Fair Work (State Declarations - employer not to be national system employer) Endorsement 2011 (No. 1)

Administered by Department of Employment and Workplace Relations

Legislation au F2011L01333 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 2011 (No.1)

 

 

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 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 endorsement by the Commonwealth Minister) 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 2011 (No.1).  The Endorsement commences on 1 July 2011 (item 2).  A reference to the Act in the Endorsement is a reference to the Fair Work Act (item 3).

 

Item 4 endorses an Order that has been made under the Industrial Relations Act 1996 (NSW) declaring that the Central Coast Water Corporation is not a national system employer for the purposes of the Fair Work Act.  Part 1 of Schedule 1 sets out the law of New South Wales 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 2011 (No.1) was enacted to address the need for flexibility in the application of the Fair Work Act 2009 to various employers across different states and territories in Australia. The Fair Work Act establishes the framework for workplace relations for national system employers and employees, but the 2011 Endorsement was introduced to allow for the exclusion of certain employers from the national system, thereby enabling state and territory regulation of these entities. This Endorsement was enacted by the Australian Commonwealth Parliament, under the authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, in response to referrals of power from the parliaments of Victoria, South Australia, Tasmania, Queensland, and New South Wales. The policy objective is to provide a mechanism for states and territories to declare certain employers not to be national system employers, subject to endorsement by the Commonwealth Minister, thus allowing for the continued regulation of these employers by state and territory laws.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2011 (No.1) extends the application of the Fair Work Act 2009 by endorsing a declaration made under the Industrial Relations Act 1996 (NSW) that excludes the Central Coast Water Corporation from being classified as a national system employer. This exclusion means that the Central Coast Water Corporation and its employees are not subject to the Fair Work Act but instead are governed by New South Wales workplace relations arrangements. This endorsement is effective from 1 July 2011 and applies specifically to the Central Coast Water Corporation, ensuring that it is not subject to the federal workplace relations framework. However, certain national protections, such as those related to unlawful termination of employment and parental leave, continue to apply to this corporation and its employees. The endorsement is a legislative instrument under the Legislative Instruments Act 2003, but it is not subject to the disallowance or sunsetting provisions of that Act, as specified under subsection 14(5) of the Fair Work Act.

Key Provisions

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2011 (No.1) operates under section 14 of the Fair Work Act 2009. This endorsement specifically allows certain employers in the states of Victoria, South Australia, Tasmania, Queensland, and New South Wales to be excluded from being classified as national system employers. Such exclusions mean these employers and their employees are not subject to the federal workplace relations framework, but rather to the state or territory workplace arrangements. This endorsement is effective for employers who are established for public or local government purposes, and certain exclusions apply, such as those related to electricity, gas, water, rail services, and ports. Additionally, Australian universities are excluded from this endorsement. The obligations imposed by this endorsement on the specified employers include adherence to the workplace relations arrangements prescribed by the relevant state or territory. These employers must comply with the local laws and regulations instead of the federal Fair Work Act. However, they remain subject to certain federal provisions, specifically those related to unlawful termination of employment and parental leave. The endorsement ensures that the employees of these employers are also governed by the state or territory laws rather than federal laws, unless specified otherwise. Breach of the provisions of this endorsement can result in civil or criminal consequences, depending on the nature and severity of the breach. While the endorsement itself does not specify maximum penalties, breaches of workplace laws under state or territory regulations can incur fines and other penalties as determined by the respective jurisdiction. Employers must ensure compliance with both the endorsement and the relevant state or territory laws to avoid any legal repercussions.

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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.