The Bill establishes several central legal concepts and reworks others to change entitlement and administrative outcomes. The core concepts are day of service, stood down, on workers compensation, ordinary pay (for valuing entitlements), re-registration, vessel-related person, and the Board’s procedural mechanics.

Day of service (new s 3B)

• The Bill relocates the definition of day of service from s 3 to a new, standalone section 3B. A day of service is now any day on which the employee is entitled to ordinary pay (s 3B(1)(a)), a day on which the employee is stood down (s 3B(1)(b)), or a day on which the employee is on workers compensation (s 3B(1)(c)). The ordinary-pay limb expressly includes long service leave, annual leave in excess of 4 weeks in any 12-month period and paid sick leave (s 3B(1)(a)(i)-(iii)). For stand downs lasting more than one day, the only day that is treated under the casual regularity test is the first day of the period (s 3B(2)).

Stood down and on workers compensation (s 3(3B) and s 3(3C))

• The Bill defines when an employee is “stood down” for a day and lists specific bases: the JobKeeper enabling stand down direction authorised by the Fair Work Act 2009 s 789GDC (repealed), Fair Work Act s 524(1) stand downs, stand downs under industrial instruments, or prescribed circumstances (s 3(3B)(c)(i)-(iv)). The Bill also provides a statutory meaning of “on workers compensation” as being entitled to income compensation under the Workers Compensation and Injury Management Act 2023 Part 2 Division 3 for a period that includes the day (s 3(3C)).

Ordinary pay and valuation (s 21(3))

• The measure of “ordinary pay” used to calculate money value of long service entitlements is modified to be the average ordinary pay of the person over the period in which the person completed their most recent 220 days of service in the construction industry (amended s 21(3)). The Bill does not reproduce the former methodology in the text provided, but it replaces the definition in s 21(3) with the 220-day average.

Lump-sum special eligibility (s 22)

• The Bill broadens s 22 to allow partial lump-sum payments where an employee has at least 55 days but less than 7 years of service and is totally and permanently incapacitated (new s 22(1)(c)), or is terminally ill as diagnosed and likely to die within 12 months (new s 22(1)(d)). It mandates medical practitioner evidence for payments under those new paragraphs (s 22(1A)-(1B)). It also provides for lump-sum payments on death where the deceased had at least 55 days but less than 7 years of service, payable to a relevant party (spouse/de facto financially dependent person) or the estate (new s 22(2A)-(2C)).

Board governance and administrative mechanics (ss 3, 6, 7, 9, 10, new s 10A)

• The Bill modernises gendered language and replaces “chairman” with “chairperson” across ss 3, 6, 7 and 10. It allows payment of fees or allowances to a member’s principal employer at the member’s request (s 9(1A)). Members may attend meetings by instantaneous communication (s 10(10)). Decisions in writing signed or assented to by each member have the effect of a meeting decision (new s 10A).

Vessels and geographic/application scope (Part 5 and Schedule Div 3 Subdiv 3)

• The Bill inserts new definitions for “vessel”, “self-propelled vessel”, “operate” (in relation to self-propelled vessel) and “offshore area” (s 3(1)). It extends the definition of construction industry to include work on vessels other than self-propelled vessels and structures used for construction and non-navigation purposes on self-propelled vessels (s 3(1)(a)(xva)-(xvb)). It clarifies that a place on water where a vessel is located is a site for Act purposes (s 3(3D)) and that references to a vessel are to vessels on water in the State or offshore areas (s 3(3E)). It excludes from “employee” persons on vessels who have no substantial connection with the State (s 3(3F)). The Schedule Subdivision provides transitional treatment for vessel-related persons, re-registration, and the treatment of certain pre-commencement payments as if made under s 34 (Schedule Div 3, cls 12-17).

Transitional and retrospective powers (Schedule Div 3)

• The Schedule Division 3 provides general powers for transitional regulations (cl 6(2)). It permits regulations to provide that specified provisions may not apply to specified matters, or to apply with modification (cl 6(3)). Transitional regulations can, within limits, treat states of affairs as having existed on and after a day earlier than publication day but not earlier than the day Part 2 comes into operation (cl 6(4)). Protections limit retrospective workings that are prejudicial to a private person’s existing rights or impose liabilities for acts or omissions before publication day (cl 6(5)).

Re-registration and setting aside decisions (Schedule Div 3 cls 10, 11, 15, 17)

• The Schedule gives the Board power to re-register employees or vessel-related persons whose names were removed before commencement day if, had the new provisions applied, they would have remained registered (cls 10(3)-(5) and 15(4)-(6)). It also allows the Board to set aside prior lump-sum decisions and make different decisions if the transitional provisions change entitlement outcomes (Schedule Div 3 cls 11 and 17).

