Industrial relations reform in Western Australia

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On 25 June 2020, the Industrial Relations Legislation Amendment Bill 2020 (the Bill) was introduced into State Parliament.

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

The new laws seek to protect vulnerable workers, tackle wage theft, and ensure a level playing field for WA employers.

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

Amendments to the Industrial Relations Act (IR Act)

  • Amending the definition of employee in the IR 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.
  • Giving the Western Australian Industrial Relations Commission (WAIRC) capacity on its own motion to vary the scope of private sector awards to provide broader award coverage for an industry or occupation, and establishing that when the WAIRC varies the scope of a private sector award, it must not fix scope by reference to an industry carried on by a named employer. 
  • Expanding employment record requirements and introducing a new requirement for all employers to issue pay slips, as well as establishing a civil penalty provision if an employer makes an employment record or gives a pay slip they know is false or misleading.
  • Establishing a stop bullying jurisdiction for the WAIRC, under which the WAIRC may deal with a stop bullying application made by a worker or an organisation on a worker’s behalf. The stop bullying jurisdiction will apply to both the private and public sectors. To resolve an issue the WAIRC may make an order to prevent future bullying but cannot order compensation for the worker.
  • 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 an industrial instrument from $2,000 to $60,000 for bodies corporate and $12,000 for individuals
    • establishing higher penalties for serious contraventions - $600,000 for bodies corporate and $120,000 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.

Amendments to the Long Service Leave Act (LSL 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 with no minimum 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 new transfer of business provisions based on the Fair Work Act provisions.
  • Strengthening enforcement provisions through introducing penalties for contravening the LSL Act or failing to keep required employment records relating to long service leave.

Amendments to the Minimum Conditions of Employment Act (MCE Act)

  • Amending the definition of employee to remove the existing exclusions from the MCE Act for people:
    • paid wholly by commission, percentage reward or piece rates
    • with disabilities employed in a supported employment service
    • who are volunteers
    • appointed as wardens by the National Trust.
  • Allowing for the employment of employees with a disability under the provisions of the Supported Wage System (SWS) through:
    • 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
    • allowing for employees with a disability to be paid a wage determined according to a wage assessment tool in an award or agreement.
  • Prohibiting employers from establishing cash back arrangements to hide wage theft.

A copy of the Industrial Relations Legislation Amendment Bill 2020 and the Explanatory Memorandum for the Bill are available on the Parliament of Western Australia website.

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