What will change with state laws covering local government?

The change in legislation in Western Australia for local government to be covered by state laws — not federal ones — will bring HR-related changes to many employers.

It represents a shift in balance from the Commonwealth to the states in the management of employees, according to Jo Alilovic, owner of 3D HR Legal.

“From January 1, 2023, Western Australian local government employers and employees will be covered by state employment laws over Commonwealth laws,” she said, adding the laws in WA substantially mirror the Commonwealth ones.

The move from Commonwealth to state employment laws was first flagged by the McGowan Government in 2018, following an independent review that identified significant legal doubt about whether local governments could validly operate under the Commonwealth laws.

Around 137 local governments, eight regional local governments and 23,000 employees are now covered by state employment laws.  

Western Australia joins Queensland, South Australia and New South Wales in regulating local governments under state-based employment laws.

Major changes for employers

However, there are some significant changes that employers will want to be aware of.

“One big change is the requirement for all employees to keep timesheets recording start/finish times, hours of work and details of breaks,” Alilovic said. “This is proving a headache for employers as they determine efficient ways to record this information, and it is likely to be frustrating for employees who are used to more flexibility around their working hours.

Another consideration for employers? There is no longer a qualifying period for an employee to bring a claim for unfair dismissal, compared to the six months period in the federal system, she said.

However, there are Western Australian laws that “are less beneficial” to employees, according to Alilovic.

“In WA, you can only take bereavement leave when a family or household member dies,” she said. “In the federal system, this extends to where the family or household member has a life-threatening illness or injury.

Plus, there is “a lesser entitlement” to family and domestic violence leave, said Alilovic, and “employees can’t negotiate directly with their employer for a collective agreement. In WA, all such agreements must be negotiated with a union.”

Recently, the Western Australia government also mandated employers to identify, minimise, and stamp out psychosocial risks in the workplace.

Future laws

The question now arises about whether certain states in Australia try to override other federal government laws in a bid to take control of employer and employee rights.

“There are significant benefits in having federal employment laws,” Alilovic said. “For example, employers who have team members working across Australia have the bulk of everyday workplace employment conditions contained in one piece of legislation — noting that long service leave and workers compensation and workplace safety continue to be managed at a state level — making it easier to ensure consistency and compliance.

“Further, federal law means there is a greater precedent base for the interpretation of the law, again making it easier for employers to have a correct understanding of the law and how it applies.”

It is expected that other states and territories will soon follow WA, NSW, SA and Queensland in taking back control over local government employees from federal legislation.