Part 2-2—The National Employment Standards of the Fair Work Act 2009

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 1 Introduction

Section 59

132

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Part 2-2—The National Employment Standards

Division 1—Introduction

59 Guide to this Part

This Part contains the National Employment Standards.

Division 2 identifies the National Employment Standards, the

detail of which is set out in Divisions 3 to 12.

Division 13 contains miscellaneous provisions relating to the

National Employment Standards.

The National Employment Standards are minimum standards that

apply to the employment of national system employees. Part 2-1

(which deals with the core provisions for this Chapter) contains the

obligation for employers to comply with the National Employment

Standards (see section 44).

The National Employment Standards also underpin what can be

included in modern awards and enterprise agreements. Part 2-1

provides that the National Employment Standards cannot be

excluded by modern awards or enterprise agreements, and contains

other provisions about the interaction between the National

Employment Standards and modern awards or enterprise

agreements (see sections 55 and 56).

Divisions 2 and 3 of Part 6-3 extend the operation of the parental

leave and notice of termination provisions of the National

Employment Standards to employees who are not national system

employees.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Introduction Division 1

Section 60

Fair Work Act 2009

133

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

60 Meanings of employee and employer

In this Part, employee means a national system employee, and

employer means a national system employer.

Note: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 2 The National Employment Standards

Section 61

134

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 2—The National Employment Standards

61 The National Employment Standards are minimum standards

applying to employment of employees

(1) This Part sets minimum standards that apply to the employment of

employees which cannot be displaced, even if an enterprise

agreement includes terms of the kind referred to in

subsection 55(5).

Note: Subsection 55(5) allows enterprise agreements to include terms that

have the same (or substantially the same) effect as provisions of the

National Employment Standards.

(2) The minimum standards relate to the following matters:

(a) maximum weekly hours (Division 3);

(b) requests for flexible working arrangements (Division 4);

(ba) offers and requests for casual conversion (Division 4A);

(d) annual leave (Division 6);

(e) personal/carer’s leave, compassionate leave and paid family

and domestic violence leave (Division 7);

(f) community service leave (Division 8);

(g) long service leave (Division 9);

(h) public holidays (Division 10);

(ha) superannuation contributions (Division 10A);

(i) notice of termination and redundancy pay (Division 11);

(j) Fair Work Information Statement (Division 12).

(3) Divisions 3 to 12 constitute the National Employment Standards.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Maximum weekly hours Division 3

Section 62

Fair Work Act 2009

135

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 3—Maximum weekly hours

62 Maximum weekly hours

Maximum weekly hours of work

(1) An employer must not request or require an employee to work

more than the following number of hours in a week unless the

additional hours are reasonable:

(a) for a full-time employee—38 hours; or

(b) for an employee who is not a full-time employee—the lesser

of:

(i) 38 hours; and

(ii) the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

(2) The employee may refuse to work additional hours (beyond those

referred to in paragraph (1)(a) or (b)) if they are unreasonable.

Determining whether additional hours are reasonable

(3) In determining whether additional hours are reasonable or

unreasonable for the purposes of subsections (1) and (2), the

following must be taken into account:

(a) any risk to employee health and safety from working the

additional hours;

(b) the employee’s personal circumstances, including family

responsibilities;

employee is employed;

(d) 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, working

additional hours;

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 3 Maximum weekly hours

Section 63

136

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(e) any notice given by the employer of any request or

requirement to work the additional hours;

(f) any notice given by the employee of his or her intention to

refuse to work the additional hours;

(g) the usual patterns of work in the industry, or the part of an

industry, in which the employee works;

(h) the nature of the employee’s role, and the employee’s level of

responsibility;

(i) whether the additional hours are in accordance with

averaging terms included under section 63 in a modern award

or enterprise agreement that applies to the employee, or with

an averaging arrangement agreed to by the employer and

employee under section 64;

(j) any other relevant matter.

Authorised leave or absence treated as hours worked

(4) For the purposes of subsection (1), the hours an employee works in

a week are taken to include any hours of leave, or absence, whether

paid or unpaid, that the employee takes in the week and that are

authorised:

(a) by the employee’s employer; or

(b) by or under a term or condition of the employee’s

employment; or

Territory, or an instrument in force under such a law.

63 Modern awards and enterprise agreements may provide for

averaging of hours of work

(1) A modern award or enterprise agreement may include terms

providing for the averaging of hours of work over a specified

period. The average weekly hours over the period must not exceed:

(a) for a full-time employee—38 hours; or

(b) for an employee who is not a full-time employee—the lesser

of:

(i) 38 hours; and

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Maximum weekly hours Division 3

Section 64

Fair Work Act 2009

137

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(ii) the employee’s ordinary hours of work in a week.

(2) The terms of a modern award or enterprise agreement may provide

for average weekly hours that exceed the hours referred to in

paragraph (1)(a) or (b) if the excess hours are reasonable for the

purposes of subsection 62(1).

Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that

are worked in a week in accordance with averaging terms in a modern

award or enterprise agreement (whether the terms comply with

subsection (1) or (2)) will be treated as additional hours for the

purposes of section 62. The averaging terms will be relevant in

determining whether the additional hours are reasonable (see

paragraph 62(3)(i)).

64 Averaging of hours of work for award/agreement free employees

(1) An employer and an award/agreement free employee may agree in

writing to an averaging arrangement under which hours of work

over a specified period of not more than 26 weeks are averaged.

The average weekly hours over the specified period must not

exceed:

(a) for a full-time employee—38 hours; or

(b) for an employee who is not a full-time employee—the lesser

of:

(i) 38 hours; and

(ii) the employee’s ordinary hours of work in a week.

(2) The agreed averaging arrangement may provide for average

weekly hours that exceed the hours referred to in paragraph (1)(a)

or (b) if the excess hours are reasonable for the purposes of

subsection 62(1).

Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that

are worked in a week in accordance with an agreed averaging

arrangement (whether the arrangement complies with subsection (1)

or (2)) will be treated as additional hours for the purposes of

section 62. The averaging arrangement will be relevant in determining

whether the additional hours are reasonable (see paragraph 62(3)(i)).

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4 Requests for flexible working arrangements

Section 65

138

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 4—Requests for flexible working arrangements

65 Requests for flexible working arrangements

Employee may request change in working arrangements

(1) If:

(a) any of the circumstances referred to in subsection (1A) apply

to an employee; and

(b) the employee would like to change his or her working

arrangements because of those circumstances;

then the employee may request the employer for a change in

working arrangements relating to those circumstances.

Note: Examples of changes in working arrangements include changes in

hours of work, changes in patterns of work and changes in location of

work.

(1A) The following are the circumstances:

(aa) the employee is pregnant;

(a) the employee is the parent, or has responsibility for the care,

of a child who is of school age or younger;

(b) the employee is a carer (within the meaning of the Carer

Recognition Act 2010);

(d) the employee is 55 or older;

(e) the employee is experiencing family and domestic violence;

(f) 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 family and domestic violence.

(1B) To avoid doubt, and without limiting subsection (1), an employee

who:

(a) is a parent, or has responsibility for the care, of a child; and

(b) is returning to work after taking leave in relation to the birth

or adoption of the child;

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Requests for flexible working arrangements Division 4

Section 65A

Fair Work Act 2009

139

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

may request to work part-time to assist the employee to care for the

child.

(2) The employee is not entitled to make the request unless:

(a) for an employee other than a casual employee—the employee

has completed at least 12 months of continuous service with

the employer immediately before making the request; or

(b) for a casual employee—the employee:

(i) is, immediately before making the request, a regular

casual employee of the employer who has been

employed on that basis for a sequence of periods of

employment during a period of at least 12 months; and

(ii) has a reasonable expectation of continuing employment

by the employer on a regular and systematic basis.

(2A) For the purposes of applying paragraph (2)(a) in relation to an

employee who has had their employment converted under

Division 4A of Part 2-2, any period for which the employee was a

regular casual employee of the employer is taken to be continuous

service for the purposes of that paragraph.

Formal requirements

(3) The request must:

(a) be in writing; and

(b) set out details of the change sought and of the reasons for the

change.

Agreeing to the request

65A Responding to requests for flexible working arrangements

Responding to the request

(1) If, under subsection 65(1), an employee requests an employer for a

change in working arrangements relating to circumstances that

apply to the employee, the employer must give the employee a

written response to the request within 21 days.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4 Requests for flexible working arrangements

Section 65A

140

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) The response must:

(a) state that the employer grants the request; or

(b) if, following discussion between the employer and the

employee, the employer and the employee agree to a change

to the employee’s working arrangements that differs from

that set out in the request—set out the agreed change; or

request and include the matters required by subsection (6).

(3) The employer may refuse the request only if:

(a) the employer has:

(i) discussed the request with the employee; and

(ii) genuinely tried to reach an agreement with the

employee about making changes to the employee’s

working arrangements to accommodate the

circumstances mentioned in subsection (1); and

(b) the employer and the employee have not reached such an

agreement; and

refusal for the employee; and

(d) the refusal is on reasonable business grounds.

Note: An employer’s grounds for refusing a request may be taken to be

reasonable business grounds, or not to be reasonable business

grounds, in certain circumstances: see subsection 65C(5).

(4) To avoid doubt, subparagraph (3)(a)(ii) does not require the

employer to agree to a change to the employee’s working

arrangements if the employer would have reasonable business

grounds for refusing a request for the change.

Reasonable business grounds for refusing requests

(5) Without limiting what are reasonable business grounds for the

purposes of paragraph (3)(d) and subsection (4), reasonable

business grounds for refusing a request include the following:

(a) that the new working arrangements requested would be too

costly for the employer;

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Requests for flexible working arrangements Division 4

Section 65A

Fair Work Act 2009

141

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(b) that there is no capacity to change the working arrangements

of other employees to accommodate the new working

arrangements requested;

arrangements of other employees, or recruit new employees,

to accommodate the new working arrangements requested;

(d) that the new working arrangements requested would be likely

to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested would be likely

to have a significant negative impact on customer service.

Note: The specific circumstances of the employer, including the nature and

size of the enterprise carried on by the employer, are relevant to

whether the employer has reasonable business grounds for refusing a

request for the purposes of paragraph (3)(d) and subsection (4). For

example, if the employer has only a small number of employees, there

may be no capacity to change the working arrangements of other

employees to accommodate the request (see paragraph (5)(b)).

Employer must explain grounds for refusal

(6) If the employer refuses the request, the written response under

subsection (1) must:

(a) include details of the reasons for the refusal; and

(b) without limiting paragraph (a) of this subsection:

(i) set out the employer’s particular business grounds for

refusing the request; and

(ii) explain how those grounds apply to the request; and

(i) set out the changes (other than the requested change) in

the employee’s working arrangements that would

accommodate, to any extent, the circumstances

mentioned in subsection (1) and that the employer

would be willing to make; or

(ii) state that there are no such changes; and

(d) set out the effect of sections 65B and 65C.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4 Requests for flexible working arrangements

Section 65B

142

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Genuinely trying to reach an agreement

(7) This section does not affect, and is not affected by, the meaning of

the expression “genuinely trying to reach an agreement”, or any

variant of the expression, as used elsewhere in this Act.

65B Disputes about the operation of this Division

Application of this section

(1) This section applies to a dispute between an employer and an

employee about the operation of this Division if:

(a) the dispute relates to a request by the employee to the

employer under subsection 65(1) for a change in working

arrangements relating to circumstances that apply to the

employee; and

(b) either:

(i) the employer has refused the request; or

(ii) 21 days have passed since the employee made the

request, and the employer has not given the employee a

written response to the request under section 65A.

Note 1: Modern awards and enterprise agreements must include a term that

provides a procedure for settling disputes in relation to the National

Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or

incidental to, or that supplement, the National Employment Standards.

However, a term of a modern award or an enterprise agreement has no

effect to the extent it contravenes section 55 (see section 56).

Resolving disputes

(2) In the first instance, the parties to the dispute must attempt to

resolve the dispute at the workplace level, by discussions between

the parties.

FWC may deal with disputes

(3) If discussions at the workplace level do not resolve the dispute, a

party to the dispute may refer the dispute to the FWC.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Requests for flexible working arrangements Division 4

Section 65C

Fair Work Act 2009

143

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(4) If a dispute is referred under subsection (3):

(a) the FWC must first deal with the dispute by means other than

arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in

accordance with section 65C.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute

as it considers appropriate. The FWC commonly deals with disputes

by conciliation. The FWC may also deal with the dispute by

mediation, making a recommendation or expressing an opinion (see

subsection 595(2)).

Representatives

(5) The employer or employee may appoint a person or industrial

association to provide the employer or employee (as the case may

be) with support or representation for the purposes of:

(a) resolving the dispute; or

(b) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter

before the FWC only with the permission of the FWC (see

section 596).

65C Arbitration

(1) For the purposes of paragraph 65B(4)(b), the FWC may deal with

the dispute by arbitration by making any of the following orders:

(a) if the employer has not given the employee a written

response to the request under section 65A—an order that the

employer be taken to have refused the request;

(b) if the employer refused the request:

(i) an order that it would be appropriate for the grounds on

which the employer refused the request to be taken to

have been reasonable business grounds; or

(ii) an order that it would be appropriate for the grounds on

which the employer refused the request to be taken not

to have been reasonable business grounds;

(e) if the FWC is satisfied that the employer has not responded,

or has not responded adequately, to the employee’s request

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4 Requests for flexible working arrangements

Section 65C

144

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

under section 65A—an order that the employer take such

further steps as the FWC considers appropriate, having

regard to the matters in section 65A;

(f) subject to subsection (3) of this section:

(i) an order that the employer grant the request; or

(ii) an order that the employer make specified changes

(other than the requested changes) in the employee’s

working arrangements to accommodate, to any extent,

the circumstances mentioned in paragraph 65B(1)(a).

Note: An order by the FWC under paragraph (e) could, for example, require

the employer to give a response, or further response, to the

employee’s request, and could set out matters that must be included in

the response or further response.

(2) In making an order under subsection (1), the FWC must take into

account fairness between the employer and the employee.

(2A) The FWC must not make an order under paragraph (1)(e) or (f) that

would be inconsistent with:

(a) a provision of this Act; or

(b) a term of a fair work instrument (other than an order made

under that paragraph) that, immediately before the order is

made, applies to the employer and employee.

(3) The FWC may make an order under paragraph (1)(f) only if the

FWC is satisfied that there is no reasonable prospect of the dispute

being resolved without the making of such an order.

(4) If the FWC makes an order under paragraph (1)(a), the employer is

taken to have refused the request.

(5) If the FWC makes an order under paragraph (1)(b), the grounds on

which the employer refuses the request are taken:

(a) for an order made under subparagraph (1)(b)(i)—to be

reasonable business grounds; or

(b) for an order made under subparagraph (1)(b)(ii)—not to be

reasonable business grounds.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Requests for flexible working arrangements Division 4

Section 66

Fair Work Act 2009

145

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Contravening an order under subsection (1)

(6) A person must not contravene a term of an order made under

subsection (1).

Note: This subsection is a civil remedy provision (see Part 4-1).

66 State and Territory laws that are not excluded

This Act is not intended to apply to the exclusion of laws of a State

or Territory that provide employee entitlements in relation to

flexible working arrangements, to the extent that those entitlements

are more beneficial to employees than the entitlements under this

Division.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66A

146

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 4A—Offers and requests for casual conversion

Subdivision A—Application of Division

66A Division applies to casual employees etc.

(1) This Division applies in relation to an employee who is a casual

employee.

