The Australian technology sector operates in a peculiar compliance space: many tech employees are award-free, governed only by the NES and their employment contracts, while others fall under the Professional Employees Award 2020 or the Clerks—Private Sector Award 2020. The leave entitlements differ significantly depending on which regime applies — and many tech companies get this wrong because they assume the NES floor is the complete picture.
This guide covers technology sector leave entitlements in 2026: the award coverage question, NES baseline for award-free employees, flexible working arrangements, and the compliance considerations unique to startups and tech companies.
Key takeaways
- Many tech employees are award-free, governed only by the NES and their employment contract — no leave loading unless the contract provides it.
- Some tech roles fall under the Professional Employees Award or the Clerks—Private Sector Award, which add leave loading and other provisions.
- The NES provides 4 weeks annual leave and 10 days personal/carer’s leave for full-time employees.
- Flexible working arrangements are a NES right — employees with 12+ months service can request changes to hours, patterns, or location.
- Equity compensation (ESOPs, RSUs) does not affect leave entitlements, but termination timing can trigger vesting implications.
Award coverage in the tech sector
The first compliance question for any tech company is: which award, if any, applies?
Professional Employees Award 2020: Covers software engineers, analysts, scientists, and other professional roles in technology companies that are not covered by another award or enterprise agreement. Partners, very senior employees, and those on enterprise agreements are excluded.
Clerks—Private Sector Award 2020: Covers administrative and clerical employees — office managers, receptionists, HR staff, and finance roles within tech companies.
Award-free: Many tech employees — particularly those in senior roles, on high salaries, or in companies that do not fit the award coverage definitions — are award-free. They receive only the NES minimums and their contract terms.
Key differences
| Entitlement | Award-covered | Award-free (NES only) |
|---|---|---|
| Annual leave | 4 weeks + 17.5% loading | 4 weeks (no loading unless contract provides) |
| Personal/carer’s leave | 10 days | 10 days |
| Compassionate leave | 2 days | 2 days |
| Long service leave | State-based | State-based |
| Flexible working | Award + NES provisions | NES right to request |
Annual leave
Under both the Award and the NES, full-time tech employees receive 4 weeks (152 hours for a 38-hour week) of paid annual leave, accruing progressively based on ordinary hours worked.
For award-covered employees, 17.5% leave loading applies on the base rate. For award-free employees, leave loading is only available if their employment contract provides for it — and many tech contracts do not include this provision.
The “greater of” provision for leave loading applies to award-covered employees: the employee receives whichever is higher — 17.5% or the penalty rates they would have earned if working.
Remote work and leave accrual
The rise of remote work in the tech sector does not affect leave accrual calculations. Leave accrues on ordinary hours regardless of where the work is performed. However, remote employees in different states may have state-specific long service leave entitlements that need tracking.
Personal/carer’s leave
Under both the Award and the NES, full-time employees receive 10 days per year of paid personal/carer’s leave, accruing progressively and accumulating year to year. Part-time employees receive pro-rata entitlements.
Tech-specific considerations:
- Remote employees may need to provide evidence differently (digital medical certificates, statutory declarations)
- Mental health leave is covered under personal/carer’s leave — there is no distinction between physical and mental illness
- The employer can request evidence but must not impose excessive requirements
Flexible working arrangements
The NES provides a right to request flexible working arrangements for employees with 12 or more months of continuous service. This includes changes to:
- Hours of work
- Patterns of work (e.g., compressed weeks)
- Location of work (e.g., working from home)
Employers can refuse the request only on reasonable business grounds and must respond in writing within 21 days. In the tech sector, where remote and flexible work is common, this right is frequently exercised and must be managed carefully.
Some modern awards provide additional flexible working provisions above the NES minimum. Check whether the applicable award enhances the NES right.
