Industrial Relations Act 1979 (WA)
Western Australia
Western Australia
This Act may be cited as the
The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation.
(1) Subject to subsections (5) and (6) where any industry is carried on —
(a) partly within the State and partly within an area to which this subsection applies; or
(b) wholly or partly in an area to which this subsection applies, and —
(i) facilities for servicing or supporting that industry are maintained in the State by or on behalf of the employer concerned; or
(ii) the employer concerned is connected with the State; or
(iii) that industry is carried on from, or on, or by means of, an aircraft, ship, or vessel certificated, registered, or licensed under a law of the State or by a public authority, or which is required to be so certificated, registered, or licensed; or
(iv) that industry is carried on from, or on, or by means of, a rig or other structure, installation, or equipment, the use or function of which is regulated by the State or by the State and the Commonwealth, or is required to be so regulated; or
(v) that industry is authorised or regulated by the State or by the State and the Commonwealth; or
(vi) that industry is carried on pursuant to a law of the State,
then this Act applies to and in relation to that industry in so far as any employment relates to the area to which this subsection applies and in any such case this Act also applies to and in relation to any related industrial matter or industrial action, and any jurisdiction, function, duty, or power exercisable, imposed, or conferred by or under this Act extends to the matter or action.
(2) For the purposes of subsection (1), an employer is connected with the State if that employer —
(a) is domiciled in the State; or
(b) is resident in the State, normally or temporarily; or
(c) being a body corporate, is —
(i) registered, incorporated, or established under a law of the State; or
(ii) taken to be registered in the State; or
(iii) a related body corporate of such a body for the purposes of the
Corporations Act 2001 (Commonwealth);
or
(d) in connection with the industry concerned, has an office or a place of business in the State; or
(e) is the holder of a licence, lease, tenement, permit, or other authority, granted under a law of the State or by a public authority under or by virtue of which the industry is carried on.
(3) The areas to which subsection (1) applies are —
(a) that area situate west of 129° of east longitude reckoning from the meridian of Greenwich, that is part of the areas known as and comprised within —
(i) the Australian fishing zone as defined by the Commonwealth
Fisheries Act 1952 2 ; or(ii) the continental shelf, within the meaning of the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 1 to the Commonwealth
Petroleum (Submerged Lands) Act 1967 3 ;
(b) any other area seaward of the State to which from time to time the laws of the State apply or, by a law of the Commonwealth, are applied.
(4) For the purposes of any proceedings under this Act an averment in the application or process is, in the absence of proof to the contrary, taken to be proved if it is either of the following —
(a) that an employer was, pursuant to subsection (2), at a specified time or during a specified period or at all material times connected with the State; or
(b) that any conduct, event, circumstance, or matter occurred, or that any place is situate, within an area referred to in subsection (3).
(5) Subsections (1), (2), and (3) must not be construed as applying this Act to or in relation to any person, circumstance, thing, or place by reason only of the operation of paragraph (c) of the interpretation of the term
industry set out in section 7(1) unless this Act would also apply by reason of the operation of subsection (1).(6) Subsections (1), (2), and (3) have effect only where this Act or any provision of this Act would not otherwise apply as a law of the State, or be applied as a law of the Commonwealth, to or in relation to any person, circumstance, thing, or place.
The
The principal objects of this Act are —
(a) to promote goodwill in industry and in enterprises within industry; and
(aa) to provide for rights and obligations in relation to good faith bargaining; and
(ab) to promote the principles of freedom of association and the right to organise; and
(ac) to promote gender equality in the workplace through equal remuneration and eliminating gender‑based undervaluation of work; and
(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; and
(ae) to ensure all agreements registered under this Act provide for fair terms and conditions of employment; and
(af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises; and
(ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises; and
(b) to encourage, and provide means for, conciliation with a view to amicable agreement and preventing and settling industrial disputes; and
(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality; and
(ca) to provide a system of fair wages and conditions of employment; and
(cb) to prevent and eliminate bullying and sexual harassment in the workplace; and
(d) to provide for the observance and enforcement of agreements, awards, the LSL Act, the MCE Act and other entitlement provisions; and
(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations; and
(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and
(g) to encourage persons, organisations and authorities involved in, or performing functions with respect to, the conduct of industrial relations under the laws of the State to communicate, consult and co‑operate with persons, organisations and authorities involved in, or performing functions with respect to, the conduct or regulation of industrial relations under the laws of the Commonwealth.
(1) In this Act, unless the contrary intention appears —
(a) means an award made by the Commission under this Act; and
(b) for the purposes of section 37C(1), includes an award made under a law of the Commonwealth, another State or a Territory extending to and binding employees;
(a) an electronic database or document management system; or
(b) any other means by which a document can be accessed electronically;
(a) an individual who is employed by an employer to do work for hire or reward, including as an apprentice; or
(b) an individual whose usual status is that of an employee;
Note for this definition:
See section 7A which applies for the purposes of determining whether an individual is an employee of a person.
(a) a person or public authority employing 1 or more employees; or
(aa) in relation to an industrial matter mentioned in section 36AA — the employing authority of a public service officer or health services employee; or
(b) except as provided in the
Foreign States Immunities Act 1985 (Commonwealth) section 12, a foreign state or consulate employing 1 or more employees; or(c) a labour hire agency or group training organisation that arranges for an employee (being a person who is a party to a contract of service with the agency or organisation) to do work for another person, even though the employee is working for the other person under an arrangement between the agency or organisation and the other person;
Note for this definition:
See section 7A which applies for the purposes of determining whether a person is an employer of an individual.
(a) in relation to a public service officer, another employee to whom the
Public Sector Management Act 1994 Part 5 applies or a public sector body — has the meaning given in section 5 of that Act; or(b) in relation to a health services employee — has the meaning given in the
Health Services Act 2016 section 103;
(a) a provision of any of the following —
(i) an award;
(ii) an industrial agreement;
(iii) an employer‑employee agreement;
(iv) an order made by the Commission, other than an order made under section 23A, 32(8), 44(6) or 66;
or
(b) a provision of the LSL Act Part III; or
(c) a minimum condition of employment; or
(d) a local government long service leave provision;
(a) an award; or
(b) an order of the Commission under this Act; or
(c) an industrial agreement; or
(d) for the purposes of section 49D or in relation to a SWIIP — an employer‑employee agreement;
(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;
(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;
(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons;
(ca) the relationship between employers and employees;
(d) any established custom or usage of any industry, either generally or in the particular locality affected;
(e) the privileges, rights, or duties of any organisation or association or any officer or member of an organisation or association in or in respect of any industry;
(f) in respect of apprentices, these additional matters —
(i) their wage rates and, subject to the
Vocational Education and Training Act 1996 Part 7 Division 2, other conditions of employment; and(ii) the wages, allowances and other remuneration to be paid to them, including for time spent in performing their obligations under training contracts registered under the
Vocational Education and Training Act 1996 Part 7 Division 2, whether at their employers’ workplaces or not; and(iii) without limiting subparagraphs (i) and (ii), those other rights, duties and liabilities of them and their employers under such contracts that do not relate to the training and assessment they are to undergo, whether at their employers’ workplaces or not;
(g) any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including —
(i) the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or
(ii) the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;
(h) any matter referred to as an industrial matter in section 36AA;
(ha) any matter relating to a flexible working arrangement dispute;
(i) any matter, whether falling within the preceding part of this interpretation or not, where —
(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and
(ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;
and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include —
(j) compulsion to join an organisation of employees to obtain or hold employment; or
(k) preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees; or
(l) non‑employment by reason of being or not being a member of an organisation of employees; or
(m) any matter relating to the matters described in paragraph (j), (k) or (l);
(a) any business, trade, manufacture, undertaking, or calling of employers;
(b) the performance of the functions of any public authority;
(c) any calling, service, employment, handicraft, or occupation or vocation of employees,
whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes —
(d) a branch of an industry or a group of industries;
Note for this definition:
Regulations made under the
(a) the employees of local governments; and
(b) the employees of the Western Australian Local Government Association constituted under section 9.58 of that Act.
(a) the office of a member of the committee of management of the organisation; and
(b) the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation; and
(c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest; and
(d) an office within the organisation for the filling of which an election is conducted within the organisation; and
(e) any other office, all or any of the functions of which are declared by the Commission under section 68 to be those of an office in the organisation,
but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;
(a) the Registrar, a deputy registrar or any other Registrar’s Department officer assisting the Commission in the performance of its functions; or
(b) an officer appointed under section 93(1a);
(a) a public sector body;
(b) an entity specified in the
Public Sector Management Act 1994 Schedule 1 column 2;
(a) in a newspaper circulating throughout the State; or
(b) on an internet website maintained by the Commission;
(a) upon or by which information is recorded or stored; or
(b) by means of which a meaning can be conveyed by any means in a visible or recoverable form,
whether or not the assistance of some electronic, electrical, mechanical, chemical or other machine or process is required to convey the information or meaning;
(a) section 49D(1), (6) or (8);
(b) section 49DA(1) or (3);
(c) section 49E(1);
(d) section 102(1)(a);
(e) the LSL Act section 7I(2), 26(1) or (2) or 26A(1);
(f) a local government long service leave provision that requires an employer to keep records about employees’ employment that are necessary to calculate the employees’ entitlements to, and payment for, long service leave;
(a) applies to an employee with a disability; and
(b) provides a means (a
wage assessment tool ) for the assessment of whether, and the extent to which, the employee’s productive capacity is reduced because of the disability; and(c) provides that the employer may pay a wage that —
(i) relates to the employee’s productive capacity as assessed using the wage assessment tool; and
(ii) may be less than the applicable minimum wage in the industrial instrument;
(1a) A matter relating to —
(a) the dismissal of an employee by an employer; or
(b) the refusal or failure of an employer to allow an employee a benefit under the employee’s contract of service,
is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended.
(2) A matter relating to the bullying of a worker at work or the sexual harassment of a person in connection with work is an industrial matter.
[(2A) deleted] (3) Any matter within the Commission’s jurisdiction conferred by the
Work Health and Safety Act 2020 Schedule 1 clause 27(1) is not an industrial matter.(4) Subsections (3) and (4) of section 34 do not apply to a determination that is made contrary to subsection (3) or to any proceeding based on that determination, and in the determination of any application for a prerogative writ or declaratory judgment regard must not be had to the existence of any right of appeal under this Act.
[(5) deleted] (6) Subject to subsection (7), for the purposes of the definitions of
employee andemployer in subsection (1), if a person (theprincipal ) engages a person, or a group of persons, under a contract to personally give a performance as, or as part of, musical, theatrical, dance or comic entertainment, the principal is to be regarded as employing the person, or each person in the group, to do work.(7) Subsection (6) has effect only to the extent necessary to enable a claim of the kind referred to in section 29(1)(d) to be referred to and dealt with by the Commission in respect of a person who would not be an employee but for the operation of subsection (6).
(8) Notes in this Act are provided to assist understanding and do not form part of the Act.
(1) This section applies for determining, for the purposes of this Act, the LSL Act or the MCE Act —
(a) whether an individual is an employee of a person; or
(b) whether a person is an employer of an individual.
(2) The matter is determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.
(3) For the purposes of subsection (2), consideration must be given to the totality of the relationship between the individual and the person, including —
(a) the terms of the contract governing the relationship; and
(b) other factors relevant to the totality of the relationship, including how the contract is performed in practice.
Note for this section:
This section was enacted as a response to the decisions of the High Court of Australia in
(1) This section applies for determining, for the purposes of this Act, the LSL Act or the MCE Act, whether an employee of an employer is a casual employee.
(2) The matter is determined by ascertaining the real substance, practical reality and true nature of the relationship between the employee and the employer.
(3) For the purposes of subsection (2), consideration must be given to the totality of the relationship between the employee and the employer, including —
(a) the terms of the contract governing the relationship; and
(b) other factors relevant to the totality of the relationship, including how the contract is performed in practice.
Note for this section:
This section was enacted as a response to the decision of the High Court of Australia in
(1) The Commission by the name The Western Australian Industrial Commission established under the repealed Act is continued in existence subject to this Act under the name The Western Australian Industrial Relations Commission.
(2) The Commission is to consist of —
[(a) deleted] (b) a Chief Commissioner; and
(c) a Senior Commissioner; and
(d) such number of other commissioners as may, from time to time, be necessary for the purposes of this Act,
who are respectively appointed to their offices by the Governor by commission under the Public Seal of the State.
(3A) At least 1 commissioner must, in addition to the other attributes required for appointment, have —
(a) knowledge of, or experience in, the field of work health and safety; and
(b) knowledge of the
Work Health and Safety Act 2020 ,
sufficient for exercising the jurisdiction that the commissioner designated under section 16(2A) is required to exercise.
(3) The order of seniority of commissioners is —
(a) Chief Commissioner;
(b) Senior Commissioner;
(c) other commissioners according to the dates of their appointments unless 2 or more of their appointments are made on the same day in which case their order of seniority is such as is assigned to them by the Governor when appointing them.
(2) A person must not be appointed Chief Commissioner unless —
(a) the person has had experience at a high level in industrial relations; or
(b) the person has, not less than 5 years previously, obtained a degree of a university or an educational qualification of similar standard after studies considered by the Governor to have substantial relevance to the duties of the Chief Commissioner.
A person who has reached 70 years of age is ineligible for appointment as a commissioner and each commissioner must retire from office upon reaching 70 years of age.
(1) Subject to subsection (2), before entering upon office each commissioner must make oath before a judge that the commissioner will faithfully and impartially perform the duties of office of commissioner and will not, except in the discharge of those duties, disclose to any person any evidence or other matter brought before the Commission.
(2) When a commissioner is appointed the Chief Commissioner or the Senior Commissioner the commissioner is not required to make again the oath referred to in subsection (1).
(1) The Commission is a court of record and must have an official seal.
(2) All courts, judges, and persons acting judicially must take judicial notice of the seal of the Commission affixed to a document and must presume that it has been duly so affixed.
Each of the following persons has the same protection and immunity as a judge has when performing functions of a judge —
(a) a commissioner when performing the functions of a commissioner;
(b) an industrial magistrate appointed under section 81B when performing the functions of an industrial magistrate.
[(c),(d) deleted]
[(1) deleted] (2) A commissioner sitting or acting alone constitutes the Commission and, except as otherwise provided in this Act, the commissioner has and may exercise while so sitting or acting, all the powers and jurisdiction of the Commission.
(3) Where more than one commissioner is sitting or acting at the same time in the exercise of the jurisdiction of the Commission, each such commissioner constitutes the Commission.
A commissioner may be appointed as a member of the FW Commission, and a person so appointed may, subject to section 22(2)(c), at the same time hold the office of commissioner and member of the FW Commission but not otherwise.
(1) As agreed from time to time by the Chief Commissioner and the President of the FW Commission, a person who holds the office of commissioner and an office of member of the FW Commission —
(a) may perform the duties of the secondary office; and
(b) may exercise, in relation to a particular matter —
(i) any powers that the person has as a commissioner; and
(ii) any powers that the person has as a member of the FW Commission.
(2) The Minister may give directions in writing to the Chief Commissioner with respect to agreements under subsection (1) and the Chief Commissioner must give effect to every such direction and must not enter into any agreement under subsection (1) that is contrary to those directions.
(3) Directions under subsection (2) must be limited to matters of administration and must not deal with matters of conciliation or arbitration.
(4) The Minister must cause a copy of any direction given under subsection (2) to be laid before each House of Parliament within 15 sitting days of that House after the date on which the direction was given.
(1) The Full Bench is to be constituted by 3 commissioners, at least 1 of whom must be the Chief Commissioner or the Senior Commissioner, sitting or acting together.
(1A) The presiding commissioner of the Full Bench is the most senior of the commissioners who constitute the Full Bench.
(2) The Commission in Court Session must be constituted by not less than 3 commissioners sitting or acting together.
(1) In subsections (1AA) to (1ac) —
(1AA) The Chief Commissioner is responsible for matters of an administrative nature relating to the Commission and commissioners, including the following —
(a) giving directions about the practices and procedures to be followed by the Commission;
(b) developing and implementing performance standards and setting benchmarks for the Commission;
(c) overseeing the proper use of the resources of the Commission;
(d) managing the business of the Commission, including by ensuring that the Commission operates efficiently and effectively and continually improves the way in which it carries out its functions;
(e) providing leadership and guidance to the Commission and engendering cohesiveness and collaboration amongst commissioners;
(f) being responsible for promoting the training, education and professional development of commissioners.
(1ab) Subject to this Act, the Chief Commissioner may allocate and reallocate the work of the Commission and may assign or appoint commissioners for the purposes of constituting the Commission, or altering the constitution of the Commission, in relation to a matter.
(1ac) When it is continuing to deal with and deciding a matter that has been reallocated, or in relation to which its constitution has been altered, the Commission can have regard to —
(a) any record of the proceedings of the Commission in relation to the matter before the reallocation or alteration; or
(b) any evidence taken in the proceedings before the reallocation or alteration.
(1AD) Except as provided in subsection (1AE), subsections (1AA) to (1ac) apply, with the necessary modifications, to commissioners appointed under section 81B(2A) as industrial magistrates.
(1AE) Directions under subsection (1AA)(a) cannot limit the judicial independence of commissioners appointed as industrial magistrates.
(1a) The Chief Commissioner may assign a commissioner to sit or act alone as the Commission or to sit or act as a member of the Full Bench or the Commission in Court Session.
(2A) The Chief Commissioner must, in writing, designate 1 commissioner, who satisfies the additional requirements referred to in section 8(3A), to exercise the jurisdiction conferred by the
Work Health and Safety Act 2020 Schedule 1 clause 27(1).(2AA) Without limiting subsection (2A), the Chief Commissioner may be designated under that subsection.
(2B) Without affecting the Chief Commissioner’s duty under subsection (2A) to ensure that, at any one time, one commissioner is designated, the Chief Commissioner —
(a) may at or after the time when a commissioner is designated under subsection (2A), in writing, specify a date when the designation ceases to have effect; and
(b) may, in writing, vary any date so specified.
(2C) The designation of a commissioner under subsection (2A) to exercise the jurisdiction conferred by the
Work Health and Safety Act 2020 Schedule 1 clause 27(1) does not preclude the commissioner from also performing other functions as a commissioner under this Act.[(2D),(2E) deleted] (2) The Chief Commissioner —
[(a) deleted] (b) must, before 1 October in each year, make a written report to the Minister relating to the operation of this Act up to the last preceding 30 June; and
[(c) deleted] (d) may require the commissioners to attend a conference of commissioners for the purposes of paragraph (b) or for any other purpose.
(3) Where the Chief Commissioner is unable to attend to duties under this Act, whether on account of illness or otherwise, or where there is a vacancy in the office of Chief Commissioner, the duties and powers of the Chief Commissioner devolve on the commissioner who is next in order of seniority and not absent or unable to perform those duties, unless the Governor appoints some other person to be acting Chief Commissioner.
(4) The Chief Commissioner may do all things necessary or convenient to be done in the performance of the Chief Commissioner’s functions.
(1) The Chief Commissioner may delegate to another commissioner any power or duty of the Chief Commissioner under another provision of this Act.
(2) The delegation must be in writing signed by the Chief Commissioner.
(3) A person to whom a power or duty is delegated in accordance with this section cannot delegate that power or duty.
(4) A person exercising or performing a power or duty that has been delegated to the person in accordance with this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of the Chief Commissioner to perform a function through an officer or agent.
(1) Where a commissioner is, or is expected to be, unable to attend to their duties under this Act, whether on account of illness or otherwise, the Governor may appoint a person to be acting Chief Commissioner, acting Senior Commissioner or an acting commissioner, as the case may require, for such period as the Governor determines.
(2) A person must not be appointed acting Chief Commissioner unless the person holds the relevant qualifications prescribed in section 9.
[(3) deleted] (4) If, under this section, a person receives an appointment to act in an office, the rights and obligations of the person in relation to the office are, subject to the terms of that appointment, as prescribed for the office.
(1) Notwithstanding the retirement of a commissioner or the expiry of the period for which an acting commissioner has been appointed under this Act, the Governor may extend the commissioner’s period of office for such further period as the Governor determines, in order to enable the commissioner to complete all matters, proceedings, or inquiries that the commissioner has entered upon and has not completed before the retirement or the expiry.
(2) The Governor may from time to time extend any further period determined by the Governor under subsection (1) notwithstanding the expiry of that further period for such further period or periods as the Governor thinks fit.
(3) The continuation in office of a retired commissioner under subsection (1) does not prevent the appointment of a person to fill the office from which the commissioner retired.
(4) The continuation in office of an acting commissioner under subsection (1) does not prevent the appointment of another person to act in the office in which the acting commissioner acted.
Each commissioner must keep acquainted with industrial affairs and conditions.
[(1) deleted] (2) The offices of commissioners are to be regarded, for the purposes of the
Salaries and Allowances Act 1975 and any other written law, as having been prescribed for the purposes of section 6(1)(e) of that Act.(3) If a commissioner has, under section 81B(2A), been appointed as an industrial magistrate, the commissioner’s remuneration must be the higher of that provided under —
(a) subsection (2); or
(b) the
Magistrates Court Act 2004 Schedule 1 clause 5(2).
(4) The Chief Commissioner may, in exceptional circumstances, approve the taking by a commissioner appointed as an industrial magistrate of paid sick leave in addition to any paid sick leave that the commissioner’s conditions of service may have entitled the commissioner to take.
(5) A commissioner appointed as an industrial magistrate may, subject to section 22(3), at the same time hold the office of commissioner and industrial magistrate but not otherwise.
[(6),(7) deleted] (8) A commissioner holding office is taken to be an employee within the meaning of and for the purposes of the
Superannuation and Family Benefits Act 1938 6, 7 .(8a) For the purposes of any calculation or determination under the
Superannuation and Family Benefits Act 1938 6 , the following are taken to be increased by 100% —(a) the period of any service by a person as a commissioner that occurs after the commencement day; and
(b) any period for which a person is taken to have continued in service under the State following retirement as a commissioner on or after the commencement day; and
(c) any period for which a person might have remained in service under the State but for —
(i) the person’s death after the commencement day while serving as a commissioner; or
(ii) the person’s retirement as a commissioner on or after the commencement day on the ground of invalidity or physical or mental incapacity to perform the person’s duties.
(8b) In subsection (8a)
commencement day means the day of the coming into operation of section 3 of theIndustrial Arbitration Amendment Act (No. 2) 1984 7 .(9) Where a commissioner was immediately before being appointed as a commissioner, an officer of the Public Service of the State, the commissioner retains any existing and accruing rights and for the purpose of determining those rights, the service as a commissioner must be taken into account as if it were service within the Public Service of the State.
(10) The rights of a commissioner to paid leave of absence and to lump sum payments on ceasing to hold office for the money equivalent of leave of absence cannot be less than those of a permanent officer under the
Public Sector Management Act 1994 .
A commissioner may resign office by writing addressed to the Governor and the resignation takes effect on the day on which it is received by the Governor or such later day as is specified in the writing.
(1) Subject to subsection (2)(c), commissioners hold their offices during good behaviour, subject to a power of removal by the Governor upon the address of both Houses of Parliament.
(2) The office of a commissioner becomes vacant if the commissioner —
(a) is removed from office under subsection (1); or
(b) retires under section 10 or resigns under section 21; or
(c) except with the approval of the Governor, accepts the office of member of the FW Commission.
(3) A commissioner appointed as an industrial magistrate must not work as a legal practitioner (whether for financial reward or not), or engage in other work for financial reward, outside the functions of a commissioner and industrial magistrate, unless permitted to do so by the Governor.
In the performance of its functions the Commission is to act with as much speed as the requirements of this Act and a proper consideration of the matter before it permit.
(1) Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.
(2) Where by or under any other Act power is conferred on a person or body to appoint officers or employees for the purposes of that Act or to fix or determine the salaries, wages, or other remuneration, or other conditions of employment, of officers or employees appointed for those purposes, or to do both of those things —
(a) the jurisdiction that the Commission would have but for that other Act to hear and determine any matter or dispute relating to the salaries, wages, or other remuneration, or other conditions of employment, of those officers or employees is not affected by that power conferred by or pursuant to that other Act; and
(b) where there is any inconsistency between a decision of the Commission relating to any such matter or dispute and any decision in the exercise or purported exercise of that power conferred by or under that other Act, to the extent of the inconsistency the former prevails and the latter is of no force or effect.
(2a) Despite subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the
Public Sector Management Act 1994 is, or may be, prescribed under that Act, other than a breach of public sector standards claim.(3) The Commission in the exercise of the jurisdiction conferred on it by this Part must not —
(a) prohibit the employment of employees on any day of the week or restrict in any other way the number of days or hours in the week during which any operation may be carried on in any industry or by any employer but nothing in this paragraph —
(i) prevents the registration with the Commission of any industrial agreement that contains or provides for any such prohibition or restriction; or
(ii) prevents the Commission from fixing the rates for overtime, work on holidays, shift work, weekend work, and other special work, including allowances as compensation for overtime or any such work;
(b) regulate the rates of salary or wages, or the conditions of employment of any person who holds an office for which the remuneration payable is determined or recommended pursuant to the
Salaries and Allowances Act 1975 ;(c) except as provided in section 49K(3), make an award or order empowering a representative of an organisation to enter any part of —
(i) the premises of an employer, the principal use of which premises is for habitation by the employer and the employer’s household; or
(ii) a private home in which a person engaged in domestic service is employed by an employer, who is not the owner or occupier of that private home, but who provides that owner or occupier with the services of the person so engaged;
(d) regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;
(e) provide for —
(i) compulsion to join an organisation to obtain or hold employment; or
(ii) non‑employment by reason of being or not being a member of an organisation;
(f) provide for preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation;
[(g) deleted] (h) on a claim of harsh, oppressive or unfair dismissal —
(i) in the case of an application under section 44, make any order except an order that is authorised by section 23A or 44; and
(ii) in any other case, make any order except an order that is authorised by section 23A.
(4) To avoid doubt, subsection (3)(h) applies if the Commission, in dealing with an industrial matter under the
Public Sector Management Act 1994 section 78 or theHealth Services Act 2016 section 171, determines that the dismissal of an employee or former employee was harsh, oppressive or unfair.
(1) The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.
(2) In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission must have regard to the following —
(a) whether, at the time of the dismissal, the employee —
(i) was employed for a probationary period agreed between the employer and employee; and
(ii) had been employed on that basis for a period of less than 3 months;
(b) whether, at the time of the dismissal, the employee was employed in a private home to provide services directly to the employer or a member of the employer’s family or household.
(3) The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
(4) If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers —
(a) the employer has available; and
(b) is suitable.
(5) The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —
(a) an order it considers necessary to maintain the continuity of the employee’s employment;
(b) an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.
(6) If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.
(7) In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —
(a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal; and
(b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and
(c) any other matter that the Commission considers relevant.
(8) The amount ordered to be paid under subsection (6) is not to exceed 6 months’ remuneration of the employee.
(9) For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.
(10) For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.
(11) An order under this section may require that it be complied with within a specified time.
(12) The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.
