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Changes to Western Australian employment laws

Please note: This article is intended to be brief information only and should not be relied or acted upon as legal advice. You should always seek legal advice tailored to your own individual circumstances. Please also note that this article is current as at the date of publication and the law may have subsequently changed since.

It has recently been announced that Western Australian state employment law changes introduced by the Industrial Relations Legislation Amendment Act 2021 (WA) (Amendment Act) will commence on Monday, 20 June 2022.

The Amendment Act amends key employment legislation, including the Industrial Relations Act 1979 (IR Act), the Minimum Conditions of Employment Act 1993 (MCE Act), the Long Service Leave Act 1958 (LSL Act),and the Public and Bank Holidays Act 1972.

A number of the changes have been introduced to more closely align WA industrial laws with federal industrial laws.

Some of these changes will only effect employers and employees covered by the state industrial relations system, whereas some changes will also be relevant to national system employers and employees covered by the federal industrial relations system (particularly in relation to changes to long service leave legislation).

The key amendments and changes include:

  • increased employee protections through prohibitions on:
    • employers taking “damaging action” against employees who make an employment-related complaint or inquiry (being similar in nature to the general protection against adverse action in relation to making complaints or inquiries under the Federal industrial relations system);
    • 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;
    • employees being unreasonably required to spend their own money or pay back their wages (often referred to as “cash back” arrangements);
    • employees being paid in ways other than money such as being paid in goods or accommodation; and
    • unreasonable deductions from an employee’s pay which are for the benefit of the employer;

  • the establishment of a stop bullying and sexual harassment jurisdiction for the Western Australian Industrial Relations Commission (WAIRC) to provide workers with a quick and inexpensive avenue to seek orders to prevent or stop bullying and sexual harassment at work;

  • strengthened enforcement mechanisms and increased penalties, including:
    • expanded employment record keeping requirements and introducing a new requirement for all employers to issue pay slips;
    • the introduction of accessorial liability for persons involved in contraventions;
    • an increase in 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; and
    • establishing that employers have the burden of disproving allegations in enforcement proceedings if they failed to keep relevant employment records;

  • significant changes in relation to long service leave under the LSL Act, including:
    • introducing new “transfer of business” provisions based on the equivalent provisions in the Fair Work Act 2009 (Cth);
    • introducing penalties for contravening the LSL Act or failing to keep required employment records relating to long service leave; and
    • clarifying a number of entitlements and providing for greater flexibility in how long service leave is taken;

  • provisions enabling local governments to be declared ‘not to be national system employers’ for the purposes of the Fair Work Act 2009 (Cth), and providing for transitional arrangements to move local government employers from the national industrial relations system to the state system; and

  • an updated and expanded definition of “employee” in the IR Act and the MCE Act, to remove previous exceptions for persons engaged in domestic service in a private home (including carers employed directly by the householder) and with the effect of extending the coverage of the IR Act and the MCE Act.

Further information

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