Parliamentary and Electorate Staff (Employment) Act 1992

Employer designation. The central concept is the statutory assignment of employer status. The Act does not create a new legal person; rather it declares that, for the purposes of all employment law, the President or Speaker (or both) is the employer of the named categories of staff. This means that any award, industrial agreement, or common‑law employment duty that attaches to an employer attaches to that office‑holder personally in their official capacity. The employer also has the power to appoint persons as employees under section 4(4)(a). Section 4(4)(b) adds that, subject to any award, order, or industrial agreement under the Industrial Relations Act 1979, the employer may at any time exercise the powers conferred by sections 52 and 53 of the Interpretation Act 1984,those provisions relate to the suspension, removal, and termination of appointees. So the employer can hire and fire, but only within the constraints set by industrial instruments.

Recommendation requirement. The employer’s power is not unfettered. In most cases the President or Speaker must act “on the recommendation of” another officer. For departmental staff, the recommendation comes from the Clerk of the relevant House. For electorate officers, the recommendation comes from the Director‑General (the chief executive of the department administering the Constitution Act 1889). This imposes a form of internal check: the recommending officer effectively nominates, and the employer cannot act without that recommendation, though the Act does not say the employer is bound to follow it. The precise legal force of a recommendation is a matter of statutory construction,it likely means the employer cannot validly appoint or dismiss unless a recommendation has been made, but the employer retains discretion once the recommendation exists.

Joint versus single employer. The Act distinguishes between staff employed by the President alone, by the Speaker alone, and by both jointly. Joint employment under section 5 means both office‑holders must act together; neither can act unilaterally for those staff. This applies to the heads of the Parliamentary Reporting Staff, Parliamentary Library, and Joint House Department, as well as all members of those departments. Joint decisions require agreement; delegation under section 6(3) can also be exercised jointly.

Delegation. Section 6 allows each employer (President, Speaker, or both) to delegate their powers to a specified officer. The delegation can be general or limited. Significantly, the power of delegation itself can be delegated, creating a chain of sub‑delegation. However, the delegate must be the person nominated in the section: the Clerk of the relevant House, the Director‑General, the Chief Hansard Reporter, the Parliamentary Librarian, or the Executive Officer of the Joint House Department. The instrument of delegation must be in writing and signed.

Representation. Section 7 is a stand‑alone concept: it designates who must appear for the employer in any matter or proceeding under the Industrial Relations Act 1979. The representative is the line manager or administrative head of the relevant department,for example, the Clerk of the Legislative Council represents the President for Legislative Council departmental matters. The representative does not become the employer; they act for the employer. Section 7(2) preserves the possibility of any person representing the employer appearing under section 31 of the Industrial Relations Act 1979 (which deals with representation generally), so the mandatory representation in section 7(1) is not exclusive.

Electorate officer. Defined in section 3(1) as a person appointed to assist a member of either House with constituency matters or to assist the secretary of a parliamentary political party. Such officers are not staff of Parliament strictly; they are employed by the President or Speaker but appointed on the recommendation of the Director‑General, not the Clerk. This reflects that electorate officers are closer to the political sphere and their funding comes through the parliamentary appropriations but their employment is channelled through the Presiding Officers to avoid members being direct employers.

The Act directly designates employers and employees, and thereby affects a closed set of persons and office‑holders. The affected employees are: (a) members of the Department of the Legislative Council other than the Clerk and Deputy Clerk; (b) members of the Department of the Legislative Assembly other than the Clerk and Deputy Clerk; (c) the Chief Hansard Reporter; (d) the Parliamentary Librarian; (e) the Executive Officer of the Joint House Department; (f) members of the Department of the Parliamentary Reporting Staff; (g) members of the Department of the Parliamentary Library; (h) members of the Joint House Department; and (i) electorate officers,those appointed to assist members of the Legislative Council or Legislative Assembly with constituency matters, or to assist the secretary of a parliamentary political party. The Act does not cover the Clerks and Deputy Clerks of either House (their employment is under the Constitution Act 1889, as section 4 acknowledges). It also does not cover temporary staff hired by individual members at their own expense, since those persons would not be “electorate officers” within the meaning of the Act unless formally appointed.

The affected employers are: the President of the Legislative Council (including any person acting in that office, or if none, the Clerk of the Legislative Council); the Speaker of the Legislative Assembly (with the same fallback); and both jointly. Each employer is a natural person holding an office, not a corporation. This has implications for continuity: upon a change of Presiding Officer, the new office‑holder automatically becomes the employer. The Act also imposes obligations on the relevant recommending officers,the Clerks, the Director‑General, the Chief Hansard Reporter, the Parliamentary Librarian, and the Executive Officer of the Joint House Department,who must supply recommendations before the employer can act. Delegates under section 6 are also affected because they step into the employer’s shoes for delegated matters.

