2. But first...which system? Commonwealth or State?

As a result of the previous Commonwealth Government's 'Work Choices' legislation the Workplace Relations Amendment (Work Choices) Act (2005), many incorporated associations now 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. 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 Commonwealth industrial relations system

The Commonwealth's industrial relations system is regulated primarily through the Workplace Relations Act 1996, as amended by the 'Work Choices' legislation (Workplace Relations Act). The new Commonwealth Government is proposing many changes to the Commonwealth industrial relations system. While some transitional changes have been implemented from 28 March 2008, the vast majority of the Commonwealth Government's policies are expected to be implemented from 1 January 2010.

The Workplace Relations Act 1996 regulates the Commonwealth award and agreements system, which includes individual and collective agreements. From 28 March 2008, agreements must maintain certain minimum conditions of employment and are subject to a no-disadvantage test.

From 28 March 2008, no new Australian Workplace Agreements (AWAs) can be made. AWAs were individual agreements between an employer and employee. AWAs made before 28 March 2008 continue to operate.

From 28 March 2008, a new type of individual agreement is available as a transitional arrangement. These new agreements are known as 'Individual Transitional Employment Agreements' (ITEAs) and will be subject to a no-disadvantage test. ITEAs will nominally expire when the proposed new Commonwealth laws take effect on 1 January 2010.

The relevant Commonwealth Government authority is the Workplace Authority, which provides free advice and information on the Commonwealth's workplace relations system. The Workplace Authority also accepts lodgement of ITEAs and collective agreements and assesses whether they comply with the no-disadvantage test.

2.2 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 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.