Changes to the Western Australian employment system

The WA Government has introduced the Industrial Relations Legislation Amendment Bill 2024 (the Bill) which will make changes to the WA industrial relations system.  Many of these changes mirror provisions that already apply to national system employers under the Fair Work Act 2009 (Cth) (FW Act).

Major changes

Casual loading under the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) will increase from 20% to 25%.

Local government employees long service leave (LSL) will be able to be enforced by employees in the Industrial Magistrate’s Court (IMC) and penalties will apply for breaches. 

Some entitlements under the FW Act will be adopted including:

For Public holidays:

1. the right for employees to be absent from work on a public holiday and to be paid ordinary hours on that day as if they had worked;
2. an employer will be able to request that an employee work on a public holiday if the request is reasonable; and
3. an employee can refuse if the requirement to work on the public holiday is not reasonable.

For flexible working arrangements:

1. parental leave provision in the state system will be repealed as the provisions in the FW Act apply to both state and national system employees; 
2. introduction of an enforceable minimum conditions of a request for flexible working arrangements (such as changes to working hours, days or location) if the employee is:
   1. returning form parental leave with responsibility for care of the child; or
   2. a carer; or
   3. experiencing family and domestic violence;
3. these requests can only be refused on reasonable business grounds;
4. if there is a dispute about these flexible working arrangements it may be referred to the Western Australian Industrial Relations Commission (the Commission) for conciliation and arbitration, or enforcement in the IMC.

The Commission will be able to conciliate and arbitrate sexual harassment disputes.  This will reflect the changes to the FW Act and will:

1. prohibit sexual harassment in connection with work;
2. include vicarious liability provisions;
3. give the Commission the ability to make a stop sexual harassment order; and
4. give the Commission the ability to order compensation to the aggrieved person. 

The Bill will introduce:

• a new framework for right of entry permits for union officials including a fit and proper person test 
• a test for determining if a worker is an employee, or a casual employee based on the real substance and practical reality of the working relationships rather than strict contractual terms. 

The Bill will also make changes that will impact WA Government employees by:

1. abolishing the Office of the Public Service Arbitrator and Public Service Appeal Board and moving matters that would go to these bodies to the general jurisdiction of the Commission. 
2. introducing a standard process to address substandard performance and disciplinary decisions.
3. introducing a standard process for claims of unfair dismissal; 
4. public sector standard breaches will be able to be addressed by the Commission for ‘specified public sector standards’; and

5. the Commission will have the ability to conciliate and arbitrate a breach of some public sector standards claims.

   Written by Debbie Larson, Associate