Building and Construction Industry Training Fund Act alignment (Part 7)

• The Bill replaces the definition of “building and construction industry” in the Training Fund Act with a new s 3A that largely tracks the construction industry definition from the Construction Industry Portable Paid Long Service Leave Act as in force immediately before Part 5 commenced, but with specific enumerated activities and exclusions, for example excluding work on ships (new s 3A(2)(a)).

Each of these concepts is operationalised by cross-references to particular sections and schedule clauses. The Bill therefore reshapes the unit of account for entitlement accrual (days of service) and extends the circumstances that constitute days of service. It furnishes the Board with processes to correct prior administrative outcomes, and it extends the sectoral scope to vessel-related activity with targeted transitional arrangements.

The Bill creates legal effects and administrative obligations for several identifiable groups. The principal affected parties, as described or implicated by the Bill, are employees in the construction industry and vessel-related persons, employers, the Board (and Board members), the Building and Construction Industry Training Fund regime, and persons or estates who claim lump sums on death or incapacity.

Employees stood down or on workers compensation

• Employees who were stood down, including under JobKeeper-era directions, Fair Work Act stand downs or industrial instruments, are expressly taken to have days that may count as days of service under s 3B(1)(b), provided the employee is not a casual or, if a casual, has worked on a regular and systematic basis in the 12 months ending on the day (s 3B(1)(b)(i)-(ii)). Where an employee was stood down during the pre-commencement period from 1 April 2020 until commencement day, the Board must apply the Act as if the new definitions applied to those days (Schedule Div 3 cl 8). Employees who were on workers compensation are included as having days of service for purposes of entitlement accrual (s 3B(1)(c)), and the Board must treat pre-commencement workers compensation days as if the new definitions applied (Schedule Div 3 cl 9).

Casual employees

• The Bill distinguishes casual employees. If a person is employed on a casual basis, their stand-down day counts only where they have been working on a regular and systematic basis during the 12 months prior (s 3B(1)(b)(ii)). For multi-day stand downs, the casual regularity check references the first day of the stand down period (s 3B(2)).

Employers

• Employers pay amounts to the Board in respect of employees and vessel-related persons under the existing contribution regime; the Bill treats certain pre-commencement payments as having been made under s 34 where an employer paid a non-refunded amount in respect of a vessel-related person (Schedule Div 3 cl 16). Employers may face re-registration obligations and potential adjustments to their historical reporting or payment positions if the Board re-registers employees or sets aside previous lump-sum decisions (Schedule Div 3 cls 10, 11, 15, 17). Board members may request their fee or allowance be paid to their principal employer (s 9(1A)), which creates an operational interface between Board remuneration and employer accounting.

The Board and its members

• The Board’s internal procedures change. Title and presiding norms are updated to chairperson (ss 3, 6, 7, 10). The Board may pay a fee or allowance to a member’s principal employer at the member’s request (s 9(1A)). Members may attend meetings by instantaneous communications and may validate decisions in writing signed by each member (s 10(10) and new s 10A). The Board has explicit power to set aside and remake decisions in light of the transitional provisions (Schedule Div 3 cls 11 and 17). The Board is required, in specified pre-commencement contexts, to apply the new definitions when determining entitlements (Schedule Div 3 cls 8-9).

Vessel operators and persons working on vessels

• The Bill redefines the ambit of the construction industry to include work on vessels other than self-propelled vessels and certain structures on self-propelled vessels (s 3(1)(a)(xva)-(xvb)), and authorises the Board to treat vessel-related persons as employees for relevant pre-commencement days (Schedule Div 3 cl 13). Entities that operate vessels or engage persons on vessels must reassess whether those persons meet the new definition of employee for the Act, and whether payments made to the Board before commencement affect entitlement records (Schedule Div 3 cls 14-16).

Persons seeking lump-sum payments

• The Bill widens eligibility for early lump-sum payments where employees have at least 55 days but less than 7 years, in cases of total and permanent incapacity or terminal diagnosis (s 22(1)(c)-(d)), but introduces an evidentiary requirement that the Board be given medical-practitioner evidence (s 22(1A)-(1B)). It also provides for post-death lump-sum payments to a relevant party or the estate where the deceased had 55 days but less than 7 years of service (s 22(2A)-(2C)).

Building and Construction Industry Training Fund entities

• Part 7 amends the Training Fund Act by inserting a new s 3A that sets out a revised definition of building and construction industry and aligns “construction work” to that definition (Part 7, ss 22-23). The Fund and levy collectors must apply the new definitions when determining what work attracts levies or falls within the Fund’s scope. The new s 3A(2) contains exclusions such as works on ships, which will be material to levy treatment.

