Fair Work (State Declarations - employers not to be national system employers) Endorsement 2009

Administered by Department of Employment and Workplace Relations

Legislation au F2009L04697 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Employment and Workplace Relations

 

Fair Work Act 2009

Section 14

 

Fair Work (State Declarations — employers not to be national system employers) Endorsement 2009

 

 

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 have 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, 30M and 30D, 30N of the Fair Work Act).

 

Certain entities are integral to State, Territory and local government administration.  The employment relationships of these entities may be appropriately regulated by States and Territories for this reason.  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 Commonwealth ministerial endorsement) 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 a wholly-owned or wholly controlled subsidiary of 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 (subsection 14(7)).

 

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 also 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 and parental leave and which apply to employers and employees nationally, will continue to apply.

 

Item 1 sets out the name of the Endorsement as the Fair Work (State Declarations — employers not to be national system employers) Endorsement 2009.  The Endorsement commences on 1 January 2010 (item 2).  A reference to the Act in the Endorsement is a reference to the Fair Work Act (item 3).

 

Item 4 endorses declarations that have been made or that are to be made by or under laws of the States of New South Wales, Queensland and South Australia that the employers mentioned in Parts 1, 2 and 3 (respectively) of Schedule 1 to the Endorsement are not to be national system employers for the purposes of the Fair Work Act.  Parts 1, 2 and 3 of Schedule 1 set out the laws of each of these States by or under which declarations have been or are to be made, the name of each declared employer and the date of effect of the Endorsement.

 

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 — employers not to be national system employers) Endorsement 2009, enacted to address the problem of excluding certain employers from the national workplace relations system governed by the Fair Work Act 2009, was introduced by the Commonwealth Parliament. This endorsement was necessitated by the referrals of power by the Parliaments of Victoria, South Australia, Tasmania, Queensland, and New South Wales to extend the Act to employers and their employees in these states that were not already covered by sections 13 and 14 of the Fair Work Act. The policy objective of the endorsement is to allow states and territories to declare, subject to ministerial endorsement, that certain employers over which the Commonwealth would otherwise have jurisdiction are not national system employers. This ensures that certain entities integral to state, territory, and local government administration remain appropriately regulated by the states and territories rather than the national system. The endorsement provides a mechanism for these employers to be excluded from the national workplace relations system and instead be subject to the workplace relations arrangements prescribed by the relevant state or territory.

Scope and Application

The Fair Work (State Declarations — employers not to be national system employers) Endorsement 2009 applies to the Fair Work Act 2009, which establishes the workplace relations framework for national system employers and employees. The endorsement specifies that certain employers, as declared by the states of New South Wales, Queensland, and South Australia and endorsed by the Minister for Employment and Workplace Relations, will not be considered national system employers under the Fair Work Act. This means that these employers will not be subject to the Act and will instead be governed by the workplace relations arrangements prescribed by the relevant state. Correspondingly, employees of these employers will not be considered national system employees, although specific provisions of the Fair Work Act relating to unlawful termination of employment and parental leave will continue to apply to these employers and employees. The endorsement excludes certain types of employers, such as those generating or supplying electricity, gas, or water, or operating a rail service or port, as well as Australian universities. The endorsement came into effect on 1 January 2010 and is a legislative instrument under the Legislative Instruments Act 2003, but it is not subject to disallowance or sunsetting provisions.

Key Provisions

The Fair Work (State Declarations — employers not to be national system employers) Endorsement 2009 (subsection 14(2)) outlines the specific employers that are exempt from being classified as national system employers under the Fair Work Act 2009. This endorsement, which came into effect on 1 January 2010, allows certain employers that would otherwise fall under the national system to be excluded from the Commonwealth's workplace relations framework, instead being regulated by the relevant State or Territory laws. The endorsement is triggered by a declaration made by a State or Territory government, but it requires written endorsement from the Minister administering the Fair Work Act to be effective. Under the endorsement, the exemption applies to employers established for public or local government purposes, provided they do not engage in certain activities such as electricity, gas, water supply, or rail and port operations. Australian universities are also excluded from the endorsement. Once endorsed, these employers and their employees are no longer subject to the Fair Work Act, except for provisions related to unlawful termination of employment and parental leave, which continue to apply nationwide. The endorsement imposes specific obligations on the relevant State or Territory governments to ensure that any declaration made under this endorsement adheres to the criteria set out in the Fair Work Act. This includes ensuring that the employer is established for a public or local government purpose, and does not engage in the prohibited activities. Additionally, the endorsement requires the Minister's written endorsement to be in force for the declaration to take effect. Breaches of the endorsement requirements may lead to civil or criminal consequences, depending on the nature and severity of the breach. While the Fair Work Act does not explicitly state maximum penalties for breaches of the endorsement, breaches of other sections of the Act can result in substantial fines and, in some cases, imprisonment. The specific consequences would depend on the nature of the breach and the provisions of the Fair Work Act that are contravened.

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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.