This Act establishes the Western Australian Industrial Relations Commission, defines who counts as employers and employees, and gives the Commission and industrial magistrates broad powers to hear workplace disputes and enforce entitlement provisions (see ss6,7,8,23,81,83). It sets remedies for unfair dismissal (reinstatement or capped compensation), prescribes conditions for registering employer–employee agreements, grants investigatory powers to authorised persons, and provides transitional rules that allow some federal instruments to operate as State instruments (s23A, Schedule 4, Schedule 5, Part 80B).
The Industrial Arbitration Act 1979 (WA), which operates under the working title Industrial Relations Act 1979 in current legal practice, is the principal statute governing Western Australian State industrial relations. It establishes the Western Australian Industrial Relations Commission (WAIRC) and defines its jurisdiction, creates the framework for industrial awards and enterprise agreements, provides for conciliation and arbitration of industrial disputes, governs the registration of trade unions and employer organisations, and provides enforcement mechanisms through industrial magistrates.
The Act applies to the WA State system, which covers WA public sector employers and WA private sector employers that are not national system employers under the Fair Work Act 2009 (Cth). Most large private sector employers in WA are national system employers under the Commonwealth system, so the WA State system primarily governs State government employees, local government employees, and unincorporated WA businesses.
The objects of the Act (section 6) include promoting goodwill in industry, providing for good faith bargaining rights, promoting freedom of association, promoting gender equality and equal remuneration, collective bargaining primacy over individual agreements, fair terms of employment, conciliation and arbitration of disputes, prevention and elimination of workplace bullying and sexual harassment, observance of awards and agreements, and co-operation with the Commonwealth industrial relations system.
Main concepts
Current sections
Direct links to the current provisions in Industrial Arbitration Act 1979.
38
Div 1
Constitution of the Commission
Division 1 — Constitution of the Commission
Commission constituted 24
Qualifications for appointment of Chief Commissioner 25
Age limit for commissioners 25
Oath of office and secrecy 26
Commission is court of record etc. 26
Protection of commissioners and others 26
Exercise of powers and jurisdiction of Commission 27
14A. Dual federal and State appointments 27
14B. Performance of duties by dual federal and State appointees 27
Constitution of Full Bench and Commission in Court Session 28
Chief Commissioner’s functions 29
16A. Delegation by Chief Commissioner 31
Appointment of acting commissioners 32
Extending appointments 33
Duty of commissioners 33
Conditions of service of commissioners 33
Resignation from office 35
Tenure subject to good behaviour 36
Div 2
General jurisdiction and powers of the Commission
Division 2 — General jurisdiction and powers of the Commission
22B. Commission to act with due speed 36
Jurisdiction of Commission 36
23A. Unfair dismissal claims, Commission’s powers on 39
23B. Third party involvement in employment claim, Commission’s powers to prevent etc. 41
Industrial matters, Commission may decide what are 42
24A. Onus of proving individual is or was not employee 43
Allocation of industrial matters by Chief Commissioner 43
Commission to act according to equity and good conscience 44
Powers of Commission 48
Powers in s. 27 may be exercised at any time after matter lodged 51
Who may refer industrial matters to Commission 52
29AA. Certain claims not to be determined 55
29A. Proposed award etc., service of etc. 56
29B. Parties to proceedings 58
29C. Deciding which organisation to be party to award, order or industrial agreement relating to government officers 58
Minister may intervene on behalf of State 59
Representation of parties to proceedings 59
Conciliation and arbitration of industrial matters 61
32A. Conciliation and arbitration functions of Commission are unlimited 63
Evidence before Commission 63
33A. Misconduct before Commission 65
Decisions of Commission, form of and review of 66
Decision to be first drawn up as minutes 67
Copy of decision must be given to parties and be available for inspection 68
Division 2AA — Certain industrial matters relating to public sector employment
36AA. Industrial matters relating to public sector employment 69
Subdiv 2
Certain industrial matters relating to government officers
Subdivision 2 — Certain industrial matters relating to government officers
36AB. Meaning of government officer 70
36AC. Commission’s additional power of review for industrial matters relating to government officers 71
36AD. Effective date of reclassification decision 72
36AE. No appeal from certain decisions relating to government officers 73
Subdiv 3
Provisions related to certain substandard performance or disciplinary decisions or findings
