How do I know whether my employee falls under NES or a Modern Award?

Pay rates and workplace conditions are governed by one of the following legal instruments in Australia – National Employment Standards (NES), Modern Award (‘Award’), or Enterprise Agreement (EA). The NES and Award applies more often to small or medium businesses.

What is the NES?

The NES is applicable to all employees in Australia. It sets out minimum terms and conditions which cover entitlements such as minimum wage, annual or sick leave, maximum working hours, and termination notices.

For example, from 1 July 2022, the national minimum wage is $21.38 per hour or $812.60 per week, and casual employees will receive at least a 25% casual loading.

Employees should also note that certain employees may have different pay entitlements depending on whether they have a reduced work capacity because of disability, age or if they are an apprentice or trainee.

You can use the pay calculator tool on the Fair Work Ombudsman website to calculate your correct pay and entitlements.

What is an Award?

Awards came into effect on 1 January 2010. They set out further entitlements covering additional items such as breaks, allowances, and overtime payments.

Awards are industry or occupation-based. This means an Award only applies to employees who perform work covered by that Award. There are currently more than 100 different Awards covering employees in Australia.

For example, law graduates are covered by the Legal Services Award, and clerks are covered by the Clerk Private Sector Award.

How do I determine which one applies?

As Awards are industry and occupation-specific, the first step in identifying which legal instrument applies is to examine the role of an employee. This allows an employer to determine which Award may apply to an employee. To determine this, employers need to examine the tasks, level of responsibility, and seniority of the employee’s role.

If an Award does not cover an employee’s work scope then the NES will apply. The entitlements detailed in the NES are minimum standards that cannot be contracted out of, even if agreed to by the parties.

Click here to find the list of Awards that may apply to your employee’s role.

How can W Legal Group assist?

Determining the correct NES or Award coverage can be challenging for employers. At W Legal Group we have a dedicated team of lawyers who are experienced in advising on workplace compliance. Contact us at or call us if you require further legal advice.

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