(2) A reference in this Division to full-time employment or part-time

employment is taken not to include employment for a specified

period of time, for a specified task or for the duration of a specified

season.

Subdivision B—Employer offers for casual conversion

66AA Subdivision does not apply to small business employers

This Subdivision does not apply in relation to an employer that is a

small business employer.

66B Employer offers

(1) Subject to section 66C, an employer must make an offer to a casual

employee under this section if:

(a) the employee has been employed by the employer for a

period of 12 months beginning the day the employment

started; and

(b) during at least the last 6 months of that period, the employee

has worked a regular pattern of hours on an ongoing basis

which, without significant adjustment, the employee could

continue to work as a full-time employee or a part-time

employee (as the case may be).

Note: An employee who meets the requirements of paragraphs (a) and (b)

would also be a regular casual employee because the employee has

been employed by the employer on a regular and systematic basis.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66C

Fair Work Act 2009

147

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) The offer must:

(a) be in writing; and

(b) be an offer for the employee to convert:

(i) for an employee that has worked the equivalent of

full-time hours during the period referred to in

paragraph (1)(b)—to full-time employment; or

(ii) for an employee that has worked less than the

equivalent of full-time hours during the period referred

to in paragraph (1)(b)—to part-time employment that is

consistent with the regular pattern of hours worked

during that period; and

the end of the 12 month period referred to in

paragraph (1)(a).

Note: If an offer is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K).

(3) For the purposes of paragraph (2)(b), in determining whether an

award/agreement free employee has worked the equivalent of

full-time hours, regard may be had to the hours of work of any

other full-time employees of the employer employed in the same

position as (or in a position that is comparable to) the position of

the employee.

66C When employer offers not required

(1) Despite section 66B, an employer is not required to make an offer

under that section to a casual employee if:

(a) there are reasonable grounds not to make the offer; and

(b) the reasonable grounds are based on facts that are known, or

reasonably foreseeable, at the time of deciding not to make

the offer.

(2) Without limiting paragraph (1)(a), reasonable grounds for deciding

not to make an offer include the following:

(a) the employee’s position will cease to exist in the period of 12

months after the time of deciding not to make the offer;

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66C

148

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(b) the hours of work which the employee is required to perform

will be significantly reduced in that period;

following in that period:

(i) the days on which the employee’s hours of work are

required to be performed;

(ii) the times at which the employee’s hours of work are

required to be performed;

which cannot be accommodated within the days or times the

employee is available to work during that period;

(d) making the offer would not comply with a recruitment or

selection process required by or under a law of the

Commonwealth or a State or a Territory.

(3) An employer must give written notice to a casual employee in

accordance with subsection (4) if:

(a) the employer decides under subsection (1) not to make an

offer to the employee; or

(b) the employee has been employed by the employer for the 12

month period referred to in paragraph 66B(1)(a) but does not

meet the requirement referred to in paragraph 66B(1)(b).

Note: If an employer fails to give notice to a casual employee, the employee

has a residual right to request conversion to full-time or part-time

employment in certain circumstances: see Subdivision C.

(4) The notice must:

(a) advise the employee that the employer is not making an offer

under section 66B; and

(b) include details of the reasons for not making the offer

(including any grounds on which the employer has decided to

not make the offer); and

12 month period referred to in paragraph 66B(1)(a).

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66D

Fair Work Act 2009

149

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

66D Employee must give a response

(1) The employee must give the employer a written response to the

offer within 21 days after the offer is given to the employee, stating

whether the employee accepts or declines the offer.

(2) If the employee fails to give the employer a written response in

accordance with subsection (1), the employee is taken to have

declined the offer.

66E Acceptances of offers

(1) If the employee accepts the offer, the employer must, within 21

days after the day the acceptance is given to the employer, give

written notice to the employee of the following:

(a) whether the employee is converting to full-time employment

or part-time employment;

(b) the employee’s hours of work after the conversion takes

effect;

or part-time employment takes effect.

(2) However, the employer must discuss with the employee the matters

the employer intends to specify for the purposes of

paragraphs (1)(a), (b) and (c) before giving the notice.

(3) The day specified for the purposes of paragraph (1)(c) must be the

first day of the employee’s first full pay period that starts after the

day the notice is given, unless the employee and employer agree to

another day.

Subdivision C—Residual right to request casual conversion

66F Employee requests

(1) A casual employee may make a request of an employer under this

section if:

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66F

150

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(a) the employee has been employed by the employer for a

period of at least 12 months beginning the day the

employment started; and

(b) the employee has, in the period of 6 months ending the day

the request is given, worked a regular pattern of hours on an

ongoing basis which, without significant adjustment, the

employee could continue to work as a full-time employee or

a part-time employee (as the case may be); and

(i) the employee has not, at any time during the period

referred to in paragraph (b), refused an offer made to the

employee under section 66B;

(ii) the employer has not, at any time during that period,

given the employee a notice in accordance with

paragraph 66C(3)(a) (which deals with notice of

employer decisions not to make offers on reasonable

grounds);

(iii) the employer has not, at any time during that period,

given a response to the employee under section 66G

refusing a previous request made under this section;

(iv) if the employer is not a small business employer—the

request is not made during the period of 21 days after

the period referred to in paragraph 66B(1)(a).

Note: Nothing in this Subdivision prevents an employee from requesting to

convert to full-time or part-time employment outside the provisions of

this Division, or prevents an employer from granting such a request.

(2) The request must:

(a) be in writing; and

(b) be a request for the employee to convert:

(i) for an employee that has worked the equivalent of

full-time hours during the period referred to in

paragraph (1)(b)—to full-time employment; or

(ii) for an employee that has worked less than the

equivalent of full-time hours during the period referred

to in paragraph (1)(b)—to part-time employment that is

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66G

Fair Work Act 2009

151

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

consistent with the regular pattern of hours worked

during that period; and

Note: If a request is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K).

(3) For the purposes of paragraph (1)(b), in determining whether an

award/agreement free employee has worked the equivalent of

full-time hours, regard may be had to the hours of work of any

other full-time employees of the employer employed in the same

position as (or in a position that is comparable to) the position of

the employee.

66G Employer must give a response

The employer must give the employee a written response to the

request within 21 days after the request is given to the employer,

stating whether the employer grants or refuses the request.

66H Refusals of requests

(1) The employer must not refuse the request unless:

(a) the employer has consulted the employee; and

(b) there are reasonable grounds to refuse the request; and

reasonably foreseeable, at the time of refusing the request.

(2) Without limiting paragraph (1)(b), reasonable grounds for refusing

the request include the following:

(a) it would require a significant adjustment to the employee’s

hours of work in order for the employee to be employed as a

full-time employee or part-time employee;

(b) the employee’s position will cease to exist in the period of 12

months after giving the request;

will be significantly reduced in the period of 12 months after

giving the request;

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66A

146

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 4A—Offers and requests for casual conversion

Subdivision A—Application of Division

66A Division applies to casual employees etc.

(1) This Division applies in relation to an employee who is a casual

employee.

(2) A reference in this Division to full-time employment or part-time

employment is taken not to include employment for a specified

period of time, for a specified task or for the duration of a specified

season.

Subdivision B—Employer offers for casual conversion

66AA Subdivision does not apply to small business employers

This Subdivision does not apply in relation to an employer that is a

small business employer.

66B Employer offers

(1) Subject to section 66C, an employer must make an offer to a casual

employee under this section if:

(a) the employee has been employed by the employer for a

period of 12 months beginning the day the employment

started; and

(b) during at least the last 6 months of that period, the employee

has worked a regular pattern of hours on an ongoing basis

which, without significant adjustment, the employee could

continue to work as a full-time employee or a part-time

employee (as the case may be).

Note: An employee who meets the requirements of paragraphs (a) and (b)

would also be a regular casual employee because the employee has

been employed by the employer on a regular and systematic basis.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66C

Fair Work Act 2009

147

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) The offer must:

(a) be in writing; and

(b) be an offer for the employee to convert:

(i) for an employee that has worked the equivalent of

full-time hours during the period referred to in

paragraph (1)(b)—to full-time employment; or

(ii) for an employee that has worked less than the

equivalent of full-time hours during the period referred

to in paragraph (1)(b)—to part-time employment that is

consistent with the regular pattern of hours worked

during that period; and

the end of the 12 month period referred to in

paragraph (1)(a).

Note: If an offer is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K).

(3) For the purposes of paragraph (2)(b), in determining whether an

award/agreement free employee has worked the equivalent of

full-time hours, regard may be had to the hours of work of any

other full-time employees of the employer employed in the same

position as (or in a position that is comparable to) the position of

the employee.

66C When employer offers not required

(1) Despite section 66B, an employer is not required to make an offer

under that section to a casual employee if:

(a) there are reasonable grounds not to make the offer; and

(b) the reasonable grounds are based on facts that are known, or

reasonably foreseeable, at the time of deciding not to make

the offer.

(2) Without limiting paragraph (1)(a), reasonable grounds for deciding

not to make an offer include the following:

(a) the employee’s position will cease to exist in the period of 12

months after the time of deciding not to make the offer;

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66C

148

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(b) the hours of work which the employee is required to perform

will be significantly reduced in that period;

following in that period:

(i) the days on which the employee’s hours of work are

required to be performed;

(ii) the times at which the employee’s hours of work are

required to be performed;

which cannot be accommodated within the days or times the

employee is available to work during that period;

(d) making the offer would not comply with a recruitment or

selection process required by or under a law of the

Commonwealth or a State or a Territory.

(3) An employer must give written notice to a casual employee in

accordance with subsection (4) if:

(a) the employer decides under subsection (1) not to make an

offer to the employee; or

(b) the employee has been employed by the employer for the 12

month period referred to in paragraph 66B(1)(a) but does not

meet the requirement referred to in paragraph 66B(1)(b).

Note: If an employer fails to give notice to a casual employee, the employee

has a residual right to request conversion to full-time or part-time

employment in certain circumstances: see Subdivision C.

(4) The notice must:

(a) advise the employee that the employer is not making an offer

under section 66B; and

(b) include details of the reasons for not making the offer

(including any grounds on which the employer has decided to

not make the offer); and

12 month period referred to in paragraph 66B(1)(a).

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66D

Fair Work Act 2009

149

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

66D Employee must give a response

(1) The employee must give the employer a written response to the

offer within 21 days after the offer is given to the employee, stating

whether the employee accepts or declines the offer.

(2) If the employee fails to give the employer a written response in

accordance with subsection (1), the employee is taken to have

declined the offer.

66E Acceptances of offers

(1) If the employee accepts the offer, the employer must, within 21

days after the day the acceptance is given to the employer, give

written notice to the employee of the following:

(a) whether the employee is converting to full-time employment

or part-time employment;

(b) the employee’s hours of work after the conversion takes

effect;

or part-time employment takes effect.

(2) However, the employer must discuss with the employee the matters

the employer intends to specify for the purposes of

paragraphs (1)(a), (b) and (c) before giving the notice.

(3) The day specified for the purposes of paragraph (1)(c) must be the

first day of the employee’s first full pay period that starts after the

day the notice is given, unless the employee and employer agree to

another day.

Subdivision C—Residual right to request casual conversion

66F Employee requests

(1) A casual employee may make a request of an employer under this

section if:

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66F

150

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(a) the employee has been employed by the employer for a

period of at least 12 months beginning the day the

employment started; and

(b) the employee has, in the period of 6 months ending the day

the request is given, worked a regular pattern of hours on an

ongoing basis which, without significant adjustment, the

employee could continue to work as a full-time employee or

a part-time employee (as the case may be); and

(i) the employee has not, at any time during the period

referred to in paragraph (b), refused an offer made to the

employee under section 66B;

(ii) the employer has not, at any time during that period,

given the employee a notice in accordance with

paragraph 66C(3)(a) (which deals with notice of

employer decisions not to make offers on reasonable

grounds);

(iii) the employer has not, at any time during that period,

given a response to the employee under section 66G

refusing a previous request made under this section;

(iv) if the employer is not a small business employer—the

request is not made during the period of 21 days after

the period referred to in paragraph 66B(1)(a).

Note: Nothing in this Subdivision prevents an employee from requesting to

convert to full-time or part-time employment outside the provisions of

this Division, or prevents an employer from granting such a request.

(2) The request must:

(a) be in writing; and

(b) be a request for the employee to convert:

(i) for an employee that has worked the equivalent of

full-time hours during the period referred to in

paragraph (1)(b)—to full-time employment; or

(ii) for an employee that has worked less than the

equivalent of full-time hours during the period referred

to in paragraph (1)(b)—to part-time employment that is

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66G

Fair Work Act 2009

151

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

consistent with the regular pattern of hours worked

during that period; and

Note: If a request is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K).

(3) For the purposes of paragraph (1)(b), in determining whether an

award/agreement free employee has worked the equivalent of

full-time hours, regard may be had to the hours of work of any

other full-time employees of the employer employed in the same

position as (or in a position that is comparable to) the position of

the employee.

66G Employer must give a response

The employer must give the employee a written response to the

request within 21 days after the request is given to the employer,

stating whether the employer grants or refuses the request.

66H Refusals of requests

(1) The employer must not refuse the request unless:

(a) the employer has consulted the employee; and

(b) there are reasonable grounds to refuse the request; and

reasonably foreseeable, at the time of refusing the request.

(2) Without limiting paragraph (1)(b), reasonable grounds for refusing

the request include the following:

(a) it would require a significant adjustment to the employee’s

hours of work in order for the employee to be employed as a

full-time employee or part-time employee;

(b) the employee’s position will cease to exist in the period of 12

months after giving the request;

will be significantly reduced in the period of 12 months after

giving the request;

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66J

152

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(d) there will be a significant change in either or both of the

following in the period of 12 months after giving the request:

(i) the days on which the employee’s hours of work are

required to be performed;

(ii) the times at which the employee’s hours of work are

required to be performed;

which cannot be accommodated within the days or times the

employee is available to work during that period;

(e) granting the request would not comply with a recruitment or

selection process required by or under a law of the

Commonwealth or a State or a Territory.

(3) If the employer refuses the request, the written response under

section 66G must include details of the reasons for the refusal.

66J Grants of requests

(1) If the employer grants the request, the employer must, within 21

days after the day the request is given to the employer, give written

notice to the employee of the following:

(a) whether the employee is converting to full-time employment

or part-time employment;

(b) the employee’s hours of work after the conversion takes

effect;

or part-time employment takes effect.

(2) However, the employer must discuss with the employee the matters

the employer intends to specify for the purposes of

paragraphs (1)(a), (b) and (c) before giving the notice.

(3) The day specified for the purposes of paragraph (1)(c) must be the

first day of the employee’s first full pay period that starts after the

day the notice is given, unless the employee and employer agree to

another day.

(4) To avoid doubt, the notice may be included in the written response

under section 66G.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66K

Fair Work Act 2009

153

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Subdivision D—Other provisions

66K Effect of conversion

To avoid doubt, an employee is taken, on and after the day

specified in a notice for the purposes of paragraph 66E(1)(c) or

66J(1)(c), to be a full-time employee or part-time employee of the

employer for the purposes of the following:

(a) this Act and any other law of the Commonwealth;

(b) a law of a State or Territory;

(d) the employee’s contract of employment.

66L Other rights and obligations

(1) An employer must not reduce or vary an employee’s hours of

work, or terminate an employee’s employment, in order to avoid

any right or obligation under this Division.

Note: The general protections provisions in Part 3-1 also prohibit the taking

of adverse action by an employer against an employee (which includes

a casual employee) because of a workplace right of the employee

under this Division.

