This Order (the Industrial Relations (National System Employers) Order 2009) records a list of employers that the New South Wales Minister has declared not to be national system employers for the purposes of the Commonwealth Fair Work Act 2009. Clause 3 states the operative declaration: "In accordance with section 9A of the Industrial Relations Act 1996, the employers listed in Schedule 1 are declared not to be national system employers for the purposes of the Fair Work Act 2009 of the Commonwealth" (cl 3). The instrument itself contains three short operative clauses: the name of the Order (cl 1), the commencement date and publication requirement (cl 2), and the statutory declaration (cl 3).

Mechanically, the Order performs a single legal act: it identifies by name a set of legal entities, grouped in Schedule 1, and declares that those named entities are not national system employers. The Schedule is structured into Parts 1 to 6 that identify State bodies, councils, county councils, subsidiaries of councils, "other" bodies, and joint organisations. The Order commenced on 1 January 2010 and is required to be published on the NSW legislation website (cl 2). The Schedule bears amendment notes showing the list has been revised repeatedly (for example, amendments recorded for 2011, 2013, 2015, 2016, 2018 and 2024; see sch 1 note).

The Order does not itself set employment terms, awards, wages, compliance regimes, or penalties. Its single legal effect, as expressed in the text, is to fix the coverage status of named employers under the Fair Work Act 2009 by declaring them not to be national system employers. The source text does not add further explanatory material about downstream consequences or procedural steps beyond referencing s 9A of the Industrial Relations Act 1996 as the enabling power (cl 3).

The core concept in the instrument is a declaratory administrative act by a State authority specifying coverage under the Commonwealth Fair Work Act 2009. The Order is made "in accordance with section 9A of the Industrial Relations Act 1996" (cl 3). The Schedule 1 listing is the substantive content; it is organised into Parts 1 to 6:

• Part 1: State bodies (for example Insurance and Care NSW; Landcom).
• Part 2: Councils (an extensive list of NSW local government councils, named individually).
• Part 3: County councils (named county water and related authorities).
• Part 4: Subsidiaries etc of councils (listed corporate subsidiaries and related entities).
• Part 5: Other (for example Sydney Cricket and Sports Ground Trust).
• Part 6: Joint organisations (a number of regional joint organisations).

Each entry in the Schedule is a named legal entity. The Schedule includes an editorial footnote recording successive amendments: "sch 1: Am 2011 (92), cl 3; 2013 (322), cl 3; 2015 (543), cl 3; 2016 (812), cl 3; 2018 (300), cl 3; 2018 (583), Sch 1 [1] [2]; 2018 (769), cl 3; 2024 (8), Sch 1; 2024 No 49, Sch 5.2; 2024 (511), Sch 1." That footnote indicates the list has been edited multiple times since first made.

Two formal mechanics govern the instrument. First, it is a statutory declaration under state law (the Industrial Relations Act 1996), not a stand-alone statute; the Order’s authority is the referenced section 9A (cl 3). Second, its legal effect is framed exclusively "for the purposes of the Fair Work Act 2009 of the Commonwealth" (cl 3). The instrument therefore operates at the intersection of a state statutory power and the federal industrial relations regime, by determining whether particular employers fall within the Commonwealth's national system. The Order does not itself define "national system employer", nor does it alter the Fair Work Act; it declares coverage status for the named employers.

The Order is narrow in scope and textual form. There are no schedules of roles, no transitional provisions, and no penalty clauses in the instrument itself. The document functions as a names list; the legal work is done by the enabling provision referenced in cl 3. The commencement clause fixes a date (1 January 2010) and requires publication (cl 2), which is the formal step to give public notice of the declarations.

The immediate subjects of the Order are the employers listed in Schedule 1. The Schedule names specific State bodies, local councils, county councils, council subsidiaries and related entities, one "other" trust, and several joint organisations. Examples from the Schedule include State bodies such as Insurance and Care NSW and Landcom (Part 1); a long list of local government councils including Blacktown City Council, City of Sydney, Parramatta Council, and many regional and shire councils (Part 2); various county councils such as Rous County Council and Upper Hunter County Council (Part 3); corporate subsidiaries like Newcastle Airport Ltd and Southern Water Services Pty Ltd (Part 4); the Sydney Cricket and Sports Ground Trust (Part 5); and regional joint organisations such as Hunter Joint Organisation and Northern Rivers Joint Organisation (Part 6).

