Industrial Arbitration Act 1979

• 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.

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).

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).

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.

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.

• 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.

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.

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.