already employed when the paid leave entitlement starts (ie 1 February 2023 for medium and large businesses or 1 August 2023 for small businesses) can access the full 10 days on the relevant start date. The leave then renews on the anniversary of when they commenced working for their employer (not on the anniversary of the relevant start date).

The start of a casual or seasonal employee’s employment is the start of that employee’s first employment with the employer.

Family and Domestic Violence Leave does not accrue progressively or accumulate from year to year but is available in full at the commencement of each 12-month period of the employee’s employment.

Family and domestic violence victims do not have to have exhausted other forms of leave before accessing Family and Domestic Violence Leave.

Payment for Family and Domestic Violence Leave:

• For employees other than casual employees- payment is at employee’s full rate of pay calculated as if the employee had not taken the leave which includes overtime, penalty rates and loadings.
• For casual employees – payment is full payment for the hours they were rostered to work.

Taking family and domestic violence leave

The employee may take Family and Domestic Violence Leave if:

• the employee is experiencing family and domestic violence;
• the employee needs to do something to deal with the impact of the family and domestic violence; and
• it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.

The employee can take the Family and Domestic Violence Leave

• in a single continuous period of 10 days; or
• in separate periods of one or more days; or

in any other separate periods agreed between the employer and the employee which may amount to more than 10 days.

Notice and evidence requirements

• Notice must be given to the employer as soon as practicable which can be after the leave has started.
• The employee must advise employer of the expected period of the leave.
• If required by the employer, the employee must provide evidence that would satisfy a reasonable person that the leave is:
• taken because the employee is experiencing family and domestic violence;
• the employee needs to do something to deal with the impact of the family and domestic violence; and
• it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.

Examples of actions which an employee experiencing family and domestic violence may include arranging for the safety or relocation of the employee or a close relative, attending court hearings, accessing police services, attending counselling sessions and appointments with medical financial or legal professionals.

Types of evidence

Types of evidence can include:

• documents issued by the police service;
• documents issued by a court;
• family violence support service documents, or
• a statutory declaration.

Confidentiality requirement

Employers must ensure that any information provided by the employee with respect to Family and Domestic Violence Leave is treated confidentially.

This confidentiality requirement does not prevent the employer from making a disclosure if required to do so by Australian law or to protect the life, health or safety of the employee or another person.

Payslips

Family and Domestic Violence Leave should not be recorded on pay slips but employers should keep the usual records relating to leave records in the employee’s employment records.

Interaction between Family and Domestic Violence Leave and other leave

An employee can use paid Family and Domestic Violence Leave during a period of Personal/Carer’s Leave of Annual Leave and if this is the case the employee is taken to be on paid Family and Domestic Violence Leave and must give the employer notice and the required evidence.

Long service leave

State and territory laws provide for long service leave.

Back to top

Public holidays

The NES provides for employees to be absent from work on specified public holidays. Payment is the employee’s base rate of pay for ordinary hours of work

Full-time employees are entitled to a paid day off for public holidays. Part-time employees are entitled to be paid for the hours they would normally work on public holidays. If they do not normally work on the day of the public holiday, they are not entitled to pay.

Casuals are not entitled to pay for public holidays unless they are rostered for work on that day.

The following days are public holidays for the NES:

• 1 January (New Year’s Day)
• 26 January (Australia Day)
• Good Friday
• Easter Monday
• 25 April (Anzac Day)
• Queen’s birthday holiday
• 25 December (Christmas Day)
• 26 December (Boxing Day)
• state and territory holidays

What are the public holidays in my state/territory?

Public holidays can be different depending on your location. Visit the Fair Work Ombudsman and browse the public holidays section to check the main public holidays in your state or territory. States and territories can declare their own extra public holidays. For example:

• in SA, part-day public holidays have been declared from 7pm – midnight on Christmas Eve and New Year’s Eve
• regional public holidays that apply only in a specific area
• state public holidays for Labour Day
• other state and territory public holidays such as Melbourne Cup Day in Victoria.

For more information about public holidays, phone or visit the relevant state or territory department websites listed here

Substitution of other days

If a State or Territory substitutes another day or declares an additional day, the employee is entitled to be absent on that day.

