Labour Relations Reform Act 2002 (WA)

Western Australia

Labour Relations Reform Act 2002

Western Australia

Labour Relations Reform Act 2002

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
3.	The Act amended	2
Part 2 — Amendments to provide for

employer-employee agreements

Division 1 — Principal amendments to the

Industrial Relations Act 1979

Part VID inserted

Part VID — Employer-employee agreements

Division 1 — Preliminary

97U.

Interpretation

Division 2 — The making of an EEA

97UA.

Employer and employee may make an

EEA

97UB.

EEA may deal with post-employment

matters

97UC.

Other provisions about making an EEA

97UD.

Making of EEA by person with a mental

disability

97UE.

Effect of EEA

97UF.

EEA not to be made while industrial

agreement in operation

97UG.

Documents and information to be given to

employee before EEA signed

97UH.

Application of section 97UG if draft EEA

amended

Labour Relations Reform Act 2002

Contents

97UI.	EEA information statement	10
97UJ.	Bargaining agents	11
97UK.	Prohibited conduct relating to bargaining
agents	12

Division 3 — Form and content of EEA

97UL.	Formalities	12
97UM.	Additional formalities for EEA made with
employee under 18	13
97UN.	EEA must provide for resolution of
disputes	14
97UO.	What must be included in EEA dispute
provisions	14
97UP.	Industrial authority may be specified as
arbitrator	16

Division 4 — Commencement, duration and variation

97UQ.	Commencement of EEA for new employee	16
97UR.	Commencement of EEA for existing
employee	16
97US.	Expiry	16
97UT.	Employment conditions on expiry of EEA	17
97UU.	No power to vary an EEA	17
97UV.	Cancellation of EEA	18
97UW.	Termination of contract of employment	18

Division 5 — Registration of EEAs

Subdivision 1 — Preliminary

97UX.

Delegation by Registrar

Subdivision 2 — Registration

97UY.	Lodgment for registration	19
97UZ.	Failure to lodge EEA made with new
employee	20
97V.	Recovery of money	20
97VA.	Employment conditions of new employee
if EEA not lodged for registration within
allowed period	21
97VB.	Registrar to be satisfied that EEA in order
for registration	22
97VC.	Powers conferred on Registrar	22
97VD.	Registrar to notify parties of certain
deficiencies in EEA	23
97VE.	Parties may correct deficiencies	23
97VF.	Registration	24
97VG.	Refusal of registration	24
97VH.	When refusal has effect	24
97VJ.	Recovery of money	25
97VK.	Employment conditions of new employee
if registration refused	26
97VL.	Registrar to provide copy	26

Labour Relations Reform Act 2002

Contents

Subdivision 3 — Appeal against refusal of

registration

97VM.	Appeal against refusal of registration	27
97VN.	Relevant industrial authority to notify
parties of certain deficiencies in EEA	27
97VO.	Parties may make corrections	28
97VP.	Determination of appeal	29
97VQ.	Proceedings under this Subdivision	29

Division 6 — No-disadvantage test

Subdivision 1 — Definition

97VR.	Definitions	30
97VS.	No-disadvantage test defined	30
97VT.	Determination of award, comparable
award or relevant order by Registrar	32
97VU.	All entitlements to be considered	32
97VV.	Particular provision for case where
Supported Wage System applies	33

Subdivision 2 — Principles to be followed in

application of no-disadvantage test

97VW.	Definition	33
97VX.	Commission to establish principles and
guidelines	33
97VY.	Registrar and Commission to give effect to
instrument	34
97VZ.	Minister and certain bodies may seek
amendment	34
97W.	Requirement for public comment	35
97WA.	Public comment on amendment or
substitute instrument	35

Division 7 — Register

97WB.	Definition	36
97WC.	Register	36
97WD.	Inspection of register	37
97WE.	Commission may exempt an EEA from
inspection	37
97WF.	Protected information not to be disclosed	37
97WG.	Certified copies	38

Division 8 — Disputes

97WH.	Definitions	39
97WI.	Arbitration jurisdiction of relevant industrial
authority	39
97WJ.	Representation	39
97WK.	Referral to relevant industrial authority
where delay alleged in dispute resolution	40
97WL.	Several disputes may be subject of one
arbitration	41
97WM.	Power of arbitrator to obtain information	41
97WN.	Orders and determinations of arbitrators	42

Labour Relations Reform Act 2002

Contents

97WO.

Further provisions about orders and

determinations

97WP.

Enforcement of orders and determinations

97WQ. Industrial magistrate’s court not bound by

interpretations of EEA

Division 9 — EEAs for persons with mental

disabilities

Subdivision 1 — Preliminary

97WR.	Definitions	44
97WS.	Relationship of this Division to
Guardianship and Administration Act 1990	45
97WT.	Registrar to notify Board of applications
and orders for approval of representative	46
97WU.	Board to notify Registrar of relevant
guardianship orders	46

Subdivision 2 — Approval of person to act on

behalf of person with a mental disability

97WV.	Application for approval	47
97WW.	Requirements for application	48
97WX.	Forms to be prescribed	48
97WY.	Who may be approved as a representative	49
97WZ.	Approval of representative	49
97X.	Effect of order	50
97XA.	Refusal of approval	50
97XB.	Appeal against refusal of approval	51
97XC.	Determination of appeal	51

Subdivision 3 — Functions of representative

97XD.	Functions	52
97XE.	Effect of acts of representative	53
97XF.	Duties of representative	53

Subdivision 4 — Termination of representative’s

authority to act

97XG.	Duration of order approving representative	54
97XH.	Resignation of representative	54
97XI.	Application to Board for revocation order	54
97XJ.	Opportunity to be heard	55
97XK.	Board may make revocation order	55
97XL.	Application of Guardianship and
Administration Act 1990 for purposes of
section 97XK	56

Subdivision 5 — Approval of new representative

97XM.

Application for new approval where

representative dies or approval is revoked

97XN.

Approval of representative

97XO.

Effect of order

97XP.

Refusal of approval

97XQ.

Appeal against refusal of approval

Labour Relations Reform Act 2002

Contents

Subdivision 6 — Miscellaneous

97XR.	Powers of Registrar	59
97XS.	EEA not affected by revocation of order or
vacancy in position of representative	59
97XT.	Register	60
97XU.	Certified copies	60
97XV.	Information not to be disclosed	61
97XW.	Proceedings under this Division	61

Division 10 — Certain conduct prohibited

97XX.	Purpose of this Division	62
97XY.	Enforcement of prohibitions in this Division	62
97XZ.	Making employment, transfer or promotion
conditional on EEA being entered into	62
97Y.	Certain advertising	63
97YA.	Exception to sections 97XZ and 97YB	64
97YB.	Employer offering EEA to give choice as
to employment arrangements	64
97YC.	Order for compliance with section 97YB	65
97YD.	Threats and intimidation	66
97YE.	Misinformation	66
97YF.	Dismissal or detriment because of refusal
to make or cancel EEA	67
97YG.	Employee’s remedy for breach of
section 97YF	67
97YH.	Burden of proof	68

Division 11 — General

97YI.	Review of Divisions 5, 6 and 7	69
97YJ.	Regulations	69

5.	Schedules 4 and 5 inserted	70
Schedule 4 — Registration requirements for EEAs

When EEA is in order for registration

Schedule 5 — Powers to obtain information, and

related provisions

1.	Powers to obtain information	71
2.	Obstruction	72
3.	False statements	72
4.	Failure to comply with notice	72
5.	Legal professional privilege	73
6.	Incriminating answers or documents	73

Division 2 — Amendments to the Industrial

Relations Act 1979 consequential on

Division 1

6.	Section 7 amended	73
7.	Section 29 amended	74
8.	Section 49 amended	74

Labour Relations Reform Act 2002

Contents

9.	Section 80E amended	75
10.	Section 80F amended	75
11.	Section 80R amended	76
12.	Section 80S amended	76
13.	Section 81A amended	77
14.	Section 81CA amended	77
15.	Section 103 amended	77
Division 3 — Amendments to other Acts

consequential on Division 1

16. Coal Industry Tribunal of Western Australia

Act 1992 amended

17. Conservation and Land Management Act 1984

amended

18.

Forest Products Act 2000 amended

19.

Grain Marketing Act 1975 amended

20.

Long Service Leave Act 1958 amended

21.

Marketing of Potatoes Act 1946 amended

22. Minimum Conditions of Employment Act 1993

amended

23.

Port Authorities Act 1999 amended

24.

Public and Bank Holidays Act 1972 amended

25.

Public Sector Management Act 1994 amended

26.

Zoological Parks Authority Act 2001 amended

27. Inserting reference to “Part VID of the Industrial

Relations Act 1979” in various Acts

Part 3 — Amendments to Workplace

Agreements Act 1993,

transitional provisions and

consequential amendments to

other Acts

Division 1 — Amendments to Workplace

Agreements Act 1993

28.	The Act amended	85
29.	Long title replaced	85
30.	Section 3 amended	86
31.	Part 1A inserted	86

Labour Relations Reform Act 2002

Contents

Part 1A — Phasing out and expiry of Act

4A.	Expiry of Act	86
4B.	Further workplace agreements cannot be
made	87
4C.	Limit on duration of agreements registered
on or after 22 March 2001	87
4D.	Limit on duration of arrangements under
repealed section 19(4)(b)	87
4E.	Termination of unregistered individual
workplace agreements	88
4F.	Limit on duration of agreements not
covered by section 4C or 4E	88
4G.	Termination of effect of agreement under
repealed section 23(1)	89
4H.	Employment conditions if workplace
agreement or arrangement terminated or
employee ceases to be a party	90
4I.	Rights, obligations and proceedings not affected by termination of agreement or arrangement	92
4J.	This Part to prevail	93

32.

Section 8 replaced

Effect of addition of employee as party

33.

Section 9 replaced

Making of collective workplace agreement

34.	Section 10 amended	94
35.	Section 11 repealed	94
36.	Section 12 amended	94
37.	Section 15 amended	94
38.	Section 16 repealed	95
39.	Section 18 amended	95
40.	Sections 19 and 20 repealed	95
41.	Section 21 amended	95
42.	Section 23 repealed	95
43.	Section 24 amended	95
44.	Section 25 repealed	95
45.	Part 2 Division 4 heading amended	96
46.	Sections 26 and 27 repealed	96
47.	Section 28 amended	96
48.	Sections 29 to 38 repealed	96
49.	Section 39 amended	96
50.	Section 40 amended	97
51.	Part 2A repealed	98
52.	Section 44 amended	98

Labour Relations Reform Act 2002

Contents

53.	Section 45 amended	98
54.	Section 48 amended	98
55.	Part 5 Division 1 heading amended	98
56.	Section 49 amended	99
57.	Section 50 amended	99
58.	Section 51 replaced	99

51.

Unfair dismissal

59.	Section 52 repealed	100
60.	Section 55 amended	100
61.	Section 56 amended	100
62.	Section 57 amended	100
63.	Section 58 replaced	101

58.