(1) In this section —
(a) the refusal or failure of an employer to employ a person (the
affected person );(b) an employer’s employment or transfer of an employee to work at a particular place or site, or refusal or failure to employ or transfer an employee to work at a particular place or site;
(c) the reinstatement or re‑employment of an employee who has been dismissed by an employer;
(2) The Commission may, if it considers it necessary to do so in the interests of equity, good conscience and the substantial merits of an employment claim, order a third party to refrain from preventing, hindering or interfering with, or doing anything that would have the effect of preventing, hindering or interfering with —
(a) the employment of the affected person; or
(b) the employment or transfer of the employee to work at a particular place or site; or
(c) the reinstatement or re‑employment of the employee.
(3) Subsection (2) is not to be taken as limiting the persons in respect of whom the Commission can make other orders under this Act.
(1) The Commission has jurisdiction to determine in any proceedings before it whether any matter to which those proceedings relate is an industrial matter and a finding by the Commission on that question is, subject to sections 49 and 90, final and conclusive with respect to those proceedings.
(2) A determination under subsection (1) is not a decision for the purposes of section 49 or 90 unless and until —
(a) those proceedings have been concluded; or
(b) leave to appeal is granted by the Commission making that determination.
If, in proceedings before the Commission, a party claims an individual who carries or carried out work for the party is or was not an employee of the party, it is for the party to prove the individual is or was not the party’s employee.
(1) For the purposes of section 16(1ab), in allocating the work of the Commission under this Division and Divisions 2A to 2G the Chief Commissioner may —
(a) allocate matters to a commissioner; and
(b) allocate matters directly to the Commission in Court Session; and
(c) notwithstanding that the Chief Commissioner has allocated a matter to a commissioner, revoke that allocation and allocate the matter to another commissioner or directly to the Commission in Court Session.
(2) Subsection (1) —
(a) has effect subject to any provision of this Division or Division 2A to 2G under which the Commission is to be constituted in a particular way; and
(b) does not affect the operation of Part IIC.
(1) In the exercise of its jurisdiction under this Act the Commission —
(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and
(b) must not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and
(c) must have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and
(d) must take into consideration to the extent that it is relevant —
(i) the state of the national economy;
(ii) the state of the economy of Western Australia;
(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;
(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;
(v) any changes in productivity that have occurred or are likely to occur;
(vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;
(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.
(2A) In making a public sector decision the Commission must take into consideration the following —
(a) any Public Sector Wages Policy Statement that is applicable in relation to negotiations with the public sector entity;
(b) the financial position and fiscal strategy of the State as set out in the following —
(i) the most recent Government Financial Strategy Statement released under the
Government Financial Responsibility Act 2000 section 11(1) and made publicly available under section 9 of that Act;(ii) the Government Financial Projections Statement;
(iii) any submissions made to the Commission on behalf of the public sector entity or the State government;
(c) the financial position of the public sector entity as set out in the following —
(i) the part of the most recent budget papers tabled in the Legislative Assembly that deals with the public sector entity under the title “Agency Information in Support of the Estimates” or, if the regulations prescribe another part of those budget papers, that other part;
(ii) any submissions made to the Commission on behalf of the public sector entity or the State government.
(2B) In subsection (2A) —
(a) the most recent Government Financial Projections Statement that is —
(i) released under the
Government Financial Responsibility Act 2000 section 12(1); and(ii) made publicly available in the budget papers tabled in the Legislative Assembly under the title “Economic and Fiscal Outlook” or, if the regulations prescribe another part of the budget papers, that other part;
(b) the most recent Government Mid-year Financial Projections Statement that is —
(i) released under the
Government Financial Responsibility Act 2000 section 13(1); and(ii) made publicly available under section 9 of that Act;
(a) an order made under section 42G that will be included in an agreement that will extend to and bind a public sector entity or its employing authority (as defined in the
Public Sector Management Act 1994 section 5);(b) an enterprise order that will extend to and bind a public sector entity or its employing authority (as defined in the
Public Sector Management Act 1994 section 5);(c) if the matters set out in subsection (2A)(a), (b) and (c) are relevant to the decision, any other decision (except an equal remuneration order) that will extend to and bind a public sector entity or its employing authority (as defined in the
Public Sector Management Act 1994 section 5);
(a) a public sector body;
(b) an entity that is —
(i) mentioned in the
Public Sector Management Act 1994 Schedule 1; and(ii) prescribed by regulations made by the Governor;
(a) the Public Sector Wages Policy Statement 2014 issued by the State government that applies to industrial agreements expiring after 1 November 2013; or
(b) if any Public Sector Wages Policy Statement is issued in substitution for that statement, the later statement.
(2C) The matters the Commission is required to take into consideration under subsection (2A) are in addition to any matter it is required to take into consideration under subsection (1)(d).
(2D) Subsection (2A) —
(a) does not apply in relation to —
(i) an order made under section 42G in respect of an agreement proposed to be made in substitution for an industrial agreement that specifies a nominal expiry date that is earlier than 1 November 2013; or
(ii) an enterprise order made in substitution for an enterprise order that provides for an expiry day that is earlier than 1 November 2013;
but
(b) except as provided in paragraph (a), applies in relation to any public sector decision in respect of a matter arising before, on or after the commencement of the
Workforce Reform Act 2014 section 4.
(2E) Subsections (1)(d) and (2A) do not apply when the Commission is exercising its jurisdiction under section 50A.
(2) In granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.
(3) Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission must, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.
(4) Subsections (1) to (3) inclusive do not, in any particular case, prevent the use by the Commission, with the consent of the parties concerned, of final offer arbitration.
(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —
(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —
(i) that the matter or part is trivial; or
(ii) that further proceedings are not necessary or desirable in the public interest; or
(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or
(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;
and
(b) take evidence on oath or affirmation; and
(c) order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs are allowed for the services of any legal practitioner, or agent; and
(d) proceed to hear and determine the matter or any part of the matter in the absence of any party who has been duly summoned to appear or duly served with notice of the proceedings; and
(e) sit at any time and place; and
(f) adjourn to any time and place; and
[(g) deleted] (h) direct any person, whether a witness or intending witness or not, to leave the place in which the proceedings are being conducted; and
(ha) determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require that the cases be presented within the respective periods; and
(hb) require evidence or argument to be presented in writing, and decide the matters on which it will hear oral evidence or argument; and
(i) refer any matter to an expert and accept the expert’s report as evidence; and
(j) direct parties to be struck out or persons to be joined; and
(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; and
(l) allow the amendment of any proceedings on such terms as it thinks fit; and
(m) correct, amend, or waive any error, defect, or irregularity whether in substance or in form; and
(n) extend any prescribed time or any time fixed by an order of the Commission; and
(o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing; and
(p) enter upon any manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place, or premises of any kind in, or in respect of which any industry is or is reputed to be carried on, or any work is being or has been done or commenced, or anything is taking or has taken place, which is the subject of, or related to, a matter before the Commission; and
(q) inspect and view any work, material machinery, appliance, article, book, record, document, matter, or other thing being in any manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place or premises of a kind referred to in paragraph (p); and
(r) question any person who may be in or upon any such manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place or premises in respect or in relation to any such matter or thing; and
(s) consolidate or divide proceedings relating to the same industry and all or any matters before the Commission; and
(t) with the consent of the Chief Commissioner refer the matter or any part of the matter, including any question of interpretation of the rules of an organisation arising in the matter, to the Commission in Court Session for hearing and determination by the Commission in Court Session; and
(u) with the consent of the Chief Commissioner refer to the Full Bench for hearing and determination by the Full Bench any question of law arising in the matter, other than a question of interpretation of the rules of an organisation; and
(v) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.
(1a) Except as otherwise provided in this Act, the Commission must, in relation to any matter before it, conduct its proceedings in public unless the Commission, at any stage of the proceedings, is of the opinion that the objects of the Act will be better served by conducting the proceedings in private.
(2) The powers contained in subsection (1)(p), (q) and (r) may, if the Commission so directs in any case, be exercised by an officer of the Commission or by an expert to whom any matter has been referred by the Commission.
The powers conferred on the Commission by section 27 may be exercised in relation to a matter at any time after the matter has been lodged in the Commission notwithstanding that the procedures prescribed under this Act have not at that time been complied with to the extent necessary to enable the matter to be heard and determined by the Commission.
(1) An industrial matter may be referred to the Commission —
(a) in any case, by —
(i) an employer with a sufficient interest in the industrial matter; or
(ii) an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or
(iii) the Minister;
and
(b) except as provided in section 51Q(2), in the case of an equal remuneration order — by an application made by any of the following —
(i) an employee to be covered by the order;
(ii) an organisation in which employees to be covered by the order are eligible to be enrolled as members;
(iii) an organisation in which employers of employees to be covered by the order are eligible to be enrolled as members;
(iv) UnionsWA;
(v) the Chamber;
(vi) the Minister;
(vii) the Commissioner for Equal Opportunity;
and
(c) in the case of a claim by an employee that the employee has been harshly, oppressively or unfairly dismissed from the employee’s employment — by the employee; and
(d) in the case of a claim by an employee that the employer has not allowed the employee a benefit, other than a benefit under an award or order, to which the employee is entitled under the contract of employment — by the employee; and
(e) in the case of a matter relating to the bullying of a worker at work — by the worker; and
(f) in the case of a matter relating to the sexual harassment of a person in connection with work — by the person; and
(g) in the case of a decision mentioned in section 36AA(2)(b) — by a public service officer; and
(h) in the case of a claim relating to the reclassification of an office held by a government officer — by the government officer; and
(i) in the case of an industrial matter under the
Public Sector Management Act 1994 section 78 that is a decision or finding made in relation to an employee or former employee to which Part 5 of that Act applies — by the employee or former employee; and(j) in the case of an industrial matter under the
Health Services Act 2016 section 171 that is a decision or finding made in relation to an employee or former employee to which Part 11 of that Act applies — by the employee or former employee; and(k) in the case of an industrial matter relating to a flexible working arrangement dispute between an employer and an employee — by the employee; and
(l) in the case of a breach of public sector standards claim — by the person who made the claim to a public sector body.
(1a) A party to an employer‑employee agreement has the right to refer to the Commission constituted by a commissioner —
(a) any question, dispute or difficulty that the Commission has jurisdiction to determine under section 97WI; or
(b) an allegation referred to in section 97WK(2).
(2) Subject to subsection (3) —
(a) a referral under subsection (1)(c) must be made no later than 28 days after the day on which the employee’s employment is terminated; and
(b) a referral relating to a decision mentioned in section 36AA(2)(b) must be made no later than 28 days after the day on which the decision is made; and
(c) a referral relating to a decision or finding that is an industrial matter under the
Public Sector Management Act 1994 section 78 or theHealth Services Act 2016 section 171 must be made no later than 28 days after the day on which the decision or finding is made; and(d) a referral of a breach of public sector standards claim must be made no later than 28 days after the end of the agency resolution period mentioned in section 36AJ(c) for the claim.
(3) The Commission may accept a referral that is out of time under subsection (2) if the Commission considers that it would be unfair not to do so.
(1) Subject to subsection (2), the Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if the dismissed employee has lodged an application with the FW Commission for relief in respect of the termination of that employment.
(2) Despite subsection (1) the Commission may determine the claim if the application to the FW Commission is —
(a) withdrawn; or
(b) rejected or dismissed on the ground that it is not within the jurisdiction of the FW Commission to determine the application.
(3) The Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if —
(a) an industrial instrument does not apply to the employment of the employee; and
(b) the employee’s contract of employment provides for a salary exceeding the prescribed amount.
(4) The Commission must not determine a claim that an employee has not been allowed by an employer a benefit to which the employee is entitled under a contract of employment if —
(a) an industrial instrument does not apply to the employment of the employee; and
(b) the employee’s contract of employment provides for a salary exceeding the prescribed amount.
(5) In this section —
(a) an award; or
(b) an order of the Commission under this Act that is not an order prescribed by regulations made by the Governor for the purposes of this section; or
(c) an industrial agreement; or
(d) an employer‑employee agreement;
(a) $90 000 per annum; or
(b) the salary specified, or worked out in a manner specified, in regulations made by the Governor for the purposes of this section.
(1) Where an industrial matter has been referred to the Commission pursuant to section 29, the claimant or applicant must specify the nature of the relief sought.
(1a) In this section —
(1b) Subject to subsection (2A), the following must be published in the required manner —
(a) area and scope provisions of a proposed award or industrial agreement; and
(b) proposed variations to the area and scope provisions of an existing award or industrial agreement.
(2) Subject to any direction given under subsection (2A), if the reference of an industrial matter to the Commission seeks the issuance of an award or the registration of an industrial agreement, or the variation of the area and scope provisions of an existing award or agreement, the Commission must not hear the claim or application until the area and scope provisions of the proposed award or industrial agreement have, or the proposed variation has, been published in the required manner and a copy of the claim or application has been served —
(a) in the case of a proposed award or variation of an award, on —
(i) UnionsWA, the Chamber and the Minister; and
(ii) such organisations, associations and employers as the Commission may direct being, in the case of employers, such employers as constitute, in the opinion of the Commission, a sufficient number of employers who are reasonably representative of the employers who would be bound by the proposed award or the award as proposed to be varied, as the case may be;
(b) in the case of the proposed registration or variation of an industrial agreement, on UnionsWA, the Chamber and the Minister.
(2A) The Chief Commissioner may, if of the opinion that it is appropriate to do so in the circumstances, direct that the area and scope provisions of the proposed award or industrial agreement —
(a) need not be published in the
Industrial Gazette ; or(b) need not be published at all.
(2b) Nothing in subsection (2A) affects or dispenses with any requirement of subsection (2) that a copy of a claim or application be served on any person, body or authority referred to in subsection (2)(a) or (b).
(2c) The area and scope provisions of an award may be amended under section 40A without the proposed variation having been published in the required manner.
(3) Unless otherwise directed by the Commission, where the reference of an industrial matter to the Commission seeks the variation of an award or industrial agreement, other than a variation of the kind mentioned in subsection (2), the Commission must not hear the claim or application until the named parties to the award or the parties to the industrial agreement, as the case requires, have been served with a copy of the claim.
(4) Where the reference of an industrial matter to the Commission seeks the issuance or variation of an order or declaration, other than of a kind referred to in subsection (2) or (3) the Commission must not hear the claim or application until the persons sought to be bound by the decision in the proceedings have been served with a copy of the claim or application.
Subject to section 27(1)(j) the parties to proceedings before the Commission are —
(a) the claimant or applicant by whom or which the proceedings were initiated; and
(b) the other persons, bodies, organisations or associations upon whom or which a copy of the claim or application is served.
(1) This section applies if —
(a) the Commission is dealing with an industrial matter relating to a government officer or group of government officers; and
(b) a question arises between 2 or more organisations as to which of them, or whether 1 of them, should —
(i) be named as a party to an award or order; or
(ii) become a party to an industrial agreement.
(2) In deciding the question, the Commission must have regard to which organisations were a party to —
(a) the awards, orders and industrial agreements that have previously covered the government officer or group of government officers; and
(b) relevant unregistered industrial agreements.
(1) The Minister may, by giving the Registrar notice in writing of the Minister’s intention to do so, and by leave of the Commission, intervene on behalf of the State in any proceedings before the Commission in which the State has an interest.
[(2) deleted]
(1) Any party to proceedings before the Commission, and any other person or body permitted by or under this Act to intervene or be heard in proceedings before the Commission, may appear —
(a) in person; or
(b) by an agent; or
(c) where —
(i) that party, person or body, or any of the other parties, persons or bodies permitted to intervene or be heard, is UnionsWA, the Chamber, the Minister or the Minister of the Commonwealth administering the Department of the Commonwealth that has the administration of the FW Act; or
(ii) the proceedings are in respect of a claim referred to the Commission under section 29(1)(c), (d), (e), (f), (g), (i), (j) or (l) or involve the hearing and determination of an application under section 44(7)(a)(iii); or
(iii) all parties to the proceedings expressly consent to legal practitioners appearing and being heard in the proceedings; or
(iv) the Commission, under subsection (4), allows legal practitioners to appear and be heard in the proceedings,
by a legal practitioner.
(2) An organisation or association is taken to have appeared in person if it is represented by its secretary or by any officer of the organisation or association.
(3) A person or body appearing by a legal practitioner or agent is bound by the acts of that legal practitioner or agent.
(4) Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard.
(5) The Commission may make regulations prescribing the manner in which authorisation of any agent is to be given, either generally or for a particular case.
(1) Where an industrial matter has been referred to the Commission the Commission must, unless it is satisfied that the resolution of the matter would not be assisted by so doing, endeavour to resolve the matter by conciliation.
(2) In endeavouring to resolve an industrial matter by conciliation the Commission must do all such things as appear to it to be right and proper to assist the parties to reach an agreement on terms for the resolution of the matter.
(3) Without limiting the generality of subsection (2) the Commission may, for the purposes of that subsection —
(a) arrange conferences of the parties or their representatives presided over by the Commission;
(b) arrange for the parties or their representatives to confer among themselves at a conference at which the Commission is not present.
(4) The Commission must —
(a) if it gives or makes a direction, order or declaration orally under subsection (8), reduce the direction, order or declaration to writing as soon as is practicable; and
(b) preface each direction, order or declaration given or made by it under subsection (8) —
(i) if so given or made in writing, at the time of that giving or making; or
(ii) if so given or made orally, at the time of the reduction of that direction, order or declaration to writing,
with a preamble in writing setting out the circumstances which led to the giving or making of that direction, order or declaration; and
(c) make the text of each direction, order or declaration given or made by it under subsection (8), and of any preamble to it, available to the parties as soon as is practicable after that giving or making.
[(5) deleted] (6) Where the Commission does not endeavour to resolve a matter by conciliation or, having endeavoured to do so —
(a) is satisfied that further resort to conciliation would be unavailing; or
(b) is requested by all the parties to the proceedings to decide the matter by arbitration,
the Commission may decide the matter by arbitration.
(7) Where a matter is decided by arbitration the Commission must endeavour to ensure that the matter is resolved on terms that could reasonably have been agreed between the parties in the first instance or by conciliation.
(8) For the purposes of this section the Commission may —
(a) give such directions and make such orders as will in the opinion of the Commission —
(i) prevent the deterioration of industrial relations in respect of the matter until conciliation or arbitration has resolved the matter; or
(ii) enable conciliation or arbitration to resolve the matter; or
(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter;
(b) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act.
(1) The functions of the Commission under this Act as to the resolution of matters by conciliation (
conciliation functions ) and the determination of matters by arbitration (arbitration functions ) —(a) are to and may be performed at any time and from time to time as and when their performance is necessary or expedient; and
(b) are not limited by any other provision of this Act.
(2) Without limiting subsection (1), nothing in this Act prevents the performance of conciliation functions merely because arbitration functions are being or have been performed.
(1) With respect to evidence in proceedings before the Commission —
(a) the Registrar must, on the application of any party, or by direction of the Commission, issue a summons in the approved form to any person to appear and give evidence before the Commission and the summons may require that person to produce before the Commission any books, papers, or other documents in the person’s possession, or under the person’s control, in any way relating to the proceedings; and
(b) a person who attends the Commission in accordance with such summons is entitled to receive from the party at whose instance the person was summoned an allowance for expenses as determined by the Commission; and
(c) subject to subsection (2), a person duly served with such summons, must not without good cause, proof of which is on the person, fail to attend or to duly produce any book, paper, or document as required or refuse to be sworn as a witness or to answer any question which the person is required by the Commission to answer; and
(d) the Commission may, if the Commission considers it just or convenient so to do, make any order for the examination upon oath or otherwise before the Commission or any officer of the Commission, or any other person, and at any place of any witness or person, and may empower any party to give the deposition of such witness or person in evidence on such terms, if any, as the Commission may direct; and
(e) the Commission must take evidence on oath or affirmation.
(2) Where a summons is issued to, and duly served on, a person to appear and give evidence before the Commission, the person may make application to the Commission for cause to be shown for the person to so appear and, if on the hearing of the application such cause is not shown, the person is not required to so appear.
(3) Evidence relating to any trade secret, or to the profits or financial position of any witness or party, must not be disclosed except to the Commission, or published without the consent of the person entitled to the trade secret or non‑disclosure.
(4) The evidence referred to in subsection (3) must, if the witness or party so requests, be taken in private.
(5) All books, papers, and other documents produced in evidence before the Commission may be inspected by the Commission and also by such of the parties as the Commission allows, but the information obtained from the documents must not be made public without the permission of the Commission, and such parts of the documents as in the opinion of the Commission do not relate to the matter at issue may be sealed up, but such books, papers, and documents relating to any trade secret or to the profits or financial position of any witness or party must not, without the consent of that witness or party, be inspected by any party.
(6) Subsection (1)(a), (b), and (c) do not apply to or in relation to a summons issued pursuant to section 44.
(1) A person must not insult, obstruct or hinder a commissioner in the performance of the commissioner’s functions as a commissioner.
Penalty for this subsection: a fine of $10 000.
(2) A person must not insult, obstruct or hinder a person attending a hearing before the Commission.
Penalty for this subsection: a fine of $10 000.
(3) A person must not misbehave at, or interrupt, a hearing before the Commission.
Penalty for this subsection: a fine of $10 000.
(4) A person must not obstruct or hinder a person from complying with an order of the Commission or a summons to attend the Commission.
Penalty for this subsection: a fine of $10 000.
(5) A person must not use words, in writing or spoken, with the intention of —
(a) improperly influencing a commissioner in the performance of the commissioner’s functions as a commissioner; or
(b) improperly influencing a person attending a hearing before the Commission; or
(c) damaging public confidence in the Commission or a commissioner.
Penalty for this subsection: a fine of $10 000.
(1) The decision of the Commission must be made in the form of an award, order or declaration and must be signed and dated at the time it is made —
(a) in the case of a decision made by the Commission constituted by a single commissioner — by the commissioner; or
(b) in the case of a decision of the Commission in Court Session — by the most senior commissioner of the commissioners who constitute the Commission in Court Session; or
(c) in the case of a decision by the Full Bench or its presiding commissioner — by the presiding commissioner of the Full Bench.
(1A) A decision of the Commission must be sealed with the seal of the Commission.
(2) When the commissioners who constitute the Commission in Court Session are divided in opinion on a question, the question must be decided according to the decision of the majority of the commissioners.
(3) Proceedings before the Commission cannot be impeached or held bad for want of form nor can they be removable to any court by
certiorari or otherwise —(a) on any ground relating to jurisdiction; or
(b) on any other ground.
(4) Except as provided by this Act, no award, order, declaration, finding, or proceeding of the Commission is liable to be challenged, appealed against, reviewed, quashed, or called in question by or in any court —
(a) on any ground relating to jurisdiction; or
(b) on any other ground.
(1A) In this section —
(1) Subject to subsection (4), a final decision must, before it is made, be drawn up in the form of minutes which must be handed down to the parties concerned and, unless in any particular case the Commission otherwise determines, its reasons for decision must be published at the same time.
(1AB) Subsection (1) does not apply to an order made for the purposes of section 27(1)(a) or an order or declaration made under section 32(8).
(2) At the discretion of the commissioner giving the decision the minutes and reasons for decision may be handed down by the Registrar.
(3) The parties concerned are, at a time fixed by the Commission, entitled to speak to matters contained in the minutes of the decision and the Commission may, after hearing the parties, vary the terms of those minutes before the final decision is made in the terms of the minutes.
(4) The Commission, with the consent of the parties, may waive the requirements of this section in any case in which it is of the opinion that the procedures prescribed in this section are inappropriate or unnecessary.
(1) The Commission must, as soon as practicable after making a decision —
(a) give a copy of the decision to each party to the proceeding; and
(b) deposit a copy of the decision in the office of the Registrar.
(2) A copy of each decision of the Commission lodged in the office of the Registrar must be open to inspection without charge during office hours by any person interested.
(1) In this section —
(2) The industrial matters the Commission has jurisdiction to enquire into and deal with under section 23 include the following —
(a) an industrial matter relating to a government officer, a group of government officers or government officers generally;
(b) a decision of an employing authority of a public service officer relating to the interpretation of a conditions of service provision;
(c) a decision or finding that is an industrial matter under the
Public Sector Management Act 1994 section 78 or theHealth Services Act 2016 section 171;(d) a breach of public sector standards claim.
(3) Without limiting subsection (2)(a), the industrial matters relating to government officers mentioned in that subsection include —
(a) a claim relating to the reclassification of an office held by a government officer; and
(b) a claim relating to a decision of an employer to downgrade an office usually held by a government officer that is vacant.
(1) Each of the following is a
government officer —(a) a public service officer;
(b) a member of the Governor’s Establishment as defined in the
Governor’s Establishment Act 1992 section 3;(c) a person employed as a member of a department of the staff of Parliament under the
Parliamentary and Electorate Staff (Employment) Act 1992 ;(d) an electorate officer as defined in the
Parliamentary and Electorate Staff (Employment) Act 1992 section 3(1);(e) another person employed on the salaried staff of a public authority.
(2) Each of the following is not a
government officer —(a) a teacher;
(b) a member of the academic staff of a post‑secondary education institution;
(c) a person who holds an office for which the remuneration payable is —
(i) determined or recommended under the
Salaries and Allowances Act 1975 ; or(ii) determined by an Act to be at a fixed rate; or
(iii) determined by the Governor under an Act.
(3) In subsection (2)(a) —
(a) includes a person employed —
(i) as a member of the teaching staff referred to in the
School Education Act 1999 section 235(1)(b); or(ii) at a community kindergarten registered under the
School Education Act 1999 Part 5 as a member of the teaching staff or another person engaged under section 236(2) of that Act;
but
(b) does not include a public service officer, whether or not the officer holds or acts in a position that requires a teaching academic qualification.
Note for this definition:
For the purposes of paragraph (b), a public service officer mentioned in that paragraph is a government officer under subsection (1)(a).
(1) This section applies if an industrial matter relating to a government officer, a group of government officers or government officers generally is referred to the Commission.
(2) In exercising its jurisdiction in relation to the matter, the Commission may also, to the extent necessary to deal with the matter —
(a) review anything done by an employer in exercising a power in relation to a government officer or an office administered by the employer; and
(b) by order, confirm, vary or set aside the thing done by the employer.
(3) The additional jurisdiction conferred on the Commission under subsection (2) does not apply to the exercise of a power that is —
(a) a decision, finding or claim that may be the subject of a referral to the Commission under section 36AA(2)(b), (c) or (d); or
(b) the dismissal of a government officer from the officer’s employment.
(1) In this section —
(a) a determination of the salary, range of salary or title allocated to the office; or
(b) a determination, within the range of salary allocated to the office, of the salary of the officer who holds the office.
(2) This section applies if the Commission decides a claim relating to the reclassification of an office in favour of the government officer who holds the office.
(3) The Commission may order that the decision takes effect —
(a) on the day on which it is made; or
(b) on an earlier day, but not earlier than the day on which the government officer applied to the officer’s employer for the reclassification the subject of the claim.
(4) For the purposes of subsection (3)(b), a government officer is taken to have applied for reclassification of an office when the officer provides the officer’s employer with sufficient information for the employer to make a decision about the reclassification applied for.
Despite section 49, no appeal lies from a decision of the Commission on —
(a) a claim relating to the reclassification of an office held by a government officer; or
(b) a claim relating to a decision of an employer to downgrade an office usually held by a government officer that is vacant.
