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:
Recommendations from the reports proposed to be implemented by the Bill include:
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:
The powers of industrial inspectors are to be enhanced by enabling inspectors to:
The Bill will strengthen enforcement mechanisms and increase penalties including:
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:
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:
The Bill also allows for the employment of employees with a disability under the provisions of the Supported Wage System (SWS) by:
The Bill also makes amendments prohibiting employers from establishing "cash back arrangements" to hide "wage theft".
Commenting on the proposed legislation the Minister has said on the question of the application of employment laws:
On the questions of under payment and wage theft, the minister has said:
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Industrial Relations Legislation Amendment Bill 2020 (198 of 2020) [WA], second reading speech and explanatory memorandum as reported in the TimeBase LawOne Service.
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