In 2022 state employment law changes were introduced by the Industrial Relations Legislation Amendment Act 2021 (IRLA Act).
The provisions relating to the Easter Sunday public holiday commenced on 12 February 2022 and the majority of these changes commenced on 20 June 2022.
The key changes resulting from the commencement of the IRLA Act are outlined below.
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) was updated to remove the previous exclusion for persons engaged in domestic service in a private home (including carers employed directly by the householder). This extended coverage of the IR Act and the MCE Act to such workers.
Extension of coverage of the MCE Act and removal of other exclusions
The definition of ‘employee’ under the MCE Act was 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.
Amendments to the Long Service Leave Act
Changes made to the Long Service Leave Act 1958 (LSL Act) include the following key amendments:
- 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.
Additional record keeping requirements and new pay slip requirements
State system employers have additional employment record keeping requirements and a new requirement was 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.
Stop bullying and sexual harassment orders
A stop bullying and sexual harassment jurisdiction for the Western Australian Industrial Relations Commission was established to provide workers with a quick and inexpensive avenue to address bullying and sexual harassment.
Family and domestic violence leave
An entitlement was introduced for five days' unpaid family and domestic violence leave per year for all full time, part time and casual employees.
Personal leave
The provisions for paid sick leave and paid carer’s leave in the MCE Act were 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 was removed.
New employee protections provisions
Employee protections in the state industrial relations system were 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.
Enhanced powers for industrial inspectors
The powers of state industrial inspectors were 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.
Increased penalties and accessorial liability
Enforcement mechanisms were 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.
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.
Other amendments to the IR Act
Other key amendments to the IR Act included:
- 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.
- Amending the definition of ‘employer’ to include foreign states and consulates that employ people in Western Australia.
- 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.
- Changes to the right of entry provisions.
- Enabling local governments to be declared ‘not to be national system employers’ for the purposes of the Fair Work Act 2009, to move local government employers from the national industrial relations system to the state system and providing for transitional arrangements. Since 1 January 2023 all local governments in Western Australia have been in the state system and transitional arrangements operated for a period of 2 years from this date.
Amendments to the Minimum Conditions of Employment Act
Other key amendments to the MCE Act included:
- 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.
