Record keeping obligations

It is compulsory for all state system employers to keep the following employment records:

• The employee’s name and, if under 21 years of age, their date of birth;
• The employer’s name and Australian Business Number (if any);
• Any industrial instrument that applies (name of the WA award or industrial agreement);
• Date the employee commenced employment with the employer;
• For each day of work:
  • The time at which the employee started and finished work;
  • Period/s for which the employee was paid; and
  • Details of work breaks including meal breaks;
• For each pay period:
  • The employee’s designation (such as full time, part time, casual) and employee classification;
  • The gross and net amounts paid to the employee under an industrial instrument or the Minimum Conditions of Employment Act (MCE Act);
  • Any amount withheld as tax; and
  • All deductions from pay and the reasons for them;
• Any incentive based payment, bonus, loading, penalty rates or other monetary allowance or entitlement;
• All leave taken, whether paid, partly paid or unpaid;
• Any agreement under the MCE Act to cash out annual leave, including the amount of annual leave cashed out, and the benefit provided to the employee, and when it was paid (note – an employee covered by a WA award cannot cash out annual leave unless the WA award allows cashing out of annual leave, and most WA awards do not contain such a provision);
• The information necessary for the calculation of and payment of long service leave under the Long Service Leave Act 1958 (LSL Act), the Construction Industry Portable Paid Long Service Leave Act 1985 or an industrial instrument (a WA award or agreement);
• Any other information required by a WA award, industrial agreement or other industrial instrument (such as the address of the employee, or hourly rate of pay) to be recorded;
• Any other information that is necessary to show that the pay and benefits received by the employee comply with the relevant WA award and/or other legal obligations such as employee entitlements under the MCE Act or the LSL Act;
• The following matters relating to superannuation:
  • The amount of the superannuation contributions made;
  • the period over which the superannuation contributions were made;
  • the date on which each superannuation contribution was made;
  • the name of any fund to which a superannuation contribution was made;
  • how the employer worked out the amount of superannuation owed; and
  • any choice made by the employee as to which fund their contributions are to be made and the date on which the choice was made; and
• Termination related matters, including:
  • Whether the employee’s employment was terminated by consent, notice, without notice by the employer (‘summarily’), or in some other specified manner; and
  • The name of the person who terminated the employee’s employment.

State system employers will also need to ensure that the following are kept as employment records:

• If an employer makes a payment to an employee in cash, the employer must provide a record of the payment to the employee and ensure that a copy of the record of payment is kept as an employment record;
• If an employer and employee enter into an agreement under the MCE Act to cash out some of the employee’s annual leave, the employer must ensure that a copy of the signed, written agreement is kept as an employment record; and
• If the Supported Wage System (SWS) or a supported wage industrial instrument provision (SWIIP) applies to an employee with a disability, an employer must keep the following employment records in relation to the employee;
  • Any agreement entered into under the SWS or SWIIP by the employer and employee; and
  • Any other document required to be kept by the SWS or SWIIP relating to the determination of a wage for the employee.

An employer must, as soon as possible, lodge with the Registrar of WAIRC a copy of an agreement entered into under the SWS that is required to be kept by the employer.

Employers are also required to comply with the record keeping requirements in the Long Service Leave Act.

Employee access to employment records

If an employer receives a written request from an employee or a former employee, the employer must allow them to inspect their own employment records during their employment or after their employment has ceased. The employee can also give written authorisation to another person to inspect the records on their behalf.

Access to records by the employee or their representative includes being able to enter the employer’s premises for the purpose of inspecting time and wages records, and taking copies or extracts of those records.

Employers must provide access no later than the end of the pay period after the written request is received, or seven days after the request.

Industrial Inspectors access to employment records

The Industrial Inspectors at the Department of Energy, Mines, Industry Regulation and Safety are State Government officers with legal authority to require access to employment records for individual employees or groups of employees. This includes being able to enter any premises where records are kept for the purpose of inspecting those records, seizing the records or taking copies or extracts from the records.

Industrial Inspectors use the employment records to check that employers are paying the correct wages and other employment entitlements.

Records can be inspected during a workplace visit, including where a complaint has been made by an employee or former employee.

If an industrial inspector proposes to enter a location or premises principally used for habitation, the inspector must give the owner or occupier of the premises at least 24 hours’ written notice of the proposed entry unless:

• The owner or occupier is carrying on an industry at the location or premises; or
• The WAIRC has made an order waiving the requirement to give the notice.

Union access to employment records

A union representative who holds an authority issued by the WAIRC can inspect employment records relating to an employee who is a member of the union, or who is eligible to become a member of the union.

An authorised union representative may inspect employment records for the purpose of investigating a suspected breach of:

• The Industrial Relations Act
• The Long Service Leave Act
• The Minimum Conditions of Employment Act
• The Work Health and Safety Act
• The Construction Industry Portable Paid Long Service Leave Act
• An award, order or agreement that applies to an employee.

The right to access records includes being able to enter the employer’s premises (other than any part of the premises used for habitation by the employer and their household, except in the circumstances outlined below) during working hours for the purpose of inspecting employment records, and taking copies or extracts of those records.

If the occupier of the premises requests the union representative to show their authority, the union representative must do so in order to enter or remain on the premises.

An authorised union representative is not generally entitled to require an employer to produce employment records or other documents unless they have given the employer 24 hours’ written notice if the documents are kept on the employer’s premises, or 48 hours’ written notice if the documents are kept elsewhere. Notice requirements may be waived by the WAIRC in certain circumstances.

Union access to any part of premises used for habitation

There is no automatic right of entry for authorised union representatives to any part of premises principally used for habitation by the employer or a member of their household (“habitation premises”). However, an authorised representative may apply to the WAIRC for an order permitting them to enter habitation premises to investigate a suspected breach of a relevant law, award or agreement.

The WAIRC will only be able to make an order if satisfied that exceptional circumstances exist warranting the making of the order. Whether such circumstances exist will be determined on a case-by-case basis. The WAIRC will firstly try to resolve the matter by conciliation. If this is not successful, then the WAIRC will hear and determine the matter after hearing from both parties.