Knowing which workplace relations jurisdiction applies to you is important as it determines the relevant laws that cover you business and employees and will impact how any award transitional provisions may apply.

As a result of the WorkChoices legislation in 2006, businesses were divided into constitutional corporations and non-constitutional corporations which, in most cases, defined whether they fell into either the Federal or State workplace relations jurisdiction.

For example, prior to 1 January 2010, the following businesses were, and still remain, in the Federal jurisdiction:

- constitutional corporations (e.g. a proprietary limited company, a limited company or an incorporated association);
- the Commonwealth and its authorities;
- employers of maritime or waterside workers or flight crew officers; and
- all Northern Territory, Australian Capital Territory, Christmas Island and Cocos (Keeling) Islands employers.

However, due to the referral of South Australia’s industrial relations powers to the Federal Government on 1 January 2010, all private sector South Australian employers are now covered by the Federal system. This means that private sector South Australian employers who were covered by the State industrial relations laws are now covered by the Federal workplace relations laws.

In addition, the referral also transitioned local government organisations previously covered by the Federal system back into the State system.

It is important to note that this State referral only affects workplace relations laws, and that all businesses in South Australia, regardless if they are covered by the Federal or State workplace relations system, will still need to comply with State-based legislation, including occupational health and safety, workers’ compensation, training and skills development, shop trading hours, long service leave, outworkers and child employment protection.

Businesses who moved into the Federal system from 1 January 2010

Which businesses moved into the Federal system?
South Australian private sector businesses who are non-constitutional corporations and who were previously covered by the State Fair Work Act 1994 are now covered by the Federal Fair Work Act 2009 as part of the State referral.

A non-constitutional corporation is any of the following:

- sole trader;
- unincorporated partnership;
- unincorporated association;
- a trust with natural persons as the trustee; or
- an incorporated body that is not engaged in significant trading or financial activities.

What does this mean?
This means that the above businesses are now covered by entirely new workplace relations laws covering termination of employment, redundancy, union right of entry, good faith bargaining and general workplace rights and protections. The new laws also mean an entirely new award system (known as ‘Modern Awards’) and minimum conditions and entitlements (known as the ‘National Employment Standards’ (NES)).

Businesses affected by the State referral need to comply with all provisions of the Fair Work Act 2009, including the NES, from 1 January 2010. However, businesses will continue to be covered by their State Awards until 1 January 2011 when they will be replaced by Modern Awards, unless the business had employees who were covered by a Transitional Award which were replaced by Modern Awards on 1 January 2010. Of note, State Awards are now known as ‘Division 2B State Awards’.

In cases where businesses had award-free employees at the time of the referral, but there is now a Modern Award to cover them, the new Modern Awards apply to such businesses as at the referral commencement date, subject to any transitional provisions.

Businesses who moved into the State system from 1 January 2010

Which businesses moved into the State system?
As a further result of the referral, an agreement was reached with the Federal Government that certain organisations who were previously covered by the Federal Fair Work Act 2009 are now covered by the State Fair Work Act 1994:

The referring organisations include certain:

- State public sector agencies;
- local government organisations; and
- State government enterprises (i.e. businesses owned by the State Government).

What does this mean?
This means that the above organisations and their employees are now covered by the State Fair Work Act 1994. However, any Federal Award or enterprise agreement that covers such organisations will remain in place until 31 December 2011, unless superseded or rescinded by the South Australian Industrial Relations Commission at an earlier date.

How can Business SA help?
Given the complexity of moving into new workplace relations system and the number of aspects involved, Business SA has several services to assist referred businesses in transitioning into their new workplace relations system.

- As a member of Business SA, you can call our free unlimited Telephone Advisory Service on 8300 0101.

- If you subscribe to Business SA’s Award Service we will assist your business moving into the new system by advising you of your new obligations and award coverage, as well as providing access to copies of the NES, relevant Modern Awards and associated rates of pay.

- Business SA is conducting information sessions on the Fair Work Act 2009, the NES and Modern Awards, providing and overview of the changes and how you can implement them into your business.

- Business SA’s Fair Work Booklet provides practical advice and information on the rights and responsibilities of your business under the Fair Work Act 2009.

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South Australia 5061

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