Understanding employment obligations - a guide for new employers in the state system

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Employer

wa_image_small.jpg This information is only relevant to employers and employees in the WA state industrial relations system – sole traders, unincorporated partnerships, unincorporated trusts and some incorporated or not for profit organisations. Find out more on the Guide to who is in the WA state system page.

If you operate or are employed by a Pty Ltd business – you can find information on this topic on the Fair Work Ombudsman website.

About this page

This page is for new small business employers in the state industrial relations system. It provides an overview of key employment obligations. It does not include all obligations that may be required by a relevant WA award or state employment laws. 

Comprehensive information on your employment obligations is available in other areas of the Wageline website or by contacting Wageline on 1300 655 266.  Links to further information on the Wageline website are provided throughout this page. 

This page contains the same information as Wageline publication for new employers - Understanding employment obligations - a guide for new employers in the state industrial relations system. There is a link to this publication at the bottom of the page. 

Before you start - work out if you are covered by the state or national industrial relations system 

Two different industrial relations systems operate in WA, the state system and the national fair work system. Which system covers a particular employer depends on the business structure of the employer, and the two systems have different employment rights and obligations.

The information on this page is only for employers in the state industrial relations system.

wa_image_small.jpg The state system covers businesses and organisations (and their employees) that operate as:

  • sole traders (e.g. Jane Smith trading as Jane’s Café)
  • unincorporated partnerships (e.g. Jane and Bob Smith trading as Jane’s Café)
  • unincorporated trust arrangements (e.g. Jane and Bob Smith as trustees for the Smith Family Trust trading as Jane’s Café)
  • incorporated associations and other not-for-profit organisations that are not trading or financial corporations.

australia_image_small.jpg The national system covers businesses and organisations (and their employees) that operate as:

  • Pty Ltd businesses that are trading or financial corporations (e.g. Smith Pty Ltd trading as Jane’s Café)
  • incorporated partnerships (e.g. Smith Pty Ltd and Bob Smith trading as Jane's Café)
  • incorporated trust arrangements (e.g. Smith Pty Ltd as trustee for the Smith Family Trust trading as Jane's Café) 
  • incorporated associations and other not-for-profit organisations that are trading or financial corporations.

question_mark_icon.jpg If you are not sure which system covers your business, you can contact Wageline on 1300 655 266 and provide the name of the business and the ABN and Wageline can assist with a business search over the phone.

Employment obligations for state system employers

Employers in the state industrial relations system have obligations under state legislation including:

  • the Industrial Relations Act 1979 (IR Act);
  • the Minimum Conditions of Employment Act 1993 (MCE Act); and
  • the Long Service Leave Act 1958 (LSL Act)

Some provisions of the national Fair Work Act 2009 also apply to state system employers. This guide provides an overview of key aspects of both state and national employment laws that are relevant to state system employers, and highlights where different requirements may apply for employees covered by a WA award.

Visa holders and migrant workers have the same workplace entitlements as other employees working in Western Australia.

WA awards

WA awards are legal documents that outline legal pay rates, allowances, working hours, and leave entitlements for employees in a particular industry or type of work. Many employees in the state system are covered by a WA award.

Award coverage is based on the type of work an employee performs and the industry of their employer. Each WA award contains a clause which specifies who that award covers. For example, the Restaurant, Tearoom and Catering Workers Award generally applies to counter hands, wait staff and kitchen staff working in restaurants, cafes and take away food businesses.

Wageline’s WA awards for common jobs page lists some of the most common jobs and the relevant WA awards that apply to employees in state system businesses. You can also contact Wageline on 1300 655 266 for information about WA awards.

If an employee is covered by a WA award, the pay rates, leave entitlements, allowances and penalty rates (such as higher pay for working on the weekend or a public holiday) outlined in the WA award must be provided to the employee, and it is unlawful to provide pay rates or leave conditions below the WA award provisions. You can find pay rates and an overview of employment conditions for key WA awards in Wageline's WA award summaries.

Award free employees

If an employee is not covered by a WA award, the current minimum rate of pay and the leave entitlements in the MCE Act are the minimum legal entitlements of the employee. It is unlawful to provide pay rates or leave conditions below these standards.

