Which employees in WA are covered by the state system and which by Fair Work?
Most private sector employees in Western Australia are covered by the federal Fair Work system. However, employees of non-corporate employers (sole traders, partnerships, some trusts) remain under WA's state industrial relations system.
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How it works in practice
Understanding Industrial Relations Systems
In Western Australia, employment laws are divided between two main industrial relations systems: the federal Fair Work system and the state industrial relations system. This distinction primarily depends on the legal structure of your employer.
Federal Fair Work System Coverage
The federal Fair Work system covers the vast majority of private sector employees and employers in Western Australia. This includes employees of "constitutional corporations," which are typically Pty Ltd companies. If you work for a company that operates across Australia or is incorporated under corporations law, you are most likely covered by the Fair Work Act 2009.
Western Australian State System Coverage
The state industrial relations system, governed by the Industrial Relations Act 1979 (WA), covers private sector employees whose employers are not constitutional corporations. This usually includes sole traders, partnerships, and some trusts. Additionally, all public sector employees in Western Australia (e.g., state government departments, public hospitals, local government) are covered by the state system.
Important exceptions
Public sector employees in Western Australia, including those working for state government agencies or local councils, are always covered by the state industrial relations system.
The distinction between a "constitutional corporation" and other business structures can be complex. Some incorporated associations or non-profit organisations might fall under the state system if they do not meet the definition of a constitutional corporation.
Coverage can be ambiguous in specific situations, especially for small businesses or those with unique legal structures, requiring careful assessment.
What you should do now
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Identify your employer's legal structure (e.g., "Pty Ltd" company, sole trader, partnership, trust).
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Consult the Fair Work Ombudsman website for detailed guidance on federal system coverage.
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For potential state system coverage, check resources from the WA Department of Mines, Industry Regulation and Safety.
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Review your employment contract or any enterprise agreement to see which industrial instrument is referenced.
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Seek advice from your union, a legal professional, or the relevant regulatory body if you are still unsure about your coverage.
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