This guide is designed to be an initial reference point for NFPs seeking to understand whether they may have legal obligations under the Workplace Relations Act. This guide is not comprehensive advice on the law. PILCH recommends that an NFP use this guide as a starting point, prior to seeking legal advice specific to the circumstances of that NFP.

Important note

NFPS should also be aware that Work Choices includes complex transitional provisions.  These may also need to be considered in relation to a particular NFP, especially if that NFP was covered by a Federal or State industrial award or agreement as at 27 March 2006, when Work Choices commenced.

Overview

Coverage of an NFP under the Workplace Relations Act depends on:

1.     whether the NFP is incorporated or not incorporated (ie. is the NFP a 'corporation'?);

2.     the State in which employees of the NFP are based; and

3.     if the NFP is incorporated, whether the NFP is a 'constitutional corporation' (the Workplace Relations Act generally applies to employers that are 'constitutional corporations').

As noted in more detail below, even if it is unincorporated or it is not a 'constitutional corporation', in particular an NFP might still be subject to the Workplace Relations Act on a transitional basis, if it was subject to a Federal or State industrial award or agreement as at 27 March 2006.

Unincorporated NFPs

An unincorporated NFP with employees based in:

§                         Victoria;

§                         the Northern Territory; or

§                         the Australian Capital Territory

will be covered by Work Choices, arising from the operation of Federal law in respect of industrial matters in Victoria and the Territories.

An unincorporated NFP with employees based in any other Australian State will not be covered by Work Choices (except, on a transitional basis, if the NFP was subject to a Federal award or agreement on 27 March 2006, when Work Choices commenced). Accordingly, and subject to the transitional provisions, State law will govern the conditions of employees in those States.

Incorporated NFPs in Victoria, Northern Territory and Australian Capital Territory

NFPs that are incorporated in:

§                         Victoria;

§                         the Northern Territory; or

§                         the Australian Capital Territory

will be covered by Work Choices, whether or not they are 'constitutional corporations'.

An NFP which is incorporated in another Australian State will also be covered by Work Choices in respect of any employee based in Victoria, the Northern Territory or the Australian Capital Territory.

Incorporated NFPs in New South Wales, Queensland, South Australia, Western Australia and Tasmania

In New South Wales, Queensland, South Australia, Western Australia and Tasmania:

• NFPs that are constitutional corporations are covered by the Workplace Relations Act; and

• NFPs that are not constitutional corporations are not covered by the Workplace Relations Act, (except on a transitional basis, if the NFP was subject to a Federal award or agreement on 27 March 2006, when Work Choices commenced), and are therefore governed by State law (subject to the transitional provisions if applicable).