Further affected are the Western Australian Industrial Relations Commission and anyone dealing with an employment dispute involving these staff. The Commission must look to this Act to identify the correct respondent in any proceeding. For legal practitioners and industrial advocates, the Act determines who to name as the employer in any claim, bargaining process, or unfair dismissal application. For the Director‑General, who is the chief executive of the department administering the Constitution Act, the Act gives a role in electorate officer employment that may extend beyond normal public service responsibilities, creating a potential tension between parliamentary independence and executive oversight.

Taxation and payroll offices, superannuation fund trustees, and workers’ compensation insurers dealing with these staff also need to know the employer identity to determine liability and reporting obligations. While the Act does not itself alter those statutory schemes, the employer designation flows through to them. Costs of compliance are borne by the parliamentary departments through their administrative budgets, and any litigation under the Industrial Relations Act 1979 will involve the designated representative, not the Presiding Officer personally.

The Act imposes duties on the designated employers to appoint staff and to exercise the powers under sections 52 and 53 of the Interpretation Act 1984, but only subject to any award, order, or industrial agreement under the Industrial Relations Act 1979. Section 4(4) makes clear that the employer’s powers are not absolute; industrial instruments may constrain dismissal and suspension. The duty to act on a recommendation is also a procedural duty: before the President appoints a member of the Legislative Council Department, the Clerk must have made a recommendation. If the President acts without that recommendation, the appointment may be invalid. Similarly, the Speaker cannot appoint an electorate officer for an Assembly member without the Director‑General’s recommendation.

Rights of the employer include the right to delegate powers under section 6, which may simplify day‑to‑day administration. The employer also has the right to be represented by the designated officer in any matter under the Industrial Relations Act 1979, which may shield the Presiding Officer from direct engagement in proceedings.

Rights of employees under this Act are limited to the right to know who their employer is. All substantive employment rights (e.g., to fair dismissal, to bargain collectively, to have awards enforced) arise under the Industrial Relations Act 1979, the common law, and any applicable industrial instrument. The Act does not create any new cause of action for employees. However, the employer designation is critical for enforcement: an employee cannot bring a claim against the wrong entity. The Act also gives employees the benefit of a fixed employer with ongoing existence (the office‑holder) rather than an individual member of Parliament whose term may end. This provides continuity and protects employee entitlements.

The Act does not give any rights to the recommending officers. Their role is procedural, not substantive. They must provide a recommendation, but the Act does not say they have the right to withhold it arbitrarily; any refusal would likely be subject to judicial review if it obstructed the employer’s statutory function.

There are no penalty provisions in the Parliamentary and Electorate Staff (Employment) Act 1992. The Act does not create any criminal offences or civil penalties for non‑compliance. Enforcement of the duties it imposes depends on other legal mechanisms. For example, if an employer fails to appoint a person on the recommendation of the Clerk, the aggrieved candidate might seek judicial review of the decision under the Administrative Law (Judicial Review) Act or at common law for a declaration that the employer acted without statutory authority. If an employer delegates without a signed writing, the delegation may be invalid, and any action taken by the supposed delegate could be challenged.

The primary enforcement avenue for employment disputes flows through the Industrial Relations Act 1979. That Act provides for unfair dismissal claims, breach of award claims, and industrial disputes. In those proceedings, the correct respondent must be identified under this Act. If the wrong person is named, the Commission may strike out the application or require amendment. The Act does not impose a time limit or a specific procedure for the employer’s obligations.

The Director‑General’s role as recommender for electorate officers carries no direct penalty if the recommendation is withheld or given improperly, but may expose the Director‑General to a legal challenge if the recommendation is made in bad faith or for an improper purpose, under general administrative law principles. The Act is silent on consequences for failure to follow the recommendation requirement; it does not say that an appointment without a recommendation is void. However, it is likely that a court would find such an appointment invalid for non‑compliance with a statutory condition precedent.

Given the narrow scope of the Act, the real enforcement teeth lie in the industrial relations system and in public law remedies. The Act is essentially a statutory allocation rule; it is not self‑enforcing. Legal risk for employers arises from misunderstanding who the employer is and therefore acting beyond power. For example, the Speaker individually cannot appoint a member of the Joint House Department (that requires joint action with the President). Failure to comply could allow a staff member to argue that no valid contract of employment exists, with consequences for pay and entitlements.

The Act operates as a component within a web of legislation governing parliamentary employment in Western Australia. Its most significant interaction is with the Industrial Relations Act 1979. The preamble states the Act is “for related matters” to industrial relations, and section 7 explicitly deals with representation under that Act. All substantive employment conditions, dispute resolution, and industrial bargaining occur under the Industrial Relations Act 1979, including awards, orders, and industrial agreements. The employer designation determines who is bound by those instruments.

