As of 1 January 2023, all WA local governments are covered by the state industrial relations system. Transitional arrangements apply for local government employers previously operating under the national Fair Work Act 2009.
Transitional arrangements
If a local government was covered by a federal industrial instrument (old federal instrument) immediately before 1 January 2023, then that instrument becomes a state industrial agreement (new State instrument) under the Industrial Relations Act 1979 (IR Act). An old federal instrument means:
- a federal modern award;
- a federal enterprise agreement;
- a workplace determination; or
- an order of the Fair Work Commission.
The new State instrument has the same terms and conditions as the old federal instrument, although any terms and conditions that are less favourable than the Minimum Conditions of Employment Act 1993 (WA) are of no effect.
The new State instrument has a nominal expiry date that is the earlier of the following:
- two years after 1 January 2023; or
- the nominal expiry date specified in the old federal instrument.
Example 1
On 1 January 2023, the local government employer’s federal enterprise agreement (the old federal instrument) becomes an industrial agreement (the new State instrument) under the IR Act. The nominal expiry date of the new State instrument is 30 June 2023, in accordance with its terms.
Example 2
On 1 January 2023, the Local Government Industry Award 2020 becomes an industrial agreement (the new State instrument) under the IR Act. The nominal expiry date of the new State instrument is 2 January 2025, which is two years after 1 January 2023.
Although a new State instrument has a maximum nominal term of two years, it continues to operate after its nominal expiry until a new agreement is made in substitution for it, or a union or employer party retires from it. There is also nothing to prevent the parties from negotiating and making a new agreement during the nominal term of a new State instrument.
While a new State instrument is in force, a state award under the IR Act does not apply for a period of two years beginning on 1 January 2023 (i.e. up until 1 January 2025). After this time, a state award could apply in conjunction with the new State instrument (although the new State instrument will prevail to the extent of any inconsistency).
Continuity of employment and leave entitlements
An employee’s continuity of employment and any leave entitlements accrued in the national industrial relations system are preserved and recognised in the state system. Transitional provisions in the IR Act provide that a period of leave taken under an old federal instrument is deemed to have been taken under a new State instrument.
Amendment to new State instruments
A local government employer, employee or registered organisation may apply to the Western Australian Industrial Relations Commission (WAIRC) to amend a new State instrument. The WAIRC may make the amendment if it is satisfied it is fair and reasonable to do so in the circumstances. The amendment may be provided to take effect:
- immediately; or
- progressively, in stages specified in the amendment.
Other transitional arrangements
A variety of other transitional arrangements are included in the IR Act, including provisions:
- enabling the WAIRC to deal with any matters that were underway in the national system prior to a local government transferring to the state system, e.g. a bargaining dispute; and
- enabling a state registered organisation of employees to be added as a named party to a new State instrument, if employees covered by the instrument are eligible to be members of the organisation.
The Commonwealth has also made regulations to enable:
- certain applications made under the Fair Work Act 2009 before 1 January 2023, to continue to be dealt with under that Act (e.g. unfair dismissal and general protection applications);
- certain applications to be made under the Fair Work Act after 1 January 2023, where those applications relate to conduct that occurred before 1 January 2023.
For more information see the Fair Work Amendment (Transitional Arrangements – Western Australian Local Government Employers and Employees) Regulations 2022 or call the Fair Work Commission on 1300 799 675 or the Fair Work Ombudsman on 13 13 94.