Subdivision 3 — Provisions related to certain substandard performance or disciplinary decisions or findings
36AF. Application of Subdivision 73
36AG. Commission’s powers on exercising jurisdiction in relation to certain decisions or findings 74
36AH. Limit on Commission’s powers in relation to lawful redeployment direction matters 74
Subdiv 4
Breach of public sector standards claims
Subdivision 4 — Breach of public sector standards claims
36AI. Terms used 75
36AJ. Breach of public sector standards claim 76
36AK. Particular matters applicable to transfer decisions 76
36AL. Commission’s powers on breach of specified public sector standards claim 77
Div 2A
Awards
Division 2A — Awards
36A. Non‑award employees, interim award for etc. 78
Effect, area of operation and duration of award 78
37A. Public sector awards and enterprise awards 79
37B. Private sector awards: general 79
37C. Private sector awards: limitations on making and varying 80
37D. Private sector awards: variations of the Commission’s own motion 81
Named parties to awards 83
When award operates 84
Varying and cancelling awards generally 85
40A. Incorporation of industrial agreement provisions into awards by consent 86
40B. Power to vary awards 87
Div 2B
Industrial agreements
Division 2B — Industrial agreements
40C. Terms used 88
Industrial agreements, making, registration and effect of 89
41A. Which industrial agreements must not be registered under s. 41 91
Bargaining for industrial agreement, initiating 91
42A. Response to initiation of bargaining 93
42B. Bargaining for industrial agreements, good faith required etc. 94
42C. Code of good faith 95
42D. Duty of good faith does not require concluded industrial agreement 96
42E. Commission may assist bargaining 96
42F. Commission’s power over negotiating parties restricted 97
42G. Parties may agree to Commission making orders as to terms of agreement 97
42H. Commission may declare that bargaining has ended 98
42I. Enterprise order, applying for and making 98
42J. Enterprise order, effect of 100
42K. Enterprise order, term of and varying etc. 101
42L. When bargaining ends 102
42M. Regulations for this Division 102
Industrial agreement, varying, renewing and cancelling 103
Div 2C
Holding of compulsory conferences
Division 2C — Holding of compulsory conferences
Compulsory conference, summoning, holding etc. 103
Conference etc. not to be held in relation to certain disputes about long service leave entitlement 108
Div 2D
Miscellaneous provisions relating to awards, orders and agreements
Division 2D — Miscellaneous provisions relating to awards, orders and agreements
Interpretation of awards and orders by Commission 109
Defunct awards etc., cancelling; employers not in business etc., deleting from awards etc. 110
48A. Awards etc. to provide for dispute resolution 111
48B. Superannuation, provisions about in awards etc. 112
Div 2E
Appeals to the Full Bench
Division 2E — Appeals to the Full Bench
Appeal from Commission’s decision 114
Div 2F
Keeping of and access to employment records and pay slips
Division 2F — Keeping of and access to employment records and pay slips
49D. Employer’s duties as to employment records 117
49DA. Employer obligations in relation to pay slips 120
49E. Access to employment records 122
49F. Enforcement of this Division 123
Div 2G
Right of entry and inspection by authorised representatives
Division 2G — Right of entry and inspection by authorised representatives
49G. Terms used 124
Subdivision 2 — Right of entry and inspection
49H. Entry for discussions with employees 126
49I. Entry to investigate certain breaches 126
49K. No entry to premises used for habitation 129
49L. Right of entry permit must be shown to occupier on request 129
49M. Obstructing etc. rights etc. under this Division etc. 130
Subdivision 3 — Right of entry permits
49N. Application for right of entry permit 130
49O. Commission may issue right of entry permit 131
49P. Deciding whether nominated representative is fit and proper person 131
49Q. Form of right of entry permit 132
49R. Expiry of right of entry permit 133
49S. Commission may decide on later expiry day 133
Subdivision 4 — Imposing or changing conditions, suspending or revoking right of entry permit
49T. When Commission may impose or change conditions, suspend or revoke right of entry permit 135
49U. When right of entry permit is suspended 136
49V. Revocation of right of entry permit on application of secretary of organisation 136
Subdiv 5
Miscellaneous
Subdivision 5 — Miscellaneous
49W. Return of right of entry permit 137
49X. Commission’s powers on dispute about right of entry or investigation 138
49Y. Limit on Commission’s jurisdiction in relation to awards, orders and agreements 139
Div 3
General Orders
Division 3 — General Orders
General Orders, nature of and making 139
50A. Rates of pay etc. for MCE Act and awards, annual State Wage order as to 141
50B. Apprentices, matters relevant to setting rates for in State Wage order 145
51A. Public sector discipline, General Orders as to 146
51B. General Order not to set minimum condition set by MCE Act 148
51BA. Notice of hearing to make General Order 148
51BB. Right to be heard before General Order made 149