Monetary limit on jurisdiction

101

64.	Section 60 amended	101
65.	Section 61 amended	101
66.	Section 66 amended	102
67.	Section 67 amended	102
68.	Section 73 repealed	102
69.	Parts 6 and 7 repealed	102
70.	Section 101 repealed	102
71.	Section 101A amended	102
72.	Schedule 2 repealed	102
Division 2 — Transitional provisions for

amendments to the Workplace Agreements

Act 1993 made by Division 1

Subdivision 1 — Preliminary

73.	Definitions	103
74.	Interpretation Act 1984 not affected	103
Subdivision 2 — Agreements under principal Act
75.	Saving of addition of parties under section 23	103
76.	Provision for unregistered collective workplace
agreements	103
77.	Saving for unregistered agreements under
section 24(1)	104
Subdivision 3 — Registration
78.	Registrar to take possession of register, documents
and records	104
79.	Registration not affected by repeal	105
80.	Continuation of status as excluded party	105
81.	Review under section 34 discontinued	105

Labour Relations Reform Act 2002

Contents

82.	Appeal under section 35 discontinued	105
Subdivision 4 — Remedies and offences
83.	Recovery of amounts where section 4E or 4G
applies	106
84.	Proceedings in progress under repealed section 51	106
85.	Amounts may be recovered under repealed
section 52	107
86.	Proceedings for offences	107
Subdivision 5 — Provisions relating to the

Commissioner

87.	Definitions	108
88.	References to Commissioner in agreements and
instruments	108
89.	Proceedings and remedies	108
90.	Other things in progress	109
91.	Annual report for part of year	109
92.	Completion of things commenced	109
Subdivision 6 — Miscellaneous
93.	Offender may be punished despite repeal of
section 25	110
94.	Tribunal’s arbitration function under repealed
section 40E(b)	110
95.	Immunity not affected	110
96.	Offshore application not affected	110
97.	Powers in relation to transitional provisions	111
Division 3 — Transitional provisions for the

expiry of the Workplace Agreements

Act 1993

98.	Definitions	112
99.	Interpretation Act 1984 not affected	112
100.	Effect of certain provisions preserved	112
101.	Offences under expired Act	112
102.	Application of enforcement provisions	112
103.	Keeping of records	113
104.	Access to records	113
105.	Consequential amendment of other laws	114
106.	Powers in relation to transitional provisions	115

Labour Relations Reform Act 2002

Contents

Division 4 — Consequential amendments and

related transitional provisions

107. Coal Industry Tribunal of Western Australia

Act 1992 amended

116

108.

Further amendment to the Coal Industry Tribunal of Western Australia Act 1992 as from the expiry of the Workplace Agreements Act 1993

116

109.

Constitution Acts Amendment Act 1899 amended

117

110. Financial Administration and Audit Act 1985

amended

117

111.

Industrial Relations Act 1979 amended

117

112.

Transitional provisions relating to section 111(4)

118

113. Further amendments to the Industrial Relations

Act 1979 as from the expiry of the Workplace

Agreements Act 1993 and transitional provision

118

Part 4 — Amendments about awards

114.

Section 6 amended

120

115.

Section 29A amended

120

116. Part II Division 2A heading and section 36A

inserted

122

Division 2A — Awards

36A.	Application for award coverage for

non-award employees

122

117.	Section 38 amended and a savings provision	123
118.	Sections 40A and 40B inserted	124

40A.

Incorporation of industrial agreement

provisions into awards by consent

124

40B.

Power to vary awards to reflect statutory

and other requirements, to promote

efficiency and to facilitate implementation

124

119. Part II Division 2C, 2D and 2E headings inserted

and Part II Division 2A heading deleted

126

Division 2C — Holding of compulsory conferences Division 2D — Miscellaneous provisions relating to

awards, orders and agreements

120. Sections 49A and 49C repealed and inserted as

sections 48A and 48B

126

121. Consequential amendments to section 22A, 25,

80G and 80W

127

Labour Relations Reform Act 2002

Contents

Part 5 — Amendments about the

Industrial Relations Commission and the Industrial Appeal Court

122.	Section 27 amended	128
123.	Section 32A inserted	128

32A.

Conciliation and arbitration functions of

Commission to be unlimited

128

124.	Section 34 amended	129
125.	Section 49 amended	129
126.	Section 90 amended	130
Part 6 — Amendments about

industrial agreements and good

faith bargaining

127.	Section 6 amended	131
128.	Section 7 amended	132
129.	Section 26 amended	132
130.	Part II Division 2B heading and section 40C
inserted	133
Division 2B — Industrial agreements

40C.

Interpretation

133

131.	Section 41 amended	133
132.	Section 41A replaced	134

41A.

Registration of industrial agreement

134

133.

Sections 42 to 42M inserted

135

42. Initiation of bargaining for industrial

agreement

135

42A.

Response to initiation of bargaining

136

42B.

Good faith bargaining for industrial

agreement

137

42C.

Code of good faith

139

42D.

Duty of good faith does not require

concluded industrial agreement

140

42E.

Conciliation and arbitration to assist

bargaining

140

42F.

Restriction on Commission’s power in

relation to industrial agreements

140

42G.

Parties may agree to Commission making

orders as to terms of agreement

141

42H.

Commission may declare that bargaining

has ended

142

42I.

Commission may make enterprise orders

142

42J.

Effect of enterprise order

144

Labour Relations Reform Act 2002

Contents

42K.	Term of enterprise order	145
42L.	When bargaining ends	146
42M.	Regulations	147

134.	Section 84A amended	147
135.	Section 93 amended	147
136.	Section 112A amended	147
Part 7 — Amendments about unfair

dismissal and employment issues

137.	Section 23 amended	149
138.	Section 23A replaced by sections 23A and 23B and
transitional provision	149

23A.

Powers of Commission on claims of unfair

dismissal

149

23B.

Power to prevent external interference

with employment issues

152

139.	Section 29 amended	153
140.	Section 29AA inserted and a transitional provision	154

29AA.

Certain claims not to be determined

154

141.	Section 44 amended and a transitional provision	155
Part 8 — Amendments about right of

entry, record keeping and

inspection of records

142.	Section 7 amended	157
143.	Section 23 amended	157
144.	Section 41 amended	158
145.	Sections 49AB and 49B repealed	158
146.	Part II Divisions 2F and 2G inserted and a
transitional provision	158
Division 2F — Keeping of and access to

employment records

49D.	Keeping of employment records	158
49E.	Access to employment records	160
49F.	Enforcement of this Division	161

Division 2G — Right of entry and inspection by

authorised representatives

49G.	Interpretation	161
49H.	Right of entry for discussions with
employees	162
49I.	Right of entry to investigate breaches	162
49J.	Provisions as to authorities issued to
representatives	165

Labour Relations Reform Act 2002

Contents

49K.	No entry to premises used for habitation	166
49L.	Authority must be shown on request	166
49M.	Conduct giving rise to civil penalties	167
49N.	Power of Commission restricted	167
49O.	Enforcement of this Division	168

147.	Section 98 amended	168
148.	Section 102 amended	168
Part 9 — Amendments about

procedure and enforcement

149.	Section 7 amended	169
150.	Section 22B inserted	169

22B.

Commission to act with due speed

169

151.	Section 44 amended	169
152.	Section 70 amended and a transitional provision	170
153.	Section 80L amended	170
154.	Section 82 amended	170
155.	Section 83 repealed and sections 83, 83A, 83B and
83C inserted instead and transitional provisions	171

83.	Enforcement of certain instruments	171
83A.	Underpayment of employee	173
83B.	Enforcement of unfair dismissal order	174
83C.	Costs of enforcement orders	177

156.	Section 83A amended	178
157.	Sections 83E and 83F inserted	178

83E.	Contravention of a civil penalty provision	178
83F.	Payment of costs and penalties	180

158.	Section 84A amended	181
159.	Section 102 amended	181
160.	Consequential amendments to sections 81A, 81CA,
82A, 93, 102A and 103	181
161.	Section 96 inserted	182

96.

Delegation of certain functions to Registrar

182

162.	Section 113 amended	185
Part 10 — Amendments about

minimum weekly rates of pay

and other conditions of

employment

Division 1 — Amendments to the Minimum Conditions of Employment Act 1993 in relation to minimum weekly rates of pay

Labour Relations Reform Act 2002

Contents

and other minimum conditions of

employment

163.	The Act amended	187
164.	Section 3 amended	187
165.	Section 8 amended and savings provisions as to
certain existing section 8 agreements	188
166.	Section 9 amended	189
167.	Part 3 replaced	189
Part 3 — Minimum rates of pay

10. Entitlement of employees to be paid a

minimum rate of pay

189

11. Minimum rate of pay for casual employees

includes a loading

190

12. Minimum weekly rate of pay: employees of

21 or more years of age

190

13. Minimum weekly rate of pay: employees

under 21 years of age

190

14.

Minimum weekly rates of pay: apprentices

191

15.

Minimum weekly rates of pay: trainees

191

168. Transitional provisions for minimum weekly rates

of pay

192

169.

Section 19 amended and a savings provision

192

170.

Section 20A inserted

193

20A.	Entitlement to use certain sick leave

entitlements as carer’s leave

193

171.

Section 21 replaced

194

21. Certain matters as to sick leave not

minimum conditions

194

172.

Section 22 replaced

194

22. Proof in support of claims for sick leave or

use of sick leave entitlements as carer’s

leave

194

173.	Section 23 amended and a savings provision	195
174.	Section 40 amended	195
175.	Section 43 amended	196
176.	Section 44 amended	196
177.	Miscellaneous amendments as to “IR Act”	196
Division 2 — Amendments to the *Industrial*

Relations Act 1979 in relation to minimum weekly rates of pay

178.	Section 7 amended	197
179.	Section 50 amended	197
180.	Section 51B inserted	198

Labour Relations Reform Act 2002

Contents

51B.

Commission’s power to make General

Orders as to matters for which minimum conditions of employment are prescribed by MCE Act

198

181.

Part II Division 3A inserted

198

Division 3A —MCE Act functions

Subdivision 1 — Preliminary

51C.

Interpretation

198

Subdivision 2 — Minimum weekly rates of pay 51D. Commission to review minimum weekly

rates of pay for purposes of MCE Act

199

51E.	When reviews can occur	199
51F.	Setting of minimum weekly rates of pay by
the Commission	200
51G.	Matters relevant to setting rates for
apprentices and trainees	201
51H.	When orders under this Subdivision have,
and cease to have, effect	202

Subdivision 3 — Casual employees’ loading

51I.

