The government has convened to determine whether Australia’s National Employment Standards still provide a fair, simple safety net
A federal parliamentary inquiry held today (26 March) has been told the National Employment Standards (NES) remain a vital safety net for Australian workers but can be complex to navigate, uneven in their practical impact and under pressure from changing workplace realities, including AI, casualisation and demographic shifts.
At a public hearing of the House of Representatives Standing Committee on Employment, Workplace Relations, Skills and Training, chaired by Labor MP Carina Garland, officials from the Department of Employment and Workplace Relations and the Fair Work Ombudsman (FWO) were questioned on how well the NES operate in practice and whether they are still “fit for purpose”.
Garland and committee members focused on whether workers and small businesses understand the NES, where compliance is breaking down, how historical “zombie” long service leave rules are working, and what challenges emerging technologies pose for job security and entitlements.
Awareness of rights and obligations still uneven
Officials from the FWO said their primary channel for educating the community is the agency’s website, backed by a national infoline, a small business helpline and a written advisory service for employers.
They reported very high online engagement over recent years and more than a million direct inquiries across phone and advisory services in the period examined, with roughly a quarter of those inquiries estimated to relate to NES entitlements. Even so, they acknowledged it is impossible to say with confidence that the standards are well understood across the entire workforce, and that gaps in awareness clearly remain.
The most common NES-related dispute types reported to the Ombudsman between mid‑2022 and the end of 2025 were annual leave, public holidays, notice of termination, personal/carer’s leave and redundancy. These categories consistently account for the bulk of requests for assistance, indicating where entitlements are most likely to be misapplied or contested.
Committee members raised concerns that cohorts such as young people, casual workers, migrant workers and those in high‑turnover sectors like retail and fast food may be less able in practice to understand or enforce their rights. The Ombudsman’s representatives pointed to their education resources and dispute assistance services but conceded it is difficult to know how many people still fall through the cracks.
Small business and multicultural communities hard to reach
Independent MP Dai Le, who represents the highly multicultural electorate of Fowler in Western Sydney, told the hearing that even as an elected representative she had only become aware of the NES after joining the committee. She questioned whether government‑funded intermediaries and peak bodies effectively reach migrant and refugee‑run small businesses in communities like hers.
Department officials pointed to the Productivity, Education and Training Fund, which provides funding to major employer and union bodies to educate members and the broader community about workplace relations changes. However, Le argued that the peak organisations funded under this program rarely connect with the kinds of family‑run, migrant‑owned businesses she sees locally.
The Fair Work Ombudsman outlined its efforts to reach small businesses through a dedicated helpline, a small business “showcase” on its website, webinars, online learning modules and social media campaigns. Officials stressed that resources are written in plain English and supported by automated translation into dozens of languages, with some core materials professionally translated.
However, Le highlighted that many in her community are not digitally engaged and rely on face‑to‑face engagement rather than online portals. She urged a stronger focus on in‑person outreach and in‑language communication if the NES are to be truly accessible.
Long service leave rules labelled complex and inequitable
A major technical issue canvassed was long service leave, particularly so‑called “zombie” arrangements flowing from old industrial instruments.
Department officials explained that the NES contain transitional provisions that effectively preserved long service leave entitlements that existed before the Fair Work Act commenced, pending the creation of a single national standard – a project that has never been realised.
In practice, an employee’s long service leave can derive from:
- A pre‑modern award
- Certain transitional agreement‑based instruments
- State and territory long service leave legislation, if neither of the above apply
Officials told the committee this layered arrangement makes it hard for both workers and employers to work out precise entitlements, especially when they depend on historical awards and agreements that are not easily accessible. It can also produce inconsistent or inequitable outcomes, with some workers receiving more generous long service leave than others doing similar work in a different jurisdiction or under a different historic instrument.
The committee heard that transitional industrial instruments were set to “sunset” in December 2023 under earlier reforms, but that entitlements can still arise depending on when service was accrued and how the instruments are interpreted by courts and tribunals.
Parental leave access and job protection flagged as equity issue
Committee members also pressed the department on the interaction between the 12‑month continuous service requirement for accessing unpaid parental leave under the NES and the “return to work” job guarantee that only applies where unpaid NES parental leave has actually been taken.
