Fair Work (State Declarations - employer not to be national system employer) Endorsement 2015 (No. 2)

Overview

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2015 (No. 2) was introduced to address the legislative gap in the Fair Work Act 2009, which was enacted to establish a national workplace relations system but allowed states to refer powers to the Commonwealth Parliament to extend its coverage. This particular endorsement, issued by the authority of the Minister for Employment, aims to provide a mechanism for states to declare certain employers, which would otherwise fall under the national system, not to be national system employers. The endorsement process, as stipulated in subsection 14(2) of the Fair Work Act, allows a state or territory to declare an employer not to be a national system employer if the employer is established for a public or local government purpose and is not involved in activities such as electricity, gas, water, rail, or port services, nor is it an Australian university. The endorsement by the Minister ensures that these employers are governed by state or territory workplace relations arrangements rather than the Fair Work Act, except for provisions relating to unlawful termination of employment, notice of termination, and parental leave, which continue to apply. This endorsement was issued under the authority of the Minister for Employment and aims to streamline the regulation of workplace relations by allowing states to manage certain employers directly.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2015 (No. 2) pertains to the Fair Work Act 2009, which outlines the workplace relations framework for national system employers and employees. This endorsement specifically addresses the exclusion of certain employers from being classified as national system employers under state declarations, thereby exempting them from the application of the Fair Work Act. The Act applies to employers that are not national system employers as specified by a state or territory declaration and endorsed by the Commonwealth Minister. The scope of this endorsement includes bodies established for public or local government purposes by state or territory laws, excluding those involved in electricity, gas, water supply, rail services, ports, or Australian universities as defined under the Higher Education Support Act 2003. This endorsement does not apply to employers involved in critical infrastructure services or educational institutions. The geographic reach of this endorsement is limited to the states and territories that have referred power to the Commonwealth Parliament under the Fair Work Act. The endorsement is a legislative instrument but does not fall under the disallowance or sunsetting provisions of the Legislative Instruments Act 2003.

Key Provisions

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2015 (No. 2) amends the Fair Work Act 2009 to exclude certain employers from being classified as national system employers under the Act. Specifically, the endorsement endorses a declaration made under the Building Queensland Act 2015 (Qld) that Building Queensland is not a national system employer. This means that Building Queensland and its employees will not be subject to the Fair Work Act, but will instead be governed by the workplace relations arrangements prescribed by Queensland. The endorsement comes into effect immediately after the commencement of section 68 of the Building Queensland Act 2015 (Qld) (subsection 14(5) of the Fair Work Act). Under the Fair Work Act 2009, national system employers are defined as any employer that falls within certain categories, including constitutional corporations, the Commonwealth or a Commonwealth authority, and employers of flight crew officers, maritime employees or waterside workers in connection with constitutional trade or commerce. National system employees are employees of these national system employers. However, 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 of the Act. 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. 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. In order for a State or Territory declaration to be effective, it must 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. The employer must be 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. Additionally, the employer cannot be an employer that generates, supplies or distributes electricity; supplies or distributes gas; provides services for the supply, distribution or release of water; operates a rail service or a port; or is an Australian university within the meaning of the Higher Education Support Act 2003 established under a law of a State or Territory (subsection 14(6) and (7) of the Fair Work Act). The endorsement has significant implications for Building Queensland and its employees, as they will no longer be subject to the Fair Work Act and will instead be governed by Queensland workplace relations arrangements. However, it is important to note that 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 all employers and employees, will continue to apply. Additionally, 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).