Which system of employment law applies

This page is for: 
Employee / workerEmployer

Two systems of employment law operate for the private sector in Western Australia:

Working out which system covers an employer and its employees is the first step in understanding and complying with employment rights and obligations and this depends on the employer’s business structure.

This page explains:

  • which types of employers and employees are covered by each system;
  • how to determine whether individual employers and employees are covered by the state or national system; and
  • where to get the right information.

Watch our video on this topic

 

wa_image_small.jpg  State system

Private sector businesses, not for profit organisations and household employers

The state system covers:

  • Private sector businesses and their employees that operate as:
    • Sole traders.
    • Unincorporated partnerships.
    • Unincorporated trust arrangements, where none of the trustees or other entities in the trust arrangement are Pty Ltd entities.
  • Individuals who are household employers who personally and directly employ someone to provide domestic services in a private home, and their employees.
  • Incorporated associations and other not-for-profit organisations, including some sporting clubs and school P&C's, which are not constitutional corporations (trading or financial corporations) and their employees. 
    • A not-for-profit association may be a constitutional corporation (and therefore in the national system) if it has sufficiently substantial trading or financial activities, even if the purpose of the organisation is something other than trading or finance or if it receives government funding. Trading activities typically involve buying or selling and produce revenue for the organisation. Financial activities involve the borrowing of money and the provision of finance.
    • There is no definitive rule on which system covers these types of organisations and each organisation will need to seek its own legal advice to determine this question as Wageline is not able to advise on this issue.

The Wageline website provides information on pay rates, leave and other employment issues or call Wageline on 1300 655 266.

Local Government

All Western Australian local government employers and employees are covered by the state system.  

Visit Local government in the state system for details on where to get the right employment information.

State public sector / Western Australian Government employees

Most state public sector agencies and public sector employees are in the state system.

  • Public sector employees with queries about pay rates, and working hours, leave and other employment issues should contact the human resources area of their employing agency. If you are not satisfied after approaching human resources, you may wish to contact a grievance officer or follow your agency’s dispute resolution procedure.
  • The Long service leave - Who is covered page includes information for state public sector employees on who is covered by the WA Long Service Leave Act.

australia_image_small.jpg  National system

The national system covers WA private sector businesses and organisations that are constitutional corporations, as well as some state-owned corporations.

Private sector businesses and not for profit organisations

The national system covers:

  • Pty Ltd businesses that are trading or financial corporations.
  • Incorporated partnerships, where one or more of the partners in the business is a Pty Ltd entity.
  • Incorporated trust arrangements, where one or more or the trustees or other entities in the trust arrangement is a Pty Ltd entity. 
  • Incorporated associations and other not-for-profit organisations, including some sporting clubs and school P&C's which are constitutional corporations (trading or financial corporations) and their employees.
    • A not-for-profit association may be a constitutional corporation if it has sufficiently substantial trading or financial activities, even if the purpose of the organisation is something other than trading or finance or if it receives government funding. Trading activities typically involve buying or selling, and produce revenue for the organisation. Financial activities involve the borrowing of money and the provision of finance.
    • There is no definitive rule on which system covers these types of organisations and each organisation will need to seek its own legal advice to determine this question, as Wageline is not able to advise on this issue.
  • Foreign corporations that are incorporated overseas are automatically constitutional corporations in Australia.

The Fair Work Ombudsman provides information to national system employers and employees on employment conditions (except long service leave and children in employment). Visit www.fairwork.gov.au or call the Fair Work Ombudsman on 13 13 94.

For employment queries about long service leave and when children can work Wageline provides information to national system employers and employees.

Federal public sector / Australian Government employees

All federal public sector agencies and Australian Government employees are in the national system. Contact the human resources area of your employing agency or the Fair Work Ombudsman for employment information.

Checking system coverage

  • Employers - To check whether a business is in the state or national system, private sector employers can:
    • contact their business advisor; or
    • call Wageline on 1300 655 266.
  • Employees - To check whether a business is in the state or national system, private sector employees can:
    • ask their employer or a manager;
    • check the employer's business entity name on a payslip or annual payment summary (group certificate), or in a contract or letter of appointment. The business entity name may be different from the trading name - e.g. you may work at the Perth Café (the trading name) but Café Pty Ltd is the legal name of the employer;
    • look up the business on the Australian Government’s ABN lookup website – www.abr.business.gov.au. A free search of the trading name on this website will often provide the entity name. If the business entity name is a trust, you will need to contact Wageline to undertake a more detailed search; or
    • call Wageline on 1300 655 266.

Please read Wageline's disclaimer about system coverage.

State employment laws which apply to national system employers and employees

State laws on when children can work apply to all national system employers and employees in Western Australia, and the state Long Service Leave Act 1958 also covers many national system employers and employees.

National employment laws which apply to state system employers and employees

The provisions of the national Fair Work Act on notice of termination, parental leave and sexual harassment apply to employers and employees in the state system. This website includes information on the national requirements regarding notice of termination and parental leave. 

Learn about the changes to state employment laws that commenced on 20 June 2022.

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