2. Industrial relations systems

Industrial relations and employment in Australia is governed at two separate levels – the State level and the Commonwealth level. Each level has its own system of regulation. The terms and conditions of an employee's contract may be subject to a State or Commonwealth industrial award or agreement. In addition, there are State and Commonwealth workplace laws, such as minimum conditions, which may apply to that employment.

As a result of the previous Commonwealth ‘Work Choices’ legislation [the Workplace Relations Amendment (Work Choices) Act (2005)], incorporated associations fall under the Commonwealth system by virtue of them being ‘constitutional corporations’. To be a constitutional corporation, a body must firstly be incorporated, and secondly, have ‘significant’ or ‘substantial’ trading or financial activities. This can include charitable organisations, clubs, educational institutions and health providers.

Clearly, all incorporated associations meet the incorporation test, but many will need clarification on whether they are engaged in sufficient financial or trading activities to be considered constitutional corporations. Associations that are not constitutional corporations will generally fall under the Western Australian labour relations system.

2.1 Western Australian industrial relations system

The Western Australian industrial relations system is generally governed by the Industrial Relations Act 1979. It is also underpinned by minimum conditions of employment provided by the Minimum Conditions of Employment Act 1993.

This latter Act contains a minimum set of conditions that are taken to be implied into every contract of employment, award or industrial agreement entered into in Western Australia.  These minimum conditions cover areas such as:

• minimum rates of pay;
• annual leave;
• sick leave;
• public holidays;
• bereavement leave;
• parental leave; and
• consultation in the event of significant change (including redundancy).

In addition, the Long Service Leave Act 1958 sets out minimum entitlements to long service leave for all employees in Western Australia (generally, 8 and 2/3 weeks’ leave after 10 years’ continuous service). The Long Service Leave Act 1958 generally applies to all employees in Western Australia, unless a federal award or agreement deals with, or excludes, long service leave entitlements.

The relevant State Government authority is the Labour Relations Division of the Department of Commerce, which can provide a wealth of information on all aspects of the Western Australian industrial relations system (including those that apply to constitutional corporations) and how it interfaces with the Commonwealth’s laws.

2.2 Commonwealth industrial relations system

Prior to 2009, the Commonwealth’s industrial relations system was regulated primarily through the Workplace Relations Act 1996, as amended by the ‘Work Choices’ legislation (Workplace Relations Act). In 2009, the Commonwealth Government introduced a new national workplace relations system under the Fair Work Act 2009. Some key elements of the new system under the Fair Work Act include:

• A legislated set a 10 minimum National Employment Standards
• The creation of modern awards designed to establish one set of minimum conditions and wage entitlements for employers and employees across Australia who work in particular industries and occupations.
• Streamlined protections dealing with workplace rights (including protection against discrimination), industrial activities and unfair dismissal.

The introduction of a new workplace relations system means that new agreements under the previous Workplace Relations Act can no longer be made and any existing agreements will continue to operate until they are terminated or replaced. The new workplace relations system is regulated by two agencies, Fair Work Australia and the Fair Work Ombudsman. To find out more about Commonwealth awards and agreements, you can contact the: