TL;DR: An employment contract can set any notice period that is at least the National Employment Standards minimum: 1 week for up to a year’s service, rising to 4 weeks after 5 years, plus a week for employees over 45 with 2 years’ service. Make the period explicit, mutual, payable in lieu, and waived for serious misconduct.
Last updated 11 October 2026.
Key takeaways
- According to the Fair Work Ombudsman, the NES minimum notice an employer must give runs from 1 week to 4 weeks, depending on continuous service.
- Employees over 45 with at least 2 years of continuous service get an extra week of notice under the NES.
- A contract, award or enterprise agreement can require more notice than the NES, but never less.
- Words like “a minimum of three months” invite a reasonable notice argument, so state an exact period.
- Casuals, employees engaged for a specific period, task or season, and employees dismissed for serious misconduct are not entitled to NES notice.
What is a notice period?
A notice period is the time between one party telling the other that the employment will end and the last day of employment. According to the Fair Work Ombudsman, it starts the day after notice is given and ends on the last day of employment. It applies to resignations as well as dismissals.
Throughout the life of a business, there will be times when employees are ready to leave for a new opportunity. Even when they are eager to move on right away, it is professional to give a few weeks’ notice. That way, the business can prepare for the departure, delegate tasks, and start recruiting.
Notice protects both sides. Without it, teams scramble to take over work and fill the vacant position. With proper notice, you can write a new job ad, review applications, and start interviewing before the person walks out the door. Equally, an employee who is dismissed gets time, or pay, to find their next role.
Most of the detail sits in your employment contracts, so the wording there decides how much flexibility you have.
Download our free employment contract templates. Curated by Source HR, these contracts are designed for Australian business and are available now
What is the minimum notice period under the NES?
Under the National Employment Standards, the minimum notice an employer must give depends on the employee’s continuous service on the day notice is given. According to the Fair Work Ombudsman, it is 1 week for a year or less, 2 weeks for up to 3 years, 3 weeks for up to 5 years, and 4 weeks beyond 5 years.
The Fair Work Ombudsman sets out the scale as follows:
| Period of continuous service | Minimum notice period |
|---|---|
| 1 year or less | 1 week |
| More than 1 year but not more than 3 years | 2 weeks |
| Over 3 years but not more than 5 years | 3 weeks |
| More than 5 years | 4 weeks |
Employees over 45 years old get an extra week if they have at least 2 years of continuous service. Unpaid parental leave counts towards continuous service for notice, but unauthorised absences do not. For instance, a 50-year-old with 6 years’ service is owed at least 5 weeks.
Some employees are not entitled to NES notice at all. According to the Fair Work Ombudsman, that includes casuals, people employed for a specific period, task, or season, and employees dismissed for serious misconduct. Notice still applies during probation, based on length of service.
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How much notice does an employee have to give when they resign?
The NES does not set resignation notice. Instead, an award, enterprise agreement, or employment contract may require it. According to the Fair Work Ombudsman, award notice is usually based on continuous service. An award-free employee only has to give notice if their contract says so, or reasonable notice if it is silent.
That gap is a common reason to write resignation notice into the contract. Otherwise, an award-free senior manager can leave on short notice, and the business has little room to respond. Casual employees do not have to give notice when they resign, although it is best practice.
Most awards let an employer deduct up to one week’s wages when an employee aged 18 or over does not give the required notice, provided the deduction is not unreasonable. However, the deduction can only come from wages owed under the award, not from leave or over-award payments. Also note that an employer cannot refuse to accept a resignation.
What is a good notice period for an employment contract?
A good notice period meets the legal minimum, reflects how long the role takes to replace, and is the same, or close to it, for both sides. No law defines “good” above the NES. Many employers use the NES scale for most roles and set longer, explicit periods for senior or hard-to-replace staff.
Start with the floor. The contract can never provide less than the NES, the award, or the enterprise agreement. Then ask how long it realistically takes to recruit and hand over the role. A payroll officer and a chief financial officer need very different answers.
Consider the other direction too. A long notice period protects the business when a key person resigns. Still, it also means paying out a long period if you end the employment yourself. Most employers settle on a period they would be comfortable giving, not just receiving.
What are four tips for writing notice periods in employment contracts?
The four tips cover the clauses that most often cause disputes. Give both parties the power to end the contract on written notice, state an exact period, allow payment in lieu in full or in part, and allow termination without notice for serious misconduct. Each one closes a gap that has led to real claims.
The tips come from Source HR’s original guidance on one of the key provisions of any employment contract: the notice period.
Tip one: give both parties the power to terminate on notice
First, make sure the notice provision actually gives you and the employee the power to end the employment on a set amount of written notice. You would be surprised how many employment contracts forget to include this, or only include it for the employee. A simple line works: the company can terminate this contract by providing a set amount of notice in writing.
Tip two: make the notice period explicit
The next tip is to make the notice period explicit. Say three weeks, four weeks, one month, or the NES period, whatever it is. Avoid words like “a minimum of three months’ notice”, because they leave you open to a reasonable notice argument.
Consider this scenario. An employee in a senior role for 10 years is told their role is redundant. They say the contract only sets a minimum of three months, so the real period is what is reasonable, and given their seniority, that is 12 months. Source HR notes that this has happened in case law, so a few loose words can have big consequences.
Tip three: allow payment in lieu, in full or in part
Third, make sure the business can pay out the notice period, either in full or in part. Suppose you are ending someone’s employment and would rather they did not work the notice period. Equally, you might want them to work two weeks and be paid for the rest.
