When an Australian employer terminates your employment, the minimum notice period is set by the National Employment Standards (NES) in the Fair Work Act 2009 — but your contract or applicable Modern Award may provide more. Many employees do not realise they could be entitled to significantly more notice than the NES minimum, particularly if their contract includes a common law reasonable notice provision. Equally important: your contract may require you to give the same notice period when resigning, or the employer may attempt to deduct pay if you leave without giving the full notice.
What is a Notice Period and Termination?
The notice period in an Australian employment contract is the advance warning either party must give before ending the employment relationship. The Fair Work Act 2009 sets statutory minimums under the NES, while the contract, enterprise agreement, or Modern Award may provide additional entitlements.
Red flags to watch for
The NES minimums (s 117 Fair Work Act) cannot be contracted out of. Any contractual notice period that provides less than the NES minimum is void to that extent.
While PILON clauses are common, a clause that allows the employer to pay in lieu without the employee's consent means you could be terminated immediately with no chance to work out your notice.
It is unusual and potentially unfair for the employee to be required to give longer notice than the employer. This asymmetry can trap you in a role.
Section 324 of the Fair Work Act restricts unauthorised deductions. An employer generally cannot deduct from final pay for short notice unless certain conditions are met.
If a Modern Award applies to your role, it may provide additional notice entitlements or redundancy pay above the NES. The contract should identify the applicable award.
If the employer can direct you to stay home during the notice period (garden leave), they must continue to pay your full salary and entitlements.
Your legal rights
The Fair Work Act 2009 (Cth) sets minimum notice periods under the National Employment Standards (s 117): 1 week (under 1 year of service), 2 weeks (1-3 years), 3 weeks (3-5 years), 4 weeks (5+ years), plus an additional week for employees over 45 with at least 2 years of service. Modern Awards may provide additional entitlements. Section 324 restricts unauthorised deductions from pay. Redundancy pay is separately addressed in s 119. Common law reasonable notice may exceed NES minimums where the contract is silent.
Questions to ask before you sign
- 1Does my notice period meet the NES minimum for my length of service?
- 2Is the notice period the same for both employer and employee?
- 3Can the employer pay in lieu of notice, and do I have any say in this?
- 4Does a Modern Award apply to my role, and does it provide additional notice entitlements?
- 5Is there a garden leave clause, and does it guarantee full pay?
- 6What happens to my accrued leave entitlements on termination?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.