Casual employees’ loading

203

Subdivision 4 — Orders under this Division

generally

51J.	Notification of hearings under this Division	204
51K.	Right to be heard	204
51L.	Restrictions on matters that orders under
this Division can provide for	204
51M.	Publication of orders	205
51N.	Variation or rescission	205

182.	Miscellaneous amendments as to “MCE Act”	206
Division 3 — Consequential amendments in

relation to minimum weekly rates of pay

183.	Equal Opportunity Act 1984 amended	206
184.	Vocational Education and Training Act 1996
amended	206
Part 11 — Other amendments
185.	Section 7 amended	208
186.	Section 20 amended and transitional and savings
provisions	210
187.	Section 32 amended	211
188.	Section 37A repealed	212
189.	Section 51 amended	212

Labour Relations Reform Act 2002

Contents

190. Sections 7, 47, 50, 55, 72A and 93 and Schedule 1

amended relating to publication in the Industrial

Gazette

213

191.

Amendments to the Act and the Labour Relations Legislation Amendment Act 1997 about collection of union subscriptions

215

192. Amendments about duties of employees of

organizations

216

193.

Amendments about Federal award coverage

216

194.

Amendments about pre-strike ballots

217

195. Amendments about political expenditure by

organizations

217

Schedule 1 — Transitional minimum

weekly rates of pay

1.	Interpretation	219
2.	Minimum weekly rate of pay for employees 21 or
more years of age	219
3.	Minimum weekly rate of pay for employees less
than 21 years of age	219
4.	Minimum weekly rate of pay for apprentices and
trainees	220

Western Australia

Labour Relations Reform Act 2002

No. 20 of 2002

An Act to —

•	amend the *Industrial Relations Act 1979*;
•	amend the *Workplace Agreements Act 1993* to provide for the phasing out and expiry of that Act;
•	amend the **Minimum Conditions of Employment Act 1993; and**
•	make consequential amendments to other written laws,

and for related purposes.

[Assented to 8 July 2002]

The Parliament of Western Australia enacts as follows:

Labour Relations Reform Act 2002

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Labour Relations Reform

Act 2002.

2. Commencement

(1)	Subject to subsections (3) and (4), this Act comes into operation on a day fixed by proclamation.
(2)	Different days may be fixed under subsection (1) for different provisions.
(3)	Section 111(6) of this Act comes into operation on the day on which it receives the Royal Assent.
(4)	Part 3 Division 3 and sections 108 and 113 come into operation on the expiry of the Workplace Agreements Act 1993 as provided for by section 4A of that Act.

3. The Act amended

The amendments in this Act are to the Industrial Relations

Act 1979* unless otherwise indicated.

[* Reprinted as at 4 February 2000.

For subsequent amendments see 2000 Index to Legislation of Western Australia, Table 1, p. 213, and Act No. 10 of 2001.]

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

Part 2 — Amendments to provide for employer-employee agreements

Division 1 — Principal amendments to the Industrial

Relations Act 1979

4. Part VID inserted

Before Part VII the following Part is inserted —

“

Part VID — Employer-employee agreements

Division 1 — Preliminary

97U.

Interpretation

(1)	In this Part, unless the contrary intention appears —
“award”, except in section 97UG(2)(c), Division 6

Subdivision 1 and sections 97YA(1)(a) and

97YB(2)(a), includes —

(a)	an industrial agreement or order of the Commission under this Act; and
(b)

an award under the Coal Industry Tribunal order under that Act and any agreement that comes within section 12(4) or 17(1) of that Act;

“bargaining agent” means a person appointed as a

bargaining agent under section 97UJ;

“cancellation agreement” means an agreement under section 97UV(1);

“EEA dispute provisions” means the provisions

included in an EEA for the purposes of

section 97UN;

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4
“employment services for persons with disabilities” means employment services —

(a)	that are provided for persons with disabilities who are eligible for the Supported Wage System; and
(b)	for which, at the relevant time, financial assistance has been granted under the Disability Services Act 1986 of the Commonwealth;

“existing employee” means an employee —

(a)	who signs; or
(b)	on whose behalf a representative signs,

an EEA after commencing the employment to

which the EEA relates;

“new employee” means an employee —

(a)	who signs; or
(b)	on whose behalf a representative signs,

an EEA before, or at the time of, the

commencement of the employment to which the

EEA relates;

“no-disadvantage test” means the no-disadvantage

test provided for by Division 6 Subdivision 1;

“party”, in relation to an EEA —

(a)	means the employer or employee; and
(b)

in the provisions mentioned in represented person, also means his or her representative;

“regulations” means regulations made by the

Governor under section 97YJ;

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

“relevant industrial authority” means —

(a)	where the EEA relates to employment as a Government officer to whom Part IIA Division 2 applies, the Commission constituted by a Public Service Arbitrator under that Division;
(b)	where the EEA relates to employment as a railway officer to whom Part IIA Division 3 applies, the Commission constituted by the Railways Classification Board under that Division; and
(c)	subject to paragraphs (a) and (b), the Commission constituted by a Commissioner;

“section 97UM signatory” means a person who has

signed an EEA for the purposes of

section 97UM(2);

“supported wage provisions” means provisions that

enable an employer to pay an employee with a

disability a wage that is related to the employee’s

productive capacity;

“Supported Wage System” means the scheme

established by the Commonwealth Government to

promote the employment of persons whose

productive capacity is reduced because of a

disability.

(2)

References in this Part to “employer” and “employee”

include, where the context so requires, a person who

will be an employer or employee if a proposed EEA

takes effect.

(3)

Subsection (2) is not to be taken as showing that the

terms “employer” and “employee”, as defined in

section 7(1), do not also include a prospective

employer and a prospective employee for the purposes

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4
of other provisions of this Act, including without limitation the definition of “industrial matter”.

(4)	The provisions referred to in paragraph (b) of the definition of “party” in subsection (1) are sections 29(1a), 97UJ(4), 97UK(2), 97UL(3), 97UP, 97UY(1), 97VC, 97VD(2), 97VF(1), 97VG, 97VM(2), 97VN(2), 97VP(3), 97WG(1), 97WK(1) and (2) and 97WP(2).

Division 2 — The making of an EEA

97UA.

Employer and employee may make an EEA

A single employer and a single employee may make an

agreement, called an employer-employee agreement,

that deals with any industrial matter.

97UB.

EEA may deal with post-employment matters

(1)

An EEA may deal with rights and obligations that are

to take effect after the termination of employment

between the persons who, before the termination, were

the employer and the employee.

(2)

The provisions of this Act and of the EEA concerned apply in relation to the rights and obligations referred to in subsection (1) even though the employment has terminated.

97UC.

Other provisions about making an EEA

(1)

An EEA may be made before the commencement of

the employment.

(2)

The ability of an employer and employee to make an

EEA extends to any employment referred to in

section 3(1).

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(3)	The matters that may be dealt with in EEAs made with certain categories of employees are subject to the restrictions in —

(a)	section 99(2) of the Public Sector Management Act 1994; and
(b)	section 16(4a) of the Port Authorities Act 1999.

97UD.

Making of EEA by person with a mental disability

(1)

An EEA may be made for a represented person as an

employee by the person’s representative.

(2)

The EEA is to be made in the name of the represented person as an employee but is to be signed on his or her behalf by the representative.

(3)

An EEA so made has effect as if —

(a)	it were made by the represented person; and
(b)	the represented person were of full legal capacity.

97UE.

Effect of EEA

(1)

An EEA, while it has effect, operates to prevent from

extending to the employee any award that would

otherwise do so, including an award that comes into

operation after the EEA takes effect.

(2)

An EEA, while it has effect, does not displace any

contract of employment between an employer and an

employee, but the EEA has effect —

(a)	as if it formed part of that contract; and
(b)	regardless of the provisions of that contract.

(3)	The provisions of an EEA have effect subject to section 5 of the MCE Act.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

97UF.

EEA not to be made while industrial agreement in

operation

(1)	An EEA in respect of the employment of an employee cannot be made —

(a)	during the term of an industrial agreement that extends to that employee; or
(b)	during any period when such an agreement is continued in force by section 41(6).

(2)	For the purposes of subsection (1), an EEA is to be regarded as made when it has been signed by —

(a) the employer; and

(b)	the employee or, where applicable, his or her representative,

and, if section 97UM applies to the EEA, when it has

also been signed by a section 97UM signatory.

(3)	Subsection (1) does not apply to an EEA if —

(a)	the industrial agreement concerned does not contain supported wage provisions; and
(b)	employment under the EEA has been arranged through an entity that provides employment services for persons with disabilities.

(4)

In this section —

“industrial agreement” includes any agreement that

comes within section 12(4) or 17(1) of the Coal

Industry Tribunal of Western Australia Act 1992.

97UG.

Documents and information to be given to employee

before EEA signed

(1)	An employer must not make an EEA with an employee unless he or she has given a copy of certain documents —

(a) to the employee; or

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(b)	if the employee is a represented person, to his or her representative.

(2)	The documents are —

(a) the proposed EEA;

(b)	the information statement prescribed under section 97UI; and

(i) award; or

(ii) relevant order as defined in section 97VR,

that will extend to the employee if the EEA

does not take effect.

(3)	It is sufficient for the purposes of subsections (1) and (2)(c)(i) if the employer gives a document —

(a)

containing a summary of the award approved and

(b)	having a statement at the head of the document to the effect that it is a summary of the award so approved.

(4)	The documents must be given under subsection (1) —

(a)	in the case of a new employee, not less than 5 days before the EEA is signed by the employee or his or her representative, as the case may be; or
(b)	in the case of an existing employee, not less than 14 days before the EEA is so signed.

(5)	An employer must also comply with any regulations prescribing requirements for the giving of information or documents to an employee before an EEA is made.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

(6)	A contravention of subsection (1) or (5) is not an offence but will, under Schedule 4 clause 1(1)(d), prevent the EEA from being in order for registration.
(7)	In subsections (2)(c)(i) and (3) —
“award” includes —

(a)	an enterprise order; and
(b)	an award under the Coal Industry Tribunal of Western Australia Act 1992.

97UH.	Application of section 97UG if draft EEA amended
If —

(a)	an employer has complied with section 97UG in relation to a proposed EEA; and
(b)	the proposed EEA is later amended, whether once or more than once, before it is signed —

(i) by the employee or his or her representative; and

(ii) if section 97UM applies to the EEA, by a section 97UM signatory,

the employer is not required to comply with that

section again in relation to the proposed EEA unless

the employee in writing requests him or her to do so.

97UI.

EEA information statement

(1)

The Registrar is to prescribe, by order published in the

Gazette, a form of information statement that is to be

given to employees under section 97UG(2)(b).

(2)

The form must include information about the following

matters —

(a)	the effect of section 97UE;
(b)	the employee’s rights under section 97UJ in relation to bargaining agents;

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(c)	the requirements of sections 97XZ, 97Y, 97YA, 97YB and 97YF; and
(d)	the commencement and expiry of an EEA as provided for by sections 97UQ, 97UR and 97US.

(3)	The form may contain other information that the Registrar considers should be included.

97UJ.

Bargaining agents

(1)	An employer or employee may, by instrument in writing, appoint a person to be his or her bargaining agent —

(a)	for the negotiation and making of an EEA;
(b)	in connection with the registration of an EEA;
(c)	for the negotiation and making of a cancellation agreement; or
(d)	for the purpose of acting for him or her in connection with any question, dispute or difficulty that has arisen or may arise out of or in the course of the employment.