(2) Nothing in this Division:

(a) requires an employee to convert to full-time employment or

part-time employment; or

(b) permits an employer to require an employee to convert to

full-time employment or part-time employment; or

employee who requests conversion to full-time employment

or part-time employment under this Division.

66M Disputes about the operation of this Division

Application of this section

(1) This section applies to a dispute between an employer and

employee about the operation of this Division.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 4A Offers and requests for casual conversion

Section 66M

154

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) However, this section does not apply in relation to the dispute if

any of the following includes a term that provides a procedure for

dealing with the dispute:

(a) a fair work instrument that applies to the employee;

(b) the employee’s contract of employment;

employee.

Note: Modern awards and enterprise agreements must include a term that

provides a procedure for settling disputes in relation to the National

Employment Standards (see paragraph 146(b) and subsection 186(6)).

Resolving disputes

(3) In the first instance, the parties to the dispute must attempt to

resolve the dispute at the workplace level, by discussions between

the parties.

FWC may deal with disputes

(4) If discussions at the workplace level do not resolve the dispute, a

party to the dispute may refer the dispute to the FWC.

(5) If a dispute is referred under subsection (4):

(a) the FWC must deal with the dispute; and

(b) if the parties notify the FWC that they agree to the FWC

arbitrating the dispute—the FWC may deal with the dispute

by arbitration.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute

as it considers appropriate, including by mediation, conciliation,

making a recommendation or expressing an opinion (see

subsection 595(2)).

Representatives

(6) The employer or employee to the dispute may appoint a person or

industrial association to provide the employer or employee (as the

case may be) with support or representation for the purposes of

resolving, or the FWC dealing with, the dispute.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Offers and requests for casual conversion Division 4A

Section 66M

Fair Work Act 2009

155

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Note: A person may be represented by a lawyer or paid agent in a matter

before the FWC only with the permission of the FWC (see

section 596).

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 67

156

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 5—Parental leave and related entitlements

Subdivision A—General

67 General rule—employee must have completed at least 12 months

of service

Employees other than casual employees

(1) An employee, other than a casual employee, is not entitled to leave

under this Division (other than unpaid pre-adoption leave or unpaid

no safe job leave) unless the employee has, or will have, completed

at least 12 months of continuous service with the employer

immediately before the date that applies under subsection (3).

(1A) For the purposes of applying subsection (1) in relation to an

employee who has had their employment converted under

Division 4A of Part 2-2, any period for which the employee was a

regular casual employee of the employer is taken to be continuous

service for the purposes of that subsection.

Casual employees

(2) A casual employee, is not entitled to leave (other than unpaid

pre-adoption leave or unpaid no safe job leave) under this Division

unless:

(a) the employee is, or will be, immediately before the date that

applies under subsection (3), a regular casual employee of the

employer who has been employed on that basis for a

sequence of periods of employment during a period of at

least 12 months; and

(b) but for:

(i) the birth or expected birth of the child; or

(ii) the placement or the expected placement of the child;

the employee would have a reasonable expectation of

continuing employment by the employer on a regular and

systematic basis.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 67

Fair Work Act 2009

157

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Date at which employee must have completed 12 months of service

(3) For the purposes of subsections (1) and (2), the date that applies is:

(a) if the leave is:

(i) birth-related leave starting before the birth of the child;

(ii) unpaid special parental leave;

the expected date of birth of the child; or

(b) in any other case—the date on which the employee’s period

of leave is to start.

Meaning of birth-related leave

(4) Birth-related leave means leave of either of the following kinds:

(a) unpaid parental leave taken in association with the birth of a

child (see section 70);

(b) unpaid special parental leave (see section 80).

Meaning of adoption-related leave

(5) Adoption-related leave means leave of either of the following

kinds:

(a) unpaid parental leave taken in association with the placement

of a child for adoption (see section 70);

(b) unpaid pre-adoption leave (see section 85).

Meaning of day of placement

(6) The day of placement, in relation to the adoption of a child by an

employee, means the earlier of the following days:

(a) the day on which the employee first takes custody of the

child for the adoption;

(b) the day on which the employee starts any travel that is

reasonably necessary to take custody of the child for the

adoption.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 68

158

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

68 General rule for adoption-related leave—child must be under 16

etc.

An employee is not entitled to adoption-related leave unless the

child that is, or is to be, placed with the employee for adoption:

(a) is, or will be, under 16 as at the day of placement, or the

expected day of placement, of the child; and

(b) has not, or will not have, lived continuously with the

employee for a period of 6 months or more as at the day of

placement, or the expected day of placement, of the child;

and

employee or the employee’s spouse or de facto partner.

69 Transfer of employment situations in which employee is entitled

to continue on leave etc.

(1) If:

(a) there is a transfer of employment in relation to an employee;

and

(b) the employee has already started a period of leave under this

Division when the employee’s employment with the first

employer ends;

the employee is entitled to continue on that leave for the rest of that

period.

(2) If:

(a) there is a transfer of employment in relation to an employee;

and

(b) the employee has, in relation to the first employer, already

taken a step that is required or permitted by a provision of

this Division in relation to taking a period of leave;

the employee is taken to have taken the step in relation to the

second employer.

Note: Steps covered by this subsection include (for example) complying

with a notice or evidence requirement of section 74 in relation to the

first employer.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 70

Fair Work Act 2009

159

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Subdivision B—Parental leave

70 Entitlement to unpaid parental leave

An employee is entitled to 12 months of unpaid parental leave if:

(a) the leave is associated with:

(i) the birth of a child of the employee or the employee’s

spouse or de facto partner; or

(ii) the placement of a child with the employee for

adoption; and

(b) the employee has or will have a responsibility for the care of

the child.

Note: The employee’s entitlement under this section may be affected by

other provisions of this Division.

71 The period of leave

Application of this section

(1) This section applies to an employee who intends to take unpaid

parental leave.

Leave must be taken in single continuous period

(2) The employee must take the leave in a single continuous period.

Note 1: An employee may take a form of paid leave at the same time as the

employee is on unpaid parental leave (see section 79).

Note 2: For provisions affecting the rule in this subsection, see:

(a) subsection 72A(11) (flexible unpaid parental leave); and

(b) subsection 73(4) (pregnant employee may be required to take

unpaid parental leave within 6 weeks before the birth); and

hospitalised); and

(d) subsection 79A(1) (keeping in touch days).

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 71

160

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

When birth-related leave must start and end

(3) If the leave is birth-related leave for an employee who is pregnant

with, or gives birth to, the child, the period of leave may start:

(a) up to 6 weeks before the expected date of birth of the child;

(b) earlier, if the employer and employee so agree; or

child;

but must end during the 24-month period starting on the date of

birth of the child.

Note 1: If the employee is not fit for work, the employee may be entitled to:

(a) paid personal leave under Subdivision A of Division 7; or

(b) unpaid special parental leave under section 80.

Note 2: If it is inadvisable for the employee to continue in the employee’s

present position, the employee may be entitled:

(a) to be transferred to an appropriate safe job under section 81; or

(b) to paid no safe job leave under section 81A; or

Note 3: Section 344 prohibits the exertion of undue influence or undue

pressure on the employee in relation to a decision by the employee

whether to agree as mentioned in paragraph (3)(b) of this section.

(4) If the leave is birth-related leave but subsection (3) does not apply,

the period of leave must start and end during the 24-month period

starting on the date of birth of the child.

When adoption-related leave must start and end

(5) If the leave is adoption-related leave, the period of leave must start

and end during the 24-month period starting on the day of

placement of the child.

Limit on amount of leave

(6) The employee may take unpaid parental leave under this section

only if the period of leave is no longer than 12 months, less the

employee’s notional flexible period.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 72A

Fair Work Act 2009

161

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Note: An employee is entitled under section 76 to request an extension of

the period of leave beyond the employee’s available parental leave

period. However, the period of leave may not be extended beyond 24

months after the date of birth or day of placement of the child (see

subsection 76(7)).

72A Flexible unpaid parental leave

Taking leave during 24 months starting on date of birth or day of

placement

(1) An employee may take up to 100 days (or, if a higher number of

days is prescribed by the regulations, that higher number of days)

of unpaid parental leave (flexible unpaid parental leave) during

the 24-month period starting on the date of birth or day of

placement of the child if the requirements of this section are

satisfied in relation to the leave.

Note 1: The flexible unpaid parental leave is unpaid parental leave and so

comes out of the employee’s entitlement to 12 months of unpaid

parental leave under section 70.

Note 2: The number of days of flexible unpaid parental leave that the

employee takes must not be more than the number of flexible days

notified to the employer under subsection 74(3C) (subject to any

agreement under subsection 74(3D)).

(2) Flexible unpaid parental leave under subsection (1) is available in

full to part-time and casual employees.

Taking leave that starts up to 6 weeks before the expected date of

birth of the child

(2A) A pregnant employee may take unpaid parental leave (flexible

unpaid parental leave) during the period that starts 6 weeks before

the expected date of birth of the child if the requirements of this

section are satisfied in relation to the leave.

Note 1: The flexible unpaid parental leave is unpaid parental leave and so

comes out of the employee’s entitlement to 12 months of unpaid

parental leave under section 70.

Note 2: The number of days of flexible unpaid parental leave that the

employee takes must not be more than the number of flexible days

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 72A

162

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

notified to the employer under subsection 74(3C) (subject to any

agreement under subsection 74(3D)).

(2B) Flexible unpaid parental leave under subsection (2A) is available in

full to pregnant part-time employees and pregnant casual

employees.

(2C) The amount of flexible unpaid parental leave to which an employee

is entitled under subsection (1) in relation to the child is reduced by

the number of days of flexible unpaid parental leave taken by the

employee under subsection (2A) in relation to the child.

How flexible unpaid parental leave may be taken

(3) The employee must take the flexible unpaid parental leave as:

(a) a single continuous period of one or more days; or

(b) separate periods of one or more days each.

Effect of taking unpaid parental leave under other provisions

(4) The employee may take the flexible unpaid parental leave whether

or not the employee has taken unpaid parental leave under another

provision of this Division in relation to the child.

(5) However, the employee may take flexible unpaid parental leave

after taking one or more periods of unpaid parental leave under

another provision of this Division only if the total of those periods

(disregarding any extension under section 76A) is no longer than

12 months, less the employee’s notional flexible period.

Meaning of notional flexible period

(6) An employee’s notional flexible period is the period during which

the employee would be on flexible unpaid parental leave if the

employee took leave for all the employee’s flexible days in a single

continuous period. For this purpose, the employee’s flexible days

are the flexible days notified to the employer under

subsection 74(3C) (subject to any agreement under

subsection 74(3D)).

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 73

Fair Work Act 2009

163

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(7) For the purposes of subsection (6), assume that:

(a) the employee ordinarily works each day that is not a Saturday

or a Sunday; and

(b) there are no public holidays during the period.

Multiple births

(10) An employee is not entitled to take flexible unpaid parental leave

in relation to a child if:

(a) the child and another child:

(i) are born during the same multiple birth; or

(ii) are both placed with the employee for adoption and

have the same day of placement; and

(b) the employee takes flexible unpaid parental leave in relation

to the other child.

Interaction with section 71

(11) Flexible unpaid parental leave taken by an employee is an

exception to the rules in section 71 about:

(a) taking the employee’s unpaid parental leave in a single

continuous period; and

(b) when the employee’s period of unpaid parental leave must

start.

(12) Despite anything in subsection (11), flexible unpaid parental leave

cannot be used to break up a period of unpaid parental leave taken

under section 71.

73 Pregnant employee may be required to take unpaid parental

leave within 6 weeks before the birth

Employer may ask employee to provide a medical certificate

(1) If a pregnant employee who is entitled to unpaid parental leave

(whether or not the employee has complied with section 74)

continues to work during the 6 week period before the expected

date of birth of the child, the employer may ask the employee to

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 73

164

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

give the employer a medical certificate containing the following

statements (as applicable):

(a) a statement of whether the employee is fit for work;

(b) if the employee is fit for work—a statement of whether it is

inadvisable for the employee to continue in the employee’s

present position during a stated period because of:

(i) illness, or risks, arising out of the employee’s

pregnancy; or

(ii) hazards connected with the position.

Note: Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

(2) The employer may require the employee to take a period of unpaid

parental leave other than flexible unpaid parental leave (the period

of leave) as soon as practicable if:

(a) the employee does not give the employer the requested

certificate within 7 days after the request; or

(b) within 7 days after the request, the employee gives the

employer a medical certificate stating that the employee is

not fit for work; or

(i) within 7 days after the request, the employee gives the

employer a medical certificate stating that the employee

is fit for work, but that it is inadvisable for the employee

to continue in the employee’s present position for a

stated period for a reason referred to in

subparagraph (1)(b)(i) or (ii);

(ii) the employee has not complied with the notice and

evidence requirements of section 74 for taking unpaid

parental leave.

Note: If the medical certificate contains a statement as referred to in

subparagraph (c)(i) and the employee has complied with the notice

and evidence requirements of section 74, then the employee is entitled

to be transferred to a safe job (see section 81) or to paid no safe job

leave (see section 81A).

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 74

Fair Work Act 2009

165

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

When the period of leave must end

(3) The period of leave must not end later than the earlier of the

following:

(a) the end of the pregnancy;

(b) if the employee has given the employer notice of the taking

of a period of leave connected with the birth of the child

(whether it is unpaid parental leave or some other kind of

leave)—the start date of that leave.

Special rules about the period of leave

(4) The period of leave is an exception to the rules in section 71 about:

(a) taking the employee’s unpaid parental leave in a single

continuous period; and

(b) when the employee’s period of unpaid parental leave must

start.

Note: The period of leave is unpaid parental leave and so comes out of the

employee’s entitlement to 12 months of unpaid parental leave under

section 70.

(5) The employee is not required to comply with section 74 in relation

to the period of leave.

74 Notice and evidence requirements

General requirement to give notice of taking leave

(1) An employee must give the employee’s employer written notice of

the taking of unpaid parental leave under section 71, or flexible

unpaid parental leave, or both, by the employee.

Notice requirements

(2) The employee must give the notice to the employer:

(a) at least 10 weeks before starting any of the leave covered by

the notice; or

(b) if that is not practicable, and:

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 74

166

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(i) the first or only period of leave covered by the notice is

leave to be taken under section 71; or

(ii) any of the leave covered by the notice starts before the

child’s date of birth or expected date of birth;

as soon as practicable (which may be a time after any of the

leave covered by the notice has started).

(2A) However, if the first or only period of leave covered by the notice

is leave to be taken under section 72A, the notice may be given at

any later time if the employer agrees.

(3) If any of the leave covered by the notice is to be taken under

section 71, the notice must specify the intended start and end dates

of the leave to be taken under section 71.

(3C) If any of the leave covered by the notice is to be taken under

section 72A, the notice must specify the total number of days

(flexible days) of flexible unpaid parental leave that the employee

intends to take in relation to the child.

(3D) If the employer agrees, the employee may:

(a) reduce the number of flexible days, including by reducing the

number of flexible days to zero; or

(b) increase the number of flexible days, but not so as to increase

the number of flexible days above 100 (or, if a higher number

of days is prescribed by regulations made for the purposes of

subsection 72A(1), that higher number).

Taking leave under section 71—confirming or changing intended

start and end dates

(4) If any of the leave covered by the notice is to be taken under

section 71, then at least 4 weeks before the intended start date

specified in the notice given under subsection (1), the employee

must:

(a) confirm the intended start and end dates of the leave to be

taken under section 71; or

(b) advise the employer of any changes to the intended start and

end dates of the leave to be taken under section 71;

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 74

Fair Work Act 2009

167

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

unless it is not practicable to do so.