51BC. Commissioner may deal with certain proceedings 149
51BD. Awards etc. affected by General Order, publication of 149
51BE. Publication of order 149
Division 3AA — Bullying at work and sexual harassment in connection with work
51BF. Terms used 150
51BG. Person conducting a business or undertaking 151
51BH. Worker 152
Subdivision 2 — Bullying at work
51BI. Worker bullied at work 153
51BJ. Worker may make stop bullying application 153
51BK. Dealing with stop bullying application 154
51BL. Power to dismiss stop bullying applications involving covert operations 154
51BM. Commission may make stop bullying order 155
51BN. Matters to be taken into account in considering terms of stop bullying order 155
51BO. Person must comply with stop bullying order 156
51BP. Enforcement of contravention of stop bullying order 156
Subdivision 3 — Sexual harassment in connection with work
51BQ. Meaning of sexually harasses 157
51BR. Sexual harassment in connection with work prohibited 158
51BS. Vicarious liability for sexual harassment in connection with work 158
51BT. Aggrieved person may commence sexual harassment proceeding 159
51BU. Time for commencing sexual harassment proceeding 159
51BV. Dealing with sexual harassment proceeding 160
51BW. Power to dismiss stop sexual harassment application involving covert operations 160
51BX. Commission may make stop sexual harassment order 161
51BY. Matters to be taken into account in considering terms of stop sexual harassment order 161
51BZ. Commission may make declarations and orders for referrals 162
51BZA. Person must comply with order made by Commission 163
51BZB. Enforcement of contravention of order 163
51BZC. Enforcement of contravention of prohibition on sexual harassment 164
51BZD. Restrictions on multiple actions 165
51BZE. Other laws not excluded or limited 167
Div 3A
MCE Act matters
Division 3A — MCE Act matters
51C. Terms used 168
Subdivision 2 — Disputes relating to flexible working arrangement requests
51D. Flexible working arrangement dispute 168
51E. Restriction on application for compulsory conference 169
51F. Commission may make certain declarations on deciding dispute by arbitration 169
51G. Commission may make flexible working arrangement order 170
51H. Employer must comply with flexible working arrangement order 171
51HA. Enforcement of contravention of order 171
51HB. Enforcement of minimum condition of employment relating to flexible working arrangement request 171
51HC. Restriction on multiple actions 172
Subdivision 3 — Casual employees’ loading
51I. Casual employees’ loading, setting for MCE Act s. 11 173
51J. Notice of hearings 173
51K. Right to be heard before order made 173
51L. Limits on orders made under section 51I 174
51M. Publication of orders 174
51N. Variation and rescission of s. 51I orders 174
Div 3B
Equal remuneration
Division 3B — Equal remuneration
51O. Equal remuneration orders 175
51P. Employer not to reduce remuneration 176
51Q. Alternative remedies 176
51R. Remuneration‑related action 177
Div 4
Registered organisations and associations
Division 4 — Registered organisations and associations
Terms used 178
52A. Counterpart federal body 179
Organisations of employees that may be registered 180
Organisations of employers that may be registered 181
Applications for registration under s. 53 or 54 181
Rules of organisations to provide for secret ballots etc. at elections 184
56A. Casual vacancies, rules as to filling 186
Elections by direct voting system to be by secret postal ballot 187
Registering organisations, rules etc. 188
Names of registered organisations, restrictions on 189
Organisation becomes incorporated on registration 189
Effect of registration 190
Altering registered rules 190
Records, organisations’ duties as to etc. 191
Membership register, Registrar may direct rectification of etc. 192
Accounts of organisation, audit and filing of 193
65A. Auditor’s powers 194
Power of Chief Commissioner to deal with rules of organisation 194
Registering associations 197
Declaration as to certain functions 197
Election, conduct of by Registrar or Electoral Commissioner 198
Offences in relation to elections 200
Rules of State and federal organisations as to membership and offices 202
71A. State organisation may adopt rules of federal organisation 206
Amalgamated organisations, registration of 207
72A. Orders as to the employees represented by employee organisation 208
72B. AMA may represent interests of medical practitioners 210
Cancelling and suspending registration of organisation, procedure for 212
Div 5
Duties of officers of organisations
Division 5 — Duties of officers of organisations
Finance official’s duties 216
Auditor to report on compliance with s. 74 duties 218
Duty under s. 74, enforcing 218
Failure to comply with s. 77(2)(e) order 220
Proceedings under s. 77, effect on or of other proceedings 220
Disqualification from office for breach of s. 74 duty 221
Part 2AA — Employers declared not to be national system employers
Division 1 — Declarations
80A. Employers declared not to be national system employers 223
Division 2 — Change from federal to State system
80B. Terms used 223
