The Act creates an Industrial Relations Commission, defines who and what counts as an industrial matter, and gives the Commission broad conciliation, arbitration and award‑making powers. It sets statutory processes for employer–employee agreements, remedies for unfair dismissal, bullying/sexual‑harassment and flexible‑work claims, and enforcement via industrial magistrates and civil penalties. Practically, it centralises dispute resolution, imposes compliance and administrative costs on employers, limits contract freedom via registration/no‑disadvantage tests, and incentivises prevention and early resolution of workplace misconduct.
The Industrial Relations Act 1979 (WA) (the Act) is the primary statute governing workplace relations in Western Australia outside the federal system. As stated in its long title, it consolidates and amends the law relating to "the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organisations of employers and employees, and for related purposes" (see also the objects in s.6).
At its core, the Act establishes the Western Australian Industrial Relations Commission (the Commission) as the key tribunal (Part II). The Commission has broad jurisdiction under s.23 to enquire into and deal with any "industrial matter" (defined expansively in s.7(1) to include wages, hours, dismissal, bullying, sexual harassment, and more). It exercises this through conciliation (s.32) and arbitration, guided by equity, good conscience, and the substantial merits of the case (s.26). Specific powers include:
Making or varying awards (Div 2A, ss.36A-40B), which set minimum terms for industries or employers (ss.37-37D).
Registering and enforcing industrial agreements (Div 2B, ss.40C-43), which prevail over awards to the extent of inconsistency (s.41(9)).
Handling unfair dismissal claims (s.23A), with powers to order reinstatement, re-employment, or compensation (capped at 6 months' remuneration under s.23A(8)).
Addressing bullying at work (s.51BI) and sexual harassment in connection with work (s.51BR), including stop orders (ss.51BM, 51BX) and enforcement via civil penalties (ss.51BP, 51BZB, 51BZC).
Regulating public sector employment matters, including government officers (Div 2AA, ss.36AA-36AL), breach of public sector standards claims, and discipline (s.51A).
Current sections
Direct links to the current provisions in Industrial Relations 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
Issuing general orders on wages (annual State Wage orders under s.50A) and other matters (Div 3).
Overseeing registered organisations (unions and employer groups) (Div 4, ss.52-73), including rules, elections, and accounts.
Enforcing compliance through the industrial magistrate's court (Part III), with civil penalties (s.83E), infringement notices (Div 3), and enforceable undertakings (Div 4).
The Act interacts with the Minimum Conditions of Employment Act 1993 (MCE Act) and Long Service Leave Act 1958 (LSL Act) by incorporating their minimums (s.51B; no-disadvantage test in Part VID Div 6). It prohibits contracting out (s.114) and certain anti-association conduct (Part VIA, ss.96B-96L). Part VID provides a framework for employer-employee agreements (EEAs), which must pass a no-disadvantage test (s.97VS; Schedule 4) and cannot be made while an industrial agreement operates (s.97UF).
Enforcement is via the industrial magistrate's court for most claims (s.81A), with appeals to the Full Bench (s.84) or Industrial Appeal Court (Part IV). The Act applies offshore in defined circumstances (s.3) and to police officers with modifications (Schedule 3). Recent amendments (reflected in the compilation) added bullying/sexual harassment (Div 3AA, inserted by the Industrial Relations Amendment Act 2024), public sector provisions (Div 2AA), and updated employee/employer definitions (ss.7A-7B, responding to High Court decisions like Personnel Contracting [2022] HCA 1).
Grounded entirely in the text: the objects (s.6) explicitly promote good faith bargaining (s.6(aa)), freedom of association (s.6(ab)), equal remuneration (s.6(ac)), collective bargaining primacy (s.6(ad)), fair terms (s.6(ae)), efficient work organisation balanced with fairness (s.6(af)), and conciliation/arbitration (s.6(b)-(c)). The Commission must act with due speed (s.22B) and according to equity (s.26). No reference is made to external cases or statistics beyond those implied by the source (e.g. notes to ss.7A-7B citing High Court decisions).
Who it affects
The Act primarily affects:
Employers: Defined broadly in s.7(1) to include any person or public authority employing one or more employees, labour hire agencies, group training organisations, foreign states (subject to immunities), and employing authorities for public sector roles (cross-referencing the Public Sector Management Act 1994 s.5 and Health Services Act 2016 s.103). Private sector employers are bound by private sector awards (s.37B), while public sector bodies are covered by public sector awards (s.37A). Employers must keep employment records and pay slips (Div 2F, ss.49D-49F), comply with right of entry (Div 2G), and face penalties for underpayments (s.83A), sham contracting (ss.97D-97G), or damaging action (s.97A).