Taking flexible unpaid parental leave—notifying days on which

employee will take leave

(4B) The employee must give the employer written notice of a flexible

day on which the employee will take flexible unpaid parental

leave:

(a) at least 4 weeks before that day; or

(b) if that is not practicable—as soon as practicable (which may

be a time after the leave has started).

Note: Whether or not it is practicable for the employee to give notice at least

4 weeks before that day will depend on the employee’s personal and

family circumstances. For example, it may not be practicable for the

employee to give notice at least 4 weeks before that day where the

employee experiences a health issue, a pregnancy complication or an

unexpected change in the employee’s child care arrangements.

(4C) If the employer agrees, the employee may change a day on which

the employee takes flexible unpaid parental leave from a day

specified in a notice under subsection (4B).

Evidence requirements

(5) An employee who has given the employee’s employer notice of the

taking of unpaid parental leave must, if required by the employer,

give the employer evidence that would satisfy a reasonable person:

(a) if the leave is birth-related leave:

(i) of the date of birth, or the expected date of birth, of the

child; and

(ii) that paragraph 77A(1)(a) (which deals with the stillbirth

of a child) applies in relation to the employee, if

relevant; or

(b) if the leave is adoption-related leave:

(i) of the day of placement, or the expected day of

placement, of the child; and

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 75

168

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(ii) that the child is, or will be, under 16 as at the day of

placement, or the expected day of placement, of the

child.

(6) Without limiting subsection (5), an employer may require the

evidence referred to in paragraph (5)(a) to be a medical certificate.

Example: If the application of paragraph 77A(1)(a) (which deals with the

stillbirth of a child) is relevant—certification by a medical practitioner

of the child as having been delivered.

Compliance

(7) An employee is not entitled to take unpaid parental leave under

section 71, or flexible unpaid parental leave, unless the employee

complies with this section.

Note: Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

75 Extending period of unpaid parental leave—extending to use

more of available parental leave period

Application of this section

(1) This section applies if:

(a) an employee has, in accordance with section 74, given notice

of the taking of a period of unpaid parental leave (the

original leave period) under section 71; and

(b) the original leave period is less than the employee’s available

parental leave period; and

(2) The employee’s available parental leave period is 12 months, less

any periods of the following kinds:

(b) a period of unpaid parental leave that the employee has been

required to take under subsection 73(2) or 82(2);

(d) if the employee has given notice in accordance with

subsection 74(2) or (2A) of the taking of flexible unpaid

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 76

Fair Work Act 2009

169

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

parental leave—a period equal to the employee’s notional

flexible period.

First extension by giving notice to employer

(3) The employee may extend the period of unpaid parental leave

taken under section 71 by giving the employee’s employer written

notice of the extension at least 4 weeks before the end date of the

original leave period. The notice must specify the new end date for

the leave.

(4) Only one extension is permitted under subsection (3).

Further extensions by agreement with employer

(5) If the employer agrees, the employee may further extend the period

of unpaid parental leave one or more times.

No entitlement to extension beyond available parental leave period

(6) The employee is not entitled under this section to extend the period

of unpaid parental leave beyond the employee’s available parental

leave period.

76 Extending period of unpaid parental leave—extending for up to

12 months beyond available parental leave period

Employee may request further period of leave

(1) An employee who takes unpaid parental leave under section 71 for

the employee’s available parental leave period may request the

employee’s employer to agree to an extension of unpaid parental

leave for the employee for a further period of up to 12 months

immediately following the end of the available parental leave

period.

Note: Extended periods of unpaid parental leave can include keeping in

touch days on which an employee performs work (see section 79A).

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 76A

170

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Making the request

(2) The request must be in writing, and must be given to the employer

at least 4 weeks before the end of the available parental leave

period.

Note: The request must be made when the employee is taking unpaid

parental leave under section 71.

No extension beyond 24 months after birth or placement

(7) Despite any other provision of this Division, the employee is not

entitled to extend the period of unpaid parental leave beyond 24

months after the date of birth or day of placement of the child.

76A Responding to requests for extension of unpaid parental leave

Responding to the request

(1) If, under subsection 76(1), an employee requests an employer to

agree to an extension of unpaid parental leave for the employee for

a further period of up to 12 months immediately following the end

of the available parental leave period, the employer must give the

employee a written response to the request within 21 days.

(2) The response must:

(a) state that the employer grants the request; or

(b) if, following discussion between the employer and the

employee, the employer and the employee agree to an

extension of unpaid parental leave for the employee for a

period that differs from the period requested—set out the

agreed extended period; or

request and include the matters required by subsection (6).

(3) The employer may refuse the request only if:

(a) the employer has:

(i) discussed the request with the employee; and

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 76A

Fair Work Act 2009

171

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(ii) genuinely tried to reach an agreement with the

employee about an extension of the period of unpaid

parental leave for the employee; and

(b) the employer and the employee have not reached such an

agreement; and

refusal for the employee; and

(d) the refusal is on reasonable business grounds.

Note: An employer’s grounds for refusing a request may be taken to be

reasonable business grounds, or not to be reasonable business

grounds, in certain circumstances (see subsection 76C(6)).

(4) To avoid doubt, subparagraph (3)(a)(ii) does not require the

employer to agree to an extension of the period of unpaid parental

leave for the employee if the employer would have reasonable

business grounds for refusing a request for the extension.

Reasonable business grounds for refusing requests

(5) Without limiting what are reasonable business grounds for the

purposes of paragraph (3)(d) and subsection (4), reasonable

business grounds for refusing a request include the following:

(a) that the extension of the period of unpaid parental leave

requested by the employee would be too costly for the

employer;

(b) that there is no capacity to change the working arrangements

of other employees to accommodate the extension of the

period of unpaid parental leave requested by the employee;

arrangements of other employees, or recruit new employees,

to accommodate the extension of the period of unpaid

parental leave requested by the employee;

(d) that the extension of the period of unpaid parental leave

requested by the employee would be likely to result in a

significant loss in efficiency or productivity;

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 76A

172

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(e) that the extension of the period of unpaid parental leave

requested by the employee would be likely to have a

significant negative impact on customer service.

Note: The specific circumstances of the employer, including the nature and

size of the enterprise carried on by the employer, are relevant to

whether the employer has reasonable business grounds for refusing a

request for the purposes of paragraph (3)(d) and subsection (4). For

example, if the employer has only a small number of employees, there

may be no capacity to change the working arrangements of other

employees to accommodate the request (see paragraph (5)(b)).

Employer must explain grounds for refusal

(6) If the employer refuses the request, the written response under

subsection (1) must:

(a) include details of the reasons for the refusal; and

(b) without limiting paragraph (a) of this subsection:

(i) set out the employer’s particular business grounds for

refusing the request; and

(ii) explain how those grounds apply to the request; and

(i) set out the extension of the period of unpaid parental

leave for the employee (other than the period requested

by the employee) that the employer would be willing to

agree to; or

(ii) state that there is no extension of the period that the

employer would be willing to agree to; and

(d) set out the effect of sections 76B and 76C.

Genuinely trying to reach an agreement

(7) This section does not affect, and is not affected by, the meaning of

the expression “genuinely trying to reach an agreement”, or any

variant of the expression, as used elsewhere in this Act.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 76B

Fair Work Act 2009

173

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

76B Disputes about extension of period of unpaid parental leave

Application of this section

(1) This section applies to a dispute between an employer and an

employee that relates to a request by the employee to the employer

under subsection 76(1) to agree to an extension of unpaid parental

leave for the employee for a further period of up to 12 months

immediately following the end of the available parental leave

period if:

(a) the employer has refused the request; or

(b) 21 days have passed since the employee made the request,

and the employer has not given the employee a written

response to the request under section 76A.

Note 1: Modern awards and enterprise agreements must include a term that

provides a procedure for settling disputes in relation to the National

Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or

incidental to, or that supplement, the National Employment Standards.

However, a term of a modern award or an enterprise agreement has no

effect to the extent it contravenes section 55 (see section 56).

Resolving disputes

(2) In the first instance, the parties to the dispute must attempt to

resolve the dispute at the workplace level, by discussions between

the parties.

FWC may deal with disputes

(3) If discussions at the workplace level do not resolve the dispute, a

party to the dispute may refer the dispute to the FWC.

(4) If a dispute is referred under subsection (3):

(a) the FWC must first deal with the dispute by means other than

arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in

accordance with section 76C.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 76C

174

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Note: For the purposes of paragraph (a), the FWC may deal with the dispute

as it considers appropriate. The FWC commonly deals with disputes

by conciliation. The FWC may also deal with the dispute by

mediation, making a recommendation or expressing an opinion (see

subsection 595(2)).

Representatives

(5) The employer or employee may appoint a person or industrial

association to provide the employer or employee (as the case may

be) with support or representation for the purposes of:

(a) resolving the dispute; or

(b) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter

before the FWC only with the permission of the FWC (see

section 596).

76C Arbitration

(1) For the purposes of paragraph 76B(4)(b), the FWC may deal with

the dispute by arbitration by making any of the following orders:

(a) if the employer has not given the employee a written

response to the request under section 76A—an order that the

employer be taken to have refused the request;

(b) if the employer refused the request:

(i) an order that it would be appropriate for the grounds on

which the employer refused the request to be taken to

have been reasonable business grounds; or

(ii) an order that it would be appropriate for the grounds on

which the employer refused the request to be taken not

to have been reasonable business grounds;

or has not responded adequately, to the employee’s request

under section 76A—an order that the employer take such

further steps as the FWC considers appropriate, having

regard to the matters in section 76A;

(d) subject to subsection (4) of this section:

(i) an order that the employer grant the request; or

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 76C

Fair Work Act 2009

175

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(ii) an order that the employer agree to an extension of

unpaid parental leave for the employee for a further

period of up to 12 months (other than the period

requested by the employee) immediately following the

end of the available parental leave period.

Note: An order by the FWC under paragraph (c) could, for example, require

the employer to give a response, or further response, to the

employee’s request, and could set out matters that must be included in

the response or further response.

(2) In making an order under subsection (1), the FWC must take into

account fairness between the employer and the employee.

(3) The FWC must not make an order under paragraph (1)(c) or (d)

that would be inconsistent with:

(a) a provision of this Act; or

(b) a term of a fair work instrument (other than an order made

under that paragraph) that, immediately before the order is

made, applies to the employer and employee.

(4) The FWC may make an order under paragraph (1)(d) only if the

FWC is satisfied that there is no reasonable prospect of the dispute

being resolved without the making of such an order.

(5) If the FWC makes an order under paragraph (1)(a), the employer is

taken to have refused the request.

(6) If the FWC makes an order under paragraph (1)(b), the grounds on

which the employer refuses the request are taken:

(a) for an order made under subparagraph (1)(b)(i)—to be

reasonable business grounds; or

(b) for an order made under subparagraph (1)(b)(ii)—not to be

reasonable business grounds.

Contravening an order under subsection (1)

(7) A person must not contravene a term of an order made under

subsection (1).

Note: This subsection is a civil remedy provision (see Part 4-1).

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 77

176

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

77 Reducing period of unpaid parental leave

If the employer agrees, an employee whose period of unpaid

parental leave has started may reduce the period of unpaid parental

leave the employee takes.

77A Effect of stillbirth or death of child on unpaid parental leave

Stillbirth—preserving entitlement to birth-related leave

(1) If:

(a) a child is stillborn; and

(b) an employee would have been entitled to unpaid parental

leave that is birth-related leave, if the child had been born

alive;

then the employee is taken to be entitled to the unpaid parental

leave, despite the stillbirth of the child.

(2) A stillborn child is a child:

(a) who weighs at least 400 grams at delivery or whose period of

gestation was at least 20 weeks; and

(b) who has not breathed since delivery; and

(3) The provisions of this Division have effect in relation to the

employee as if the birth of a child included the stillbirth of a child.

Note: One effect of this subsection is that if the employee has not given

notice in accordance with section 74 before the stillbirth of the child,

the employee can do so as soon as practicable (which may be a time

after the leave has started).

Stillbirth or death of child—cancelling leave or returning to work

(4) If a child is stillborn, or dies during the 24-month period starting

on the child’s date of birth, then an employee who is entitled to a

period of unpaid parental leave in relation to the child may:

(a) before the period of leave starts, give the employee’s

employer written notice cancelling the leave; or

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 78

Fair Work Act 2009

177

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(b) if the period of leave has started, give the employee’s

employer written notice that the employee wishes to return to

work on a specified day.

(5) For the purposes of paragraph (4)(b), the specified day must be at

least 4 weeks after the employer receives the notice.

(6) If the employee takes action under subsection (4), the employee’s

entitlement to unpaid parental leave in relation to the child ends:

(a) if the action is taken under paragraph (4)(a)—immediately

after the cancellation of the leave; or

(b) if the action is taken under paragraph (4)(b)—immediately

before the specified day.

Interaction with section 77

(7) Subsections (4) to (6) do not limit section 77 (which deals with the

employee reducing the period of unpaid parental leave with the

agreement of the employer).

78 Employee who ceases to have responsibility for care of child

(1) This section applies to an employee who has taken unpaid parental

leave in relation to a child if the employee ceases to have any

responsibility for the care of the child for a reason other than

because the child:

(a) is stillborn; or

(b) dies during the 24-month period starting on the child’s date

of birth.

(2) The employer may give the employee written notice requiring the

employee to return to work on a specified day.

(3) The specified day:

(a) must be at least 4 weeks after the notice is given to the

employee; and

(b) if the leave is birth-related leave taken by an employee who

has given birth—must not be earlier than 6 weeks after the

date of birth of the child.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 78A

178

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(4) The employee’s entitlement to unpaid parental leave in relation to

the child ends immediately before the specified day.

78A Hospitalised children

Agreeing to not take unpaid parental leave for a period while child

remains in hospital

(1) If:

(a) a child is required to remain in hospital after the child’s birth,

or is hospitalised immediately after the child’s birth,

including because:

(i) the child was born prematurely; or

(ii) the child developed a complication or contracted an

illness during the child’s period of gestation or at birth;

(iii) the child developed a complication or contracted an

illness following the child’s birth; and

(b) an employee, whether before or after the birth of the child,

gives notice in accordance with section 74 of the taking of a

period of unpaid parental leave (the original leave period) in

relation to the child;

then the employee may agree with the employee’s employer that

the employee will not take unpaid parental leave for a period (the

permitted work period) while the child remains in hospital.

Note: Section 344 prohibits the exertion of undue influence or undue

pressure on the employee in relation to a decision by the employee

whether to agree.

(2) If the employee and employer so agree, then the following rules

have effect:

(a) the employee is taken to not be taking unpaid parental leave

during the permitted work period;

(b) the permitted work period does not break the continuity of

the original leave period;

purposes of subsection 74(4), of an end date for the original

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 78A

Fair Work Act 2009

179

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

leave period that is the date on which that period would end

if it were extended by a period equal to the permitted work

period.

Note: One effect of paragraph (b) is that, if the employee takes periods of

unpaid parental leave either side of the permitted work period, the

periods are still treated as a single continuous period for the purposes

of section 71.

When permitted work period must start

(3) The permitted work period must start after the birth of the child.

When permitted work period ends

(4) The permitted work period ends at the earliest of the following:

(a) the time agreed by the employee and employer;

(b) the end of the day of the child’s first discharge from hospital

after birth;

the child dies.

Only one permitted work period allowed

(5) Only one period may be agreed to under subsection (1) for which

the employee will not take unpaid parental leave in relation to the

child.