80BA. Operation of awards, industrial agreements or orders 224
80BB. New State instruments 225
80BC. Amendment of new State instruments 226
80BD. Ability to carry over matters 226
80BE. References in new State instruments to federal industrial authority and General Manager 227
80BF. References in new State instruments to provisions of Commonwealth laws 227
80BG. References in new State instruments to federal organisations 228
80BH. Named parties to new State instruments 228
80BI. Employment under old federal instrument 229
80BJ. Leave accrued immediately before relevant day 229
80BK. Leave taken under old federal instrument 229
Part IIB — Enquiries
80ZE. Minister may refer matter to Commission for enquiry 231
Part IIC — Arrangements with other industrial authorities
80ZF. Term used: FW Commission 232
80ZG. Joint proceedings of Commission and FW Commission 232
80ZH. Referring matters to FW Commission for determination under this Act 233
80ZI. Conferences with other industrial authorities 234
80ZJ. Commission may exercise powers conferred by FW Act or prescribed enactments 234
Part III — Enforcement of Act, awards, industrial agreements and orders
Division 1 — Industrial magistrate’s court
Industrial magistrate’s courts established 236
81A. Jurisdiction of industrial magistrate’s court 236
81AA. Terms used 237
81B. Industrial magistrate’s courts, constitution of 237
81C. Sittings of industrial magistrate’s courts 238
81CA. Procedure etc. of industrial magistrate’s courts 239
81CAA. Onus of proving individual is or was not employee 239
81CB. Industrial magistrate’s court judgments, enforcement of 240
81D. Clerks of industrial magistrate’s courts 240
81E. Representation of parties in industrial magistrate’s court 241
81F. Industrial magistrate’s court records, access to 241
81G. Industrial inspectors may assist industrial magistrate’s court 242
Division 2 — Enforcement generally
Jurisdiction of Full Bench 243
82A. Time limit for certain applications 243
Enforcing awards etc. 244
83A. Underpayment of employee, orders to remedy 246
83B. Unfair dismissal, enforcing s. 23A order as to 247
83C. Costs of enforcement orders under s. 83, 83A and 83B 250
83D. Offences under this Act, jurisdiction as to 251
83E. Proceedings for contravening civil penalty provisions 251
83EA. Serious contravention of entitlement provision or civil penalty provision 254
83EB. Employer to have burden of disproving certain allegations by applicant under s. 83 256
83F. Costs and penalties, payment of 256
Appeal from industrial magistrate’s court to Full Bench 257
84AA. Illegal contracts of employment may be treated as valid 259
84A. Certain contraventions of Act, enforcement of before Full Bench 259
Division 3 — Civil infringement notices
84B. Terms used 261
84C. Giving civil infringement notice 262
84D. Content of civil infringement notice 263
84E. Amount of civil infringement notice penalty 264
84F. Time for payment of civil infringement notice penalty 264
84G. Extension of time to pay civil infringement notice penalty 264
84H. Withdrawal of civil infringement notice 265
84I. Effect of payment of civil infringement notice penalty 266
84J. Refund of civil infringement notice penalty 266
Division 4 — Enforceable undertakings
84K. Terms used 266
84L. Application of Division 267
84M. Enforceable undertaking 267
84N. Enforcement of enforceable undertakings 268
Division 5 — Compliance notices
84O. Terms used 268
84P. Application of Division 268
84Q. Giving compliance notice 269
84R. Relationship with enforceable undertakings 270
84S. Relationship with proceedings under s. 83 270
84T. Person must comply with compliance notice 271
84U. Review of compliance notices 272
84V. Withdrawal of compliance notice 272
Part IV — Western Australian Industrial Appeal Court
Constitution of Court 273
Jurisdiction of Court 274
Decision of Court 275
Judgments, enforcement of 275
Appeal from Commission to Court 276
Representation before Court 278
91A. Court’s power to order costs and expenses 278
Contempt, Court’s powers as to 278
Part V — The Registrar and other officers of the Commission
Appointment and duties of officers 280
Authority of officers to do acts as directed 282
Deputy registrar’s functions 282
Delegation by Commission to Registrar 283
Part VIA — Freedom of association
96A. Terms used 286
96B. Awards etc. not to contain certain provisions about membership of organisations 286
96C. Discrimination because of membership of organisation, offence 287
96D. Discriminatory etc. acts against persons performing work for employers because of membership or non‑membership of employee organisation, offence 288
96E. Discriminatory etc. acts against persons because of non‑membership of employee organisation, offence 290
96F. Penalties under s. 96C, 96D and 96E, provisions about 292
96G. Criminal responsibility of officers etc. for offences in s. 96C, 96D and 96E 293
96H. Criminal responsibility of corporations etc. for offences in s. 96C, 96D and 96E 294
96I. Evidentiary provisions for s. 96C, 96D and 96E 294
96J. Court may order compliance with s. 96C, 96D or 96E 295
96K. Appeal against decision under s. 96J 296
