Employment Law (WA)

Employment Law in Western Australia is governed by both federal and state laws. These include the Fair Work Act 2009, the Industrial Relations Act 1979 and the Equal Opportunity Act 1984. This page outlines the legal protections that exist for employees and contractors in WA.

State or federal law?

Australia has a national workplace relations system, which is set out in the Fair Work Act 2009 (FWA). The FWA applies to employees who work for constitutional corporations and those who work for a commonwealth entity. A constitutional corporation is a financial corporation that was formed and is trading in Australia or a foreign corporation that does business in Australia. A commonwealth entity is a federal government department or agency.

Western Australia also has a state-based workplace relations system, which is set out in the Industrial Relations Act 1979 and the Equal Opportunity Act 1984. This legislation applies to all workers who are not covered by the national system. This includes private sector employees who are not employed by constitutional corporations and state and local government employees.

Fair Work Act

The Fair Work Act contains general protections that apply to both employees and contractors.

These protections include protections against discrimination, undue influence and coercion and the right to take part in industrial activity. A worker must not be unfairly dismissed and must not be dismissed because of temporary absence due to illness or injury.

A worker who believes that their workplace protections have been breached can apply to Fair Work Australia (FWA). FWA will contact the employer and invite the parties to conciliation to try to resolve the issue. If this is not successful, it may schedule a formal conference or a hearing.

If FWA finds that the Act has been breached, it may make orders including:

• an order for reinstatement (in an unfair dismissal matter)
• an order for payment of lost wages
• an order for compensation

Industrial Relations Act

The Industrial Relations Act 1979 sets out the different ways in which employment arrangements can be made for employees in Western Australia. This includes state awards, registered industrial agreements, employer-employee agreements and common law employment contracts. The Act also sets out the rights and entitlements of workers and the remedies that can be sought when these are breached.

A worker can apply to the WA Industrial Relations Commission (WAIRC) if they believe there has been a breach of the Act. WAIRC will generally refer the matter to a conciliation conference as a first step to see if an agreement can be reached. If this is not successful, the matter may proceed to a hearing where a formal determination will be made.  

If WAIRC finds that the Act has been breached it may make a range of orders to rectify the situation.  This includes orders for reinstatement and orders for the payment of compensation.

Recent changes

The WA employment law system underwent some changes in 2022. These changes include the following.

Bullying and sexual harassment

A worker can now apply to the WAIRC for a ‘stop bullying’ or ‘stop sexual harassment’ order.

The Act defines bullying at work as occurring when an individual or group of individuals repeatedly behaves unreasonably towards a worker and that behaviour creates a risk to their safety and health.

The Act defines sexual harassment at work as occurring when an individual or group of individuals makes an unwelcome sexual advance or an unwelcome request for sexual favours to a worker or engages in other unwelcome conduct of a sexual nature in relation to the worker, in circumstances a reasonable person would have anticipated the possibility that they would be offended, humiliated or intimidated.

The WAIRC must start to deal with an application to stop bullying or sexual harassment within 14 days of it being made. If it is satisfied that bullying or sexual harassment has occurred and that there is a risk the worker will continue to be bullied or harassed, it may make any order it considers appropriate including an order for compensation to be paid or an order that the employer must provide training about workplace bullying to its employees.

Family and domestic violence leave

All employees are not entitled to five days per year of unpaid family and domestic violence leave.

This leave can be taken when an employee is experiencing family or domestic violence and needs to do something to deal with it and it is impractical to do so outside of their usual hours of work.

New employee protections

Additional employee protections have been introduced. These include prohibitions against taking ‘damaging action’ against an employee who makes an employment-related enquiry and making unreasonable deductions from the pay of an employee for the benefit of the employer.

Equal Opportunity Act

The Equal Opportunity Act 1984 contains protections against discrimination that apply in a range of aspects of public life including in employment.

In WA, it is unlawful to discriminate against a person at work on the basis of their sex, gender, marital status, pregnancy or breastfeeding status, sexual orientation, race, religious or political conviction, age, impairment or disability or because they have had their details published on the Fines Enforcement Registrar’s website.

A person who experiences discrimination at work in WA can complain to the Anti-Discrimination Commission using an online form.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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