EXPLANATORY STATEMENT
Issued by authority of the Minister for Jobs and Industrial Relations
Fair Work Act 2009
Section 14
Fair Work (State Declarations — employer not to be national system employer) Endorsement 2019 (No. 1)
The Fair Work (State Declarations – employer not to be national system employer) Endorsement 2019 (No. 1) (the Endorsement) is made under paragraph 14(4)(a) of the Fair Work Act 2009 (Fair Work Act), and endorses a declaration made under the Industrial Relations Act 1996 (NSW) that the Far North West Joint Organisation and the Far South West Joint Organisation (the two Joint Organisations) are not national system employers. The Endorsement commences on 1 March 2019.
The Fair Work Act sets out the workplace relations framework for national system employers and national system employees. Subsection 14(2) of the Fair Work Act provides that a particular employer is not a national system employer if:
- the employer 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; and
- the employer is declared by or under a law of a State or Territory not to be a national system employer; and
- a written endorsement under paragraph 14(4)(a) of the Fair Work Act made by the Minister administering the Fair Work Act is in force in relation to the employer.
This recognises that 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.
The two Joint Organisations were established by proclamation under the Local Government Act 1993 (NSW) on 4 July 2018 (that came into effect on 6 July 2018).
The effect of the Endorsement is that, from its commencement, the two Joint Organisations will not be national system employers and will not generally be subject to the Fair Work Act. The two Joint Organisations will instead be subject to the workplace relations arrangements under New South Wales State laws. 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 to the two Joint Organisations.
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 2019 (No. 1) was enacted to address the need for certain public sector employers to be exempt from the national workplace relations system as outlined in the Fair Work Act 2009. This endorsement was made under the authority of the Minister for Jobs and Industrial Relations, reflecting a policy objective to recognise that certain entities integral to State and local government administration should be regulated by state laws rather than the federal Fair Work Act. The endorsement specifically endorses declarations under the Industrial Relations Act 1996 (NSW) that declare the Far North West Joint Organisation and the Far South West Joint Organisation as not being national system employers. By endorsing these declarations, the two Joint Organisations are exempt from the federal workplace relations framework, although they remain subject to specific provisions of the Fair Work Act related to unlawful termination of employment, notice of termination, and parental leave. The endorsement came into effect on 1 March 2019, aligning with the operational commencement of the two Joint Organisations under the Local Government Act 1993 (NSW).
Scope and Application
The Fair Work (State Declarations – employer not to be national system employer) Endorsement 2019 (No. 1) is a legislative instrument that endorses a declaration under the Industrial Relations Act 1996 (NSW) regarding the Far North West Joint Organisation and the Far South West Joint Organisation, specifying that these two Joint Organisations are not to be considered national system employers under the Fair Work Act 2009. This endorsement ensures that these entities, established for local government purposes under the Local Government Act 1993 (NSW), are exempt from the national workplace relations framework and are instead subject to New South Wales State laws. It recognises the importance of these entities in state and local government administration and supports the appropriate regulation of their employment relationships by the State. The endorsement came into effect on 1 March 2019, and while the Joint Organisations are exempt from most provisions of the Fair Work Act, they remain subject to certain provisions such as those related to unlawful termination of employment, notice of termination, and parental leave.
Key Provisions
The main operative sections of the Fair Work (State Declarations — employer not to be national system employer) Endorsement 2019 (No. 1) include sections that endorse the declaration made under the Industrial Relations Act 1996 (NSW) (section 2). This endorsement specifically identifies the Far North West Joint Organisation and the Far South West Joint Organisation as entities that are not to be considered national system employers under the Fair Work Act 2009. This means that, effective from 1 March 2019, these two Joint Organisations are exempted from the federal workplace relations framework and will instead be governed by New South Wales state laws.
The obligations and requirements imposed by this Endorsement primarily concern the status of the two Joint Organisations as employers. They are relieved from the obligations that would typically apply under the Fair Work Act, such as those concerning minimum wages, awards, enterprise agreements, and other employment standards that are part of the national system. However, it is important to note that despite this exemption, the two Joint Organisations remain subject to certain provisions of the Fair Work Act, specifically those related to unlawful termination of employment, notice of termination, and parental leave (sections 6-3 and 6-4 of the Fair Work Act). This ensures that employees of these organisations still have some protections under federal law.
In terms of offences, penalties, or consequences for breach, the Endorsement itself does not explicitly outline specific penalties for non-compliance. However, any breach of the Industrial Relations Act 1996 (NSW) or other relevant state laws by the two Joint Organisations could result in legal consequences under New South Wales legislation. The specific penalties for such breaches would be governed by the state laws applicable to these organisations. Given that the Endorsement does not provide for disallowance or sunsetting under the Legislation Act 2003, it remains in effect unless otherwise amended or repealed by subsequent legislation.