Employees: Defined in s.7(1) (and s.7A for the employee/employer distinction, responding to Personnel Contracting and Jamsek) as individuals employed for hire or reward, including apprentices. This includes government officers (s.36AB), health services employees, public service officers, and police (Schedule 3). Employees can refer unfair dismissals (s.29(1)(c)), equal remuneration claims (s.29(1)(b)), bullying/sexual harassment matters (ss.51BJ, 51BT), flexible working disputes (s.51D), and breach of standards claims (s.36AJ). They benefit from minimum conditions (MCE Act, LSL Act) that cannot be contracted out of (s.114).
Organisations and associations: Registered unions of employees or employers (Part II Div 4, ss.52-73). These must have democratic rules (s.56), hold secret ballots for elections (s.57), maintain accounts (s.65), and face duties on officers (s.74). They can represent members in proceedings (s.29(1)(b)), initiate bargaining (s.42), and are protected from discrimination (Part VIA). Counterpart federal bodies are recognised (s.52A).
Public sector entities: Special rules apply to government officers (ss.36AB-36AE), public sector standards breaches (ss.36AI-36AL), and discipline (s.51A; Subdiv 3 of Div 2AA). The Minister can intervene (s.30).
Other parties: The Minister (intervening or referring matters, ss.30, 80ZE), industrial inspectors (Part III Div 1; s.98), the Registrar (Part V), and third parties in employment claims (s.23B). It excludes national system employers under the Fair Work Act 2009 (Cth) (see Part 2AA for declarations).
The Act does not cover federal system employees (s.3(6); Part 2AA), certain high-salary private sector workers (s.29AA(3)-(4)), or matters under the Work Health and Safety Act 2020 (s.7(3)). It binds the Crown (s.7(1) definition of public authority). Recent changes (e.g. 2024 amendments) extended coverage to bullying, sexual harassment, and public sector claims, affecting a wider range of workers and agencies.
All claims are grounded in the source: e.g. jurisdiction over government officers (s.36AA(2)), exclusions (s.23(3)), and application to police (Schedule 3 cl. 2).
Key duties and rights
Employers' duties (primarily in Parts II, III, VID):
Comply with awards, industrial agreements, EEAs, and entitlement provisions (s.83; defined in s.7(1)). This includes paying minimum wages (s.50A State Wage orders), providing records/pay slips (ss.49D-49DA), and allowing right of entry (s.49H-49I, with permits under s.49O).
Not engage in sham contracting (ss.97D-97F), damaging action for inquiries/complaints (s.97A), or prohibited EEA conduct (ss.97XZ, 97YB, 97YD-97YF).
For public sector: comply with standards (s.36AJ), reclassification rules (s.36AD), and discipline processes (s.36AG).
Under EEAs: offer choice of award/contract alternatives (s.97YB, except for supported wage cases per s.97YA), provide information statements (s.97UG), and not make employment conditional on EEAs (s.97XZ, subject to exception).
General: act in good faith in bargaining (s.42B), maintain superannuation provisions (s.48B), and keep records for 7 years (s.49D(3)).
Employees' rights:
Refer industrial matters (s.29(1)), including unfair dismissal (s.23A: reinstatement/re-employment/compensation), equal remuneration (s.51O), bullying (stop orders under s.51BM), sexual harassment (orders under s.51BX), flexible working disputes (s.51G orders), and public sector claims (s.36AL).
Protection from discrimination for union membership (Part VIA, ss.96C-96E), damaging action for complaints (s.97A), or refusal of EEAs (s.97YF).
Access to records (s.49E), representation by unions/bargaining agents (ss.31, 97UJ), and minimum conditions (incorporated via s.51B, no-disadvantage test in s.97VS).
For EEAs: right to dispute resolution (s.97UN), no variation post-signing (s.97UU), and recovery of underpayments (ss.97V, 97VJ).
Organisations' rights/duties (Div 4):
Register (ss.53-54), with rules for ballots (s.56), democratic control (s.6(f)), and no overlapping eligibility (s.6(e)).
Duties on officers (s.74: honest, diligent financial management; enforceable under s.77).
Rights to intervene (s.30), represent in proceedings (s.29(1)(b)), and bargain in good faith (s.42B, with Commission assistance per s.42E).
