Which law applies if my employer is based in a different state to where I work?
If your employer is in a different Australian state to where you work, the federal Fair Work Act 2009 (Cth) usually applies. The laws of the state where you perform work are also relevant for specific matters not covered by federal legislation.
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How it works in practice
Primary Law: Fair Work Act 2009 (Cth)
In Australia, if your employer is based in a different state to where you work, the primary legislation governing your employment is generally the federal Fair Work Act 2009 (Cth). This Act establishes a national workplace relations system and covers the majority of private sector employees across all states and territories. It sets out minimum employment standards, such as the National Employment Standards (NES), awards, and enterprise agreements, often overriding state-based industrial relations laws for most matters.
Location of Work Matters
For practical purposes, the law that applies to your day-to-day employment conditions, such as pay rates, hours of work, and leave entitlements, is usually determined by the state or territory where you perform the work. This is because many awards and enterprise agreements have geographical scope, and certain state-specific laws (e.g., relating to long service leave in some cases, or occupational health and safety) are still relevant. However, the federal Fair Work Act forms the foundational framework.
Who is Covered
Most private sector businesses are "constitutional corporations," meaning they are covered by the federal system. Employees of state and local governments, or businesses not classified as constitutional corporations, might fall under state industrial relations laws, but this is less common for the general workforce. Always check your specific award or agreement.
Important exceptions
State Government Employees: Employees of state governments or local councils may be covered more extensively by state industrial relations legislation rather than solely the federal Fair Work Act.
Small Businesses (non-constitutional corporations): While rare, some very small businesses might not be considered "constitutional corporations" and could fall under remaining state industrial relations laws.
Specific Leave Entitlements: Some leave types, like long service leave, can have state-specific legislative provisions even for employees covered by the federal system, although federal awards usually address this.
Work Health and Safety (WHS): WHS laws are primarily state/territory-based, meaning the WHS laws of the state where you work would apply.
Contractual Clauses: Employment contracts may specify a governing law, but this cannot override statutory minimums from the applicable federal or state laws.
What you should do now
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Identify where your work is physically performed, as this is often the most relevant jurisdiction for day-to-day conditions.
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Determine if your employer is a "constitutional corporation" (most private businesses are) to confirm coverage under the federal Fair Work Act.
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Review your employment contract, any applicable modern award, or enterprise agreement for specific terms and conditions, including any clauses on governing law.
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Consult the Fair Work Ombudsman website for information relevant to your employment type and location, or use their 'Find my award' tool.
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Seek advice from the Fair Work Ombudsman or an employment lawyer if you have specific concerns about which laws apply to your unique situation.
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