Wages & Benefits | Employment Law

In Australia along with the Fair Work Act (FWA) we also have the National Employment Standards (NES) and the Modern Awards.

The NES applies to all National System Employers being:

–           Corporation employers

–           Public sector employers in the Cth, Vic and the territories only

–           Private sector employers in all jurisdictions other than WA

–           Employers engaged in interstate trade or commerce.

The Modern Awards applies to many industries and jobs in Australia. At present there are 122 modern awards (down from what was 4000 previously). These are listed on the Fair Work Commission website: www.fwc.gov.au


Modern Awards Objective

The objective of the modern awards is to ensure that together with the NES they provide a fair and relevant minimum safety net of terms and conditions for the majority of Australian workers, taking into account:

  • relative living standards and the needs of the low paid;
  • the need to encourage collective bargaining; and
  • the need to promote social inclusion through increased workforce participation; and
  • the need to promote flexible modern work practices and the efficient and productive performance of work; and
  • additional remuneration for overtime, unsocial, irregular hours, public holidays and shift work.


Note: That Modern awards do not apply to high income employees as defined in the FWA and/or when an enterprise agreement applies to the employee.


NES Objective

In addition to Modern awards, the NES includes several important features, which both employers and employees must comply with, including what are called the 10 floor rights or base rights. The objective of these floor rights is to set the standard which cannot be opted out for or overridden by a NES employer. 

They NES mminimum floor of rights include: –  

  1. Hours of work – 38 hours per work plus reasonable additional hours. An employee can refuse unreasonable additional hours of work;
  1. Flexible work for parents– An employee who cares for a school age child or a child under 18 with a disability may request a change to workplace arrangements to accommodate their caring duties. This request can only be refused on reasonable grounds;
  1. Parental leave – An employee is entitled to 12 months unpaid parental leave and to seek a second period of 12 months unpaid leave if necessary. The request can only be refused on reasonable grounds. The decision to refuse the request is not reviewable under the NES;


  1. Annual leave – Employees are entitled to 4 weeks annual leave and shift workers 5 weeks. Consented to agreements can allow employees to cash out annual leave as long as the employee’s remaining accrued annual leave entitlement is 4 weeks;
  1. Personal, carers, compassionate leave – Employees are entitled 10 days personal/carers leave. An employee is also entitled to an additional 2 days unpaid carer’s leave per occasion and 2 days paid compassionate leave per occasion. Agreements can allow employees to cash out personal leave by agreement, so long as the employee’s remaining personal leave entitlement is 15 days.
  1. Community service leave – Employees are entitled to community service leave, this generally applies for jury service and voluntary emergency management activities. Leave is unpaid, except for the first 10 days of jury service when the employee is not casual;
  1. Long service leave – Employees are entitled to long service leave in accordance with pre-existing entitlements.
  1. Public holidays – Employee are entitled to be absent from their employment on a day that is a public holiday. An employee may refuse a request to work on a public holiday if the request to work is unreasonable, or the refusal to work is reasonable;
  1. Termination of employment and redundancy – An employer must give a minimum notice period for termination of employment and redundancy (see our other post of what is considered reasonable notice). The period is dependent on the years of service. Where an employee’s employment is terminated for redundancy reasons, the employee is entitled to redundancy pay. The amount of redundancy pay is also dependent on the years of service;
  1. Information statement – Employers must give all employees on commencement a statement of their entitlements and rights under the Act.


Who’s covered by the NES

All employees in the national workplace relations system are covered by the NES regardless of the award, registered agreement or employment contract that applies.


Casual employees and the NES

Casual employees only get five (5) of the NES entitlements relating to:

  1. unpaid carer’s leave
  2. unpaid compassionate leave
  3. unpaid family and domestic violence leave
  4. community service leave
  5. the Fair Work Information Statement.


The FWA, NES and Modern Awards also deals which with terms which may be included in employment contracts, terms which must be included, and terms that are prohibited terms in an employment contract.

For more details see https://www.fairwork.gov.au/employee-entitlements/national-employment-standards

For National minimum wage orders not covered by an award or enterprise agreement, wages are set by the national minimum wage orders see https://www.fwc.gov.au/awards-agreements/minimum-wages-conditions/annual-wage-reviews/annual-wage-review-2016-17/national

If you or someone you know has been requires information regarding workplace wages and benefits, contact Rep-Revive Employment Lawyers® for an initial consultation.

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