(2)	Any person may be appointed as a bargaining agent, including an organization or association that is registered under Part II Division 4.
(3)	An appointment of a bargaining agent may be terminated at any time by notice of termination given in writing to the agent.
(4)	A copy of an instrument of appointment or a notice of termination must be given to the other party.
(5)	For the purposes of section 77A of the Legal Practitioners Act 1893 a bargaining agent is authorised —

(a)	to appear for a party in proceedings as mentioned in section 97WJ; and

Labour Relations Reform Act 2002

Part 2

Amendments to provide for employer-employee agreements

Division 1

Principal amendments to the Industrial Relations Act 1979

s. 4

(b)	to provide advice and other services in performing the functions referred to in subsection (1).

(6)	Subject to section 112A(1a)(c)(i), subsection (1)(d) does not affect the requirement of that section that only a person who is registered under that section may appear as an agent under section 31, 81E or 91.

97UK.

Prohibited conduct relating to bargaining agents

(1)

An employer or employee or a representative must not

refuse to recognise a bargaining agent of the other

party if section 97UJ(4) has been complied with.

(2)

An employer or employee or a representative must not

coerce or induce, or attempt to coerce or induce, the

other party —

(a)	to appoint, or not to appoint, a particular person as a bargaining agent; or
(b)	to terminate the appointment of a bargaining agent.

(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.

Division 3 — Form and content of EEA

97UL. Formalities

(1)	An EEA must —

(a) be in writing;

(b)	name the employer and employee who are parties to it;
(c)	specify whether the employment to which it relates is full-time, part-time or casual; and

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(d)	be signed by —

(i) the employer; and

(ii) the employee, or where applicable, his or her representative.

(2)	An EEA may be signed on behalf of a body corporate by an authorised officer, and need not be made under its seal.
(3)	The signature of —

(a) the employer; and

(b)	the employee or, where applicable, his or her representative,

must be witnessed by a person who has reached

18 years of age and is not a party to the EEA.

97UM.

Additional formalities for EEA made with employee

under 18

(1)	This section applies to an EEA made with a person as the employee who —

(a)	is under 18 years of age; and
(b)	is not a represented person.

(2)	For the purposes of this Act or any other law, the EEA can only have effect if after it has been signed by the employee it is also signed —

(a)	by a person who is legally responsible for the day to day care and welfare of the employee; or
(b)	in circumstances prescribed by the regulations, by a person who belongs to a class of persons so prescribed.

(3)	The signature of a person who signs an EEA under subsection (2) must be witnessed by a person who has reached 18 years of age and is not a party to the EEA.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

(4)	Subject to subsections (2) and (3), an EEA to which this section applies binds the employee as if he or she were of full age.

97UN.

EEA must provide for resolution of disputes

(1)	An EEA must include provisions for the resolution of any question, dispute or difficulty that arises out of or in the course of the employment.
(2)	EEA dispute provisions cannot confer jurisdiction on an arbitrator, including a relevant industrial authority acting under a provision mentioned in section 97UP, to
enforce an EEA by making an order or determination that an industrial magistrate’s court may make under section 83.
(3)	EEA dispute provisions have effect subject to Division 8.
(4)	The regulations may prescribe model provisions as a guide to the kind of provisions that may be inserted in an EEA for the purposes of subsection (1).
(5)	An EEA that sets out the model provisions in the way provided for by the regulations is to be taken to comply with subsection (1).

97UO.

What must be included in EEA dispute provisions

(1)	EEA dispute provisions must, if section 97UP does not apply —

(a) provide for —

(i) the referral to a single arbitrator of any question, dispute or difficulty that arises out of or in the course of the employment; and

(ii) the manner in which the referral is to be made;

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(b)	provide for the appointment of an arbitrator by —

(i) naming the arbitrator, and if desired any alternate arbitrator; or

(ii) setting out how an arbitrator is to be appointed;

and

(c)	specify the means for making any new appointment that may be required.

(2)	EEA dispute provisions must, including where section 97UP applies —

(a)

require the parties to confer together and make or difficulty that arises out of or in the course of the employment;

(b)	comply with any requirement of the regulations that specifies any step, series of steps or process that is to be part of the EEA dispute provisions;
(c)	comply with any requirement of the regulations that limits the time that the EEA dispute provisions may allow for —

(i) doing any act;

(ii) taking any step or series of steps; or (iii) completing any process,

specified in the regulations; and

(d)

specify how any costs of an arbitration are to be employee liable for more than the share of those costs that is prescribed by the regulations at the time when the EEA is made.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

97UP.

Industrial authority may be specified as arbitrator

EEA dispute provisions may provide for a party to

refer to the relevant industrial authority, for arbitration

in accordance with section 97WI, any question, dispute

or difficulty that arises out of or in the course of the

employment.

Division 4 — Commencement, duration and variation

97UQ.

Commencement of EEA for new employee

(1)

An EEA made with a new employee may take effect

before it is registered under Division 5, but under

section 97UZ will automatically terminate if it is not

lodged for registration as mentioned in that section.

(2)

An EEA referred to in subsection (1) takes effect on —

(a)	the day on which the employment commences; or
(b)	a later day provided for in the EEA.

97UR.

Commencement of EEA for existing employee

(1)	An EEA made with an existing employee does not have effect unless it is registered under Division 5.
(2)	An EEA referred to in subsection (1) takes effect on —

(a)	the day after the day on which it is registered under Division 5; or
(b)	a later day provided for in the EEA.

97US. Expiry

(1)	An EEA must provide for the day on which it expires which cannot be more than 3 years from and including the day on which it takes effect under section 97UQ or 97UR.

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(2)	The expiry of an EEA does not of itself terminate the contract of employment between the employer and the employee.

97UT.

Employment conditions on expiry of EEA

(1)	On the expiry of an EEA —

(a)	any relevant award provisions extend to the employee unless a new EEA then takes effect; and
(b)	to the extent that paragraph (a) does not apply, the employment of the employee becomes subject to a contract of employment containing the same provisions as those of the EEA that has expired other than —

(i) the provision specifying the term of the EEA; and

(ii) the EEA dispute provisions.

(2)	A contract referred to in subsection (1)(b) —

(a)	has effect, and may be varied or terminated, as if it were a contract entered into between the employer and the employee; and
(b)	contract of employment referred to in

has effect regardless of the provisions of any employee.

97UU.

No power to vary an EEA

(1)	The parties to an EEA cannot vary the provisions of the EEA once it has been signed by —

(a) the employer; and

Labour Relations Reform Act 2002

Part 2

Amendments to provide for employer-employee agreements

Division 1

Principal amendments to the Industrial Relations Act 1979

s. 4

(b)	the employee or, where applicable, his or her representative,

or, if section 97UM applies to the EEA, once it has been signed by the employer, the employee and the section 97UM signatory.

(2)

Subsection (1) applies even though the EEA has not

taken effect.

(3)

However, subsection (1) does not affect the provisions

of —

(a)	section 97UV relating to the cancellation of an EEA; or
(b)	sections 97VE and 97VO relating to the revision of an EEA so that it is in order for registration.

97UV. Cancellation of EEA

(1)

The parties to an EEA may at any time make an

agreement in writing cancelling the EEA with effect on

and from a specified day.

(2)

Section 97UT applies on the cancellation of an EEA

that has taken effect as if the EEA had expired.

97UW.

Termination of contract of employment

The termination of the contract of employment of an

employee terminates an EEA that applies to the

employment.

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

Division 5 — Registration of EEAs Subdivision 1 — Preliminary

97UX. Delegation by Registrar

(1)	The Registrar may delegate to an officer of the Commission the performance of a function of the Registrar under this Division, other than this power of delegation.

(2) A delegation —

(a)	must be made by instrument in writing; and
(b)	may be either general or as otherwise provided by the instrument.

(3)

An officer of the Commission performing a function

under this Division is to be taken to do so in

accordance with the terms of a delegation under this

section, unless the contrary is shown.

(4)

A function performed by an officer of the Commission

as a delegate of the Registrar is to be taken to be

performed by the Registrar.

Subdivision 2 — Registration

97UY. Lodgment for registration

(1)	A party to an EEA may, in accordance with the regulations, lodge it with the Registrar for registration.
(2)	An EEA must be lodged not later than the end of the
period beginning with the day of execution and ending
with the 21st day after that day.
(3)	The Registrar is not to accept an EEA for registration if —

(a)	it is presented for lodgment after the end of the period referred to in subsection (2); or

Labour Relations Reform Act 2002

Part 2

Amendments to provide for employer-employee agreements

Division 1

Principal amendments to the Industrial Relations Act 1979

s. 4

(b)	any provision of the regulations relating to lodgment has not been complied with.

(4)	The Registrar must issue to a person who has duly lodged an EEA under this section a receipt showing the day of lodgment.
(5)	The receipt must be issued within 7 days after the day of lodgment.
(6)	In subsection (2) —
“day of execution” means —

(a)	the day on which the EEA was signed by —

(i) the employer;

(ii) the employee or, where applicable, his or her representative; and

(iii) if section 97UM applies, the section 97UM signatory;

(b)	if they signed on different days, the latest of those days.

97UZ.	Failure to lodge EEA made with new employee
If an EEA made with a new employee —

(a)	has taken effect; but
(b)	is not lodged for registration within the period allowed by section 97UY(2),

it ceases to have effect for the purposes of this Part

immediately after the expiry of that period.

97V.

Recovery of money

(1)	Where section 97UZ applies, either party may, subject to subsection (2), recover from the other any amount which, if the EEA had not taken effect, he or she —

(a)	would have been entitled to receive; or

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

would not have been required to pay,

as the case may be, in respect of the period allowed by

section 97UY(2) for lodgment.

(b)

(2)

The entitlement of an employee is to be determined for the purposes of subsection (1) as if any relevant award provision extended to and bound the employer and the employee during the period referred to in that

subsection.

(3)

An amount referred to in subsection (1) may be

recovered by action in an industrial magistrate’s court.

97VA.

Employment conditions of new employee if EEA not

lodged for registration within allowed period

(1)	If an EEA ceases to have effect under section 97UZ —

(a)	any relevant award provisions extend to the employee; or
(b)	if there are no such provisions, his or her employment becomes subject to a contract of employment containing the same provisions as those of the EEA that was not lodged for registration within the allowed period, other than —

(i) the provision specifying the term of the EEA; and

(ii) the EEA dispute provisions.

(2)	A contract referred to in subsection (1)(b) —

(a)	has effect, and may be varied or terminated, as if it were a contract entered into between the employer and the employee; and
(b)	contract of employment referred to in

has effect regardless of the provisions of any employee.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

97VB.

Registrar to be satisfied that EEA in order for

registration

Where an EEA is lodged under section 97UY, the

Registrar must satisfy himself or herself that it is in

order for registration as required by the provisions of

Schedule 4.

97VC.