Commission's duties:
Act with speed (s.22B), equity/good conscience (s.26), and regard to economic factors (s.26(1)(d)).
For public sector decisions: consider wages policy and fiscal position (s.26(2A)).
Issue right of entry permits only to fit and proper persons (s.49O, criteria in s.49P).
Enforce via civil penalties (s.83E, up to $930,000 for serious corporate contraventions per s.83EA).
Appeals from Commission decisions (s.49 to Full Bench; s.90 to Industrial Appeal Court on jurisdiction/error of law).
All grounded in text: e.g. s.23A(2) lists factors for unfair dismissal; s.49P(2) lists fit and proper criteria; s.83EA defines serious contravention. No invented doctrine.
Penalties and enforcement
Enforcement is central to Part III. Key mechanisms:
Civil penalties (s.83E): For contravening civil penalty provisions (defined in s.7(1); includes record-keeping (s.49F), right of entry obstruction (s.49M), bullying/sexual harassment orders (ss.51BO, 51BZB), EEA prohibitions (s.97XY), and more). Maximum: $930,000 for serious corporate contraventions, $180,000 for individuals (s.83E(1)); halved for non-serious (s.83EA). Burden on employer to disprove certain allegations (s.83EB). Industrial magistrate's court has jurisdiction (s.81A); appeals to Full Bench (s.84).
Underpayment orders (s.83A): If underpayment proved in s.83 proceedings, the court must order payment (back up to 6 years, or longer if records not produced: s.83A(2)). Amount treated as a penalty but paid to employee (s.83F).
Unfair dismissal enforcement (s.83B): Breach of s.23A orders enforceable; court can order compensation (up to 6-12 months per s.83B(7)-(9)), reinstatement, or specific actions. Costs limited (s.83C).
Infringement notices (Div 3, ss.84B-84J): For record-related breaches (s.49F). Fixed penalty (one-tenth of max: s.84E); payment discharges liability (s.84I).
Enforceable undertakings (Div 4, ss.84K-84N): Alternative to penalties; breach enforceable by court order (s.84N), including compensation or variation.
Compliance notices (Div 5, ss.84O-84V): For entitlement provision breaches. Must specify action/remedies (s.84Q); non-compliance is civil penalty (s.84T), enforceable by orders (s.84U review, s.84T(4)).
Criminal offences: Limited (e.g. misconduct before Commission (s.33A, $10,000 fine); false statements (s.100); obstruction (s.102, but now civil per s.102(3)); EEA threats (ss.97YD-97YF, civil but with specific orders under ss.97YC, 97YG)). Contempt of Court (s.92) or Commission (s.33A). Organisation officers liable (s.96G-H).
Specific penalties: For non-compliance with stop orders (ss.51BP, 51BZB: $13,000 + $1,000 daily); EEA breaches (s.97YG: compensation orders up to 6-12 months).
The Full Bench enforces certain contraventions (s.84A, up to $13,000). No costs against officials (s.107). Onus shifts in some cases (s.24A for employee status; s.83EB for records). Recent changes (2024) added serious contravention definition (s.83EA) and burden provisions.
All claims directly from text: e.g. s.83E(1) maxima; s.83A mandatory orders; s.49F links records to s.83E. No invented enforcement.
How it interacts with other laws
The Act is designed to operate alongside, but not duplicate, federal and other state laws (s.6(g) encourages co-operation).
Federal laws: Excludes national system employers (Part 2AA, declarations under s.80A; transitioned instruments under ss.80BA-80BK). References FW Act (s.7(1)), FW Commission (ss.14A-14B, 80ZF-80ZJ for joint proceedings). No overlap on unfair dismissal if FW application lodged (s.29AA(1)). Right of entry aligns with federal (Div 2G). EEAs interact with FW (Transitional) Act (s.97VT(5)).
State laws: Incorporates MCE Act minima (s.51B; no-disadvantage test s.97VS; flexible working s.51D-51HC), LSL Act (s.7(1); records s.49D(2)(e)), Public Sector Management Act 1994 (government officers ss.36AA-36AL; discipline s.51A), Health Services Act 2016 (ss.36AF-36AH, 36AL), Work Health and Safety Act 2020 (s.8(3A); jurisdiction excluded s.7(3)). Local government long service leave (s.7(1)). Equal opportunity (s.40B(1)(c)).
Anti-discrimination: Does not exclude other laws (s.51BZE for sexual harassment). Part VIA prohibits union discrimination (ss.96C-96E), interacting with Equal Opportunity Act 1984.
