Western Australia's new IR laws take effect

Changes to Western Australia’s (WA) employment laws took effect on 20 June, introducing amendments in employment provisions, including leave, contracts harassment, and right of entry rules.

Recommendations from the 2018 Ritter review of the State industrial relations (IR) system and the 2019 Beech review into wage theft formed the basis for the Industrial Relations Legislation Amendment Act 2021 (IRLA Act). Some of the fundamental changes include:

• Extending the definition of “employee” to remove previously excluded workers
• Amending the definition of “employer” to include foreign states and consulates that employ people in Western Australia.
• Introducing an equal remuneration jurisdiction
• Giving the Western Australian Industrial Relations Commission (WAIRC) the capacity to broaden the scope of private sector awards
• Creating penalties for breaches of employment conditions in line with the Fair Work (FW) Act
• Prohibition on fake contracting arrangements
• Establishment of Easter Sunday as a public holiday which took effect on 12 Feb. 2022

According to Paul Moss, a consultant at the Chamber of Commerce and Industry Western Australia (CCIWA) consultant, many CCIWA members found the amendments to right of entry provisions and the Long Service Leave Act as the “most significant changes” in the current Act.

Right of entry

Moss said that during the discussion of the Bill, the Chamber raised its concern that many workplaces disallow the use of electronic recording devices for safety, security, or intellectual property reasons. 

Now, with the amended right of entry, authorized representatives can make electronic recordings of any work, material, machinery, or appliance relevant to the alleged breach being investigated.

However, according to the Department of Mines, Industry Regulation and Safety (DMIRS), the right to use electronic devices when investigating a suspected breach would still be subjected to other legal requirements and protections.

Long Service Leave Act (LSL Act)

Meanwhile, the new provisions in the LSL Act explained the absences that do not break an employee’s continuous employment and clarified that casual and seasonal employees are entitled to long service leaves

Furthermore, the amendment also provided increased flexibility regarding the taking of long service leave, enabling an employer and employee to agree to the employee taking long service leave in separate periods of any length and also 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.

Bullying and Sexual Harassment

The Bill also established a stop bullying and sexual harassment jurisdiction for the WAIRC to provide employees with an accessible and safe space to address bullying and sexual harassment.

“These provisions are based on those currently operating nationally under the FW Act, but it remains unclear whether the FWC will adopt the same process for triaging these applications as occurs with the FWC,” Moss said.

Local Government

Another key amendment to the IR Act included the move of local government employers from the national industrial relations system to the state system.

However, under the Act, the change would not occur for local governments currently covered under the national system unless the Federal Industrial Relations Minister issued a declaration for it to have a legal effect.

Moss said that, for the time being, the FW Act would continue to regulate the local governments, which are currently national system employers.