Fair Work (State Declarations - employer not to be national system employer) Endorsement 2013 (No. 2)

Administered by Department of Employment and Workplace Relations

Legislation au F2013L01507 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 2013 (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 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 2013 (No.2).  The Endorsement commences on 1 October 2013. 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 Regulation 2011 (Qld) which has the effect of declaring that Trade and Investment Queensland is not a national system employer for the purposes of the Fair Work Act.  Section 116 of the Revenue Amendment and Trade and Investment Queensland Act 2013 (Qld) lists Trade and Investment Queensland as an employer that is declared not to be a national system for the purposes of subsection 692(3) of the Industrial Relations Act 1999 (Qld).

 

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 2013 (No. 2) was enacted to address the issue of certain employers being subject to the Commonwealth's workplace relations framework, the Fair Work Act 2009, despite the intent that these employers be regulated by State or Territory laws. This Endorsement was introduced by the Minister for Employment and Workplace Relations, providing a mechanism for States and Territories to declare that specific employers should not be considered national system employers under the Fair Work Act, thereby allowing them to be governed by their respective workplace relations laws. The Endorsement, which commenced on 1 October 2013, applies to employers established for public or local government purposes but excludes those involved in critical utilities and services such as electricity, gas, water, rail, and port operations, as well as Australian universities. The policy objective is to ensure that certain entities integral to State and Territory administrations are regulated by the appropriate jurisdiction, thereby maintaining a balance between national and subnational regulatory frameworks.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2013 (No.2) applies to employers specified under state or territory laws that are not considered national system employers under the Fair Work Act 2009. This endorsement extends to employers established for public or local government purposes by or under a state or territory law, excluding entities involved in certain utilities and services such as electricity, gas, water supply, rail services, and ports, as well as Australian universities established under state or territory law. The endorsement becomes effective upon endorsement by the Commonwealth Minister and ensures that these employers, and their employees, are subject to state or territory workplace relations arrangements rather than the national system. It also specifies that while these employers and their employees are exempt from the majority of the Fair Work Act, they remain subject to national provisions concerning unlawful termination of employment, notice of termination, and parental leave. This legislative instrument, effective from 1 October 2013, operates under the Fair Work Act and is recognised as a legislative instrument under the Legislative Instruments Act 2003, though it is exempt from disallowance or sunsetting provisions outlined in that Act.

Key Provisions

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2013 (No.2) primarily operates under the Fair Work Act 2009, extending the definition of national system employers and employees to include certain employers and employees in Victoria, South Australia, Tasmania, Queensland, and New South Wales. The endorsement clarifies that specific employers can be excluded from the national system, thereby allowing these states to regulate their workplace relations independently. Under section 14(2) of the Fair Work Act, a state or territory law can declare an employer not to be a national system employer, provided a written endorsement by the Minister for Employment and Workplace Relations is in force. The endorsement specifies which entities are eligible for such declarations, excluding certain employers involved in utilities and local government services, as well as Australian universities. The endorsement imposes specific obligations on the entities it governs. For instance, it requires state and territory laws to specify the employer that is not to be a national system employer. Additionally, it mandates that the Minister for Employment and Workplace Relations must provide a written endorsement for such declarations to take effect. This endorsement ensures that the excluded employers are subject to state or territory workplace relations arrangements rather than the federal Fair Work Act. However, it is important to note that certain federal protections, such as those related to unlawful termination of employment, notice of termination, and parental leave, continue to apply under Parts 6-3 and 6-4 of the Fair Work Act. The endorsement does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches. However, under the Fair Work Act, breaches of workplace relations laws can lead to various consequences, including financial penalties. For example, under section 546 of the Fair Work Act, an employer who fails to comply with an order or direction of the Fair Work Commission can face a pecuniary penalty of up to $21,000 for a corporation and up to $4,200 for an individual, depending on the nature and severity of the breach. Additionally, civil and criminal penalties can apply for more serious breaches, including fines and imprisonment. The Fair Work Regulations 2009 further detail specific penalties for various contraventions, ensuring that employers and employees alike are aware of the potential consequences of non-compliance.

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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.