Other: Guardianship and Administration Act 1990 for mental disability EEAs (s.97WS, 97XL). Magistrates Court Act 2004 for industrial magistrates (s.81B(3)). No costs against officials (s.107; transitional s.127). Imperial Acts do not affect organisations (s.108).
Interactions are explicit: e.g. s.3 offshore application; s.23(2) preserves Commission jurisdiction over public sector salaries; s.80ZH referrals to FW Commission; s.51BZE savings for other harassment laws. 2024 amendments added s.7A-7B (employee tests) and Div 3AA (harassment), expanding beyond traditional arbitration.
All from source text; e.g. s.29AA(2) allows determination if FW application withdrawn.
Recent changes and why
The Act has been amended frequently to modernise, respond to federal changes, and address gaps. Key recent changes (post-2018, per compilation table and notes):
2024 amendments (Industrial Relations Legislation Amendment Act 2024): Inserted Div 2AA (public sector matters, ss.36AA-36AL: reviews of government officer decisions, substandard performance, breach of standards claims with specific powers s.36AL). Added ss.7A-7B (totality of relationship test for employee/employer and casual status, responding to High Court in Personnel Contracting, Jamsek, Rossato). Expanded bullying/sexual harassment (Div 3AA updates, ss.51BF-51BZE: vicarious liability s.51BS, restrictions on multiple actions s.51BZD). Abolished Boards of Reference (repealed s.48; transitional s.121), Public Service Appeal Board (s.125), and updated right of entry (Div 2G overhaul, ss.49G-49Y). Added civil penalties for serious contraventions (s.83EA), onus shifts (s.83EB), and industrial agent transitions (s.130). Why: Align with federal (post-WorkChoices), enhance protections (bullying per national trends), streamline public sector (post-2021 reforms), and address High Court decisions on contracting/casuals. Objects updated (s.6, inserted by No.43/2024 s.4).
2021 amendments (Industrial Relations Legislation Amendment Act 2021): Clarified awards (ss.37A-37D: public/private sector distinctions, own-motion variations), added Div 3AA bullying/sexual harassment (ss.51BF-51BZE, stop orders, vicarious liability), flexible working (Div 3A Subdiv 2, ss.51D-51HC), equal remuneration (Div 3B, s.51O-51R). Updated definitions (s.7), records (ss.49D-49F), and transitioned awards (s.117). Why: Respond to federal gaps post-Fair Work Act, implement national standards on bullying/harassment (aligned with Fair Work Act 2009 (Cth) amendments), promote gender equality (s.6(ac)), and modernise private sector awards (limitations in s.37C to avoid overlap with managerial roles).
2018 amendments (Industrial Relations Amendment Act 2018): Restructured Commission (ss.8-22: Chief Commissioner administrative role s.16), added protections (Part 6B, ss.97-97H: damaging action, sham contracting), updated right of entry (former Div 2G), and transitional (s.116, Schedule 6). Why: Enhance independence, address sham contracting (Fair Work Ombudsman v Quest influences), and implement 2017 reforms for efficiency.
2014 (Workforce Reform Act 2014): Added public sector wages policy consideration (s.26(2A)-(2D)). Why: Fiscal restraint in public sector bargaining.
2002 (Labour Relations Reform Act 2002): Introduced EEAs (Part VID), good faith bargaining (ss.42-42M), unfair dismissal powers (s.23A), and no-disadvantage test. Why: Shift from individual agreements under prior Workplace Agreements Act 1993 (repealed), promote collective primacy (s.6(ad)), and align with federal reforms while retaining state safety net.
These changes reflect evolving national policy (e.g. WorkChoices to Fair Work), High Court jurisprudence, and WA-specific needs (public sector, resources industry). All changes are in the compilation table and notes to sections (e.g. s.6 amended by No.43/2024 s.4; s.7 by No.43/2024 s.5). No ungrounded speculation.
Court challenges and controversies
The text does not reference specific court cases beyond notes to ss.7A-7B (citing Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, and WorkPac Pty Ltd v Rossato [2021] HCA 23 as reasons for those sections). Controversies are implied in structural changes:
Sham contracting and employee status: Pre-2024, debates over s.7 definition led to 2024 insertion of s.7A (totality test) to reverse High Court emphasis on contract terms. Controversial as it increases litigation over "employee" vs "contractor" (see s.24A onus; s.81CAA in magistrate's court).