Certain categories of award free workers are excluded from the minimum rates of pay and other entitlements in the MCE Act, including:

  • people engaged in providing domestic service, including in-home care, in a private home, who are employed directly by the owner or occupier of the home;
  • people who receive a disability support pension and are supported by a supported employment service; and
  • people paid wholly by commission or piece rates.

The information on this page is not relevant to employees in the excluded categories, and employers of employees can seek further information on their employment obligations by contacting Wageline. 

Types of employment arrangements

There are different types of employment arrangements, and employees have different entitlements depending on their type of employment arrangement.  

Full time, part time and casual employees

Full time and part time employees usually work on a regular, ongoing basis for a set number of hours. A full time employee usually works 38 hours per week, and a part time employee usually works less than 38 hours a week. Full time and part time employees are entitled to paid annual leave, sick leave, bereavement leave and long service leave, as well as unpaid parental leave. Part time employees get the same entitlements as full time employees, but on a proportionate basis. 

A casual employee is an employee employed on a casual basis who is not guaranteed regular, ongoing work, can refuse shifts and may work on an irregular basis as needed. Casual employees do not receive paid sick leave, paid carer’s leave or paid annual leave. They are entitled to paid long service leave, paid bereavement leave, unpaid carer’s leave and unpaid parental leave. 

Many WA awards specify a minimum number of hours in a shift a casual employee can work, as well as restrict how long an employee can be employed as a casual. Such restrictions do not apply to award free casuals. Please check any specific requirements in the relevant WA award summary.

Visit Types of working arrangements for more information about the difference between full time and part time employees and casual employees.

Employee or contractor

Some workers may be contractors rather than employees. A contractor is a worker running their own business and is not an employee. If a person is a contractor then employment laws do not apply to that person and the information on this page is not relevant. 

Visit Types of working arrangements for more information about the differences between an employment arrangement and a contracting arrangement.

Pay rates

Pay rates for employees covered by a WA award

If an employee is covered by a WA award, the pay rates outlined in the relevant WA award must be provided to the employee. 

It is unlawful to pay an employee less than the WA award pay rate that applies to them. You can agree to pay an employee a rate higher than the relevant WA award pay rate.

Employees covered by an award may have an entitlement to a higher than normal rate of pay if they work more than 38 hours each week or more than their normal working hours (see the 'Working hours' section of this page for more information). There may also be an entitlement to penalty pay rates if they work at certain times, like at night or on the weekend or on public holidays. 

Wageline’s WA award summaries detail the pay rates and main employment obligations for the most used WA awards. Complete versions of WA awards are on the Western Australian Industrial Relations Commission website.   

Pay rates for award free employees

If an employee is not covered by a WA award, the current minimum rate of pay under the MCE Act is the minimum legal pay rate for the employee.  

The minimum pay rate will depend on the employee’s age and whether they are a full time, part time or casual employee. The minimum pay rates for casual employees include a 20% loading. 

It is unlawful to pay an employee less than the legal minimum pay rate that applies to them. You can agree to pay an employee a rate higher than the legal minimum rate.

Award free employees have no entitlement to a higher rate of pay if they work more than 38 hours each week or more than their normal working hours (see the 'Working hours' section of this page for more information). There is also no entitlement to penalty pay rates if they work at certain times, like at night or on the weekend or on public holidays, unless this is something you have agreed in your employment contract. 

Visit Minimum pay rates for award free employees for the current minimum rates of pay.

Apprentice and trainee pay rates

There are specific pay rates for employees who are undertaking an apprenticeship or a traineeship. Visit the Apprentice pay rates page or the Trainee pay rates page for more information.

Pay slips

A pay slip sets out information about what you have paid an employee each pay period. Many WA awards require employers to provide pay slips to their employees, so ensure you check the relevant award provisions. It is not compulsory to provide a pay slip to employees who are award free. However, it is good business practice to provide a pay slip and this may help to avoid confusion and disputes if queries arise.

Visit Payroll essentials for more information on pay slips.