Third parties and estates

• The Bill recognises relevant parties for post-death lump-sum payments (s 22(2C)). It also provides transitional protections for persons whose rights would otherwise be affected by retrospective transitional regulations (Schedule Div 3 cl 6(5)), and allows the Board discretion to re-register or set aside decisions that were made before the new provisions if that is consequential to the transitional provisions (Schedule Div 3 cls 10, 11, 15, 17).

Overall, the Bill affects both individuals,employees, casuals, medically incapacitated or terminally ill employees and their dependants,and entities,employers, vessel operators, the Board and the Training Fund regime,by changing entitlement accrual rules, evidentiary requirements, administrative processes, and the sectoral scope of the Acts in which it intervenes.

The Bill creates, clarifies or modifies duties and rights for affected parties. The principal obligations and entitlements introduced or clarified by the text are set out below, with statutory citations.

Duties of the Board

• Apply the new definitions in determining employee entitlements for days occurring in specified pre-commencement periods. The Board must apply the new definition of day of service and the new definitions of stood down and on workers compensation when determining entitlements for employees who were stood down during the pre-commencement period (Schedule Div 3 cl 8(3)(a)-(b)) and who were on workers compensation before commencement (cl 9(2)(a)-(c)).
• Re-register employees or vessel-related persons if they were removed from the employees register before commencement day but would have remained on it had the new rules applied at the time (Schedule Div 3 cls 10(3)-(5), 15(4)-(6)).
• Set aside and remake earlier decisions concerning lump-sum payments where the transitional provisions change entitlement outcomes; the Board may do this on its own initiative or on application (Schedule Div 3 cls 11(2) and 17(2)).

Rights of employees

• A right to have certain days count as days of service: days where employees are entitled to ordinary pay (including long service leave, annual leave over the 4-week threshold, paid sick leave), days stood down in specified circumstances (s 3B(1)(a)-(b)), and days on workers compensation (s 3B(1)(c)).
• For employees with at least 55 but less than 7 years’ service, a right to a proportional lump-sum payment on total and permanent incapacity (s 22(1)(c)), or upon diagnosis of an illness likely to cause death within 12 months (s 22(1)(d)), subject to production of medical-practitioner evidence (s 22(1A)). There is a corresponding right for relevant parties to apply for a proportional lump sum on death of such an employee (s 22(2B)).

Duties of employers

• Employers will continue to have the existing obligation to make payments to the Board for contributions in respect of employees and may need to revisit historical payment and refund records for vessel-related persons because the Schedule treats certain pre-commencement payments as being made under s 34(1) (Schedule Div 3 cl 16(2)). Employers that had payments refunded in respect of vessel-related persons before commencement may face the Board exercising re-registration powers (Schedule Div 3 cl 15).
• Employers who are the principal employers of Board members may receive Board fees or allowances at the member’s request if the member so elects (s 9(1A)).

Evidentiary obligations

• Applicants for payments under the new s 22(1)(c) or (d) must supply evidence by a medical practitioner to the Board (s 22(1A)); the Bill defines “medical practitioner” by reference to registration under the Health Practitioner Regulation National Law (WA) in the medical profession (s 22(1B)).

Rights of claimants and relevant parties on death

• For employees who die after completing at least 55 days but less than 7 years of service, a relevant party as defined may apply for a proportional lump sum and the Board must, as it thinks fit, pay such a lump sum to a relevant party for the deceased employee (s 22(2B)-(2C)). “Relevant party” is the spouse/de facto partner who in the Board’s opinion was financially dependent immediately before death, or the estate of the employee (s 22(2C)).

Administrative decision-making processes

• Board decisions may be made by written assent of all members (new s 10A), and members may participate by instantaneous communication (s 10(10)). These provisions change the mechanics of board decision-making and create duties to ensure written consents are obtained and recorded where used.

Transitional regulatory power and protections

• Transitional regulations may provide for specified provisions not to apply to or to apply with modification to specified matters, and may establish retrospective treatment within a bounded timeframe (Schedule Div 3 cl 6). However, transitional regulations cannot operate to affect rights in a manner prejudicial to a person other than the State or an authority, or impose liabilities on private persons for acts or omissions before publication day (cl 6(5)).

The Bill therefore imposes duties on administrators to revisit past records and decisions, requires employers and applicants to maintain and produce medical evidence where specified, confers rights to proportional payments in defined circumstances, and modifies Board procedures in a way that shifts how decisions are taken and how fees are paid.

