Wages and entitlements

If you are an employee, you have a right to be paid wages and other entitlements. Most employees working in NSW are covered by the National Employment Standards. If you are employed by the NSW government, a local council, or a NSW state government owned corporation, national employment laws may not apply to you. If national employment laws do not cover you, you should get legal advice.

Your right to wages and certain entitlements will usually be determined by a combi​nation of the National Employment Standards, your contract of employment and any award or enterprise agreement that applies to you.

There may be other instruments that affect what you are paid or entitled to, made under legislation before the Fair Work Act 2009 commenced. If you think a different instrument covers your pay and entitlements, you should contact the Fair Work Infoline on 13 13 94, go to the Fair Work Ombudsman website or get legal advice.

The National Employment Standards (NES), which come from the Fair Work Act 2009, are a set of minimum entitlements that apply to all national system employees.

Most employees working in NSW are covered by the national system. If you work in the NSW public service, for a local council, or a state owned corporation, you should get legal advice about your entitlements.

The NES includes entitlements such as:

• annual leave 
• long service leave
• parental leave
• personal carer's leave
• compassionate leave 
• family and domestic violence leave
• community service leave
• flexible working arrangements
• notice of termination 
• redundancy.

Long service leave is also affected by NSW laws.

For more information about the NES, see National Employment Standards on the Fair Work Ombudsman website.

Your award, enterprise agreement or contract of employment also gives you certain rights to wages and entitlements, however they cannot be less than the minimum entitlements in the NES. 

An award is a legal document which provides the minimum terms and conditions of employment for all employees who work in a particular industry or profession.

You can find out if an award applies to your employment on the Fair Work Ombudsman website. 

Enterprise agreements are agreements between an employer and all employees who work for that employer. An enterprise agreement needs to be approved by the Fair Work Commission.

Enterprise agreements provide information about the terms and conditions of employment and replace any award that may have applied to employees at that workplace.

The minimum wage in an enterprise agreement cannot be less than the minimum wage in the relevant award.

You can search for an enterprise agreement using the Fair Work Commission website.  It can help if you know the name of the agreement or the agreement ID number. 

When you agree to work for an employer, the agreement between you and your employer is called a contract of employment.

Your employment contract could be a formal written contract or a letter of offer. Your employment contract could also be made verbally. For example, through conversations you have had with your employer, either face to face or over the telephone.

An employment contract should cover your entitlements and the conditions of your employment. Whether or not the contract is in writing, other details can form part of your contract, such as:

• what was said when you were employed
• what has happened while you have been employed
• what is the normal practice in your industry.

An employment contract cannot exclude terms and conditions in an award or enterprise agreement.

If you are not sure what the terms of your contract of employment are, you should get legal advice.

It is a good idea to ask your employer to provide you with a written contract when you start a job.

When you work for an employer, you are entitled to be paid for that work. That payment is referred to as wages. The wages you are entitled to will depend on the minimum wage, your contract of employment, your award or enterprise agreement. Your employer must pay you regularly.

In many cases, if you work more than standard hours, you are entitled to be paid extra, sometimes at an hourly rate greater than your normal hourly rate. This is called overtime.

If you work on weekends, public holidays or hours outside the normal work hours, you may be entitled to be paid at a greater hourly rate as well. These rates are called penalty rates.

You may also be entitled to allowances for meals, tools, clothing and working in extreme conditions. Generally, these entitlements are paid with your wages. 

You may be entitled to commissions or bonuses when you reach certain set targets in relation to your job. For example, you may receive a bonus for getting a set number of jobs done in a 12-month period. You may be entitled to a commission for every unit of your employer's product that you sell. Some employees who receive commissions are also entitled to a minimum wage.

Your entitlement to commissions or bonuses will usually depend on your contract of employment, award or enterprise agreement. These entitlements may be paid with your wages or at a specified time.

For more information, see Wages.

An employee may be entitled to some of the following types of leave:

• annual leave
• personal/carer's and compassionate leave
• family and domestic violence leave
• community service leave
• parental leave
• long service leave.

The national employment standards, an award, enterprise agreement, contract of employment and the employee's employment status will determine what leave they are entitled to.

For more information, see Leave.

Superannuation is money set aside for your retirement. Your employer is required by Commonwealth legislation to pay a compulsory superannuation contribution of 11% of your wages to the Australian Taxation Office. Your employer should pay superannuation to your superannuation fund at least once every three months.

For more information, see Superannuation.

If you are dismissed (sacked) you are generally entitled to be given notice before you have to stop working, unless you were dismissed because of serious misconduct. The minimum period of notice depends on how long you have worked for your employer. Your award, enterprise agreement or contract could entitle you to a greater period of notice.

 If you have been dismissed, you should get legal advice. Your dismissal may have been unfair or in breach of a general protection. For more information about unfair dismissal and general protections dismissal, see Termination of employment.

Not all employees are entitled to notice. For example, casual employees may not be entitled to notice. You should get legal advice if you have been dismissed and you are not sure how much notice you are entitled to.

You are entitled to an extra week's notice if you are over 45 years old and you have at least two years of continuous service with your employer.

What is payment in lieu of notice?

Instead of giving you the required period of notice, your employer can pay you an amount equal to your wages for the period of notice you are entitled to, and ask you to leave straight away. This is called a payment in lieu of notice. The amount owing is equal to the amount payable for the notice period that you are entitled to. 

If you resign you may also have to give notice. Your employment contract, award or enterprise agreement may set out the notice period. In some cases if you don't give enough notice your employer may be able to keep some of your final pay.

For more information, see Resignation - how much notice? on the Fair Work Ombudsman website.

When should I receive my payment?

If your employer decides to pay you in lieu of notice, you will normally receive this payment with your final termination pay. 

You should be paid your full rate of pay for the hours you would have worked until the end of the notice period. Your full rate of pay includes any overtime, penalty rates, allowances, bonuses or commissions you would have normally earned over that period. Your employer can deduct amounts for tax.

If you are not paid or you haven't been paid the right amount, there are steps you can take to try and recover the money that you are entitled to. For more information, see What if my entitlements are not paid?

An employee's position is made redundant when their employer no longer needs a role to be performed, or no longer needs the same number of employees to perform certain tasks. If you are made redundant, you may be entitled to redundancy pay.

For more information, see Redundancy pay.