Industrial relations reform in Western Australia

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On 20 October 2021, the Industrial Relations Legislation Amendment Bill 2021 (the Bill) was introduced into State Parliament.

The Bill seeks to make Easter Sunday a public holiday, extend coverage of minimum employment conditions to domestic workers employed directly by household employers, increase protection for vulnerable workers and tackle wage theft.

The Bill is currently being considered by State Parliament and the proposed changes to state employment law will not come into effect until the Bill is passed by Parliament and proclaimed to come into operation.

The Bill is the State Government’s response to the recommendations made by:

The Bill will amend the Industrial Relations Act 1979 (IR Act), the Long Service Leave Act 1958 (LSL Act), the Minimum Conditions of Employment Act 1993 (MCE Act) and the Public and Bank Holidays Act 1972 (PBH Act). The key reforms in the Bill are outlined below.

Amendments to make Easter Sunday a public holiday

  • Amending the PBH Act to make Easter Sunday a public holiday in Western Australia, bringing the number of public holidays to 11.
  • Implementing provisions so that any state awards and industrial agreements that provide for public holidays automatically recognise Easter Sunday as a public holiday, but do not substitute Easter Sunday public holiday to another day for the sole reason that it falls on the weekend.

Amendments to the IR Act

  • Amending the definition of employee in the IR Act and the MCE Act, to remove the existing exclusion for persons engaged in domestic service in a private home (that includes carers employed directly by the householder) which will extend coverage of the IR Act and the MCE Act to such workers.

More information on the proposed changes is available in the fact sheet - Proposed extension of coverage of state employment laws to domestic employees

  • Amending the definition of employer to include foreign states and consulates which employ people in Western Australia.
  • Giving the Western Australian Industrial Relations Commission (WAIRC) capacity to ensure comprehensive award coverage for state system employees in the private sector. The provisions will require the WAIRC to publish any proposed variation and serve it on relevant parties, and to provide the parties with an opportunity to be heard on the proposed variation.
  • Expanding employment record requirements and introducing a new requirement for all employers to issue pay slips. Making an employment record or giving a pay slip the employer knows is false or misleading will attract a civil penalty.
  • Establishing a stop bullying and sexual harassment jurisdiction for the WAIRC, under which the WAIRC may deal with a stop bullying or sexual harassment application made by a worker or an organisation on a worker’s behalf. The stop bullying and sexual harassment jurisdiction will apply to both the private and public sectors. The WAIRC may make an order to prevent future bullying or sexual harassment of the worker but cannot order compensation for the worker. The new provisions will provide workers with a quick and inexpensive avenue to address bullying and sexual harassment at work.
  • Introducing an equal remuneration jurisdiction to the WAIRC that applies to both the private and public sectors. The WAIRC will be able to make an equal remuneration order on application from a range of parties, including an individual employee or group of employees. The WAIRC is also required to issue an equal remuneration principle as part of the State Wage order each year.
  • Enabling certain employers (e.g. local governments) to be declared “not to be national system employers” for the purposes of the Fair Work Act 2009, and providing for transitional arrangements to move local government employers from the national industrial relations system to the state system. 
  • Increasing the protection of employee rights through:
    • prohibiting employers from taking damaging action against employees because they make an employment-related inquiry
    • prohibiting employers from engaging in sham contracting arrangements
    • prohibiting employment being advertised at a rate of pay that is less than the applicable minimum wage for the position.
  • Enhancing the powers of industrial inspectors by enabling inspectors to:
    • issue on-the-spot infringement notices to employers for failing to comply with record-keeping or pay slip requirements
    • enter into an enforceable undertaking with an employer to voluntarily rectify identified breaches
    • issue a compliance notice to an employer requiring them to rectify identified breaches.
  • Strengthening enforcement mechanisms and increasing penalties including:
    • increasing maximum penalties for contravening minimum employment entitlements from $2,000 to $65,000 for bodies corporate and $13,000 for individuals
    • establishing higher penalties for serious contraventions - $650,000 for bodies corporate and $130,000 for individuals, and providing that a party found to have committed a serious contravention can have representation costs ordered against them
    • introducing accessorial liability for being involved in a contravention
    • establishing that employers have the burden of disproving allegations in enforcement proceedings if they failed to keep relevant employment records.
  • Providing for WAIRC Commissioners who qualify for appointment as a magistrate to be capable of appointment as an industrial magistrate under the IR Act.

Amendments to the Long Service Leave Act

  • Clarifying a number of entitlements and providing for greater flexibility in how long service leave is taken through:
    • enabling an employer and employee to agree to the employee taking long service leave in separate periods of no minimum prescribed length
    • allowing an employee to request to take long service leave at half pay for twice as long, or at double pay for half as long.
  • Introducing penalties for contravening the LSL Act or failing to keep required employment records relating to long service leave.
  • Introducing new transfer of business provisions based on the Fair Work Act provisions.

Amendments to the Minimum Conditions of Employment Act

  • Amending the definition of employee to remove the existing exclusions from the MCE Act for domestic workers as well as people:
    • paid wholly by commission, percentage reward or piece rates
    • with disabilities employed in a supported employment service
    • appointed as wardens by the National Trust
    • who are volunteers.

More information on the proposed changes is available in the fact sheet - Proposed extension of coverage of state employment laws to domestic employees

  • Introducing an entitlement to five days’ unpaid family and domestic violence leave per year for all full time, part time and casual employees.
  • Modernising the current provisions for paid sick leave and paid carer’s leave by establishing a combined entitlement to paid personal leave for full time and part time employees, and removing the cap on the number of hours of leave that can be used for caring purposes in one year.
  • Allowing for the payment of a wage for employees with a disability under the provisions of the Supported Wage System (SWS) or a wage assessment tool in an award or agreement.
  • Requiring the WAIRC to set the minimum weekly amount under the SWS in the State Wage case to be the same as that set by the Fair Work Commission in the national wage case.
  • Prohibiting employers from establishing cash back arrangements to hide wage theft.
  • Prohibiting employees being paid in ways other than money such as being paid in goods or accommodation, which often facilitates exploitative working arrangements.
  • Prohibiting unreasonable deductions from an employee’s pay which are for the benefit of the employer such as deductions for petrol drive offs or breakages.

More information

A copy of the Industrial Relations Legislation Amendment Bill 2021 and the Explanatory Memorandum for the Bill are available on the Parliament of Western Australia website.

Regulatory Impact Statements

Regulatory Impact Statements have been prepared by the Department of Mines, Industry Regulation and Safety on:

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