This Subdivision applies if the Commission is exercising its jurisdiction in relation to —
(a) a decision or finding made in relation to an employee or former employee to which the
Public Sector Management Act 1994 Part 5 applies that is an industrial matter under section 78 of that Act; or(b) a decision or finding made in relation to an employee or former employee to which the
Health Services Act 2016 Part 11 applies that is an industrial matter under section 171 of that Act.
(1) If it appears to the Commission that the employing authority of the employee or former employee failed to comply with a relevant policy instrument or the rules of procedural fairness in making the decision or finding, the Commission —
(a) is not required to decide the industrial matter solely on that basis and may decide the matter on its merits; and
(b) may, by order, do all of the following —
(i) quash the decision or finding;
(ii) remit the matter back to the employing authority;
(iii) direct the employing authority to, if the employing authority continues the process that resulted in the decision or finding, recommence the process at a specified stage.
(2) In subsection (1) —
(a) in relation to a decision or finding mentioned in the
Health Services Act 2016 section 171 — the policy framework issued under section 26 of that Act relevant to the decision or finding; or(b) in relation to a decision or finding mentioned in the
Public Sector Management Act 1994 section 78 — the Commissioner’s instructions issued under section 22A of that Act relevant to the decision or finding.
(1) This section applies if the decision or finding relates to a lawful redeployment direction as defined in the
Health Services Act 2016 section 171(2) or thePublic Sector Management Act 1994 section 75A.(2) Despite section 36AG, the Commission may only decide whether or not the lawful redeployment direction was complied with or was capable of being complied with.
In this Subdivision —
(a) the transfer of employees;
(b) the performance management of employees;
(c) the redeployment of employees;
(d) the termination of employment of employees;
(e) if grievance resolution is a human resource management activity — grievance resolution;
(f) another human resource management activity relating to employees that is prescribed as a specified public sector standard by regulations made by the Governor;
(a) making a decision; and
(b) failing to take, or delaying taking, action.
A
(a) made by a person to a public sector body on the ground that the public sector body breached a specified public sector standard in taking action to which the standard applies; and
(b) made in accordance with procedures prescribed under the
Public Sector Management Act 1994 section 98(a); and(c) that is not resolved by agreement or withdrawn within the period of 21 days starting on the day after the day on which the claim was made (the
agency resolution period ).
(1) This section applies if —
(a) a breach of public sector standards claim relating to a decision of a public sector body to transfer an employee is referred to, or the subject of an application made to, the Commission; and
(b) in accordance with procedures prescribed under the
Public Sector Management Act 1994 section 98(a), the decision to transfer the employee has not been given effect.
(2) The operation of the decision is stayed pending the Commission’s decision on the claim, unless the claim is withdrawn.
(3) Despite subsection (2), the Commission may, on the application of the public sector body, make an interim order allowing the transfer to be given effect pending the Commission’s decision on the claim.
(4) The Commission may dismiss the claim if the Commission is satisfied the claim is solely about the competitive merit of the employee.
(1) The Commission may make an order under this section if the Commission decides that a public sector body breached a specified public sector standard in taking action to which the standard applied.
(2) The Commission may —
(a) by order —
(i) quash the action; or
(ii) remit the process for taking the action back to the public sector body to be recommenced from the start or from a specific stage; or
(iii) direct the public sector body to take specified steps in the recommenced process;
or
(b) order the public sector body to take specified action.
(3) However, the Commission cannot make an order requiring the payment of an amount to a person as compensation for loss or injury caused by the breach.
(1) In any proceedings in which the Commission is considering the making of an award (the
new award ) that extends toemployees to whom no award currently extends (theemployees ), the onus is on any party opposing the making of the new award to show that it would not be in the public interest.(2) The Commission may make an interim award that extends to the employees pending the making of the new award.
(3) An interim award may be made if the Commission considers —
(a) that it would provide a fair basis for the application of the no‑disadvantage test provided for by Part VID Division 6 Subdivision 1; or
(b) that it would protect the existing wages and conditions of employment of the employees until the new award is made; or
(c) that it would be appropriate for any other reason.
(1) An award has effect according to its terms.
(2) Except as provided in its terms, an award operates throughout the State, other than in the areas to which section 3(1) applies.
[(3) deleted] (4) Subject to any variation made under this Act, an award, and any provision of an award, whether or not it has been made for a specified term, remains in force until cancelled, suspended, or replaced under this Act unless, in the case of an award or a provision made for a specified term, it is expressly provided that the award or the provision, as the case may be, ceases to operate upon the expiration of that term.
(5) Subsection (4) does not prevent the cancellation, suspension, or replacement of an award in part.
Except as provided in its terms, a public sector award or enterprise award extends to and binds —
(a) employees employed in a calling specified in the award in the industry or industries to which the award applies; and
(b) employers employing those employees.
(1) Except as provided in its terms, a private sector award extends to and binds —
(a) employers —
(i) of a class or classes specified in the award; or
(ii) specified by name in the award;
and
(b) employees —
(i) of employers referred to in paragraph (a); and
(ii) of a class or classes specified in the award.
(2) For the purposes of subsection (1)(a)(i) and (b)(ii), the class may be described by reference to —
(a) a particular industry or part of an industry; or
(b) a particular kind of work.
(3) A private sector award may be made or varied to —
(a) prevent any overlap with another award; and
(b) extend to and bind a labour hire agency, and any employees of a labour hire agency, conducting business —
(i) in an industry to which the award relates; and
(ii) in relation to employees to whom a classification in the award applies.
(1) A private sector award must not be made or varied to extend to and bind a class of employees —
(a) who, because of the seniority of their role, have traditionally not been covered by awards (whether made under laws of the State, the Commonwealth, another State or a Territory); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Example for this subsection:
In some industries, managerial employees have traditionally not been covered by awards.
(2) The scope of a private sector award must not be fixed by reference to an industry or part of an industry carried on by an employer if the Commission makes or varies the private sector award to extend to and bind an employer specified by name in the award.
(3) A private sector award must not be made or varied to extend to and bind an employee and employer if a public sector award or enterprise award extends to and binds the employee and employer.
(1) Except as provided in this section, the Commission may vary the scope of a private sector award of its own motion.
(2) A variation must not be made in relation to —
(a) an application under section 50(2) that does not seek the variation of the scope of the private sector award; or
(b) a State Wage order under section 50A.
(3) A variation must specify that the scope of the private sector award extends to and binds —
(a) employers of a class or classes specified in the award, whether or not the employers are also specified by name in the award; and
(b) employees —
(i) of employers referred to in paragraph (a); and
(ii) of a class or classes specified in the award.
(4) For the purposes of subsection (3)(a) and (b)(ii), the class may be described by reference to —
(a) a particular industry or part of an industry; or
(b) a particular kind of work.
(5) A variation that stops the private sector award from extending to and binding particular employers or employees must not be made unless the Commission is satisfied that another appropriate award will extend to and bind them.
(6) The Commission must not make a variation under this section until it has —
(a) published the proposed variation in the required manner; and
(b) given notice of the proposed variation to —
(i) UnionsWA, the Chamber and the Minister; and
(ii) any organisations, associations and employers as the Commission may direct (being, in the case of employers, employers constituting, in the opinion of the Commission, a sufficient number of employers reasonably representative of the employers who would be bound by the proposed variation);
and
(c) afforded the persons or bodies referred to in paragraph (b) an opportunity to be heard in relation to the proposed variation.
(7) If the Commission varies the scope of a private sector award under this section, the Commission may also make other changes to the award that are consequential on the variation of the scope.
(8) The Commission may act under subsection (7) of its own motion or on an application made in relevant proceedings by any of the following persons or bodies —
(a) an organisation or association named as a party to the private sector award;
(b) an employer bound by the private sector award or who would be bound by the award if the proposed variation to the scope were made;
(c) another person or body given notice of the proposed variation under subsection (6)(b).
(9) In subsection (8) —
(1) The parties to proceedings before the Commission in which an award is made, other than UnionsWA, the Chamber and the Minister, must be listed in the award as the named parties to the award.
(1a) If after the commencement of section 12 of the
Industrial Relations Amendment Act 1993 —(a) any party to proceedings in which an award is made, other than UnionsWA, the Chamber and the Minister, is not listed in the award as a named party as required by subsection (1); and
(b) the Commission has not ordered that the party is not to be a party to the award,
the party is to be taken to be a named party to the award.
(1b) In subsections (1) and (1a)
party does not include an intervener.(2) At any time after an award has been made the Commission may, by order made on the application of —
(a) any employer who, in the opinion of the Commission, has a sufficient interest in the matter; or
(b) any organisation which is registered in respect of any calling mentioned in the award or in respect of any industry to which the award applies; or
(c) any association on which any such organisation is represented,
add as a named party to the award any employer, organisation or association.
(3) Where an employer who is added as a named party to a public sector award or enterprise award under subsection (2) is, at the time of that addition, engaged in an industry to which the award did not previously apply and the scope of the award is varied by virtue of that addition, the variation is expressly limited to that industry for the purposes of section 37A.
(4) An employer is not to be added as a named party to a public sector award or enterprise award under subsection (2) if that addition would have the effect of extending the award to employees to whom another award already extends.
(1) An award comes into operation —
(a) on the day on which it is made; or
(b) on such day or days as the Commission fixes and specifies in the award.
[(2) deleted] (3) The Commission may, by its award, give retrospective effect to the whole or any part of the award —
(a) if and to the extent that the parties to the award so agree; or
(b) if, in the opinion of the Commission, there are special circumstances which make it fair and right so to do,
but in a case to which paragraph (b) applies, not beyond the date upon which the application leading to the making of the award was lodged in the Commission.
(4) For the purpose of subsection (3), an award or a provision of it has retrospective effect if and only if it has effect from a date earlier than the day on which the award is made.
(1) Subject to subsections (2), (3) and (4) and to sections 29A, 37C, 37D(5) and 38, the Commission may by order at any time vary an award.
(2) An application to the Commission to vary an award may be made by any organisation or association named as a party to the award or employer bound by the award.
(2A) A variation to the scope of a private sector award must specify that it extends to and binds —
(a) employers of a class or classes specified in the award, whether or not the employers are also specified by name in the award; and
(b) employees —
(i) of employers referred to in paragraph (a); and
(ii) of a class or classes specified in the award.
(2B) For the purposes of subsection (2A)(a) and (b)(ii), the class may be described by reference to —
(a) a particular industry or part of an industry; or
(b) a particular kind of work.
(3) Where an award or any provision of it is limited as to its duration the Commission —
(a) may, subject to such conditions as it considers fit, reserve to any party to the award liberty to apply to vary the award or that provision, as the case may be; and
(b) must not, within the specified term, vary the award or that provision, as the case may be, unless and to the extent that —
(i) it is satisfied that, by reason of circumstances which have arisen since the time at which the specified term was fixed, it would be inequitable and unjust not to do so; or
(ii) on an application made under paragraph (a), it is satisfied that it is fair and right so to do; or
(iii) the parties to the award agree that the award or provision should be varied;
and
(c) may within the specified term cancel the award if the parties to the award agree that it be cancelled.
(4) Section 39 applies, with such modifications as are necessary, to and in relation to an order made under this section.
(1) If —
(a) an award extends to employees to whom an industrial agreement extends; and
(b) a named party to the award who is also a party to the agreement applies to the Commission for the incorporation of some or all of the provisions of the agreement into the award; and
(c) each other party to the agreement consents to the incorporation of those provisions into the award,
the Commission must by order vary the award by incorporating those provisions of the agreement into the award, but the variation must be expressly limited to the employees and employers to whom the agreement extends.
(2) This section does not limit the operation of section 40 and that section applies to any application or order made under this section.
(1) The Commission, of its own motion, may by order at any time vary an award for any one or more of the following purposes —
(a) to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under section 50A;
(b) to ensure that the award does not contain conditions of employment that are less favourable than those provided by the MCE Act;
(c) to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the
Equal Opportunity Act 1984 ;(d) to ensure that the award does not contain provisions that are obsolete or need updating;
(e) to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.
(2) The Commission must not make an order under this section until it has given notice to the named parties to the award and UnionsWA, the Chamber and the Minister and afforded them an opportunity to be heard in relation to the proposed variations.
(3) The Commission must cause a copy of an order made under this section to be —
(a) given to the named parties to the award and to UnionsWA, the Chamber and the Minister; and
(b) published in the required manner.
(4) Section 39 applies to and in relation to an order made under this section —
(a) as if the reference in section 39(3) to the date on which an application was lodged in the Commission were a reference to the date on which notice was first given under subsection (2); and
(b) with such other modifications as are necessary.
(5) This section does not prevent or affect the making of an application under section 40 to vary an award for a purpose mentioned in subsection (1).
In this Division —
(a) the initiating party; and
(b) a person who notifies the initiating party under section 42A(1) that that person will bargain for the industrial agreement;
(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of any related disputes, disagreements, or questions may be made between an organisation or association of employees and any employer or organisation or association of employers.
(1a) An agreement may apply to a single enterprise or more than a single enterprise.
(1b) For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to —
(a) more than one business, project or undertaking; or
(b) the activities carried on by more than one public authority.
(2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission must register the agreement as an industrial agreement.
(3) Before registering an industrial agreement the Commission may require the parties to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.
(4) An industrial agreement extends to and binds —
(a) all employees who are employed —
(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and
(ii) by an employer who is —
(I) a party to the industrial agreement; or
(II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;
and
(b) all employers referred to in paragraph (a)(ii),
and no other employee or employer, and its scope must be expressly so limited in the industrial agreement.
(5) An industrial agreement operates —
(a) in the area specified in the agreement; and
(b) for the term specified in the agreement.
(6) Notwithstanding the expiry of the term of an industrial agreement, it continues in force in respect of all parties to the agreement, except those who retire from the agreement, until a new agreement or an award in substitution for the first‑mentioned agreement has been made.
(7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party to the agreement may file in the office of the Registrar a notice in the approved form signifying the party’s intention to retire from the agreement at the expiration of 30 days from the date of the filing, and, on the expiration of that period, the party ceases to be a party to the agreement.
(8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (the
first agreement ), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.(9) To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.
(1) The Commission must not under section 41 register an agreement as an industrial agreement unless the agreement —
(a) specifies a nominal expiry date that is no later than 3 years after the date on which the agreement will come into operation; and
(b) includes any provision specified in relation to that agreement by an order referred to in section 42G; and
(c) includes an estimate of the number of employees who will be bound by the agreement upon registration.
(2) The Commission must not under section 41 register an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of, or eligible to be members of, that organisation or association.
(1) Bargaining for an industrial agreement may be initiated by an organisation or association of employees, an employer or an organisation or association of employers giving to an intended party to the agreement a written notice that complies with subsection (3).
(2) A notice under subsection (1) is not to be given to an organisation or association of employers unless that organisation or association has given written consent to being given such notice.
(3) A notice complies with this subsection if it is accompanied by particulars of —
(a) the types of employment to be covered by the agreement; and
(b) the area in which the agreement is to operate; and
(c) the intended parties to the agreement; and
(d) any other matter prescribed by regulations made by the Governor under section 42M.
(4) If there is no applicable industrial agreement or enterprise order in force, bargaining may be initiated under subsection (1) at any time.
(5) If there is an applicable industrial agreement or an applicable enterprise order in force, bargaining must not be initiated under subsection (1) earlier than 90 days before the nominal expiry date of the agreement or order.
(6) Where bargaining is initiated under subsection (1) with more than one intended party to the agreement, all the negotiating parties are to bargain together unless the Commission, on the application of a negotiating party, directs that that negotiating party may negotiate separately with the initiating party.
(7) Nothing in this section prevents or limits a person from bargaining for an industrial agreement when bargaining has not been initiated under subsection (1).
(8) In subsection (5) —
(1) A person to whom a notice is given under section 42(1) may notify the initiating party within 21 days of receiving the notice (the
prescribed period ) as to whether that person will, or will not, bargain for an industrial agreement.(2) The Commission may by order, on application by a person to whom a notice is given under section 42(1), extend by no more than 7 days the period within which that person may respond under subsection (1).
(3) The Commission may make an order under subsection (2) although an application for the order was not made until after the expiration of the prescribed period.
(4) An order under subsection (2) may be made subject to such conditions as the Commission thinks fit.
(5) An application under subsection (2) operates —
(a) as a bar to an application for an enterprise order by a negotiating party; and
(b) as a stay of any application for an enterprise order that has been made by a negotiating party,
until the application under subsection (2) is determined or withdrawn.
(6) Bargaining between negotiating parties for an industrial agreement is initiated when the negotiating party to whom the notice is given notifies the initiating party under subsection (1) that that negotiating party will bargain.
(1) When bargaining for an industrial agreement, a negotiating party must bargain in good faith.
(2) Without limiting the meaning of the expression,
bargaining in good faith by negotiating parties includes doing the following things —(a) stating their position on matters at issue, and explaining that position;
(b) meeting at reasonable times, intervals and places for the purpose of conducting face‑to‑face bargaining;
(c) disclosing relevant and necessary information for bargaining;
(d) acting honestly and openly, which includes not capriciously adding or withdrawing items for bargaining;
(e) recognising bargaining agents;
(f) providing reasonable facilities to representatives of organisations and associations of employees necessary for them to carry out their functions;
(g) bargaining genuinely and dedicating sufficient resources to ensure this occurs;
(h) adhering to agreed outcomes and commitments made by the parties.
(3) The Commission may, having regard to the circumstances in which the industrial action occurs, determine that engaging in industrial action is a breach of the duty to bargain in good faith.
(4) For the purposes of this section, a person is a bargaining agent if —
(a) that person has been appointed in writing by a negotiating party to an agreement as a bargaining agent of that party in relation to the agreement; and
(b) a copy of the appointment has been provided to the other negotiating party to the agreement; and
(c) the appointment has not been terminated.
(5) An appointment of a bargaining agent may be terminated at any time by notice of termination given by the negotiating party who appointed the agent in writing to the agent.
(6) A copy of a notice of termination must be given to each other negotiating party.
(7) Despite the
Legal Profession Uniform Law (WA) section 10, a bargaining agent is authorised to provide advice and other services in relation to bargaining for an industrial agreement.(8) Nothing in this section affects the requirement of section 112A that only a person who is registered under that section may appear as an agent under section 31, 81E or 91.
(1) The Commission may make a code of good faith to provide guidance about the application of the duty of good faith under section 42B in relation to bargaining for an industrial agreement —
(a) generally; or
(b) in relation to particular types of situations.
(2) The code must not be inconsistent with this Division.
(3) Section 43(7), (8) and (9) of the
Interpretation Act 1984 apply to the code as if it were subsidiary legislation.(4) The Commission may amend or revoke the code or revoke it and substitute another code for it.
(5) The Commission must cause the code, and any amendment or substituted code or any revocation of a code, to be published in the
Industrial Gazette for public information.(6) In this section —
The duty of good faith in section 42B does not require a negotiating party —
(a) to agree on any matter for inclusion in, or exclusion from, an industrial agreement; or
(b) to enter into an industrial agreement.
(1) To assist parties to bargain for an industrial agreement, the Commission may exercise its powers as if it were endeavouring to resolve an industrial matter.
(2) Without limiting subsection (1) the Commission may make orders and give directions for the purpose of —
(a) ensuring that the negotiating parties bargain in good faith; and
(b) otherwise facilitating bargaining in good faith by negotiating parties.
(3) In particular, the Commission may order for the purposes of subsection (2) that a negotiating party do, or refrain from doing, any particular thing.
Except as provided in section 42G, the Commission must not give any direction or make any order or declaration requiring, or having the effect of requiring, a negotiating party to enter into an industrial agreement or to include any matter in, or exclude any matter from, an industrial agreement.
(1) This section applies where —
(a) negotiating parties have reached agreement on some, but not all, of the provisions of a proposed agreement; and
(b) an application is made to the Commission for registration of the agreement as an industrial agreement, the agreement to include any further provisions specified by an order referred to in subsection (2); and
(c) an application is made to the Commission by the negotiating parties for an order as to specified matters on which agreement has not been reached.
(2) When registering the agreement, the Commission may order that the agreement include provisions specified by the Commission.
(3) An order referred to in subsection (2) may only be made in relation to matters specified by the negotiating parties in an application referred to in subsection (1)(c).
(4) In deciding the terms of an order the Commission may have regard to any matter it considers relevant.
(5) When an order referred to in subsection (2) is made, the provisions specified by the Commission are, by force of this section, included in the agreement registered by the Commission.
(6) Despite section 49, no appeal lies from an order referred to in subsection (2).
(1) If, on the application of a negotiating party, the Commission constituted by a single commissioner determines that —
(a) the applicant has bargained in good faith; and
(b) bargaining between the applicant and another negotiating party has failed; and
(c) there is no reasonable prospect of the negotiating parties reaching an agreement,
the Commission may declare that the bargaining has ended between those negotiating parties.
(2) Despite section 49, no appeal lies from a declaration under subsection (1).
(1) If —
(a) the Commission declares under section 42H that bargaining has ended between negotiating parties; or
(b) the person to whom a notice is given under section 42(1) does not respond to the notice within the prescribed period or responds with a refusal to bargain,
the Commission may, upon an application under subsection (2), make an order (an
(c) providing for any matter that might otherwise be provided for in an industrial agreement to which the negotiating parties referred to in paragraph (a), or the initiating party and the person referred to in paragraph (b), were parties, irrespective of the provisions of any award, order or industrial agreement already in force; and
(d) that the Commission considers is fair and reasonable in all of the circumstances.
(2) An application for an enterprise order may be made —
(a) where subsection (1)(a) applies —
(i) if the negotiating party in respect of whom the declaration was made is not an organisation or association of employers, by the negotiating party; and
(ii) if the negotiating party in respect of whom the declaration was made is an organisation or association of employers, by an employer who is a member of the negotiating party;
and
(b) where subsection (1)(b) applies —
(i) if the initiating party is not an organisation or association of employers, by the initiating party;
(ii) if the initiating party is an organisation or association of employers, by an employer who is a member of the initiating party.
(3) An application for an enterprise order may be made —
(a) where subsection (1)(a) applies, within 21 days after the making of the declaration; and
(b) where subsection (1)(b) applies, within 21 days after the end of the prescribed period.
(4) Without limiting section 32A, the Commission may exercise its powers of conciliation in relation to a matter even if an application for an enterprise order has been made in relation to the same matter.
(1) An enterprise order extends to and binds —
(a) all employees who are employed —
(i) in any calling mentioned in the enterprise order in the industry or industries to which the enterprise order applies; and
(ii) by the employer specified in the order under subsection (5)(a);
and
(b) the employer specified in the order under subsection (5)(a),
and no other employee or employer, and its scope is to be expressly so limited in the enterprise order.
(2) An enterprise order operates in the area specified in the order.
(3) To the extent that an enterprise order is in conflict with an award or industrial agreement, the enterprise order prevails.
(4) An enterprise order is enforceable under section 83 as if the order were an award and any organisation or association who is specified in the order under subsection (5) were a named party to the award.
(5) The Commission is to specify in the enterprise order —
(a) the employer to whom the enterprise order extends and who is bound by the enterprise order; and
(b) any organisation or association of employees that is a relevant negotiating party or person referred to in section 42I(1)(b), as the case requires.
(6) The employer specified under subsection (5)(a) is to be —
(a) the applicant for the enterprise order; or
(b) if the applicant for the enterprise order was an organisation or association of employees —
(i) the negotiating party; or
(ii) the person referred to in section 42I(1)(b); or
(iii) the member of an organisation or association of employers that is a negotiating party; or
(iv) the member of an organisation or association of employers that is a person referred to in section 42I(1)(b),
specified in the application for the enterprise order.
(1) Subject to this section, an enterprise order operates for the term specified in the order.
(2) An enterprise order must provide for the day on which it expires which cannot be more than 2 years from and including the day on which it comes into operation.
(3) An enterprise order is not to be varied by the Commission unless all of the persons specified in the order under section 42J(5) consent to the variation.
(4) The Commission is not to make an award or another enterprise order in substitution for an enterprise order unless the term of the enterprise order has expired.
(5) The Commission is not to register an industrial agreement in substitution for an enterprise order unless —
(a) the application to the Commission to register the industrial agreement is made by each of the persons specified in the order under section 42J(5); or
(b) the term of the enterprise order has expired.
(6) The Commission is not to cancel an enterprise order unless an industrial agreement has been registered, or an award or order has been made, in substitution for that enterprise order.
(7) Despite the expiry of an enterprise order, the enterprise order continues in force in respect of all the persons specified in the order under section 42J(5) until a new industrial agreement, enterprise order or an award, in substitution for the enterprise order, has been made or registered as the case requires.
Bargaining initiated under section 42(1) ends —
(a) in relation to negotiating parties who make an agreement, when that agreement is made; and
(b) in relation to negotiating parties specified in a declaration under section 42H, when that declaration is made.
(1) The Governor may make regulations prescribing any matter that is necessary or convenient to be prescribed for giving effect to the purposes of this Division.
(2) Without limiting subsection (1) the Governor may make regulations for any of the purposes set out in section 113(1) to give effect to the purposes of this Division.
(3) If there is any conflict or inconsistency between a regulation made by the Governor and a regulation made under section 113(1), the regulation made by the Governor prevails to the extent of the conflict or inconsistency.
(1) An industrial agreement may be varied, renewed, or cancelled by a subsequent agreement made by and between all the parties and in so far as the agreement relates to an employer, organisation or association of employers, on the one hand, and to an organisation or association of employees, on the other hand, it may be varied, renewed or cancelled by a subsequent agreement between that employer, organisation or association of employers and that organisation or association of employees.
(2) The Commission may vary an industrial agreement for the purpose of including, omitting or varying a provision, however expressed, that authorises an employer to stand‑down an employee.
(3) An application to the Commission to vary an industrial agreement for a purpose mentioned in subsection (2) may be made by any organisation, association or employer which or who is a party to the agreement.
(1) Subject to this section, the Commission constituted by a commissioner may summon any person to attend, at a time and place specified in the summons, at a conference before the Commission.
(2) A summons under this section —
(a) may be given in the prescribed manner; and
(b) when so given is, in any proceedings under this Act relating to the summons, taken to have been served on the person to whom it is directed unless that person, in those proceedings, satisfies the commissioner who caused the summons to be given or the Full Bench, as the case may be, that the person did not receive the summons.
(3) Any person so summoned must, except for good cause, proof of which is on the person, attend the conference at the time and place specified in the summons and continue that attendance as directed by the Commission.
[(4) deleted] (5) A conference under this section must be held in private unless the Commission, at any stage of the conference, is of the opinion that the objects of the Act will be better served by holding the conference in public.
(5a) In endeavouring to resolve any matter by conciliation the Commission must do all such things as appear to it to be right and proper to assist the parties to a conference under this section to reach an agreement on terms for the resolution of the matter.
(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of this subsection, may —
(a) direct the parties or any of them to confer with one another or with any other person and without a chairperson or with the Registrar or a deputy registrar as chairperson; and
(b) direct that disclosure of any matter discussed at the conference be limited in such manner as the Commission may specify; and
(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission —
(i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter; or
(ii) enable conciliation or arbitration to resolve the matter in question; or
(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question;
and
(bb) with respect to industrial matters —
(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and
(ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;
and
(c)exercisesuchofthepowersoftheCommissionreferredtoinsection27(1)astheCommissionconsidersappropriate.