Evidence

(6) The employee must, if required by the employer, give the employer

evidence that would satisfy a reasonable person of either or both of

the following:

(a) that paragraph (1)(a) applies in relation to the child;

(b) that the employee is fit for work.

(7) Without limiting subsection (6), an employer may require the

evidence referred to in that subsection to be a medical certificate.

Note: Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 79

180

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

79 Interaction with paid leave

(1) This Subdivision (except for subsections (2) and (3)) does not

prevent an employee from taking any other kind of paid leave

while the employee is taking unpaid parental leave. If the

employee does so, the taking of that other paid leave does not

break the continuity of the period of unpaid parental leave.

Note: For example, if the employee has paid annual leave available, the

employee may (with the employer’s agreement) take some or all of

that paid annual leave at the same time as the unpaid parental leave.

(2) While an employee is taking unpaid parental leave, the employee is

not entitled to take:

(a) paid personal/carer’s leave; or

(b) compassionate leave, unless the permissible occasion is the

stillbirth or death of the child in relation to whom the

employee is taking unpaid parental leave.

(3) An employee is not entitled to any payment under Division 8

(which deals with community service leave) in relation to activities

the employee engages in while taking unpaid parental leave.

79A Keeping in touch days

(1) This Subdivision does not prevent an employee from performing

work for the employee’s employer on a keeping in touch day while

the employee is taking unpaid parental leave. If the employee does

so, the performance of that work does not break the continuity of

the period of unpaid parental leave.

(2) A day on which the employee performs work for the employer

during the period of leave is a keeping in touch day if:

(a) the purpose of performing the work is to enable the employee

to keep in touch with the employee’s employment in order to

facilitate a return to that employment after the end of the

period of leave; and

(b) both the employee and the employer consent to the employee

performing work for the employer on that day; and

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 79A

Fair Work Act 2009

181

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(i) if the employee suggested or requested that the

employee perform work for the employer on that day—

14 days after the date of birth, or day of placement, of

the child to which the period of leave relates; or

(ii) otherwise—42 days after the date of birth, or day of

placement, of the child; and

(d) the employee has not already performed work for the

employer or another entity on 10 days during the period of

leave that were keeping in touch days.

The duration of the work the employee performs on that day is not

relevant for the purposes of this subsection.

Note: The employer will be obliged, under the relevant contract of

employment or industrial instrument, to pay the employee for

performing work on a keeping in touch day.

(3) The employee’s decision whether to give the consent mentioned in

paragraph (2)(b) is taken, for the purposes of section 344 (which

deals with undue influence or pressure), to be a decision to make,

or not make, an arrangement under the National Employment

Standards.

(4) For the purposes of paragraph (2)(d), treat as 2 separate periods of

unpaid parental leave:

(a) a period of unpaid parental leave taken during the employee’s

available parental leave period; and

(b) a period of unpaid parental leave taken as an extension of the

leave referred to in paragraph (a) for a further period

immediately following the end of the available parental leave

period.

(5) Subsection (1) does not apply in relation to the employee on and

after the first day on which the employee takes flexible unpaid

parental leave in relation to the child.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 79B

182

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

79B Unpaid parental leave not extended by paid leave or keeping in

touch days

If, during a period of unpaid parental leave, an employee:

(a) takes paid leave; or

(b) performs work for the employee’s employer on a keeping in

touch day;

taking that leave or performing that work does not have the effect

of extending the period of unpaid parental leave.

Subdivision C—Other entitlements

80 Unpaid special parental leave

Entitlement to unpaid special parental leave

(1) An employee is entitled to a period of unpaid special parental leave

if the employee is not fit for work during that period because:

(a) the employee is pregnant and has a pregnancy-related illness;

(b) all of the following apply:

(i) the employee has been pregnant;

(ii) the pregnancy ends after a period of gestation of at least

12 weeks otherwise than by the birth of a living child;

(iii) the child is not stillborn.

Note 1: Entitlement is also affected by section 67 (which deals with the length

of the employee’s service).

Note 1A: If the child is stillborn, the employee may be entitled to unpaid

parental leave (see section 77A).

Note 2: If an employee has an entitlement to paid personal/carer’s leave (see

section 96), the employee may take that leave instead of taking unpaid

special parental leave under this section.

Notice and evidence

(2) An employee must give the employee’s employer notice of the

taking of unpaid special parental leave by the employee.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 81

Fair Work Act 2009

183

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(3) The notice:

(a) must be given to the employer as soon as practicable (which

may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period,

of the leave.

(4) An employee who has given the employee’s employer notice of the

taking of unpaid special parental leave must, if required by the

employer, give the employer evidence that would satisfy a

reasonable person that the leave is taken for a reason specified in

subsection (1).

(5) Without limiting subsection (4), an employer may require the

evidence referred to in that subsection to be a medical certificate.

(6) An employee is not entitled to take unpaid special parental leave

unless the employee complies with subsections (2) to (4).

(7) Subdivision B does not apply to unpaid special parental leave.

Note: Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

81 Transfer to a safe job

(1) This section applies to a pregnant employee if the employee gives

the employee’s employer evidence that would satisfy a reasonable

person that the employee is fit for work, but that it is inadvisable

for the employee to continue in the employee’s present position

during a stated period (the risk period) because of:

(a) illness, or risks, arising out of the employee’s pregnancy; or

(b) hazards connected with that position.

Note: Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

(2) If there is an appropriate safe job available, then the employer must

transfer the employee to that job for the risk period, with no other

change to the employee’s terms and conditions of employment.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 81A

184

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Note: If there is no appropriate safe job available, then the employee may be

entitled to paid no safe job leave under section 81A or unpaid no safe

job leave under 82A.

(3) An appropriate safe job is a safe job that has:

(a) the same ordinary hours of work as the employee’s present

position; or

(b) a different number of ordinary hours agreed to by the

employee.

(4) If the employee is transferred to an appropriate safe job for the risk

period, the employer must pay the employee for the safe job at the

employee’s full rate of pay (for the position the employee was in

before the transfer) for the hours that the employee works in the

risk period.

(5) If the employee’s pregnancy ends before the end of the risk period,

the risk period ends when the pregnancy ends.

(6) Without limiting subsection (1), an employer may require the

evidence to be a medical certificate.

81A Paid no safe job leave

(1) If:

(a) section 81 applies to a pregnant employee but there is no

appropriate safe job available; and

(b) the employee is entitled to unpaid parental leave; and

requirements of section 74 for taking unpaid parental leave;

then the employee is entitled to paid no safe job leave for the risk

period.

(2) If the employee takes paid no safe job leave for the risk period, the

employer must pay the employee at the employee’s base rate of

pay for the employee’s ordinary hours of work in the risk period.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 82

Fair Work Act 2009

185

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

82 Employee on paid no safe job leave may be asked to provide a

further medical certificate

Employer may ask employee to provide a medical certificate

(1) If an employee is on paid no safe job leave during the 6 week

period before the expected date of birth of the child, the employer

may ask the employee to give the employer a medical certificate

stating whether the employee is fit for work.

Note: Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

(2) The employer may require the employee to take a period of unpaid

parental leave (the period of leave) as soon as practicable if:

(a) the employee does not give the employer the requested

certificate within 7 days after the request; or

(b) within 7 days after the request, the employee gives the

employer a certificate stating that the employee is not fit for

work.

Entitlement to paid no safe job leave ends

(3) When the period of leave starts, the employee’s entitlement to paid

no safe job leave ends.

When the period of leave must end etc.

(4) Subsections 73(3), (4) and (5) apply to the period of leave.

82A Unpaid no safe job leave

(1) If:

(a) section 81 applies to a pregnant employee but there is no

appropriate safe job available; and

(b) the employee is not entitled to unpaid parental leave; and

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 83

186

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

employer evidence that would satisfy a reasonable person of

the pregnancy;

then the employee is entitled to unpaid no safe job leave for the

risk period.

(2) Without limiting subsection (1), an employer may require the

evidence referred to in paragraph (1)(c) to be a medical certificate.

83 Consultation with employee on unpaid parental leave

If:

(a) an employee is taking a period of unpaid parental leave, other

than flexible unpaid parental leave; and

(b) the employee’s employer makes a decision that will have a

significant effect on the status, pay or location of the

employee’s pre-parental leave position;

the employer must take all reasonable steps to give the employee

information about, and an opportunity to discuss, the effect of the

decision on that position.

84 Return to work guarantee

On ending a period of unpaid parental leave, an employee is

entitled to return to:

(a) the employee’s pre-parental leave position; or

(b) if that position no longer exists—an available position for

which the employee is qualified and suited nearest in status

and pay to the pre-parental leave position.

84A Replacement employees

(1) Before an employer engages an employee to perform the work of

another employee who is going to take, or is taking, unpaid

parental leave, the employer must notify the replacement

employee:

(a) that the engagement to perform that work is temporary; and

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Parental leave and related entitlements Division 5

Section 85

Fair Work Act 2009

187

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(b) of the rights the employee taking unpaid parental leave has

under:

(i) subsections 77A(4) and (5) (which provide a right to

cancel the leave or end the leave early if the child is

stillborn or dies within 24 months); and

(ii) section 84 (which deals with the return to work

guarantee); and

(d) of the effect of section 78 (which provides the employer with

a right to require the employee taking unpaid parental leave

to return to work if the employee ceases to have any

responsibility for the care of the child).

(2) Subsection (1) does not apply in relation to the taking of flexible

unpaid parental leave.

85 Unpaid pre-adoption leave

Entitlement to unpaid pre-adoption leave

(1) An employee is entitled to up to 2 days of unpaid pre-adoption

leave to attend any interviews or examinations required in order to

obtain approval for the employee’s adoption of a child.

Note: Entitlement is also affected by section 68 (which deals with the age

etc. of the adopted child).

(2) However, an employee is not entitled to take a period of unpaid

pre-adoption leave if:

(a) the employee could instead take some other form of leave;

and

(b) the employer directs the employee to take that other form of

leave.

(3) An employee who is entitled to a period of unpaid pre-adoption

leave is entitled to take the leave as:

(a) a single continuous period of up to 2 days; or

(b) any separate periods to which the employee and the employer

agree.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 5 Parental leave and related entitlements

Section 85

188

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Notice and evidence

(4) An employee must give the employee’s employer notice of the

taking of unpaid pre-adoption leave by the employee.

(5) The notice:

(a) must be given to the employer as soon as practicable (which

may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period,

of the leave.

(6) An employee who has given the employee’s employer notice of the

taking of unpaid pre-adoption leave must, if required by the

employer, give the employer evidence that would satisfy a

reasonable person that the leave is taken to attend an interview or

examination as referred to in subsection (1).

(7) An employee is not entitled to take unpaid pre-adoption leave

unless the employee complies with subsections (4) to (6).

Note: Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Annual leave Division 6

Section 86

Fair Work Act 2009

189

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 6—Annual leave

86 Division applies to employees other than casual employees

This Division applies to employees, other than casual employees.

87 Entitlement to annual leave

Amount of leave

(1) For each year of service with an employer (other than periods of

employment as a casual employee of the employer), an employee

is entitled to:

(a) 4 weeks of paid annual leave; or

(b) 5 weeks of paid annual leave, if:

(i) a modern award applies to the employee and defines or

describes the employee as a shiftworker for the purposes

of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and

defines or describes the employee as a shiftworker for

the purposes of the National Employment Standards; or

(iii) the employee qualifies for the shiftworker annual leave

entitlement under subsection (3) (this relates to

award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise

agreement covering an employee, if the employee is covered by a

modern award that is in operation and defines or describes the

employee as a shiftworker for the purposes of the National

Employment Standards.

Accrual of leave

(2) An employee’s entitlement to paid annual leave accrues

progressively during a year of service (other than periods of

employment as a casual employee of the employer) according to

the employee’s ordinary hours of work, and accumulates from year

to year.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 6 Annual leave

Section 88

190

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Note: If an employee’s employment ends during what would otherwise have

been a year of service, the employee accrues paid annual leave up to

when the employment ends.

Award/agreement free employees who qualify for the shiftworker

entitlement

(3) An award/agreement free employee qualifies for the shiftworker

annual leave entitlement if:

(a) the employee:

(i) is employed in an enterprise in which shifts are

continuously rostered 24 hours a day for 7 days a week;

and

(ii) is regularly rostered to work those shifts; and

(iii) regularly works on Sundays and public holidays; or

(b) the employee is in a class of employees prescribed by the

regulations as shiftworkers for the purposes of the National

Employment Standards.

(4) However, an employee referred to in subsection (3) does not

qualify for the shiftworker annual leave entitlement if the

employee is in a class of employees prescribed by the regulations

as not being qualified for that entitlement.

(5) Without limiting the way in which a class may be described for the

purposes of paragraph (3)(b) or subsection (4), the class may be

described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

88 Taking paid annual leave

(1) Paid annual leave may be taken for a period agreed between an

employee and his or her employer.

(2) The employer must not unreasonably refuse to agree to a request

by the employee to take paid annual leave.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Annual leave Division 6

Section 89

Fair Work Act 2009

191

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

89 Employee not taken to be on paid annual leave at certain times

Public holidays

(1) If the period during which an employee takes paid annual leave

includes a day or part-day that is a public holiday in the place

where the employee is based for work purposes, the employee is

taken not to be on paid annual leave on that public holiday.

Other periods of leave

(2) If the period during which an employee takes paid annual leave

includes a period of any other leave (other than unpaid parental

leave) under this Part, or a period of absence from employment

under Division 8 (which deals with community service leave), the

employee is taken not to be on paid annual leave for the period of

that other leave or absence.

90 Payment for annual leave

(1) If, in accordance with this Division, an employee takes a period of

paid annual leave, the employer must pay the employee at the

employee’s base rate of pay for the employee’s ordinary hours of

work in the period.

(2) If, when the employment of an employee ends, the employee has a

period of untaken paid annual leave, the employer must pay the

employee the amount that would have been payable to the

employee had the employee taken that period of leave.

91 Transfer of employment situations that affect entitlement to

payment for period of untaken paid annual leave

Transfer of employment situation in which employer may decide

not to recognise employee’s service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this Division)

to a transfer of employment between non-associated entities in

relation to an employee, if the second employer decides not to

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 6 Annual leave

Section 92

192

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

recognise the employee’s service with the first employer (for the

purpose of this Division).

Employee is not entitled to payment for untaken annual leave if

service with first employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Division) to a

transfer of employment in relation to an employee, the employee is

not entitled to be paid an amount under subsection 90(2) for a

period of untaken paid annual leave.

Note: Subsection 22(5) provides that, generally, if there is a transfer of

employment, service with the first employer counts as service with the

second employer.

92 Paid annual leave must not be cashed out except in accordance

with permitted cashing out terms

Paid annual leave must not be cashed out, except in accordance

with:

(a) cashing out terms included in a modern award or enterprise

agreement under section 93, or

(b) an agreement between an employer and an award/agreement

free employee under subsection 94(1).

93 Modern awards and enterprise agreements may include terms

relating to cashing out and taking paid annual leave

Terms about cashing out paid annual leave

(1) A modern award or enterprise agreement may include terms

providing for the cashing out of paid annual leave by an employee.

(2) The terms must require that:

(a) paid annual leave must not be cashed out if the cashing out

would result in the employee’s remaining accrued

entitlement to paid annual leave being less than 4 weeks; and

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Annual leave Division 6

Section 94

Fair Work Act 2009

193

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(b) each cashing out of a particular amount of paid annual leave

must be by a separate agreement in writing between the

employer and the employee; and

have been payable to the employee had the employee taken

the leave that the employee has forgone.

