Private sector employers and employees
Telephone: 1300 655 266
Mailing address
Locked Bag 100
East Perth WA 6892
The Private Sector Labour Relations Division (Labour Relations) of the Department of Mines, Industry Regulation and Safety (the Department) has a number of functions, including the provision of advisory, education and compliance services for State employment laws.
This Compliance and Enforcement Policy (the Policy) sets out the principles adopted by Labour Relations to secure compliance with the following State employment laws:
The primary objectives of the Policy are to:
Two industrial relations systems operate in Western Australia - the State system and the national system.
Labour Relations oversees compliance in the State system. In the national system, compliance is overseen by various bodies including the Fair Work Ombudsman and the Australian Building and Construction Commission.
The Industrial Relations Act 1979 and the Minimum Conditions of Employment Act 1993 generally only apply to:
The Long Service Leave Act 1958 applies to most private sector employers and employees in Western Australia, including the majority of those covered by the national system.
Part 7 of the Children and Community Services Act 2004 dealing with the employment of children applies to all employers and employees in Western Australia, including those covered by the national system. Labour Relations enforces Part 7 of the Act pursuant to a Memorandum of Understanding with the Department of Communities.
Further information on who is covered by the State industrial relations system can be found in the Guide to who is in the WA state system
There are various ways that Labour Relations seeks to achieve compliance.
One informal but important way is advising employers and employees of their rights and obligations under State employment laws. Labour Relations does this through its Wageline service, online education materials, seminars and media releases.
Where a formal complaint is made to Labour Relations by an employee that they have not received their correct entitlements, Labour Relations will generally conciliate between the employee and their employer. Most complaints are resolved this way. Conciliation is a quick, efficient and cost effective way of achieving voluntary compliance with State employment laws.
Assisting employers and employees to understand their respective rights and obligations is the optimal way of achieving compliance. A key objective of Labour Relations is to empower the parties to self-regulate through the provision of readily accessible information.
Private sector employers and employees can speak with a Wageline adviser on 1300 655 266. Wageline also responds to email queries at wageline@dmirs.wa.gov.au
The Department’s website provides information and tools for employers and employees including WA award summaries, leave calculation guides and detail on minimum pay rates, when children can work and record keeping requirements. The Wageline Newsletter email service for employers provides regular updates on critical employment issues, including changes in pay rates.
Labour Relations has a number of officers designated as industrial inspectors under the Industrial Relations Act 1979. Industrial inspectors may investigate alleged breaches of State employment laws, as well as take enforcement action in the Industrial Magistrates Court.
The primary role of industrial inspectors is set out in section 98(2) of the Industrial Relations Act 1979 and a directive issued by the Minister for Industrial Relations.
The powers of industrial inspectors are set out in the various State employment laws, including:
Industrial inspectors do not represent employers or employees. They act impartially and fairly to achieve compliance with State employment laws. Industrial inspectors are bound by the Department’s Code of Conduct in the performance of their duties, as well as the Public Sector Commissioner’s Code of Ethics.
If an employee makes a formal complaint to Labour Relations that they have not been paid their correct entitlements, the complaint will generally be referred to conciliation.
An experienced industrial inspector will attempt to conciliate between the employee and their employer. The parties are encouraged to try and resolve the complaint between themselves, with appropriate assistance from the industrial inspector. The conciliation period is generally up to 21 days.
Most complaints received by Labour Relations are resolved quickly and satisfactorily through conciliation. However, where complaints cannot be resolved they may be referred to a formal investigation.
It should be noted that complaints under Part 7 of the Children and Community Services Act 2004 are referred straight to a formal investigation. These complaints concern the welfare of children and are not considered appropriate for conciliation.
Labour Relations may formally investigate a complaint if it meets certain public interest guidelines. A formal investigation involves an industrial inspector gathering evidence to determine whether there has been a breach of a State employment law.
As part of a formal investigation, an industrial inspector will generally:
Depending on the circumstances of the case, a formal investigation may take up to 12 months to complete.
If an employer does not rectify an identified breach after a formal investigation, Labour Relations may:
Labour Relations does not formally investigate every complaint that it receives, and exercises discretion in deciding which matters to investigate. Labour Relations has developed guidelines to assist determining whether a complaint will be formally investigated. These guidelines are set out in Attachment A to this Policy.
