Why does Western Australia have its own industrial relations system?
Western Australia has its own industrial relations system due to a historical decision not to refer its powers to the Commonwealth. This means many WA businesses and employees are governed by state-based laws, distinct from the national system.
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How it works in practice
Historical Context of WA's System
Western Australia maintains a distinct industrial relations system primarily because it chose not to refer its industrial powers to the Commonwealth Government, unlike most other states. Historically, states held primary responsibility for industrial relations. Over time, other states voluntarily referred their powers, leading to the creation of a largely national system under the Fair Work Act 2009.
Constitutional Basis
Australia's Constitution grants the Commonwealth power over conciliation and arbitration for industrial disputes extending beyond one state. However, states retained powers over intrastate disputes. WA leveraged this to keep its own system for employers and employees not specifically covered by federal powers, ensuring a separate legislative and regulatory framework for many workplaces within the state.
Impact on Workplaces
This dual system means that whether a workplace falls under WA's Industrial Relations Act 1979 or the federal Fair Work Act 2009 depends on the legal structure of the employer. It requires careful identification to determine the correct rights, obligations, awards, and enterprise agreements applicable to a given employment relationship.
Important exceptions
Despite WA having its own system, certain employers and employees within the state are still covered by the federal Fair Work system. This includes 'constitutional corporations' (e.g., most private sector companies), Commonwealth government agencies, and employers in specified territories. State government employees and unincorporated businesses (sole traders or partnerships) typically remain under the WA industrial relations system. It's crucial to identify the employer's legal structure.
What you should do now
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Determine if your employer is a 'constitutional corporation' (most private businesses) or an unincorporated entity (e.g., sole trader or partnership).
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Identify whether your employment falls under the federal Fair Work Act or the state Industrial Relations Act.
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Consult the Western Australian Department of Mines, Industry Regulation and Safety website for state system information.
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Visit the Fair Work Ombudsman website for details on federal workplace laws, awards, and agreements.
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Seek independent legal advice if you are unsure which system applies to your specific employment situation or have a workplace dispute.
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