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

The instrument revolves around a small set of legal concepts and mechanisms, all expressed in concentrated statutory language within four short provisions and a long schedule. The primary concepts are endorsement, State declaration, national system employer, and the Schedule as the operative list.

Endorsement, in this instrument, is the federal act of recognising a State-law declaration under paragraph 14(4)(a) of the Fair Work Act 2009. Section 4(1) expressly ties the Endorsement to that paragraph of the Act. The text does not itself define "endorsement" beyond taking this step, but the effect established by the Endorsement is that the State declaration is "endorsed" for the Fair Work Act's purposes. The Endorsement therefore imports an existing State determination into the Commonwealth statutory context.

"State declaration" here is a declaration made "by or under a law of a State" that a particular employer "is not to be a national system employer for the purposes of the Act" (s 4(1) and Schedule 1). The Schedule identifies the State law under which the declaration was made, for example the Industrial Relations Act 1996 for New South Wales items, the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 for Queensland, and various South Australian Acts for items in Part 3. The instrument therefore records the provenance of each declaration, and links it to the State law that produced the declaration.

"National system employer" is a term used but not defined within this instrument. The Endorsement operates by recognising that the listed employers are "not to be" national system employers "for the purposes of the Act" (s 4(1)). The practical effect is that, under the Fair Work Act 2009, the federal recognition that would otherwise attach to being a national system employer is not to apply to those listed employers, from the dates recorded in Schedule 1 (s 4(2)). The instrument does not elaborate the content of that federal recognition, nor does it formally alter State laws; it gives legal effect under the Commonwealth instrument to the State determination.

The Schedule is the central operational vehicle. It is organised in Parts by State and lists each employer by name, the State law cited, and the date of effect of the endorsement. All items in the Schedule show the endorsement taking effect on 1 January 2010. The Schedule includes a mix of local government corporations, statutory authorities, corporations trading under trusteeship or trading names, and other state entities. For practical purposes the Schedule functions as the authoritative roster of the employers recognised by the Commonwealth instrument as being excluded from national system employer status under the Fair Work Act.

Finally, administrative detail: the instrument itself contains a Note reminding that legislative instruments and compilations are registered on the Federal Register of Legislative Instruments, and provides the FRLI web reference. That Note signals that the FRLI is the place to consult for the registered instrument and any compilations or subsequent registration history.

The Endorsement expressly affects the employers listed in Schedule 1. The instrument identifies three groups by Part and State: Part 1 lists employers declared by or under a law of New South Wales, Part 2 lists employers declared by or under a law of Queensland, and Part 3 lists employers declared by or under a law of South Australia (Schedule 1, heading and Parts 1-3). Each item in the Schedule names the specific employer and records the State law relied on and the date on which the endorsement takes effect.

The named employers are varied in form and include local government councils and corporations, statutory authorities, boards, trusts, companies trading under trustee names, and other public entities. Examples taken directly from the Schedule include, for New South Wales, Albury City Council, Bankstown City Council, City of Sydney, Newcastle City Council and many other municipal councils and county councils (Part 1, items 1-175, Industrial Relations Act 1996). Examples from Queensland include Brisbane City Council, Queensland Art Gallery Board of Trustees, Library Board of Queensland, WorkCover Queensland and various local government and cultural entities (Part 2, items 1-57, Fair Work (Commonwealth Powers) and Other Provisions Act 2009). South Australian entries include the Corporation of the City of Adelaide, numerous district councils and regional authorities, and statutory corporations such as the Motor Accident Commission and Lotteries Commission of South Australia (Part 3, items 1-109, various South Australian Acts).

Who pays, and who decides: the Commonwealth Minister made the Endorsement under the Fair Work Act 2009 (header and s 4), but the underlying declarations originate in State law. The effect is that the State law decision,that an employer is not to be a national system employer,is given federal endorsement for the purposes of the Fair Work Act (s 4(1)). Consequently the listed employers are the ones directly affected, because the endorsement changes how the Fair Work Act treats them. The instrument does not address employees by name; however employees of the listed employers will be indirectly affected because the legal status of their employer under the Fair Work Act is altered by the endorsement.

The dates matter: s 4(2) provides that the endorsement takes effect from the date specified in the Schedule item. All Schedule items list the date of effect of endorsement as 1 January 2010. Practitioners advising listed employers, employees, or third parties should therefore note that the federal endorsement in this instrument is stated to operate from that date, and that the Schedule is the operative register of persons whose national-system status under the Fair Work Act is affected by the instrument.