The Bill as supplied concentrates on definitional, entitlement, governance and transitional changes. The text presented does not introduce new penalty provisions or amend existing criminal, civil penalty or enforcement regimes for non-payment or contravention. The Bill amends operational definitions, entitlement calculations and administrative powers; it does not in the provided text create new offences or express new enforcement mechanisms.

Relevant enforcement-adjacent mechanisms and administrative levers in the Bill include:

• Board remedial powers: The Board is empowered to set aside earlier decisions and to make different decisions where the transitional provisions affect earlier lump-sum decisions (Schedule Div 3 cls 11 and 17). These powers allow the Board to revisit prior administrative outcomes where entitlement outcomes change, but they are administrative rather than penal. The Board may re-register employees whose names were removed where the new rules would have kept them on the register (Schedule Div 3 cls 10 and 15). These are mechanisms that change legal status and payment rights, but they do not impose penalties as such.
• Transitional regulation safeguards: Transitional regulations with retrospective effect are permitted (Schedule Div 3 cl 6(4)) but are constrained by protections that prevent the regulations from operating to prejudicially affect rights existing before publication day, or to impose liabilities for acts or omissions done before publication day (cl 6(5)). Those protections limit the capacity for punitive retrospective application via regulation.
• Evidentiary control: For the new early lump-sum payments to occur under s 22(1)(c) and (d), the Board must be given evidence by a medical practitioner (s 22(1A)). The requirement of evidence enables the Board to refuse payment in absence of required material, but again this is a gatekeeping evidentiary standard rather than a penalty.

What the Bill does not do in the text provided

• It does not amend or add express monetary penalties, fines, infringement schemes, or criminal offences in the text supplied. It also does not modify inspection or audit powers, nor does it add new enforcement pathways for recovery of unpaid contributions within the text presented.

Implementation and enforcement risk points

• Administrative reversal risk: the Board’s power to set aside earlier decisions creates a practical risk that previously finalised lump-sum outcomes may be changed. That operational power could have cashflow and accounting consequences for employers, employees and beneficiaries but remains an administrative power in the Bill.
• Evidence-based refusal: the medical-evidence requirement for early lump-sum entitlements provides an enforcement-adjacent gate which may lead to disputes about sufficiency of evidence. The Bill defines “medical practitioner” by registration reference (s 22(1B)); disputes about the adequacy of evidence would be administrative disputes before the Board or in whatever review mechanism exists under the principal Act, but that review mechanism is not altered in the supplied text.

In short, the Bill changes entitlement, definitional and administrative arrangements. It does not, in the text provided, alter or insert penalty or enforcement provisions. Parties seeking to understand sanctions for non-compliance with contribution or reporting obligations would need to consult the principal Act as previously enacted; the Bill does not add to the penalty apparatus in the supplied text.

The Bill expressly interacts with Commonwealth and other Western Australian statutes in its text, and its transitional provisions reference earlier statutory regimes. The Bill should be read in the statutory network the Bill itself cites.

Fair Work Act 2009 (Commonwealth)

• The Bill’s definition of “stood down” refers to instruments and sections under the Fair Work Act 2009. The Bill includes a specific reference to the JobKeeper enabling stand down direction authorised by the Fair Work Act 2009 s 789GDC, even though that section is identified as “repealed” in the Bill (s 3(3B)(c)(i)). The Bill also refers to Fair Work Act s 524(1) as a basis for statutory stand down (s 3(3B)(c)(ii)). Those references locate one source of stand downs for the purpose of counting days as service in Commonwealth industrial law.

Workers’ compensation regimes

• The Bill defines “on workers compensation” with reference to the Workers Compensation and Injury Management Act 2023 Part 2 Division 3 (s 3(3C)). The transitional schedule also refers to the earlier Workers’ Compensation and Injury Management Act 1981 Schedule 1 in respect of pre-commencement weekly payments (Schedule Div 3 cl 9(2)(c)). The Bill therefore ties entitlement accrual for days on workers compensation to statutory entitlement to income compensation in the WA statutory workers’ compensation scheme(s).

Interpretation Act 1984 (WA)

• The Schedule Division 3 expressly provides that the Interpretation Act 1984 Part V applies to amendments made by the amendment Act subject to the Division and transitional regulations (Schedule Div 3 cl 5). The Bill therefore imports Interpretation Act principles for operation and commencement subject to the transitional rules.

Health Practitioner Regulation National Law (Western Australia)

• The Bill defines “medical practitioner” for the purposes of evidentiary requirements for early lump-sum payments by reference to the Health Practitioner Regulation National Law (WA) registration in the medical profession (s 22(1B)). This ties evidentiary treatment to nationally-regulated registration status.