For NES notice, the Fair Work Ombudsman says an employer can let the employee work, pay in lieu, or combine the two. A contract clause still matters, because it covers any longer contractual period and removes doubt about partial payment. When an employee resigns, ending their notice early generally needs agreement, a contract term, or a dismissal.
Tip four: allow termination without notice for serious misconduct
Finally, include a provision that lets the business end employment without notice, or with nominal notice such as one hour, if the employee commits serious misconduct. You might use a catch-all, such as serious misconduct at common law. You can also list examples, such as dishonest or fraudulent conduct, a serious or persistent breach of the contract, or being charged with or convicted of a serious criminal offence.
The NES already removes notice for serious misconduct. According to the Fair Work Ombudsman, examples include theft, fraud, assault, sexual harassment, being intoxicated at work, and refusing a lawful and reasonable instruction. Writing your own examples into the contract simply makes the line clearer for both sides.
Can an employer pay out the notice period instead?
Yes. An employer can end employment immediately and pay the employee what they would have earned over the notice period. According to the Fair Work Ombudsman, that payment must equal the full amount the employee would have received had they worked it, including incentive payments, bonuses, loadings, allowances, overtime, and penalty rates.
If the notice is paid out, the employment ends on the last working day. As a result, the employee stops accruing leave and other entitlements from that point. By contrast, an employee who works the notice period keeps accruing leave until their final day.
Notice is also separate from redundancy pay. An employee made redundant may be owed both, so the notice calculation sits alongside the redundancy scale rather than replacing it. Our guide to avoiding unfair dismissal in a redundancy sets out the NES redundancy pay table.
How should HR manage notice periods across a workforce?
Keep three facts accurate for every employee: their start date, their date of birth, and the notice terms in their signed contract. Those three decide the NES minimum, the over-45 extra week, and any longer contractual period. When a resignation or dismissal happens, HR can then calculate the right notice in minutes rather than hunting through files.
The common failure is version drift. A contract was updated after a promotion, but the old notice clause is the one on file. Alternatively, an acquired business brought its own templates, so two people in the same role have different terms.
So store the signed contract against each person, and record acceptance properly, as covered in our explainer on whether an employment contract needs a signature. If you want contracts, start dates, and paperwork held in one place, Worknice is a sensible option for Australian organisations of roughly 50 to 1,000 employees. However, it does not draft contract terms, so the notice clause itself still needs proper legal input.
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Frequently asked questions
What is the minimum notice period in Australia?
Under the National Employment Standards, an employer must give at least 1 week’s notice for up to a year of service, 2 weeks for up to 3 years, 3 weeks for up to 5 years, and 4 weeks after that. Employees over 45 with 2 years’ service get one extra week.
What is a good notice period?
A good notice period meets the NES or award minimum, reflects how long the role takes to replace, and works in both directions. No law defines a “good” period above the minimum. Many employers use the NES scale for most roles and set longer, exact periods for senior or specialist staff.
Can an employment contract have a shorter notice period than the NES?
No. According to the Fair Work Ombudsman, an employment contract cannot provide for less than the National Employment Standards or the applicable award or agreement. A contract can set a longer period, and that longer period then applies. Any shorter term is ineffective, and the NES minimum applies instead.
Do employees have to work their notice period?
An employer can choose whether the employee works the notice period, is paid in lieu, or a mix of both. If the employer gives more notice than required, the Fair Work Ombudsman says the employee only has to work the minimum period, and the employer need not pay the extra.
Does notice apply during a probation period?
Yes. According to the Fair Work Ombudsman, employees are entitled to notice even if their employment ends during probation. They must be allowed to work the notice period or be paid in lieu, based on their length of service. For most probationary employees, that means 1 week under the NES.
About the author
Graham Martin is Co-founder of Worknice, an Australian HRIS built for mid-to-large organisations. He has spent more than a decade working with Australian People and Culture teams on HR systems, compliance, and payroll integration.
Related reading
- Sample employment contracts: contract templates for large employers and senior employees, including notice clauses.
- Does an employment contract need a signature?: how to prove an employee accepted the notice terms you rely on.
- Avoiding unfair dismissal in a redundancy: the genuine redundancy tests and the redundancy pay owed alongside notice.
- Unfair dismissal compensation: what a dismissal handled badly can cost, and how the Commission works it out.
Sources
- Fair Work Ombudsman, “Dismissal”. Content last updated 28 August 2026. Retrieved 11 October 2026: https://www.fairwork.gov.au/ending-employment/dismissal
- Fair Work Ombudsman, “Resignation”. Content last updated 28 August 2026. Retrieved 11 October 2026: https://www.fairwork.gov.au/ending-employment/resignation
- Fair Work Ombudsman, “Who doesn’t get notice”. Content last updated 14 August 2026. Retrieved 11 October 2026: https://www.fairwork.gov.au/ending-employment/dismissal/who-doesnt-get-notice
- Fair Work Ombudsman, “Redundancy pay”. Content last updated 28 September 2026. Retrieved 11 October 2026: https://www.fairwork.gov.au/ending-employment/redundancy/redundancy-pay
- Federal Register of Legislation, “Fair Work Act 2009”. Compilation No. 73, compilation date 7 July 2026, sections 117 and 123. Retrieved 11 October 2026: https://www.legislation.gov.au/C2009A00028/latest/text
