Fair Work (State Declarations - employer not to be national system employer) Endorsement 2010 (No. 1)

Overview

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 1) was introduced to address the gap in the regulation of workplace relations for certain employers in states where the Fair Work Act 2009 did not apply. Enacted by the Australian Parliament, this legislative instrument serves to endorse state declarations that specify certain employers as not being national system employers under the Fair Work Act. This means these employers and their employees will be governed by state workplace relations laws rather than the federal Fair Work Act. The policy objective behind this endorsement is to allow states to regulate employment relationships of certain entities, particularly those integral to state, territory, and local government administration, while ensuring that critical services such as electricity, gas, water supply, and rail services remain under the purview of the Fair Work Act. The endorsement came into effect on 15 July 2010 and applies to employers declared by state or territory laws, subject to the Minister's endorsement.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 1) applies to certain employers within the jurisdictions of the Parliaments of Victoria, South Australia, Tasmania, Queensland and New South Wales, who have referred power to the Commonwealth Parliament to extend the Fair Work Act to employers and employees in these states not already covered by sections 13 and 14. This endorsement, which commenced on 15 July 2010, endorses the declaration by the Parliament of South Australia that the Fleurieu Regional Waste Authority is not to be considered a national system employer under the Fair Work Act, thus making it subject to the workplace relations arrangements prescribed by the state of South Australia instead. The endorsement is integral to the Fair Work Act's provisions, ensuring that specific entities, such as those established for public or local government purposes, are excluded from Commonwealth regulation, thereby allowing states and territories to regulate their employment relationships. However, the endorsement does not exempt these employers from the provisions of Parts 6-3 and 6-4 of the Fair Work Act, which relate to unlawful termination of employment and parental leave and apply nationally.

Key Provisions

The main operative sections of the Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 1) pertain to the declaration of certain employers as not being national system employers under the Fair Work Act 2009 (section 14). The endorsement specifies that certain employers declared by a State or Territory will not be considered national system employers, thus exempting them from the national workplace relations framework. This is contingent upon the employer being established for a public or local government purpose by or under a state or territory law, and not involved in electricity, gas, water supply, or rail and port services. Furthermore, Australian universities as defined by the Higher Education Support Act 2003 cannot be declared under this endorsement (subsection 14(2), (6) and (7)). The endorsement also outlines that for such a declaration to be effective, it must be endorsed by the relevant Minister for Employment and Workplace Relations (subsection 14(2)). The obligations imposed by this endorsement on the parties or entities it governs are primarily administrative and compliance-oriented. The endorsement requires that any declaration made by a State or Territory law must specify the employer explicitly and must be endorsed by the Minister for Employment and Workplace Relations to become effective (subsection 14(2)). Employers that are subject to such a declaration must then comply with the workplace relations arrangements prescribed by the relevant State or Territory instead of the Fair Work Act. This includes adherence to any state or territory laws governing their employment practices, rather than the national framework. Additionally, employees of such employers are not considered national system employees, which means they are not entitled to the protections and rights afforded under the Fair Work Act, except for the provisions related to unlawful termination of employment and parental leave, which continue to apply. The endorsement itself does not prescribe specific offences, penalties, or civil/criminal consequences for breach, as the primary enforcement of compliance lies with the respective State or Territory laws that would govern the declared employers. However, the Fair Work Act does provide for a range of penalties for breaches of its provisions, including fines of up to $22,200 for individuals and $111,000 for bodies corporate, depending on the nature and seriousness of the breach. Additionally, in cases where the breach involves serious and repeated non-compliance, penalties can be significantly higher. The endorsement operates under the legislative framework established by the Fair Work Act, which includes mechanisms for resolving disputes and enforcing compliance through the Fair Work Commission and the Fair Work Ombudsman.