Finally, the instrument’s Note refers practitioners to the Federal Register of Legislative Instruments for registered instruments and compilations. That is the registration point for authoritative versions, and for confirmation whether the instrument has subsequently been compiled, superseded or otherwise altered on the FRLI.

This Endorsement does not itself create new regulatory duties, penalties or rights in the way an Act or a substantive regulation often does. Instead the instrument performs a recognition function: it endorses State-law declarations that certain employers "are not to be a national system employer for the purposes of the Act" (s 4(1)). The immediate legal consequence under the instrument is that, for the purposes of the Fair Work Act 2009, the State declaration about that employer is recognised as endorsed by the Commonwealth and takes effect from the date recorded in the Schedule (s 4(2)). The Endorsement therefore modifies how the Fair Work Act applies, by excluding the listed employers from being national system employers under that federal Act, in accordance with the State declarations.

Because the instrument references the Fair Work Act, the substantive duties, rights, remedies and enforcement mechanisms that attach to being, or not being, a national system employer remain governed by that Act. The Endorsement does not itself enumerate or change those duties or rights. It is an implementing instrument, not a substantive restatement of employment law obligations. Practitioners should therefore treat the instrument as a jurisdictional or status-changing instrument: it changes how the Fair Work Act will characterise the listed employers, and that characterisation in turn determines which duties and rights under the Fair Work Act apply or do not apply to those employers. The Endorsement, as drafted, points back to the Fair Work Act for the content of those consequences.

Who must act: employers listed in Schedule 1 must be aware that they are the subjects of State declarations endorsed by the Commonwealth instrument. The instrument itself imposes no direct new compliance action on those employers beyond being the subject of the endorsement. However, because the endorsement alters the federal statutory status of an employer, employers and their advisers will need to consider the practical compliance consequences under both Commonwealth and State regulatory regimes. That includes reviewing enterprise agreements, award coverage, superannuation and payroll processes, workplace policies, dispute-resolution arrangements and any contractual terms that refer to "national system" coverage, because the question of whether an employer is a national system employer materially affects which statutory provisions and federal workplace instruments apply.

Rights potentially affected: the instrument affects the legal categorisation of employers, which may alter rights and remedies available to parties under the Fair Work Act. For employees, unions, contractors or counter-parties, the endorsed exclusion may alter the forum, the applicable standards and the available federal remedies. The Endorsement does not itself prescribe those altered rights; practitioners must look to the Fair Work Act and the relevant State laws listed in the Schedule for the precise contours of rights and enforcement in each case.

Administrative duty: the instrument’s Note reminds that legislative instruments and compilations are registered on the Federal Register of Legislative Instruments, so parties who need authoritative text or want to check subsequent compilations or registrations should consult the FRLI.

The Endorsement instrument itself does not create criminal offences, civil penalties, or specific enforcement mechanisms. It is an endorsement under the Fair Work Act 2009 that recognises State-law declarations that certain employers are not to be national system employers (s 4(1)). Consequently the instrument modifies how the Fair Work Act treats those employers, but it does not in itself set penalty regimes.

Enforcement and penalties, where relevant, arise from the substantive statutes: the Fair Work Act 2009 for federal workplace obligations, and the State laws cited in the Schedule for State-based obligations. Because the instrument endorses State declarations for the purposes of the Fair Work Act, disputes about the effect of that endorsement, or about which regime applies to a given employment relationship, would be resolved by reference to the Fair Work Act (and its jurisdictional tests and enforcement processes) and the State legislation, rather than by reference to new penalty provisions in the Endorsement instrument.

Practically this means that potential liability for an employer depends on which statutory regime applies to their workplace dealings after the endorsement is taken into account. The instrument’s removal of "national system employer" status for a listed employer alters which provisions of the Fair Work Act, if any, attach to that employer. For example, the Fair Work Act contains enforcement machinery, powers of the Fair Work Ombudsman, civil penalty provisions and remedies for contraventions; whether those mechanisms are engaged in relation to a listed employer will depend on the legal characterisation effected by the State declaration as endorsed here, and on the interplay with State law. The Endorsement does not itself specify which enforcement body will act, nor does it provide a schedule of fines or civil penalties.