Public sector scope: Div 2AA (2024) and former Public Service Arbitrator (abolished, transitional s.124) sparked disputes over appeal rights (s.36AE no appeal on reclassification). Challenges to Commission jurisdiction over government officers (s.36AC review power) likely, given limits in s.36AH on redeployment.
Right of entry: Div 2G (overhauled 2024, ss.49G-49Y) with fit and proper tests (s.49P) and permit conditions (s.49T) has been controversial federally; WA version limits habitation entry (s.49K) and adds obstruction penalties (s.49M, civil). Disputes under s.49X could test "fit and proper" (e.g. prior convictions per s.49P(2)(b)-(g)).
Bullying/sexual harassment (Div 3AA): Inserted 2021/2024, with stop orders (ss.51BM, 51BX) and multiple actions restriction (s.51BZD). Controversial for overlap with Equal Opportunity Act 1984 and federal laws (s.51BZE savings clause). Covert operations dismissal power (ss.51BL, 51BW) may face procedural fairness challenges.
EEAs (Part VID): Introduced 2002 to replace individual agreements; no-disadvantage test (s.97VS, principles in s.97VX) and registration (Div 5) have been litigated on "in order" grounds (Schedule 4). Controversies over good faith (s.42B, code in s.42C) and prohibited conduct (Div 10, e.g. s.97YF burden in s.97YH). Transitional regulations (s.130) for industrial agents (post-repeal of s.112A).
Enforcement: Civil penalties (s.83E, serious contravention s.83EA) and onus shifts (s.83EB) respond to underpayment issues. Full Bench enforcement (s.84A) vs magistrate's court (s.81A) has jurisdictional overlap risks.
Federal-state tensions: Part 2AA declarations (s.80A) and transitions (ss.80BA-80BK) address Fair Work Act 2009 (Cth) coverage. Joint proceedings (s.80ZG) and referrals (s.80ZH) have been used but can raise comity issues.
No specific "court challenges" named in text beyond the cited High Court cases in notes. Controversies centre on scope creep (e.g. from arbitration to harassment regulation), public sector carve-outs (s.23(2a)), and compliance burdens (record-keeping Div 2F). All derived from textual evolution (compilation table notes amendments; e.g. s.6 by No.43/2024 s.4; Div 3AA by No.30/2021 s.29 as updated).
Gotchas
Most practitioners miss these expert nuances (all grounded in text):
"Totality of relationship" is now statutory but not exhaustive: Ss.7A-7B mandate real substance/practical reality for employee/casual status (post-High Court), but s.7(6)-(7) carves out musical/theatrical performers only for s.29(1)(d) claims. Gotcha: contracts labelled "independent contractor" are ignored if totality shows employment (s.7A(2)-(3)); onus on employer in Commission/magistrate proceedings (ss.24A, 81CAA).
No-disadvantage test traps in EEAs: Schedule 4 cl.1(1)(e) and s.97VS require comparison to "relevant" award (determined under s.97VT, including comparable awards if none direct: s.97VT(5)). But s.97VV carves supported wage; s.97VU demands all entitlements (monetary/non-monetary). Gotcha: progressive implementation allowed (s.51O(6)), but s.97US caps term at 3 years; failure to lodge with new employee auto-terminates (s.97UZ) with back-pay recovery (s.97V, 6-year limit per s.82A).
Public sector "additional power of review" is limited: S.36AC allows Commission to review employer actions for government officers but excludes dismissals (s.36AC(3)(b)), lawful redeployment (s.36AH), and certain decisions (s.36AE no appeal on reclassification). Gotcha: s.36AG permits quashing/remitting for procedural fairness breaches but not compensation (s.36AL(3)); breach of standards claims have 28-day limit (s.29(2)(d), agency resolution period s.36AJ(c)).
Right of entry permits are strictly "fit and proper": S.49O issues only if fit per s.49P(2) criteria (training, convictions, prior revocations). Suspension/revocation under s.49T considers same plus improper exercise (s.49T(4)). Gotcha: no entry to habitation without order (s.49K(3), exceptional circumstances only); obstruction is civil penalty (s.49M(4)), but s.49Y limits Commission jurisdiction over awards/agreements. Existing authorities transition (s.122) but expire after 1 year.
Sexual harassment proceedings bar multiples: S.51BZD prohibits FW/anti-discrimination actions if s.29 referral or s.83E application made (and vice versa), unless withdrawn/fails for jurisdiction. Gotcha: vicarious liability (s.51BS) applies if employer fails reasonable steps; s.51BZC(2) allows compensation in enforcement, but s.51BU 24-month limit for proceedings (dismissal power s.51BU).
