Fair Work (State Declarations — employer not to be national system employer) Endorsement 2016 (No. 1)

Administered by Department of Employment and Workplace Relations

Legislation au F2016L00085 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Employment

 

Fair Work Act 2009

Section 14

 

Fair Work (State Declarations — employer not to be national system employer) Endorsement 2016 (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, 30D, 30M and 30N of the Fair Work Act).

 

Certain entities are integral to State, Territory and local government administration and the employment relationships of these entities may be appropriately regulated by States and Territories. 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 established under a law of a State or Territory (subsection 14(7) of the Fair Work Act).

 

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 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 all employers and employees will continue to apply.

 

The name of this endorsement is the Fair Work (State Declarations – employer not to be national system employer) Endorsement 2016 (No. 1). The Endorsement endorses a declaration made under the Industrial Relations Regulation 2011 (Qld) that the Queensland Productivity Commission is not a national system employer. The Endorsement commences on 8 February 2016.

 

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 2016 (No. 1) was enacted to address the specific workplace relations arrangements required for certain employers in Queensland, as referred by the Queensland Parliament under the Fair Work Act 2009. The endorsement allows for certain employers, such as the Queensland Productivity Commission, to be excluded from the national workplace relations system, thereby subjecting them to Queensland-specific workplace laws. This endorsement was made under the authority of the Minister for Employment and is intended to ensure that particular entities integral to state government administration are regulated according to state laws rather than the national system. The policy objective is to provide flexibility in workplace relations regulation, ensuring that entities crucial to state governance can operate under state-specific employment laws, while still maintaining certain federal protections such as those related to unlawful termination, notice of termination, and parental leave.

Scope and Application

The Fair Work (State Declarations — employer not to be national system employer) Endorsement 2016 (No. 1) applies to the Fair Work Act 2009 and extends its scope to include employers and employees in certain states that are not already covered under the Act. Specifically, this Endorsement endorses a declaration made under the Industrial Relations Regulation 2011 (Qld) that excludes the Queensland Productivity Commission from being a national system employer. The endorsement came into effect on 8 February 2016 and has the effect that the specified employer, in this case, the Queensland Productivity Commission, will not be subject to the Fair Work Act and will instead be subject to the workplace relations arrangements prescribed by Queensland. It is important to note that while the majority of the Fair Work Act will not apply to the endorsed employer, Parts 6-3 and 6-4 of the Act, which relate to unlawful termination of employment, notice of termination, and parental leave, will continue to apply to all employers and 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 2016 (No. 1) endorses a declaration made under the Industrial Relations Regulation 2011 (Qld) that the Queensland Productivity Commission is not a national system employer. This endorsement is grounded in section 14 of the Fair Work Act 2009, which allows for the exclusion of certain employers from the scope of the Act based on declarations made by the relevant State or Territory. The endorsement effectively removes the Queensland Productivity Commission from the jurisdiction of the Fair Work Act, meaning that it is not subject to the provisions that govern national system employers and employees. Instead, the Commission and its employees are subject to the workplace relations arrangements prescribed by Queensland. The Fair Work Act 2009 imposes certain obligations on parties involved in workplace relations. Employers that fall within the definition of a national system employer must adhere to the Act's provisions, which include matters such as minimum wages, workplace rights, and dispute resolution processes. However, for employers declared as not being national system employers, the obligations shift to the State or Territory regulations under which these employers operate. It is essential for employers to correctly identify their status under the Act to ensure compliance with the appropriate legislative framework. Breaching the provisions of the Fair Work Act 2009 can result in both civil and criminal consequences, depending on the nature and severity of the breach. Civil penalties can include fines for individuals and corporations, with the maximum penalty varying based on the specific breach. For example, serious breaches may result in fines of up to $21,000 for individuals and $105,000 for corporations. Additionally, criminal penalties can apply for more egregious violations, which may include imprisonment terms for individuals. The specific penalties are outlined in the Fair Work Act and can vary based on the specific provision breached and the circumstances of the case.

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Endorsement
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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.