(6a) An order made under subsection (6)(ba) or (bb) —
(a) binds only the parties to the relevant conference under this section; and
(b) may vary the operation of an existing award or industrial agreement in respect of the parties referred to in paragraph (a).
(7) The Commission may exercise the power conferred on it by subsection (1) —
(a) on the application of —
(i) any organisation, association or employer; or
(ii) the Minister on behalf of the State; or
(iii) a person in relation to a dispute about the person’s entitlement to long service leave as an employee or former employee;
or
(b) on the motion of the Commission itself whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur.
(8) Where, at a conference held in accordance with this section, agreement is reached between the parties or any of them in relation to any industrial matter the Commission may —
(a) make an order in the terms of that agreement binding only on those parties who consented; or
[(b),(c) deleted] (d) where the nature or subject matter of the agreement does not, in the opinion of the Commission, require that an order in terms of the agreement be made, make, sign, and file a memorandum of the terms of the agreement.
(9) Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.
(10) Subject to subsections (11) and (12), the Commission may, for the hearing and determination of a matter under subsection (9), be constituted by the commissioner who presided over the conference.
(11) Where the commissioner referred to in subsection (10) proposes to constitute the Commission for the purpose mentioned in that subsection, the commissioner must, at the conclusion of the conference advise the parties of the commissioner’s intention so to do, and, if any party objects to the Commission being so constituted for that purpose, that commissioner must not enter upon the hearing of the matter concerned unless —
(a) the commissioner has discussed with the Chief Commissioner the propriety of so doing; and
(b) the Chief Commissioner, after interviewing the objecting party, has directed the commissioner so to do.
(12) Where the Chief Commissioner does not give the direction referred to in subsection (11)(b), the Chief Commissioner may —
(a) allocate the matter in dispute for hearing and determination by the Commission constituted by a commissioner other than the commissioner who presided over the conference; and
(b) exercise in relation to the matter such powers of the Commission referred to in section 27(1) as the Chief Commissioner considers appropriate and are not inconsistent with the hearing and determination under paragraph (a).
(12a) Where, at the conclusion of a conference held in accordance with this section, any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, and the parties in relation to whom the matter has not been so settled all consent in writing to the commissioner who presided over the conference conclusively determining that question, dispute or disagreement, that commissioner may hear and determine that question, dispute, or disagreement and make an order binding on the parties who so consented.
(12b) Nothing in subsection (12a) authorises the commissioner to use final offer arbitration without the express consent, in writing, of all of the parties concerned.
(12c) Notwithstanding section 49 an appeal does not lie from an order made under subsection (12a).
(12d) As soon as is practicable after giving or making a direction, order or declaration orally under this section, the Commission must —
(a) reduce the direction, order or declaration to writing; and
(b) make the text of the direction, order or declaration available to the parties bound by the order or to which the direction or declaration applies.
(12e) Subsection (12d) does not apply to an order or declaration to which section 35 applies.
(13) Section 39 applies, with such modifications as are necessary, to an order made under this section.
(1) This section applies if a person makes an application in relation to a dispute about the person’s entitlement to long service leave as an employee or former employee under both —
(a) section 44(7)(a)(iii); and
(b) another provision of this Act or another written law.
(2) The Commission must not exercise its jurisdiction under section 44 in relation to the application under that section unless the application under the other provision of this Act or other law is withdrawn or fails for want of jurisdiction.
(1) At any time while an award is in force under this Act the Commission may, on the application of any employer, organisation, or association bound by the award —
(a) declare the true interpretation of the award; and
(b) where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect in, or giving fuller effect to, the provision.
(2) A declaration under this section may be made in the Commission’s reasons for decision but must be made in the form of an order if, within 7 days of the handing down of the Commission’s reasons for decision, any organisation, association, or employer bound by the award so requests.
(3) Subject to this Act, a declaration made under this section is binding on all courts and all persons with respect to the matter the subject of the declaration.
(4) Section 35 does not apply to or in relation to this section unless an order is made under subsection (1)(b) or under subsection (2).
(5) In this section
award includes an order, including a General Order, made by the Commission under any provision of this Act other than this section and an industrial agreement.
(1) Subject to subsections (3), (4) and (5), where, in the opinion of the Commission, there is no employee to whom an award or industrial agreement applies, the Commission may on its own motion, by order, cancel that award or industrial agreement.
(2) Subject to subsections (3), (4) and (5), where the Commission is of the opinion that a party to an award who is named as an employer is no longer carrying on business as an employer in the industry to which the award applies or is, for any other reason, not bound by the award, the Commission may on its own motion, by order, strike out that party as a named party to the award.
(2a) Subject to subsections (3), (4) and (5), where the Commission is of the opinion that a party to an industrial agreement is no longer carrying on business as an employer referred to in section 41(4)(a)(ii) in relation to the agreement or is, for any other reason, not bound by the agreement, the Commission may on its own motion, by order, strike out that party to the agreement.
(3) The Commission must not make an order under subsection (1), (2) or (2a) unless before making the order —
(a) it has directed the Registrar to make such enquiries as it considers necessary, and the Registrar has reported on the result of those enquiries to the Commission in writing; and
(b) after receiving the report of the Registrar, the Commission has —
(i) caused the Registrar to give general notice by publication in the required manner of the intention of the Commission to make the order; and
(ii) directed the Registrar to serve copies of the notice on such persons as the Commission may specify.
(4) Any person may, within 30 days of the day on which the notice referred to in subsection (3) is first published, object to the Commission making the order referred to in the notice.
(5) If the Commission does not uphold an objection to the making of the order referred to in the notice the Commission may make the order and must, as soon as practicable, direct the Registrar to serve a copy of the order —
(a) where the order relates to an award, on each organisation of employees that is a named party to the award, on such other persons as are bound by the award as the Commission thinks fit, and on UnionsWA and the Chamber;
(b) where the order relates to an industrial agreement, on each party to the agreement.
(1) In exercising its jurisdiction under this Part the Commission must not make an award or applicable order, or register an industrial agreement, unless the award, order or industrial agreement makes provision for procedures to be followed in connection with questions, disputes or difficulties arising under the award, order or industrial agreement.
(1a) The procedures referred to in subsection (1) must provide for the persons involved in the question, dispute or difficulty to confer among themselves and make reasonable attempts to resolve questions, disputes or difficulties before taking those matters to the Commission.
(2) The Commission may order persons involved in a question, dispute or difficulty arising under an award, order or industrial agreement that is before the Commission to comply with the dispute settling procedures provided for in that award, order or industrial agreement.
(3) In subsection (1)
applicable order means an order with respect to which, in the opinion of the Commission, a question, dispute or difficulty capable of resolution by dispute settling procedures may arise.
(1) In this section —
(a) that is a complying superannuation fund or scheme within the meaning of the
Superannuation Guarantee (Administration) Act 1992 (Commonwealth); and(b) to which, under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme.
(2) In exercising its jurisdiction under this Part the Commission must not make an award or order, or register an industrial agreement, which requires contribution to a superannuation fund or scheme by an employee or by an employer in respect of an employee unless the award, order or industrial agreement —
(a) permits the employee to nominate a complying superannuation fund or scheme; and
(b) requires the employer to notify the employee of the entitlement to nominate a complying superannuation fund or scheme; and
(c) requires the employer —
(i) if the award, order or industrial agreement specifies one or more complying superannuation funds or schemes to which contributions may be made, to make contributions to that fund or scheme, or one of those funds or schemes nominated by the employer, until the employee nominates a complying superannuation fund or scheme; or
(ii) if the award, order or industrial agreement does not specify a complying superannuation fund or scheme to which contributions may be made, to make contributions to a complying fund or scheme nominated by the employer until the employee nominates such a fund or scheme;
and
(d) requires the employee and employer to be bound by the nomination of the employee unless the employee and employer agree to change the complying superannuation fund or scheme to which contributions are to be made; and
(e) provides that an employer must not unreasonably refuse to agree to a change of complying superannuation fund or scheme requested by an employee.
(3) The Governor may make regulations —
(a) prescribing procedures to be followed by an employer in notifying an employee of entitlement to nominate a complying superannuation fund or scheme; and
(b) prescribing procedures to be followed by an employee in nominating a complying superannuation fund or scheme.
(4) A person must not by threats or intimidation persuade or attempt to persuade —
(a) an employee or prospective employee to nominate a particular superannuation fund or scheme; or
(b) an employer to make contributions to a particular superannuation fund or scheme.
Penalty for this subsection:
(a) in the case of an individual — a fine of $1 000;
(b) in any other case — a fine of $5 000.
(5) In subsection (4) —
(1) In subsections (2) to (6a) the
Commission means the Commission constituted by a commissioner, but does not include the Commission exercising jurisdiction under section 80ZE or subsection (11).(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.
(2a) An appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.
(2b) An appeal does not lie under this section from a determination of the Commission —
(a) under section 97VP, 97XC or 97XQ; or
(b) in an arbitration under any EEA dispute provision of the kind referred to in section 97UP.
(3) An appeal under this section must be instituted within 21 days of the date of the decision against which the appeal is brought and may be instituted by —
(a) any party to the proceedings in which the decision was made; or
(b) any person who was an intervener in those proceedings.
(4) An appeal under this section —
(a) must be heard and determined on the evidence and matters raised in the proceedings before the Commission; and
(b) must, if brought by a person referred to in subsection (3)(b), be dismissed unless, on the hearing of the appeal, that person obtains leave of the Full Bench,
and, for the purpose of paragraph (a),
(5) In the exercise of its jurisdiction under this section the Full Bench may, by order —
(a) dismiss the appeal; or
(b) uphold the appeal and quash the decision or, subject to subsection (6), vary it in such manner as the Full Bench considers appropriate; or
(c) suspend the operation of the decision and remit the case to the Commission for further hearing and determination.
(6) Where the Full Bench varies a decision under subsection (5)(b) the decision as so varied must be in terms which could have been awarded by the Commission that gave the decision.
(6a) The Full Bench is not to remit a case to the Commission under subsection (5)(c) unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.
[(7) deleted] (8) When the commissioners who constitute the Full Bench are divided on a question, the question must be decided according to the decision of a majority of them but, if their decisions on the question are equally divided, the question must be decided according to the decision of the presiding commissioner of the Full Bench.
(9) When any question of law arises in any proceedings before the Full Bench, the presiding commissioner of the Full Bench may state a case for the decision of the Court and must do so if a majority of the members of the Full Bench so request.
(10) Subsections (8), and (9) apply to and in relation to all proceedings before the Full Bench whether under this section or otherwise.
(11) At any time after an appeal to the Full Bench has been instituted under this section a person who has a sufficient interest may apply to the Commission for an order that the operation of the decision appealed against be stayed, wholly or in part, pending the hearing and determination of the appeal.
(12) For the purposes of hearing and determining an application under subsection (11) for an order in respect of a decision, the Commission must be constituted by the presiding commissioner of the Full Bench allocated the appeal against the decision.
(1) Employment records relating to an employee must be kept in accordance with this section.
(2) An employer must ensure that the following employment records are kept —
(a) the employee’s name and, if the employee is under 21 years of age, the employee’s date of birth;
(aa) the employer’s name and Australian Business Number (if any);
(b) any industrial instrument that applies;
(c) the date on which the employee commenced employment with the employer;
(d) for each day —
(i) the time at which the employee started and finished work; and
(ii) the period or periods for which the employee was paid; and
(iii) details of work breaks including meal breaks;
(e) for each pay period —
(i) the employee’s designation; and
(ii) the gross and net amounts paid to the employee under an industrial instrument or the MCE Act and any amount withheld as tax; and
(iii) all deductions and the reasons for them;
(ea) any incentive based payment, bonus, loading, penalty rates or another monetary allowance or separately identifiable entitlement;
(f) all leave taken by the employee, whether paid, partly paid or unpaid;
(fa) any agreement under the MCE Act section 8(1), including details of —
(i) the benefit for, and the amount of, annual leave that was foregone; and
(ii) when the benefit was paid;
(g) the information necessary for the calculation of, and payment for, long service leave under the LSL Act, the
Construction Industry Portable Paid Long Service Leave Act 1985 or an industrial instrument;(h) any other information in respect of the employee required under an industrial instrument to be recorded;
(i) any information, not otherwise covered by this subsection, that is necessary to show that the remuneration and benefits received by the employee comply with an industrial instrument or other entitlement provision;
(j) the following matters relating to superannuation —
(i) the amount of the superannuation contributions made;
(ii) the period over which the superannuation contributions were made;
(iii) the date on which each superannuation contribution was made;
(iv) the name of any fund to which a superannuation contribution was made;
(v) how the employer worked out the amount of superannuation owed;
(vi) any election made by the employee as to the fund to which the contributions are to be made and the date the election was made;
(k) termination‑related matters, including —
(i) whether the employee’s employment was terminated by consent, notice, summarily or in some other specified manner; and
(ii) the name of the person who terminated the employee’s employment.
(3) The employer must ensure that —
(a) the employment records are kept in accordance with regulations made by the Governor; and
(b) each entry in relation to annual and long service leave is retained —
(i) during the employment of the employee; and
(ii) for not less than 7 years after the employment terminates;
and
(c) each other employment record is retained for not less than 7 years after it is made.
(4) An employer who enters into an agreement under the MCE Act section 8(1) or (2A) or 32(2) must ensure that a copy of the agreement is kept as an employment record.
(5) If the SWS or a SWIIP applies to an employee with a disability, an employer must ensure that the following are kept as employment records in relation to the employee —
(a) any agreement entered into under the SWS or a SWIIP by the employer and the employee;
(b) any other document required to be kept by the SWS or a SWIIP relating to the determination of a wage for the employee.
(6) The employer must, as soon as practicable, lodge with the Registrar a copy of an agreement entered into under the SWS that is required to be kept under subsection (5)(a).
(7) If an employer makes a payment to an employee in cash, the employer must provide a record of payment to the employee and ensure that a copy of the record of payment is kept as an employment record.
(8) An employer must not make or keep an employment record for the purposes of this section that the employer knows, or could reasonably be expected to know, is false or misleading.
(9) Subsection (8) does not apply if the employment record is not false or misleading in a material particular.
(1) An employer must, in accordance with this section, give a pay slip (in hard copy or electronic form) to each employee within 1 working day after paying an amount to the employee in relation to the performance of work.
(2) The pay slip must include the following information —
(a) the employer’s name and Australian Business Number (if any);
(b) the employee’s name;
(c) the period to which the pay slip relates;
(d) the date on which the payment referred to in the pay slip was made;
(e) the gross and net amounts of the payment and any amount withheld as tax;
(f) any incentive based payment, or payment of a bonus, loading, penalty rates or another monetary allowance or separately identifiable entitlement;
(g) if an amount is deducted from the gross amount of the payment —
(i) the name of the person in relation to whom or which the deduction was made; and
(ii) if the deduction was paid into a fund or account — the name, or the name and number, of the fund or account; and
(iii) the purpose of the deduction;
(h) if the employee is paid at an hourly rate of pay —
(i) the rate of pay for the employee’s ordinary hours; and
(ii) the number of hours worked during the period to which the pay slip relates; and
(iii) the amount of the payment made at that rate;
(i) if the employee is paid at a weekly or an annual rate of pay — the rate as at the latest date to which the payment relates;
(j) if the employer is required to make superannuation contributions for the benefit of the employee —
(i) the amount of each contribution that the employer made during the period to which the pay slip relates and the name, or the name and number, of any fund to which the contribution was made; or
(ii) the amounts of contributions that the employer is liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.
(2A) However, a pay slip must not include any information that indicates leave taken by an employee, or to which an employee is entitled, is leave required for reasons relating to family violence (as defined in the
Restraining Orders Act 1997 section 5A), whether the leave is paid or unpaid.(3) An employer must not give a pay slip for the purposes of this section if the pay slip is false or misleading.
(4) Subsection (3) does not apply if —
(a) the employer gives the pay slip without knowing, or being reasonably expected to know, that it is false or misleading; or
(b) the pay slip is not false or misleading in a material particular.
(1) An employer, on written request by a relevant person, must —
(a) produce to the person the employment records relating to an employee; and
(b) let the person inspect the employment records.
(2) The duty placed on an employer by subsection (1) —
(a) continues so long as the employment records are required to be kept under section 49D; and
(b) is not affected by the fact that the employee is no longer employed by the employer or that the industrial instrument no longer applies to the employee; and
(c) includes the further duties —
(i) to let the relevant person enter premises of the employer for the purpose of inspecting the records; and
(ii) to let the relevant person take copies of or extracts from the records;
and
(d) must be complied with not later than —
(i) at the end of the next pay period after the request is received; or
(ii) the seventh day after the day on which the request was made to the employer.
(3) Nothing in this section limits or otherwise affects the powers of an industrial inspector in relation to the inspection of employment records.
(4) In this section —
(a) the employee concerned; and
(b) if the employee is a represented person, the employee’s representative; and
(c) a person authorised in writing by the employee; and
(d) a Registrar’s Department officer authorised in writing by the Registrar.
A contravention of section 49D(1), (6) or (8), 49DA(1) or (3) or 49E(1) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.
(1) In this Division —
(a) means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded; and
(b) includes —
(i) a spent conviction as defined in the
Spent Convictions Act 1988 section 3(1), regardless of sections 13 and 25 to 27 of that Act; and(ii) a conviction against a law of another jurisdiction if, under a law of that jurisdiction, the person concerned is permitted not to disclose the fact that the person was convicted or found guilty of the offence;
(a) a federal counterpart (as defined in the FW (Registered Organisations) Act section 9A) of the organisation; or
(b) prescribed to be a federal counterpart of the organisation by regulations made by the Governor;
(a) this Act, the LSL Act and the MCE Act;
(b) the FW Act and the FW (Registered Organisations) Act;
(c) another law of the Commonwealth, or a law of another State or a Territory, prescribed to be an industrial law by regulations made by the Governor;
(a) the
Work Health and Safety Act 2020 ; or(b) a law of the Commonwealth, another State or a Territory prescribed to be a work health and safety law by regulations made by the Governor.
(2) In this Division, a reference to an officer or employee of an organisation includes a reference to an officer or employee of a federal counterpart of the organisation.
(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.
(2) If an award, order or industrial agreement that extends to the relevant employees makes provision as to entry onto premises by an authorised representative and —
(a) does not require notice to be given by the representative; or
(b) requires a specified period of notice to be given by the representative,
the authorised representative is not required to give notice under this section.
(3) If subsection (2) does not apply, the authorised representative is not entitled to exercise a power conferred by this section unless the authorised representative has given the employer of the employees concerned at least 24 hours’ written notice.
(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of any of the following —
(a) this Act, the LSL Act or the MCE Act;
(b) the
Work Health and Safety Act 2020 ;(c) the
Construction Industry Portable Paid Long Service Leave Act 1985 ;(d) a local government long service leave provision;
(e) an award, order, industrial agreement or employer‑employee agreement that applies to a relevant employee.
(2) For the purpose of investigating any such suspected breach, the authorised representative may —
(a) subject to subsections (3) and (6), require the employer to produce for the representative’s inspection, during working hours at the employer’s premises or at any mutually convenient time and place, any employment records of employees or other documents kept by the employer that are related to the suspected breach; and
(b) make copies of the entries in the employment records or documents related to the suspected breach; and
(c) during working hours, inspect or view, and take photographs, films and audio, video or other recordings of, any work, material, machinery, or appliance, that is relevant to the suspected breach.
(3) The authorised representative is not entitled to require an employer to produce an employment record of an employee if the employee —
(a) is a party to an employer‑employee agreement; and
(b) has made a written request to the employer that the record not be available for inspection by an authorised representative.
(4) A written request under subsection (3)(b) —
(a) may be withdrawn by written notice given by the employee to the employer; and
(b) has effect until it is so withdrawn.
(5) An authorised representative is not entitled to exercise a power conferred by this section for the purpose of investigating a suspected breach of an employer‑employee agreement to which a relevant employee is a party unless the authorised representative is authorised in writing by that relevant employee to carry out the investigation.
(6) An authorised representative is not entitled to require the production of employment records or other documents unless, before exercising the power, the authorised representative has given the employer concerned —
(a) if the records or other documents are kept on the employer’s premises, at least 24 hours’ written notice; or
(b) if the records or other documents are kept elsewhere, at least 48 hours’ written notice.
(7) The Commission may, on the ex parte application of an authorised representative, waive the requirement to give the employer concerned notice of an intended exercise of a power under subsection (6) if the Commission is satisfied that to give such notice would defeat the purpose for which the power is intended to be exercised.
(8) If the requirement for notice is waived under subsection (7) —
(a) the Commission must give the authorised representative a certificate authorising the exercise of the power without notice; and
(b) the authorised representative must, after entering the premises and before requiring the production of the records or documents, give the person who is apparently in charge of the premises the certificate or a copy of the certificate.
(1) Except as provided in subsection (3), an authorised representative does not have authority under this Division to enter any part of premises principally used for habitation by an employer or a member of the employer’s household (
habitation premises ).(2) An authorised representative may apply to the Commission for an order permitting the authorised representative to enter habitation premises under section 49I(1).
(3) The Commission may make the order only if it is satisfied that exceptional circumstances exist warranting the making of the order.
(1) If —
(a) a person proposes to enter, or is on, premises in accordance with section 49H or 49I; and
(b) the occupier requests the person to show the person’s right of entry permit,
the person is not entitled under that section to enter or remain on the premises unless the person shows the occupier the right of entry permit in force under this Division.
(2) In this section —
(1) The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the premises under section 49H or 49I.
(2) A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by this Division.
(3) A person must not purport to exercise the powers of an authorised representative under this Division if the person is not the holder of a current right of entry permit.
(4) A contravention of subsection (1), (2) or (3) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.
(1) The secretary of an organisation of employees may apply to the Commission for an officer or employee of the organisation to be issued a right of entry permit.
(2) The application must comply with any requirements prescribed by the regulations.
(3) The officer or employee named in the application is the
nominated official .
(1) The Commission may, on an application under section 49N, issue a right of entry permit to the nominated official if satisfied that the official is a fit and proper person to hold the permit.
(2) The Commission may decide to issue a right of entry permit subject to conditions.
(3) The Commission cannot issue a right of entry permit to the nominated official if, when the Commission is deciding the application —
(a) a right of entry the official had under an industrial law or work health and safety law is suspended under that law; or
(b) the official is disqualified under an industrial law or work health and safety law from exercising, or applying for, a right of entry under that law.
(1) In deciding whether a nominated official is a fit and proper person to hold a right of entry permit, the Commission —
(a) must consider the fit and proper person criteria in relation to the official; and
(b) may consider any other matters the Commission considers relevant.
(2) The following matters are the
fit and proper person criteria in relation to a nominated official —(a) whether the official has received appropriate training about the rights and responsibilities of an authorised representative;
(b) whether the official has ever been convicted of an offence against an industrial law;
(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving —
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) the intentional use of violence against another person; or
(iv) the intentional damage or destruction of property;
(d) whether the official, or another person, has ever been ordered to pay a penalty under an industrial law in relation to the actions of the official;
(e) whether a right of entry permit issued to the official has been revoked, suspended or made subject to conditions;
(f) whether a right of entry for industrial or work health and safety purposes the official had under an industrial law or a work health and safety law has ever been revoked, suspended or had conditions imposed on it;
(g) whether the official has ever been disqualified under an industrial law or a work health and safety law from exercising, or applying for, a right of entry for industrial or work health and safety purposes under that law.
(1) This section applies if the Commission, on an application under section 49N, decides to issue a right of entry permit to the nominated official.
(2) The right of entry permit must state the following information —
(a) the name of the nominated official;
(b) the name of the organisation of employees, the secretary of which made the application;
(c) the conditions, if any, the permit is issued subject to;
(d) the day on which the permit is issued and its expiry day.
(3) For the purposes of subsection (2)(d), the
expiry day of a right of entry permit is the day that is 3 years after the day on which the permit is issued.
(1) Unless it is earlier revoked, a right of entry permit expires at the earlier of the following times —
(a) at the end of the day on its expiry day or, if the Commission decides on a later expiry day under section 49S, the later expiry day;
(b) when the authorised representative stops being an officer or employee of the relevant organisation.
(2) In subsection (1) —
(a) if the authorised representative is an officer or employee of the organisation of employees, the secretary of which applied for the permit — that organisation; or
(b) if the authorised representative is an officer or employee of a federal counterpart of the organisation referred to in paragraph (a) — the federal counterpart of that organisation.
(1) The Commission may decide on another day (the
later expiry day ), that is later than the expiry day, on which a right of entry permit expires if —(a) the secretary of the organisation that applied for the permit has applied for another right of entry permit (the
new permit ) for the authorised representative; and(b) the application was made at least 1 month before the expiry day of the permit; and
(c) the Commission is satisfied the permit is likely to expire before the Commission determines the application for the new permit.
(2) The Commission may act under subsection (1) of its own motion or on application by the secretary of the organisation.
(3) The later expiry day must not extend the expiry of the permit longer than the period that the Commission considers necessary to determine the application.
(4) The Commission must not decide on a later expiry day under subsection (1) if —
(a) the Commission has requested or required the secretary of the organisation or authorised representative to provide a document or other information in relation to the application; and
(b) the secretary or representative has not complied with the request or requirement; and
(c) the Commission is satisfied the secretary or representative does not have a reasonable excuse.
(5) If the Commission decides on a later expiry day for a right of entry permit —
(a) the Commission must record the later expiry day on the permit; and
(b) the permit ceases to have effect from the end of the day on its expiry day until the Commission records the later expiry day under paragraph (a).
Note for this subsection:
See the obligation in section 49W for a right of entry permit to be returned to the Commission if the Commission decides on a later expiry day for the permit.
(1) The Commission in Court Session may, by order —
(a) impose a condition on or change a condition of a right of entry permit; or
(b) suspend a right of entry permit for a specified period; or
(c) revoke a right of entry permit.
(2) The Commission may act under subsection (1) of its own motion, on application of the Registrar or on application by any person.
(3) An application for the Commission to act under subsection (1) must state the grounds on which it is made.
(4) In deciding whether to take action under subsection (1), the Commission must take into account —
(a) the fit and proper person criteria, applied as if a reference in the criteria to a nominated official were a reference to the authorised representative; and
(b) whether the authorised representative —
(i) has acted improperly in exercising a power under Subdivision 2; or
(ii) has intentionally and unduly hindered an employer or employees during their working time;
and
(c) any other matters the Commission considers relevant.
(5) If the Commission makes an order imposing a condition on or changing a condition of a right of entry permit —
(a) the Commission must record the new or changed condition on the permit; and
(b) the permit ceases to have effect until the Commission records the new or changed condition under paragraph (a).
Note for this subsection:
See the obligation in section 49W for a right of entry permit to be returned to the Commission if a condition is imposed on the permit or changed after it is issued.
The suspension of a right of entry permit does not —
(a) prevent conditions being imposed on the permit or changed, or the permit being revoked, during the period of the suspension; or
(b) alter the day on which the permit would otherwise expire.
(1) The secretary of an organisation of employees may apply to the Commission for a right of entry permit issued to an officer or employee of the organisation to be revoked.
