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Fair Work Act 2009 (Cth)

How does the Fair Work Act 2009 (Cth) interact with State and Territory laws?

The Fair Work Act 2009 (Cth) generally applies in Australia to national system employers and their employees:

National system employer is defined in the Fair Work Act 2009 (Cth) [s 14]. A national system employee is an individual who is employed by a national system employer and is not on a vocational placement [s 13].

All private sector employees in South Australia are national system employees, covered by the Fair Work Act 2009 (Cth).

Entitlements to parental leave, notice of termination and unlawful termination extend to all employees in Australia. This means that those provisions apply to South Australian government and South Australian local government employees also.

The Fair Work Act 2009 (Cth) excludes State and Territory industrial laws that would otherwise apply to national system employers and employees. This includes the industrial relations Acts of the States, as well as other State and Territory laws that apply to employment generally and regulate key aspects of the employment relationship.

A number of State and Territory laws are preserved and will continue to apply to national system employers and their employees. These include laws dealing with work health and safety, workers compensation and discrimination [for the full list of preserved laws, see s 27].

Modern awards and enterprise agreements are subject to these preserved State and Territory laws, but prevail over other State and Territory laws (such as industry-specific employment laws) where inconsistent with those laws.

State or Territory laws dealing with flexible working arrangements and community service leave are preserved if they provide a more beneficial entitlement to employees.

Long Service Leave entitlements in South Australia are also still covered by a State law, the Long Service Leave Act 1987 (SA) and the Construction Industry Long Service Leave Act 1987 (SA).

Fair Work Act 2009 (Cth)  :  Last Revised: Thu Nov 28th 2013
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.