96L. Other court orders after conviction under s. 96C, 96D or 96E 297
Part 6B
Protection of employee rights
Part 6B — Protection of employee rights
Terms used 298
Division 2 — Damaging action
97A. Damaging action because of inquiry or complaint 299
97B. Court orders to employers 299
97C. Court orders to third parties 300
Division 3 — Sham contracts for services
97D. Misrepresenting contract of employment as contract for services 301
97E. Dismissing to engage under contract for services 301
97F. False statement to engage under contract for services 302
97G. Court orders to employers 302
Division 4 — Miscellaneous
97H. Certain advertising prohibited 303
Part VID — Employer‑employee agreements
97U. Terms used 305
Division 2 — The making of an EEA
97UA. Employer and employee may make EEA 307
97UB. EEA may deal with post‑employment matters 307
97UC. Other provisions about making EEA 307
97UD. Making of EEA by person with a mental disability 308
97UE. Effect of EEA 308
97UF. EEA not to be made while industrial agreement in operation 308
97UG. Documents etc. to be given to employee before EEA signed 309
97UH. Application of s. 97UG if draft EEA amended 310
97UI. EEA information statement, form of (s. 97UG(2)(b)) 311
97UJ. Bargaining agents, appointing etc. 312
97UK. Prohibited conduct relating to bargaining agents 313
Division 3 — Form and content of EEA
97UL. Form of EEA 313
97UM. Additional formalities for EEA made with employee under 18 314
97UN. EEA must provide for resolution of disputes 315
97UO. EEA dispute provisions, content of 315
97UP. Commission may be specified as arbitrator 316
Division 4 — Commencement, duration and variation
97UQ. New employee, when EEA commences 317
97UR. Existing employee, when EEA commences 317
97US. Expiry of EEA 317
97UT. Employment conditions applicable on expiry of EEA 318
97UU. EEA cannot be varied 318
97UV. Cancelling EEA 319
97UW. Termination of employment, effect of on EEA 319
Division 5 — Registration of EEAs
97UX. Delegation by Registrar 319
Subdivision 2 — Registration
97UY. Lodgment of EEA for registration 320
97UZ. EEA with new employee, effect of not lodging 321
97V. Recovery of money if s. 97UZ applies 321
97VA. Employment conditions of new employee if EEA not lodged 322
97VB. Registrar to be satisfied EEA is in order for registration 323
97VC. Registrar’s powers for s. 97VB 323
97VD. Registrar to notify parties of certain deficiencies in EEA 324
97VE. Parties may correct deficiencies in EEA 324
97VF. Registration of EEA 325
97VG. Refusal of registration of EEA 325
97VH. When refusal has effect 325
97VI. EEA for new employee refused registration, effect ceases 326
97VJ. Recovery of money if s. 97VI applies 326
97VK. Employment conditions of new employee if registration refused 327
97VL. Registrar to provide copy of registered EEA 327
Subdivision 3 — Appeal against refusal of registration
97VM. Appeal against refusal of registration 328
97VN. Commission to notify parties of certain deficiencies in EEA 328
97VO. Parties may correct deficiencies in EEA 329
97VP. Determination of appeal 330
97VQ. Procedure on appeal 330
Div 6
No‑disadvantage test
Division 6 — No‑disadvantage test
Subdiv 1
Definition
Subdivision 1 — Definition
97VR. Terms used 331
97VS. No‑disadvantage test defined 331
97VT. Determining which award etc. is relevant for s. 97VS 333
97VU. All entitlements to be considered 334
97VV. Application of test if Supported Wage System applies 334
Subdivision 2 — Principles to be followed in application of no‑disadvantage test
97VW. Term used: Commission 334
97VX. Commission to establish principles and guidelines 335
97VY. Registrar and Commission to give effect to s. 97VX instrument 335
97VZ. Minister or peak industry body may seek amendment etc. of s. 97VX instrument 336
97W. Public comment to be sought before s. 97VX instrument amended etc. 336
97WA. How public comment to be sought 336
Div 7
Register
Division 7 — Register
97WB. Terms used 337
97WC. Register of EEAs 338
97WD. Inspection of register 338
97WE. Commission may exempt an EEA from inspection 338
97WF. Protected information not to be disclosed 339
97WG. Certified copies of EEAs 340
Div 8
Disputes
Division 8 — Disputes
97WH. Terms used 340
97WI. Arbitration jurisdiction of Commission 340
97WJ. Representation of parties 341
97WK. Referral of alleged delay in dispute resolution to Commission 341
97WL. Several disputes may be subject of one arbitration 342
97WM. Arbitrator’s power to obtain information 343
97WN. Orders and determinations of arbitrators 343
97WO. Orders and determinations, form of etc. 344
97WP. Enforcing orders and determinations 345
97WQ. Industrial magistrate’s court not bound by arbitrator’s interpretation of EEA 345
Div 9
EEAs for persons with mental disabilities
Division 9 — EEAs for persons with mental disabilities
97WR. Terms used 346
97WS. Guardianship and Administration Act 1990, relationship of this Division to 347
97WT. Registrar to notify Public Advocate of applications and orders for approval of representative 348
97WU. Public Advocate to notify Registrar of relevant guardianship orders 348
Subdivision 2 — Approval of person to act on behalf of person with a mental disability
