4Meaning of relevant employer

4 Meaning of relevant employer

(1) A relevant employer means: (a) a registered higher education provider that is an employer; or (b) a natural person, or a body or association (whether incorporated or not), that is an employer of 100 or more employees in Australia; or (c) a Commonwealth company that is an employer of 100 or more employees in Australia; or (d) a Commonwealth entity that is an employer of 100 or more employees in Australia. (2) However, a relevant employer does not include: (a) a State; or (b) a Territory; or (c) a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory, other than a registered higher education provider; or (d) the holder of an office established for a public purpose by or under a law of a State or Territory; or (e) an incorporated company over which a State, a Territory or a body referred to in paragraph (c) is in a position to exercise control. (3) For the purpose of the definition of relevant employer in subsection (1): (a) if an employer is a body corporate that is a subsidiary (within the meaning of the Corporations Act 2001) of one or more other bodies corporate, and the subsidiary employs a person, the subsidiary and each of the other bodies corporate are taken to employ the person; and (b) if the relevant employer is a Commonwealth company—a Commonwealth company employs a person if the person is employed by another Commonwealth company which is a subsidiary (within the meaning of the Public Governance, Performance and Accountability Act 2013) of the first‑mentioned Commonwealth company; and (c) if the relevant employer is a Commonwealth entity that is a corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013)—the corporate Commonwealth entity employs a person if the person is employed by another corporate Commonwealth entity which is a subsidiary (within the meaning of that Act) of the first‑mentioned corporate Commonwealth entity.

Note: Example 1: For paragraph (a), a subsidiary employs 150 people. The subsidiary and each of its holding companies (within the meaning of those terms in the Corporations Act 2001) is a relevant employer, regardless of how many people each of the holding companies directly employs.

Note: Example 2: For paragraph (a), a subsidiary employs 90 people. The subsidiary is not a relevant employer. A holding company of the subsidiary directly employs 10 people. The holding company, because it is taken to also employ the employees of the subsidiary (for the purposes of the definition of relevant employer), is a relevant employer.

(4) If, at any time, an employer ceases to be a relevant employer because the number of employees of the employer falls below 100, this Act continues to apply to the employer as if the employer were a relevant employer unless and until the number of employees falls below 80.