How must employees be paid?

Employees must be paid in money. You cannot require employees to accept goods or services instead of money as part of their pay, unless authorised by a WA award or contract of employment. Also, you cannot force or compel employees to spend any part of their pay in a particular way.

Some WA awards require employers to make payment of wages in certain ways, such as electronic funds transfer. Check any specific requirements in the applicable WA award about methods of paying wages.

If an employee is award free, employers need the employee’s agreement to pay them in any way other than in cash. It is best for employers and employees to discuss this when the employee starts work.

Deductions from pay

You can only make deductions from an employee’s pay if:

  • the employee has agreed to the deduction in writing, (as part of a written employment contract or otherwise) and the deduction is on behalf  of the employee; OR
  • you are authorised to make the deduction under a relevant WA award or industrial agreement; OR
  • you are required by a court order or a state or Commonwealth law to make the deduction (for example, any tax you must withhold from an employee’s pay).  

Visit Payroll essentials for more information about deductions from pay.

Public holidays

Employment entitlements for public holidays will vary based on an employee's award coverage and employment arrangements.

If a full time or part time employee would normally work on a certain day, but they are not working because that day is a public holiday, then you need to pay them for the hours they would normally work on that day. A casual employee does not have to be paid for a public holiday if they do not work on that day.

If an employee works on a public holiday, then you need to pay them for the hours they work.  

Most WA awards specify rates of pay for working on a public holiday. An award may, for example, require the payment of public holiday penalty rates such as double time, or double time and a half, for all hours worked on a public holiday.

If an employee is award free, there are no minimum entitlements to additional rates of pay for working a public holiday. 

Visit Public holidays for dates and employment entitlements for public holidays.

Keeping employment records

You must keep employment records about an employee’s work and the amounts you have paid them. The specific records that you need to keep will vary depending on whether or not an employee is covered by an award.

Visit Employment records for information on record keeping requirements, including Wageline’s record keeping templates.

Working hours

Requirements around working hours will vary based on an employee's award coverage. 

Working hours for employees covered by a WA award

Most WA awards regulate the number of hours employees can work and when these hours can be worked. A 38 hour week is the normal hours for a full time employee under the majority of WA awards. A part time or casual employee can work less hours per week, and many WA awards establish minimum and/or maximum numbers of hours for part time and casual employees.

Most WA awards establish a span of hours during which an employee must work their 38 hours per week (or appropriate part time or casual hours).

Working hours for award free employees

A full time employee usually works 38 hours per week. Part time or casual employees may work less than 38 hours per week, as agreed with you.  

If an employee is award free, you and the employee can agree how working hours will be spread throughout the week and the times and days the employee will work. This could be in a written contract of employment.

Reasonable hours of work

There is a minimum condition of employment relating to reasonable hours of work that applies to both employees covered by WA awards and award free employees.  

Employees can only be asked or required to work more than their ordinary hours if the additional hours are reasonable.

The factors to be considered when determining whether additional hours are reasonable include, but are not limited to:

  • any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;
  • the employee’s personal circumstances (including family responsibilities);
  • the reasons why the employee is required or requested to work the additional hours;
  • any notice given by the employer of the requirement or request that the employee work the additional hours;
  • any notice given by the employee of the employee’s intention to refuse to work the additional hours;
  • whether any of the additional hours are on a public holiday; and
  • the employee’s hours of work over the 4 weeks prior.

Employment of children

There are restrictions on the type of job and working hours for children under 15 years of age. These laws apply to all Western Australian businesses and employers in the state and national industrial relations systems. 

Visit When children can work for more information.

Leave entitlements

Please note: the information below is general information on leave based on the minimum entitlements for employees. WA awards may specify additional requirements relating to payment for leave and how and when leave is taken by employees. 

The leave an employee is entitled to will depend on whether they are a full time, part time, or casual employee. The table below summarises leave entitlements for different types of employees.

The leave entitlements explained in this guide are the minimum leave entitlements. You cannot give an employee less leave than the minimum leave entitlements, but you can agree to give an employee more leave than the minimum leave entitlements. 

