Fair Work (State Declarations - employer not to be national system employer) Endorsement 2010 (No. 2)

Administered by Department of Employment and Workplace Relations

Legislation au F2010L03029 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations

 

Fair Work Act 2009

Section 14

 

Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 2)

 

 

The Fair Work Act 2009 (the Fair Work Act) sets out the workplace relations framework for national system employers and national system employees.

 

Under subsection 14(1) of the Fair Work Act a national system employer means any of the following in its capacity as an employer of an individual:

 

  • a constitutional corporation;
  • the Commonwealth or a Commonwealth authority;
  • a person who employs a flight crew officer, maritime employee or waterside worker in connection with constitutional trade or commerce;
  • a body corporate incorporated in a Territory; or
  • a person who carries on an activity in a Territory and employs a person in connection with the activity.

 

A national system employee is an individual employed by a national system employer (section 13 of the Fair Work Act).

 

The Parliaments of Victoria, South Australia, Tasmania, Queensland and New South Wales have referred power to the Commonwealth Parliament to extend the Fair Work Act to employers and their employees in these States that are not already covered by sections 13 and 14.  Division 2A and Division 2B of Part 1-3 of the Fair Work Act give effect to State workplace relations references by extending the meaning of national system employee and national system employer (sections 30C, 30M and 30D, 30N of the Fair Work Act).

 

Certain entities are integral to State, Territory and local government administration.  The employment relationships of these entities may be appropriately regulated by States and Territories for this reason.  Such entities may be excluded from State references.  Additionally, subsection 14(2) of the Fair Work Act allows States and Territories to declare (subject to Commonwealth ministerial endorsement) that certain employers over which the Commonwealth would otherwise have jurisdiction are not national system employers.

 

Under subsection 14(2) of the Fair Work Act a particular employer is not a national system employer if it is declared as such by or under a law of a State or Territory.  To be effective, a State or Territory declaration is required to specify the employer that is not to be a national system employer and a written endorsement by the Minister administering the Fair Work Act must be in force in relation to the employer. 

 

 

 

A declaration may only be made in respect of an employer that is:

 

  • a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or
  • a body established for a local government purpose by or under a law of a State or Territory or an entity that is wholly owned or controlled by such a body.

 

Under subsection 14(6) of the Fair Work Act, unless the employer is a local government employer (or a wholly-owned or wholly controlled subsidiary of such an employer) a State or Territory declaration cannot be made in relation to an employer that:

 

  • generates, supplies or distributes electricity;
  • supplies or distributes gas;
  • provides services for the supply, distribution or release of water; or
  • operates a rail service or a port.

 

A State or Territory declaration cannot be made in relation to an employer that is an Australian university within the meaning of the Higher Education Support Act 2003 (subsection 14(7)).

 

The effect of an endorsement is that an employer specified in it will not generally be subject to the Fair Work Act and will instead be subject to the workplace relations arrangements prescribed by the relevant State or Territory.  An endorsement also has the effect that a specified employer’s employees are not generally subject to the Fair Work Act, because only employees of national system employers can be national system employees.  However, Parts 6-3 and 6-4 of the Fair Work Act, which relate to unlawful termination of employment and parental leave and which apply to employers and employees nationally, will continue to apply.

 

Item 1 sets out the name of the Endorsement as the Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 2).  The Endorsement commences on 1 December 2010 (item 2).  A reference to the Act in the Endorsement is a reference to the Fair Work Act (item 3).

 

Item 4 endorses a declaration that has been made under the Industrial Relations Regulation 2000 (Qld).  These regulations were amended by section 21 of the Education and Training Legislation (Skills Queensland) Amendment Act 2010 (Qld) to declare that Skills Queensland is not to be a national system employer for the purposes of the Fair Work Act.  Part 1 of Schedule 1 sets out the law of Queensland by or under which the declaration has been made, the name of the declared employer and the date of effect of the Endorsement.

 

The Endorsement is a legislative instrument for the purposes of the Legislative Instruments Act 2003 but is not subject to the disallowance or sunsetting provisions of that Act (subsection 14(5) of the Fair Work Act).

 

 

Overview

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 2) was enacted in 2010 by the Commonwealth Parliament in response to referrals of power from the Parliaments of Victoria, South Australia, Tasmania, Queensland, and New South Wales. This Endorsement is part of the Fair Work Act 2009 and aims to extend the workplace relations framework to employers and their employees in these states that were not previously covered by the Act. The Endorsement enables certain employers specified by the states or territories to be excluded from the national system, thereby allowing these entities to be regulated under state or territory laws rather than the federal framework. The policy objective is to provide flexibility in regulating certain public sector entities while ensuring that core national employment standards continue to apply through specific provisions of the Fair Work Act.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 2) applies to employers that have been declared by a state or territory government under specific conditions, effectively excluding them from the scope of the Fair Work Act 2009. The Act applies to employers who are entities established for public or local government purposes by or under state or territory laws, excluding those involved in essential services such as electricity, gas, water, and rail services, as well as Australian universities. This endorsement ensures that these specified employers and their employees are governed by state or territory workplace relations arrangements instead of the national framework. Notably, certain national protections concerning unlawful termination of employment and parental leave, as outlined in Parts 6-3 and 6-4 of the Fair Work Act, still apply. The endorsement, which commences on 1 December 2010, requires a written endorsement from the Minister administering the Fair Work Act to be in force for the declaration to take effect. This legislative instrument is not subject to disallowance or sunsetting provisions under the Legislative Instruments Act 2003.

Key Provisions

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2010 (No. 2) amends the Fair Work Act 2009 by endorsing a declaration that specifies certain employers are not to be considered national system employers for the purposes of the Act. According to subsection 14(2) of the Fair Work Act, a particular employer is deemed not to be a national system employer if it is declared as such by a State or Territory law, and the endorsement by the relevant Minister is in effect. The endorsement only applies to employers established for a public or local government purpose by a State or Territory law, or entities wholly owned or controlled by such bodies, and excludes employers involved in electricity, gas, water supply, or rail and port operations (subsection 14(6)). Australian universities, as defined by the Higher Education Support Act 2003, are also excluded (subsection 14(7)). The endorsement imposes specific obligations on the parties it governs, primarily ensuring that employers declared under a State or Territory law are not subject to the Fair Work Act, and their employees are not considered national system employees. However, Parts 6-3 and 6-4 of the Fair Work Act, which cover unlawful termination of employment and parental leave, continue to apply to these employers and employees. This means that while the broader provisions of the Fair Work Act do not apply, certain fundamental protections remain in force. There are no explicit offences or penalties outlined in the Endorsement itself for failing to comply with its provisions. However, any breach of the Fair Work Act, including actions by employers who are not national system employers but are subject to specific parts of the Act, could result in civil or criminal consequences. The maximum penalties for breaches of the Fair Work Act can vary widely depending on the nature and severity of the offence, ranging from fines for minor infringements to more substantial penalties for serious violations.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.