Even if a complaint meets the guidelines, Labour Relations may decide not to investigate, or continue with an investigation, because of some countervailing reason. For example, it may not be in the public interest to:
Labour Relations must direct its resources in the most efficient and effective way possible to achieve compliance with State employment laws. Formally investigating every complaint made does not necessarily achieve this objective.
Labour Relations undertakes targeted proactive compliance campaigns and audits. Proactive compliance is often intelligence-led and risk-based. For example, if Labour Relations receives a large number of complaints about a particular industry, this may be an indicator of wider spread problems in that industry.
Proactive campaigns are also used by Labour Relations to raise awareness of employers’ obligations under State employment laws.
Examples of proactive campaigns include:
Proactive campaigns are undertaken by industrial inspectors utilising their powers under State employment laws. As part of a proactive campaign, inspectors may enter the workplace, inspect records, speak to any person and compel answers. While these compulsory powers are not used often, they are an important compliance tool and will be used as required.
Employers that are found to be in breach of their employment obligations in a proactive compliance campaign will generally be given the opportunity to voluntarily rectify the breach. However, there will be instances in which it is appropriate for Labour Relations to commence court action.
Labour Relations will work with employers to assist them to comply with State employment laws. For example, Labour Relations partnered with a national franchisor after finding one of its franchisees had breached Part 7 of the Children and Community Services Act 2004. The franchisor undertook a voluntary audit of all its Western Australian stores to check compliance with the Act. It also updated its website, job application forms and information/training materials for franchisees to include information on the Act.
Labour Relations may undertake proactive compliance campaigns in conjunction with other relevant government agencies including the Fair Work Ombudsman, Australian Border Force and the Department of Communities.
Labour Relations may decide to take action in the Industrial Magistrates Court to enforce a State employment law. Court action is generally taken in the civil jurisdiction of the Industrial Magistrates Court.
However, court action under Part 7 of the Children and Community Services Act 2004 is taken in the prosecution jurisdiction of the Court.
The remedy that Labour Relations is able to seek will depend on the particular State employment law being enforced. In general terms, the remedy may be an order(s) that the employer:
Labour Relations exercises discretion in deciding whether to commence court action against an employer. Court action may be taken where:
In deciding whether to take court action, Labour Relations broadly applies the Director of Public Prosecutions “Statement of Prosecution Policy and Guidelines 2018”. While this Statement relates to criminal proceedings, it still has relevance to the commencement of civil proceedings where pecuniary penalties may apply.
Prima facie case
Court action will only proceed where there is a prima facie case against the employer alleged to have breached the State employment law.
In assessing whether a prima facie case exists, consideration is given to:
In the event that a prima facie case exists, consideration is given to the prospects of success.
Public interest
Even if a prima facie case exists and there are reasonable prospects of success, court action will only be taken if in the public interest.
Public interest factors supporting court action include:
Public interest factors weighing against court action include:
In the event that Labour Relations takes successful court action, it will usually issue a media statement with the case details and publish the statement on the Department’s website.
If Labour Relations decides not to take court action against an employer, the employee has the option of taking their own action. In this case, Labour Relations can:
It is important to remember that Labour Relations does not represent individual employees, and that taking court proceedings involves significant time and public resources. However, court action is the ultimate tool of enforcement available to Labour Relations and will be utilised where appropriate and necessary.
Disclaimer – The information contained in this fact sheet is provided as general information and a guide only. It should not be relied upon as legal advice or as an accurate statement of the relevant legislation provisions. If you are uncertain as to your legal obligations, you should obtain independent legal advice.
Factors supporting a formal investigation | Examples |
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Children and Community Services Act 2004 An allegation relating to a breach of Part 7 of the Children and Community Services Act 2004 will usually be investigated (concerning the employment of children under 15 years) |
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Vulnerability of employee Employee is vulnerable because of:
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Training contract Employee is on a training contract registered under the Vocational Education and Training Act 1996 (WA) |
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Employee has received no pay or inadequate pay These factors may be indicative of exploitation |
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Employer has had past compliance issues Employer has had past compliance issues with Labour Relations |
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Seriousness of alleged breach The nature of the alleged breach appears to be serious |
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Employer has obstructed an industrial inspector It is unlawful to obstruct or wilfully mislead an industrial inspector in the performance of their duties |
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