97WV. Application for approval 349
97WW. Requirements for s. 97WV application 350
97WX. Forms for s. 97WW to be prescribed 351
97WY. Who may be approved as a representative 351
97WZ. Approval of representative 352
97X. Effect of s. 97WZ order 353
97XA. Refusal of approval 353
97XB. Appeal against refusal of approval 353
97XC. Determination of appeal 354
Subdivision 3 — Functions of representative
97XD. Functions 354
97XE. Effect of acts of representative 355
97XF. Duties of representative 355
Subdivision 4 — Termination of representative’s authority to act
97XG. Duration of order approving representative 356
97XH. Resignation of representative 357
97XI. Revocation order, application to SAT for 357
97XJ. Right to be heard on s. 97XI application 358
97XK. SAT may make revocation order 358
97XL. Guardianship and Administration Act 1990, application of for s. 97XK 359
Subdivision 5 — Approval of new representative
97XM. Application for new approval where representative dies or approval is revoked 360
97XN. Approval of representative 361
97XO. Effect of s. 97XN order 361
97XP. Refusal of approval 362
97XQ. Appeal against refusal of approval 362
Subdiv 6
Miscellaneous
Subdivision 6 — Miscellaneous
97XR. Registrar’s powers for s. 97WV and 97XM 362
97XS. EEA not affected by revocation of order or vacancy in position of representative 363
97XT. Register of s. 97WZ and 97XN orders 363
97XU. Certified copies of registered entry 363
97XV. Information obtained under this Division not to be disclosed 364
97XW. Procedure in proceedings under this Division 364
Div 10
Certain conduct prohibited
Division 10 — Certain conduct prohibited
97XX. Purpose of this Division 365
97XY. Enforcing prohibitions in this Division 365
97XZ. Making employment etc. conditional on EEA being entered into prohibited 366
97Y. Certain advertising prohibited 367
97YA. Exception to s. 97XZ and 97YB 367
97YB. Employer offering EEA to also offer other employment arrangements 367
97YC. Order for compliance with s. 97YB 368
97YD. Threats and intimidation as to EEA prohibited 369
97YE. Misinformation prohibited 370
97YF. Dismissal etc. because of refusal to make or cancel EEA prohibited 370
97YG. Breach of s. 97YF, court orders that may be made for 371
97YH. Burden of proof in s. 97YF proceedings 372
Div 11
General
Division 11 — General
97YI. Review of Div. 5, 6 and 7 372
97YJ. Regulations 373
Part VII — Miscellaneous
Industrial inspectors, designation and functions of etc. 374
98A. Information obtained under s. 98 not to be disclosed 378
99A. Identity cards for industrial inspectors 378
99B. Production of identity card 379
99C. Staff for Department 380
99D. Designation of officers, generally 380
Wage rates in awards not affected by repeal of basic wage provisions 381
False or misleading statement about right to represent industrial interests 381
Obstruction etc. prohibited 382
102A. Institution of certain proceedings, powers of Registrar etc. for 383
Certain applications may relate to more than one breach 384
Prosecutions 385
Awards etc., evidence of 385
Official signatures and appointments, judicial notice of 386
No costs to be awarded against Registrar, deputy registrar or industrial inspector 386
Organisations and associations not affected by certain Imperial Acts 386
Dues payable to organisation or association may be sued for 387
Disputes between organisation or association and its members, how to be determined 387
No premiums etc. to be taken for employment 388
Certain rules of organisation as to penalties invalid 388
112A. Industrial agents, registration of 389
Regulations 392
Contracting out from awards etc. prohibited 394
Police officers, application of Act to (Sch. 3) 395
Existing authorities for entry and inspection by authorised representatives 399
Bullying and sexual harassment at work before commencement day 399
Office of public service arbitrator abolished 400
Public Service Appeal Board abolished 401
Railways Classification Board abolished 402
No costs to be awarded under section 107 402
Deletion of references to Mines and Metals Association 402
Existing breach of public sector standards claims 403
Industrial agents: transitional regulations 404
Sch 1
Matters to be published in the “*Western Australian Industrial Gazette*”
Schedule 1 — Matters to be published in the “Western Australian Industrial Gazette”
Sch 3
Police officers
Schedule 3 — Police officers
Application of Act to police officer 406
Western Australian Police Union of Workers, status of 407
Sch 4
Registration requirements for EEAs
Schedule 4 — Registration requirements for EEAs
When EEA is in order for registration 408
Sch 5
Powers to obtain information, and related provisions
Schedule 5 — Powers to obtain information, and related provisions
Authorised person’s powers to obtain information 410
Obstructing authorised person 410
False statement to authorised person 410
Failure to comply with cl. 1 requirement 411
Legal professional privilege overridden 411
Incriminating answers or documents 411
More sections below
Source text: opening excerpt
Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.