(2) The Commission must revoke the right of entry permit unless subsection (3) applies.
(3) The Commission must not revoke the right of entry permit if —
(a) proceedings in relation to the permit are commenced under section 49T and are not finally determined or otherwise ended; or
(b) a decision is made under section 49T in relation to the permit and either —
(i) the time for instituting an appeal against the decision has not ended; or
(ii) an appeal is instituted against the decision and has not been finally decided or withdrawn.
(1) An authorised representative must return a right of entry permit to the Commission within 7 days after any of the following things happen —
(a) the permit is revoked or suspended;
(b) a condition is imposed on the permit or changed after it is issued;
(c) the permit expires;
(d) the Commission decides on a later expiry day for the permit.
(2) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E.
(3) After the end of a suspension period, the Commission must return a right of entry permit to the authorised representative if —
(a) the authorised representative, or the secretary of the organisation that applied for the permit, applies to the Commission for the return of the permit; and
(b) the permit has not expired.
(1) This section applies if the Commission is exercising its jurisdiction under section 44 in relation to a dispute about the exercise of a power under Subdivision 2 by an authorised representative.
(2) The Commission may, by order, impose a condition on or change a condition of the right of entry permit held by the authorised representative.
(3) Section 49T(4) applies to the Commission in deciding whether to make an order under subsection (2).
(4) If the Commission makes an order imposing a condition on or changing a condition of a right of entry permit —
(a) the Commission must record the new or changed condition on the permit; and
(b) the permit ceases to have effect until the Commission records the new or changed condition under paragraph (a).
Note for this subsection:
See the obligation in section 49W for a right of entry permit to be returned to the Commission if a condition is imposed on the permit or changed after it is issued.
(1) The Commission cannot make an award or order, or register an agreement, that —
(a) confers a power of entry or inspection that is in addition to, or inconsistent with, the powers of entry and inspection under Division 2F and this Division; or
(b) provides for the exercise of a power of entry or inspection in a way that is in addition to, or inconsistent with, the provisions of those Divisions about the exercise of those powers.
(2) Subsection (1) does not apply to an award, order or agreement to the extent that it specifies the period of notice an authorised representative is required to give an employer before entering premises where relevant employees work.
(3) If a provision of an award, order or industrial agreement contravenes subsection (1), the provision has no effect to the extent of the inconsistency.
(1) In this Division
Commission means Commission in Court Session.(2) Subject to this Act, the Commission may, of its own motion or on the application of UnionsWA, the Chamber or the Minister —
(a) make General Orders relating to industrial matters in accordance with and subject to this Division; and
(b) add to, vary, or rescind any General Order so made.
(3) A General Order may be made to apply generally to employees throughout the State whether or not they are employed under and subject to awards or industrial agreements or may be limited to employees —
(a) who are employed under and subject to awards or industrial agreements; or
(b) who are not so employed,
but does not apply to any employee whose conditions of employment may not be determined by the Commission.
(4) A General Order applying to or with respect to employees of the kind referred to in subsection (3)(a) may add to or vary all awards and industrial agreements or may be limited in its effect to such awards and industrial agreements or awards or industrial agreements as may be specified in the General Order.
(5) A General Order that varies the scope of a private sector award must specify that it extends to and binds —
(a) employers of a class or classes specified in the award, whether or not the employers are also specified by name in the award; and
(b) employees —
(i) of employers referred to in paragraph (a); and
(ii) of a class or classes specified in the award.
(6) For the purposes of subsection (5)(a) and (b)(ii), the class may be described by reference to —
(a) a particular industry or part of an industry; or
(b) a particular kind of work.
(7) A General Order must not be made in respect of preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation.
(1AA) In this section —
(a) whose contract of employment is governed by an industrial instrument that includes a SWIIP that incorporates the SWS; and
(b) whose productive capacity has been assessed under the SWS as being reduced because of a disability; and
(c) who is not employed by a supported employment service; and
(d) who is being paid a weekly rate of pay determined by the SWS under the SWIIP;
(a) for whom competitive employment at or above the wage payable under the relevant award is unlikely; and
(b) who, because of their disability, need substantial ongoing support to obtain or retain paid employment.
(1) The Commission must before 1 July in each year, of its own motion make a General Order (the
State Wage order ) —(a) setting the following —
(i) the minimum weekly rate of pay applicable under section 12 of the MCE Act to employees who have reached 21 years of age and who are not apprentices;
(ii) the minimum weekly rate or rates of pay applicable under section 14 of the MCE Act to apprentices;
(iii) the minimum amount payable under the MCE Act section 17(2);
and
(b) adjusting rates of wages paid under awards; and
(c) having regard to the statement of principles issued under paragraph (d) —
(i) varying each award affected by the exercise of jurisdiction under paragraph (b) to ensure that the award is consistent with the order; and
(ii) if the Commission considers it appropriate to do so, making other consequential changes to specified awards;
and
(d) setting out a statement of principles to be applied and followed in relation to the exercise of jurisdiction under this Act to —
(i) set the wages, salaries, allowances or other remuneration of employees or the prices to be paid in respect of their employment; and
(ii) ensure employees receive equal remuneration.
(1A) The amount set by the Commission under subsection (1)(a)(iii) must be the same as that set by the FW Commission in the national minimum wage order under the FW Act section 285(2)(c) for an eligible employee whose productive capacity is, under the SWS, assessed as reduced because of a disability.
(1B) For the purposes of subsection (1)(b), the Commission must, in relation to an instrument‑governed employee with a disability, order the highest of the following —
(a) that the minimum amount payable is to be the same as in the previous State Wage order;
(b) that the minimum amount payable is to be the same as that set by the FW Commission in the national minimum wage order under the FW Act section 285(2)(c) for an eligible employee whose productive capacity is, under the SWS, assessed as reduced because of a disability.
(2) The Commission may, in relation to awards generally or specified awards, do any or all of the following for the purposes of subsection (1)(b) —
(a) adjust all rates of wages;
(b) adjust individual rates of wages;
(c) adjust a series of rates of wages;
(d) adjust specialised rates of wages.
(3) In making an order under this section, the Commission must take into consideration —
(a) the need to —
(i) ensure that Western Australians have a system of fair wages and conditions of employment; and
(ii) meet the needs of the low paid; and
(iii) provide fair wage standards in the context of living standards generally prevailing in the community; and
(iv) contribute to improved living standards for employees; and
(v) protect employees who may be unable to reach an industrial agreement; and
(vi) encourage ongoing skills development; and
(vii) provide equal remuneration;
and
(b) the state of the economy of Western Australia and the likely effect of its decision on that economy and, in particular, on the level of employment, inflation and productivity in Western Australia; and
(c) to the extent that it is relevant, the state of the national economy; and
(d) to the extent that it is relevant, the capacity of employers as a whole to bear the costs of increased wages, salaries, allowances and other remuneration; and
(e) for the purposes of subsection (1)(b) and (c), the need to ensure that the Western Australian award framework represents a system of fair wages and conditions of employment; and
(f) relevant decisions of other industrial courts and tribunals; and
(g) any other matters the Commission considers relevant.
(4) Without limiting the generality of this section and section 26(1), in the exercise of its jurisdiction under subsection (1)(b) and (c) the Commission must ensure, to the extent possible, that there is consistency and equity in relation to the variation of awards.
(5) A State Wage order takes effect on 1 July in the year it is made and is applicable in respect of an employee or apprentice on and from the commencement of the first pay period of the employee or apprentice on or after that date.
(6) A State Wage order in effect under this section when a subsequent order is made under subsection (1) ceases to apply in respect of an employee or apprentice on the day on which the subsequent order commences to apply in respect of the employee or apprentice.
(7) A State Wage order must not be added to or varied.
(8) Nothing in subsection (7) affects the Commission’s powers under section 27(1)(m).
(1) For the purposes of section 50A(1)(a)(ii), the Commission may —
(a) set a minimum weekly rate of pay in relation to apprentices generally; or
(b) subject to subsections (2) and (3), set a minimum weekly rate of pay in relation to apprentices who belong to particular classes of apprentice; or
(c) do a combination of the things authorised by paragraphs (a) and (b).
(2) The Commission may set a minimum weekly rate of pay in relation to apprentices who have reached 21 years of age that is different from a rate or rates for apprentices who are under 21 years of age.
(3) The Commission must ensure that at any particular time there is applicable in relation to each class of apprentice —
(a) a minimum weekly rate of pay set in respect of that class; or
(b) the minimum weekly rate of pay in relation to apprentices generally.
(4) In setting a minimum weekly rate of pay in relation to apprentices generally or in relation to apprentices who belong to a particular class of apprentice, the Commission may use such means as in its opinion are appropriate including, but not limited to —
(a) setting the rate in figures; or
(b) setting the rate as a proportion of —
(i) the minimum weekly rate of pay referred to in section 50A(1)(a)(i); or
(ii) any award or other wages instrument;
or
(c) adopting some or all of the provisions of any award or other wages instrument; or
(d) setting out any other method for the calculation or assessment of the rate.
(1) Subject to this Act, the Commission may in respect of a public authority and its employees, on application by the Minister, UnionsWA or an organisation with sufficient interest in the matter —
(a) make a General Order or General Orders with respect to one or more of the following —
(i) suspension from duty in employment; and
(ii) discipline in employment; and
(iii) dismissal from employment; and
(iv) termination of employment,
and with respect to any related matter; and
(b) add to, vary or rescind any General Order so made.
(2) A General Order referred to in subsection (1) may be made so as to apply to —
(a) public authorities and their employees generally;
(b) a specified public authority or specified public authorities and its or their employees;
(c) public authorities and their employees bound by a specified award or specified awards;
(d) a specified class of employees employed in a public authority or public authorities.
(3) In subsection (2)
specified means specified in the General Order.(4) A General Order in relation to a matter referred to in subsection (1)(a) must not be made so as to apply to —
(a) any employee whose conditions of employment may not be determined by the Commission; or
(b) any employee in relation to whom —
(i) there is provision, however expressed, by or under any other Act for or in relation to that matter; and
(ii) there is provision by or under that other Act for an appeal in that matter;
or
(c) any member of the academic staff of a post‑secondary education institution.
(5) A General Order referred to in subsection (1) must not be made under subsection (2)(c) so as to apply to any employee covered by an award where an organisation that is a party to that award does not consent to the General Order being so made.
(1) Except as provided in section 50A, the Commission does not have power under this Division to make a General Order setting a minimum condition in relation to a matter if the matter is the subject of a minimum condition of employment as defined in the MCE Act.
(2) Nothing in subsection (1) prevents the Commission from making a General Order under this Division in relation to a matter that is the subject of a minimum condition of employment as defined in the MCE Act if the General Order is more favourable to employees than the minimum condition of employment.
(1) The Commission must ensure that notice of each initial hearing to be conducted for the purposes of making a General Order under this Division is —
(a) given by written notice to UnionsWA, the Chamber, the Minister, and any other person the Commission is of the opinion may be of assistance; and
(b) published in the required manner and in any other manner the Commission thinks fit.
(2) Subsection (1) does not apply when the Commission is exercising its jurisdiction under section 51A.
The Commission must not make a General Order under this Division until it has afforded —
(a) each person given notice under section 51BA(1)(a); and
(b) any other employer, employee, or other person permitted by the Commission to be heard,
an opportunity to be heard in relation to the matter.
The Chief Commissioner may direct a commissioner to deal with any conciliation or interlocutory or procedural matter arising during the determination of a General Order under this Division.
When the Commission makes a General Order under this Division which affects awards and industrial agreements, or awards or industrial agreements, in force under this Act, the Commission may, in respect of each award or industrial agreement so affected, direct the Registrar to prepare and publish in the required manner the provisions of that award or industrial agreement resulting from the operation of that General Order.
The Registrar must publish in the required manner any General Order made under this Division.
In this Division —
(1) A reference in section 51BH to a person conducting a business or undertaking includes a reference to the following —
(a) a person conducting the business or undertaking —
(i) whether alone or with others; and
(ii) whether or not for profit or gain;
(b) a partnership, or an unincorporated association, conducting the business or undertaking;
(c) in the case of a partnership (other than an incorporated partnership) referred to in paragraph (b) — each partner in the partnership.
(2) A reference in section 51BH to a person conducting a business or undertaking does not include a reference to the following —
(a) an individual engaged solely as a worker in the business or undertaking;
(b) in the case of a business or undertaking conducted by a local government or a regional local government — a member of the council of the local government or regional local government;
(c) a volunteer association;
(d) a person of a prescribed class.
(3) In subsection (2)(c) —
(1A) In this section —
(a) as an employee who performs the work for the purpose of the business of the individual’s employer; or
(b) as an individual who performs the work in the textile, clothing or footwear industry under a contract for the provision of services.
(1) A person is a
worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as any of the following —(a) an employee;
(b) a contractor or subcontractor;
(c) an employee of a contractor or subcontractor;
(d) an employee of a labour hire agency who has been assigned to work in the person’s business or undertaking;
(e) an outworker;
(f) an apprentice or trainee;
(g) a student gaining work experience;
(h) a volunteer;
(i) a person of a prescribed class.
(2) A police officer is —
(a) a worker of WA Police; and
(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.
(3) A person conducting the business or undertaking referred to in subsection (1) is also a
worker if the person is an individual who carries out work in that business or undertaking.
(1) A worker is
bullied at work if, while the worker is at work —(a) a person, whether as an individual or as part of a group of individuals, repeatedly behaves unreasonably towards —
(i) the worker; or
(ii) a group of workers of which the worker is a member;
and
(b) that behaviour creates a risk to the health or safety of the worker.
(2) Subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(1) A worker who reasonably believes that the worker has been bullied at work may make an application (a
stop bullying application ) to the Commission for a stop bullying order.(2) The
Work Health and Safety Act 2020 section 115 does not apply in relation to a stop bullying application.
(1) The Commission must start to deal with a stop bullying application within 14 days after the application is made.
Note for this subsection:
See Part II Division 2 for the Commission’s general jurisdiction and powers in relation to a stop bullying application.
(2) Section 44 does not apply to a stop bullying application.
(3) Section 48A(2) or any other written law providing for the resolution of a grievance or dispute by workers does not limit the Commission’s power to deal with a stop bullying application.
The Commission may dismiss a stop bullying application if the Commission considers that the application might involve matters that relate to a police officer performing a function in circumstances in which —
(a) a covert operation is undertaken by WA Police for the purpose of obtaining information about criminal activity; and
(b) unless the performance of the function is secret or confidential, it would be likely that —
(i) the effectiveness of the performance of the function is reduced; or
(ii) a person is exposed to the danger of physical harm arising from the actions of another person.
(1) This section applies if —
(a) a worker makes a stop bullying application; and
(b) the Commission is satisfied that —
(i) a person bullied the worker at work; and
(ii) there is a risk the person will continue to do so.
(2) The Commission may make an order (a
stop bullying order ) it considers appropriate to prevent the person bullying the worker at work.(3) Despite subsection (2), the Commission cannot make an order requiring the payment of compensation to the worker.
(1) In considering the terms of a stop bullying order under section 51BM(2) in relation to the bullying of a worker, the Commission must, to the extent the Commission is aware of the following matters, take them into account —
(a) the final or interim outcomes of any investigation into the bullying that is being, or has been, undertaken by another person or body;
(b) any procedure available to the worker to resolve grievances or disputes;
(c) the final or interim outcomes arising out of any procedure referred to in paragraph (b) in relation to the bullying.
(2) The Commission may also take into account any other matter the Commission considers relevant.
(1) A person to whom a stop bullying order applies must comply with the order.
(2) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E.
(1) This section applies if, on an application under section 83E, the industrial magistrate’s court determines that a person contravened a stop bullying order made in relation to the bullying of a worker.
(2) The court may make 1 or more of the following orders —
(a) an order that the person pay the worker compensation for loss or injury suffered as a result of the contravention;
(b) an order that the person do a thing or cease an activity specified in the stop bullying order;
(c) any other order the court considers appropriate.
(3) The industrial magistrate’s court may make an order under this section in addition to imposing a penalty, or making another order, under section 83E.
(4) A person must comply with an order made against the person under subsection (2).
Penalty for this subsection:
(a) a fine of $13 000;
(b) a daily penalty of a fine of $1 000 for each day or part of a day during which the offence continues.
(1) A person (the
first person )sexually harasses another person (thesecond person ) if the first person, whether as an individual or as part of a group of individuals —(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the second person in circumstances a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the second person would be offended, humiliated or intimidated; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the second person in circumstances a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the second person would be offended, humiliated or intimidated.
(2) In subsection (1)(b) —
(a) making to, or in the presence of, the second person or another person a statement of a sexual nature concerning the second person, whether by visual, oral, written or electronic communication; or
(b) publishing a statement of a sexual nature concerning the second person on the Internet or in any other form of communication.
(1) A person must not sexually harass another person (the
person ) in connection with the person —(a) being a worker; or
(b) seeking to become a worker in a particular business or undertaking.
(2) Sexual harassment that happens in connection with the circumstances in subsection (1) is sexual harassment
in connection with work .(3) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E.
(1) In this section —
(a) employs an employee; or
(b) engages another person as an agent.
(2) If an employee or agent, in connection with the employee’s employment or with the agent’s duties, sexually harasses a person in connection with work, this Act applies in relation to the principal of the employee or agent as if the principal had also sexually harassed that person.
(3) Subsection (2) does not apply if the principal proves that the principal took all reasonable steps to prevent the employee or agent doing acts that would contravene section 51BR.
(4) Subsection (2) does not limit section 83E(1A) or (1B).
(1) If a person (the
aggrieved person ) alleges they have been sexually harassed in connection with work by 1 or more other persons, the aggrieved person may do either or both of the following —(a) make an application to the Commission for a stop sexual harassment order (a
stop sexual harassment application );(b) refer the matter to the Commission under section 29 (a
sexual harassment referral ).
Note for this subsection:
See section 51BZD for the restriction on also commencing proceedings under section 83E in relation to a contravention of section 51BR(1), or under anti‑discrimination legislation as defined in that section, in relation to the same allegation of sexual harassment in connection with work.
(2) Two or more aggrieved persons may act jointly under subsection (1) in relation to the same or a related allegation of sexual harassment in connection with work.
(3) The
Work Health and Safety Act 2020 section 115 does not apply in relation to a stop sexual harassment application.(4) Subsection (3) applies whether or not the aggrieved person has also made a sexual harassment referral in relation to the same or a related allegation of sexual harassment in connection with work.
The Commission may dismiss a sexual harassment proceeding commenced more than 24 months after an alleged instance, or the last alleged instance, of sexual harassment in connection with work that is the subject of the proceeding.
(1) The Commission must start to deal with a stop sexual harassment application within 14 days after the application is made.
Note for this subsection:
See Part II Division 2 for the Commission’s general jurisdiction and powers in relation to a sexual harassment referral.
(2) Section 44 does not apply to a sexual harassment proceeding.
(3) Section 48A(2) or any other written law providing for the resolution of a grievance or dispute by workers does not limit the Commission’s power to deal with a sexual harassment proceeding.
The Commission may dismiss a stop sexual harassment application if the Commission considers that the application might involve matters that relate to a police officer performing a function in circumstances in which —
(a) a covert operation is undertaken by WA Police for the purpose of obtaining information about criminal activity; and
(b) unless the performance of the function is secret or confidential, it would be likely that —
(i) the effectiveness of the performance of the function is reduced; or
(ii) a person is exposed to the danger of physical harm arising from the actions of another person.
(1) This section applies if —
(a) a person (the
aggrieved person ) makes a stop sexual harassment application; and(b) the Commission is satisfied that —
(i) a person (the
respondent ) sexually harassed the aggrieved person in connection with work; and(ii) there is a risk that the respondent will continue to do so.
(2) The Commission may make an order (a
stop sexual harassment order ) it considers appropriate to prevent the respondent sexually harassing the aggrieved person in connection with work.(3) Despite subsection (2), the Commission cannot make an order requiring the payment of compensation to the aggrieved person.
(1) In considering the terms of a stop sexual harassment order under section 51BX(2) in relation to the sexual harassment of a person in connection with work, the Commission must, to the extent the Commission is aware of the following matters, take them into account —
(a) the final or interim outcomes of any investigation into the sexual harassment that is being, or has been, undertaken by another person or body;
(b) any procedure available to the person to resolve grievances or disputes;
(c) the final or interim outcomes arising out of a procedure referred to in paragraph (b) in relation to the sexual harassment.
(2) The Commission may also take into account any other matters the Commission considers relevant.
(1) This section applies if —
(a) a referral (including a sexual harassment referral) has been made to the Commission under section 29 in relation to an allegation that a person (the
respondent ) sexually harassed another person (theaggrieved person ) in connection with work; and(b) on the referral, the Commission determines the respondent sexually harassed the aggrieved person in connection with work.
(2) The Commission may make 1 or more of the following orders —
(a) an order that the respondent or another person pay compensation to the aggrieved person for loss or injury the aggrieved person suffered because of the sexual harassment;
(b) an order that the respondent or another person pay an amount to an aggrieved person for remuneration lost, or likely to have been lost, by the aggrieved person because of the sexual harassment;
(c) an order requiring the respondent or another person to do a specified thing or cease a specified activity to redress loss or injury suffered by the aggrieved person because of the sexual harassment;
(d) an order the Commission considers appropriate to prevent any future sexual harassment of the aggrieved person in connection with work by the respondent or another person;
(e) any other order the Commission thinks appropriate.
(3) The Commission may make either or both of the following declarations —
(a) a declaration that the respondent sexually harassed the aggrieved person in connection with work;
(b) a declaration that the respondent sexually harassed the aggrieved person in connection with work because of the operation of section 51BS.
(4) In enquiring into and dealing with a sexual harassment referral, the Commission may make a declaration that it would be inappropriate for any further action to be taken in the matter.
(1) A person to whom a stop sexual harassment order or an order made under section 51BZ(2) applies must comply with the order.
(2) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E.
(1) This section applies if, on an application under section 83E, the industrial magistrate’s court determines that a person (the
first person ) contravened —(a) a stop sexual harassment order; or
(b) an order made under section 51BZ(2).
(2) The industrial magistrate’s court may make 1 or more of the following orders —
(a) an order that the first person pay compensation to a person (the
second person ) for loss or injury the second person suffered in relation to the contravention of the order;(b) an order that the first person do a thing or cease an activity specified in the order contravened;
(c) any other order the court considers appropriate.
(3) The industrial magistrate’s court may make an order under this section in addition to imposing a penalty, or making another order, under section 83E.
(4) A person to whom an order made under subsection (2) applies must comply with the order.
Penalty for this subsection:
(a) a fine of $13 000;
(b) a daily penalty of a fine of $1 000 for each day or part of a day during which the offence continues.
(1) This section applies if —
(a) a person or organisation makes an application under section 83E to enforce a contravention of section 51BR(1) as a civil penalty provision; and
(b) on the application, the industrial magistrate’s court determines that a person (the
respondent ) sexually harassed another person (theaggrieved person ) in connection with work.
Note for this subsection:
See section 51BZD for the restriction on also commencing proceedings under section 29 in relation to a contravention of section 51BR(1), or under anti‑discrimination legislation as defined in that section, in relation to the same allegation of sexual harassment in connection with work.
(2) In addition to imposing a penalty or making an order under section 83E, the court may make 1 or more of the following orders —
(a) an order that the respondent or another person pay compensation to the aggrieved person for loss or injury suffered because of the contravention;
(b) an order that the respondent or another person pay an amount to the aggrieved person for remuneration lost, or likely to have been lost, by the aggrieved person because of the contravention;
(c) an order requiring the respondent or another person to do a specified thing or cease a specified activity to redress loss or injury suffered by the aggrieved person because of the contravention;
(d) an order the industrial magistrate’s court considers appropriate to prevent any future contravention in relation to the aggrieved person by the respondent or another person;
(e) any other order the court considers appropriate.
(3) A person to whom an order made under subsection (2) applies must comply with the order.
Penalty for this subsection:
(a) a fine of $13 000;
(b) a daily penalty of a fine of $1 000 for each day or part of a day during which the offence continues.
(1) In this section —
(a) the
Anti‑Discrimination Act 1977 (New South Wales);(b) the
Anti‑Discrimination Act 1991 (Queensland);(c) the
Anti‑Discrimination Act 1992 (Northern Territory);(d) the
Anti‑Discrimination Act 1998 (Tasmania);(e) the
Australian Human Rights Commission Act 1986 (Commonwealth);(f) the
Discrimination Act 1991 (Australian Capital Territory);(g) the
Equal Opportunity Act 1984 ;(h) the
Equal Opportunity Act 1984 (South Australia);(i) the
Equal Opportunity Act 2010 (Victoria);(j) the
Fair Work Act 2009 (Commonwealth);(k) the
Sex Discrimination Act 1984 (Commonwealth);
(2) A referral cannot be made under section 29 in relation to a particular allegation —
(a) if the allegation is the subject of an application made under section 83E to enforce a contravention of section 51BR(1); and
(b) unless the application is withdrawn or fails for want of jurisdiction.
(3) An application cannot be made under section 83E to enforce a contravention of section 51BR(1) as a civil penalty provision in relation to a particular allegation —
(a) if a referral has been made under section 29 in relation to the allegation; and
(b) unless the referral is withdrawn or fails for want of jurisdiction.
(4) A referral under section 29, or an application under section 83E to enforce a contravention of section 51BR(1) as a civil penalty provision, cannot be made in relation to a particular allegation —
(a) if a complaint or application has been made under any anti‑discrimination legislation in relation to the allegation; and
(b) unless the complaint or application is withdrawn or fails for want of jurisdiction.
(5) This section applies despite any other provision of this Act.
(1) This Subdivision does not exclude or limit the operation of other written laws or a law of the Commonwealth, another State or a Territory that is capable of operating concurrently with this Subdivision, including a law that —
(a) makes an act or omission an offence or subject to a civil penalty and that (or any similar) act or omission constitutes a contravention of a civil penalty provision in this Subdivision; or
(b) allows for an application to be made to a person, court or body for an order or other direction (however described) —
(i) to prevent a person from being sexually harassed in connection with work; or
(ii) to deal with a dispute relating to an allegation that a person has been sexually harassed in connection with work (whether or not by arbitration).
(2) For the purposes of subsection (1), it is irrelevant whether —
(a) sexual harassment in connection with work has a different meaning for the purposes of the law to the meaning it has for the purposes of this Act; or
(b) the law describes the conduct prevented, or to which the dispute relates, as sexual harassment in connection with work.
(1) In this Division —
(2) If a term used in this Act is given a meaning in the MCE Act, it has the same meaning in this Division.
A
(a) the employer either —
(i) failed to respond to the employee’s request as required under the MCE Act section 39H; or
(ii) refused the employee’s request;
and
(b) the employer and employee have made reasonable attempts to resolve the dispute under the MCE Act section 39K.
(1) This section applies if a flexible working arrangement dispute has been referred to the Commission under section 29.
(2) An organisation, association or employer cannot make an application to the Commission under section 44(7)(a)(i) in relation to the flexible working arrangement dispute unless the referral under section 29 is withdrawn or fails for want of jurisdiction.
