New WA Industrial Law Bill to Bolster Employment Protections and Coverage

Friday 3 July 2020 @ 11.08 a.m. | Industrial Law | Legal Research

On 25 June 2020 the Minister for Industrial Relations (the Minister), Mr W. J. Johnston, introduced the Industrial Relations Legislation Amendment Bill 2020 (WA) (the Bill). The Bill will amend the Industrial Relations Act 1979 (WA) (the IR Act), the Long Service Leave Act 1958 (WA) (the LSL Act) and the Minimum Conditions of Employment Act 1993 (WA) (the MCE Act).

According to the Minister, the new laws "seek to protect vulnerable workers, tackle wage theft, and ensure a level playing field for WA employers". The Bill represents the WA State Government’s response to the recommendations made by two recent reports, namely:

  • the 2018 Final Report of the Ministerial Review of the State Industrial Relations System conducted by Mark Ritter SC and Stephen Price MLA; and
  • the 2019 Inquiry into Wage Theft in Western Australia conducted by former Chief Commissioner of the Western Australian Industrial Relations Commission Tony Beech.

Recommendations from the  reports proposed to be implemented by the Bill include:

  • removing the exclusions from the definition of "employee" to ensure WA's employment laws apply to all employees in the State industrial relations system;
  • providing workers with access to the Western Australian Industrial Relations Commission (WAIRC) for redress from workplace bullying;
  • introducing an equal remuneration jurisdiction for the WAIRC;
  • modernising the Long Service Leave Act 1958 (WA);
  • introducing penalties for non-compliance that aligns with the Federal system;
  • prohibiting an employer from forcing an employee to pay back part of their wages (known as "cash backs");
  • enhancing the powers of industrial inspectors to ensure employment compliance; and
  • addressing the lack of certainty for WA local governments, regarding industrial relations jurisdiction, by taking steps to bring all local governments under the state industrial relations system.

Details of Amendments

Amendments to the IR Act: The Bill proposes amending the definition of "employee" in the IR Act to remove the existing exclusion for persons engaged in domestic service in a private home (including carers employed directly by the householder), which will extend coverage of the IR Act and the MCE Act to such workers.

The Bill gives 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, and establishing that when the WAIRC varies the scope of a private sector award, it must not fix scope by reference to an industry carried on by a named employer. 

The Bill proposes the expansion of employment record requirements and introduces a new requirement for all employers to issue pay slips, as well as establishing a civil penalty provision if an employer makes an employment record or gives a pay slip they know is false or misleading.

The Bill establishes a "stop bullying" jurisdiction for the WAIRC, under which the WAIRC may deal with a stop bullying application made by a worker or an organisation on a worker’s behalf. The stop bullying jurisdiction will apply to both the private and public sectors. To resolve an issue the WAIRC may make an order to prevent future bullying but cannot order compensation for the worker.

The Bill introduces an equal remuneration jurisdiction to the WAIRC that applies to both the private and public sectors. The WAIRC will be able to make an equal remuneration order on application from a range of parties, including an individual employee or group of employees. The WAIRC is also required to issue an equal remuneration principle as part of the State Wage order each year.

The Bill enables certain employers (local governments for example) to be declared “not to be national system employers” for the purposes of the Fair Work Act 2009, and provides for transitional arrangements to move local government employers from the national industrial relations system to the State system. 

The protection of employee rights are to be increased through:

  • prohibiting employers from taking damaging action against employees because they make an employment-related inquiry;
  • prohibiting employers from engaging in sham contracting arrangements; and
  • prohibiting employment being advertised at a rate of pay that is less than the applicable minimum wage for the position.

The powers of industrial inspectors are to be enhanced  by enabling inspectors to:

  • issue "on-the-spot infringement notices" to employers for failing to comply with record-keeping or pay slip requirements;
  • 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.

The Bill will strengthen enforcement mechanisms and increase penalties including:  

  • increases to maximum penalties for contravening an industrial instrument from $2,000 to $60,000 for bodies corporate and to $12,000 for individuals;
  • the establishment of higher penalties for serious contraventions, $600,000 for bodies corporate and $120,000 for individuals, and providing that a party found to have committed a serious contravention can have representation costs ordered against them;
  • the introduction of accessory 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.

Amendments to the LSL Act: The LSL Act is amended to make clear a number of entitlements and to provide for greater flexibility in how long service leave is taken, by:

  • enabling an employer and employee to agree to the employee taking long service leave in separate periods with no minimum 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.

The Bill also introduces new "transfer of business provisions" based on the Fair Work Act 2009 (Cth) provisions.

The Bill also strengthens enforcement provisions by introducing penalties for contravening the LSL Act and for failing to keep required employment records relating to long service leave.

Amendments to the MCE Act: The MCE Act is amended by amending the definition of "employee" to remove the existing exclusions from the MCE Act for people:

  • paid wholly by commission, percentage reward or piece rates;
  • with disabilities employed in a supported employment service; and
  • people who are volunteers appointed as wardens by the National Trust.

The Bill also allows for the employment of employees with a disability under the provisions of the Supported Wage System (SWS) by:

  • requiring the WAIRC to set the minimum weekly amount under the SWS in the State wage case to be the same as that set by the Fair Work Commission in the national wage case
  • allowing for employees with a disability to be paid a wage determined according to a wage assessment tool in an award or agreement.

The Bill also makes amendments prohibiting employers from establishing "cash back arrangements" to hide "wage theft".

Comments by the Minister

Commenting on the proposed legislation the Minister has said on the question of the application of employment laws:

"Astoundingly, Western Australia's employment laws do not currently apply to all employees in the State industrial relations system. . . The employee exclusions have been identified by the Commonwealth Government as a barrier to Australia ratifying the International Labour Organization Protocol of 2014 to the Forced Labour Convention, 1930 which aims to support the global fight against modern slavery."

On the questions of under payment and wage theft, the minister has said: 

"The penalties for non-compliance were last increased 18 years ago; this legislation will protect vulnerable workers, tackle wage theft and modernise WA's employment laws."

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