On 16 December 2021, the Industrial Relations Legislation Amendment Bill 2021 was passed by State Parliament.
The new state employment laws introduced by the Industrial Relations Legislation Amendment Act 2021 (IRLA Act) will commence in early 2022.
The IRLA Act is the State Government’s response to the recommendations made by:
The IRLA Act amends 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 are outlined below.
Amendments to the IR Act
Key amendments to the IR Act include:
- Updating 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 (including carers employed directly by the householder). This will extend coverage of the IR Act and the MCE Act to such workers.
The Employment entitlements to apply to domestic employees employed by household employers fact sheet has more information.
- Amending the definition of ‘employer’ to include foreign states and consulates that employ people in Western Australia.
- 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. The WAIRC will be required to publish any proposed variation and serve it on relevant parties.
- Expanding employment record keeping 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.
The Additional employment record obligations and New pay slip requirements fact sheets have more information.
- Establishing a stop bullying and sexual harassment jurisdiction for the WAIRC to provide workers with a quick and inexpensive avenue to address bullying and sexual harassment.
The New stop bullying and sexual harassment provisions fact sheet has more information.
- Introducing an equal remuneration jurisdiction to the WAIRC. The WAIRC will be able to make an equal remuneration order on application from a range of parties, and will be required to issue an equal remuneration principle as part of the State Wage order each year.
The New equal remuneration provisions fact sheet has more information.
- Enabling WAIRC Commissioners who qualify for appointment as a magistrate to be capable of appointment as an industrial magistrate under the IR Act.
- Enabling 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 employee protections through a prohibition on:
- employers taking ‘damaging action’ against employees who make an employment-related inquiry;
- employers engaging in sham contracting arrangements;
- employment being advertised at a rate of pay that is less than the applicable minimum wage for the position;
- employers establishing cash back arrangements to hide wage theft;
- employees being paid in ways other than money such as being paid in goods or accommodation, which often facilitates exploitative working arrangements; and
- unreasonable deductions from an employee’s pay which are for the benefit of the employer.
The New employee protections provisions fact sheet has more information.
- Enhancing the powers of industrial inspectors by enabling inspectors to:
- issue infringement notices to employers for failing to comply with record keeping or pay slip requirements, or failing to produce a record as required;
- enter into an enforceable undertaking with an employer to voluntarily rectify identified breaches; and
- issue a compliance notice to an employer requiring them to rectify identified breaches.
The New compliance tools fact sheet has more information.
- Strengthening enforcement mechanisms and increasing penalties including:
- raising the maximum penalty for contravening an industrial instrument;
- establishing higher penalties for serious contraventions, 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; and
- establishing that employers have the burden of disproving allegations in enforcement proceedings if they failed to keep relevant employment records.
The Increased penalties and accessorial liability fact sheet has more information.
Amendments to the Long Service Leave Act
Key amendments to the LSL Act include:
- 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 any length; and
- 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 same provisions in the Fair Work Act 2009.
- Strengthening enforcement provisions through introducing penalties for contravening the LSL Act or failing to keep required employment records relating to long service leave.
The Amendments to the Long Service Leave Act fact sheet has more information.
Amendments to the Minimum Conditions of Employment Act
Key amendments to the MCE Act include:
- Amending the definition of ‘employee’ to remove 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; and
- appointed as wardens by the National Trust.
The Employment entitlements to apply to employees paid wholly by commission and Employment entitlements to apply to employees paid wholly by piece rates fact sheets have more information.
- Introducing an entitlement to five day’s unpaid family and domestic violence leave per year for all full time, part time and casual employees.
The New unpaid family and domestic violence leave entitlement fact sheet has more information.
- Modernising the current provisions for paid sick leave and paid carer’s leave in the MCE Act 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 can be used for caring purposes in one year.
The Personal leave entitlements fact sheet has more information.
- 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 a minimum weekly wage in the State Wage Case for employees working under the SWS, which must be the same as that set by the Fair Work Commission in the national wage case.
Amendments to make Easter Sunday a public holiday
- Amending the PBH Act and the MCE 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.
The Easter Sunday public holiday entitlements for state system employees fact sheet has more information.
A copy of the Industrial Relations Legislation Amendment Act 2021 and the Explanatory Memorandum are available on the Parliament of Western Australia website.