On 18 September 2024, the Industrial Relations Legislation Amendment Bill 2024 (the Bill) was introduced into State Parliament.
The Bill seeks to continue to modernise the state system, improve minimum conditions, and ensure only fit and proper people have the ability to enter WA workplaces. It is the State Government’s second tranche response to the 2018 Ministerial Review of the State Industrial Relations System.
The Bill is currently being considered by State Parliament and the proposed changes to state employment law will not come into effect until the Bill is passed by Parliament and proclaimed to come into operation.
The Bill will primarily amend the Industrial Relations Act 1979 (IR Act) and the Minimum Conditions of Employment Act 1993 (MCE Act).
Key reforms are outlined below.
Amendments to the IR Act:
- Abolishing the constituent authorities of the Western Australian Industrial Relations Commission (WAIRC), the Public Service Arbitrator (PSA) and the Public Service Appeal Board (PSAB), as well as the redundant Railways Classification Board. The jurisdiction and powers of the PSA and PSAB will be transferred to the general jurisdiction of the WAIRC.
- Providing public sector employees with access to the WAIRC for alleged breaches of specified public sector standards, including those for transfer and termination, to enable these breach claims to be conciliated and arbitrated.
- Establishing a fit and proper person test for a union official to obtain a right of entry permit under the IR Act.
- Redefining the terms “employee” and “employer” and “casual employee” to be based on the real substance and practical reality of the relationship rather than strict contractual terms. These definitions will also apply under the MCE Act and the Long Service Leave Act 1958.
- Introducing a new prohibition on sexual harassment in connection with work, consistent with the national Fair Work Act 2009 provisions
- Increasing civil penalties for contravening state employment laws to be broadly consistent with the penalties under the national Fair Work Act. Maximum penalties are increasing from $65,000 to $93,000 for a body corporate and $13,000 to $18,000 for an individual, along with higher maximum penalties for serious contraventions.
- Enabling the Local Government (Long Service Leave) Regulations 2024, which provide long service leave entitlements to local government employees, to be enforced under the IR Act. Breaches of the regulations will be able to be investigated by industrial inspectors and enforcement proceedings able to be taken to the Industrial Magistrates Court.
- Providing for improved regulation of registered industrial agents.
- Prohibiting misconduct before the WAIRC including insulting, obstructing or hindering a Commissioner in the performance of their functions.
Amendments to MCE Act
- Increasing the statutory minimum casual loading from 20 to 25 per cent.
- Amending the public holiday minimum condition to:
- provide employees with an entitlement to be absent from work on a public holiday and for an employee to be paid for their ordinary hours on that day;
- allow an employer to request an employee to work on a public holiday if reasonable; and
- allow an employee to refuse a request to work on a public holiday, if the request is not reasonable, or the refusal is reasonable.
- Introducing a new enforceable minimum condition enabling employees with at least 12 months’ service to request a flexible working arrangement in certain circumstances, such as where the employee is returning from parental leave, has a disability or is experiencing family and domestic violence.
- Repealing the MCE Act parental leave provisions, as the parental leave provisions in the FW Act apply to both State and national system employees.
More information
A copy of the Industrial Relations Legislation Amendment Bill 2024 and the Explanatory Memorandum for the Bill are available on the Parliament of Western Australia website.
