One of the first steps in identifying Non-National System Employers (NNSE) in Australia is to understand what the national system actually entails.
The National System (NS) refers to the set of laws and regulations that govern employment relationships in Australia. It covers various aspects such as minimum wages, working hours, leave entitlements, and workplace health and safety.
In this article we tackle who is not covered by the National System, the governing legislation and the importance of defining classification.
See our other article on identifying National System Employers. Speak to our experienced employment lawyers today to find out more.
It’s important to know if an employer is classified under the NNSE or NS for various reasons. These include:
By identifying whether an employer falls under the national system or not, employees can have a clear understanding of their rights and entitlements. The national system sets rules for work, like minimum pay, hours, time off, and safety at work. If an employer is not part of the national system, they may have different employment terms that need to be considered.
Different laws and regulations govern employment relationships in Australia, depending on whether an employer is a NNSE or an NSE. By knowing the right category, employers and workers can follow the correct laws and rules. This helps to avoid any legal issues or penalties that may arise from non-compliance.
In some cases, employees who work for NNSEs may have access to additional rights and entitlements beyond the minimum standards set by the national system. For example, employees covered by enterprise agreements or awards specific to their industry or occupation may have additional benefits. By determining if an employer is a NNSE or NSE, workers can learn if they have extra rights or benefits.
Learn more about Modern Awards.
Identifying whether an employer is a NNSE or an NSE also helps to determine the jurisdiction under which employment disputes or issues should be resolved. Different laws and courts can have jurisdiction over NNSEs and NSEs. It’s important to correctly classify them to resolve disputes in the right place.
One common exemption is for employers who operate solely within a state or territory system.
In Australia, each state and territory has its own set of employment laws that may differ from the NS. If an employer operates exclusively within one state or territory, they may be subject to the specific laws of that jurisdiction instead of the NS.
Another exemption is for employers in certain industries that have their own specific industrial relations frameworks. For example, the maritime industry and the building and construction industry have separate systems that govern employment relationships within those sectors. If an employer operates within one of these industries, they may be subject to their respective industry-specific laws instead of the national system.
Additionally, some employees may be covered by enterprise agreements or awards that are specific to their industry or occupation. These agreements and awards give employees more rights and benefits than what is required by the national system. It is important to consider these agreements and awards when determining the employment conditions of a particular employer.
To determine if an employer falls under the NS, you can start by checking if they are covered by the Fair Work Act. This act is the primary legislation that governs employment in Australia and applies to most businesses operating within the country. However, there are certain exceptions and exemptions that may exclude an employer from the national system.
Here is a summary of the governing state legislations that specifically state who is covered NOT covered by the NS:
Under the NSW legislation, a company can be declared as not being a National System Employer (NSE) in two scenarios:
In such cases, a transitional State instrument is established, which carries the same terms of any federal industrial instrument that applied to the employees of that employer before the declaration.
This transitional State instrument can be an award or an enterprise agreement, depending on the nature of the corresponding federal industrial instrument. The Commission has the authority to make changes to this instrument or exempt a party from any provision of the Act if it is fair and reasonable to do so.
Moreover, state public sector and local government employees are not covered by the national system and remain under the state system. Some state and local government employers have agreements in the national system. Their employees are also part of the national system.
In Victoria, the majority of workers, including state government employees (with some exceptions), are covered by the national system.
In Queensland’s public sector and local government, certain workers are not covered by the national system. Instead, they are governed by the state system. Some state and local government employers have chosen to register agreements and be part of the national system. As a result, their employees are also considered part of the national system.
State public sector and local government employees in Western Australia are covered by the state system, as well as sole traders, partnerships, unincorporated entities, and non-trading corporations. However, if these businesses or state employers have registered agreements, their employees become part of the national system.
Local government employers, despite having registered agreements in the national system, still fall under the state system. A sole trader becoming a company joins the national system. A partnership can be a NSE if one partner is a company or involved in trading or finance.
In South Australia, state and local government employees are not covered by the national system and are instead governed by the state system. However, employers in the state and local government have made agreements that are recognised by the country, and employees covered by these agreements are included in the national system.
To further assist in identifying NNSE employers, the Fair Work Ombudsman website provides a helpful tool called the “Find my award” feature. This tool allows you to search for specific awards based on industry, occupation, or job type.
Check if an employer is under a specific award and falls under the national system with this tool.
A national system employer is an employer covered and bound by the national workplace relations laws. Whether an employer is a national system employer depends on the location of the employment relationship (state or territory) and, in some cases, the legal status and business of the employer.
Learn more about National System Employers.
A state or territory declaration must state the employer not under the national system. It also needs a written endorsement from the Minister in charge of the Fair Work Act for that employer.
The national system makes sure employers and employees have clear entitlements and rules to follow. If someone is not part of the national system, their state or territory’s industrial relations system covers them.
Learn more about who is covered.
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