Explanatory Statement
Issued by the authority of the Minister for Employment and Workplace Relations
Fair Work Act 2009
Fair Work Amendment (Exclusion of State and Territory Laws) Regulations 2026
Authority
The Fair Work Act 2009 (the Act) establishes a national workplace relations system covering the majority of employers and employees in Australia. The Fair Work Regulations 2009 (Regulations) support matters of detail within the legislative framework contained in the Act.
Subsection 796(1) of the Act empowers the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Paragraph 27(1)(b) of the Act provides that the Governor-General may make regulations prescribing state and territory laws to which section 26 does not apply.
The Act specifies no conditions that need to be satisfied before the power to make the instrument may be exercised.
Purpose and Operation
The purpose of the Fair Work Amendment (Exclusion of State and Territory Laws) Regulations 2026 (the Instrument) is to amend the Regulations to prescribe an additional category of state and territory laws that are not excluded by section 26 of the Act.
Section 26 of the Act generally excludes the operation of state and territory laws in relation to national system employers and national system employees. Section 27 of the Act preserves the operation of certain state and territory laws by prescribing some state or territory laws and allowing further laws to be specified in the Regulations. Regulation 1.13, made under section 27, further prescribes certain laws.
The Instrument provides that a law dealing with non‑disclosure agreements, or any other contracts or agreements, that relate to the disclosure of information about sexual harassment in a workplace or in connection with work, is within the prescribed category.
The effect of the Instrument is to support the concurrent operation of state and territory laws regulating non‑disclosure agreements (and similar contractual arrangements) in matters involving sexual harassment connected with work, alongside the national workplace relations system established by the Act. For example, the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) restricts the use and enforceability of non-disclosure agreements relating to allegations of workplace sexual harassment.
This approach is consistent with the role of regulation 1.13 as a mechanism to prescribe categories of state and territory laws that continue to operate in relation to national system employers and national system employees.
Details of the Instrument are set out in Attachment A.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Regulatory Impact
The Office of Impact Analysis advised that an Impact Analysis was not required as the amendments to the regulations outlined in the Instrument are machinery in nature and will not impact the wider Australian community (OIA26-11332 refers).
Exemption from Sunsetting
As a regulation made under the Act, the Instrument is specifically exempted from sunsetting pursuant to item 27(e) of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulations 2015. The Explanatory Statement to the Legislation (Exemption and Other Matters) Amendment (2019 Measures No. 1) Regulations 2019 provides that regulations made under the Act are exempt from sunsetting because they form part of an intergovernmental scheme.
Commencement
The whole of the Instrument commences the day after the Instrument is registered.
Consultation
The Department of Employment and Workplace Relations consulted:
- states and territories under the Intergovernmental Agreement for a National Workplace Relations System for the Private Sector
- the Committee on Industrial Legislation (a subcommittee of the National Workplace Relations Consultative Council, established under the National Workplace Relations Consultative Act 2002), and
- the Attorney-General’s Department, as they maintain primary portfolio responsibility for workplace sexual harassment and non-disclosure agreements.
Victorian officials were supportive of the Instrument. No stakeholders raised concerns about the Instrument.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Exclusion of State and Territory Laws) Regulations 2026
The Fair Work Amendment (Exclusion of State and Territory Laws) Regulations 2026 (Instrument) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Instrument
The national workplace relations system established by the Act operates alongside certain state and territory laws. Section 26 of the Act generally excludes the operation of state and territory laws in relation to national system employers and national system employees. Section 27 of the Act preserves the operation of certain state and territory laws by prescribing some state or territory laws and allowing for further such laws to be prescribed in the Fair Work Regulations 2009 (Regulations). Regulation 1.13, made under section 27, further prescribes certain laws.
The Instrument amends the Regulations to prescribe an additional category of state and territory laws that are not excluded by section 26 of the Act. The amendment provides that a law dealing with non‑disclosure agreements, or any other contracts or agreements, that relate to the disclosure of information about sexual harassment in a workplace or in connection with work, is within the prescribed category.
Human rights implications
The amendments contained in the Instrument do not in themselves engage any human rights. They allow laws made by states or territories which fall within the prescribed category to continue to operate without being indirectly inconsistent with the Act. The current Fair Work framework continues to operate unchanged by the amendments.
Conclusion
The Instrument is compatible with human rights because it does not engage any human rights.
The Hon. Amanda Rishworth MP, Minister for Employment and Workplace Relations
Attachment A
Details of the Fair Work Amendment (Exclusion of State and Territory Laws) Regulations 2026
Section 1: Name
- This section provides that the title of the Instrument is the Fair Work Amendment (Exclusion of State and Territory Laws) Regulations 2026.
Section 2: Commencement
- This section provides for the whole of the Instrument to commence the day after the Instrument is registered.
Section 3: Authority
- This section provides that the Instrument is made under the Fair Work Act 2009 (the Act).
Section 4: Schedules
- This section provides that each item that is specified in a Schedule to the Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Instrument has effect according to its terms.
Schedule 1—Amendments
Fair Work Regulations 2009
Item 1 – After paragraph 1.13(c)
- This item inserts new paragraph 1.13(d) into the Fair Work Regulations 2009 (Regulations).
- The Act generally excludes state or territory industrial laws that would otherwise apply to national system employers and their employees. Section 27 of the Act ‘saves’ certain state or territory laws that would otherwise be excluded, by making clear that they are not part of the field covered by the Act. Paragraph 27(1)(b) allows for further laws to be saved to be prescribed by the Regulations. This ensures that listed laws will not be indirectly inconsistent with the Act.
- Regulation 1.13 prescribes state and territory laws that are not excluded by section 26 of the Act.
- New paragraph 1.13(d) prescribes a law dealing with non‑disclosure agreements, or any other contracts or agreements, that relate to the disclosure of information relating to sexual harassment in a workplace or in connection with work.
- The effect of the amendment is that state and territory laws of the kind described in paragraph 1.13(d) are not indirectly inconsistent with the Act.