What the Fair Work system is
- The Fair Work Act 2009 (Cth) — the main law. It sets minimum conditions and gives you the claims most people know: unfair dismissal, general protections, bullying and sexual harassment orders, and underpayment claims.
- The National Employment Standards (NES) — the minimum entitlements every employee in the system has, whatever their contract says: maximum hours, annual and personal leave, parental leave, public holidays, notice of termination and redundancy pay, among others.
- Modern awards — the minimum pay rates and conditions for an industry or occupation, such as retail, hospitality or clerical work. Where an enterprise agreement — an agreement made with a group of employees and approved by the Commission — applies, it replaces the award, and must leave you better off overall.
- The Fair Work Commission — the national workplace tribunal. It hears unfair dismissal and general protections claims, makes bullying and sexual harassment orders, sets the minimum wage and awards, and approves enterprise agreements.
- The Fair Work Ombudsman — the regulator. It gives free information about pay and conditions, takes complaints about underpayment, and can investigate and take employers to court. It doesn't run dismissal claims for you.
- The courts — the Federal Court and the Federal Circuit and Family Court, plus some State courts, decide money and penalty claims under the Act, including general protections claims that don't settle.
Who is in it
The Act asks about your employer. Under s 14, a national system employer is:
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- A constitutional corporation — a company formed in Australia that trades or deals in finance, or a foreign company. In practice, most Pty Ltd and Ltd companies. This is the category that covers most employers.
- The Commonwealth and its authorities — federal departments and agencies, anywhere in Australia.
- Employers of waterside workers, maritime employees and flight crew in interstate or overseas trade.
- Any employer in the ACT or the Northern Territory, and on Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.
If your employer is a national system employer, you are a national system employee (s 13) — unless you are on an unpaid vocational placement for a course.
The states that handed over their powers
That list leaves out sole traders, partnerships and other employers that aren't companies. To fill the gap, five states passed laws referring their industrial relations powers to the Commonwealth — Victoria first, then New South Wales, Queensland, South Australia and Tasmania. In those states, essentially every private-sector employer is in the Fair Work system, company or not (ss 30D and 30N). Each state could hold back its own public sector and councils, and most did:
| Where you work | In the Fair Work system | Outside it (state system) |
|---|---|---|
| New South Wales, Queensland, South Australia | Private-sector employees | State public sector and local councils |
| Tasmania | Private-sector employees and local council employees | State public sector |
| Victoria | Almost everyone, including the State public sector and councils | Senior executives in the State public sector, and the dismissal of police and other law enforcement officers |
| ACT | All employees | No one |
| Northern Territory | All employees except police | Members of the Police Force |
| Western Australia | Employees of companies that trade (constitutional corporations) | Sole traders, partnerships, some trusts and not-for-profits, the State public sector and local councils |
| Anywhere | Commonwealth employees | — |
Why Western Australia is different
WA never referred its powers. So in WA the Fair Work Act reaches only the employers on the s 14 list — in practice, companies that trade. Everyone else is in the WA state system, under the Industrial Relations Act 1979 (WA): people who work for a sole trader, a partnership of individuals, a trust with individual trustees, a not-for-profit that doesn't trade in any substantial way, and the WA public sector.
WA councils moved on 1 January 2023. A State can take a named public body out of the Fair Work system if the Commonwealth Minister endorses it (s 14(2)). WA named its local governments and regional councils one by one, the Minister endorsed the list, and from that day they became state-system employers — whether or not they trade. The Shires of Christmas Island and Cocos (Keeling) Islands were not on the list and stay in the Fair Work system.
How to work out which system you're in
- Find your employer's exact legal name on your contract, letter of offer, payslip or income statement — not the shop sign or trading name.
- Look it up on the ABN Lookup (abr.business.gov.au) and note the entity type. An ABN on its own tells you nothing; the entity type does.
- Outside WA: if you work in the private sector, you are almost certainly in the Fair Work system, whatever the entity type. The question only arises for State government and council jobs — use the table above.
- In WA, "Australian Private Company" or "Australian Public Company" — a Pty Ltd or Ltd — that runs an ordinary business is a trading corporation, so you are in the Fair Work system.
- In WA, a sole trader or a partnership of individuals means the WA state system. A trust depends on its trustee: a trading company as trustee means Fair Work; individual trustees mean WA.
- In WA, a not-for-profit, incorporated association or charity depends on how much it trades — selling goods, charging fees or competing for service contracts. It is a question of fact, so get advice before relying on either answer.
- Labour hire or an apprenticeship through a group training organisation? Check the agency or the organisation that employs you, not the business you were placed with.
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What changes depending on your system
| Fair Work system | WA state system | |
|---|---|---|
| Dismissal claims | 21 days to the Fair Work Commission — unfair dismissal (s 394) or general protections (s 366) | 28 days to the WA Industrial Relations Commission |
| Minimum pay and conditions | National Employment Standards, modern awards, enterprise agreements and the national minimum wage | Minimum Conditions of Employment Act 1993 (WA), the State minimum wage, WA awards and agreements |
| Help with pay | Fair Work Ombudsman | Wageline (WA Government) |
| On this site | Every employment page outside the WA pages | The WA state system and the pages under it |
| Lawcaptain's $99 case review | Yes, for dismissals | No — start with a free discussion |
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Being outside the Fair Work system isn't the same as being outside the Fair Work Act. Some parts reach state-system employees too — unlawful termination for a prohibited reason (with its own 21-day limit), the sexual harassment provisions, unpaid parental leave, family and domestic violence leave and minimum notice of termination. The federal and state discrimination laws apply whichever system you are in.
If you work for a State government department in NSW, Queensland, South Australia or Tasmania, or for a council in NSW, Queensland or South Australia, your dismissal and pay claims generally go to your State's industrial commission under State law. This site doesn't cover those State systems — a free discussion is the place to start.