Section 4 of this Act expressly states that the employer’s powers are subject to any award, order, or industrial agreement under the Industrial Relations Act 1979. This means the President and Speaker cannot disregard industrial obligations when appointing or terminating staff. There is no carve‑out for parliamentary privilege; the employer must comply with the same industrial law as any other employer, though the Act ensures the employer is a parliamentary office‑holder rather than a minister.

The Constitution Act 1889 is referenced in section 4(1)(a) and 4(2)(a): the President and Speaker act “subject to section 35 of the Constitution Act 1889” when employing members of the Legislative Council and Legislative Assembly Departments. Section 35 of the Constitution Act deals with the appointment of the Clerk of the Legislative Council and the Clerk of the Legislative Assembly and their deputies. The effect is that this Act does not override the constitutional provisions regarding the Clerks; the Clerks themselves are not employed under this Act. For all other departmental members, the Constitution Act’s relevance is limited.

The Interpretation Act 1984 sections 52 and 53 are incorporated by reference in section 4(4)(b). Those provisions give an employing authority the power to suspend or remove an appointee, subject to any contrary provision. This means the employer can terminate or suspend staff without the need to find a separate source of power, but only if what they do is consistent with industrial instruments.

The Act does not interact with the Public Sector Management Act 1994, because parliamentary staff and electorate officers are not public service employees under that Act, unless specifically declared. The Director‑General is defined as the chief executive of the department administering the Constitution Act,that is the Department of the Premier and Cabinet. So for electorate officers, there is a link to the public service for the recommendation function, but the employer remains the Presiding Officer. This creates a hybrid: an electorate officer is not a public servant, but the public service head recommends their appointment.

The Act also interacts with the Parliamentary Allowances and Salaries Act and the Financial Management Act, but only indirectly, as salary and appropriation matters are dealt with elsewhere. There is no mention of the Commonwealth Fair Work Act; since this is a state Act for state parliamentary staff, the state industrial system applies exclusively unless the staff are constitutionally covered by the Commonwealth, but that is unlikely for state parliamentary staff.

The Act was enacted as Act No. 38 of 1992, assented to on 2 October 1992, and came into operation on 3 November 1992 (see section 2 and the Gazette of 3 November 1992 page 5389). The compilation table shows only one reprint, as at 23 April 2004. There are no amendments recorded in the source text. The Act therefore has remained in its original form since commencement. The absence of amendments may indicate that the employer allocation established in 1992 has proven workable or that no political impetus has arisen to change it. However, the lack of amendment does not mean the Act is static in effect; the underlying industrial relations legislation has been amended multiple times, and the identity of the Director‑General and the structure of parliamentary departments may have changed through administrative action, though the Act’s definitions allow for changes in designation (see section 3(2) referring to “by whatever designation that department may from time to time be known”).

The reprint date of 23 April 2004 means that any amendments after that date are not reflected. Practitioners should check for subsequent amendments or reprints beyond 2004. The source provided is limited, and no later version is given. It is possible that minor amendments have been made to the Director‑General definition or departmental names, but none are shown in this text.

The source text contains no litigation history, and no cases are mentioned in the Act itself. Given the Act’s narrow and essentially procedural focus, it is unlikely to have generated a significant body of case law. Most disputes involving parliamentary staff would be litigated under the Industrial Relations Act 1979, where the employer identity is a preliminary issue. Some decisions of the Western Australian Industrial Relations Commission or the Industrial Appeal Court may have considered this Act in passing, but none are cited in the source. The Act is so brief and precise that interpretive disputes are improbable. The key interpretive question,what the legal effect of “on the recommendation of” is,could have been litigated but there is no evidence in the source. Similarly, whether an appointment made without a recommendation is void or merely voidable is an open question that may have been resolved in unreported cases. The absence of litigation history in the source means that for the purpose of this deep dive, we cannot assert any authoritative judicial interpretation. Users should conduct their own case‑law search on Westlaw or AustLII.

1. The recommendation requirement is not a rubber stamp. The President or Speaker cannot act unilaterally; a valid recommendation must be in place. If a Clerk or the Director‑General refuses to recommend, the employer may be unable to appoint or dismiss. The Act does not say the employer must follow the recommendation, but it likely cannot act without one. This gives the recommending officer significant de facto power over staffing decisions.

2. Joint employers must act jointly. For staff under section 5, the President and Speaker both must consent to any employment action. If one refuses to agree, deadlock results. The Act provides no tie‑breaker. This could be a problem for terminating the Chief Hansard Reporter if the two Presiding Officers disagree.