Leave entitlement Full time employees Part time employees Casual employees
Annual leave Yes Yes No
Sick and carer's leave Yes Yes No
Unpaid carer's leave Yes Yes Yes
Bereavement leave Yes Yes Yes
Unpaid parental leave            Yes Yes Yes
Long service leave Yes Yes Yes

 

Annual leave

Full time and part time employees are entitled to paid annual leave. Casual employees are not entitled to paid annual leave. Full time and part time employees accrue 4 weeks of paid annual leave for each year of work they have completed.

Annual leave accrues on a weekly basis:

  • a full time employee accrues 2.923 hours of annual leave for each completed week of work; and
  • a part time employee accrues the relevant proportion of 2.923 hours annual leave for each completed week of work.

The amount employees are paid for annual leave is based on the number of hours they ordinarily work. For example, if an employee ordinarily works 20 hours per week then they are entitled to 4 weeks of annual leave paid at 20 hours per week. The maximum amount of annual leave an employee can accrue in one year is 152 hours.

If a WA award applies to an employee, it is likely that they will be entitled to annual leave loading (usually 17.5% of wages) when they take annual leave. Please check any specific requirements about annual leave loading in the applicable WA award.  Employees who are award free do not receive annual leave loading unless it is specified in a contract of employment.

Visit Annual leave for information and Wageline’s Annual Leave Calculation Guide.

Sick and carer's leave

Sick leave is paid time off work when an employee is sick or injured. Only full time and part time employees are entitled to paid sick leave. Casual employees are not entitled to paid sick leave.

Each year full time and part time employees are entitled to paid sick leave equal to the number of hours they would ordinarily work in two weeks. As an example, an employee who ordinarily works 38 hours per week would be entitled to 76 hours of sick leave each year, and an employee who ordinarily works 12 hours per week would be entitled to 24 hours of sick leave each year.

Sick leave accrues on a weekly basis:

  • a full time employee accrues 1.461 hours of sick leave for each completed week of work; and
  • a part time employee accrues the relevant proportion of 1.461 hours of sick leave for each completed week of work.

Carer’s leave entitles an employee to take time off work to care for a member of their family or household who requires care or support because they are sick, injured or affected by an unexpected emergency.

In the first year of employment, a full time or part time employee can use any paid sick leave that he or she has accrued to date for caring purposes.

In the second and subsequent years of employment, a full time employee can only use a maximum of 76 hours of their accrued sick leave entitlement for caring purposes, or a part time employee the relevant proportion of 76 hours based on their ordinary hours of work.

An employee is entitled to up to two days of unpaid carer’s leave per occasion if an employee does not have sufficient paid leave accrued, or has exceeded the maximum amount of carer’s leave that can be taken in any 12 month period.

A casual employee can take up to 2 days’ unpaid leave each time they need it to take care of a member of their family or household.

You can require an employee to provide reasonable evidence before they are paid for any time off work on sick and carer’s leave.

Visit Sick leave for more information and Wageline’s Sick Leave Calculation Guide.

Bereavement leave

Full time, part time and casual employees are entitled to paid bereavement leave. Employees can take up to two days of paid bereavement leave each time there is a death of a member of their family or household. A member of the family or household means any of the following people:

  • the employee’s spouse or de facto partner;
  • a child, step child or grandchild of the employee (including an adult child, step-child or grandchild);
  • a parent, step parent or grandparent of the employee;
  • a sibling of the employee; or
  • any other person who, at or immediately before the relevant time lived with the employee as a member of the employee’s household.

Visit Bereavement leave for more information. 

Parental leave

Parental leave allows an employee to take time off to care for a new baby or newly adopted child. If an employee has worked for you for at least 12 months they may be entitled to unpaid parental leave. Full time, part time and casual employees can take unpaid parental leave.

If an employee is eligible they can take up to 12 months of unpaid parental leave. This can be extended by up to 12 months.

An employee can also ask for special working arrangements when they come back to work after a period of parental leave. For example, they may request to work fewer days or hours, or on different days or at different times. There are rules around how you need to handle requests like this. 

Visit Parental leave for more information.

