Key changes to the WA State Employment laws

6 July 2022

The Industrial Relations Legislation Amendment Act 2021, effective from 20 June 2022, has introduced several changes to the WA State employment laws. The most notable of changes have been summarised below. 

Wage theft and strengthening enforcement 

Provisions were added into the Industrial Relations Act 1979 (IR Act) and the Minimum Conditions of Employment Act 1993 (MCE Act) to combat wage theft and afford further protections to employees from their employers taking or entering any unreasonable actions or contracts with them.

The mechanisms for enforcing contraventions of State employment laws have been strengthened including an increase in penalties and liabilities for accessories to contravention. 

New provisions have been implemented in the IR Act requiring all State system employers to issue pay slips and are now required to retain each entry regarding annual leave and long service leave during the employment and for a further 7 years after termination of employment. It is also prohibited for employers to unreasonably require employees to pay back their wages to the employer or another person (sometimes known as ‘cash backs’). 

Sham contracting is prohibited, and an employer is prohibited from representing, or telling an employee or prospective employee, that a ‘contract of employment’ (where the worker is an employee and entitled to minimum wages and other protections) is a ‘contract for services’ (where the worker is an independent contractor).

The IR Act prohibits an employer from advertising employment at a rate of pay that is less than the minimum wage applicable to the job under the MCE Act or a State Award, order, or industrial agreement. Any false or misleading conduct will attract civil penalties upwards of $130,000 in cases of serious contravention and State industrial inspectors now have enhanced powers to offer infringement notices for failures.  

Bullying and sexual harassment

Public and private sector employees may now make an application to the Western Australian Industrial Relations Commission (WAIRC) for a stop bullying or stop sexual harassment order, where they reasonably believe it to have occurred at work, under the new stop bullying and sexual harassment provisions. 

Unpaid family and domestic violence leave

There is a new minimum entitlement of five days unpaid family and domestic violence leave for all employees in the State industrial relations system including employees who are covered by WA State Awards and industrial agreements, and employees who are Award free. This is entitlement is non-cumulative and is available in full at the beginning of each 12-month period for all employees inclusive of part time and casual. 

Sick leave and carers leave have been combined and are now deemed as personal leave. There has been no change as to how the paid personal leave accrues and accumulates, however, the limit on the amount of paid leave taken for caring purposes each year has been removed. Full time and part time employees must use their available paid personal leave before accessing unpaid personal leave. However, casual employees can access up to two days of unpaid personal leave per occasion for caring purposes. 

Changes to the Long Service Leave Act 1958 (the ‘LSL Act’) 

An employee may take long service leave in separate periods of any length in addition to requests to take such at half pay for twice as long or double pay for half as long. In addition, provisions regarding the ‘Transfer of Business’ have been added to the LSL Act based on provisions of the Fair Work Act 2009 and enforcement provisions have been strengthened.

Deductions from pay

Deductions from an employee’s pay can be made if an employee gives written authority for such deductions to be made and monies paid to another party on their behalf. An employee can withdraw their authorisation at any time by giving written notice. An employer is not obliged to make deductions requested by an employee. An employer cannot directly or indirectly compel an employee to accept goods, accommodation, or other services of any kind instead of money as any part of the employee’s pay.

More generally:

An amendment which commenced earlier this year, 12 February 2022, is the inclusion of Easter Sunday as a public holiday within WA. Accordingly, State Awards and industrial agreements that provide for public holidays are to automatically recognise the Easter Sunday as a public holiday, bringing the total number of public holidays to 11. 

Employers now have new employment obligations to employees under the MCE Act as the definitions have removed exclusions for people that are paid wholly, by commission or piece rate and percentage rewards. 

Union right of entry

Changes were also made to right of entry provisions. A Union authorised representative may enter premises during work hours to:

Investigate a suspected breach of a State industrial law, Award or agreement;
Investigate a suspected breach of State work health and safety law; and
Hold discussions with employees who are members of the Union or eligible to become members. 

The right of entry provisions has been amended to expressly enable authorised representatives to make electronic recordings of any work, material, or machinery that is relevant to the suspected breach being investigated. An electronic recording could include a photograph, video or audio taken with a mobile phone. There is no automatic right of entry to a workplace that is also used for habitation by the employer or a member of their household, but an order permitting entry may be obtained from the WAIRC.

More information can be obtained from the Department of Mines, Industry Regulation and Safety here.

Disclaimer: This summary is a guide only and is not legal advice. For further information, call ECA Legal on (08) 6241 6129 or email ecalegal@ecawa.org.au