Changes to state employment laws in Western Australia

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In 2022 changes to state employment laws were introduced by the Industrial Relations Legislation Amendment Act 2021 (IRLA Act).

The majority of changes commenced on 20 June 2022. The provisions relating to the Easter Sunday public holiday commenced on 12 February 2022.

This page outlines the key changes resulting from the commencement of the IRLA Act. The content of the Wageline website has also been updated to incorporate the amendments to state employment law introduced by the IRLA Act.

New employment entitlements for domestic workers employed by household employers

The definition of ‘employee’ in the Industrial Relations Act 1979 (IR Act) and the Minimum Conditions of Employment Act 1993 (MCE Act) has been updated to remove the existing exclusion for persons engaged in domestic service in a private home (including carers employed directly by the householder). This extends coverage of the IR Act and the MCE Act to such workers.

Household employers now have new employment obligations for domestic employees. Get more information via:

Extension of coverage of the MCE Act to employees paid wholly by commission, employees paid wholly by piece rate employees and removal of other exclusion

The definition of ‘employee’ under the MCE Act has been amended to remove previous exclusions 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.

Employers now have new employment obligations for these type of employees. Get more information via:

Amendments to the Long Service Leave Act

Changes have been made to the Long Service Leave Act 1958 (LSL Act). State long service leave obligations apply to most WA employers. Key amendments are:

  • Clarification of 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.
  • Introduction of new ‘transfer of business’ provisions based on the same provisions in the Fair Work Act 2009.
  • Strengthening of enforcement provisions through introducing penalties for contravening the LSL Act or failing to keep required employment records relating to long service leave.

Get more information via:

Additional record keeping requirements and new pay slip requirements

State system employers have additional employment record keeping requirements and a new requirement has been introduced for all state system 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.

Get more information via:

Stop bullying and sexual harassment orders

A stop bullying and sexual harassment jurisdiction for the WAIRC has been established to provide workers with a quick and inexpensive avenue to address bullying and sexual harassment. Get more information via:

Family and domestic violence leave

An entitlement has been introduced for five days' unpaid family and domestic violence leave per year for all full time, part time and casual employees. Get more information via:

Personal leave

The provisions for paid sick leave and paid carer’s leave in the MCE Act have been changed to a combined entitlement to paid personal leave for full time and part time employees, and the cap on the number of hours of leave that can be used for caring purposes in one year has been removed. Get more information via:

New employee protections provisions

Employee protections in the state industrial relations system have been increased 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.

Get more information via:

Enhanced powers for industrial inspectors

The powers of state industrial inspectors have been enhanced 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.

Get more information via the New compliance tools fact sheet.

Increased penalties and accessorial liability

Enforcement mechanisms have been strengthened and penalties increased 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.

Get more information via the Increased penalties and accessorial liability fact sheet.

Easter Sunday is now a public holiday in WA

The provisions of the IRLA relating to making Easter Sunday a public holiday commenced on 12 February 2022. These provisions:

  • Amended 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.
  • Implemented provisions so that any state awards and industrial agreements that provide for public holidays automatically recognise Easter Sunday as a public holiday.

Get more information on Easter Sunday via:

Other amendments to the IR Act

Other key amendments to the IR Act include:

  • Introducing an equal remuneration jurisdiction to the WAIRC. The WAIRC is able to make an equal remuneration order on application from a range of parties, and is required to issue an equal remuneration principle as part of the State Wage order each year.

Get more information via the New equal remuneration provisions fact sheet or the Equal remuneration provisions page.

  • Changes to the right of entry provisions. The Changes to state employment laws in WA - Right of entry 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 is required to publish any proposed variation and serve it on relevant parties.
  • 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.

Amendments to the Minimum Conditions of Employment Act

Other key amendments to the MCE Act include:

  • 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.

 

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