Powers conferred on Registrar

(1)	The Registrar may —

(a)	meet with the parties; and
(b)	otherwise obtain information in any way that the Registrar thinks appropriate,

for the purposes of section 97VB.

(2)	A meeting may be held with the parties together or separately, and a party may be represented at a meeting by a bargaining agent.
(3)	A party to an EEA that has been lodged for registration, or his or her bargaining agent, may make written submissions to the Registrar for the purposes of section 97VB.
(4)	For the purposes of performing the function in section 97VB the Registrar, or a delegate of the Registrar, is an authorised person within the meaning of that term in Schedule 5.
(5)	In this section —
“party” includes a section 97UM signatory.

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

97VD.

Registrar to notify parties of certain deficiencies in

EEA

(1)	This section applies where the Registrar is not satisfied that an EEA is in order for registration for one or more of the following reasons —

(a)	it does not comply with section 97UL, 97UN or 97US;
(b)	it does not pass the no-disadvantage test;
(c)	it purports to provide for a condition of employment that is less favourable to the employee than a minimum condition of employment under the MCE Act.

(2)	Where this section applies the Registrar must give notice in writing to the parties setting out —

(a)	the deficiencies in the EEA that, in his or her opinion, will make it necessary for the Registrar to refuse to register it; and
(b)	the terms of subsection (1) of section 97VE and the period within which the parties may comply with that subsection.

97VE.

Parties may correct deficiencies

(1)	If a notice is given to the parties under section 97VD they may, in accordance with the regulations, lodge a revised EEA with the Registrar within the time
specified in the notice.
(2)	A revised EEA so lodged is to be treated as if it were an EEA duly lodged under section 97UY.
(3)	Section 97VD does not apply to a revised EEA lodged under subsection (1).

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

(4) If —

(a)	the Registrar has given a notice under section 97VD; but
(b)	a revised EEA is not lodged in accordance with subsection (1),

the Registrar must determine under section 97VG that

registration of the EEA is refused.

97VF. Registration

(1)	If the Registrar is satisfied that an EEA is in order for registration, the Registrar must —

(a) register the EEA; and

(b)	give to each party notice in writing of the registration and of the day on which it occurred, not later than 7 days after that day.

(2)	The Registrar is not to register an EEA before the 14th day after the day on which it was lodged under section 97UY.

97VG. Refusal of registration

If the Registrar is not satisfied that an EEA is in order

for registration, the Registrar must —

(a)	determine that registration is refused; and
(b)	within 7 days after making that determination, give to each party a notice in writing of the refusal and of the reasons for it.

97VH.

When refusal has effect

(1)	A refusal of registration comes into force —

(a)	on the expiry of the period of 14 days allowed by section 97VM(2) for the bringing of an

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

appeal against the refusal without an appeal

being duly brought; or

(b)	if an appeal is duly brought, on the failure of the appeal.

(2)	For the purpose of subsection (1)(b) an appeal fails if —

(a)	the refusal of registration is confirmed under section 97VP(2); or
(b)	the appeal is withdrawn or is dismissed by the relevant industrial authority for want of prosecution.

97VI.

Cessation of EEA for new employee where

registration refused

If an EEA made with a new employee —

(a) has taken effect; but

(b)	is refused registration under section 97VG,

the EEA ceases to have effect for the purposes of this Part as from the day on which the refusal comes into force under section 97VH.

97VJ.

Recovery of money

(1)	Where section 97VI applies either party may, subject to subsection (2), recover from the other any amount which, if the EEA had not taken effect, he or she —

(a)	would have been entitled to receive; or
(b)

would not have been required to pay,

as the case may be, in respect of the period between the

day when the EEA took effect and the day on which

the refusal of registration came into force.

(2)	The entitlement of an employee is to be determined for the purposes of subsection (1) as if any relevant award

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4
provision extended to and bound the employer and the employee during the period referred to in that subsection.

(3)	An amount referred to in subsection (1) may be recovered by action in an industrial magistrate’s court.

97VK.

Employment conditions of new employee if

registration refused

(1)	If an EEA ceases to have effect under section 97VI —

(a)	any relevant award provisions extend to the employee; or
(b)	if there are no such provisions, his or her employment becomes subject to a contract of employment containing the same provisions as those of the EEA that was refused registration, other than —

(i) the provision specifying the term of the EEA; and

(ii) the EEA dispute provisions.

(2)	A contract referred to in subsection (1)(b) —

(a)	has effect, and may be varied or terminated, as if it were a contract entered into between the employer and the employee; and
(b)	contract of employment referred to in

has effect regardless of the provisions of any employee.

97VL.

Registrar to provide copy

(1)	The Registrar must give a copy of an EEA that is registered —

(a)	to the employer and the employee; and

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(b)	where applicable, to the employee’s representative.

(2)	The Registrar must comply with subsection (1) not later than 7 days after the day on which the EEA is registered —

(a) under section 97VF; or

(b)	by order of a relevant industrial authority under section 97VP(2)(b).

Subdivision 3 — Appeal against refusal of registration

97VM.

Appeal against refusal of registration

(1)

The employer or the employee under an EEA may appeal to the relevant industrial authority against a refusal by the Registrar to register the EEA.

(2)

An appeal must be brought within 14 days after the day on which the party received notice of the refusal under section 97VG.

(3)

The time limit specified in subsection (2) cannot be

extended under section 27(1)(n).

97VN.

Relevant industrial authority to notify parties of

certain deficiencies in EEA

(1)	This section applies on an appeal against a refusal by the Registrar to register an EEA for one or more of the following reasons —

(a)	it does not comply with section 97UL, 97UN or 97US;
(b)	it does not pass the no-disadvantage test;
(c)	it purports to provide for a condition of employment that is less favourable to the employee than a minimum condition of employment under the MCE Act.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

(2)	Where this section applies the relevant industrial authority may give notice in writing to the parties setting out —

(a)	the deficiencies in the EEA that, in the opinion of that authority, make it necessary for registration to be refused; and
(b)	the terms of subsection (1) of section 97VO and the period within which the parties may comply with that subsection.

97VO.

Parties may make corrections

(1)	If a notice is given to the parties under section 97VN they may, in accordance with the regulations, lodge a revised EEA with the relevant industrial authority
within the time specified in the notice.

(2) If —

(a)	a revised EEA is so lodged; and
(b)	the relevant industrial authority is satisfied that it is in order for registration,

the authority may cause it to be registered by disposing

of the appeal in the manner provided for by

section 97VP(2)(b)(i).

(3) If —

(a)	the relevant industrial authority has given a notice under section 97VN; but
(b)	a revised EEA is not lodged in accordance with subsection (1),

the authority must dispose of the appeal in the manner

provided for by section 97VP(2)(a).

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

97VP.

Determination of appeal

(1)

In determining an appeal the relevant industrial

authority is not limited to the material that was before

the Registrar, but may inform itself in such manner as

it thinks fit.

(2)

On the determination of an appeal the relevant

industrial authority may —

(a)	confirm the refusal of registration; or
(b)	set aside the refusal and —

(i) order the Registrar to register the EEA; or

(ii)	reconsideration with any direction or

remit the matter to the Registrar for authority thinks fit.

(3)	The relevant industrial authority must give the parties notice in writing of its determination within 7 days after it is made.

97VQ.

Proceedings under this Subdivision

(1)

The Commission may make regulations under

section 113 providing for the practice and procedure to

be followed for the purposes of appeals under this

Subdivision.

(2)

Subject to subsection (1), the relevant industrial

authority may exercise such of the powers set out in

sections 27, 28 and 33 as the authority considers it

necessary or expedient to exercise for the purposes of

an appeal under this Subdivision.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

Division 6 — No-disadvantage test Subdivision 1 — Definition

97VR. Definitions

In this Subdivision —

“award” includes an award under the Coal Industry

Tribunal of Western Australia Act 1992;

“comparable award”, in relation to an employee,

means an award or awards regulating the terms

and conditions of employment of employees

engaged in the same kind of work as the

employee;

“relevant order” means any order under this Act that

is prescribed by the regulations for the purposes of

section 97VS.

97VS.

No-disadvantage test defined

(1)

For the purposes of Schedule 4 clause 1(1)(e), an EEA

passes the no-disadvantage test if it does not

disadvantage the employee in relation to the terms and

conditions of his or her employment.

(2)

An EEA disadvantages an employee as mentioned in

subsection (1) only if its provisions result, on balance,

in a reduction in the overall entitlements of the

employee under —

(a) an award; or

(b) a relevant order,

to which this subsection applies.

(3)	Despite subsection (2), an EEA is to be taken to disadvantage the employee as mentioned in subsection (1) if —

(a)	it confers on the employer a power to change any term or condition of the employment without the consent of the employee; and

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(b)	the employer could exercise the power in a way that would result, on balance, in a reduction in the overall entitlements of the employee referred to in subsection (2).

(4)	Subsection (2) applies to —

(a) an award; or

(b) a relevant order,

that the Registrar determines, whether under

section 97VT or otherwise, would otherwise extend to

the employee.

(5)	If the Registrar is satisfied that there is no award that would otherwise extend to the employee, subsection (2) applies to —

(a)	any award, including an award under the Commonwealth Act, that the Registrar determines, whether under section 97VT or otherwise, to be a comparable award; and

(b) a relevant order.

(6) If —

(a)	the Registrar is not able to determine an award for the purposes of subsection (4) or (5); or

(b) section 97VT(2)(b) applies,

the EEA is to be taken not to disadvantage the

employee in relation to the terms and conditions of his

or her employment.

Note:

By virtue of section 5(2) of the Minimum Conditions of Employment

Act 1993 a provision of an employer-employee agreement is of no effect

if it is less favourable to the employee than a minimum condition of

employment under that Act.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

97VT.

Determination of award, comparable award or

relevant order by Registrar

(1)	If an employer —

(a)	proposes to enter into an EEA; but
(b)	is unsure which award, comparable award or relevant order will be relevant to the employment for the purposes of section 97VS,

the employer may apply in writing to the Registrar for

the making of a determination of that matter.

(2)	Upon such an application being made the Registrar must —

(a)	determine which award, comparable award or relevant order will be relevant for the purposes of section 97VS; or
(b)	determine that there is no such award, comparable award or relevant order.

(3)	A determination under subsection (2) is binding on the Registrar for the purposes of section 97VS if the EEA concerned is lodged for registration under Division 5, unless the Registrar considers that the circumstances existing at the time when the determination was made
have changed in a material way.

97VU.

All entitlements to be considered

In comparing the entitlements of an employee under an

EEA to the entitlements that would be provided to the

employee under —

(a)	an award or a comparable award; or

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(b) a relevant order,

the Registrar must take into account all relevant

benefits whether in the form of money or otherwise.

97VV.

Particular provision for case where Supported

Wage System applies

An EEA does not disadvantage an employee in relation to his or her employment by reason only of a reduction of the employee’s wages if —

(a)	the employee is eligible for the Supported Wage System; and
(b)	the EEA provides for the payment of wages to the employee at a rate that is not less than the rate set in accordance with that System for

persons of a class that includes the employee.

