Fair Work (State Declarations - employer not to be national system employer) Endorsement 2012 (No. 1)

Administered by Department of Employment and Workplace Relations

Legislation au F2012L01606 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Employment and Workplace Relations

 

Fair Work Act 2009

Section 14

 

Fair Work (State Declarations — employer not to be national system employer) Endorsement 2012 (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 an entity that is wholly-owned or controlled by 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)) established under a law of a State or Territory.

 

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, notice of termination 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 2012 (No.1).  The Endorsement commences on 1 August 2012 (item 2).  A reference to the Act in the Endorsement is a reference to the Fair Work Act (item 3).

 

Item 4 endorses a Regulation that has been made under the Local Government Act 1999 (SA) which has the effect of declaring that the Adelaide Central Market Authority is not a national system employer for the purposes of the Fair Work Act.  Schedule 3 of the Local Government (General) Regulation 1999 (SA) lists the Adelaide Central Market Authority as a local government sector employer that is declared not to be a national system employer under subsection 302A(1) of the Local Government Act 1999 (SA).

 

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 2012 (No.1) was enacted to address the issue of determining which employers and employees fall under the national workplace relations system established by the Fair Work Act 2009. This legislation was introduced to clarify the scope of the Fair Work Act by allowing states and territories to declare certain employers that should not be considered as national system employers, thereby exempting them from the national workplace relations framework. This endorsement was passed by the Commonwealth Parliament and endorsed by the Minister for Employment and Workplace Relations. The policy objective of the endorsement is to ensure that certain public and local government employers, which are integral to state and territory administration, are appropriately regulated by state and territory laws rather than the federal system, while still maintaining national coverage for specific employment protections such as those related to unlawful termination of employment, notice of termination, and parental leave.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2012 (No.1) pertains to the Fair Work Act 2009, which establishes the national workplace relations framework. This Endorsement serves to exclude specific employers from being classified as national system employers, thereby exempting them from the scope of the Fair Work Act. The Act applies to employers who are not national system employers, which include entities established for public or local government purposes by or under a state or territory law, provided they do not operate in electricity, gas, water supply, rail, or port services, and are not Australian universities as defined under the Higher Education Support Act 2003. These employers, once declared by a state or territory and endorsed by the Minister for Employment and Workplace Relations, will be governed by state or territory workplace relations laws rather than the national system. Employees of these employers will also not be considered national system employees, but they remain subject to national provisions concerning unlawful termination of employment, notice of termination, and parental leave. The Endorsement came into effect on 1 August 2012 and endorses a specific regulation under the Local Government Act 1999 (SA) that exempts the Adelaide Central Market Authority from being a national system employer.

Key Provisions

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2012 (No. 1) plays a crucial role within the Fair Work Act 2009 by specifying certain employers that are excluded from being classified as national system employers under the Act. This exclusion is pivotal because it delineates which employers are not subject to the national workplace relations system and, instead, are regulated under state or territory laws. Specifically, section 14(2) of the Fair Work Act allows for a declaration by a state or territory that certain employers should not be considered national system employers. For this declaration to be effective, it must be endorsed by the Minister administering the Fair Work Act. The endorsement process, as outlined in the endorsement, specifies that certain public and local government entities can be excluded from the national system if they are established for public or local government purposes. However, there are significant exclusions, such as employers involved in the generation or distribution of electricity, gas, or water, or those operating rail services or ports, which cannot be excluded under this mechanism (subsection 14(6)). Furthermore, Australian universities established under state or territory laws are also ineligible for exclusion (subsection 14(7)). Entities governed by this endorsement are exempt from the broad provisions of the Fair Work Act, but they are still subject to specific national regulations concerning unlawful termination of employment, notice of termination, and parental leave. This means that while most aspects of workplace relations for these employers are governed by state or territory laws, certain fundamental protections and obligations under the Fair Work Act remain applicable. In terms of compliance, employers who are subject to this endorsement must ensure that their employment practices align with both the state or territory laws and any applicable national provisions. Failure to adhere to these requirements could result in legal repercussions, including potential penalties for non-compliance with either state/territory regulations or the specific national provisions that continue to apply. The precise penalties would depend on the nature and severity of the breach, as determined under the relevant state or territory laws.

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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.