The instrument does however create administrative certainty at a federal level about the list of employers whose State declarations are endorsed, and the dates when those endorsements take effect (s 4(2) and Schedule 1). That certainty is relevant to enforcement because it identifies the cohort of employers for whom the Fair Work Act’s national system employer categorisation does not apply, at least according to the federal endorsement. Any enforcement action, or contested litigation, concerning whether an employer is a national system employer will therefore have to account for the existence of this Endorsement and the specific Schedule entries. The instrument’s Note also points to the Federal Register of Legislative Instruments for authoritative registered texts, which is the proper repository to check for the instrument’s formal registration and any subsequent administrative history.

The Endorsement is a connecting statutory item. It operates by recognising State-law declarations for the purposes of the Fair Work Act 2009, thereby creating a cross-jurisdictional interface. Section 4(1) establishes the endorsement-of-State-declarations mechanism "for paragraph 14(4)(a) of the Act", thereby explicitly tying the instrument to the Fair Work Act. Each Schedule item records the State law under which the declaration was made: for New South Wales the Industrial Relations Act 1996 appears as the source of declarations in Part 1; for Queensland the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 is cited in Part 2; for South Australia multiple State Acts are cited in Part 3, including the Local Government Act 1999, Public Corporations Act 1993 and others. The Endorsement therefore documents the State legal provenance of each exclusion.

Because the Endorsement operates "for the purposes of the Act" (s 4(1)), it changes the operation of the Fair Work Act in relation to the listed employers by recognising that, under the relevant State law, the employer "is not to be a national system employer". How this interaction works in practice depends on the substantive content of both the Fair Work Act and the State law declarations, which are not restated in the Endorsement. The Endorsement does not amend the Fair Work Act itself, but it supplies a statutory basis under the Fair Work Act, via the paragraph 14(4)(a) power, to accept State declarations as determinative of national system employer status for specified employers.

The instrument therefore creates a legal bridge. The State law makes a declaration under State procedures; the Commonwealth Endorsement records and adopts that State decision for the purposes of the Fair Work Act. The Schedule records the law relied upon and the employer named, which helps determine the applicable State law that remains relevant to employment relations for that employer. The Endorsement does not extinguish State law; rather it recognises the State law determination and adjusts the Fair Work Act’s application accordingly.

For compliance and dispute-resolution, the interaction means that parties must consider both the Fair Work Act and the State law cited for each employer. The Endorsement places those State-provided exclusions into the federal register of endorsed State declarations. Where a question arises about whether the Fair Work Act applies to a listed employer, the Endorsement is an express federal recognition that may be relied upon. Conversely, for employers not listed, or for claims arising before or after the effective dates recorded in the Schedule, practitioners will need to consult the underlying State law instruments and the Fair Work Act to determine applicability.

Finally, the instrument’s Note directs readers to the Federal Register of Legislative Instruments, which is the administrative repository for the instrument and any compilations. That administrative link is part of the law’s framework for how legislative instruments interface with other legislative texts and compilations.

The Endorsement as provided in the text contains its making date and commencement date, and no expressed amendments or variations within the instrument itself. The instrument is signed by the Minister for Employment and Workplace Relations, Julia Gillard, and is dated 17 December 2009 in the header. Section 2 states that the Endorsement commences on 1 January 2010. Section 1 provides the instrument’s short title. Section 3 supplies a single definition, Act means the Fair Work Act 2009. Section 4 contains the operative endorsement provisions and references Schedule 1 as the list of employers and dates.

Within the text supplied, there is no internal provision that amends or varies this instrument, nor is there a schedule of prior or subsequent amendments shown. The Schedule is static in the form presented: it sets out the employers in three Parts by State, names the law of the State relied upon in each item, and provides the date of effect of endorsement for each employer. All items in the Schedule record the date of effect as 1 January 2010.

The instrument finishes with an administrative Note that all legislative instruments and compilations are registered on the Federal Register of Legislative Instruments. That Note implicitly points to the FRLI as the place where any amendments, revocations or compilations would be recorded. The instrument as provided does not itself provide a record of any later changes, revocations, or consolidations. For an authoritative amendment history and to confirm whether the instrument has been compiled, amended, superseded or revoked since its making, practitioners must consult the Federal Register of Legislative Instruments, as the Note indicates.