Terms about requirements to take paid annual leave

(3) A modern award or enterprise agreement may include terms

requiring an employee, or allowing for an employee to be required,

to take paid annual leave in particular circumstances, but only if

the requirement is reasonable.

Terms about taking paid annual leave

(4) A modern award or enterprise agreement may include terms

otherwise dealing with the taking of paid annual leave.

94 Cashing out and taking paid annual leave for award/agreement

free employees

Agreements to cash out paid annual leave

(1) An employer and an award/agreement free employee may agree to

the employee cashing out a particular amount of the employee’s

accrued paid annual leave.

(2) The employer and the employee must not agree to the employee

cashing out an amount of paid annual leave if the agreement would

result in the employee’s remaining accrued entitlement to paid

annual leave being less than 4 weeks.

(3) Each agreement to cash out a particular amount of paid annual

leave must be a separate agreement in writing.

(4) The employer must pay the employee at least the full amount that

would have been payable to the employee had the employee taken

the leave that the employee has forgone.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 6 Annual leave

Section 94

194

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Requirements to take paid annual leave

(5) An employer may require an award/agreement free employee to

take a period of paid annual leave, but only if the requirement is

reasonable.

Note: A requirement to take paid annual leave may be reasonable if, for

example:

(a) the employee has accrued an excessive amount of paid annual

leave; or

(b) the employer’s enterprise is being shut down for a period (for

example, between Christmas and New Year).

Agreements about taking paid annual leave

(6) An employer and an award/agreement free employee may agree on

when and how paid annual leave may be taken by the employee.

Note: Matters that could be agreed include, for example, the following:

(a) that paid annual leave may be taken in advance of accrual;

(b) that paid annual leave must be taken within a fixed period of time

after it is accrued;

(d) that a specified period of notice must be given before taking paid

annual leave.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Personal/carer’s leave, compassionate leave and paid family and domestic violence

leave Division 7

Section 95

Fair Work Act 2009

195

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 7—Personal/carer’s leave, compassionate leave

and paid family and domestic violence leave

Subdivision A—Paid personal/carer’s leave

95 Subdivision applies to employees other than casual employees

This Subdivision applies to employees, other than casual

employees.

96 Entitlement to paid personal/carer’s leave

Amount of leave

(1) For each year of service with an employer (other than periods of

employment as a casual employee of the employer), an employee

is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

(2) An employee’s entitlement to paid personal/carer’s leave accrues

progressively during a year of service (other than periods of

employment as a casual employee of the employer) according to

the employee’s ordinary hours of work, and accumulates from year

to year.

97 Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is

taken:

(a) because the employee is not fit for work because of a

personal illness, or personal injury, affecting the employee;

(b) to provide 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 of:

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 7 Personal/carer’s leave, compassionate leave and paid family and domestic

violence leave

Section 98

196

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(i) a personal illness, or personal injury, affecting the

member; or

(ii) an unexpected emergency affecting the member.

Note 1: The notice and evidence requirements of section 107 must be

complied with.

Note 2: If an employee has an entitlement to paid personal/carer’s leave, the

employee may take that leave instead of taking unpaid special parental

leave under section 80.

98 Employee taken not to be on paid personal/carer’s leave at

certain times

Public holidays

(1) If the period during which an employee takes paid personal/carer’s

leave includes a day or part-day that is a public holiday in the place

where the employee is based for work purposes, the employee is

taken not to be on paid personal/carer’s leave on that public

holiday.

Period of paid family and domestic violence leave

(2) If the period during which an employee takes paid personal/carer’s

leave includes a period of paid family and domestic violence leave,

the employee is taken not to be on paid personal/carer’s leave for

the period of that paid family and domestic violence leave.

99 Payment for paid personal/carer’s leave

If, in accordance with this Subdivision, an employee takes a period

of paid personal/carer’s leave, the employer must pay the employee

at the employee’s base rate of pay for the employee’s ordinary

hours of work in the period.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Personal/carer’s leave, compassionate leave and paid family and domestic violence

leave Division 7

Section 100

Fair Work Act 2009

197

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

100 Paid personal/carer’s leave must not be cashed out except in

accordance with permitted cashing out terms

Paid personal/carer’s leave must not be cashed out, except in

accordance with cashing out terms included in a modern award or

enterprise agreement under section 101.

101 Modern awards and enterprise agreements may include terms

relating to cashing out paid personal/carer’s leave

(1) A modern award or enterprise agreement may include terms

providing for the cashing out of paid personal/carer’s leave by an

employee.

(2) The terms must require that:

(a) paid personal/carer’s leave must not be cashed out if the

cashing out would result in the employee’s remaining

accrued entitlement to paid personal/carer’s leave being less

than 15 days; and

(b) each cashing out of a particular amount of paid

personal/carer’s leave must be by a separate agreement in

writing between the employer and the employee; and

have been payable to the employee had the employee taken

the leave that the employee has forgone.

Subdivision B—Unpaid carer’s leave

102 Entitlement to unpaid carer’s leave

An employee is entitled to 2 days of unpaid carer’s leave for each

occasion (a permissible occasion) when a member of the

employee’s immediate family, or a member of the employee’s

household, requires care or support because of:

(a) a personal illness, or personal injury, affecting the member;

(b) an unexpected emergency affecting the member.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 7 Personal/carer’s leave, compassionate leave and paid family and domestic

violence leave

Section 103

198

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

103 Taking unpaid carer’s leave

(1) An employee may take unpaid carer’s leave for a particular

permissible occasion if the leave is taken to provide care or support

as referred to in section 102.

(2) An employee may take unpaid carer’s leave for a particular

permissible occasion as:

(a) a single continuous period of up to 2 days; or

(b) any separate periods to which the employee and his or her

employer agree.

(3) An employee cannot take unpaid carer’s leave during a particular

period if the employee could instead take paid personal/carer’s

leave.

Note: The notice and evidence requirements of section 107 must be

complied with.

Subdivision C—Compassionate leave

104 Entitlement to compassionate leave

(1) An employee is entitled to 2 days of compassionate leave for each

occasion (a permissible occasion) when:

(a) a member of the employee’s immediate family or a member

of the employee’s household:

(i) contracts or develops a personal illness that poses a

serious threat to his or her life; or

(ii) sustains a personal injury that poses a serious threat to

his or her life; or

(iii) dies; or

(b) a child is stillborn, where the child would have been a

member of the employee’s immediate family, or a member of

the employee’s household, if the child had been born alive;

has a miscarriage.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Personal/carer’s leave, compassionate leave and paid family and domestic violence

leave Division 7

Section 105

Fair Work Act 2009

199

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) Paragraph (1)(c) does not apply:

(a) if the miscarriage results in a stillborn child; or

(b) to a former spouse, or former de facto partner, of the

employee.

Note: For the definition of a stillborn child, see subsection 77A(2).

105 Taking compassionate leave

(1) An employee may take compassionate leave for a particular

permissible occasion if the leave is taken:

(a) to spend time with the member of the employee’s immediate

family or household who has contracted or developed the

personal illness, or sustained the personal injury, referred to

in section 104; or

(b) after the death of the member of the employee’s immediate

family or household, or the stillbirth of the child, referred to

in section 104; or

partner, has the miscarriage referred to in section 104.

(2) An employee may take compassionate leave for a particular

permissible occasion as:

(a) a single continuous 2 day period; or

(b) 2 separate periods of 1 day each; or

employer agree.

(3) If the permissible occasion is the contraction or development of a

personal illness, or the sustaining of a personal injury, the

employee may take the compassionate leave for that occasion at

any time while the illness or injury persists.

Note: The notice and evidence requirements of section 107 must be

complied with.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 7 Personal/carer’s leave, compassionate leave and paid family and domestic

violence leave

Section 106

200

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

106 Payment for compassionate leave (other than for casual

employees)

If, in accordance with this Subdivision, an employee, other than a

casual employee, takes a period of compassionate leave, the

employer must pay the employee at the employee’s base rate of

pay for the employee’s ordinary hours of work in the period.

Note: For casual employees, compassionate leave is unpaid leave.

Subdivision CA—Paid family and domestic violence leave

106A Entitlement to paid family and domestic violence leave

(1) An employee is entitled to 10 days of paid family and domestic

violence leave in a 12 month period.

(2) Paid family and domestic violence leave:

(a) is available in full at the start of each 12 month period of the

employee’s employment; and

(b) does not accumulate from year to year; and

(3) For the purposes of subsection (2), if an employee is employed by

a particular employer:

(a) as a casual employee; or

(b) for a specified period of time, for a specified task or for the

duration of a specified season;

the start of the employee’s employment is taken to be the start of

the employee’s first employment with that employer.

(4) The employee may take paid family and domestic violence leave

as:

(a) a single continuous 10 day period; or

(b) separate periods of one or more days each; or

agree, including periods of less than one day.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Personal/carer’s leave, compassionate leave and paid family and domestic violence

leave Division 7

Section 106B

Fair Work Act 2009

201

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(5) To avoid doubt, this section does not prevent the employee and the

employer agreeing that the employee may take paid or unpaid

leave in addition to the entitlement in subsection (1) to deal with

the impact of family and domestic violence.

106B Taking paid family and domestic violence leave

(1) The employee may take paid family and domestic violence leave

if:

(a) the employee is experiencing family and domestic violence;

and

(b) the employee needs to do something to deal with the impact

of the family and domestic violence; and

employee’s work hours.

Note 1: Examples of actions, by an employee who is experiencing family and

domestic violence, that could be covered by paragraph (b) include

arranging for the safety of the employee or a close relative (including

relocation), attending court hearings, accessing police services,

attending counselling and attending appointments with medical,

financial or legal professionals.

Note 2: The notice and evidence requirements of section 107 must be

complied with.

(2) Family and domestic violence is violent, threatening or other

abusive behaviour by a close relative of a person, a member of a

person’s household, or a current or former intimate partner of a

person, that:

(a) seeks to coerce or control the person; and

(b) causes the person harm or to be fearful.

(3) A close relative of a person is another person who:

(a) is a member of the first person’s immediate family; or

(b) is related to the first person according to Aboriginal or Torres

Strait Islander kinship rules.

Note: Immediate family is defined in section 12.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 7 Personal/carer’s leave, compassionate leave and paid family and domestic

violence leave

Section 106BA

202

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

106BA Payment for paid family and domestic violence leave

(1) If, in accordance with this Subdivision, an employee takes a period

of paid family and domestic violence leave, the employer must pay

the employee, in relation to the period:

(a) for an employee other than a casual employee—at the

employee’s full rate of pay, worked out as if the employee

had not taken the period of leave; or

(b) for a casual employee—at the employee’s full rate of pay,

worked out as if the employee had worked the hours in the

period for which the employee was rostered.

(2) Without limiting paragraph (1)(b), an employee is taken to have

been rostered to work hours in a period if the employee has

accepted an offer by the employer of work for those hours.

(3) Paragraph (1)(b) does not prevent a casual employee from taking a

period of paid family and domestic violence leave that does not

include hours for which the employee is rostered to work.

However, the employer is not required to pay the employee in

relation to such a period.

106C Confidentiality

(1) Employers must take steps to ensure information concerning any

notice or evidence an employee has given under section 107 of the

employee taking leave under this Subdivision is treated

confidentially, as far as it is reasonably practicable to do so.

(2) An employer must not, other than with the consent of the

employee, use such information for a purpose other than satisfying

itself in relation to the employee’s entitlement to leave under this

Subdivision. In particular, an employer must not use such

information to take adverse action against an employee.

(3) Subsection (2) has effect subject to subsection (4).

(4) Nothing in this Subdivision prevents an employer from dealing

with information provided by an employee if doing so is required

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Personal/carer’s leave, compassionate leave and paid family and domestic violence

leave Division 7

Section 106D

Fair Work Act 2009

203

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

by an Australian law or is necessary to protect the life, health or

safety of the employee or another person.

Note: Information covered by this section that is personal information may

also be regulated under the Privacy Act 1988.

106D Operation of paid family and domestic violence leave and

leave for victims of crime

(1) This Subdivision does not exclude or limit the operation of a law of

a State or Territory to the extent that it provides for leave for

victims of crime.

(2) If an employee who is entitled, under a law of a State or Territory,

to leave for victims of crime is also entitled to leave under this

Subdivision, that law applies in addition to this Subdivision.

(3) A person who is a national system employee only because of

section 30C or 30M is entitled to leave under this Subdivision only

to the extent that the leave would not constitute leave for victims of

crime.

Note: Leave for victims of crime is a non-excluded matter under

paragraph 27(2)(h).

106E Entitlement to days of leave

What constitutes a day of leave for the purposes of this Subdivision

is taken to be the same as what constitutes a day of leave for the

purposes of sections 72A and 85 and Subdivisions B and C.

Subdivision D—Notice and evidence requirements

107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of

leave under this Division by the employee.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 7 Personal/carer’s leave, compassionate leave and paid family and domestic

violence leave

Section 107

204

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) The notice:

(a) must be given to the employer as soon as practicable (which

may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period,

of the leave.

Evidence

(3) An employee who has given his or her employer notice of the

taking of leave under this Division must, if required by the

employer, give the employer evidence that would satisfy a

reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a

reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a

permissible occasion in circumstances specified in

subsection 103(1); or

permissible occasion in circumstances specified in

subsection 105(1); or

(d) if it is paid family and domestic violence leave, and the

employee has met the requirement specified in

paragraph 106B(1)(a)—the leave is taken for the purpose

specified in paragraph 106B(1)(b), and the requirement

specified in paragraph 106B(1)(c) is met.

Compliance

(4) An employee is not entitled to take leave under this Division unless

the employee complies with this section.

Modern awards and enterprise agreements may include evidence

requirements

(5) A modern award or enterprise agreement may include terms

relating to the kind of evidence that an employee must provide in

order to be entitled to paid personal/carer’s leave, unpaid carer’s

leave or compassionate leave.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Personal/carer’s leave, compassionate leave and paid family and domestic violence

leave Division 7

Section 107

Fair Work Act 2009

205

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Note: Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 8 Community service leave

Section 108

206

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 8—Community service leave

108 Entitlement to be absent from employment for engaging in

eligible community service activity

An employee who engages in an eligible community service

activity is entitled to be absent from his or her employment for a

period if:

(a) the period consists of one or more of the following:

(i) time when the employee engages in the activity;

(ii) reasonable travelling time associated with the activity;

(iii) reasonable rest time immediately following the activity;

and

(b) unless the activity is jury service—the employee’s absence is

reasonable in all the circumstances.

109 Meaning of eligible community service activity

General

(1) Each of the following is an eligible community service activity:

(a) jury service (including attendance for jury selection) that is

required by or under a law of the Commonwealth, a State or

a Territory; or

(b) a voluntary emergency management activity (see

subsection (2)); or

subsection (4).

Voluntary emergency management activities

(2) An employee engages in a voluntary emergency management

activity if, and only if:

(a) the employee engages in an activity that involves dealing

with an emergency or natural disaster; and

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Community service leave Division 8

Section 109

Fair Work Act 2009

207

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(b) the employee engages in the activity on a voluntary basis

(whether or not the employee directly or indirectly takes or

agrees to take an honorarium, gratuity or similar payment

wholly or partly for engaging in the activity); and

association with, a recognised emergency management body;

and

(d) either:

(i) the employee was requested by or on behalf of the body

to engage in the activity; or

(ii) no such request was made, but it would be reasonable to

expect that, if the circumstances had permitted the

making of such a request, it is likely that such a request

would have been made.

