Fair Work (State Declarations - employer not to be national system employer) Endorsement 2014 (No. 1)

Overview

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2014 (No.1) was enacted to provide a mechanism for States and Territories to declare certain employers as not being national system employers under the Fair Work Act 2009. This Endorsement was introduced to address a specific gap identified by the Parliaments of Victoria, South Australia, Tasmania, Queensland, and New South Wales, which referred their powers to the Commonwealth Parliament to extend the Fair Work Act to employers and employees in their respective states that were not already covered by the Act. The Endorsement allows for the exclusion of certain entities from the national workplace relations system, ensuring that they are instead regulated by state or territory laws. This is particularly important for entities integral to state, territory, and local government administration, where state or territory regulation may be deemed more appropriate. The Endorsement requires a written declaration by the relevant state or territory authority, followed by endorsement from the Minister administering the Fair Work Act, to come into effect. This process ensures that the exclusion of an employer from the national system is carefully considered and endorsed by the Commonwealth. The policy objective is to provide a clear and formalised process for states and territories to manage their own workplace relations laws while maintaining the overarching national framework provided by the Fair Work Act. This Endorsement aims to strike a balance between national consistency and state or territory autonomy in regulating workplace relations.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2014 (No. 1) is a legislative instrument under the Fair Work Act 2009 that specifies certain employers in Queensland as not being national system employers for the purposes of the Act. The endorsement applies to employers that are established for a public purpose by or under a law of a State or Territory, or are entities established for a local government purpose by or under a law of a State or Territory, or wholly-owned or controlled by such entities. The endorsement operates to exclude the specified employers and their employees from the coverage of the Fair Work Act, subjecting them instead to the workplace relations arrangements prescribed by Queensland. However, the Act's provisions related to unlawful termination of employment, notice of termination and parental leave will still apply to these employers and employees. The endorsement is not subject to disallowance or sunsetting provisions of the Legislative Instruments Act 2003. The endorsement is effective for the employer specified in Part 1 of Schedule 1, which sets out the relevant Queensland law, the name of the employer, and the date of effect of the endorsement. The endorsement is endorsed by the Minister administering the Fair Work Act, and the effect of the endorsement is that the specified employer will not be subject to the Fair Work Act, and their employees will not be national system employees. 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.

Key Provisions

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2014 (No.1) operates under the provisions of the Fair Work Act 2009. Section 14 of the Fair Work Act allows for certain employers to be excluded from the definition of a national system employer, meaning they are not subject to the national workplace relations framework. Specifically, this endorsement allows employers declared by a State or Territory to be excluded from the national system if endorsed by the Minister for Employment (subsection 14(2)). The declaration must specify the employer, and the endorsement by the Minister must be in force for the exclusion to be effective. The endorsement imposes obligations on the relevant State or Territory governments to make declarations concerning employers they deem should not be part of the national system. The Fair Work Act outlines specific criteria for these employers, such as being a body established for a public or local government purpose (subsection 14(2)). Additionally, the endorsement ensures that certain employers, such as those involved in critical utilities or higher education, are ineligible for exclusion (subsections 14(6) and 14(7)). The endorsement also mandates that once an employer is excluded, they will be governed by the workplace relations arrangements prescribed by the relevant State or Territory, rather than the national system. Breaches of the Fair Work Act, including non-compliance with the provisions of this endorsement, can lead to various consequences. While the endorsement itself does not specify particular offences or penalties, the overarching Fair Work Act outlines potential penalties. For example, serious breaches of the Act can lead to civil penalties under Division 4 of Part 1-4, with maximum penalties depending on the nature and severity of the breach. Additionally, criminal penalties may apply for more egregious violations, with fines and imprisonment possible for individuals and corporations found guilty of serious offences. The endorsement is effective from 13 June 2014 and provides a clear framework for excluding certain employers from the national workplace relations system, subject to the Minister's endorsement. This mechanism allows for tailored workplace relations arrangements that consider the unique needs of specific public and local government entities while ensuring that critical service providers remain under the national system.