EXPLANATORY STATEMENT
Issued by authority of the Minister for Employment and Workplace Relations
Fair Work Act 2009
Section 14
Fair Work (State Declarations — Employer Not To Be National System Employer) Endorsement (No. 1) 2026
The Fair Work (State Declarations – Employer Not To Be National System Employer) Endorsement (No. 1) 2026 (the endorsement) is made under paragraph 14(4)(a) of the Fair Work Act 2009 (Fair Work Act), and endorses a declaration made under subsection 28(5) of the Northern Parklands Act 2025 (SA) that the Northern Parklands Trust (the declared employer) is not a national system employer. The endorsement will commence on the day after it is registered on the Federal Register of Legislation.
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).
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 and a written endorsement 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 the States and Territories.
A State or Territory 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 a wholly owned subsidiary of 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 Northern Parklands Trust is a statutory trust and body corporate established under the Northern Parklands Act 2025 (SA). It was established for a public purpose, namely to be responsible for the care, control and management of the area of land established as the Northern Parklands in South Australia. Under the Northern Parklands Trust Act 2025 (SA), its functions include administering and developing the Northern Parklands in accordance with long-term strategic and annual business plans as a sporting, cultural and recreational complex of State-wide significance and as a tourist attraction and resort.
The effect of the endorsement is that the declared employer will not generally be subject to the Fair Work Act and will instead be subject to the workplace relations arrangements under South Australian laws. The endorsement has the effect that the declared 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, some parts of the Fair Work Act, including Parts 6-3 and 6-4 (which relate to unlawful termination of employment, notice of termination, parental leave and paid family and domestic violence leave), apply to all employers and employees, and will continue to apply.
The endorsement is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act) but is not subject to disallowance or sunsetting under that Act (subsection 14(5) of the Fair Work Act and item 27 in the table in s 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (2015 Regulation)). The Explanatory Memorandum to the Fair Work Amendment (State Referrals and Other Measures) Bill 2009 explains that the instrument is not subject to disallowance and sunsetting to ensure certainty of rights and entitlements for the employers and employees that will be subject to exclusion.
The Explanatory Statement to the 2015 Regulation similarly outlines the objective behind the exemption of instruments made under subsection 14(4) of the Fair Work Act from sunsetting, including that it ‘is designed to ensure certainty for the employment arrangements that apply to the relevant State or Territory employers and employees’ and that such instruments are ‘enduring and not appropriate for sunsetting’.