The Pastoral Award 2020 allows for employers and individual employees or employers and the majority of employees to agree to substitute an alternative day for the public holiday.

Award-free employees can agree with employers to substitute public holidays. Enterprise agreements can also provide for substitution of public holidays.

An employer may request an employee to work on a public holiday if the request is reasonable. The request may be refused if it is unreasonable or the employee’s refusal is reasonable.

The NES provides a list of factors to be taken into account when determining the reasonableness of a request or refusal:

• the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
• the employee’s personal circumstances, including family responsibilities;
• whether the employee could reasonably expect that the employer might request work on the public holiday;
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of work on the public holiday;
• the type of employment of the employee (for example, whether full time, part time, casual or shiftwork);
• the amount of notice in advance of the public holiday given by the employer when making the request;
• in relation to the refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request;
• any other relevant matter

The NES about notice of termination apply to all national system employers and non-national system employers in WA and their employees.

Written notice of termination

As of 1 January 2010, employers are required to provide written notice of the day of termination of employment. The written notice can be given to the employee in person or delivered or posted to their last known address.

Employees are not required to give written notice. The employee can work the notice period or the employer can pay the employee in lieu of that notice.

If notice is paid out, the employer must pay the full amount the employee would have earned had the minimum notice period been worked.

Back to top

Notice of termination and redundancy pay

Back to top

Notice periods

Notice periods are calculated according to the length of the employee’s continuous service. These periods are a minimum only and longer notice periods can be given. Employers are required to give written notice.

If the employee is over 45 years old and has completed at least two years of continuous service with the employer at the end of the day the notice is given, the employee is entitled to an extra week’s notice.

Continuous service

Continuous service is the time an employee has spent working for an employer without a break and this needs to be calculated so that the notice period can be worked out.

Unauthorised absences from work do not break continuous service but are not counted when calculating how long the notice period should be.

Employee notice 

The Pastoral Award 2020 provides for employees to give the same amount of notice as employers. Notice by employers must be in writing. Read more about employee notice here in the termination section of the website.

Exclusions from notice requirement

The following employees do not have to be given notice:

• employees employed for a specified period of time, for a specified task, or seasonal employees;
• employees whose employment is terminated because of serious misconduct;
• casual employees;
• trainees (other than apprentices) and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement.

Back to top

Job search entitlement – Pastoral Award 2020

The Pastoral Award 2020 contains a job search entitlement. The Pastoral Award 2020 provides that where an employer has given an employee covered by the Pastoral Award 2020 notice of termination, the employee is entitled to take one day off without loss of pay to look for other work.

The employee can take the day off at a time when it is convenient to the employee after consultation with the employer.

Back to top

Redundancy

The NES provide that all employees who have been employed for 12 months or more and who are not employed by a ‘small business employer’ (see definition below) are entitled to redundancy pay if the employee’s employment is terminated:

• (a) because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
• (b) because of the insolvency or bankruptcy of the employer.

Exclusions from redundancy payments apply, including:

• employees engaged for less than a year;
• an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
• an employee whose employment is terminated because of serious misconduct;
• a casual employee;
• an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement

Redundancy pay period

* There is a reduction in redundancy pay from 16 weeks to
12 weeks for employees with at least 10 years’ continuous
service. This is consistent with the 2004 Redundancy Case
decision made by the Australian Industrial Relations
Commission. Read more here.

Amount of redundancy pay

Redundancy pay is based on years of continuous service with an employer, and is calculated on the employee’s base rate of pay for ordinary hours of work. The base rate of pay does not include any of the following:

• incentive based payments and bonuses;
• loadings;
• monetary allowances;
• overtime or penalty rates;
• any other separately identifiable amounts

Fair Work Information Statement

The NES require all employers to give each new employee a copy of the Fair Work Information Statement prior to or as soon as practicable after commencement of employment

The Fair Work Information Statement contains information about the roles of the Fair Work Commission and the Fair Work Ombudsman, the National Employment Standards, modern awards, agreement making and freedom of association. It also contains information on individual flexibility arrangements, employee records and privacy and termination of employment.

Back to top