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Employment Law in WA | Employment Lawyers Western Australia

With respect to Employment Law in WA, both Federal and State laws exist to protect workers.

Which jurisdiction am I covered under?

Federal System

In Australia, we have a national workplace relations system, which is referred to as the Fair Work system that commenced on 1 July 2009 and was created by the Fair Work Act 2009 (Cth) (FWA).

To be covered under the Fair Work system if you must work for a constitutional corporation. Section 12 of the FWA defines a constitutional corporation as; a financial corporation formed and trading in Australia or a foreign corporation (a corporation incorporated outside Australia) that does business in Australia.

Under Chapter 3 of the FWA, employers and employees all have the same workplace rights and obligations, regardless of which state they work in. Part 3-1 of the FWA provides general workplace protections, which include; freedom of association and involvement in lawful industrial activities; protection from discrimination and unfair dismissal and the granting of remedies.

Chapter 3 also provides rights and responsibilities for employers, such as an employer standing down a national system employee without pay in certain circumstances, termination of employment; and keeping records and giving payslips.

If you are an employee who falls under the Federal Legislation and believe you have your workplace protections breached, you may file a complaint with the Fair Work Commission (FWC) who can assist you. The FWC will at first instance arrange a telephone conference between yourself and your previous employer in order to try to resolve the complaint, if no agreement is reached during this telephone conference then the FWC will list your matter for hearing. The FWC may order that you be reinstated to a job or your previous employer provide compensation for lost wages.

What If I'm an Independent Contractor?

The FWA protects independent contractors from adverse action, coercion, abuses of freedom of association and discrimination based on race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction and social origin. This is referred to as “General Protections”.

General protections dismissal disputes must be heard through a private conference at the FWC. If the dispute is not settled through a private conference, the FWC can list the matter for Arbitration, however for this to take place, both parties to the dispute must agree and notify the FWC of their consent for Arbitration. If both parties do not consent to Arbitration by the FWC, the applicant can elect to progress their matter by making a separate application to the Federal Court. The Court can issue a fine; make an order for reinstatement or compensation for loss; grant an injunction or interim injunction and award costs.

Independent Contractors Act 1996 (Cth)

Under Section 12 of the ICA, if a contract is unfair or harsh, a contractor may be able to make an application to the Federal Court to review the contract. If the Court finds that the contract or part thereof is unfair and or harsh, it may make an order setting aside the whole or a part of the contract, or make an order varying the contract.

Sex Discrimination Act (SDA) and the Racial Discrimination Act (RDA)

Section 5 of the SDA provides protection against discrimination in employment in relation to sexual orientation, gender identity and intersex status. Section 6 of the SDA also provides protection against discrimination in relation to a worker’s status. Section 7 of the SDA makes it illegal to discriminate against a worker on the basis of potential pregnancy, breastfeeding and family responsibilities. Section 28 of the SDA also makes it illegal to sexually harass a worker.

The SDA defines a “worker” as an employee who works part-time; in temporary employment; work under a contract for services; or works as a Commonwealth employee.

Section 9 of the RDA makes it unlawful to discriminate against a worker on the basis of their race, colour, descent or national or ethnic origin.

If a worker has been discriminated on the above grounds, they may lodge a complaint with the Human Rights Commission, who have the authority to investigate and conciliate complaints of alleged discrimination and human rights breaches lodged under the above Acts. Complaints to the Commission are resolved through conciliation. Complaint outcomes can include an apology, reinstatement to a job, compensation for lost wages, changes to a policy or developing and promoting anti-discrimination policies. In most cases however, the worker is granted compensation for lost wages as they do not wish to return to a workplace that has discriminated against them.

State System of Employment Law in WA

Western Australian Industrial Relations Commission (WAIRC).

If you work in the state public sector or for a non-constitutional corporation in either local government or private industry in Western Australia, then you will be covered under the WAIRC. The WAIRC covers unincorporated business, the State government and some local government employers. This includes; sole traders; partnerships; trusts; certain state government public sector employers, and corporations whose main activity is not trading or financial.

To make a claim in the WAIRC you must be an employee who is employed under the state system and earning less than $149, 400.00.

The WAIRC hears disputes regarding unfair and constructive dismissal, discrimination, sexual harassment and workplace bullying. An employee must lodge a claim within 28 days of the date of their dismissal. The WAIRC will list the matter for a conciliation conference.

If the parties fail to reach a resolution during the conciliation, it is up to the applicant to decide whether they would like their claim listed for arbitration at a later date where a decision will made by the WAIRC. Arbitration will take place in the Industrial Magistrate’s Court of Western Australia.

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