Western Australia
Industrial Relations Act 1979
Western Australia
Industrial Relations Act 1979
Contents
Part I — Introductory
Short title 2
Commencement 2
Application of Act off‑shore 2
Repeal 5
Objects of Act 5
Terms used 7
7A. Determining whether individual is employee or person is employer 21
7B. Determining whether employee is casual employee 22
Part II — The Western Australian Industrial Relations Commission
Division 1 — Constitution of the Commission
Commission constituted 24
Qualifications for appointment of Chief Commissioner 25
Age limit for commissioners 25
Oath of office and secrecy 26
Commission is court of record etc. 26
Protection of commissioners and others 26
Exercise of powers and jurisdiction of Commission 27
14A. Dual federal and State appointments 27
14B. Performance of duties by dual federal and State appointees 27
Constitution of Full Bench and Commission in Court Session 28
Chief Commissioner’s functions 29
16A. Delegation by Chief Commissioner 31
Appointment of acting commissioners 32
Extending appointments 33
Duty of commissioners 33
Conditions of service of commissioners 33
Resignation from office 35
Tenure subject to good behaviour 36
Division 2 — General jurisdiction and powers of the Commission
22B. Commission to act with due speed 36
Jurisdiction of Commission 36
23A. Unfair dismissal claims, Commission’s powers on 39
23B. Third party involvement in employment claim, Commission’s powers to prevent etc. 41
Western Australian Industrial Relations Commission: Established under section 8 as a continuation of the earlier Western Australian Industrial Commission. The WAIRC is a court of record (section 12) and its commissioners have the same protection as judges (section 13). It consists of a Chief Commissioner, a Senior Commissioner, and other commissioners, all appointed by the Governor.
Industrial matter: The term that defines the WAIRC's jurisdiction. Section 23(1) confers jurisdiction to hear, inquire into, and deal with all industrial matters. Section 24 gives the Commission power to decide what constitutes an industrial matter.
Employee and employer determination: Under the new section 7A (inserted in 2024), the question of whether an individual is an employee is determined by ascertaining the "real substance, practical reality and true nature of the relationship," looking at the totality of the relationship including the contract terms and how the contract is performed in practice. This was enacted in response to the High Court decisions in Personnel Contracting [2022] HCA 1 and ZG Operations [2022] HCA 2.
Casual employee: Under section 7B (also inserted in 2024), whether an employee is casual is determined by the same "real substance and practical reality" test, in response to WorkPac v Rossato [2021] HCA 23.
Award: An instrument issued by the WAIRC setting out minimum terms and conditions for employees in a particular industry or occupation. Awards are made, varied, and cancelled under Division 2A. The Commission makes a State Wage Order annually under section 50A, setting minimum rates.
Industrial agreement (enterprise agreement): An agreement between an employer and a union (or unions) registered under Division 2B. Good faith bargaining obligations apply (section 42B), with a Code of Good Faith in section 42C.
General Order: An order of general application made under Division 3, including the annual State Wage Order under section 50A.
Who it affects
WA State public sector employers and employees: Including government departments, statutory authorities, and public universities, who are subject to State public sector award provisions and the Commission's public sector employment jurisdiction.
WA local government employers and employees: Covered by the State system.
Unincorporated WA private sector employers: Small businesses operating as sole traders or partnerships not covered by the Fair Work Act.
Registered trade unions and employer organisations: Subject to registration, governance, and reporting requirements throughout the Act.
Individual employees and employers in the WA State system: Who can bring unfair dismissal claims (section 23A), stop-bullying applications (section 51BJ), stop-sexual harassment applications (section 51BT), and other claims.
The Commission itself and its commissioners who exercise the jurisdiction.
Key obligations
Good faith bargaining: Section 42B requires parties to a bargaining process to bargain in good faith. Section 42C sets out a Code of Good Faith: meeting and conferring, disclosing relevant information, genuinely considering and responding to proposals, refraining from capricious or unfair conduct. Section 42D clarifies that the duty does not require concluding an agreement.
Employment records and pay slips: Division 2F (sections 49D and 49DA) requires employers to keep records of employment matters and to issue pay slips to employees. Section 49E gives employees and their representatives a right to inspect records.
Organisational governance: Registered organisations must maintain accurate membership registers, hold properly conducted elections, have their accounts audited, and file accounts with the Commission. Finance officials have specific duties under section 74.
Compliance with awards and agreements: Employers bound by awards or agreements must comply with them. Breach is enforceable through industrial magistrates under Part III (section 83).
Powers and discretions
The Commission has very broad powers (section 27). It may make any order or award it considers fair and equitable to resolve an industrial matter, with a direction that it act according to equity and good conscience (section 26). Powers include:
Making, varying, and cancelling awards.
Making general orders and State Wage Orders.
Conciliating and arbitrating industrial disputes.
Making stop-bullying orders (section 51BM) and stop-sexual harassment orders (section 51BX) where a worker has been bullied or sexually harassed at work.
Making enterprise orders (sections 42I-42K) in certain bargaining situations.
Reviewing decisions of industrial magistrates.
Issuing right of entry permits for union representatives (Division 2G).
The Chief Commissioner manages the work of the Commission and may allocate matters to commissioners (section 25).