Submissions to the inquiry have argued this can turn job protection into a conditional right, with particular implications for women, who are more likely to take parental leave and to be in insecure or interrupted work.
Officials acknowledged the issue has been raised repeatedly over the years as a matter of policy concern. They noted that similar 12‑month service thresholds apply to various Fair Work Act entitlements, reflecting a balance between stability in the employment relationship and access to benefits. They stopped short of taking a position on changing the thresholds, pointing instead to the broader system – including modern awards and enterprise agreements – which can go beyond the NES minimums.
Is the NES still fit for purpose?
Labor MP Libby Coker asked directly whether the NES remain fit for purpose given they have not been holistically reviewed since 2012, despite major shifts such as working from home, changes in casual and part‑time work, and the introduction of paid family and domestic violence leave.
Department representatives reiterated that the NES still function as the foundation of the workplace relations safety net, setting universal minimum standards that are then built on by modern awards and enterprise agreements. They said Australia compares favourably to many OECD countries on key minimum conditions.
However, they also stressed that the workforce has changed significantly since the NES began in 2009: more women are participating in paid work, the health and care sectors have grown, and where and how work is performed has evolved. They described the inquiry as an opportunity to test whether access and eligibility settings still align with community expectations and with the updated objects of the Fair Work Act, which now explicitly reference gender equality and job security.
Officials noted that the NES have been modified over time, citing reforms to flexible work and parental leave, and the elevation of family and domestic violence leave from unpaid award‑based provisions to a universal paid entitlement in the NES as an example of how changing expectations can reshape the safety net.
AI, automation and redundancy
The committee also explored whether the NES are equipped to handle disruption from artificial intelligence and automation, especially in sectors like retail, hospitality and warehousing.
Department officials pointed to the government’s National AI Plan and a focus within the employment portfolio on AI’s impact on the labour market, skills and workplace safety. They said the workplace relations framework is generally technology‑neutral and adaptable, but acknowledged ongoing work is needed to understand AI’s effects on consultation rights, job redesign, redundancy, work intensification and discrimination.
An AI working group under the National Workplace Relations Consultative Council has begun considering these issues with unions and employers, drawing on domestic and international experience. The department has not adopted a position on whether NES redundancy provisions should be expanded in anticipation of AI‑related job losses, saying its current focus is gathering evidence and stakeholder perspectives.
Vulnerable workers and enforcement
On enforcement, FWO representatives confirmed vulnerable workers – including migrants, young people and those in insecure employment – remain a core priority.
They reported that, despite sustained compliance efforts, some sectors continue to show high levels of non‑compliance. In 2024‑25, the largest shares of completed disputes came from accommodation and food services, construction, and health and social assistance.
The Ombudsman uses a graduated enforcement approach, resolving the vast majority of matters through dispute assistance and efforts to restore underpayments and relationships. Litigation and enforceable undertakings are reserved for serious or systemic non‑compliance or where attempts at cooperative resolution fail. High‑profile cases, such as ongoing proceedings against major supermarket chains over annualised salary arrangements, are intended to serve both specific and general deterrent purposes.
When asked whether current enforcement tools are sufficient to deter non‑compliance, officials argued that strong litigation powers remain essential but must sit alongside effective education and voluntary compliance programs, particularly for small businesses that may struggle with the complexity of awards and the Fair Work Act.
Balancing simplicity and certainty
Responding to questions about whether the overall system – including the Fair Work Act and regulations – could be significantly simplified, officials cautioned that there is a trade‑off between brevity and clarity. Less prescriptive laws can reduce sheer volume but may leave employers and employees without clear guidance on entitlements, while more detailed provisions inevitably make the statute books thicker.
They emphasised that the NES were drafted to set out core minimums in relatively simple terms, leaving the more detailed and industry‑specific rules to modern awards and enterprise agreements. Attempts to simplify awards in the past have revealed sharply differing views among stakeholders about what constitutes “simple” or “flexible”, with no easy consensus.
As the hearing closed early due to parliamentary votes, Garland indicated the committee may seek further information on notice. The inquiry will continue to test whether the NES, as the bedrock of Australia’s workplace safety net, remain adequate and accessible in an increasingly complex labour market.