(3) A recognised emergency management body is:

(a) a body, or part of a body, that has a role or function under a

plan that:

(i) is for coping with emergencies and/or disasters; and

(ii) is prepared by the Commonwealth, a State or a

Territory; or

(b) a fire-fighting, civil defence or rescue body, or part of such a

body; or

which involves:

(i) securing the safety of persons or animals in an

emergency or natural disaster; or

(ii) protecting property in an emergency or natural disaster;

(iii) otherwise responding to an emergency or natural

disaster; or

(d) a body, or part of a body, prescribed by the regulations;

but does not include a body that was established, or is continued in

existence, for the purpose, or for purposes that include the purpose,

of entitling one or more employees to be absent from their

employment under this Division.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 8 Community service leave

Section 110

208

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Regulations may prescribe other activities

(4) The regulations may prescribe an activity that is of a community

service nature as an eligible community service activity.

110 Notice and evidence requirements

Notice

(1) An employee who wants an absence from his or her employment to

be covered by this Division must give his or her employer notice of

the absence.

(2) The notice:

(a) must be given to the employer as soon as practicable (which

may be a time after the absence has started); and

(b) must advise the employer of the period, or expected period,

of the absence.

Evidence

(3) An employee who has given his or her employer notice of an

absence under subsection (1) must, if required by the employer,

give the employer evidence that would satisfy a reasonable person

that the absence is because the employee has been or will be

engaging in an eligible community service activity.

Compliance

(4) An employee’s absence from his or her employment is not covered

by this Division unless the employee complies with this section.

Note: Personal information given to an employer under this section may be

regulated under the Privacy Act 1988.

111 Payment to employees (other than casuals) on jury service

Application of this section

(1) This section applies if:

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Community service leave Division 8

Section 111

Fair Work Act 2009

209

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(a) in accordance with this Division, an employee is absent from

his or her employment for a period because of jury service;

and

(b) the employee is not a casual employee.

Employee to be paid base rate of pay

(2) Subject to subsections (3), (4) and (5), the employer must pay the

employee at the employee’s base rate of pay for the employee’s

ordinary hours of work in the period.

Evidence

(3) The employer may require the employee to give the employer

evidence that would satisfy a reasonable person:

(a) that the employee has taken all necessary steps to obtain any

amount of jury service pay to which the employee is entitled;

and

(b) of the total amount (even if it is a nil amount) of jury service

pay that has been paid, or is payable, to the employee for the

period.

Note: Personal information given to an employer under this subsection may

be regulated under the Privacy Act 1988.

(4) If, in accordance with subsection (3), the employer requires the

employee to give the employer the evidence referred to in that

subsection:

(a) the employee is not entitled to payment under subsection (2)

unless the employee provides the evidence; and

(b) if the employee provides the evidence—the amount payable

to the employee under subsection (2) is reduced by the total

amount of jury service pay that has been paid, or is payable,

to the employee, as disclosed in the evidence.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 8 Community service leave

Section 112

210

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Payment only required for first 10 days of absence

(5) If an employee is absent because of jury service in relation to a

particular jury service summons for a period, or a number of

periods, of more than 10 days in total:

(a) the employer is only required to pay the employee for the

first 10 days of absence; and

(b) the evidence provided in response to a requirement under

subsection (3) need only relate to the first 10 days of

absence; and

service pay as disclosed in evidence is a reference to the total

amount so disclosed for the first 10 days of absence.

Meaning of jury service pay

(6) Jury service pay means an amount paid in relation to jury service

under a law of the Commonwealth, a State or a Territory, other

than an amount that is, or that is in the nature of, an

expense-related allowance.

Meaning of jury service summons

(7) Jury service summons means a summons or other instruction

(however described) that requires a person to attend for, or

perform, jury service.

112 State and Territory laws that are not excluded

(1) This Act is not intended to apply to the exclusion of laws of a State

or Territory that provide employee entitlements in relation to

engaging in eligible community service activities, to the extent that

those entitlements are more beneficial to employees than the

entitlements under this Division.

Note: For example, this Act would not apply to the exclusion of a State or

Territory law providing for a casual employee to be paid jury service

pay.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Community service leave Division 8

Section 112

Fair Work Act 2009

211

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) If the community service activity is an activity prescribed in

regulations made for the purpose of subsection 109(4),

subsection (1) of this section has effect subject to any provision to

the contrary in the regulations.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 9 Long service leave

Section 113

212

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 9—Long service leave

113 Entitlement to long service leave

Entitlement in accordance with applicable award-derived long

service leave terms

(1) If there are applicable award-derived long service leave terms (see

subsection (3)) in relation to an employee, the employee is entitled

to long service leave in accordance with those terms.

Note: This Act does not exclude State and Territory laws that deal with long

service leave, except in relation to employees who are entitled to long

service leave under this Division (see paragraph 27(2)(g)), and except

as provided in subsection 113A(3).

(2) However, subsection (1) does not apply if:

(a) a workplace agreement, or an AWA, that came into operation

before the commencement of this Part applies to the

employee; or

(b) one of the following kinds of instrument that came into

operation before the commencement of this Part applies to

the employee and expressly deals with long service leave:

(i) an enterprise agreement;

(ii) a preserved State agreement;

(iii) a workplace determination;

(iv) a pre-reform certified agreement;

(v) a pre-reform AWA;

(vi) a section 170MX award;

(vii) an old IR agreement.

Note: If there ceases to be any agreement or instrument of a kind referred to

in paragraph (a) or (b) that applies to the employee, the employee will,

at that time, become entitled under subsection (1) to long service leave

in accordance with applicable award-derived long service leave terms.

(3) Applicable award-derived long service leave terms, in relation to

an employee, are:

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Long service leave Division 9

Section 113

Fair Work Act 2009

213

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(a) terms of an award, or a State reference transitional award,

that (disregarding the effect of any instrument of a kind

referred to in subsection (2)):

(i) would have applied to the employee at the test time (see

subsection (3A)) if the employee had, at that time, been

in his or her current circumstances of employment; and

(ii) would have entitled the employee to long service leave;

and

(b) any terms of the award, or the State reference transitional

award, that are ancillary or incidental to the terms referred to

in paragraph (a).

(3A) For the purpose of subparagraph (3)(a)(i), the test time is:

(a) immediately before the commencement of this Part; or

(b) if the employee is a Division 2B State reference employee (as

defined in Schedule 2 to the Transitional Act)—immediately

before the Division 2B referral commencement (as defined in

that Schedule).

Entitlement in accordance with applicable agreement-derived long

service leave terms

(4) If there are applicable agreement-derived long service leave terms

(see subsection (5)) in relation to an employee, the employee is

entitled to long service leave in accordance with those terms.

(5) There are applicable agreement-derived long service leave terms,

in relation to an employee if:

(a) an order under subsection (6) is in operation in relation to

terms of an instrument; and

(b) those terms of the instrument would have applied to the

employee immediately before the commencement of this

Part if the employee had, at that time, been in his or her

current circumstances of employment; and

terms in relation to the employee.

(6) If the FWC is satisfied that:

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 9 Long service leave

Section 113A

214

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(a) any of the following instruments that was in operation

immediately before the commencement of this Part contained

terms entitling employees to long service leave:

(i) an enterprise agreement;

(ii) a collective agreement;

(iii) a pre-reform certified agreement;

(iv) an old IR agreement; and

(b) those terms constituted a long service leave scheme that was

applying in more than one State or Territory; and

beneficial to the employees than the long service leave

entitlements that would otherwise apply in relation to the

employees under State and Territory laws;

the FWC may, on application by, or on behalf of, a person to

whom the instrument applies, make an order that those terms of the

instrument (and any terms that are ancillary or incidental to those

terms) are applicable agreement-derived long service leave terms.

References to instruments

(7) References in this section to a kind of instrument (other than an

enterprise agreement) are references to a transitional instrument of

that kind, as continued in existence by Schedule 3 to the

Transitional Act.

113A Enterprise agreements may contain terms discounting service

under prior agreements etc. in certain circumstances

(1) This section applies if:

(a) an instrument (the first instrument) of one of the following

kinds that came into operation before the commencement of

this Part applies to an employee on or after the

commencement of this Part:

(i) an enterprise agreement;

(ii) a workplace agreement;

(iii) a workplace determination;

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Long service leave Division 9

Section 113A

Fair Work Act 2009

215

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(iv) a preserved State agreement;

(v) an AWA;

(vi) a pre-reform certified agreement;

(vii) a pre-reform AWA;

(viii) an old IR agreement;

(ix) a section 170MX award; and

(b) the instrument states that the employee is not entitled to long

service leave; and

employee; and

(d) immediately after the first instrument ceases to apply, an

enterprise agreement (the replacement agreement) starts to

apply to the employee.

(2) The replacement agreement may include terms to the effect that an

employee’s service with the employer during a specified period

(the excluded period) (being some or all of the period when the

first instrument applied to the employee) does not count as service

for the purpose of determining whether the employee is qualified

for long service leave, or the amount of long service leave to which

the employee is entitled, under this Division or under a law of a

State or Territory.

(3) If the replacement agreement includes terms as permitted by

subsection (2), the excluded period does not count, and never again

counts, as service for the purpose of determining whether the

employee is qualified for long service leave, or the amount of long

service leave to which the employee is entitled, under this Division

or under a law of a State or Territory, unless a later agreement

provides otherwise. This subsection has effect despite sections 27

and 29.

(4) References in this section to a kind of instrument (other than an

enterprise agreement) are references to a transitional instrument of

that kind, as continued in existence by Schedule 3 to the

Transitional Act.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 10 Public holidays

Section 114

216

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 10—Public holidays

114 Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

(1) An employee is entitled to be absent from his or her employment

on a day or part-day that is a public holiday in the place where the

employee is based for work purposes.

Reasonable requests to work on public holidays

(2) However, an employer may request an employee to work on a

public holiday if the request is reasonable.

(3) If an employer requests an employee to work on a public holiday,

the employee may refuse the request if:

(a) the request is not reasonable; or

(b) the refusal is reasonable.

(4) In determining whether a request, or a refusal of a request, to work

on a public holiday is reasonable, the following must be taken into

account:

(a) the nature of the employer’s workplace or enterprise

(including its operational requirements), and the nature of the

work performed by the employee;

(b) the employee’s personal circumstances, including family

responsibilities;

employer might request work on the public holiday;

(d) 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;

(e) the type of employment of the employee (for example,

whether full-time, part-time, casual or shiftwork);

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Public holidays Division 10

Section 115

Fair Work Act 2009

217

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(f) the amount of notice in advance of the public holiday given

by the employer when making the request;

(g) 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;

(h) any other relevant matter.

115 Meaning of public holiday

The public holidays

(1) The following are public holidays:

(a) each of these days:

(i) 1 January (New Year’s Day);

(ii) 26 January (Australia Day);

(iii) Good Friday;

(iv) Easter Monday;

(v) 25 April (Anzac Day);

(vi) the Queen’s birthday holiday (on the day on which it is

celebrated in a State or Territory or a region of a State

or Territory);

(vii) 25 December (Christmas Day);

(viii) 26 December (Boxing Day);

(b) any other day, or part-day, declared or prescribed by or under

a law of a State or Territory to be observed generally within

the State or Territory, or a region of the State or Territory, as

a public holiday, other than a day or part-day, or a kind of

day or part-day, that is excluded by the regulations from

counting as a public holiday.

Substituted public holidays under State or Territory laws

(2) If, under (or in accordance with a procedure under) a law of a State

or Territory, a day or part-day is substituted for a day or part-day

that would otherwise be a public holiday because of subsection (1),

then the substituted day or part-day is the public holiday.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 10 Public holidays

Section 116

218

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Substituted public holidays under modern awards and enterprise

agreements

(3) A modern award or enterprise agreement may include terms

providing for an employer and employee to agree on the

substitution of a day or part-day for a day or part-day that would

otherwise be a public holiday because of subsection (1) or (2).

Substituted public holidays for award/agreement free employees

(4) An employer and an award/agreement free employee may agree on

the substitution of a day or part-day for a day or part-day that

would otherwise be a public holiday because of subsection (1) or

(2).

Note: This Act does not exclude State and Territory laws that deal with the

declaration, prescription or substitution of public holidays, but it does

exclude State and Territory laws that relate to the rights and

obligations of an employee or employer in relation to public holidays

(see paragraph 27(2)(j)).

116 Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his

or her employment on a day or part-day that is a public holiday, the

employer must pay the employee at the employee’s base rate of

pay for the employee’s ordinary hours of work on the day or

part-day.

Note: If the employee does not have ordinary hours of work on the public

holiday, the employee is not entitled to payment under this section.

For example, the employee is not entitled to payment if the employee

is a casual employee who is not rostered on for the public holiday, or

is a part-time employee whose part-time hours do not include the day

of the week on which the public holiday occurs.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Superannuation contributions Division 10A

Section 116A

Fair Work Act 2009

219

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 10A—Superannuation contributions

116A Division does not apply to certain employees or employers in

referring States

This Division does not apply in relation to:

(a) an employee who is a national system employee only

because of section 30C or 30M (which extend the meaning of

national system employee); or

(b) an employer that is a national system employer only because

of section 30D or 30N (which extend the meaning of

national system employer).

116B Employer’s obligation to make superannuation contributions

An employer must make contributions to a superannuation fund for

the benefit of an employee so as to avoid liability to pay

superannuation guarantee charge under the Superannuation

Guarantee Charge Act 1992 in relation to the employee.

116C Reduction of employer’s liability to the extent of

superannuation charge payments

The obligation to make contributions for an employee under

section 116B does not apply to an employer to the extent that:

(a) the employer has made a charge payment (within the

meaning of section 63A of the Superannuation Guarantee

(Administration) Act 1992) in respect of the employee under

Part 8 of that Act; and

(b) the employee is a benefiting employee (within the meaning

of that Part); and

otherwise deal with, a shortfall component (within the

meaning of that Part) for the benefit of the employee under

that Part.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 10A Superannuation contributions

Section 116D

220

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

116D Preventing multiple actions

Scope

(1) This section applies if:

(a) an employer has contravened, or allegedly contravened, a

civil remedy provision that relates to a contravention of this

Division; and

(b) the contravention, or alleged contravention, relates wholly or

partly to an employee; and

column 2 of the table in subsection 539(2) would be entitled

to apply for an order under Division 2 of Part 4-1 in relation

to the contravention, or alleged contravention.

No application for orders in certain circumstances

(2) An application for such an order may not be made if:

(a) the Commissioner of Taxation has commenced proceedings

against the employer to recover an amount of superannuation

guarantee charge; and

(b) either:

(i) the Commissioner has obtained an order for recovery of

the charge; or

(ii) if the proceedings have not been finally disposed of—

the Commissioner has not discontinued the proceedings;

and

of which the charge is imposed includes an individual

superannuation guarantee shortfall for the employee.

(3) Terms (apart from employee and employer) used in this section

that are defined in the Superannuation Guarantee (Administration)

Act 1992 have the same meaning in this section as they have in that

Act.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Superannuation contributions Division 10A

Section 116E

Fair Work Act 2009

221

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

116E Orders for compensation

(1) This section applies if a court makes an order under section 545

awarding compensation to an employee for a contravention of a

civil remedy provision that relates to a contravention of this

Division.