Building and Construction Industry Training Fund and Levy Collection Act 1990

• Part 7 amends the Training Fund Act to align its definition of building and construction industry with the amended construction-industry definition in the Portable Paid Long Service Leave Act (Part 7, ss 21-23). The new s 3A in the Training Fund Act imports an enumerated list of covered works and exclusions, expressly excluding work on ships (s 3A(2)(a)). The Training Fund Act will therefore interact directly with the expanded vessel definitions in Part 5 insofar as levy collection and fund application are concerned.

Other parts of the Portable Paid Long Service Leave Act

• The Bill directly amends multiple sections of the principal Act, including s 3 (definitions), s 3A (deleted paragraph), s 21(3) (ordinary pay), s 22 (lump-sum payments), s 24A (editorial amendment to subsection numbering), s 28 (clarifying who is engaged or employed for hire or reward), and Board provisions in ss 6, 7, 9, 10 (procedural changes). The Schedule provides transitional rules that instruct the Board to apply the new definitions to prior periods in certain circumstances (Schedule Div 3 Subdiv 2), which produces an overlap in time between historic conduct and new entitlement rules.

Transitional regulations and retrospective effect

• The Bill authorises regulations that may, within a defined timeframe, treat specified provisions as having existed on and after a day earlier than the publication day but not earlier than the day Part 2 came into operation (Schedule Div 3 cl 6(4)). The regulations can therefore have retrospective application to align the operation of other written laws or administrative records with the amendments. However, the Bill constrains those powers to avoid prejudicial alteration of private rights and retroactive imposition of liabilities before publication day (cl 6(5)). The Interpretation Act applies subject to those transitional regulations (cl 5).

Intersectional tensions and application questions

• The Bill’s inclusion of days while on workers compensation as days of service (s 3B(1)(c)) interacts with the amendment to s 28(4B) that states a person is not engaged or employed in employment for hire or reward in respect of a day if the person is on workers compensation and absent from their employment on that day. That creates a statutory tension requiring administrators to apply parts of the Act contextually: on the one hand days on workers compensation can count as days of service; on the other hand, s 28(4B) provides a carve out for the purposes of s 28(1) and (2). The interplay will depend on the statutory purpose and the particular provision under consideration.

Overall, the Bill modifies the internal statutory definitions and cross-references some Commonwealth and WA statutes. It also instructs the Board to apply the new definitions retrospectively in specified circumstances and gives the Governor in Council or Executive the capacity through regulations to provide transitional fixes, constrained by anti-prejudicial safeguards. Parties will need to map contribution and entitlement records by reference to the amended definitions and to relevant workers’ compensation and industrial law entitlements.

This Bill is itself an amendment instrument presented as the Construction Industry Portable Paid Long Service Leave Amendment Act 2025. The Bill’s Parts track the reform areas and specify staggered commencements. The text supplied provides the following staged implementation and amendment map.

Commencement framework (s 2)

• Part 1 commences on assent day (s 2(a)); Parts 5 and 7 commence on days fixed by proclamation (s 2(b)); the balance of the Bill commences on the day after assent day (s 2(c)). That structure means the vessel-related amendments (Part 5) and the Training Fund Act amendments (Part 7) are not automatic on assent and will await proclamation.

Core amendments to the 1985 Act (Parts 2-6)

• Part 2: Employees stood down or on workers compensation , substitutes definitions in s 3, inserts new s 3B, modifies s 21, s 28 and inserts a new Schedule Division 3 containing transitional and specific transitional clauses for stood down employees and workers compensation contexts (ss 4-8 and Schedule Division 3 Subdivs 1-2). These clauses include an express retroactive window for applying the new definitions to stood down employees from 1 April 2020 until commencement day (Schedule Div 3 cl 8).
• Part 3: The Board , modernises chair title language in ss 3, 6, 7 and 10, inserts Board payment mechanics and remote attendance provisions (ss 9, 10, new s 10A).
• Part 4: Lump sum payments , expands ss 22(1)-(2) to provide early proportional payments for incapacitated or terminally ill employees with at least 55 days but less than 7 years of service, adds evidentiary requirements, and provides for death payments to relevant parties (s 15 in the Bill amends s 22).
• Part 5: Vessels , deletes s 3A(1) and heavily amends s 3 definitions to expand the construction industry to capture vessels and certain works, inserts definitions (offshore area, self-propelled vessel, operate, vessel), and adds Schedule Division 3 Subdivision 3 with transitional provisions for vessel-related persons (ss 16-18 and Schedule Div 3 Subdiv 3).
• Part 6: Miscellaneous , small textual change to s 3 formatting and a deletion in s 24A(2) (ss 19-20).

