Inquiry into the operation and adequacy of the National Employment Standards
Submission Date: 6 March 2026
The Law Council of Australia provided a submission to the House of Representatives Standing Committee on Employment, Workplace Relations, Skills and Training on the operation and adequacy of the National Employment Standards (NES).
This submission principally makes the case for a reform to the long service leave (LSL) entitlements currently set out in the NES. It also suggests a re-assessment of the existing redundancy scales, as well as additional minor clarifications and improvements to the termination, public holiday and personal/carer’s leave provisions of the NES.
Long service leave within the NES: The case for reform
Summary
Each of the states and territories operates their own LSL scheme. The NES exclude those state and territory schemes but only to the extent that national system employees would have been covered by awards that contained LSL entitlements that pre-date the commencement of the Fair Work Act 2009 (Cth) (FW Act), or where the Fair Work Commission (FWC) made orders reserving long service leave entitlements in historic collective agreements.1 In addition, there are specific portable LSL schemes that operate in particular industries, including building and construction and black coal mining.
The patchwork of provisions that deal with LSL can only fairly be described as complex and, since the commencement of the FW Act, governments and other stakeholders have explored harmonising LSL entitlements at a national level. Unfortunately, those efforts have so far been unsuccessful.
The various state and territory schemes have differences as between the amount of LSL that employees may be eligible for, when and in what circumstances employees can qualify for LSL, how an employee’s length of service is reckoned for the purposes of whether they qualify for LSL, and what rates of pay apply to LSL when it is taken, among other distinctions. Those differences have obviously contributed to what the Senate Education and Employment References Committee described in 2016 as ‘the glacial rate of progress in developing a national standard’.2
The Law Council submits that the current review of the NES presents a unique opportunity to revitalise the work undertaken by former governments and various stakeholders toward a national minimum LSL scheme. Such a task will not be straightforward, but it would be entirely consistent with the FW Act’s emphasis on productivity and fairness, and the Australian Government’s broader productivity agenda.
1 Note, the construction of the relevant provision of the NES is not without complexity: see Conroy’s Smallgoods Pty Ltd v Australasian Meat Industry Employees Union (2023) 408 ALR 316; [2023] FCAFC 59 (‘Conroy’s Smallgoods’).
2 Senate Education and Employment References Committee, Parliament of Australia, Feasibility of, and options for, creating a national long service standard, and the portability of long service and other entitlements (Final Report, 25 February 2016) 17.
Last Updated on 24/03/2026
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