Note for this section:
See section 51HC which restricts actions being commenced before the Commission and the industrial magistrate’s court in relation to the same flexible working arrangement request.
(1) If the Commission decides, by arbitration, an industrial matter relating to a dispute between an employer and an employee about a flexible working arrangement request, the Commission may declare —
(a) if the employer has not responded to the flexible working arrangement request — that the employer refused the request;
(b) if the employer refused the flexible working arrangement request — that the grounds on which the employer refused the request are, or are not, reasonable business grounds.
(2) The employer and employee are bound by a declaration made under subsection (1).
(1) This section applies if the Commission decides, by arbitration, an industrial matter relating to a dispute between an employer and an employee about a flexible working arrangement request.
(2) If the Commission is satisfied that the employer did not respond, or did not respond adequately, to the employee’s flexible working arrangement request, the Commission may order the employer to take specified action, having regard to the matters in the MCE Act sections 39H to 39J.
(3) If the Commission is satisfied there is no reasonable prospect of the dispute being resolved otherwise, the Commission may —
(a) order the employer to grant the flexible working arrangement request; or
(b) order the employer to make a specified change in the employee’s working arrangements, other than the change requested in the flexible working arrangement request, to accommodate, to any extent, the circumstances mentioned in the MCE Act section 39F(2).
(4) In making an order under subsection (3), the Commission must take into account fairness between the employer and the employee.
(5) An order made against an employer under subsection (2) or (3) is a
flexible working arrangement order .
(1) An employer must comply with a flexible working arrangement order made against the employer.
(2) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E.
(1) If, on an application under section 83E, the industrial magistrate’s court determines that an employer has contravened a flexible working arrangement order, the court may make either or both of the following orders —
(a) that the employer pay compensation to the employee for loss or injury suffered as a result of the contravention;
(b) that the employer do a specified thing or cease a specified activity.
(2) The industrial magistrate’s court may make an order under subsection (1) in addition to imposing a penalty, or making another order, under section 83E.
(1) This Subdivision does not limit the MCE Act section 7 as it applies to enforcing a minimum condition of employment that relates to an employee’s flexible working arrangement request.
Note for this subsection:
The MCE Act section 7 provides for a minimum condition of employment to be enforced under section 83 of this Act as an entitlement provision.
(2) In proceedings under section 83 to enforce the minimum employment condition, the onus is on the employer to prove that the employer’s refusal of an employee’s flexible working arrangement request complied with the MCE Act Part 4A.
(3) This section is subject to section 51HC.
(1) A person or organisation cannot apply to the industrial magistrate’s court under section 83 to enforce a minimum condition of employment in relation to a flexible working arrangement request —
(a) if proceedings for a flexible working arrangement dispute related to the same request have been commenced in the Commission under section 29 or 44; and
(b) unless the proceedings before the Commission are withdrawn or fail for want of jurisdiction.
(2) A person or organisation cannot refer a flexible working arrangement dispute to the Commission under section 29, or make an application relating to the dispute under section 44(7)(a)(i) —
(a) if proceedings to enforce a minimum condition of employment in relation to the flexible working arrangement request that is the subject of the dispute have been commenced in the industrial magistrate’s court under section 83; and
(b) unless the proceedings before the industrial magistrate’s court are withdrawn or fail for want of jurisdiction.
Note for this section:
See section 51E which restricts action being commenced before the Commission under section 44 in relation to a flexible working arrangement dispute that has been referred to the Commission under section 29.
(1) The Commission in Court Session may, by way of order, set a percentage that is higher than 25% to be the prescribed percentage for the purposes of section 11 of the MCE Act.
(2) An order under subsection (1) can only be made on an application made —
(a) by UnionsWA, the Chamber or the Minister; and
(b) at least 12 months after the determination of the most recent application for an order under subsection (1).
The Commission must ensure that notice of each initial hearing to be conducted for the purposes of making or reviewing an order under section 51I is given —
(a) by giving written notice to UnionsWA, the Chamber, the Minister and each organisation; and
(b) by publication in the required manner.
The Commission must not make an order under section 51I until it has afforded UnionsWA, the Chamber, the Minister and any other person permitted by the Commission to be heard, an opportunity to be heard in relation to the matter.
An order made under section 51I must not —
(a) provide for a penalty rate or allowance of any kind; or
(b) provide for a loading of any kind other than that referred to in section 51I; or
(c) be made in respect of preference of employment at the time of, or during employment by reason of being or not being a member of an organisation.
The Commission must direct the Registrar to prepare and publish in the
[(1) deleted] (2) An order made under section 51I cannot be added to, varied or rescinded except in accordance with section 51I(2).
(3) Nothing in subsection (2) affects the Commission’s powers under section 27(1)(m).
(1) In this section —
(2) On an application under section 29(1)(b), the Commission must make an order (an
equal remuneration order ) to ensure that an employee receives equal remuneration if the Commission is satisfied that the employee does not receive that remuneration.(3) The equal remuneration order may relate to any matter the Commission considers appropriate, including (but not limited to) the following —
(a) reclassifying work;
(b) establishing new career paths;
(c) implementing changes to incremental pay scales;
(d) providing for increases in remuneration rates, including —
(i) minimum rates of pay in awards, industrial agreements and enterprise orders; and
(ii) new allowances;
(e) reassessing definitions and descriptions of work to properly reflect the value of the work.
(4) The Commission must apply the statement of principles, with any necessary modifications, in —
(a) determining whether an employee receives equal remuneration; and
(b) deciding the terms of an equal remuneration order.
(5) For the purposes of subsection (3), this Division prevails over the statement of principles to the extent of any inconsistency.
(6) An equal remuneration order may introduce measures to ensure equal remuneration —
(a) immediately; or
(b) progressively, in stages specified in the order.
(1) An employer must not reduce an employee’s remuneration because an equal remuneration order, or an application for the order, has been made in relation to the employee.
(2) The purported reduction is of no effect.
(1) Except as provided in subsection (3), this Division does not limit a right a person might otherwise have to a remedy (an
alternative remedy ) to secure equal remuneration under another provision of this Act or another enactment.(2) A person who has applied for an alternative remedy in relation to an employee cannot apply for an equal remuneration order in relation to the employee unless the proceedings for the alternative remedy have been withdrawn or determined.
(3) A person who has applied for an equal remuneration order in relation to an employee cannot commence proceedings for an alternative remedy in relation to the employee unless the application for the equal remuneration order has been withdrawn or determined.
(4) Subsection (3) does not prevent an organisation from commencing proceedings —
(a) that relate, in part or as a whole, to the securing of equal remuneration for the employee; and
(b) that comprise any of the following —
(i) an application to vary an award under section 40;
(ii) an application for the registration of an industrial agreement under section 41;
(iii) an initiation of bargaining under section 42(1);
(iv) an application under section 42G for an order regarding provisions of an industrial agreement;
(v) an application under section 42I for an enterprise order.
(1) In this section —
(a) the registration of an industrial agreement under section 41; or
(b) the making of an award under this Act; or
(c) the making of an order under this Act.
(2) The Commission must not take remuneration‑related action that —
(a) prohibits or restricts the making of an application for an equal remuneration order; or
(b) is inconsistent with, or prohibits or restricts the application of, an equal remuneration order.
In this Division, unless a contrary intention appears —
(1) In this section —
(a) rules relating to the qualifications of persons for membership; and
(b) rules prescribing the offices that exist within the branch.
(2) A Western Australian branch of a federal organisation is a
counterpart federal body in relation to a State organisation if the rules of the branch are, or in accordance with section 71(2) or (4) are taken to be, the same as the rules of the State organisation relating to the corresponding subject matter.(3) A federal organisation is a
counterpart federal body of a State organisation even though the body does not have or comprise a Western Australian branch of the federal organisation if the Commission in Court Session is of the opinion that the federal organisation is a counterpart federal body in relation to a State organisation.(4) The Commission in Court Session may form the opinion referred to in subsection (3) only if —
(a) a substantial number of members of the State organisation are —
(i) members or eligible to be members of the federal organisation; or
(ii) engaged in the same work, in aspects of the same work or in similar work as members of the federal organisation; or
(iii) employed in the same or similar work by employers engaged in the same industry as members of the federal organisation; or
(iv) engaged in work or in industries for which there is a community of interest between the federal organisation and the State organisation;
or
(b) there is an agreement in force under the FW (Registered Organisations) Act section 151 between the federal organisation and the State organisation.
(5) The Commission in Court Session may form the opinion referred to in subsection (3) despite the fact that a person who is eligible to be a member of the State organisation is, by reason of being a member of a particular class of persons, ineligible to be a member of that State organisation’s counterpart federal body.
(6) The Commission in Court Session may form the opinion referred to in subsection (3) despite the fact that a person who is eligible to be a member of the counterpart federal body is, by reason of being a member of a particular class of persons, ineligible to be a member of the State organisation.
(7) A State organisation may apply to the Commission in Court Session for a declaration that, for the purposes of subsection (2) or (3), a Western Australian branch of a federal organisation, or a federal organisation, is a counterpart federal body in relation to the State organisation.
(1) An unregistered organisation consisting of not less than 200 employees associated for the purpose of protecting or furthering the interests of employees may be registered by authority of the Commission in Court Session.
(2) An unregistered organisation consisting of less than 200 employees may be registered by authority of the Commission in Court Session if it is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.
(3) For the purposes of subsection (1) or (2), it does not matter whether the organisation is incorporated or not.
(1) An unregistered organisation consisting of 2 or more employers who —
(a) have, in the aggregate throughout the 6 months immediately preceding the date of application for registration employed on an average, taken per month, not less than 200 employees; and
(b) are associated for the purpose of protecting or furthering the interests of those employers,
may be registered by authority of the Commission in Court Session.
(2) An unregistered organisation that does not comply with subsection (1)(a) may be registered by authority of the Commission in Court Session if it is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.
(3) For the purposes of subsection (1) or (2), it does not matter whether the organisation is incorporated or not.
(1) An organisation seeking registration under section 53 or 54 must lodge in the office of the Registrar —
(a) a list of the officers of the organisation with their addresses; and
(b) a copy of the rules of the organisation; and
(c) the approved form of application.
(2) When the organisation has complied with the requirements of subsection (1) the Registrar must publish in the required manner —
(a) a notice of the application; and
(b) a copy of such rules of the organisation as relate to the qualification of persons for membership of the organisation and, without limiting the generality of this paragraph, including any rule by which the area of the State within which the organisation operates, or intends to operate, is limited; and
(c) notice that any person who objects to the registration of the organisation and who, having given notice of that objection within the time and in the manner prescribed, satisfies the Commission in Court Session that the person has a sufficient interest in the matter, may appear and be heard in objection to the application.
(3) An application under this section must not be listed for hearing before the Commission in Court Session until after the expiration of 30 days from the day on which the matters referred to in subsection (2) are first published.
(4) Notwithstanding that an organisation complies with section 53(1) or 54(1) or that the Commission in Court Session is satisfied for the purposes of section 53(2) or 54(2), the Commission in Court Session must refuse an application by the organisation under this section unless it is satisfied that —
(a) the application has been authorised in accordance with the rules of the organisation; and
(b) reasonable steps have been taken to adequately inform the members —
(i) of the intention of the organisation to apply for registration; and
(ii) of the proposed rules of the organisation; and
(iii) that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar,
and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection; and
(c) in relation to the members of the organisation —
(i) less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or
(ii) a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules;
and
(d) in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons for the alteration to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and
(e) rules of the organisation relating to elections for office —
(i) provide that the election must be by secret ballot; and
(ii) conform with the requirements of section 56(1),
and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election.
(5) Notwithstanding that an organisation complies with section 53(1) or 54(1), the Commission in Court Session must refuse an application by the organisation under this section if a registered organisation whose rules relating to membership enable it to enrol as a member some or all of the persons eligible, pursuant to the rules of the first‑mentioned organisation, to be members of the first‑mentioned organisation unless the Commission in Court Session is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.
(1) The rules of an organisation —
(a) must provide for the conduct of every election to an office within the organisation (including the acceptance or the rejection of nominations) by a returning officer, not being the holder of any other office in, and not being an employee of, the organisation; and
(b) must provide that, if the returning officer conducting such election finds a nomination to be defective, the officer must before rejecting the nomination, notify the person concerned of the defect, and where it is practicable to do so, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than 7 days after the person is notified; and
(c) must provide for the election of the holder of each office within the organisation, such election to be either by —
(i) a direct voting system; or
(ii) a collegiate electoral system being, in the case of an office the duties of which are of a full‑time nature, a one‑tier collegiate electoral system;
and
(d) must, in relation to any election for office —
(i) provide that the election must be by secret ballot; and
(ii) make provision for —
(I) absent voting; and
(II) the manner in which persons may become candidates for election; and
(III) the appointment, conduct and duties of returning officers; and
(IV) the conduct of the ballot; and
(V) the appointment, conduct, and duties of scrutineers to represent the candidates at the ballot; and
(VI) the declaration of the result of the ballot;
and
(iii) ensure, as far as practicable, that no irregularity can occur in connection with the election;
and
(e) must not permit a person to be elected to hold an office within the organisation for a period exceeding 4 years without being re‑elected; and
(f) must not permit a person to be elected to fill a casual vacancy in an office for a period exceeding the unexpired portion of the term of the person who has vacated the office.
(2) Where the rules of an organisation which was registered immediately prior to the coming into operation of this section do not, in the opinion of the Registrar, conform with the requirements of subsection (1), the Registrar may, after inviting the organisation to consult with the Registrar on the matter, allow the organisation such time as the Registrar determines within which to bring them into conformity with those requirements or determine such alterations of the rules as will in the Registrar’s opinion bring them into conformity with those requirements.
(3) The Registrar must register the alterations determined by the Registrar, or made by the organisation to the Registrar’s satisfaction, pursuant to subsection (2) and the rules are taken to be altered accordingly.
(1) This section has effect notwithstanding any other provision of this Act.
(2) Subject to subsection (3), rules made by an organisation under this subsection may provide for the filling of a casual vacancy in such manner as is provided in those rules.
(3) Rules made under subsection (2) must include provision to the effect that a casual vacancy may be filled in a manner provided in those rules —
(a) where the original term did not exceed 12 months — for the unexpired portion of the original term; or
(b) where the original term exceeded 12 months — for so much of the unexpired portion of the original term as does not exceed three‑quarters of the original term.
(4) In subsection (3)
original term , in relation to a casual vacancy in an office, means the period in respect of which the last person to have been elected to that office to fill a vacancy other than a casual vacancy was elected.(5) Where a vacancy in an office is filled in a manner provided in rules made under subsection (2), the person so filling the vacancy is taken for the purposes of this Act (other than this section) and the provisions of the rules of the organisation (other than the first‑mentioned rules), to have been elected to that office in accordance with those provisions.
(1) Every election by a direct voting system for an office in an organisation must be by secret postal ballot.
(2) The regulations may make provision for and in relation to the conduct of an election in accordance with the requirements of this section.
(3) Where the rules of an organisation as in force at the date of the coming into operation of this section provide for an election or elections to which this section applies to be by a secret ballot other than a secret postal ballot, the Registrar may, upon application by the organisation in accordance with the regulations, by instrument in writing under the Registrar’s hand, exempt the organisation in respect of an election from the application of this section if the Registrar is satisfied that the conduct of the election in accordance with those rules —
(a) is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and
(b) will afford members entitled to vote an adequate opportunity of voting without intimidation.
(4) This section, and the regulations made for the purposes of this section, have effect notwithstanding anything contained in the rules of an organisation.
(5) This section does not apply to an election any step in which was taken, in accordance with the rules of the organisation, before the date of the coming into operation of this section.
(1) Where, under this Act, the Registrar is authorised by the Commission in Court Session to register an organisation the Registrar must so register it by registering —
(a) its name; and
(b) its rules; and
(c) the address of the office where the business of the organisation is conducted,
and give to the organisation a certificate in the approved form which until cancelled is, subject to this Act, conclusive evidence of the registration of the organisation under this Act and of the organisation having complied with the prescribed conditions that entitle it to be so registered.
(2) Where the Commission in Court Session authorises the Registrar to register an organisation it may do so —
(a) unconditionally; or
(b) subject to the compliance by the organisation with any direction given to it by the Commission in Court Session in dealing with the application by the organisation for registration.
(3) On an application for the registration of an organisation the agent or representative of the applicant may request the Commission in Court Session to authorise the rules of the organisation to be registered in terms that exclude certain persons or classes of persons from the description of persons who would have been eligible for enrolment as members of the organisation under the rules as lodged under section 55(1)(b) and, if so requested, the Commission in Court Session may authorise the Registrar to register the rules in those terms.
(1) The Commission in Court Session must not authorise the registration of an organisation under a name identical with that by which any other organisation has been registered or which by reason of its resemblance to the name of another organisation or body or for any other reason is, in the opinion of the Commission in Court Session, likely to deceive or mislead any person.
(2) The registered name must clearly indicate whether the organisation is an organisation of employers or an organisation of employees.
(3) This section does not prevent the Commission in Court Session from authorising an organisation to which a certificate has been issued under section 71 to change its name so as to correspond with the name of its counterpart federal body.
(1) An organisation is, upon and during registration, for the purposes of this Act, a body corporate by the registered name, having perpetual succession and a common seal, but, subject to this Act, an organisation may at any time, with the consent of the Commission in Court Session, change its name.
(2) An organisation may sue and be sued and may purchase, take on lease, hold, sell, lease, mortgage, exchange, and otherwise own, possess, and deal with any real or personal property.
(3) The service on an organisation of any process, notice, or document of any kind may be effected by delivering it to the secretary or principal executive officer of the organisation or by leaving it at the office referred to in section 58 or by posting it to that office by certified mail addressed to the secretary of the organisation or in such other manner as may be prescribed.
Upon and after registration, the organisation and its members for the time being are subject to the jurisdiction of the Court and the Commission and to this Act; and, subject to this Act, all its members are bound by the rules of the organisation during the continuance of their membership.
(1) Upon and after the registration of rules in accordance with section 58(1), an alteration to those rules by the organisation concerned is not effective until the Registrar has given to the organisation a certificate that the alteration has been registered.
(2) The Registrar must not register any alteration to the rules of an organisation that relates to its name, qualifications of persons for membership, or a matter referred to in section 71(2) or (5) unless so authorised by the Commission in Court Session.
(3) Subject to section 71(8), the Registrar must not register an alteration to any rule unless, after consulting with the Chief Commissioner, the Registrar is satisfied that —
(a) the application has been authorised in accordance with the rules of the organisation; and
(b) reasonable steps have been taken to adequately inform the members —
(i) of the proposal for alteration and the reasons for the alteration; and
(ii) that the members or any of them may object to the proposed alteration by forwarding a written objection to the Registrar,
and, having regard to the structure of the organisation, and any other relevant circumstance, the members have been afforded a reasonable opportunity to object to the alteration; and
(c) less than 5% of the members of the organisation has objected to the proposed alteration or a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the proposed alteration.
(4) Sections 55, 56 and 58(3) apply, with such modifications as are necessary, to and in relation to an application by an organisation for alteration of a rule of a kind referred to in subsection (2).
(1) An organisation must keep the following records —
(a) a register of its members showing the name and residential address of each member and details of the status of each member in respect of the financial requirements for membership; and
(b) a list of the names, residential addresses, and occupations of the persons holding offices in the organisation; and
(c) accounting records that are in accordance with generally accepted accounting principles and truly record and explain the financial transactions and financial position of the organisation; and
(d) such other records as are prescribed.
(2) An organisation must file with the Registrar once in each year, at such time as is prescribed, a copy of the records required to be kept under subsection (1)(b) and a record of the number of members in the organisation, certified by statutory declaration by the Secretary or other prescribed officer of the organisation to be a correct statement of the information contained in the records.
(3) An organisation must file with the Registrar in such manner and within such time as is prescribed notification of changes in the holding of offices.
[(4),(5) deleted] (6) All documents filed with the Registrar pursuant to this section and section 65 must be made available for inspection at the office of the Registrar as prescribed.
(7) The register of members of an organisation must be made available by the organisation for inspection by such persons as are authorised by the Registrar, at such times as are appointed by the Registrar, at the office of the organisation.
(1) Where it appears to the Registrar that the register of members of an organisation is not being maintained in such a form and manner as to provide, for the purpose of the conduct of a ballot or election pursuant to this Act, a convenient form of the accurate particulars of the membership of the organisation, the Registrar may direct the organisation to make such rectifications in the register and such changes in the form or manner in which the register is being maintained, as the Registrar considers necessary for that purpose.
(2) An organisation to which a direction is given under subsection (1) must comply with the direction.
(3) A certificate from the Registrar stating that a person specified in the certificate was at a time so specified a member or officer of an organisation so specified is, in all courts and proceedings, evidence of the facts so stated.
The secretary of each organisation must —
(a) cause the accounting records of that organisation to be properly audited by a person registered as an auditor under the
Corporations Act 2001 (Commonwealth) (theauditor ) within 6 calendar months after the end of each financial year of that organisation; and(b) within one calendar month after the completion of the audit referred to in paragraph (a), deliver to the Registrar —
(i) a balance sheet of the assets and liabilities of that organisation audited by the auditor and made up to the date of the closing of the accounts of that organisation in respect of the financial year concerned; and
(ii) a statement of the receipts and expenditure of that organisation during the financial year concerned audited by the auditor; and
(iii) a cash flow statement of the organisation for the financial year concerned audited by the auditor.
For the purposes of auditing the accounting records of an organisation or of performing any function conferred on the auditor under this Act, the auditor of an organisation is entitled —
(a) to have full and free access at all reasonable times to all records or documents relating to the receipt or expenditure of moneys by the organisation, or the acquisition, use or disposal of assets of the organisation, or the incurring of liabilities by the organisation; and
(b) to require any officer or employee of the organisation to provide the auditor with any information or explanation that the auditor wants.
(1) The following persons may apply to the Chief Commissioner for an order or direction under this section —
(a) a person who is or has been a member of an organisation; or
(b) a person who has applied for and not been admitted to membership in an organisation; or
(c) the Registrar acting on the complaint of or on behalf of a person referred to in paragraph (a) or of the Registrar’s own motion.
(2) On an application made pursuant to this section, the Chief Commissioner may make such order or give such directions relating to the rules of the organisation, their observance or non‑observance or the manner of their observance, either generally or in the particular case, as the Chief Commissioner considers to be appropriate and without limiting the generality of this subsection may —
(a) disallow any rule which, in the opinion of the Chief Commissioner —
(i) is contrary to or inconsistent with any Act or law, or an award, industrial agreement, order or direction made, registered or given under this Act; or
(ii) is tyrannical or oppressive; or
(iii) prevents or hinders any member of the organisation from observing the law or the provisions of an award, industrial agreement, order or direction made, registered or given under this Act; or
(iv) imposes unreasonable conditions upon the membership of a member or upon an applicant for membership; or
(v) is inconsistent with the democratic control of the organisation by its members;
and
(b) instead of disallowing a rule under paragraph (a), direct the organisation to alter that rule within a specified time in such manner as the Chief Commissioner may direct; and
(c) disallow any rule which has not been altered by the organisation after a direction to do so pursuant to paragraph (b); and
(ca) where the Chief Commissioner disallows any rule under paragraph (a) or (c), give such directions as the Chief Commissioner considers necessary to remedy, rectify, reverse or alter or to validate or give effect to, anything that has been done in pursuance of the disallowed rule; and
(d) declare the true interpretation of any rule; and
(e) inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the Chief Commissioner considers necessary —
(i) to cure the irregularity including rectifying the register of members of the organisation; or
(ii) to remedy or alter any direct or indirect consequence of the irregularity;
and
(f) in connection with an inquiry under paragraph (e) —
(i) give such directions as the Chief Commissioner considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election;
(ii) order that any person named in the order must or must not, as the case may be, for such period as the Chief Commissioner considers reasonable in the circumstances and specifies in the order, act or continue to act in and be taken to hold an office to which the inquiry relates;
(iii) declare any act done in connection with the election to be void or validate any act so done.
[(3) deleted] (4) Any person to whom an order or direction given or made under this section applies must comply with that order or direction whether or not it is contrary to or inconsistent with any rule of the organisation concerned.
[(5) deleted] (6) A rule disallowed pursuant to subsection (2)(a) or (c) is void.
[(7),(8) deleted] (9) The power of the Chief Commissioner under subsection (2)(d) may, on a reference made under section 27(1)(t), be exercised by the Commission in Court Session.
(1) A council or other body, however designated, formed by and for the purpose of representing 2 or more organisations to the extent that they have industrial interests in common may, subject to this Act, be registered as an association under this Act.
(2) An association registered pursuant to subsection (1) may act on behalf of all employees eligible for membership of any of the organisations represented by the association in respect of a calling or industry in respect of which the association was formed.
(3) Subject to this section, the provisions of this Act relating to organisations, their rules, records, officers and members extend and apply, with such modifications as are necessary, to an association, its rules, records, officers and members respectively.
The Commission may, on its own motion or on the application of a person of a kind referred to in section 66(1), declare all or any of the functions of an office to be those of an office in an organisation.
(1) An election for an office in an organisation may be conducted pursuant to this section where the Registrar decides that a request that the election be so conducted has been duly made.
(2) A request is duly made if it is made in writing within the time prescribed —
(a) by an officer of an organisation on behalf of the organisation; or
(b) by a person authorised to make the request by and on behalf of not less than 1/20
th of the members of, or 250 of the members of the organisation, whichever is the lesser number.
(3) Where a request is made or purports to be made in accordance with this section, the Registrar must, after making such inquiries, if any, as the Registrar considers necessary, decide whether or not the request has been duly made.
(4) Where the Registrar decides that a request has been duly made, the Registrar must inform the organisation, and, where the request was made by a person referred to in subsection (2)(b), that person, accordingly, and make arrangements with the Electoral Commissioner appointed under the
Electoral Act 1907 for the conduct of the election by an officer holding office under that Act or by some other person authorised in writing by the Electoral Commissioner.(5) Notwithstanding anything contained in the rules of the organisation, the person conducting the election may take such action and give such directions as the person considers necessary in order —
(a) to ensure that no irregularities occur in or in connection with the election; or
(b) to rectify the register of members of the organisation; or
(c) to remedy procedural defects which appear to the person to exist in those rules.
(6) A person must not —
(a) refuse or fail to comply with a direction given in accordance with subsection (5); or
(b) obstruct or hinder —
(i) the person conducting an election under this section in the conduct of the election or the taking of any action in accordance with subsection (5); or
(ii) any other person in the carrying out of a direction given in accordance with subsection (5).
(7) An election conducted pursuant to this section is not invalid by reason only of an irregularity in the request in pursuance of which the election was conducted or by reason of a breach of the rules of the organisation involved in anything done or omitted, or in compliance with a direction given, in accordance with this section.
(8) The expense of any election conducted in accordance with this section must be borne by the State; and the Consolidated Account is to the necessary extent appropriated accordingly.
(9) The Secretary of the organisation must, within such time as the Registrar may require, lodge with the Registrar a copy of the register of members referred to in section 63 and that register must be open for inspection and extracts may be taken from it, at the office of the person conducting the election, by any member of the organisation or candidate at the election.