Subdivision 2 — Principles to be followed in application of

no-disadvantage test

97VW. Definition

In this Subdivision —

“Commission” means the Commission in Court

Session.

97VX.

Commission to establish principles and guidelines

(1)

The Commission must prepare an instrument setting

out the principles and guidelines that are to be followed

by the Registrar in determining whether an EEA passes

the no-disadvantage test.

(2)

The instrument must not be inconsistent with this Part.

(3)

Section 43(7), (8) and (9) of the Interpretation

Act 1984 apply to the instrument as if it were

subsidiary legislation.

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

(4)

Subject to section 97W, the Commission may amend

the instrument or revoke it and substitute another

instrument for it.

(5)

The Commission must cause the instrument, and any amendment or substituted instrument, to be published in the Industrial Gazette and —

(a)	in a newspaper circulating throughout the State; or
(b)	on an internet website maintained by the Commission.

97VY.

Registrar and Commission to give effect to

instrument

The provisions of an instrument under section 97VX

are to be complied with —

(a)	by the Registrar and officers of the Commission in making determinations for the purposes of paragraph (e) of Schedule 4 clause 1(1); and
(b)	by the relevant industrial authority in the determination of an appeal under section 97VP, so far as it relates to a determination under that paragraph.

97VZ.

Minister and certain bodies may seek amendment

(1)	The Minister or a peak industrial body may at any time apply to the Commission to have the instrument under section 97VX —

(a)	amended so that it makes provision to the effect set out in the application; or
(b)	replaced by a new instrument that makes provision to the effect set out in the application.

(2)	If an application is so made the Commission may —

(a)	exercise its powers under section 97VX(4); or

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(b) decline to do so.

(3)	In subsection (1) —
“peak industrial body” means the Council, the

Chamber and the Mines and Metals Association.

97W.

Requirement for public comment

Before the Commission exercises any power in

section 97VX(4), whether on an application under

section 97VZ or otherwise, it must call for public

comment in accordance with section 97WA.

97WA.

Public comment on amendment or substitute

instrument

(1)	Where this section applies the Commission must make available for public comment a draft (“the exposure draft”) of —

(a)	any proposed amendment to the instrument under section 97VX; or
(b)	the instrument that is proposed to be substituted for that instrument,

as the case may be.

(2)	The Commission must —

(a)	cause a notice giving a general description of the exposure draft to be published in a daily newspaper circulating throughout the State; and
(b)	include in the notice the following information —

(i) the places at which a copy of the exposure draft may be obtained;

(ii) a statement that written submissions on the exposure draft may be made to the Commission by any person within a specified period; and

Labour Relations Reform Act 2002

Part 2	Amendments to provide for employer-employee agreements
Division 1	Principal amendments to the Industrial Relations Act 1979
s. 4

(iii) the address to which the submissions may be delivered or posted.

(3)

The period specified under subsection (2)(b)(ii) must

be not less than 30 days after notice has been published

under subsection (2)(a).

(4)

The Commission must have regard to any submission

made in accordance with the notice.

Division 7 — Register

97WB. Definition

(1)	In this Division —
“protected information” means —

(a)	the name of the employee under an EEA;
(b)	the provisions of an EEA, or any particular provision, declared under section 97WE to be exempt from the operation of

section 97WD(1); and

(c)	the address of the employee under an EEA.

(2)	In subsection (1)(a) and (b) —
“EEA” does not include an EEA that is made with a

person who is an employee within the meaning in

the Public Sector Management Act 1994.

97WC. Register

(1)	The Registrar must keep a register for the purposes of Division 5.

(2) The register —

(a)	must record particulars of every EEA that is registered under Division 5; and
(b)	may do so in a form and manner determined by the Registrar.

Labour Relations Reform Act 2002

Amendments to provide for employer-employee agreements Principal amendments to the Industrial Relations Act 1979

Part 2

Division 1

s. 4

(3)	The Registrar may determine that the register is to be in the form of information stored on a computer.

97WD. Inspection of register

(1)

The Registrar must allow any person, on payment of

the fee (if any) prescribed by the regulations, to inspect

an EEA registered under Division 5.

(2)

Subsection (1) does not include the inspection of

protected information.

97WE.

Commission may exempt an EEA from inspection

(1)	The Commission may, by order —

(a)	exempt the provisions of an EEA, or any particular provision, from the operation of section 97WD(1); or
(b)

vary an order so made, if it considers that it is in the public interest to do so.

(2)

An order under subsection (1) may be revoked by the

Commission if it considers that the continuation of the

order is no longer in the public interest.

(3)

The powers of the Commission under this section are

exercisable on application made by a party to the EEA

concerned.

(4)

This section does not apply to an EEA that is made

with a person who is an employee within the meaning

in the Public Sector Management Act 1994.

97WF.

Protected information not to be disclosed

(1)	A person to whom this subsection applies must not, directly or indirectly, record, disclose or make use of protected information obtained in the course of performing functions under this Part except —

s. 170

(2)	An entitlement to paid leave for illness or injury that accrued before the commencement day is preserved on and from the commencement day as if former section 19 had not been
amended by this Act.
(3)	In this section —
“commencement day” means the day on which subsection (1)

comes into operation;

“former section 19” means section 19 of the Minimum

Conditions of Employment Act 1993 as it was in effect immediately before the commencement day.

170. Section 20A inserted

After section 20 the following section is inserted —

“

20A.

Entitlement to use certain sick leave entitlements as

carer’s leave

(1)

An employee is entitled to use, each year, up to 5 days

of the employee’s entitlement under section 19(1) for

that year to be the primary care giver of a member of

the employee’s family or household who is ill or

injured and in need of immediate care and attention.

(2)

In subsection (1) —

“member of the employee’s family” means any of the following persons —

(a)	the employee’s spouse or de facto spouse;
(b)	a child for whom the employee has parental responsibility as defined by the Family Court Act 1997;
(c)	an adult child of the employee;
(d)	a parent, sibling or grandparent of the employee.

”.

Labour Relations Reform Act 2002

Part 10

Amendments about minimum weekly rates of pay and other

Division 1

Amendments to the Minimum Conditions of Employment Act

1993 in relation to minimum weekly rates of pay and other

minimum conditions of employment

s. 171

171. Section 21 replaced

Section 21 is repealed and the following section is inserted

instead —

“

21. Certain matters as to sick leave not minimum conditions

Nothing in this Division requires —

(a)	an employee’s untaken entitlement under section 19(1) or 20A(1) to be carried over from the year in which the entitlement arose to the next year;
(b)	an entitlement under section 19(1) or 20A(1) to be taken as a whole working day; or
(c)	employee’s untaken entitlement under

an employer to pay an employee in lieu of the employee’s employment.

”.

172. Section 22 replaced

Section 22 is repealed and the following section is inserted

instead —

“

22. Proof in support of claims for sick leave or use of sick leave entitlements as carer’s leave

An employee who claims to be entitled —

(a)	to paid leave under section 19(1); or

Labour Relations Reform Act 2002

Amendments about minimum weekly rates of pay and other

Part 10

Amendments to the Minimum Conditions of Employment Act

1993 in relation to minimum weekly rates of pay and other

minimum conditions of employment

Division 1

s. 173

is to provide to the employer evidence that would

satisfy a reasonable person of the entitlement.

to use the employee’s entitlement under with section 20A(1),

(b)

”.

173. Section 23 amended and a savings provision

(1)	Section 23(1) is amended by deleting “160” and inserting instead —
“ 152 ”.
(2)	An entitlement to paid annual leave that accrued before the commencement day is preserved on and from the commencement day as if former section 23 had not been amended by this Act.
(3)	In this section —
“commencement day” means the day on which subsection (1)

comes into operation;

“former section 23” means section 23 of the Minimum

Conditions of Employment Act 1993 as it was in effect immediately before the commencement day.

174. Section 40 amended

(1)

Section 40(1) is amended in the definition of “employee” by

deleting “industrial trainee within the meaning of the Industrial

Training Act 1975;” and inserting instead —

“ trainee; ”.

(2)

Section 40(1) is amended in the definition of “redundant” by

deleting “, for a reason that is not a usual reason for change in

the employer’s work-force,”.

Labour Relations Reform Act 2002

Part 10

Amendments about minimum weekly rates of pay and other

Division 1

Amendments to the Minimum Conditions of Employment Act

1993 in relation to minimum weekly rates of pay and other

minimum conditions of employment

s. 175

175. Section 43 amended

Section 43(1) is amended by inserting after “employee” the

following —

“ , other than a seasonal worker ”.

176. Section 44 amended

After section 44(2)(aa) the following paragraph is inserted —

“

(ab)

The provisions referred to in the Table to this section are

amended in each case by deleting “Industrial Relations

Act 1979” and inserting instead —

the total number of hours worked by the

employee in each week of the employee’s

employment with the employer unless the

employee’s contract of employment provides

for an annual salary exceeding $45 000 or the

salary specified, or worked out in a manner

specified, by the regulations;

”.

177. Miscellaneous amendments as to “IR Act”

“ IR Act ”.

Table

s. 3(1) “award”

s. 7(b)

s. 3(1) “employee”

s. 7(c)

s. 3(1) “employer”

s. 26

s. 6(1)

s. 45(2)(b)

s. 6(2)

46(1)

Labour Relations Reform Act 2002

Amendments about minimum weekly rates of pay and other Amendments to the Industrial Relations Act 1979 in relation to

Part 10 Division 2

minimum weekly rates of pay

s. 178

Division 2 — Amendments to the Industrial Relations Act 1979

in relation to minimum weekly rates of pay

178. Section 7 amended

(1)

Section 7(1) is amended in the definition of “employee” in

paragraph (a) by deleting “industrial”.

(2)

Section 7(1) is amended in the definition of “industrial matter”

in paragraph (f) as follows:

(a)	by deleting “industrial trainees” and inserting instead —

“ trainees ”;

(b)	by deleting “industrial training” and inserting instead —

“ training ”.

(3)

Section 7(1) is amended by deleting the definition of “industrial

trainee”.

(4)

Section 7(1) is amended by inserting in the appropriate

alphabetical positions the following definitions —

“

“MCE Act” means the Minimum Conditions of

Employment Act 1993;

“trainee” means a person who belongs to a class of persons prescribed by regulations made by the Governor as persons to be treated as trainees for

the purposes of this Act;

”.

179. Section 50 amended

Section 50(2a) is repealed.

Labour Relations Reform Act 2002

Part 10

Amendments about minimum weekly rates of pay and other

Division 2

Amendments to the Industrial Relations Act 1979 in relation to

minimum weekly rates of pay

s. 180

180. Section 51B inserted

After section 51A the following section is inserted in

Part II Division 3 —

“

51B.

Commission’s power to make General Orders as to

matters for which minimum conditions of

employment are prescribed by MCE Act

(1)

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.

”.

181. Part II Division 3A inserted

Before Part II Division 4 the following Division is inserted —

“

Division 3A —MCE Act functions Subdivision 1 — Preliminary

51C.