(2) The court must have regard to the principle that any component of

the compensation payable on account of unpaid superannuation

contributions should usually be paid to a superannuation fund for

the benefit of the employee.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 11 Notice of termination and redundancy pay

Section 117

222

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 11—Notice of termination and redundancy pay

Subdivision A—Notice of termination or payment in lieu of

notice

117 Requirement for notice of termination or payment in lieu

Notice specifying day of termination

(1) An employer must not terminate an employee’s employment unless

the employer has given the employee written notice of the day of

the termination (which cannot be before the day the notice is

given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how

a notice may be given. In particular, the notice may be given to an

employee by:

(a) delivering it personally; or

(b) leaving it at the employee’s last known address; or

Amount of notice or payment in lieu of notice

(2) The employer must not terminate the employee’s employment

unless:

(a) the time between giving the notice and the day of the

termination is at least the period (the minimum period of

notice) worked out under subsection (3); or

(b) the employer has paid to the employee (or to another person

on the employee’s behalf) payment in lieu of notice of at

least the amount the employer would have been liable to pay

to the employee (or to another person on the employee’s

behalf) at the full rate of pay for the hours the employee

would have worked had the employment continued until the

end of the minimum period of notice.

(3) Work out the minimum period of notice as follows:

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Notice of termination and redundancy pay Division 11

Section 118

Fair Work Act 2009

223

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(a) first, work out the period using the following table:

Period

Employee’s period of continuous service with

the employer at the end of the day the notice

is given

Period

Not more than 1 year

1 week

More than 1 year but not more than 3 years

2 weeks

More than 3 years but not more than 5 years

3 weeks

More than 5 years

4 weeks

(b) then increase the period by 1 week if the employee is over 45

years old and has completed at least 2 years of continuous

service with the employer at the end of the day the notice is

given.

(4) A reference in this section to continuous service with the employer

does not include periods of employment as a casual employee of

the employer.

118 Modern awards and enterprise agreements may provide for

notice of termination by employees

A modern award or enterprise agreement may include terms

specifying the period of notice an employee must give in order to

terminate his or her employment.

Subdivision B—Redundancy pay

119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the

employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer

requires the job done by the employee to be done by anyone,

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 11 Notice of termination and redundancy pay

Section 120

224

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

except where this is due to the ordinary and customary

turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee

does not have this entitlement.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable

to the employee for the redundancy pay period worked out using

the following table at the employee’s base rate of pay for his or her

ordinary hours of work:

Redundancy pay period

Employee’s period of continuous service

with the employer on termination

Redundancy

pay period

At least 1 year but less than 2 years

4 weeks

At least 2 years but less than 3 years

6 weeks

At least 3 years but less than 4 years

7 weeks

At least 4 years but less than 5 years

8 weeks

At least 5 years but less than 6 years

10 weeks

At least 6 years but less than 7 years

11 weeks

At least 7 years but less than 8 years

13 weeks

At least 8 years but less than 9 years

14 weeks

At least 9 years but less than 10 years

16 weeks

At least 10 years

12 weeks

(3) A reference in this section to continuous service with the employer

does not include periods of employment as a casual employee of

the employer.

120 Variation of redundancy pay for other employment or

incapacity to pay

(1) This section applies if:

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Notice of termination and redundancy pay Division 11

Section 121

Fair Work Act 2009

225

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(a) an employee is entitled to be paid an amount of redundancy

pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee;

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the

amount of redundancy pay is reduced to a specified amount (which

may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled

under section 119 is the reduced amount specified in the

determination.

121 Exclusions from obligation to pay redundancy pay

(1) Section 119 does not apply to the termination of an employee’s

employment if, immediately before the time of the termination, or

at the time when the person was given notice of the termination as

described in subsection 117(1) (whichever happened first):

(a) the employee’s period of continuous service with the

employer (other than periods of employment as a casual

employee of the employer) is less than 12 months; or

(b) the employer is a small business employer.

(2) A modern award may include a term specifying other situations in

which section 119 does not apply to the termination of an

employee’s employment.

(3) If a modern award that is in operation includes such a term (the

award term), an enterprise agreement may:

(a) incorporate the award term by reference (and as in force from

time to time) into the enterprise agreement; and

(b) provide that the incorporated term covers some or all of the

employees who are also covered by the award term.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 11 Notice of termination and redundancy pay

Section 121

226

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Certain small businesses to pay redundancy pay

(4) Despite subsection (1), an employee whose employment is

terminated is entitled to be paid redundancy pay in accordance with

this Division if:

(a) at the time of the termination, section 119 did not apply to

the termination because the employer was a small business

employer; and

(b) the employer is bankrupt or in liquidation (other than only

because of a members’ voluntary winding up); and

employment of one or more employees was terminated; and

(d) those terminations occurred:

(i) on or after the day that is 6 months before the employer

became bankrupt or went into liquidation; or

(ii) if there was an insolvency practitioner (the last

insolvency practitioner) for the employer on the

business day before the employer became bankrupt or

went into liquidation—on or after the day that is 6

months before the insolvency practitioner was

appointed; or

(iii) if, before the last insolvency practitioner was appointed,

other insolvency practitioners for the employer were

appointed without any intervening business days

between any of those appointments—on or after the day

that is 6 months before the first of those insolvency

practitioners was appointed; or

(iv) due to the insolvency of the employer.

(5) A members’ voluntary winding up is a winding up under

section 495 of the Corporations Act 2001.

Time of liquidation—members’ voluntary winding up where

company turns out to be insolvent

(6) If a liquidator takes action under section 496 of the Corporations

Act 2001 (company turns out to be insolvent) in relation to a small

business employer whose liquidation began as a members’

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Notice of termination and redundancy pay Division 11

Section 122

Fair Work Act 2009

227

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

voluntary winding up, then, for the purposes of

subparagraph (4)(d)(i), the time the employer goes into liquidation

is the time the employer goes into liquidation because of the

members’ voluntary winding up.

Application to partnerships

(7) For the purposes of subsection (4), a small business employer that

is a partnership is not bankrupt or in liquidation unless each partner

of the partnership is bankrupt or in liquidation, as the case requires.

122 Transfer of employment situations that affect the obligation to

pay redundancy pay

Transfer of employment situation in which employer may decide

not to recognise employee’s service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this

Subdivision) to a transfer of employment between non-associated

entities in relation to an employee if the second employer decides

not to recognise the employee’s service with the first employer (for

the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first

employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Subdivision) to

a transfer of employment in relation to an employee, the employee

is not entitled to redundancy pay under section 119 in relation to

the termination of his or her employment with the first employer.

Note: Subsection 22(5) provides that, generally, if there is a transfer of

employment, service with the first employer counts as service with the

second employer.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 11 Notice of termination and redundancy pay

Section 123

228

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Employee not entitled to redundancy pay if refuses employment in

certain circumstances

(3) An employee is not entitled to redundancy pay under section 119

in relation to the termination of his or her employment with an

employer (the first employer) if:

(a) the employee rejects an offer of employment made by

another employer (the second employer) that:

(i) is on terms and conditions substantially similar to, and,

considered on an overall basis, no less favourable than,

the employee’s terms and conditions of employment

with the first employer immediately before the

termination; and

(ii) recognises the employee’s service with the first

employer, for the purpose of this Subdivision; and

(b) had the employee accepted the offer, there would have been a

transfer of employment in relation to the employee.

(4) If the FWC is satisfied that subsection (3) operates unfairly to the

employee, the FWC may order the first employer to pay the

employee a specified amount of redundancy pay (not exceeding the

amount that would be payable but for subsection (3)) that the FWC

considers appropriate. The first employer must pay the employee

that amount of redundancy pay.

Subdivision C—Limits on scope of this Division

123 Limits on scope of this Division

Employees not covered by this Division

(1) This Division does not apply to any of the following employees:

(a) an employee employed for a specified period of time, for a

specified task, or for the duration of a specified season;

(b) an employee whose employment is terminated because of

serious misconduct;

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Notice of termination and redundancy pay Division 11

Section 123

Fair Work Act 2009

229

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(d) 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;

(e) an employee prescribed by the regulations as an employee to

whom this Division does not apply.

(2) Paragraph (1)(a) does not prevent this Division from applying to an

employee if a substantial reason for employing the employee as

described in that paragraph was to avoid the application of this

Division.

Other employees not covered by notice of termination provisions

(3) Subdivision A does not apply to:

(b) a daily hire employee working in the building and

construction industry (including working in connection with

the erection, repair, renovation, maintenance, ornamentation

or demolition of buildings or structures); or

connection with the slaughter of livestock; or

(d) a weekly hire employee working in connection with the meat

industry and whose termination of employment is determined

solely by seasonal factors; or

(e) an employee prescribed by the regulations as an employee to

whom that Subdivision does not apply.

Other employees not covered by redundancy pay provisions

(4) Subdivision B does not apply to:

(a) an employee who is an apprentice; or

(b) an employee to whom an industry-specific redundancy

scheme in a modern award applies; or

agreement applies if:

(i) the scheme is an industry-specific redundancy scheme

that is incorporated by reference (and as in force from

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 11 Notice of termination and redundancy pay

Section 123

230

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

time to time) into the enterprise agreement from a

modern award that is in operation; and

(ii) the employee is covered by the industry-specific

redundancy scheme in the modern award; or

(d) an employee prescribed by the regulations as an employee to

whom that Subdivision does not apply.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Fair Work Ombudsman to prepare and publish statements Division 12

Section 124

Fair Work Act 2009

231

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 12—Fair Work Ombudsman to prepare and

publish statements

124 Fair Work Ombudsman to prepare and publish Fair Work

Information Statement

(1) The Fair Work Ombudsman must prepare a Fair Work

Information Statement. The Fair Work Ombudsman must publish

the Statement in the Gazette.

Note: If the Fair Work Ombudsman changes the Statement, the Fair Work

Ombudsman must publish the new version of the Statement in the

Gazette.

(2) The Statement must contain information about the following:

(a) the National Employment Standards;

(b) modern awards;

(d) the right to freedom of association;

(e) the role of the FWC and the Fair Work Ombudsman;

(f) termination of employment;

(g) individual flexibility arrangements;

(h) right of entry (including the protection of personal

information by privacy laws).

(3) The Fair Work Information Statement is not a legislative

instrument.

(4) The regulations may prescribe other matters relating to the content

or form of the Statement, or the manner in which employers may

give the Statement to employees.

125 Giving new employees the Fair Work Information Statement

(1) An employer must give each employee the Fair Work Information

Statement before, or as soon as practicable after, the employee

starts employment.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 12 Fair Work Ombudsman to prepare and publish statements

Section 125A

232

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

(2) Subsection (1) does not require the employer to give the employee

the Statement more than once in any 12 months.

Note: This is relevant if the employer employs the employee more than once

in the 12 months.

125A Fair Work Ombudsman to prepare and publish Casual

Employment Information Statement

(1) The Fair Work Ombudsman must prepare a Casual Employment

Information Statement. The Fair Work Ombudsman must publish

the Statement in the Gazette.

Note: If the Fair Work Ombudsman changes the Statement, the Fair Work

Ombudsman must publish the new version of the Statement in the

Gazette.

(2) The Statement must contain information about casual employment

and offers and requests for casual conversion under Division 4A of

Part 2-2, including the following:

(a) the meaning of casual employee under section 15A;

(b) an employer offer for casual conversion must generally be

made to certain casual employees within 21 days after the

employee has completed 12 months of employment;

conversion if there are reasonable grounds to do so, but the

employer must notify the employee of these grounds;

(d) certain casual employees will also have a residual right to

request casual conversion;

(da) casual conversion entitlements of casual employees

employed by small business employers;

(e) the FWC may deal with disputes about the operation of that

Division.

(3) The Casual Employment Information Statement is not a legislative

instrument.

(4) The regulations may prescribe other matters relating to the content

or form of the Statement, or the manner in which employers may

give the Statement to employees.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Fair Work Ombudsman to prepare and publish statements Division 12

Section 125B

Fair Work Act 2009

233

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

125B Giving new employees the Casual Employment Information

Statement

(1) An employer must give each casual employee the Casual

Employment Information Statement before, or as soon as

practicable after, the employee starts employment as a casual

employee with the employer.

(2) Subsection (1) does not require the employer to give the employee

the Statement more than once in any 12 months.

Note: This is relevant if the employer employs the employee more than once

in the 12 months.

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 13 Miscellaneous

Section 126

234

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

Division 13—Miscellaneous

126 Modern awards and enterprise agreements may provide for

school-based apprentices and trainees to be paid loadings

in lieu

A modern award or enterprise agreement may provide for

school-based apprentices or school-based trainees to be paid

loadings in lieu of any of the following:

(a) paid annual leave;

(b) paid personal/carer’s leave;

holidays).

Note: Section 199 affects whether the FWC may approve an enterprise

agreement covering an employee who is a school-based

apprentice or school-based trainee, if the employee is covered by

a modern award that is in operation and provides for the

employee to be paid loadings in lieu of paid annual leave, paid

personal/carer’s leave or paid absence under Division 10.

127 Regulations about what modern awards and enterprise

agreements can do

The regulations may:

(a) permit modern awards or enterprise agreements or both to

include terms that would or might otherwise be contrary to

this Part or section 55 (which deals with the interaction

between the National Employment Standards and a modern

award or enterprise agreement); or

(b) prohibit modern awards or enterprise agreements or both

from including terms that would or might otherwise be

permitted by a provision of this Part or section 55.

Authorised Version C2024C00062 registered 28/02/2024

Terms and conditions of employment Chapter 2

The National Employment Standards Part 2-2

Miscellaneous Division 13

Section 128

Fair Work Act 2009

235

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

128 Relationship between National Employment Standards and

agreements etc. permitted by this Part for

award/agreement free employees

The National Employment Standards have effect subject to:

(a) an agreement between an employer and an award/agreement

free employee or a requirement made by an employer of an

award/agreement free employee, that is expressly permitted

by a provision of this Part; or

(b) an agreement between an employer and an award/agreement

free employee that is expressly permitted by regulations

made for the purpose of section 129.

Note 1: In determining what matters are permitted to be agreed or required

under paragraph (a), any regulations made for the purpose of

section 129 that expressly prohibit certain agreements or requirements

must be taken into account.

Note 2: See also the note to section 64 (which deals with the effect of

averaging arrangements).

129 Regulations about what can be agreed to etc. in relation to

award/agreement free employees

The regulations may:

(a) permit employers, and award/agreement free employees, to

agree on matters that would or might otherwise be contrary to

this Part; or

(b) prohibit employers and award/agreement free employees

from agreeing on matters, or prohibit employers from making

requirements of such employees, that would or might

otherwise be permitted by a provision of this Part.

130 Restriction on taking or accruing leave or absence while

receiving workers’ compensation

(1) An employee is not entitled to take or accrue any leave or absence

(whether paid or unpaid) under this Part during a period (a

compensation period) when the employee is absent from work

because of a personal illness, or a personal injury, for which the

Authorised Version C2024C00062 registered 28/02/2024

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 13 Miscellaneous

Section 131

236

Fair Work Act 2009

Compilation No. 57

Compilation date: 27/02/2024

Registered: 28/02/2024

employee is receiving compensation payable under a law (a

compensation law) of the Commonwealth, a State or a Territory

that is about workers’ compensation.

(2) Subsection (1) does not prevent an employee from taking or

accruing leave during a compensation period if the taking or

accruing of the leave is permitted by a compensation law.

(3) Subsection (1) does not prevent an employee from taking unpaid

parental leave during a compensation period.

131 Relationship with other Commonwealth laws

This Part establishes minimum standards and so is intended to

supplement, and not to override, entitlements under other laws of

the Commonwealth.

Authorised Version C2024C00062 registered 28/02/2024