Fair Work (State Declarations - employer not to be a national system employer) Endorsement 2012 (No. 3)

Overview

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2012 (No. 3) was enacted to address the need for certain employers within the states to be excluded from the national workplace relations system governed by the Fair Work Act 2009. This legislation, issued under the authority of the Minister for Employment and Workplace Relations, facilitates the endorsement of declarations made by state parliaments to specify particular employers that should not be classified as national system employers. The overarching policy objective is to enable states to manage the employment relationships of specific entities, particularly those integral to state and local government administration, while ensuring that broader national protections for employees, such as those concerning unlawful termination of employment and parental leave, remain applicable. This endorsement underscores the collaborative approach between the Commonwealth and the states in regulating workplace relations, allowing for tailored state-specific arrangements while maintaining uniform national standards where necessary.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2012 (No. 3) applies to employers within certain states who are not covered under the existing definitions of national system employers and employees as per the Fair Work Act 2009. Specifically, it allows for state and territory laws to declare certain employers not to be national system employers, thus exempting them from the federal workplace relations framework. This applies to employers established for public or local government purposes by state or territory laws, provided they do not operate in electricity, gas, water services, or rail and port operations, and are not Australian universities. These exclusions ensure that entities integral to state and territory administration remain under state and territory regulation. For a declaration to be effective, it must be endorsed by the Commonwealth Minister for Employment and Workplace Relations, and such an endorsement will exclude the specified employers and their employees from the federal system, subjecting them instead to state or territory workplace relations arrangements. However, certain protections under the Fair Work Act, such as those related to unlawful termination of employment and parental leave, will still apply to these employers and employees.

Key Provisions

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2012 (No. 3) pertains to the Fair Work Act 2009, which outlines the workplace relations framework for national system employers and employees. This Endorsement, which commences on 1 January 2013, focuses on excluding certain employers from the definition of 'national system employer' as set out in subsection 14(2) of the Fair Work Act. The main operative sections, specifically sections 30C, 30M, 30D, and 30N, extend the definitions of 'national system employee' and 'national system employer' to include or exclude certain entities based on state declarations. Under this Endorsement, a national system employer is not limited to constitutional corporations, Commonwealth authorities, or entities involved in trade or commerce; it is also subject to state and territory declarations. Specifically, a particular employer can be declared by a state or territory law not to be a national system employer if the declaration is endorsed by the Minister administering the Fair Work Act. The declaration can exclude certain public and local government bodies, but not those involved in essential services such as electricity, gas, water, rail, or ports, nor Australian universities as defined in the Higher Education Support Act 2003. The endorsement ensures that the affected employers will not generally be subject to the Fair Work Act and will instead be governed by the workplace relations arrangements prescribed by the relevant state or territory. The obligations imposed on the parties governed by this Act primarily revolve around compliance with the state or territory workplace relations arrangements. Employers declared as non-national system employers must adhere to the regulations prescribed by the state or territory laws rather than the Fair Work Act. This includes ensuring that their employees are covered by the respective state or territory workplace relations laws. Additionally, while the Fair Work Act will not apply to these employers and their employees in most respects, certain provisions, such as those related to unlawful termination of employment and parental leave, will continue to apply under Parts 6-3 and 6-4 of the Fair Work Act. Regarding consequences for breach, the Fair Work (State Declarations — employer not to be national system employer) Endorsement 2012 (No. 3) does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance. However, employers who fail to adhere to the state or territory workplace relations arrangements may face legal action or penalties as prescribed by those jurisdictions. The endorsement itself is a legislative instrument under the Legislative Instruments Act 2003 but is not subject to disallowance or sunsetting provisions as per subsection 14(5) of the Fair Work Act.