Training Fund Act amendments (Part 7)

• Part 7 amends the Building and Construction Industry Training Fund and Levy Collection Act 1990 by inserting a new s 3A that sets out a detailed enumerated definition of “building and construction industry” and excludes certain work (ss 21-23). It also updates cross-references and the definition of construction work.

Transitional and corrective clauses

• Schedule Division 3 is a central amendment feature. It is structured into Subdivision 1 (preliminary and transitional regulations), Subdivision 2 (amendments relating to employees stood down or on workers compensation), and Subdivision 3 (amendments relating to vessels). These subdivisions define terms, import the Interpretation Act Part V subject to exceptions, authorise transitional regulations, and provide specific application rules for pre-commencement periods (Schedule Div 3 cls 4-17).

Notable procedural amendments

• The Bill modernises Board language, allows written unanimous decisions to take effect without a meeting (new s 10A), allows members to participate by instantaneous communication (s 10(10)), and allows members to have their fees paid to principal employers at the member’s request (s 9(1A)).

Retroactivity and non-prejudice protection

• The transitional regulation power permits prescribed retrospective effects within a constrained timeframe (Schedule Div 3 cl 6(4)), but the Bill includes an anti-prejudicial protection that transitional regulations cannot affect in a manner prejudicial to private rights existing before publication day or impose liability for acts or omissions before publication day (cl 6(5)). The Bill also contains express rules that direct the Board’s approach to specific historical periods, notably the period from 1 April 2020 to commencement day (cl 8).

Because the supplied text is the Bill itself, the amendment history in this document is the Bill’s own schedule of changes to the Portable Paid Long Service Leave Act 1985 and the Training Fund Act 1990. The Bill sets out multiple specific repeals, insertions and replacements by section and clause as recorded in Parts 2-7 and the inserted Schedule Division 3.

The Bill as presented contains no litigation or judicial decisions. The text does not cite or rely upon any court or tribunal decisions, and no cases are named in the Bill. The Schedule and the substantive clauses set administrative standards and transitional rules without referencing judicial authorities.

What the Bill does include is a set of administrative adjudicative powers that could be the subject of future litigation when applied:

• Board decision reversals: The Board’s power to set aside prior lump-sum decisions and make different decisions (Schedule Div 3 cls 11 and 17) could lead to disputes about whether a particular prior decision should be set aside and on what basis. The Bill does not prescribe an internal merits review process beyond authorising the Board to act either on its own initiative or on application, so review pathways under the principal Act or general administrative law may be engaged in future disputes; those pathways are not modified in the Bill as supplied.
• Medical evidence assessment: The medical practitioner evidence requirement for early lump-sum payments (s 22(1A)-(1B)) could generate disputes about the sufficiency, timing or admissibility of medical evidence. The Bill defines “medical practitioner” by registration reference (s 22(1B)), which may shape evidentiary disputes, but it does not specify proof standards beyond requiring the Board to be given evidence by a medical practitioner.
• Re-registration and retrospective effect: The directed re-registration of employees and vessel-related persons (Schedule Div 3 cls 10 and 15) and the treatment of certain pre-commencement payments as having been made under s 34 (cl 16) could give rise to litigation as to whether an individual falls within the relevant definitions, whether the Board properly re-registered, and whether refunds or payments should be revisited. The Bill contains safeguards in the transitional regulation clause that protect against prejudicial retrospective effects on private persons (Schedule Div 3 cl 6(5)); disputes could focus on the scope of those protections.

Because the Bill does not authorise new penalty or enforcement mechanisms in the text provided, the litigation risks are likely to arise from administrative review or judicial review of Board decisions or from disputes between employers, employees and the Board over treatment of historical days, payments, and entitlement calculations. The Bill itself does not provide a litigation history to summarise. Any assessment of litigation exposure or precedent would require reference to the principal Act and its existing review and dispute resolution mechanisms, which are not amended in the text provided.

Several provisions in the Bill create non-obvious practical effects, retrospective mechanics and definitional interactions that parties should note. The following are specific operational “gotchas” grounded in the Bill text.

Counting stand-down days and casual employees

• The Bill treats days where an employee is “stood down” as days of service (s 3B(1)(b)), but if the employee is a casual the day counts only if the casual has worked on a regular and systematic basis during the 12 months ending on the day (s 3B(1)(b)(ii)). For stand downs longer than 1 day, the test is applied only to the first day of the period (s 3B(2)). Employers who have casual workforces must therefore track casuals’ 12-month engagement history and be aware that long stand downs will be treated by reference to the first day only. That raises record-keeping burdens and potential disputes about whether casuals satisfied the regular-and-systematic test on the first day.