Penalties and enforcement
Breach of award or agreement: Section 83 allows proceedings to be brought before an industrial magistrate for breach of an award or agreement. The magistrate may impose penalties and order payment of any outstanding entitlements.
Bullying and sexual harassment: Breaches of stop-bullying orders (section 51BO) and stop-sexual harassment orders (section 51BZA) can be enforced through separate proceedings. Section 51BZC creates a prohibition on sexual harassment in connection with work, with civil enforcement.
Right of entry offences: Obstruction of authorised representatives exercising right of entry is an offence under section 49M.
Organisational offences: Failure to comply with organisational governance requirements (sections 74-78) carries penalties and can result in disqualification from office.
Appeals: Appeals from Commission decisions go to the Full Bench under section 49. Appeals from industrial magistrates' decisions go to the Federal Court or WA Industrial Appeal Court depending on the jurisdiction.
Process and timelines
Industrial dispute resolution: A party may refer an industrial matter to the Commission under section 29. The Commission must act with due speed (section 22B). The Commission first attempts conciliation and only proceeds to arbitration if conciliation fails (section 32).
Bargaining: A party may initiate bargaining by serving a notice under section 42. The other party must respond under section 42A. If bargaining in good faith fails, the Commission can assist (section 42E). If bargaining ends without an agreement, an enterprise order may be made (section 42I).
Unfair dismissal: Claims are lodged under section 23A. The Commission considers whether dismissal was harsh, oppressive, or unfair, and may reinstate or order compensation.
Stop-bullying applications: Under section 51BJ, a worker who has been bullied at work may apply to the Commission. The Commission deals with the application under section 51BK.
Award making: The Commission may make or vary awards following a hearing in which parties are given opportunity to be heard. The State Wage Order is made annually following a public hearing under section 50A.
Interactions with other law
Fair Work Act 2009 (Cth): The Commonwealth system covers most large private sector employers in WA. The IR Act 1979 and the FW Act operate in parallel, with the WA system applying to those not covered by the Commonwealth. Section 14A allows commissioners to hold dual federal and State appointments.
Minimum Conditions of Employment Act 1993 (WA) (MCE Act): Section 7A expressly applies to determining employment status for MCE Act purposes. The MCE Act sets minimum statutory conditions; the IR Act and awards build on those minimums.
Long Service Leave Act 1958 (WA) (LSL Act): Section 7A also applies to LSL Act determinations, maintaining consistent employee/employer classification across the WA employment framework.
Work Health and Safety Act 2020 (WA): Section 8(3A) requires at least one commissioner to have relevant WHS knowledge for exercising WHS jurisdiction.
Public Sector Management Act 1994 (WA): WA public sector employment is subject to both this Act and the IR Act provisions in Division 2AA (public sector employment matters).
Industrial Magistrates Courts Act 2021 (WA): The enforcement arm of the industrial relations system; industrial magistrates hear award and agreement breach proceedings.
Gotchas
The 2024 employment status amendments apply to existing relationships. Sections 7A and 7B (inserted 2024) apply to all current employment relationships, not just new ones. The "real substance and practical reality" test may reclassify relationships previously understood as contractor or casual arrangements. WA employers with non-standard workforce arrangements should reassess classification against the new test.
The WA State system is narrower than it appears. Most large WA private sector employers are in the Commonwealth system. The IR Act 1979 applies primarily to WA State government, local governments, and unincorporated businesses. An employer who believes they are in the WA State system should verify this carefully.
Good faith bargaining does not guarantee an outcome. Section 42D expressly provides that the duty of good faith bargaining does not require the parties to reach a concluded agreement. The Commission can assist under section 42E but cannot compel agreement except through an enterprise order in limited circumstances.
Right of entry has strict permit requirements. Union representatives cannot enter a workplace unless they hold a valid right of entry permit (Division 2G). The Commission may refuse, suspend, or revoke permits for representatives who are not fit and proper persons.
Practical examples
Scenario 1: Employee vs contractor classification. A WA sole trader business uses 10 workers who are engaged as independent contractors. Under section 7A (inserted 2024), the business and workers must be assessed by reference to the real substance, practical reality and true nature of the relationship, looking at the contract terms and how they work in practice. If the workers are found to be employees, the business is liable for unpaid award entitlements, leave, and superannuation.
Scenario 2: Stop-bullying order. A WA public sector employee complains that they are being repeatedly bullied at work by a co-worker. Under section 51BJ, the employee applies to the Commission for a stop-bullying order. The Commission examines the evidence and may make an order requiring the co-worker to stop specified bullying behaviours. Breach of the order can be enforced under section 51BO.
Scenario 3: Good faith bargaining dispute. A union and a WA public sector employer commence bargaining for a new enterprise agreement. The employer refuses to meet, does not provide relevant information about its financial position, and does not genuinely consider union proposals. The union makes a good faith bargaining application under section 42E. The Commission may make orders requiring the employer to comply with its good faith bargaining obligations.