Fair Work (State Declarations — employers not to be national system employers) Endorsement 2022 (No. 1)

Overview

The Fair Work (State Declarations – employers not to be national system employers) Endorsement 2022 (No. 1) was enacted by the Minister for Employment and Workplace Relations under paragraph 14(4)(a) of the Fair Work Act 2009. This Endorsement recognises certain Western Australian local government employers and regional local government employers as not being national system employers, thereby endorsing a declaration made under the Industrial Relations (General) Regulations 1997 (WA). The problem this measure addresses is the need to clarify the scope of the Fair Work Act by excluding certain local government employers from its purview, ensuring these entities are regulated under Western Australian laws rather than the national framework. The policy objective behind this Endorsement is to provide certainty and stability in employment arrangements for these specific employers and their employees, in line with state-specific governance and regulatory frameworks.

Scope and Application

The Fair Work (State Declarations – employers not to be national system employers) Endorsement 2022 (No. 1) applies to the named local government employers in Western Australia, recognising them as entities integral to state and local government administration. These employers, established under the Local Government Act 1995 (WA), are not considered national system employers under the Fair Work Act 2009. This exclusion acknowledges that their employment relationships are best regulated by state laws rather than the national system. As such, these employers and their employees will not generally be subject to the provisions of the Fair Work Act, but will instead be governed by Western Australian workplace relations laws. However, it is important to note that certain protections under the Fair Work Act, specifically those relating to unlawful termination of employment, notice of termination, and parental leave, will still apply to these employers and their employees. This ensures that fundamental employee rights are upheld while allowing for state-specific regulation of local government employment arrangements.

Key Provisions

The Fair Work (State Declarations — employers not to be national system employers) Endorsement 2022 (No. 1) (the Endorsement) is a legislative instrument made under the Fair Work Act 2009 (Fair Work Act) that endorses a declaration under the Industrial Relations (General) Regulations 1997 (WA). This Endorsement, which commences on 1 January 2023, effectively declares that certain Western Australian local government employers and regional local government employers (the declared employers) are not to be considered national system employers under the Fair Work Act. This means that these employers will not be subject to the federal workplace relations framework, but rather to the workplace relations arrangements under Western Australian laws. Under the Fair Work Act, a national system employer includes constitutional corporations, the Commonwealth, certain Commonwealth authorities, and other specified entities (section 14). However, a particular employer is not a national system employer if there is a State declaration to that effect and a written endorsement by the Minister is in force (subsection 14(2)). This Endorsement applies to employers established for a local government purpose by or under a State law, specifically Western Australian local governments and regional local governments, as established under the Local Government Act 1995 (WA). Importantly, the Endorsement excludes certain types of employers, such as those involved in electricity, gas, water supply, rail services, or ports, and Australian universities (subsections 14(6) and 14(7)). The obligations and requirements imposed by the Endorsement primarily concern the exclusion of the declared employers from being classified as national system employers under the Fair Work Act. This exclusion means that these employers will not be subject to the national workplace relations framework, but instead will be governed by Western Australian workplace relations laws. However, it is important to note that certain provisions of the Fair Work Act, such as those relating to unlawful termination of employment, notice of termination, and parental leave, will still apply to these employers and their employees (Parts 6-3 and 6-4 of the Fair Work Act). There are no specific offences, penalties, or civil/criminal consequences outlined in the Endorsement for non-compliance, as the primary effect of the Endorsement is to clarify the applicability of the Fair Work Act to the declared employers. However, any breach of Western Australian workplace relations laws applicable to these employers may result in civil or criminal consequences under those laws. The Endorsement itself is a legislative instrument for the purposes of the Legislation Act 2003 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 section 12 of the Legislation (Exemption and Other Matters) Regulation 2015). The Explanatory Statement to the 2015 Regulation indicates that this exemption is designed to ensure certainty for the employment arrangements that apply to the relevant State or Territory employers and employees.