Stand-down definition referencing repealed and Commonwealth provisions

• The Bill’s list of grounds for “stood down” includes the JobKeeper enabling stand down direction authorised by Fair Work Act s 789GDC which the Bill marks “repealed” (s 3(3B)(c)(i)). The presence of a repealed provision in the statutory list is unusual and interacts with transition rules. The Bill also refers to Fair Work Act s 524(1) and industrial instruments (s 3(3B)(c)(ii)-(iii)). Parties should note that “stood down” for Act purposes is defined by reference to one or more Commonwealth provisions and to prescribed circumstances; the precise meaning of prescribed circumstances will be set by regulation, which may create surprises if the regulation defines unforeseen situations.

Workers compensation days count, but carriage-of-work tests may carve out

• The Bill counts days where an employee is on workers compensation as days of service (s 3B(1)(c)). However, an amendment to s 28 provides that for the purposes of subsections (1) and (2) of s 28, a person is not engaged or employed in employment for hire or reward in respect of a day if the person is on workers compensation in respect of that day and absent from their employment on that day (s 28(4B) replacement). Practically that means that while a day on workers compensation may count as a day of service for entitlement accrual, there are contexts in which the person will not be considered engaged in employment for hire or reward. That mixed treatment may affect overlapping provisions and requires careful statutory reading when applying particular sections.

Retroactive application with protections

• The Bill instructs the Board to treat certain pre-commencement days as days of service (Schedule Div 3 cls 8-9) and authorises transitional regulations that can prescribe retrospective matters within a bounded timeframe (cl 6(4)). Those retrospective changes are subject to a non-prejudice protection for private persons (cl 6(5)). The practical effect is that some historical records may be reopened, re-registered, or recalculated for entitlements, but the Bill limits retrospective application in ways that protect existing private rights. Parties should be alert to the Board exercising its re-registration and decision-reversal powers under the Schedule (cls 10-11 and 15-17).

Board may repay or retain previously refunded sums for vessel-related persons

• Schedule Div 3 clause 14 treats a relevant day as a day of service where the employer made a payment to the Board and did not receive a refund. Clause 15 allows re-registration where an employer paid an amount and subsequently received a refund and the Board removed the day from records. Clause 16 treats certain pre-commencement payments as if made under s 34(1). These clauses can change the taxonomies and financial character of earlier payments and refunds. Employers with historical refunded payments for vessel-related persons should review whether those refunds create present-day exposure or re-registration obligations.

Medical evidence gate for early lump sums

• The Bill requires medical-practitioner evidence for payments under s 22(1)(c) and (d) (s 22(1A)-(1B)). The Bill defines medical practitioner by reference to Health Practitioner Regulation National Law registration. Parties seeking early lump sums should not assume that informal medical letters suffice. The Board will require evidence from registered medical practitioners as defined, and disputes on adequacy of evidence may arise.

Board payment to principal employer

• s 9(1A) allows the Board to pay a member’s fee or allowance to that member’s principal employer if the member requests. That creates an operational route where employers receive payables from the Board linked to their employee’s Board membership. Employers should check internal conflicts and disclosure arrangements where an employee member wants fees channelled to the employer.

Vessel scope complexities and “substantial connection” carve out

• The Bill expands the construction industry to cover work on vessels other than self-propelled vessels and certain structures on self-propelled vessels (s 3(1)(a)(xva)-(xvb)), and provides that a person on a vessel does not count as an employee if the Board is satisfied the person has no substantial connection to the State (s 3(3F)). Determinations about “substantial connection” are fact-sensitive and place an evidential burden on employers and crew about attachment to WA. The Bill also treats places on water where vessels are located as sites (s 3(3D)), which broadens on-site definitions for maritime contexts.

Changes to ordinary-pay calculation

• s 21(3) is amended to define ordinary pay for money valuation as the average ordinary pay over the period in which the person completed their most recent 220 days of service. For employees with irregular service patterns, employers and employees must aggregate 220 days of service history to compute averages. The 220-day lookback may produce different outcomes than prior averaging methods and affect lump-sum valuations.

Administrative record-keeping burden and uncertainty

• The Bill imposes on the Board and on employers the need to re-examine past records, retroactively apply new definitions in targeted periods, and potentially re-register or revisit financial transactions. That will increase administrative and compliance burdens and raise the potential for disputes over historical factual findings.

In short, the Bill’s definitional migrations, transitional and retroactive instruments, and cross-referencing to Commonwealth and previous WA workers’ compensation provisions can produce complex factual enquiries and record-keeping demands that parties should anticipate.