The Order affects three categories of persons and entities in practical terms. First, the listed employers themselves are directly affected because the declaration alters their coverage classification for the purposes of the Commonwealth Fair Work Act 2009 (cl 3). Second, employees of those employers are indirectly affected because their employer’s classification under the Fair Work Act influences which industrial regime governs their employment relations. Third, advisers, payroll and HR professionals, unions, and tribunals or courts that deal with industrial disputes will be affected by changes to an employer’s coverage status; they must check whether an employer is listed.

The text does not list private sector employers, employers outside NSW, or employees by name. It is limited to employers named in Schedule 1. The Schedule’s structure suggests the Order is intended to apply at the organisational level to public bodies, local government bodies and their related corporate entities. The instrument does not create any categories beyond those named, nor does it provide a general rule for unlisted entities. Any employer not named in Schedule 1 is not covered by this specific declaration.

Because the Schedule has been amended on multiple occasions (see sch 1 amendment note), the set of affected employers has changed over time. The instrument’s requirement of publication on the NSW legislation website (cl 2) is the formal mechanism to notify affected parties that the declaration exists and that the list may be consulted for current coverage status.

The Order itself does not impose operational duties, rights, remuneration entitlements, or direct compliance obligations beyond the act of declaring coverage status. Clause 3 performs a declaratory function: the employers listed in Schedule 1 "are declared not to be national system employers for the purposes of the Fair Work Act 2009" (cl 3). That is the only operative declaration and the only text in the Order that affects rights or duties as expressed in the instrument.

Rights and duties that are materially affected by the Order flow from the change in legal classification under Commonwealth industrial law rather than from the Order text. The instrument does not set out those downstream rights and duties; it simply fixes which legal entities are excluded from being "national system employers" for the stated purpose. The Order therefore changes which statutory regime will apply to the employment relationships of the named employers, but the Order does not itself specify the contents of that regime. The enabling clause references s 9A of the Industrial Relations Act 1996 as the authority for the declaration (cl 3).

Practically, entities listed in Schedule 1 will need to consider their corporate and employment governance in light of that declared status. The instrument requires their naming in the Schedule and public publication (cl 2). Employers, employees and advisers will need to consult the instrument to determine coverage status when addressing issues such as bargaining, dispute resolution pathway selection, application of awards, or availability of particular Commonwealth workplace entitlements. The Order does not record transitional measures or specify administrative steps to be taken after the declaration.

The Order allocates decision-making authority to the State provision referenced (s 9A), but it does not specify a rights-of-review mechanism, appeal route, or enforcement mechanism within its own text. The instrument is an administrative declaration recorded in subordinate legislation form; any alteration to coverage status would be effected by amending the Schedule, which the amendment footnote demonstrates has occurred repeatedly since 2009.

The Order contains no penalty provisions, enforcement mechanisms, or compliance sanctions. The three clauses and the Schedule do not create offences, fines, or administrative sanctions. Clause 3 is purely declaratory: it identifies named employers that "are declared not to be national system employers for the purposes of the Fair Work Act 2009" (cl 3). There is no text in the instrument that prescribes enforcement action, investigation powers, penalty amounts, or procedural remedies within the Order itself.

Because the instrument does not itself impose penalties, enforcement and penalties relevant to employment matters remain governed by the statutory regimes that apply to the employment relationship of each listed employer. The Order alters classification for the purposes of the Fair Work Act 2009, which suggests that enforcement of Commonwealth provisions against a listed employer would not arise under the national system for the period the declaration applies. The Order does not, however, set out the State-based enforcement regime that will apply instead; that follows from other laws and instruments not contained in this Order.

The Schedule’s regular amendments and the Order’s publication requirement (cl 2) are procedural features that provide public notice. The instrument’s lack of enforcement detail means that administrative and legal consequences of the declaration,such as which tribunal has jurisdiction, which penalties are available for contraventions, and how disputes are to be resolved,will depend on the industrial relations laws that govern the employer after being declared not to be a national system employer. The Order makes no express savings, transitional enforcement arrangements, or delegation of enforcement authority.

If parties require coercive remedies, fines, or injunctive relief, they must look to the applicable industrial relations statutes and tribunals for the enforcement framework; those are outside the text of this Order. The instrument itself is an entry on a list and a public declaration; it does not create an internal enforcement architecture.

