9AEmployers declared not to be national system employers

#### 9A Employers declared not to be national system employers 9A Employers declared not to be national system employers > > (1) An eligible employer is declared not to be a national system employer for the purposes of the [Fair Work Act 2009](http://www.legislation.gov.au/) of the Commonwealth if the Minister, by order published on the NSW legislation website, declares the employer not to be a national system employer. > > > (2) An eligible employer is an employer that, under section 14 of the [Fair Work Act 2009](http://www.legislation.gov.au/) of the Commonwealth, is eligible to be declared not to be a national system employer for the purposes of that Act. > > > (3) If an eligible employer is declared not to be a national system employer, an industrial instrument (the transitional State instrument) is, on the declaration, taken to be established under this Act with the same terms and provisions of any federal industrial instrument that applied to the employees of that employer immediately before the declaration, subject to this section and to any modifications as are necessary or as may be prescribed by the regulations. > > > (4) Subject to subsection (5), the transitional State instrument is, depending on the nature of the corresponding federal industrial instrument, taken to be either an award or an enterprise agreement under this Act. > > > (5) The Commission may, on the application of the Minister or any party to the transitional State instrument— > > > > > (a) make a determination as to whether the instrument is to be taken to be an award or an enterprise agreement under this Act, and > > > > > (b) vary or revoke any term or provision of the instrument if the Commission is satisfied that it is fair and reasonable to do so in the circumstances, and > > > > > (c) exempt a party to the instrument from any provision of this Act if the Commission is satisfied that it is fair and reasonable to do so in the circumstances. > > > (6) If the transitional State instrument provides for any matter, including remuneration or conditions of employment, that does not meet the requirements set out in Division 2 of Part 1 of Chapter 2, the instrument is taken to be modified to the extent necessary to meet those requirements (but only in the case where the instrument is taken to be an award under this Act). > > > (7) The transitional State instrument applies (unless earlier rescinded or terminated in accordance with this Act) for a nominal term that ends on the earlier of the following dates, and after that date, applies until rescinded or terminated in accordance with this Act— > > > > > (a) the end of the day that is 2 years after the relevant eligible employer was declared not to be a national system employer, > > > > > (b) the end of the day that is the expiry date of the corresponding federal industrial instrument. > > > (8) The regulations may make provision for or with respect to the application of this Act to transitional State instruments. > > > (9) In this section— > > > > federal industrial instrument means— > > > > > (a) a fair work instrument under the [Fair Work Act 2009](http://www.legislation.gov.au/) of the Commonwealth, or > > > > > (b) a Division 2B State instrument under Schedule 3A to the [Fair Work (Transitional Provisions and Consequential Amendments) Act 2009](http://www.legislation.gov.au/) of the Commonwealth, or > > > > > (c) an instrument given continuing effect under Schedule 3 to the [Fair Work (Transitional Provisions and Consequential Amendments) Act 2009](http://www.legislation.gov.au/) of the Commonwealth, other than the following— > > > > > > > (i) an Australian workplace agreement, > > > > > > > (ii) a pre-reform Australian workplace agreement, > > > > > > > (iii) an individual transitional employment agreement. > > **s 9A:** Ins 2009 No 115, Sch 2 \[1\]. Am 2010 No 35, Sch 1 \[1\].