Because the instrument’s own text does not record any post-enactment amendment, and because it is a procedural endorsement instrument that operates by reference to State declarations, any change to the list of employers, to the underlying State declarations, or to the operation of the endorsement under the Fair Work Act would be reflected either by later federal instruments, amendments to the Fair Work Act, or changes in the relevant State law instruments. None of those are contained in the text supplied; therefore the present instrument, as shown, contains a single making date (17 December 2009) and a single commencement date of 1 January 2010, with no internal amendment history recorded.

The instrument itself does not record any litigation, court decisions, or tribunal determinations. It is a legislative instrument endorsing State declarations under paragraph 14(4)(a) of the Fair Work Act 2009 and does not contain references to judicial consideration within its text. The Schedule lists numerous employers and the State laws under which the State declarations were made, but the instrument does not include case citations, references to disputes, or summaries of contested proceedings.

Because the instrument is an endorsement designed to give federal effect to State declarations, any litigation that would engage this instrument would usually arise in one of two ways. First, a party might challenge whether a particular employer is in fact a national system employer despite the State declaration and the Commonwealth endorsement. Second, parties might dispute the legal consequences of being a non-national-system employer for particular rights, remedies or jurisdictional questions. Such litigation would be decided by reference to the Fair Work Act 2009, the State law instruments cited in Schedule 1, and any relevant evidentiary or administrative material. The instrument does not itself purport to resolve those issues beyond recording the State determinations for federal purposes.

In the absence of any litigation narrative in the instrument, practitioners should not infer from this text alone whether any of the listed items were contested in court or tribunal. The instrument’s Note directs readers to the Federal Register of Legislative Instruments for registered texts and any compilations. To locate litigation that concerns the subject matter of this Endorsement, one would need to search court and tribunal databases and the public affidavits or decisions that discuss the interface between the Fair Work Act and State-law exclusions. Those searches and decisions fall outside the instrument’s text and are not contained in the supplied document.

Accordingly, the instrument’s text supplies no litigation history. It is a federal administrative recognition document and, as presented, contains no internal references to judicial decisions or ongoing proceedings.

The instrument’s operational simplicity conceals practical pitfalls that advisers must watch for, particularly in entity identification, timing, and the scope of legal effect. The Schedule is the definitive register in the instrument: each item contains three components, the State law relied upon, the employer’s name and the date of effect of the endorsement (Schedule 1 and s 4(2)). Mistakes in reading any of those components can have material consequences.

Entity identity and naming: the Schedule contains many entries that use trustees, corporate trading names, boards, trusts and "trading as" notations. For example, Queensland entries include "The trustee for Boonah and District Art Gallery and Library Trust Gift Fund (trading as Boonah and District Art Gallery and Library Trust Gift Fund)" and "Brisbane Powerhouse Pty Ltd (trading as Brisbane Powerhouse)" (Part 2). New South Wales entries include corporate subsidiaries and county councils, and South Australian entries include statutory corporations and authorities. Practitioners must not assume that an ordinary or colloquial name matches the legal entity in the Schedule. When advising an employer or employee, confirm the precise legal entity recorded in the Schedule against the entity’s constitutional documents, ABN/ACN records, or State registers. A mismatch between the Schedule entry and the actual legal employer can lead to incorrect conclusions about which regulatory regime applies.

Exactness of the State law citation: each Schedule item records "Law of [State]" and the statutory source for the declaration. For New South Wales the Industrial Relations Act 1996 is the cited law for Part 1 items; for Queensland the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 is used for Part 2 items; for South Australia a range of Acts is cited (Part 3). Practitioners should note that the Endorsement records the source law but does not reproduce the State declaration text itself. Advisers will need to obtain the State instrument or statutory provision to see the terms of the State declaration, the scope of the exclusion and any conditions attached by the State law.

Single effective date entries: each Schedule item lists 1 January 2010 as the effective date. The s 4(2) wording makes the endorsement take effect from the date mentioned in the item. Be precise about whether any employment-related acts or claims arise before or after that date. The instrument does not give transitional detail in its own text, so any temporal issues must be resolved by looking at the Fair Work Act framework and the State law instruments.

No penalty or enforcement detail in the instrument: because the Endorsement does not itself set penalties, parties cannot rely on it to identify enforcement remedies. Where enforcement questions arise, advisers must consult the Fair Work Act and the State law cited in the Schedule.