The Order expressly engages two statutes by reference. Clause 3 states the declaration is made "in accordance with section 9A of the Industrial Relations Act 1996" and that the declaration is "for the purposes of the Fair Work Act 2009 of the Commonwealth" (cl 3). Thus, the Order is an exercise of power under the New South Wales Industrial Relations Act and its operative effect is to determine how the Commonwealth Fair Work Act applies to the named employers.

The instrument therefore sits at an interface between state delegated legislation and federal industrial law. The Order uses a state statutory provision (s 9A of the Industrial Relations Act 1996) as the enabling mechanism to make a determination about coverage under a Commonwealth Act. The Order does not itself amend or repeal provisions of either the Industrial Relations Act or the Fair Work Act; it is an instrument that declares the coverage position for specified entities.

Because the Order’s text limits its effect "for the purposes of the Fair Work Act 2009" (cl 3), the legislative interaction is directional: the State, via a statutory power, declares that certain employers are not within the Commonwealth's national system as defined or applied under the Fair Work Act. The Order does not provide cross-references to other State statutes that will govern the listed employers, nor does it list which State industrial instruments will apply instead. The instrument’s publication requirement (cl 2) supports statutory transparency and the public availability of the list so other laws or tribunals can take account of the declared coverage status.

The Schedule contains numerous public entities and local government bodies. Any legal change to those bodies' structures, names or functions enacted under other State laws (for example, local government reorganisation or corporate restructures) will affect how the Schedule entry corresponds to a real-world entity. The Order itself does not resolve conflicts of identity, corporate succession or redeclaration after structural change; changes to the list have been addressed through subsequent amendments to the Schedule as evidenced by the amendment footnote.

In short, the Order is an administrative instrument that depends on and interacts with the Industrial Relations Act 1996 for its authority and with the Fair Work Act 2009 for the legal effect it declares. Other regulatory consequences and enforcement arrangements flow from the applicable State or Commonwealth industrial statutes, which are not reproduced in this instrument.

Schedule 1 carries a built-in record of amendments that have altered the list of non-national system employers over time. The Schedule footnote records the following amendments and associated instruments by year and citation: Am 2011 (92), cl 3; 2013 (322), cl 3; 2015 (543), cl 3; 2016 (812), cl 3; 2018 (300), cl 3; 2018 (583), Sch 1 [1] [2]; 2018 (769), cl 3; 2024 (8), Sch 1; 2024 No 49, Sch 5.2; 2024 (511), Sch 1. Those notations indicate the Schedule has been updated multiple times since the Order's commencement.

The Order itself contains three short clauses (cl 1-3). Clause 1 names the Order. Clause 2 fixes the commencement date as 1 January 2010 and requires publication on the NSW legislation website. Clause 3 is the operative declaration, made "in accordance with section 9A of the Industrial Relations Act 1996" (cl 3). The amendment annotations attached to the Schedule demonstrate that the mechanism to change the list is to amend the Schedule in subordinate legislation form.

The presence of several 2018 amendment references and multiple 2024 entries shows recent activity in updating the list. The Schedule’s Parts (1-6) and the named entities inside them have therefore been altered at discrete points in time by subsequent amending instruments. The Order does not include a history table within the main text, but the Schedule’s footnote is the record the instrument provides for the legislative history of the list.

Because the Order is subordinate legislation (an Order made under a state statute), amendments are effected by later instruments that substitute, add or remove entries from Schedule 1. The Order does not contain transitional clauses for removed entities, nor does it show the text of the amending instruments; it records their citations only. Practitioners wanting to trace the status of a single employer across time must consult those cited amending instruments and the NSW legislation website as required by cl 2 to see the changes that the annotations refer to.

The Order text contains no references to judicial decisions, appeals, reviews, or litigation outcomes. There is no section within the instrument that records a history of court proceedings, tribunal determinations, or other adjudicative outcomes relating to the Order. The source material supplied here does not name any cases or litigation events.

That absence in the text means the Order, as printed, provides no internal record of challenges to the declaration, disputes about entity identity, judicial review attempts, or litigation concerning the legal effect of a Schedule entry. Any litigation that may have occurred in practice about coverage status, entity identity, or the validity of the Order would need to be located in external case law databases, tribunal records, or later statutory notes; those materials are not reproduced in this instrument.

Practically, common categories of litigation risk that can arise with instruments of this kind include disputes about whether a named organisation in the Schedule is the same legal entity as a restructured or renamed body; questions over whether a listed subsidiary is captured when a corporate parent is reorganised; or challenges to the validity of the administrative act under the enabling State statute. None of those disputes are recorded in the instrument itself. The Schedule’s multiple amendment citations show that administrative updates have been made rather than that judicial action has necessarily forced changes.