(10) In proceedings before the Commission or any court in connection with anything done or proposed to be done by reason of a request duly made in accordance with this section the copy register referred to in subsection (9) is evidence that the persons shown in the register as members of the organisation were, at the date on which that request was so made, members of the organisation.
(11) Where the Registrar decides that a request has not been duly made under this section the Registrar must inform the organisation and, where the request has been made by a person referred to in subsection (2)(b), that person, accordingly.
(12) The officer or person who made the request for the conduct of the election under this section may, within 7 days of the organisation or that person, as the case may be, being informed by the Registrar of the decision that the request has not been duly made, appeal to the Commission in Court Session in the manner prescribed against that decision.
(1) A person must not, without lawful authority or excuse, in or in connection with an election for an office —
(a) personate another person to secure a ballot paper to which the personator is not entitled, or personate another person for the purpose of voting; or
(b) destroy, deface, alter, take, or otherwise interfere with a nomination paper, ballot paper, or envelope; or
(c) put or deliver a ballot paper or other paper —
(i) into a ballot box or other ballot receptacle; or
(ii) into the post; or
(iii) to a person receiving ballot papers for the purposes of the election;
or
(d) record a vote which the person is not entitled to record; or
(e) record more than one vote; or
(f) forge or utter, knowing it to be forged, a nomination paper, ballot paper, or envelope; or
(g) supply a ballot paper; or
(h) obtain, or have in the person’s possession, a ballot paper; or
(i) destroy, take, open, or otherwise interfere with a ballot box.
(2) A person must not, in or in connection with an election for an office —
(a) threaten, offer or suggest violence, injury, punishment, damage, loss, disadvantage, or any form of intimidation for or on account of, or to induce —
(i) candidature or withdrawal of candidature; or
(ii) a vote or an omission to vote; or
(iii) support or opposition to a candidate; or
(iv) a promise of a vote, or an omission to vote, or of support for, or of opposition to a candidate;
or
(b) use, cause, inflict, or procure violence, punishment, damage, loss, disadvantage, or any form of intimidation for or on account of any such candidature, withdrawal, vote, omission, support, or opposition.
(3) A contravention of subsection (1) or (2) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.
[(1) deleted] (2) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if the rules of the organisation and the body —
(a) relate to the qualifications of persons for membership; and
(b) are, in the opinion of the Commission in Court Session, substantially the same.
(3) The Commission in Court Session may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is —
(a) eligible to be a member of the State organisation is, by reason of being a member of a particular class of persons, ineligible to be a member of that State organisation’s counterpart federal body; or
(b) eligible to be a member of the counterpart federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.
(4) The rules of a State organisation and a counterpart federal body described in section 52A(2) are taken to be the same if —
(a) the rules prescribe the offices existing in the body; and
(b) for every office in the organisation there is a corresponding office in the body.
(5) Where, after the coming into operation of this section —
(a) the rules of a State organisation are altered pursuant to section 62 to provide that each office in the State organisation may, from such time as the committee of management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation’s counterpart federal body, holds an office described in subsection (5A) in that body; and
(b) the committee of management of the State organisation decides and, in the prescribed manner notifies the Registrar accordingly, that from a date specified in the notification all offices in the State organisation will be filled in accordance with the rule referred to in paragraph (a),
the Registrar must issue the State organisation with a certificate which declares —
(c) that the provisions of this Act relating to elections for office within a State organisation do not, from the date referred to in paragraph (b), apply in relation to offices in that State organisation; and
(d) that, from that date, the persons holding office in the State organisation in accordance with the rule referred to in paragraph (a) are, for all purposes, the officers of the State organisation,
and the certificate has effect according to its tenor.
(5A) The office referred to in subsection (5)(a) is —
(a) in the case of a counterpart federal body referred to in section 52A(2) — the corresponding office in the body;
(b) in the case of a counterpart federal body referred to in section 52A(3) — an office that is specified in the rules of the State organisation for the purposes of this subsection and in relation to which the members of the State organisation are, under the rules of the counterpart federal body, entitled to —
(i) nominate a person to be the office holder; and
(ii) vote for a person to be the office holder.
(6) A State organisation referred to in section 52A(2) or (3) to which a certificate issued under this section applies may, notwithstanding any provision in its rules to the contrary, make an agreement with the branch or organisation that is the State organisation’s counterpart federal body, relating to the management and control of the funds or property, or both, of the State organisation.
(7) Where a memorandum of an agreement referred to in subsection (6) is —
(a) sealed with the respective seals of the State organisation and the other organisation concerned; and
(b) signed on behalf of the State organisation and the other organisation by the persons authorised under their respective rules to execute such an instrument; and
(c) lodged with the Registrar,
the Commission in Court Session may, if it is satisfied that the terms of the agreement are not detrimental to the interests of persons who are eligible to be members of the State organisation and of its counterpart federal body and will not prevent or hinder the State organisation from satisfying any debt or obligation however arising, approve the agreement.
(8) Where the Commission in Court Session approves an agreement under subsection (7) the Registrar must —
(a) register the memorandum as an alteration to the rules of the State organisation; and
(b) amend, where necessary, the certificate issued to the State organisation under subsection (5) by declaring that the State organisation is, from the date of registration of the memorandum, exempted from compliance with such provisions of this Act and to such an extent as the Commission in Court Session may, having regard to the terms of the memorandum, direct; and
(c) notify the State organisation in writing of the matters referred to in paragraphs (a) and (b).
(9) After the issue to a State organisation of a certificate or an amended certificate under this section —
(a) the rule referred to in subsection (5)(a) and a memorandum registered under subsection (8)(a) must not be altered unless the alteration is approved by the Commission in Court Session; and
(b) an alteration to any rule of the State organisation other than the rule referred to in paragraph (a) may be registered by the Registrar if the Registrar is satisfied that the rule as so altered is the same as a rule of the State organisation’s counterpart federal body; and
(c) every member of the State organisation’s counterpart federal body who is eligible to be a member of the State organisation is, for all the purposes of this Act and of any award, industrial agreement or order, taken to be a member of the State organisation.
(10) Before granting approval to an alteration of the rule or memorandum referred to in subsection (9)(a), the Commission in Court Session may require compliance by the State organisation with such conditions as the Commission in Court Session considers appropriate.
[(1) deleted] (2) Subject to this section, a State organisation may alter its rules (in this section referred to as the
State rules ) by including in the State rules a provision (in this section referred to as theadopting provision ) stating that all of the rules of its counterpart federal body other than —(a) a rule relating to the name of the State organisation; and
(b) a rule relating to the qualifications of persons for membership; and
(ba) a rule described in section 71(5)(a) relating to an office described in section 71(5A)(b); and
(bb) a rule described in section 71(5A)(b); and
(c) any rule specifically excluded in the adopting provision,
are by force of this section adopted as rules of the State organisation.
(3) Subject to subsection (5) where a State organisation alters its rules under subsection (2) the rules adopted by that State organisation are by force of this section, and notwithstanding anything to the contrary in section 62, taken to be rules of the State organisation.
(4) The rules adopted under subsection (2) include, unless provision to the contrary is made by the State organisation in the adopting provision —
(a) any amendments made to those rules; and
(b) any further rules made by the counterpart federal body,
after the coming into operation of the adopting provision.
(5) Where a State organisation makes an adopting provision under subsection (2) —
(a) the Registrar must register that adopting provision as an alteration to the rules of that State organisation; and
(b) that adopting provision is not effective until registered under paragraph (a).
(6) Section 62 does not apply to or in relation to the alteration of State rules under or by force of this section.
(1) Where 2 or more organisations (in this section referred to as the amalgamating organisations) apply for the registration of a new organisation and the rules of the proposed new organisation are such that the only persons eligible for membership of the new organisation will be persons who, if the amalgamating organisations had remained in being, would have been eligible for membership of at least one of the amalgamating organisations, the new organisation may be registered by authority of the Commission in Court Session.
(2) An application under this section must be made under the respective seals of the amalgamating organisations and must be signed by the secretary and principal executive officer of each of those organisations.
(3) The provisions of this Division applying to and in relation to the registration of organisations under section 53(1) or 54(1), other than section 55(5), apply with such modifications as are necessary, to and in relation to the registration of an organisation under this section.
(4) Subsection (1) does not prevent the alteration, pursuant to this Act, at any time after an organisation has been registered under this section, of the rules referred to in that subsection.
(5) On and from the date on which an organisation is registered under this section —
(a) the registration of each of the amalgamating organisations is cancelled; and
(b) all the property, rights, duties, and obligations whatever held by, vested in, or imposed on each of those organisations are held by, vested in, or imposed on, as the case may be, the new organisation; and
(c) actions and other proceedings already commenced by or against any of those organisations may be continued by or against the new organisation and the new organisation is substituted for each of those organisations as a party; and
(d) actions and other proceedings that could have been brought by or against any of those organisations may be brought by or against the new organisation.
(1) In this section —
(a) a business, or part of a business, that is carried on by a single employer; or
(b) a business, or part of a business, that is carried on by 2 or more employers as a joint venture or single enterprise; or
(c) activities carried on by a public authority, or part of those activities; or
(d) a single project, undertaking or place of work;
(2) An organisation, an employer or the Minister may apply to the Commission in Court Session for an order —
(a) that an organisation has the right, to the exclusion of another organisation or other organisations, to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise who are eligible for membership of the organisation;
(b) that an organisation that does not have the right to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise has that right;
(c) that an organisation does not have the right to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise who are eligible for membership of the organisation.
(3) The Registrar must publish notice of an application under subsection (2) in the
Industrial Gazette and —(a) in a newspaper circulating throughout the State; or
(b) on an internet website maintained by the Commission,
and the application must not be listed for hearing before the Commission in Court Session until after the expiration of 30 days from the day on which the notice is first published.
(4) On an application under subsection (2), the Commission in Court Session may make one or more of the orders applied for, and may make any such order subject to any condition or limitation.
(5) The Commission in Court Session must not make any order described in subsection (2) without giving persons who, in its opinion, have a sufficient interest in the matter an opportunity of being heard.
(6) Where an order is made under subsection (4), the Commission in Court Session must refer the matter to the Chief Commissioner unless it is satisfied that the rules of the organisations concerned do not need to be altered.
(7) On a referral under subsection (6) the Chief Commissioner must, after giving the organisations concerned an opportunity of being heard, make such alterations (if any) to the rules of the organisations as are, in the Chief Commissioner’s opinion, necessary to reflect the order made by the Commission in Court Session.
(8) An alteration must be made by instrument in writing signed by the Chief Commissioner and takes effect on a day specified in the instrument.
(1) In this section —
(2) The WA Branch of the AMA may represent under this Act the industrial interests of medical practitioners as if it were an organisation of employees and for that purpose —
(a) the references to
organisation in paragraphs (e), (i), (j), (k) and (l) of the definition ofindustrial matter in section 7(1) include the WA Branch of the AMA; and(b) Part II Divisions 2, 2AA and 3 and Parts III and VIA apply to the WA Branch of the AMA as if it were an organisation of employees.
(3) The WA Branch of the AMA does not have the right, to the exclusion of an organisation or organisations, to represent under this Act the industrial interests of medical practitioners, unless an order to that effect is made under section 72A.
(4) Within 30 days of the coming into operation of section 36 of the
Industrial Relations Legislation Amendment and Repeal Act 1995 the WA Branch of the AMA must lodge with the Registrar a copy of its rules as then in force.(5) The WA Branch of the AMA must lodge with the Registrar, within 30 days of the making of the alteration, any alteration made to the rules lodged under subsection (4) as altered from time to time.
(6) The WA Branch of the AMA must file with the Registrar once in each year, at such time as is prescribed —
(a) a list of the names, residential addresses, and occupations of the persons holding offices in the Branch; and
(b) a record of the number of members of the Branch,
certified by statutory declaration by the Executive Director of the Branch to be a correct statement of the information contained in the list and the record.
(1) Subject to this section, the Commission constituted by a commissioner may of its own motion or at the request of the Minister or any employer or organisation at any time direct the Registrar in writing to issue to an organisation a summons to appear before the Commission in Court Session on a date specified in the summons, and show cause why the registration of the organisation under this Act should not be cancelled or suspended, as the case may be, either generally or with respect to any employee or group or class of employees.
(2) The Registrar must ascertain from the Chief Commissioner the date to be specified in the summons referred to in subsection (1) and that date must not, without good cause, be less than 14 days from the date on which the summons is issued by the Registrar.
(3) In respect of a request made under subsection (1) —
(a) where the request is made by the Minister and is accompanied by a declaration made by the Minister that in the Minister’s opinion —
(i) the safety, health, or welfare of the community or a part of it is at risk; or
(ii) a number of a group or class of employees who are, or are eligible to be, members of the organisation is bound by an award made under the FW Act or continued in existence under the FW (Transitional) Act,
the Commission must give a direction under that subsection; and
(b) in any other case, the Commission may give a direction under that subsection if, by reason of the conduct of the organisation or its officers or members or any of them, either generally or in a particular case, it appears to the Commission that the continuance of the registration is not consistent with or will not serve the objects of this Act, but the Commission must not give such a direction in a case to which this paragraph applies unless it has advised the organisation of its intention to do so and has invited such officers of the organisation as the Commission considers appropriate to consult with it in respect of that conduct.
(4) A direction to the Registrar under subsection (1) must include a statement of the reasons for which the direction is given and a copy of that statement must be attached to the summons referred to in that subsection and served with the summons.
(5) The organisation concerned may apply to the Registrar for further particulars of the statement of reasons referred to in subsection (4) and the Registrar must supply such further particulars as the commissioner who constituted the Commission that gave the direction may direct.
(6) For the hearing and determination of a matter under this section the commissioner referred to in subsection (5) must not be one of the commissioners who constitute the Commission in Court Session for the purposes of this section.
(7) On the return of the summons (not being a summons to which subsection (7b) applies) if it appears to the Commission in Court Session that by reason of the conduct of the organisation or its officers or members or any of them, either generally or in any particular case, the continuance of the registration is not consistent with or will not serve the objects of this Act, the Commission in Court Session —
(a) must make one of the orders described in subsection (7a); and
(b) may make one or both of the orders described in subsection (8).
(7a) The orders referred to in subsection (7)(a) are —
(a) an order cancelling the registration of the organisation; or
(b) an order cancelling the rights of the organisation under this Act either generally or with respect to any employee or group or class of employees specified in the order; or
(c) an order suspending for a time specified in the order or without limit of time and, in either case, subject to such conditions or exceptions, or both, as the Commission in Court Session thinks fit, that registration or those rights.
(7b) On the return of a summons issued following a declaration by the Minister under subsection (3)(a)(ii), if it appears to the Commission in Court Session that a number of a group or class of employees who are, or are qualified to be, members of an organisation is bound by an award made under the FW Act or continued in existence under the FW (Transitional) Act, the Commission in Court Session —
(a) must make an order cancelling the rights of the organisation under this Act with respect to that group or class of employees; and
(b) may make an order under subsection (8)(a).
(8) For the purposes of subsection (7) and notwithstanding anything in this Act, the orders which the Commission in Court Session may make include —
(a) an order with respect to the rules of the organisations cancelling or suspending or varying in any way the rules or any part of the rules referred to in section 55(2); and
(b) an order cancelling or suspending an award, industrial agreement or order or any provision of an award, industrial agreement or order.
(9) An order made under this section comes into operation and has effect from such date on or after the making of the order as the Commission in Court Session may determine and specify, but it may be prescribed in the order that the order will not commence to operate from the date specified if, before that date, the organisation satisfies the Commission in Court Session that it has complied or is complying with conditions or requisitions made by the Commission in Court Session when making the order.
(10) An order made under this section may provide for the cancellation of the registration of an organisation after such period of suspension of rights under this Act as the Commission in Court Session considers necessary to enable any debts, liabilities, or obligations incurred by the organisation to be met and the period of suspension under this subsection may be extended by the Commission in Court Session to such extent as may appear to it to be necessary.
(11) An order made under this section has effect according to its tenor and the Registrar must, where necessary, amend the Registrar’s records accordingly.
(12) The Commission in Court Session must cancel the registration of an organisation if it is satisfied on the application of the Registrar that —
(a) the number of members of the organisation or, the number of employees of the members of the organisation would not entitle it to registration under section 53 or section 54, as the case may be; or
(b) the organisation is defunct; or
(c) the organisation has, in the manner prescribed, requested that its registration be cancelled.
(12a) The Registrar must make an application under subsection (12) in every case where it appears to the Registrar that there are sufficient grounds for doing so.
(13) Proceedings for the cancellation or suspension of the registration of an organisation, or any of its rights under this Act, must not be instituted otherwise than under this section.
(14) During any period in which —
(a) an organisation of employees is not registered; or
(b) the registration of an organisation of employees is suspended,
an employer must not deduct from the wages of any employee any amount for or in respect of membership of the organisation.
Penalty for this subsection: a fine of $2 000.
(1) In this section and in section 77 —
(2) A finance official is to act honestly at all times in the performance of the functions of the finance official’s office or employment.
(3) A finance official is to exercise a reasonable degree of care and diligence at all times in the performance of the functions of the finance official’s office or employment.
(4) The degree of care and diligence required by subsection (3) is the degree of care and diligence that a reasonable person in the finance official’s position would reasonably be expected to exercise.
(5) Each finance official of an organisation is to ensure that the organisation keeps and maintains accounting records as required by section 63(1)(c).
(6) A person who is or has been a finance official of an organisation is not to make use of information acquired by virtue of the person’s position as a finance official to obtain or seek to obtain directly or indirectly, a pecuniary advantage for the person or for any other person or to cause or seek to cause detriment, loss or damage to the organisation.
(7) Subsection (6) does not apply to acts done —
(a) in and for the purposes of the performance of the functions of a finance official’s office or employment; or
(b) with the consent of the committee of management of the organisation.
(8) Details of any matter about which consent is given under subsection (7)(b) are to be disclosed by the committee of management to the members of the organisation in accordance with the rules of the organisation.
(9) A finance official of an organisation is not to make use of the finance official’s position as a finance official to obtain or seek to obtain, directly or indirectly, a pecuniary advantage for the official or for any other person or to cause or seek to cause detriment, loss or damage to the organisation.
(10) Subsection (9) does not apply to acts done in and for the purposes of the performance of the functions of a finance official’s office or employment.
(11) A finance official of an organisation is to provide the committee of management of the organisation with returns of the finance official’s pecuniary interests at such times and in such form as are prescribed by the rules of the organisation.
(12) A finance official of an organisation who has a material personal interest in a matter involving the organisation is to disclose the nature of the interest to the committee of management of the organisation as soon as is practicable after the relevant facts come to the finance official’s knowledge.
(13) Subject to section 79, this section is in addition to, and not in derogation of, any rule of law relating to the duties or liabilities of a finance official and does not prevent the institution of civil proceedings in respect of a breach of such a duty or in respect of such a liability.
(1) In reporting on the accounting records of an organisation under section 65 the auditor is to express an opinion as to whether any person has contravened or failed to comply with section 74.
(2) If the auditor finds that the accounting records are not in a form that enables an informed opinion to be expressed as required by subsection (1), the auditor is to report that finding.
(1) If a person who is or has been a finance official of an organisation (the
respondent ) contravenes or fails to comply with section 74 —(a) the organisation; or
(b) an officer of the organisation; or
(c) a member of the organisation; or
(d) the Registrar or a deputy registrar; or
(e) an industrial inspector,
may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of section 74.
(2) On the hearing of an application under subsection (1) the industrial magistrate’s court may, if the contravention or failure to comply is proved, do any one or more of the following —
(a) by order, issue a caution to the respondent;
(b) subject to subsection (3) and section 79(5)(a), by order impose a penalty on the respondent of such amount as the industrial magistrate’s court considers just, but not exceeding $5 000;
(c) order the respondent to pay compensation to the organisation in respect of any loss or damage suffered by the organisation as a result of the contravention or failure to comply;
(d) order the restitution or forfeiture of any pecuniary advantage obtained by any person as a result of the contravention or failure to comply;
(e) order the respondent to do any specified thing or to cease any specified activity.
(3) Only one penalty can be imposed on the respondent under subsection (2)(b) in respect of contraventions or failures to comply arising out of one course of conduct.
(4) The industrial magistrate’s court may, by order, dismiss an application under subsection (1).
(5) Subject to subsection (6) an order under subsection (2) or (4) may be made with or without costs.
(6) Costs must not be given against the Registrar, a deputy registrar or an industrial inspector in relation to proceedings under this section.
(7) Where the industrial magistrate’s court orders money to be paid under this section by way of a penalty, compensation, restitution, forfeiture or costs the industrial magistrate’s court must state in the order the name of the person liable to pay the money and the name of the person to whom the money is to be paid.
A person who fails to comply with an order under section 77(2)(e) commits an offence.
Penalty:
(a) a fine of $5 000;
(b) a daily penalty of a fine of $500 for each day or part of a day during which the offence continues.
(1) Subject to subsection (3), where an application is made to an industrial magistrate’s court under section 77, the matter to which the application relates (whether as shown in the application or as emerging in the course of the determination of the application) is not justiciable by another court in civil proceedings unless —
(a) that matter was before that other court at the time when the application was made to the industrial magistrate’s court; or
(b) the application to the industrial magistrate’s court is withdrawn or not pursued.
(2) Where a matter that an industrial magistrate’s court has jurisdiction to determine under section 77 is before another court in civil proceedings, that other court may order that the matter be transferred to and determined by the industrial magistrate’s court.
(3) Where a matter that a court has jurisdiction to determine in civil proceedings is before an industrial magistrate’s court, the industrial magistrate’s court may order that the matter be transferred to and determined by that other court.
(4) In making an order for compensation, restitution or forfeiture under section 77(2)(c) or (d) an industrial magistrate’s court is to have regard to any amount that the respondent has been ordered to pay in civil proceedings relating to the same matter in another court.
(5) If criminal proceedings are instituted under any other enactment in respect of conduct that also constitutes a contravention of or failure to comply with section 74 —
(a) an industrial magistrate’s court is not to impose a penalty under section 77(2)(b) in proceedings under section 77 in respect of the matter; but
(b) the outcome of the criminal proceedings is not to be taken into consideration in the determination of proceedings under section 77 in respect of the matter.
(1) If an order is made against an officer of an organisation under section 77(2)(b), (c), (d) or (e), the industrial magistrate’s court may, on the application of the Registrar, order —
(a) that the officer’s office becomes vacant when the order is made; and
(b) that, from the time when the order is made, the officer is disqualified from holding or acting in any office in the organisation during such period of not more than 3 years as is specified in the order.
(2) The industrial magistrate’s court may include in an order under subsection (1) any provision that it considers necessary to ensure the operation of the order and to provide for the election or appointment of a person to replace the officer whose office becomes vacant under the order.
(3) A person who performs or attempts to perform the functions of an office in the organisation while disqualified by an order under subsection (1) from holding or acting in the office commits an offence punishable by the Supreme Court as for a contempt.
(1) This section applies to an employer who, under the FW Act section 14(2), may be declared by or under a law of the State not to be a national system employer.
(2) The regulations may —
(a) declare the employer not to be a national system employer for the purposes of the FW Act; and
(b) fix a day (the
relevant day ) for the purposes of that declaration.
In this Division —
(a) a modern award under the FW Act; or
(b) an award under the repealed Workplace Act continued in existence under the FW (Transitional) Act;
(a) the Australian Industrial Relations Commission under the repealed Workplace Act; or
(b) the FW Commission;
(a) the FW Act; or
(b) the FW (Transitional) Act;
(1) The regulations may provide that, on and from the relevant day, an award, industrial agreement or order specified in the regulations applies to the employees of a declared employer specified in the regulations.
(2) If regulations are made under subsection (1), on and from the relevant day the award, industrial agreement or order applies to each of the following —
(a) the declared employer;
(b) the declared employees of the declared employer;
(c) an organisation that is a party to the award or industrial agreement or that is bound by the order.
(1) This section applies —
(a) to the extent section 80BA does not provide for a declared employee of a declared employer; and
(b) if, immediately before the relevant day, a federal industrial instrument (the
old federal instrument ) applies to, or purports to apply to, the declared employee.
(2) On the relevant day, an industrial agreement (the
new State instrument ) applies to the declared employer and declared employees.(3) The new State instrument is taken —
(a) to have been registered under this Act on the relevant day; and
(b) except as provided in this section or section 80BC, to have the same terms as the old federal instrument including those terms as added to or modified by any of the following —
(i) terms of a federal award incorporated by the old federal instrument;
(ii) orders of a federal industrial authority;
(iii) another instrument under the national fair work legislation or the repealed Workplace Act;
and
(c) to have a nominal expiry date that is the earlier of the following —
(i) a day that is 2 years after the relevant day;
(ii) the day that, immediately before the relevant day, was the nominal expiry day of the old federal instrument.
(4) This Act applies in relation to the new State instrument subject to any modifications or exclusions prescribed by regulations for this subsection.
(5) The new State instrument applies except as provided in the MCE Act.
only if the employee agreed to the employment being under an EEA; and
(i) each party appears to understand that party’s rights and obligations under the EEA; and
(j) no party or a representative was persuaded by threats or intimidation to enter into the EEA; and
(k) each party genuinely wishes to have the EEA registered.
(2) Subclause (1)(g) does not apply to an offer of employment made, or an intimation of employment given, that would otherwise come within that provision if —
(a) there is no industrial instrument containing a SWIIP that extends to the employee; and
(b) the employment was arranged through an entity that provides employment services for persons with disabilities.
(3) In subclause (1)(i) and (k) —
(a) the employer and the employee; or
(b) if the employee is a represented person, the employer and the representative.
[s. 97VC(4), 97WM]
An authorised person may —
(a) by notice in writing require the attendance of any person at a place and time specified in the notice;
(b) by notice in writing require any person to produce at a place and time specified in the notice any book, document or record that is in the possession or under the control of that person;
(c) inspect any book, document or record produced and retain it for such reasonable period as the authorised person thinks fit, and make copies of it or any of its contents;
(d) require any person to take an oath or make an affirmation and may administer an oath or affirmation to any person;
(e) require any person to answer any question put to that person;
(f) take statements and receive affidavits;
(g) enter any relevant workplace.
A person must not hinder or obstruct an authorised person in the exercise of any power conferred by this Schedule.
Penalty: a fine of $2 000.
A person must not make a statement or give an answer to an authorised person if the first‑mentioned person knows that the statement or answer is false or misleading in a material particular.
Penalty: a fine of $2 000.
(1) A person must not, without lawful excuse, refuse or fail —
(a) to attend; or
(b) to produce a book, document or record,
as required by a notice under clause 1.
Penalty for this subclause: a fine of $2 000.
(2) A person must not, without lawful excuse, refuse or fail —
(a) to be sworn or make an affirmation; or
(b) to answer a question,
when required to do so under clause 1.
Penalty for this subclause: a fine of $2 000.
Nothing in this Schedule prevents a person from refusing to answer a question or produce a book, document or record because the answer would relate to, or the book, document or record contains, information in respect of which the person claims legal professional privilege.
(1) It is not a lawful excuse for the purposes of clause 4 for a person to refuse to answer a question or produce a book, document or record on the grounds that the answer or the book, document or record might tend to incriminate the person, or make the person liable to a penalty.