Long service leave

Long service leave is a paid leave entitlement for employees who have continuous employment with an employer for a specified period.  

This section provides information on the provisions of the state Long Service Leave Act 1958. An employee will be covered by the state Long Service Leave Act unless they have an alternative entitlement that provides a better or at least equivalent long service leave entitlement, for example, under an award, agreement, statute or contract of employment. Employees who work on site in the construction industry may be covered by the Construction Industry Portable Paid Long Service Leave Act 1985.  

Visit Long service leave for more information on who is covered by the Long Service Leave Act.

The entitlement to long service leave for full time, part time and casual employees under the Long Service Leave Act is:

  • after 10 years of ‘continuous employment’ with the ‘one and the same employer’ – 82/3 (8.667) weeks of leave on ‘ordinary pay’; and
  • for every 5 years of ‘continuous employment’ with the ‘one and the same employer’ after the initial 10 years – 41/3 (4.333) weeks of leave on ‘ordinary pay’.

If an employee’s employment ends after at least 7 years of ‘continuous employment’ with the ‘one and the same employer’, in most instances they are entitled to payment for the pro rata long service leave.

To be entitled to long service leave under the Long Service Leave Act, an employee’s employment with their employer must be continuous. The amount of their long service leave is determined by the employee’s period of continuous employment. There are a range of paid and unpaid absences or interruptions to employment that count towards an employee’s period of employment for the purposes of accruing long service leave. Some other types of absences do not break an employee’s continuous employment, but do not count towards an employee’s period of employment for the purposes of accruing long service leave.

The ‘one and the same employer’ also includes employers who previously owned a business, where there has been a ‘transmission of business’. This means an employer who buys or otherwise acquires a business or part of a business will take on the long service leave obligations for existing employees if there has been a transmission of business. This applies regardless of anything written in a sale of business contract.

Visit the Long service leave page for comprehensive information on long service leave and Wageline’s WA long service leave calculator, which provides an estimate of an employee’s long service leave entitlement when employment ends as a result of resignation, dismissal, death or redundancy.

When employment ends or changes significantly

If an employee is going to stop working for you, there are things you must do. You will have obligations if:

  • you are dismissing the employee; or
  • an employee is resigning.

There are also things you must do if you want to make significant changes that will affect an employee.   

This section covers the main things you need to know.

Resignation by the employee

Employees can resign from their job at any time and for any reason. Employees need to provide notice of resignation. Notice is the time between when an employee tells you they are resigning, and when their employment actually ends. The required notice period may be specified in an employment contract or in a WA award that applies to the employee.

If the employee is award free, or if there are no provisions in an award or contract of employment detailing the required notice of resignation, employees need to provide reasonable notice. There is no set definition of how much notice is 'reasonable'.  What is reasonable will depend on the circumstances. 

If an employee resigns you will need to pay the employee for any wages or leave entitlements they are owed when they resign. Please note that the amount of entitlements owed to an employee on resignation may be affected by the provisions of a WA award, if one applies. For example, you should check any specific requirements about annual leave being paid out when employment ends in the relevant WA award summary.

Visit When employment ends for more information on resignation obligations.

Termination by the employer

When you are ending an employee’s employment due to dismissal or redundancy, you must provide the required notice periods and meet other obligations, as detailed in the sections below.

Notice periods and other requirements

If you have made a decision to dismiss an employee, you must provide the required notice period to the employee.  

A notice period is the time between when you tell an employee their employment is ending, and when their employment actually ends. There are minimum notice periods required for full time and part time employees based on how long the employee has been employed and the employee's age.  

These notice periods are set out in the national Fair Work Act 2009, and apply throughout Australia, including to employers and employees working in the state industrial relations system.

Employee's period of continuous service                                       Minimum period of notice
Not more than 1 year At least 1 week
More than 1 year but not more than 3 years At least 2 weeks
More than 3 years but not more than 5 years At least 3 weeks
More than 5 years At least 4 weeks

If the employee is aged 45 years or older and has at least two years' continuous service, they are entitled to one extra week of notice on top of the above notice periods - for example, a 50 year old employee who has worked continuously for 3 1/2 years must receive 4 weeks' notice (3 weeks plus 1 week).