Because the instrument makes administrative declarations that affect which statutory regime applies to a workplace, any party alleging an error, omission or misapplication of the enabling provision (s 9A of the Industrial Relations Act 1996) would have to bring the matter before the appropriate judicial or administrative review body. The Order’s text does not state the route for review or any limitation periods; users must consult the Industrial Relations Act, administrative law principles and procedural rules external to this document for litigation processes.

This Order’s practical pitfalls arise from the nature of a names-based declaration and from the interaction with other laws and organisational change. The Schedule identifies employers by their legal names and divides them into Parts 1-6. The instrument therefore depends on precise entity identification. A common practical issue is a mismatch between the name used in the Schedule and the current legal name of an entity after an amalgamation, renaming, corporate restructure, or privatisation. The Order does not contain a catch-all provision to capture successor entities; the Schedule must be amended to reflect such changes, as the amendment notes demonstrate.

Another "gotcha" is the presence of subsidiaries and corporate vehicles in Part 4. Entities such as Newcastle Airport Ltd and Southern Water Services Pty Ltd are listed by name. Whether other companies owned by the same council are within the same declared status depends on whether they are listed. The instrument does not define "subsidiary" for the purpose of the declaration; it simply lists particular corporate names. Users should therefore not assume that all companies affiliated with a listed local government are covered unless they appear in the Schedule.

Joint organisations and trusts are also included in the Schedule. For example, the Sydney Cricket and Sports Ground Trust is listed in Part 5. Different governance arrangements for trusts and joint organisations may affect how a declaration applies in practice. The Order provides no guidance about how to treat entities with multiple legal forms or shared governance.

Administrative changes to local government boundaries, council mergers, or legislative reorganisations can render Schedule entries out of date. The Schedule’s amendment footnote indicates repeated updates: entries have been added or removed over time. Parties relying on the Schedule must check the current published version on the NSW legislation website as required by cl 2. Do not rely on historical copies alone.

Finally, the Order is strictly limited in text: it declares coverage for the purposes of the Fair Work Act 2009 but does not specify which State industrial instruments will apply instead. Practitioners should not assume the Order itself sets operational entitlements, grievance pathways, or enforcement mechanisms; those consequences must be sourced from the State industrial law that applies to the employer in its declared status. The text is a names list, not an explanatory or procedural guide.

Compliance in the context of this Order is primarily administrative and verification-focused because the instrument is a declaratory list rather than a prescriptive regulatory regime. The Order requires public availability on the NSW legislation website (cl 2). The principal compliance steps for affected entities and advisers are:

• Verify identity against the Schedule. Confirm that the exact legal name of the employer matches an entry in Schedule 1 (Parts 1-6). Where there is any mismatch in name, corporate form or entity number, do not assume inclusion. The Order lists named entities; inclusion depends on precise identification (sch 1).

• Monitor amendments. The Schedule has been amended repeatedly (see sch 1 amendment footnote). Consult the NSW legislation website to confirm the current text of Schedule 1 as required by cl 2. Maintain a record of the version date used for HR, payroll and industrial relations records.

• Adjust internal governance and industrial relations practice. If an employer is listed, the declaration alters its classification for the purposes of the Fair Work Act 2009 (cl 3). Employers should ensure their HR, payroll and legal teams understand which statutory industrial regime applies to their staff as a consequence of being listed, and should update employment contracts, dispute resolution procedures and compliance checklists accordingly.

• Review related corporate entities. For councils and their subsidiaries, review whether all corporate vehicles that carry out employment activities are listed. If not, determine whether separate declarations or further amendments are required. The Schedule lists particular subsidiaries by name (Part 4); inclusion is not automatic for unstated affiliates.

• Seek statutory clarification for changes. If an entity is restructured, renamed, wound up, or created after the relevant Schedule entry, seek formal amendment under the Industrial Relations Act 1996 process referred to in cl 3. The Order itself does not set the amendment process, but the enabling statute (s 9A) is the statutory avenue referenced in the Order for making such declarations.

• Communicate with employees and stakeholders. Employers listed in Schedule 1 should notify affected employees and bargaining agents of their declared status and any consequent changes to applicable industrial instruments. The Order does not itself set employee entitlements, but it does alter which federal regime treats the employer as a national system employer.