Fair Work (State Declarations — employer not to be national system employer) Endorsement 2018 (No. 1)

Administered by Department of Employment and Workplace Relations

Legislation au F2018L00945 In force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Minister for Small and Family Business, the Workplace and Deregulation

Fair Work Act 2009

Section 14

Fair Work (State Declarations — employer not to be national system employer) Endorsement 2018 (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 2018 (No. 1) (the Endorsement). The Endorsement endorses a declaration made under the Industrial Relations Act 1996 (NSW) that the 11 named New South Wales Joint Organisations are not national system employers. The Endorsement commences on 1 July 2018.

The Endorsement is a legislative instrument for the purposes of the Legislation 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 2018 (No. 1) was enacted to address a gap in the workplace relations framework, ensuring that certain employers are excluded from the federal system under the Fair Work Act 2009. The endorsement was introduced by the Commonwealth Parliament, acting on referrals of power from the Parliaments of Victoria, South Australia, Tasmania, Queensland, and New South Wales. The policy objective is to allow States and Territories to manage their own workplace relations arrangements for specific employers, excluding them from the federal system while still ensuring that protections such as those related to unlawful termination of employment, notice of termination, and parental leave continue to apply. The endorsement specifically endorses a declaration made under the Industrial Relations Act 1996 (NSW) that excludes 11 named New South Wales Joint Organisations from being considered national system employers, thereby subjecting them to State workplace relations arrangements rather than the federal system.

Scope and Application

The Fair Work (State Declarations – employer not to be national system employer) Endorsement 2018 (No. 1) applies to specific entities within New South Wales that are declared by the state not to be considered national system employers under the Fair Work Act 2009. This endorsement follows a declaration made under the Industrial Relations Act 1996 (NSW) concerning the 11 named New South Wales Joint Organisations. These organisations, by virtue of the endorsement, are exempted from the national workplace relations framework provided by the Fair Work Act, and their employees are correspondingly excluded from the category of national system employees. Consequently, these employers and their employees will be subject to the workplace relations arrangements prescribed by New South Wales rather than the federal system. Despite this exemption, certain protections under the Fair Work Act, such as those related to unlawful termination of employment, notice of termination, and parental leave, continue to apply universally to all employers and employees. This endorsement exemplifies the interplay between state and federal workplace relations laws, illustrating how state declarations can alter the jurisdictional scope of the Fair Work Act while preserving specific federal protections.

Key Provisions

The main sections of the Fair Work (State Declarations – employer not to be national system employer) Endorsement 2018 (No. 1) concern the exclusion of certain employers from the scope of the Fair Work Act 2009, making them subject to state or territory regulations instead. Section 1 of the Endorsement specifies the employers who are excluded from being national system employers under the Fair Work Act, namely the 11 named New South Wales Joint Organisations. Section 2 provides that the endorsement will apply from 1 July 2018, and Section 3 clarifies that although these employers are not subject to the Fair Work Act, they are still subject to certain provisions concerning unlawful termination, notice of termination, and parental leave. The obligations imposed by this Act on the specified employers include adherence to the workplace relations arrangements set out by the relevant state or territory instead of the federal Fair Work Act. These employers must comply with the state or territory regulations that govern their employment practices, including those related to wages, conditions of employment, and dispute resolution mechanisms. They are required to ensure that their employees are informed of the different rights and protections that apply to them, given that they are not covered by the federal act. Additionally, these employers must maintain records and documentation as required by state or territory laws to demonstrate compliance. Failure to comply with the state or territory regulations may result in legal consequences. Employers who do not adhere to the specified workplace relations arrangements could face fines, penalties, or other sanctions as prescribed by state or territory laws. Although the specific penalties vary depending on the jurisdiction, they could include monetary fines, enforcement actions, or even criminal charges in severe cases. Additionally, employees who are aggrieved by their employer's failure to comply with state or territory regulations may have the right to seek redress through state or territory industrial relations tribunals or courts. The consequences for non-compliance are designed to ensure that these employers provide a fair and equitable workplace for their employees, even though they are not subject to the federal Fair Work Act.

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Employment & Labour Law
Instrument
Endorsement
Concepts
Commencement Provisions
Exemptions & Exclusions
Reporting & Disclosure Obligations

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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.