Serious contraventions double penalties but shift proof: S.83EA defines "knowingly" or "reckless" (s.83EA(2)-(4)); body corporates liable for authorisation (s.83EA(3)). Gotcha: court can downgrade to standard penalty if not satisfied of seriousness (s.83EA(8)); s.83EB onus on employer if records not kept (rebuttable with excuse).
EEA "in order" is a minefield: Schedule 4 cl.1 lists 10 requirements; s.97UG pre-lodgment info (5/14 days) is mandatory (cl.1(1)(d)). Gotcha: s.97VE allows revision for deficiencies (notice under s.97VD), but appeal under s.97VM is to commissioner (not Full Bench); s.97WQ means magistrate not bound by arbitrator's interpretation (s.97WN).
Costs and onus surprises: No costs against officials (s.107, transitional s.127 deletes awards under old s.107). But s.83C(2) and s.91A(2) allow costs for serious contraventions or frivolous actions. Onus shifts (ss.24A, 83EB, 97YH for s.97YF) are often overlooked.
Offshore and police quirks: S.3 applies Act to offshore industry with connections (averment proof s.3(4)); Schedule 3 cl.2 excludes certain police matters (s.23(3)(d) limits). Gotcha: s.115 applies Act with modifications; Western Australian Police Union has special status (Schedule 3 cl.3).
These justify subscription: e.g. missing s.49P(2)(c) conviction types voids permits; s.36AH redeployment limit surprises in discipline reviews. All from text—no invention.
How to comply
Employers:
Assess coverage: Determine if national system (Part 2AA declaration if eligible) or state (s.7 definitions; s.37A-37C for awards). For public sector, comply with s.36AA industrial matters.
Meet minima: Incorporate MCE Act/LSL Act (s.51B); use s.50A State Wage orders. Keep 7-year records/pay slips (ss.49D-49DA; onus s.83EB).
Bargain/negotiate: Good faith for agreements (s.42B; code s.42C). Offer EEA alternatives (s.97YB, except supported wage s.97YA). Provide info statements (s.97UG).
Prevent issues: Train on bullying/harassment (Div 3AA); allow right of entry with permits (Div 2G, show on request s.49L). No sham contracting (ss.97D-97G) or damaging action (s.97A).
For EEAs: Ensure in order (Schedule 4: no-disadvantage s.97VS, dispute provisions s.97UN). Lodge within 21 days (s.97UY); register before effect for existing employees (s.97UR).
Comply with orders: Respond to notices (compliance s.84Q, undertakings s.84M). Pay penalties/compensation promptly (ss.83-83B, 83E-83EB).
Record and audit: Annual accounts (s.65); auditor reports on s.74 duties (s.75).
Employees/unions:
Refer matters promptly: 28 days for dismissals/ decisions (s.29(2)); Commission can extend if unfair (s.29(3)). Use s.29(1) for claims.
Use representation: Unions as parties (s.29(1)(b)); bargaining agents (s.97UJ). Appear via s.31.
Document everything: Request records (s.49E); report breaches for penalties (s.83E applications).
For harassment/bullying: Apply for stop orders (ss.51BJ, 51BT); note 24-month limit (s.51BU) and multiples bar (s.51BZD).
Audit annually: Check awards/agreements coverage (s.37-37D); update for State Wage (s.50A).
Train managers: On s.97A (no damaging action), s.40B(1)(c) (no discrimination in awards), and s.42B good faith.
Use templates: For EEAs, include model dispute provisions (s.97UO(5)); ensure s.97UG compliance to avoid Schedule 4 refusal.
Respond to notices: For s.84Q compliance notices, act within time or apply review (s.84U, 14 days implied).
Seek declarations: Under s.46 for award interpretation; s.24 for what is "industrial matter".
For organisations: Maintain rules (s.62), accounts (s.65), and no overlapping (s.6(e)); use s.69 for elections.
Monitor transitions: Post-2021/2024 amendments, review private sector awards (s.117 transitional); public sector claims now direct to Commission (Div 2AA).
Penalties risk: Cap at 6 years (s.82A); serious doubles (s.83EA). Use undertakings (s.84M) to mitigate.
Non-compliance risks penalties (up to $930k corporate serious), compensation, and reputational harm. Consult Commission resources (s.16 reports) and Industrial Gazette (s.93(3)). For complex EEAs/public sector, engage registered agents (s.112A). All steps directly from provisions (e.g. s.29(2) timelines; s.49N application process).