Interpretation

(1)	In this Division —

Labour Relations Reform Act 2002

Amendments about minimum weekly rates of pay and other Amendments to the Industrial Relations Act 1979 in relation to

Part 10 Division 2

minimum weekly rates of pay

s. 181

“award” includes an industrial agreement or order of the Commission under this Act or an award of the Australian Commission;

“Commission” means the Commission in Court

Session.

(2)	Subject to subsection (1), words and expressions in this Division that are defined in the MCE Act have the meanings that they have in that Act.

Subdivision 2 — Minimum weekly rates of pay

51D.

Commission to review minimum weekly rates of pay

for purposes of MCE Act

The Commission shall review the following in

accordance with section 51E —

(a)	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 or trainees;
(b)	the minimum weekly rate or rates of pay applicable under section 14 of the MCE Act to apprentices;
(c)	the minimum weekly rate or rates of pay applicable under section 15 of the MCE Act to trainees.

51E.

When reviews can occur

(1)	The Commission shall review the minimum weekly rates of pay referred to in section 51D(a), (b) and (c) each time the Commission considers, under
section 51(2), a National Wage Decision.

Labour Relations Reform Act 2002

Part 10

Amendments about minimum weekly rates of pay and other

Division 2

Amendments to the Industrial Relations Act 1979 in relation to

minimum weekly rates of pay

s. 181

(2)

Subject to subsection (3), the Commission may review

one or more of the minimum weekly rates of pay

referred to in section 51D(a), (b) or (c).

(3)

A review under subsection (2) can only occur on an

application made —

(a)	by the Council, the Chamber, the Mines and Metals Association or the Minister; and
(b)	at least 12 months after the most recent increase in the rate that is the subject of the application.

51F.

Setting of minimum weekly rates of pay by the

Commission

(1)	Following a review under section 51E(1) the Commission shall make an order —

(a)	weekly rates of pay referred to in

rescinding the order setting the minimum the time of the review; and

(b)	setting the new minimum weekly rates of pay referred to in section 51D(a), (b) and (c).

(2)	If, following a review under section 51E(2) of one or more of the minimum weekly rates of pay referred to in section 51D(a), (b) or (c), the Commission decides to set a new minimum weekly rate of pay in respect of one or more of the rates under review, the Commission shall make an order —

(a)	weekly rates of pay referred to in

rescinding the order that set the minimum of the review;

(b)	setting the new minimum weekly rate of pay in respect of the rate or rates that are the subject of its decision; and

Labour Relations Reform Act 2002

Amendments about minimum weekly rates of pay and other Amendments to the Industrial Relations Act 1979 in relation to

Part 10 Division 2

minimum weekly rates of pay

s. 181

(c)	resetting any other minimum weekly rate of pay referred to in section 51D(a), (b) and (c) at the respective rate in effect at the time of the review.

51G.

Matters relevant to setting rates for apprentices and

trainees

(1)	For the purposes of section 51F as it relates to rates for apprentices or trainees, the Commission may —

(a)	set a minimum weekly rate of pay in relation to apprentices or trainees generally;
(b)	subject to subsections (2) and (3), set a minimum weekly rate of pay in relation to apprentices or trainees who belong to particular classes of apprentice or trainee; or
(c)	do a combination of (a) and (b).

(2)

The Commission may set a minimum weekly rate of

pay in relation to apprentices or trainees who have

reached 21 years of age that is different from a rate or

rates for apprentices or trainees who are under 21 years

of age.

(3)

In setting a minimum weekly rate of pay in relation to

apprentices or trainees who have reached 21 years of

age the Commission shall not set different minimum

weekly rates of pay for those apprentices or trainees on

the sole basis of age.

(4)

The Commission shall ensure that at any particular time there is applicable in relation to each class of apprentice and each class of trainee —

(a)	a minimum weekly rate of pay set in respect of that class; or

Labour Relations Reform Act 2002

Part 10

Amendments about minimum weekly rates of pay and other

Division 2

Amendments to the Industrial Relations Act 1979 in relation to

minimum weekly rates of pay

s. 181

(b)	the minimum weekly rate of pay in relation to apprentices or trainees, as is relevant to the case, generally.

(5)	In setting a minimum weekly rate of pay in relation to apprentices or trainees generally or in relation to apprentices or trainees who belong to a particular class of apprentice or trainee, the Commission may use such means as in its opinion are appropriate including, but not limited to —

(a)	setting the rate in figures;
(b)	setting the rate as a proportion of —

(i) the minimum weekly rate of pay referred to in section 51D(a);

(ii) the minimum rate of pay set by a General Order under section 51(2); or

(iii) any award or other wages instrument; adopting some or all of the provisions of any award or other wages instrument; or

(c)

(d)	setting out any other method for the calculation or assessment of the rate.

51H.

When orders under this Subdivision have, and cease

to have, effect

(1) If —

(a)	the Commission makes a General Order under section 51 following its consideration under that section of a National Wage Decision; and
(b)

an order under section 51F(1) is made pay at the time the Commission considered that National Wage Decision,

Labour Relations Reform Act 2002

Amendments about minimum weekly rates of pay and other Amendments to the Industrial Relations Act 1979 in relation to

Part 10 Division 2

minimum weekly rates of pay

s. 181

the order made under section 51F(1) has effect at the

same time the General Order has effect.

(2) If —

(a)	the Commission does not make a General Order under section 51 following its consideration under that section of a National Wage Decision; and
(b)

the order made under section 51F(1) has effect from

such time as is specified in the order.

an order under section 51F(1) is made pay at the time the Commission considered that National Wage Decision,

(3)

An order made under section 51F(2) has effect from

such time as is specified in the order.

(4)

An order made under section 51F(1) or (2) has effect

until the order is rescinded —

(a)	following the next review under section 51(2); or
(b)

following a review under section 51E(2), whichever happens first.

(5)

All the provisions of an order made under

section 51F(1) or (2) are to have effect at the same

time.

Subdivision 3 — Casual employees’ loading

51I.

Casual employees’ loading

(1)	Subject to subsection (2), the Commission may, by way of order, set a percentage that is higher than 20%

Labour Relations Reform Act 2002

Part 10	Amendments about minimum weekly rates of pay and other
Division 2	Amendments to the Industrial Relations Act 1979 in relation to minimum weekly rates of pay
s. 181
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 the Council, the Chamber, the Mines and Metals Association or the Minister; and
(b)	at least 12 months after the determination of the most recent application for an order under subsection (1).

Subdivision 4 — Orders under this Division generally

51J.	Notification of hearings under this Division
The Commission shall ensure that notice of each initial hearing to be conducted for the purposes of making or reviewing an order under this Division is given —

(a)	by giving written notice to the Council, the Chamber, the Mines and Metals Association, the Minister and each organization; and
(b)	by publication in the required manner.

51K.	Right to be heard
The Commission shall not make an order under this Division until it has afforded the Council, the Chamber, the Mines and Metals Association, the Minister and any other person permitted by the Commission to be heard, an opportunity to be heard in relation to the matter.
51L.	Restrictions on matters that orders under this Division can provide for
An order made under this Division shall not —

Labour Relations Reform Act 2002

Amendments about minimum weekly rates of pay and other Amendments to the Industrial Relations Act 1979 in relation to

Part 10 Division 2

minimum weekly rates of pay

s. 181

(a)	provide for a penalty rate or allowance of any kind;
(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 organization.

51M.

Publication of orders

The Commission shall direct the Registrar to prepare

and publish in the Industrial Gazette the provisions of

all orders made under this Division.

51N.

Variation or rescission

(1)	An order made under section 51F shall not be added to, varied or rescinded except —

(a)	following a review under section 51E(1) and in accordance with section 51F(1); or
(b)	following a review under section 51E(2) and in accordance with section 51F(2),

as is relevant to the case.

(2)

An order made under section 51I shall not be added to,

varied or rescinded except in accordance with

section 51I(2).

(3)

Nothing in subsection (1) or (2) affects the

Commission’s powers under section 27(1)(m).

”.

Labour Relations Reform Act 2002

Part 10

Amendments about minimum weekly rates of pay and other

Division 3

Consequential amendments in relation to minimum weekly

rates of pay

s. 182

182. Miscellaneous amendments as to “MCE Act”

The provisions referred to in the Table to this section are

amended in each case by deleting “Minimum Conditions of

Employment Act 1993” and inserting instead —

“ MCE Act ”.

Table

s. 7F(1)	s. 81CA(1) “prosecution jurisdiction”
s. 81AA(c)

Division 3 — Consequential amendments in relation to

minimum weekly rates of pay

183. Equal Opportunity Act 1984 amended

Section 66ZS(1)(b) of the Equal Opportunity Act 1984* is

amended as follows:

(a)	by inserting before “an award or” — “

a provision of the Minimum Conditions of

Employment Act 1993,

”;

(b)	by deleting “that award or industrial agreement” and inserting instead —

“ that provision ”.

[* Reprinted as at 21 July 2000.

For subsequent amendments see Acts Nos. 36 and 58 of 1999,

2 of 2000 and 12 of 2001.]

184. Vocational Education and Training Act 1996 amended

Schedule 2 to the Vocational Education and Training Act 1996*

is amended as follows:

(a)	by deleting clause 1(b);

Labour Relations Reform Act 2002

Amendments about minimum weekly rates of pay and other

Part 10

Consequential amendments in relation to minimum weekly

Division 3

rates of pay

s. 184

(b)	by deleting clause 1(c);
(c)	by deleting clause 1(d)(i);
(d)	in clause 1(d)(iii) by deleting “industrial”;
(e)	by deleting the semicolon and “and” after clause 1(d) and inserting a full stop instead;
(f)	by deleting clause 1(e).

[* Act No. 42 of 1996.

For subsequent amendments see 2000 Index to Legislation of

Western Australia, Table 1, p. 475.]

Labour Relations Reform Act 2002

Part 11	Other amendments
s. 185
Part 11 — Other amendments

185. Section 7 amended

(1)	Section 7(1) is amended in the definition of “employer” by inserting after “employees” — “

and also includes a labour hire agency or group training

organization that arranges for an employee (being a

person who is a party to a contract of service with the

agency or organization) to do work for another person,

even though the employee is working for the other

person under an arrangement between the agency or

organization and the other person

”.

(2)	Section 7(1) is amended by inserting in the appropriate alphabetical positions the following definitions — “

“group training organization” means an organization

that manages the employment and training of

apprentices and trainees under contracted work

based arrangements for the purpose of hosting

those apprentices and trainees out to other

employers;

“labour hire agency” means a person or entity that

conducts a business of the kind commonly known

as a labour hire agency;

”.

(3)	Section 7(1) is amended in the definition of “industrial matter” as follows:

(a)	by inserting after “or relating” —

“ or pertaining ”;

(b)	by deleting “matter relating” and inserting instead —

Labour Relations Reform Act 2002

Other amendments	Part 11
s. 185

“ matter affecting or relating or pertaining ”;

(c)	after paragraph (c) by inserting — “

(ca)	the relationship between employers and employees;

”;

(d)	by inserting before “but does not include” —
“

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

”.