Long service leave
Long service leave is state-based:
| State | Qualification | Entitlement |
|---|---|---|
| Victoria | 7 years | 8.67 weeks; 4.33 weeks per subsequent 5 years |
| NSW | 10 years | 2 months; 1 month per subsequent 5 years |
| Queensland | 10 years | 8.67 weeks; 4.33 weeks per subsequent 5 years |
| South Australia | 10 years | 13 weeks |
Tech companies with remote employees across multiple states must track state-specific entitlements separately. This is particularly relevant for companies with distributed workforces.
Startup-specific considerations
Tech startups face unique leave compliance challenges:
- High casualisation: Contract and casual arrangements are common, but casual conversion rules still apply
- Equity and leave termination: When an employee on leave is terminated, accrued leave must be paid out — equity vesting during the notice period is a separate consideration
- Rapid growth: As headcount grows, award coverage may change — roles that were award-free at 5 employees may fall under an award at 50
- International remote workers: Employees working overseas may be subject to different leave laws entirely
Common compliance traps in tech
1. Assuming all employees are award-free
Many tech companies assume no award applies to their workforce. While many roles are indeed award-free, administrative, clerical, and some professional roles may be covered by the Clerks Award or Professional Employees Award. Applying the NES alone to award-covered employees underpays them.
2. Not paying leave loading for award-covered employees
If the Professional Employees Award or Clerks Award applies, 17.5% leave loading is mandatory. Omitting it is a systemic underpayment.
3. Ignoring the NES flexible working right
After 12 months of service, employees have a statutory right to request flexible working arrangements. Refusing without reasonable business grounds is a breach.
4. Not tracking long service leave for remote employees
Distributed teams with employees in multiple states create multiple long service leave tracking obligations. Failing to track this creates a significant liability on termination.
5. Overlooking award coverage as the company grows
As headcount increases, the award coverage assessment should be repeated. Roles that were award-free when the company was small may become award-covered as the business scales.
Putting it into practice
Five checks cover most tech sector leave compliance:
- Conduct an award coverage assessment for every employee — do not assume award-free status.
- Pay leave loading for award-covered employees and check contracts for award-free employees.
- Manage NES flexible working requests within the 21-day response window.
- Track long service leave entitlements across multiple states for distributed teams.
- Repeat the award coverage assessment as headcount grows.
Award coverage in the tech sector is more complex than it appears — and the cost of getting it wrong grows as headcount scales. A leave management system that flags award coverage, automates accrual calculations, and tracks multi-state entitlements keeps compliance aligned with growth.
Sources
- Professional Employees Award 2020 — Fair Work Commission
- Clerks—Private Sector Award 2020 — Fair Work Commission
- Annual leave — Fair Work Ombudsman
- Flexible working arrangements — Fair Work Ombudsman
Last updated: 26 July 2026. This article is general guidance, not legal advice. Confirm current award coverage and employment terms with the Fair Work Ombudsman or an employment lawyer.
Frequently asked questions
Are tech employees covered by a modern award?
It depends on the role. Some tech roles fall under the Professional Employees Award or the Clerks—Private Sector Award. Many senior and specialist roles are award-free, governed only by the NES and the employment contract. An award coverage assessment should be conducted for every employee.
Do award-free tech employees get leave loading?
No, unless their employment contract specifically provides for it. The NES does not require leave loading. Many tech contracts do not include this provision.
Can a tech employee request to work from home?
Yes. After 12 months of continuous service, employees have a NES right to request flexible working arrangements, including working from home. Employers can refuse only on reasonable business grounds and must respond in writing within 21 days.
Does equity compensation affect leave entitlements?
No. Equity compensation (ESOPs, RSUs, options) does not affect leave accrual or entitlement calculations. However, the timing of termination — which may be related to leave — can trigger vesting implications under the equity plan terms.
How does distributed work affect long service leave?
Long service leave is state-based. Employees working remotely from different states have state-specific entitlements that must be tracked separately. A Victorian employee qualifies after 7 years; a NSW employee requires 10 years.