Administrative changes and entity evolution: the Schedule reflects a snapshot as at the making of the instrument. The Endorsement text contains no later amendment history. Names of entities can change, entities can be wound up, transferred or reconstituted under State law, and State legal frameworks can change. The instrument’s Note points to the Federal Register of Legislative Instruments as the place to check the registered instrument and compilations. Do not treat the copy in hand as authoritative for current status without checking FRLI or relevant State registers.

Formatting irregularities: the supplied Schedule contains HTML artefacts such as stray "<br>" markers in a handful of entries. Those are transcription artefacts and do not alter the legal operation, but they highlight the need to consult the registered instrument on the FRLI to avoid confusion over punctuation or line breaks that can affect entity-name reading.

Finally, the instrument endorses State declarations "for the purposes of the Act" (s 4(1)). That phrasing limits the Endorsement’s operation to the Fair Work Act context. Parties should not assume that the federal endorsement by itself removes State-law obligations or changes other Commonwealth obligations outside the Fair Work Act’s scope.

If you advise a listed employer, an employee of a listed employer, or a third party with an interest in a listed entity, these are the practical steps to take based on the instrument as it stands.

1. Confirm identity against Schedule 1. Cross-check the employer’s legal name, ABN/ACN and constitutional documents against the Schedule entry. The Schedule uses precise entity names, trustee forms and trading-as notations. Where an entity trades under multiple names or has parent/subsidiary structures, confirm which legal entity is the employer and whether that entity matches a Schedule item.

2. Confirm the legal instrument on FRLI. The Endorsement includes a Note directing readers to the Federal Register of Legislative Instruments. Obtain and download the registered Endorsement and any available compilations from the FRLI, to ensure you are working with the authoritative text and to check for any later amendments, revocations or compilations not included in the copy examined.

3. Obtain the underlying State declaration. The Endorsement records that the declaration was made "by or under a law of a State" and cites the State law for each item. Secure the State statutory instrument, statutory proclamation or relevant State register entry that contains the text of the State declaration. That text is necessary to understand the scope of the State determination and any conditions or qualifications it contains.

4. Map applicable obligations. Having established that the State declaration is endorsed for the Fair Work Act’s purposes (s 4(1)), you must identify which parts of the Fair Work Act apply or do not apply to the employer. Consult the Fair Work Act text to determine the consequences of not being a national system employer for the employer’s operation, and reconcile that with the State law obligations applicable to the employer under the State law cited in the Schedule.

5. Review HR and payroll instruments. Where the endorsement changes the employer’s federal-state coverage, review enterprise agreements, awards, employment contracts, payroll systems and superannuation arrangements to ensure that entitlements, deductions and reporting correctly reflect the applicable legal regime. If documents refer specifically to "national system" coverage or to the Fair Work Act, update cross-references where necessary.

6. Record evidence and retention. Keep contemporaneous records showing the Schedule entry, the FRLI-registered Endorsement, and the State declaration relied upon. Retain these in case of future dispute about jurisdictional coverage.

7. Communicate with stakeholders. Inform in-scope employees, unions and third parties of the endorsed status, including the date from which the endorsement takes effect (s 4(2) and Schedule 1). Where the status affects bargaining rights or dispute resolution pathways, provide clear written advice linking the Schedule entry and the State declaration to the practical implications.

8. Watch for entity changes and State variations. Because the Schedule reflects the status at the time the instrument was made and commenced, check periodically whether the entity’s legal status or the State declarations have changed, or whether the Commonwealth has issued further endorsements. Use FRLI and State registers to track such changes.

9. Seek specialist advice on contested status. If there is any doubt about whether an employer falls within a Schedule item, or a third party contests the endorsed status, obtain legal advice promptly. The interplay between State declarations and the Fair Work Act can generate complex jurisdictional questions that require detailed statutory and factual analysis.

10. Use the Schedule’s dates. The endorsement takes effect on the dates recorded in Schedule 1 (s 4(2)). The Schedule provided lists 1 January 2010 for all items. Make sure any compliance or transitional analysis aligns with those dates when assessing when Federal or State regime changes took effect.

These steps are practical, grounded in the instrument’s text and structure, and necessary because the Endorsement is a recognition instrument that affects regulatory status rather than a source of detailed obligations itself. Always pair reliance on this instrument with direct review of the Fair Work Act and the State law instrument cited in the Schedule.