On 11 April 2019 the Western Australian Government tabled the final report of the Ministerial Review of the State Industrial Relations System (“Review”) and announced several key areas of reform it will pursue immediately.

The Review was announced in September 2017 by Minister for Commerce and Industrial Relations Bill Johnston (also Minister for Mines and Petroleum) and completed in June 2018, making 85 recommendations for change.

Reforms will “protect the vulnerable”

Releasing the report to the public this month, Minister Johnston said the government’s first round of legislative reforms would focus on increased protection for workers.

“The McGowan Government is pleased to announce our plans for the first round of reforms to modernise the state’s industrial relations system,” the Minister said.

“The Government is committed to a fair safety net of wages and entitlements for all workers and these reforms will improve protections for workers across the state.”

Specific reforms the McGowan Government will progress include:

  • enabling workers to seek an order from the Western Australian Industrial Relations Commission (WAIRC) to stop workplace bullying (this mirrors powers recently afforded to the Fair Work Commission at the federal level);
  • providing a legislative equal remuneration framework for the WAIRC to deal with applications for equal remuneration orders and requiring it to develop an equal remuneration principle;
  • providing greater power for the WAIRC to vary the scope of awards to ensure that all state private sector employees are covered by an award, except for those “not traditionally award-covered”;
  • providing for 10 days paid domestic violence leave (which is out of step with the 5 days unpaid leave provided for in the federal system);
  • modernising the Long Service Leave Act 1958 and introducing penalties for non-compliance with the Act; and
  • increasing penalties for breaches of employment laws and strengthening industrial inspector powers.

Definitions of ‘employee’ and ‘employer’ to expand

The WA Government will also adopt the broader definition of ‘employee’ recommended by the Review, removing exclusions to now include:

  • persons engaged in domestic service in a private home
  • persons remunerated wholly by commission, percentage reward or piece rates
  • persons with a disability in supported employment
  • persons appointed under the National Trust of Australia (WA) Act 2964 to carry out the duties of wardens

The Review justified this expansion of “employee” by suggesting these exclusions have prevented Australia ratifying the International Labor Organization (ILO) Protocol of 2014 to the Forced Labour Convention, 1930 which aims to support the fight against forced labour, people trafficking and modern slavery.

In addition, it is proposed the definition of “employer” in the IR Act be amended to include a foreign state or foreign consulate. The current definition does not encapsulate these bodies.

Employer response: Refer powers to the Commonwealth

The peak business representative body in Western Australia, the Chamber of Commerce and Industry WA, has been highly critical of the review and the government’s response, warning the reforms would “entrench WA’s position as the most costly and complex state to create a job”.

“The government’s response further highlights the need for it to refer its residual industrial powers to the Commonwealth, as every other State in the nation has done, to ensure WA businesses and households are not exposed to onerous and burdensome red tape,” CCIWA said in a statement.

“WA is the only state or territory to not refer its legislative powers with respect to the private sector to the Commonwealth, forcing businesses to continue to navigate two industrial relations systems.”

CCIWA raised particular alarm around changing the definition of “employee”, which it says could capture people providing casual domestic services such as gardeners, household cleaners, babysitters and home carers.

This expansion may also have implications what is considered a “workplace” for the purposes of union right of entry.

Implications for AMMA members

The WA Government’s response to the Ministerial Review of the State Industrial Relations System will be of most concern to small businesses and state public sector employers and employees, who are the primary constituency of the state IR system.

Nonetheless, many AMMA members operating in Western Australia are required to comply with various provisions of the Industrial Relations Act 1979 (WA), such as those relating to right of entry (for workplace health and safety purposes) and individual employees making contractual benefits claims.

With members operating in Western Australia required to navigate two industrial relations systems, AMMA supports the position of CCIWA and other employer groups in the state which continue to advocate in support of Western Australia referring its industrial relations powers to the Commonwealth.

AMMA members with specific views on the Ministerial Review of the Western Australian Industrial Relations System should contact [email protected] to discuss potential advocacy actions.