(4)	Section 7(3) is repealed and the following subsection is inserted instead —

“

(3)	A matter that has been referred to a safety and health magistrate under the Occupational Safety and Health Act 1984 or the Mines Safety and Inspection Act 1994 is not an industrial matter.

”.

(5)	After section 7(4) the following subsections are inserted in the appropriate numerical position —

“

(6)

Subject to subsection (7), for the purposes of the

definitions of “employee” and “employer” in

subsection (1), if a person (“the principal”) 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.

Labour Relations Reform Act 2002

Part 11	Other amendments
s. 186

(7)	Subsection (6) has effect only to the extent necessary to enable a claim of the kind referred to in section 29(1)(b)(ii) 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).

”.

186. Section 20 amended and transitional and savings provisions

(1)	Section 20(2) to (6) are repealed and the following subsection is inserted instead —

“

(2)

The offices of the members of the Commission, other than the President 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.

”.

(2)	Until remuneration becomes payable to a member of the Commission pursuant to the first determination, the member is to receive remuneration at the rate that would be applicable to that member if the former provisions were still in operation.
(3)	Despite any determination under section 6 of the Salaries and Allowances Act 1975, while a person who was a member of the Commission at the time of the publication of the first determination in the Government Gazette remains a member he or she is to receive remuneration at a rate that is not less than the rate that was applicable to him or her immediately before that time.
(4)	In this section —
“first determination” means the first determination made

under section 6 of the Salaries and Allowances Act 1975

that gives effect to the amendment made by subsection (1);

“former provisions” means section 20(1) to (6) of the

Industrial Relations Act 1979 as they were in effect

Labour Relations Reform Act 2002

Other amendments	Part 11
s. 187

immediately before the coming into operation of

subsection (1);

“member of the Commission” has the meaning given by the

Industrial Relations Act 1979;

“remuneration” has the meaning given by the Salaries and

Allowances Act 1975.

187. Section 32 amended

(1)	Section 32(3) is amended as follows:

(a)	by deleting the semicolon after paragraph (b) and inserting a full stop instead;
(b)	by deleting paragraphs (c) and (d).

(2)	After section 32(7) the following subsection is inserted —

“

(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;

(ii) enable conciliation or arbitration to resolve the matter; or

(iii)

divulge attitudes or information which

encourage the parties to exchange or 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.

”.

Labour Relations Reform Act 2002

Part 11	Other amendments
s. 188

188. Section 37A repealed

Section 37A is repealed.

189. Section 51 amended

(1)	Section 51(2) is repealed and the following subsection is inserted instead —

“

(2)	Subject to section 50(10), when and as often as a National Wage Decision is made after the coming into operation of this section the Commission shall of its own motion consider that decision and —

(a)	unless it is satisfied that there are good reasons not to do so, shall make a General Order to adjust, by the amount of any change in the rate of wages under that decision, rates of wages paid under awards; and
(b)	may make a General Order to adopt in whole or in part and with or without modification any principle, guideline, condition or other matter having effect under that decision.

”.

(2)	Section 51(2a) is repealed and the following subsections are inserted instead —

“

(3)

If the Commission makes a General Order under

subsection (2) the Commission shall ensure that the

order has effect no more than 30 days after the day on

which the relevant National Wage Decision was made.

(4)

Subject to this Act, the Commission may add to, vary or rescind a General Order made under subsection (2) but the Commission shall not add to or vary such an

order in relation to any amount other than the amount of any change in the rate of wages under the relevant National Wage Decision.

Labour Relations Reform Act 2002

Other amendments	Part 11
s. 190

(5)	Without limiting the generality of section 26(1), in the exercise of its jurisdiction under this section the Commission shall ensure, to the extent possible, that there is consistency and equity —

(a)	in relation to the variation of awards; and
(b)	in relation to when such variations have effect.

”.

190. Sections 7, 47, 50, 55, 72A and 93 and Schedule 1 amended relating to publication in the Industrial Gazette

(1)	Section 7(1) is amended by inserting in the appropriate alphabetical position the following definition — “

“published in the required manner” means

published in the next available issue of the

Industrial Gazette and —

(a)	in a newspaper circulating throughout the State; or
(b)	on an internet website maintained by the Commission;

”.

(2)

Section 47(3)(b)(i) is amended by deleting “in a newspaper

circulating in the area of the State in which the award or

industrial agreement operates and in the Industrial Gazette” and

inserting instead —

“ by publication in the required manner ”.

(3)

Section 47(4) is amended by deleting “the publication in the

newspaper or in the Industrial Gazette, whichever is the later, of

the notice referred to in subsection (3)” and inserting instead —

“

the day on which the notice referred to in

subsection (3) is first published

”.

Labour Relations Reform Act 2002

Part 11	Other amendments
s. 190

(4)

Sections 50(9) and 55(2) are each amended by deleting

“Industrial Gazette” and inserting instead —

“ required manner ”.

(5)

Section 55(3) is amended by deleting “date of the issue of the

Industrial Gazette in which the matters referred to in subsection

(2) are” and inserting instead —

“

day on which the matters referred to in subsection (2)

are first

”.

(6)	Section 72A(3) is repealed and the following subsection is inserted instead —

“

(3)	The Registrar shall 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 shall not be listed for hearing before the Full Bench until after the expiration of 30 days from the day on which the notice is first published.

”.

(7)	Section 93(3) is amended by deleting “Gazette all” and inserting instead — “

Gazette and —

(a)	in a newspaper circulating throughout the State; or

Labour Relations Reform Act 2002

Other amendments	Part 11
s. 191

(b)	on an internet website maintained by the Commission,

all

”.

(8)	Section 93(4) is repealed and the following subsection is inserted instead —

“

(4)	The Industrial Gazette shall be published in such form and at such intervals as the Registrar, after consultation with the Chief Commissioner, directs.

”.

(9)	Section 93(6) is amended by deleting “a consolidation of any such award.” and inserting instead — “

and —

(a)	in a newspaper circulating throughout the State; or
(b)	on an internet website maintained by the Commission,

a consolidation of any such award.

”.

(10)

Schedule 1 item 1 is deleted and the following item is inserted

instead —

“ 1.	Retirements from industrial agreements. ”.

191. Amendments to the Act and the Labour Relations Legislation Amendment Act 1997 about collection of union subscriptions

(1)	Section 7(1) is amended in the definition of “industrial matter” by inserting after paragraph (f) the following paragraph —

“

(g)	any matter relating to the collection of subscriptions to an organization of

Labour Relations Reform Act 2002

Part 11	Other amendments
s. 192

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 organization of employees where that

practice has been stopped by an

employer; or

(ii)

between an organization of

employees and an employer under

the implementation of an agreement subscriptions to the organization;

”.

(2)

Section 7(2) is repealed.

(3)

Section 29(2) of the Labour Relations Legislation Amendment

Act 1997 is repealed.

192. Amendments about duties of employees of organizations

(1)

Part II Division 5 is amended in the heading by deleting “and

employees”.

(2)

Section 74(1) is amended as follows:

(a)	by deleting “or employee”;
(b)	by deleting “and includes an employee who is entitled to so participate in a representative or advisory capacity”.

193. Amendments about Federal award coverage

(1)	Part IIIA is repealed.
(2)	Section 73 is amended as follows:

(a)	subsections (10a) and (10b) are repealed;
(b)	subsection (12)(aa) is deleted;

Labour Relations Reform Act 2002

Other amendments	Part 11
s. 194

(c)	subsection (13) is amended by deleting “or Part IIIA”.

(3)

Section 81A is amended by deleting “84K,”.

(4)

Section 81CA(1) is amended in paragraph (a) of the definition

of “general jurisdiction” by deleting “84K,”.

194. Amendments about pre-strike ballots

(1)	Part VIB is repealed.
(2)	Section 7(1) is amended by deleting the definition of “pre-strike ballot”.
(3)	Section 32(4)(a), (b) and (c) are each amended by deleting “, (8) or (9)”.
(4)	Section 32(8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19), (20), (21) and (22) are repealed.
(5)	Section 44(5b), (5c), (6b) and (15) are repealed.
(6)	Section 73(3)(a)(iii) is amended by deleting “or section 97B(2) of this Act”.
(7)	Schedule 2 is repealed.
(8)	The Industrial Relations (Pre-strike Ballot) Regulations 1997 are repealed.
(9)	The Industrial Relations (Pre-strike Ballot Expenses) Regulations 1997 are repealed.

195. Amendments about political expenditure by organizations

(1)

Part VIC is repealed.

(2)

Section 81A is amended by deleting “, 97T, 97U”.

(3)

Section 81CA(1) is amended in paragraph (a) of the definition

of “general jurisdiction” by deleting “, 97U”.

Labour Relations Reform Act 2002

Part 11	Other amendments
s. 195

(4)	Section 81CA(1) is amended by deleting paragraph (aa) of the definition of “prosecution jurisdiction”.

Labour Relations Reform Act 2002

Transitional minimum weekly rates of pay

Schedule 1

Schedule 1 — Transitional minimum weekly rates of pay

[s. 168]

1. Interpretation

Unless the contrary intention appears, words and expressions used in this Schedule have the same respective meanings as they have in the Minimum Conditions of Employment Act 1993.

2. Minimum weekly rate of pay for employees 21 or more years of age

The minimum weekly rate of pay applicable at a particular time to

employees who have reached 21 years of age but who are not

apprentices or trainees is the rate for the minimum adult weekly

award wage for employees who have reached 21 years of age and who

are not apprentices or trainees, as provided for in the General Order

made under section 51(2) of the Industrial Relations Act 1979 that is

in effect at that time.

3. Minimum weekly rate of pay for employees less than 21 years of age

(1)	The minimum weekly rate of pay applicable at a particular time to employees who are of the age mentioned in the first column in the Table to this subclause but who are not apprentices or trainees is the
percentage, set out opposite that age in the second column in the up to the nearest 10 cents.

Table

Age	Percentage of 21 year old rate
20 years	90%
19 years	80%
18 years	70%
17 years	60%
16 years	50%
under 16 years	40%

Labour Relations Reform Act 2002

Schedule 1

Transitional minimum weekly rates of pay

(2)	Subclause (1) is for information only and if there is any inconsistency between subclause (1) and section 13 of the Minimum Conditions of Employment Act 1993, the section prevails.

4. Minimum weekly rate of pay for apprentices and trainees

(1)

The minimum weekly rate of pay for an apprentice or trainee in

relation to whom a workplace agreement or an employer-employee

agreement is not in force is the rate of pay that is provided for under

an award that applies to that apprentice or trainee.

(2)

The minimum weekly rate of pay for an apprentice or trainee in

relation to whom a workplace agreement or an employer-employee

agreement is in force is the rate of pay that is provided for under an

award that would, if the workplace agreement or employer-employee

agreement were not in force, apply to that apprentice or trainee.