Employers, employees, Board members and training fund administrators should take specific, concrete steps to align practices with the Bill’s changes. Compliance actions fall into record-keeping, administrative process, evidentiary preparedness, register management, Board procedural adjustments, and policy/regulatory watching.

Record-keeping and audit

• Reconstruct 220-day ordinary-pay histories: Employers and payroll administrators should prepare to compute “ordinary pay” as the average ordinary pay over the period in which the employee completed their most recent 220 days of service (s 21(3)). That requires accurate day-level service records and pay records to be retained and made available to the Board upon enquiry.
• Track casual regularity: For casuals who may be counted as having a day of service when stood down, employers must be able to demonstrate whether a casual worked on a “regular and systematic basis” during the 12 months ending on the first day of any stand-down period longer than 1 day (s 3B(1)(b)(ii) and s 3B(2)). Maintain rosters, hours worked and engagement records for casual staff.

Medical evidence and early lump sums

• For applications under s 22(1)(c) or (d), employers and employees should obtain and lodge evidence from a registered medical practitioner as defined in s 22(1B). Ensure medical reports specify incapacitation or diagnosis in terms that meet the Board’s evidentiary needs. Maintain chain-of-custody and authorisations for medical evidence sharing where necessary.

Register review and re-registration readiness

• Identify employees and vessel-related persons who were removed from the employees register pre-commencement and assess whether, under the new definitions, they should be re-registered (Schedule Div 3 cls 10 and 15). Prepare applications and supporting documentation for re-registration and for the Board to exercise its discretion under those clauses.
• If an employer previously had payments to the Board refunded in respect of a vessel-related person, review the records because Schedule Div 3 cl 15 contemplates re-registration where refunds occurred and cl 16 treats certain payments as if made under s 34(1).

Transitional and retroactive regulatory monitoring

• Monitor the making and publication of transitional regulations authorised by Schedule Div 3 cl 6. Those regulations may prescribe specified retroactive treatments to be applied by the Board. Note the publication day and ensure that actions taken before publication day are not prejudicially affected by transitional regulations (cl 6(5) protective rule).

Board member and governance steps

• Board members wishing to have fees paid to their principal employer must make an express request; the Board may pay such fees on the member’s request (s 9(1A)). Board secretariats should set up payment routing procedures and maintain logs of requests and consents.
• Implement processes for remote attendance and written consents: The Board may allow simultaneous telephone or other instantaneous communication attendance (s 10(10)) and may validate decisions by written assent signed by all members (new s 10A). Establish secure mechanisms for electronic assent and written records of unanimous written decisions.

Vessels and activity classification

• Vessel operators should map their activities against the new vessel-related definitions. Determine whether persons working on vessels other than self-propelled vessels and structures on self-propelled vessels fall within the construction industry definition (s 3(1)(a)(xva)-(xvb)). Prepare documentation proving or disproving “substantial connection with the State” where the Board might otherwise exclude a person from the definition of employee because of lack of substantial connection (s 3(3F)).

Prepare for Board decision revisions

• Because the Board may set aside prior lump-sum decisions if transitional provisions change entitlement outcomes (Schedule Div 3 cls 11 and 17), employers and payees should be prepared to deal with communications from the Board seeking to alter previously finalised accounts. Maintain reserves or contingency plans in payroll and accounting systems to respond to potential recoupments or top-ups.

Training Fund Act alignment

• Administrators under the Building and Construction Industry Training Fund and Levy Collection Act must align levy treatment with the new definition of building and construction industry in inserted s 3A. Identify works that are newly included and those expressly excluded (for example, work on ships is excluded by s 3A(2)(a)), and adjust levy collection and compliance procedures accordingly.

Internal compliance policies and employee communication

• Update internal policies, employment contracts and employee manuals to reflect that stand-down days and workers compensation days may count as days of service in particular circumstances, and communicate to employees and contractors how these rules may affect accruals and entitlements.
• Where employers act as principal employers for Board members receiving fees, ensure conflict-of-interest policies are documented and comply with any Board or public sector disclosure requirements.

Legal and administrative review

• Consult legal counsel about the application of the new definitions to specific work arrangements, especially maritime and vessel-related roles, casual employment patterns, and historical removed registrations. Prepare to engage with the Board’s re-registration and decision-reversal processes where appropriate.

In sum, compliance under the Bill will require active auditing of historical contribution and register records, establishment of clear evidentiary processes for medical claims, updating of payroll and Board governance procedures, and ongoing monitoring of transitional regulations and proclamations for Parts 5 and 7. The Bill’s transitional provisions create a narrow window where historical days and payments may be revisited, so early preparatory work is advisable.