3. Delegation can be further delegated. Section 6 permits the delegate to sub‑delegate the power of delegation itself. This could create long chains of sub‑delegation, potentially obscuring who actually has authority. Compliance requires keeping records of each delegation instrument in writing. Verbal delegations are invalid.

4. The definition of “the President” and “the Speaker” defaults to the Clerk if there is no acting President or Speaker. This means that if a vacancy occurs, the Clerk of the Legislative Council becomes the President for the purposes of the Act. Practitioners should check whether a Presiding Officer is in office at the relevant time.

5. The Director‑General is a public servant, not a parliamentary official. For electorate officers, the recommendation comes from a public service chief executive. This may raise concerns about parliamentary independence: the executive branch has a say in who assists members of Parliament with constituency matters. If the Director‑General refuses to recommend, members may be unable to employ staff they need.

6. Section 7 representation is mandatory but not exclusive. The designated representative must appear, but section 7(2) allows other persons to appear under section 31 of the Industrial Relations Act 1979. However, if the designated representative is not available, the employer may need to ensure a proper delegation is in place to authorise another person.

7. The Act does not cover all parliamentary staff. The Clerk and Deputy Clerk of each House are excluded (their employment is under the Constitution Act). Also, casual staff hired directly by members for non‑electorate officer roles are not covered,those staff may have no statutory employer under this Act, creating a gap in protection. Their employer might be the member personally, with attendant risks.

8. The employer is the office‑holder, not the office. If a President or Speaker is named in litigation, upon their term ending the successor may not automatically be substituted; the litigation must be properly reconstituted. This could cause procedural hiccups.

9. No transitional provisions in the source. The Act commenced in 1992. Any employees employed before that date may have had their employer change automatically. The Act does not explicitly preserve existing contracts, so the employer may have been substituted without employee consent, but that would likely be valid due to statute.

Compliance with this Act is primarily about correctly identifying the employer and ensuring that any exercise of employer powers follows the required procedure.

For the President and Speaker: Be aware of the categories of staff you employ. You are the employer for (a) members of the Legislative Council Department (President only); (b) members of the Legislative Assembly Department (Speaker only); (c) electorate officers assigned to members of your respective House (President or Speaker, on Director‑General’s recommendation); and (d) jointly with the other Presiding Officer for the Chief Hansard Reporter, Parliamentary Librarian, Executive Officer of the Joint House Department, and all members of those departments. Before appointing or dismissing any member of a department, obtain a written recommendation from the relevant Clerk (for departmental staff) or the Director‑General (for electorate officers). The recommendation should be documented and kept on file. Ensure that any delegation of powers is made by signed writing, specifying whether it is general or limited. If you delegate the power of delegation itself, ensure the instrument is clear. For joint decisions, both you and the other Presiding Officer must sign any appointment letter, dismissal notice, or delegation.

For Clerks of the Legislative Council and Legislative Assembly: Understand that you are the recommending officer for members of your respective departments (excluding the Clerk and Deputy Clerk). When you make a recommendation, you should do so in writing and ensure the President or Speaker receives it before any action is taken. You are also the designated representative for your Presiding Officer in industrial matters. Maintain records of all recommendations and representation appearances.

For the Director‑General: You are the recommending officer for all electorate officers, both for Council and Assembly. You must provide a recommendation before the President or Speaker can appoint an electorate officer. This role may conflict with your public service duties if you are asked to recommend an officer who does not meet public service standards but whom a member wants. You also represent the President or Speaker in industrial matters concerning electorate officers. Ensure you have a clear process for receiving and processing member requests.

For departmental heads (Chief Hansard Reporter, Parliamentary Librarian, Executive Officer of the Joint House Department): You are the recommending officer for staff in your department. You may also receive a delegation of employer powers from the President and Speaker jointly. If you have a delegation, you can hire and fire within your department, subject to the same recommendation requirement (since you would be both recommender and employer under delegation, which may be awkward; seek legal advice). Keep any delegation in writing.

For employees and their advisers: Verify who your employer is under the Act. If you work in the Legislative Council Department, your employer is the President. If in the Parliamentary Library, your employer is the President and Speaker jointly. This affects who to name in a claim. Check that any action such as dismissal was taken by the correct employer (e.g., if you are in the Joint House Department, a letter from only the Speaker is invalid). Also check whether a valid recommendation existed; if not, the action may be challengeable.

General record‑keeping: Maintain files containing all delegation instruments, recommendations, and correspondence showing the employer’s identity at the time of each action. Without these documents, it may be impossible to prove compliance in litigation. The Act itself does not impose a penalty for non‑compliance, but the validity of employment actions may depend on strict adherence to its terms. Legal advice should be sought before any contested termination or appointment, especially for joint‑employment categories or where the recommendation is contested.