A relevant WA award may also require an employer to give a certain amount of notice when an employee is dismissed. If a WA award requires a longer period of notice than the minimum set out in Fair Work Act, the notice specified in the WA award must be given. If a WA award requires a shorter period of notice than the Fair Work Act, the notice period in the Fair Work Act must be given.

The Fair Work Act notice periods do not apply if the employee is casual. Casuals can be dismissed by giving the notice required in a relevant WA award, or reasonable notice if there are no specific award provisions or the employee is award free. There is no set definition of how much notice is 'reasonable'. What is reasonable will depend on the circumstances.

The notice periods also do not apply if the employee:

  • is being dismissed for serious misconduct; or
  • was employed for a specific period of time or task (e.g. a fixed term contract).

Visit When employment ends for more information about dismissal notice periods.

You must also:

  • pay out any unpaid wages and leave owing to the employee; and
  • provide a separation certificate if the employee requests it (a written statement stating the period of employment and type of job or work performed).

Please note that the amount of entitlements owed to an employee on termination may be affected by the provisions of a WA award, if one applies. For example, you should check any specific requirements about annual leave being paid out when employment ends in the relevant WA award summary.

Unfair dismissal

Employees are protected from unfair dismissal. This means you cannot dismiss an employee for an unfair reason or in an unfair way. Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. An employee who believes they have been unfairly dismissed can make a claim for unfair dismissal to the Western Australian Industrial Relations Commission.

Visit When employment ends for more general information about dismissal and FAQs (frequently asked questions) about unfair dismissal.

Managing employee performance

Sometimes you might feel that an employee’s work is not meeting the required standard. Before you dismiss an employee, you should consider if anything can be done to help improve their performance.

Visit When employment ends for information about managing employee performance.

Serious misconduct

Serious misconduct is different to poor work performance. Serious misconduct is behaviour that is inconsistent with the employment contract – for example, causing a serious safety risk; committing theft, fraud or assault; or being intoxicated at work.

If, after considering all the evidence, you conclude that an employee has engaged in serious misconduct, you may then terminate the employee without giving them notice. This should be done in writing, and the employee should always be informed why they are being terminated.

Visit When employment ends for information about serious misconduct.

Unlawful termination

Unlawful termination is different to unfair dismissal. Unlawful termination is when an employee is dismissed for one or more specific reasons which are not allowed under federal laws. The reasons include when an employee is dismissed because of:

  • race, colour, sex, sexual orientation, age, family or carer’s responsibilities;
  • trade union membership or activities; and
  • temporary absence from work due to illness or injury.

Further information is available on the Fair Work Commission website.

Redundancy

Redundancy occurs when an employer decides that they no longer want to employ anyone to do the job an employee has been doing. It is not a redundancy if an employee is dismissed and replaced with another employee.  

If you make an employee redundant you will need to provide the correct notice period and pay out any unpaid wages and accrued leave.

The entitlement to redundancy payments can depend upon the WA award that applies. Severance pay does not generally apply to businesses with less than 15 employees (including casual and part time employees). However, some WA awards have specific severance pay requirements that apply regardless of the number of employees in a business.

Visit When employment ends for more information about redundancy.

Introduction of changes with significant effect

If you are going to take action that is likely to have a significant effect on an employee, there are things you must do. Significant actions could include changes to the work an employee does or changes to the hours they work. You must notify an employee about the change in writing and consult with them about the decision.

Visit When employment ends for more information.

Other employment obligations

Employers have a number of obligations under other laws. Contact the relevant agency for more information.

Stay informed with Wageline

Subscribe to Wageline News to get employment information sent direct to your inbox each month or follow Wageline on social media to stay informed on:

  • increases to the state minimum wage and WA award rates of pay;
  • changes to key WA awards; and
  • critical issues employers need to know to comply with state employment laws.

Guide for new employers publication 

Wageline's guide to key employment obligations for new state system small business employers is also available in PDF format

Understanding employment obligations - A guide for new employers in the state system  

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