(2) Despite subclause (1), an answer given or any statement made for the purposes of clause 4 is not, except in proceedings under clause 2, 3 or 4, admissible in evidence in any civil or criminal proceedings against the person giving the answer or making the statement.
[s. 116]
In this Schedule —
(1) A person who holds the office of acting President immediately before commencement day (the
former acting President ) may, for a period approved by the Minister, remain in office with the functions and entitlements of the former acting President for the purpose of completing any matter or inquiry not completed by the former acting President before commencement day.(2) The Minister may extend, or further extend, the period approved under subclause (1) and may do so even if the period has expired.
Despite the amendments made by the amending Act section 19(3), former section 20(12) and (13) continues to apply in relation to a person who held office as President or acting President before commencement day or the surviving spouse, de facto partner or child of that person.
All courts and persons acting judicially must take judicial notice of the official signature of every person who has remained in office under clause 2 or has at any time been or acted in the office of President of the Commission under the Act and of the fact that the person has held or acted in the office.
(1) In this clause —
(2) A matter is to be dealt with in accordance with the relevant provisions of the amended Act if —
(a) the matter was before the Commission immediately before commencement day; but
(b) the Commission had not begun to hear the matter.
(3) Except as provided in subclauses (4) and (5), if the Commission has begun or completed hearing a matter, but has not finally determined the matter immediately before commencement day, the matter is to continue to be dealt with on or after that day in accordance with the relevant provisions of the former Act.
(4) A matter is to be dealt with in accordance with the relevant provisions of the amended Act if —
(a) the matter was before the Commission immediately before commencement day; and
(b) the Commission has begun or completed hearing a matter, but has not finally determined the matter; and
(c) the former acting President is not in the office of acting President immediately after commencement day, or ceases to remain in office after commencement day.
(5) The Chief Commissioner may, after consulting with the former acting President, direct that —
(a) subclause (3) does not apply to a matter specified in the direction; and
(b) the matter is to be dealt with in accordance with the relevant provisions of the amended Act.
(6) A direction under subclause (5) has effect in accordance with its terms.
An appeal under section 49 has not commenced to be heard merely because an application for an order under section 49(11) in respect of the decision appealed against has been made, heard or determined.
(1) If a notice published under former section 55(2) in relation to an application refers to the Full Bench, but on commencement day the Full Bench has not begun to hear the application, the reference is taken to be a reference to the Commission in Court Session.
(2) If the hearing of an application made under former section 55 has not begun immediately before commencement day, the application must be dealt with under section 55 of the amended Act.
(1) In this clause —
(2) A former section 73 summons to appear before the Full Bench on a date that is on or after commencement day —
(a) is taken to be a summons issued under section 73 of the amended Act to appear before the Commission in Court Session on that date; and
(b) is to be dealt with under the amended Act as if it were a summons issued under section 73 of the amended Act to appear before the Commission in Court Session.
This is a compilation of the
114 of 1979 | 21 Dec 1979 | 1 Mar 1980 (see s. 2 and | |
82 of 1980 | 5 Dec 1980 | 5 Dec 1980 | |
11 of 1981 | 22 May 1981 | 22 May 1981 | |
10 of 1982 | 14 May 1982 | 1 Jul 1982 (see s. 2(1) and | |
121 of 1982 | 9 Dec 1982 | 9 Dec 1982 | |
92 of 1984 | 29 Nov 1984 | Act other than s. 4 and 5: 29 Nov 1984 (see s. 2(1)); s. 4 and 5: 1 Mar 1985 (see s. 2(2) and (3) and | |
94 of 1984 | 11 Dec 1984 | 1 Mar 1985 (see s. 2(2) and | |
42 of 1985 | 13 May 1985 | 13 May 1985 (see s. 2) | |
98 of 1985 | 4 Dec 1985 | 1 Jul 1986 (see s. 2 and | |
82 of 1987 | 1 Dec 1987 | 1 Dec 1987 (see s. 2) | |
83 of 1987 | 1 Dec 1987 | 1 Apr 1988 (see s. 2) | |
119 of 1987 | 31 Dec 1987 | s. 1 and 2: 31 Dec 1987; Act other than s. 1, 2 and 7(1): 4 Mar 1988 (see s. 2 and | |
7 of 1988 | 30 Jun 1988 | 8 Jul 1988 (see s. 2 and | |
73 of 1990 | 20 Dec 1990 | 1 Jan 1991 (see s. 2(2) and | |
99 of 1990 (as amended by No. 1 of 1995 s. 35) | 22 Dec 1990 | Act other than s. 10 and 14: 19 Jan 1991 (see s. 2(1)); s. 10: 21 Jun 1991 (see s. 2(2) and | |
44 of 1991 | 17 Dec 1991 | 3 Jan 1992 (see s. 2 and | |
35 of 1992 | 23 Jun 1992 | 1 Jul 1992 (see s. 2(2) and | |
40 of 1992 | 2 Oct 1992 | 3 Nov 1992 (see s. 2 and | |
6 of 1993 | 27 Aug 1993 | 1 Jul 1993 (see s. 2(1)) | |
15 of 1993 | 29 Nov 1993 | 1 Dec 1993 (see s. 2 and | |
32 of 1994 | 29 Jun 1994 | 1 Oct 1994 (see s. 2 and | |
83 of 1994 | 20 Dec 1994 | 10 Jan 1995 (see s. 2 and | |
92 of 1994 | 23 Dec 1994 | 1 Jan 1995 (see s. 2(1) and | |
103 of 1994 (as amended by No. 79 of 1995 s. 36(4)) | 11 Jan 1995 | 3 Feb 1995 (see s. 2 and | |
1 of 1995 | 9 May 1995 | Act other than Pt. 3: 9 May 1995 (see s. 2(1)); Pt. 3: 1 Jan 1996 (see s. 2(2) and | |
11 of 1995 | 30 Jun 1995 | 4 Sep 1995 (see s. 2 and | |
30 of 1995 | 11 Sep 1995 | 20 Jan 1996 (see s. 2 and | |
78 of 1995 | 16 Jan 1996 | 4 Nov 1996 (see s. 2 and | |
79 of 1995 | 16 Jan 1996 | Act other than Pt. 2 and 5 and s. 12(1), 13, 35, 36 and 66(2): 16 Jan 1996 (see s. 3(1)); s. 66(2): 18 May 1996 (see s. 3(2) and | |
Pt. 5: 5 Dec 1997 (see s. 3(2) and | |||
14 of 1996 | 28 Jun 1996 | 1 Jul 1996 (see s. 2) | |
42 of 1996 | 16 Oct 1996 | 1 Jan 1997 (see s. 2 and | |
3 of 1997 (as amended by No. 20 of 2002 s. 191(3)) | 23 May 1997 | s. 22‑24, 29‑33, 35(a) and 38: 23 May 1997 (see s. 2(1)); Pt. 2 and 4: 20 Jun 1997 (see s. 2(2)); s. 34: 17 Oct 1997 (see s. 2(3) and | |
36 of 1999 | 2 Nov 1999 | 1 Jan 2001 (see s. 2 and | |
58 of 2000 | 4 Dec 2000 | 4 Dec 2000 (see s. 2) | |
10 of 2001 | 28 Jun 2001 | 15 Jul 2001 (see s. 2 and | |
20 of 2002 | 8 Jul 2002 | s. 111(6): 8 Jul 2002 (see s. 2(3)); Pt. 4‑9, Pt. 10 Div. 2, Pt. 11 and Sch. 1: 1 Aug 2002 (see s. 2 and | |
7 of 2003 | 27 Mar 2003 | 27 Aug 2003 (see s. 2 and | |
20 of 2003 | 23 Apr 2003 | 15 Jul 2001 (see s. 2(1) and Cwlth | |
28 of 2003 | 22 May 2003 | 1 Jul 2003 (see s. 2 and | |
31 of 2003 | 26 May 2003 | 1 Jul 2003 (see s. 2(1) and | |
15 Sep 2003 (see r. 2) | |||
65 of 2003 | 4 Dec 2003 | 1 Jan 2004 (see s. 2 and | |
74 of 2003 | 15 Dec 2003 | 15 Dec 2003 (see s. 2) | |
34 of 2004 | 20 Oct 2004 | 1 Mar 2006 (see s. 2 and | |
51 of 2004 | 12 Nov 2004 | 4 Apr 2005 (see s. 2 and | |
59 of 2004 | 23 Nov 2004 | 1 May 2005 (see s. 2 and | |
55 of 2004 | 24 Nov 2004 | 24 Jan 2005 (see s. 2 and | |
68 of 2004 | 8 Dec 2004 | 4 Apr 2005 (see s. 2(3)(a) and | |
84 of 2004 | 16 Dec 2004 | 2 May 2005 (see s. 2 and | |
13 of 2005 | 1 Sep 2005 | 28 Mar 2007 (see s. 2 and | |
14 of 2005 | 21 Sep 2005 | 22 Sep 2005 (see s. 2) | |
36 of 2006 | 4 Jul 2006 | 4 Jul 2006 (see s. 2(1)) | |
59 of 2006 | 16 Nov 2006 | 1 Jul 2007 (see s. 2 and | |
77 of 2006 | 21 Dec 2006 | 1 Feb 2007 (see s. 2(1) and | |
7 of 2007 | 6 Jun 2007 | 1 Aug 2008 (see s. 2 and | |
35 of 2007 | 21 Dec 2007 | 19 Jan 2008 (see s. 2(b) and | |
5 of 2008 | 31 Mar 2008 | 30 Sep 2008 (see s. 2(d) and | |
8 of 2008 | 31 Mar 2008 | s. 13: 1 Apr 2008 (see s. 2(1)); s. 23(3): 21 Jun 2008 (see s. 2(2) and | |
21 of 2008 | 27 May 2008 | 1 Mar 2009 (see s. 2(b) and | |
22 of 2008 | 27 May 2008 | 1 Dec 2008 (see s. 2 and | |
44 of 2008 | 10 Dec 2008 | 10 Jun 2009 (see s. 2(2)) | |
8 of 2009 | 21 May 2009 | 22 May 2009 (see s. 2(b)) | |
18 of 2009 | 16 Sep 2009 | 17 Sep 2009 (see s. 2(b)) | |
36 of 2009 | 3 Dec 2009 | 31 Dec 2009 (see s. 2(c)) | |
42 of 2009 | 3 Dec 2009 | 13 Mar 2010 (see s. 2(b) and | |
19 of 2010 | 28 Jun 2010 | 11 Sep 2010 (see s. 2(b) and | |
35 of 2010 | 30 Aug 2010 | 18 Oct 2010 (see s. 2(b) and | |
39 of 2010 | 1 Oct 2010 | 28 Mar 2011 (see s. 2(b) and | |
53 of 2011 | 11 Nov 2011 | 1 Apr 2012 (see s. 2(b) and | |
8 of 2014 | 20 May 2014 | 1 Jul 2014 (see s. 2(b) and | |
11 of 2016 | 26 May 2016 | 1 Jul 2016 (see s. 2(b) and | |
26 of 2016 | 21 Sep 2016 | 21 Jan 2017 (see s. 2(b) and | |
32 of 2016 | 19 Oct 2016 | 2 Jan 2017 (see s. 2(b) and | |
50 of 2016 | 28 Nov 2016 | 29 Nov 2016 (see s. 2(b)) | |
39 of 2018 | 12 Dec 2018 | 19 Dec 2018 (see s. 2(b) and | |
19 of 2019 | 15 Aug 2019 | 30 Nov 2019 (see s. 2(b) and | |
36 of 2020 | 10 Nov 2020 | 31 Mar 2022 (see s. 2(1)(c) and SL 2022/18 cl. 2) | |
26 of 2021 | 13 Dec 2021 | 1 Jan 2022 (see s. 2(b) and SL 2021/222 cl. 2) | |
30 of 2021 | 22 Dec 2021 | 20 Jun 2022 (see s. 2(1)(b) and (2) and SL 2022/79 cl. 2) | |
9 of 2022 | 14 Apr 2022 | 1 Jul 2022 (see s. 2(b)(i) and (c) and SL 2022/113 cl. 2) | |
43 of 2024 | 13 Nov 2024 | s. 3-92: 31 Jan 2025 (see s. 2(c)); s. 93-99 and 104: 1 Jul 2025 (see s. 2(b) and SL 2025/97 cl. 2) | |
To view the text of the uncommenced provisions see
43 of 2000 | 2 Nov 2000 | To be proclaimed (see s. 2(2)) | |
43 of 2024 | 13 Nov 2024 | To be proclaimed (see s. 2(b)) |
(a) in Part 2 Div. 3, relating to the Government School Teachers Tribunal;
(b) in s. 34, relating to the Promotions Appeal Board; and
(c) in s. 42, relating to dismissals occurring before the commencement of that section.
adopting provision................................................................................................. 71A(2)
affected person....................................................................................................... 23B(1)
agency resolution period........................................................................... 36AJ, 129(1)
aggrieved person......................................... 51BT(1), 51BX(1), 51BZ(1), 51BZC(1)
alteration....................................................................................................................... 7(1)
alternative remedy................................................................................................. 51Q(1)
amended........................................................................................................................ 118
amended Act................................................................................................... Sch. 6 cl. 1
amending Act.................................................................................................. Sch. 6 cl. 1
anti-discrimination legislation....................................................................... 51BZD(1)
appeal....................................................................................................................... 125(1)
applicable order..................................................................................................... 48A.(3)
applicant................................................................................................................... 97WR
application............................................................................................................... 103(3)
apprentice..................................................................................................................... 7(1)
approved form............................................................................................................. 7(1)
arbitration functions.............................................................................................. 32A(1)
arbitrator.................................................................................................................. 97WH
Arbitrator................................................................................................................. 124(1)
area and scope provisions.................................................................................. 29A(1a)
association.................................................................................................................... 7(1)
auditor.............................................................................................................................. 65
authorised representative...................................................................................... 49G(1)
award................................................................................ 7(1), 46(5), 97U(1), 97UG(7)
bargaining agent..................................................................................................... 97U(1)
bargaining in good faith....................................................................................... 42B(2)
Board........................................................................................................................ 125(1)
Board of Reference................................................................................................ 121(1)
breach....................................................................................................................... 103(3)
breach of public sector standards claim...................................................... 7(1), 36AJ
bullied........................................................................................................ 51BF, 51BI(1)
bullying......................................................................................................................... 7(1)
business premises..................................................................................................... 98(3)
calling............................................................................................................................ 7(1)
cancellation agreement......................................................................................... 97U(1)
CEO............................................................................................................................... 7(1)
Chamber....................................................................................................................... 7(1)
Chief Commissioner................................................................................................... 7(1)
Chief Magistrate.................................................................................................... 81B(6)
civil infringement notice............................................................................. 84B, 84C(2)
civil infringement notice penalty.............................................................. 84B, 84C(2)
civil penalty provision................................................................................................ 7(1)
collegiate electoral system........................................................................................... 52
commencement day.................................... 20(8b), 117(1), 118, 129(1), Sch. 6 cl. 1
Commission..................... 7(1), 16(1), 42C(6), 49(1), 50(1), 97VW, Sch. 6 cl. 5(1)
commissioner............................................................................................................... 7(1)
Commission in Court Session................................................................................... 7(1)
comparable award.................................................................................................... 97VR
complainant............................................................................................................. 96L(2)
compliance notice........................................................................................ 84O, 84Q(1)
complying superannuation fund or scheme...................................................... 48B(1)
conciliation functions............................................................................................ 32A(1)
conditions of service provision........................................................................ 36AA(1)
conduct of a sexual nature................................................................................. 51BQ(2)
contravene............................................................................................................... 83(1A)
contravention................................................................. 83EA(1), 84AA(1), 84K, 84O
conviction................................................................................................................ 49G(1)
corporation............................................................................................................. 96H(3)
corresponding authority...................................................................................... 80ZI(3)
corresponding provision of this Act................................................................. 80BF(1)
counterpart federal body.................................................................. 52, 52A(2) and (3)
Court.............................................................................................................................. 7(1)
damaging action............................................................................................................. 97
day of execution.................................................................................................. 97UY(6)
decision............................................................................................................. 7(1), 84(1)
declaration.................................................................................................................... 7(1)
declared employee...................................................................................................... 80B
declared employer...................................................................................................... 80B
Department................................................................................................................... 7(1)
departmental officer................................................................................................... 7(1)
deputy registrar............................................................................................................ 7(1)
designated deputy registrar..................................................................................... 95(3)
direct voting system...................................................................................................... 52
discriminatory action............................................................................................. 96E(4)
dispute...................................................................................................................... 97WH
disqualified person........................................................................................... 112A(3B)
EEA............................................................................................................ 7(1), 97WB(2)
EEA dispute provisions........................................................................................ 97U(1)
electronic means.......................................................................................................... 7(1)
employed................................................................................................................. 99C(1)
employee................................................................................... 7(1), 97, 97U(2) and (3)
employees............................................................................................................... 36A(1)
employer................................................................................... 7(1), 97, 97U(2) and (3)
employer-employee agreement................................................................................ 7(1)
employing authority................................................................................................... 7(1)
employment claim................................................................................................. 23B(1)
employment law........................................................................................................ 98(3)
employment record..................................................................................................... 7(1)
employment services for persons with disabilities.......................................... 97U(1)
enforceable undertaking............................................................................................ 84K
enterprise................................................................................................................. 72A(1)
enterprise award.......................................................................................................... 7(1)
enterprise order.............................................................................................. 7(1), 42I(1)
entitlement provision.................................................................................................. 7(1)
equal remuneration..................................................................................................... 7(1)
equal remuneration order............................................................................ 7(1), 51O(2)
existing employee.................................................................................................. 97U(1)
expiry day................................................................................................ 49G(1), 49Q(3)
exposure draft..................................................................................................... 97WA(1)
federal award............................................................................................................... 80B
federal counterpart............................................................................... 49G(1), 80BG(1)
federal industrial authority........................................................................................ 80B
federal industrial instrument..................................................................................... 80B
federal organisation.................................................................................................... 7(1)
final decision.......................................................................................................... 35(1A)
final offer arbitration.................................................................................................. 7(1)
finance official.......................................................................................................... 74(1)
finding........................................................................................................................... 7(1)
first agreement.......................................................................................................... 41(8)
first person...................................................................................... 51BQ(1), 51BZB(1)
fit and proper person criteria................................................................. 49G(1), 49P(2)
flexible working arrangement dispute........................................................... 7(1), 51D
flexible working arrangement order.................................................... 51C(1), 51G(5)
flexible working arrangement request............................................................... 51C(1)
foreign roll......................................................................................................... 112A(3B)
former............................................................................................................... Sch. 6 cl. 1
former Act.................................................................................... 123(1), Sch. 6 cl. 5(1)
former acting President................................................................. Sch. 6 cl. 1 and 2(1)
former section......................................................................................................... 117(1)
former section 73 summons.................................................................... Sch. 6 cl. 8(1)
Full Bench.................................................................................................................... 7(1)
FW Act......................................................................................................................... 7(1)
FW Commission......................................................................................................... 7(1)
FW (Registered Organisations) Act........................................................................ 7(1)
FW (Transitional) Act................................................................................................ 7(1)
general jurisdiction.................................................................................................. 81AA
General Manager................................................................................................. 80BE(1)
Government Financial Projections Statement.................................................. 26(2B)
government officer..................................................................... 7(1), 36AB(1) and (2)
group training organisation....................................................................................... 7(1)
guardianship order............................................................................................. 97WS(4)
habitation premises................................................................................................ 49K(1)
health services employee........................................................................................... 7(1)
human resource management activity................................................................... 36AI
in connection with work.......................................................................... 7(1), 51BR(2)
industrial action........................................................................................................... 7(1)
industrial agreement................................................................................................... 7(1)
Industrial Gazette........................................................................................................ 7(1)
industrial inspector............................................................................................ 7(1), 84P
industrial instrument................................................................................. 7(1), 29AA(5)
industrial law.......................................................................................................... 49G(1)
industrial location..................................................................................................... 98(3)
industrial magistrate’s court...................................................................................... 7(1)
industrial matter.......................................................................................................... 7(1)
industry......................................................................................................................... 7(1)
initiating party............................................................................................................. 40C
instrument-governed employee with a disability....................................... 50A(1AA)
instrument to which this section applies............................................................... 98(6)
involved in............................................................................................. 83(2A), 83E(1B)
involved person................................................................................................... 83EA(6)
irregularity.................................................................................................................... 7(1)
judge.............................................................................................................................. 7(1)
judgment................................................................................................... 81CB(1), 88(1)
labour hire agency....................................................................................................... 7(1)
later expiry day....................................................................................................... 49S(1)
limited guardian.................................................................................................. 97WS(4)
local government long service leave provision..................................................... 7(1)
LSL Act........................................................................................................................ 7(1)
matter................................................................................................................ Sch. 6 cl. 1
MCE Act....................................................................................................................... 7(1)
medical practitioner................................................................................. 72B(1), 97WR
mental disability..................................................................................................... 97WR
minimum condition of employment........................................................................ 7(1)
national fair work legislation.................................................................................... 80B
negotiating party......................................................................................................... 40C
new award............................................................................................................... 36A(1)
new employee......................................................................................................... 97U(1)
new permit............................................................................................................... 49S(1)
new State instrument................................................................................ 80B, 80BB(2)
no-disadvantage test.............................................................................................. 97U(1)
nominal expiry date.................................................................................................. 42(8)
nominated official................................................................................... 49G(1), 49N(3)
nominated person........................................................................................................ 84B
occupier................................................................................................................... 49L(2)
office............................................................................................................................. 7(1)
officer............................................................................................................................ 7(1)
officer of the Commission......................................................................................... 7(1)
officer of the Court..................................................................................................... 7(1)
old federal instrument.............................................................................. 80B, 80BB(1)
one-tier collegiate electoral system............................................................................ 52
organisation.......................................................................... 7(1), 72A(1), 72B(2), 96A
organisation of employees........................................................................................ 96A
original dispute.................................................................................................. 97WK(1)
original term........................................................................................................... 56A(4)
outworker.......................................................................................................... 51BH(1A)
particular allegation......................................................................................... 51BZD(1)
party.................................................. 38(1b), 91(2), 97U(1), 97VC(5), Sch. 4 cl. 1(3)
peak industrial body........................................................................................... 97VZ(3)
person....................................................................................................... 51BF, 51BR(1)
person with a mental disability............................................................................ 97WR
plenary guardian................................................................................................. 97WS(4)
postal ballot.................................................................................................................... 52
post-commencement behaviour........................................................................... 123(1)
post-secondary education institution....................................................................... 7(1)
pre-commencement behaviour............................................................................. 123(1)
premises........................................................................................................................ 7(1)
prescribed amount.............................................................................................. 29AA(5)
prescribed period.......................................................................................... 40C, 42A(1)
prescribed procedures............................................................................................ 129(1)
presiding commissioner............................................................................................. 7(1)
presiding judge............................................................................................................ 7(1)
principal..................................................................................... 7(6), 51BS(1), 83EA(6)
principal executive officer......................................................................................... 7(1)
private sector award.................................................................................................... 7(1)
proceedings................................................................................................................ 49(4)
produce......................................................................................................................... 7(1)
proposed representative................................................... 97WR, 97WV(3), 97XM(3)
prosecution jurisdiction.......................................................................................... 81AA
protected information........................................................................................ 97WB(1)
Public Advocate...................................................................................................... 97WR
public authority........................................................................................................... 7(1)
public hospital............................................................................................................. 7(1)
public sector award..................................................................................................... 7(1)
public sector body........................................................................................... 7(1), 36AI
Public Sector Commissioner................................................................................ 129(1)
public sector decision........................................................................................... 26(2B)
public sector entity................................................................................................ 26(2B)
Public Sector Wages Policy Statement ............................................................. 26(2B)
public service officer.................................................................................................. 7(1)
published in the required manner............................................................................. 7(1)
qualified commissioner..................................................................................... 81B(2A)
recipient......................................................................................................... 84B, 84V(1)
reclassification........................................................................................... 7(1), 36AD(1)
record............................................................................................................................ 7(1)
record-related civil penalty provision..................................................................... 7(1)
Registrar........................................................................................................... 7(1), 96(1)
Registrar’s Department.............................................................................................. 7(1)
Registrar’s Department officer................................................................................. 7(1)
registration................................................................................................................... 7(1)
regulations............................................................................................................... 97U(1)
relevant day.................................................................................................. 80A(2), 80B
relevant employee.................................................................................................. 49G(1)
relevant order........................................................................................................... 97VR
relevant organisation............................................................................................. 49R(2)
relevant person....................................................................................................... 49E(4)
relevant policy instrument................................................................................. 36AG(2)
relevant proceedings............................................................................................. 37D(9)
relevant provision................................................................................................... 128(1)
remuneration-related action................................................................................. 51R(1)
repeal............................................................................................................................. 118
repealed......................................................................................................................... 118
repealed Act................................................................................................................. 7(1)
repealed Workplace Act............................................................................................ 80B
representative........................................................................................ 7(1), 97X, 97XO
represented person............................................................................... 7(1), 97X, 97XO
respond.................................................................................................................... 51C(1)
respondent.......................................................... 51BX(1), 51BZ(1), 51BZC(1), 77(1)
revocation order........................................................................ 97WR, 97XG, 97XI(1)
right of entry permit.............................................................................................. 49G(1)
rules.......................................................................................................................... 52A(1)
secondary office.......................................................................................................... 7(1)
second person................................................................................. 51BQ(1), 51BZB(2)
section 97UM signatory....................................................................................... 97U(1)
Senior Commissioner................................................................................................. 7(1)
serious contravention................................................................................ 7(1), 83EA(2)
sexual harassment proceeding................................................................................ 51BF
sexual harassment referral..................................................................... 51BF, 51BT(1)
sexually harasses....................................................................................... 7(1), 51BQ(1)
specified.................................................................................................................. 51A(3)
specified public sector standard............................................................................. 36AI
statement of principles.......................................................................................... 51O(1)
State organisation.......................................................................................................... 52
State rules................................................................................................................ 71A(2)
State Wage order................................................................................................... 50A(1)
stop bullying application........................................................................ 51BF, 51BJ(1)
stop bullying order................................................................................ 51BF, 51BM(2)
stop sexual harassment application...................................................... 51BF, 51BT(1)
stop sexual harassment order................................................................ 51BF, 51BX(2)
subscription.................................................................................................................. 7(1)
supported employment service...................................................................... 50A(1AA)
supported wage industrial instrument provision.................................................... 7(1)
Supported Wage System............................................................................................ 7(1)
SWIIP............................................................................................................................ 7(1)
SWS............................................................................................................................... 7(1)
taking action............................................................................................................... 36AI
teacher.................................................................................................................. 36AB(3)
terms............................................................................................................................. 80B
third party................................................................................................. 23B(1), 97C(1)
threats...................................................................................................................... 48B(5)
transitioned private sector award......................................................................... 117(1)
vary................................................................................................................................ 7(1)
volunteer.................................................................................................................... 51BF
volunteer association.......................................................................................... 51BG(3)
WA Branch of the AMA...................................................................................... 72B(1)
wage assessment tool................................................................................................. 7(1)
WA Police................................................................................................................. 51BF
worker........................................................................................... 7(1), 51BH(1) and (3)
work health and safety law.................................................................................. 49G(1)
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