Western Australia: Industrial Relations Act 1979 (WA)

Western Australia Industrial Relations Act 1979 Western Australia Industrial Relations Act 1979 Contents Part I — Introductory 1. Short title 1 2. Commencement 1 3. Application of Act off‑shore 1 4. Repeal 1 6. Objects of Act 1 7. Terms used 1 7A. Determining whether individual is employee or person is employer 1 7B. Determining whether employee is casual employee 1 Part II — The Western Australian Industrial Relations Commission Division 1 — Constitution of the Commission 8. Commission constituted 1 9. Qualifications for appointment of Chief Commissioner 1 10. Age limit for commissioners 1 11. Oath of office and secrecy 1 12. Commission is court of record etc. 1 13. Protection of commissioners and others 1 14. Exercise of powers and jurisdiction of Commission 1 14A. Dual federal and State appointments 1 14B. Performance of duties by dual federal and State appointees 1 15. Constitution of Full Bench and Commission in Court Session 1 16. Chief Commissioner's functions 1 16A. Delegation by Chief Commissioner 1 17. Appointment of acting commissioners 1 18. Extending appointments 1 19. Duty of commissioners 1 20. Conditions of service of commissioners 1 21. Resignation from office 1 22. Tenure subject to good behaviour 1 Division 2 — General jurisdiction and powers of the Commission 22B. Commission to act with due speed 1 23. Jurisdiction of Commission 1 23A. Unfair dismissal claims, Commission's powers on 1 23B. Third party involvement in employment claim, Commission's powers to prevent etc. 1 24. Industrial matters, Commission may decide what are 1 24A. Onus of proving individual is or was not employee 1 25. Allocation of industrial matters by Chief Commissioner 1 26. Commission to act according to equity and good conscience 1 27. Powers of Commission 1 28. Powers in s. 27 may be exercised at any time after matter lodged 1 29. Who may refer industrial matters to Commission 1 29AA. Certain claims not to be determined 1 29A. Proposed award etc., service of etc. 1 29B. Parties to proceedings 1 29C. Deciding which organisation to be party to award, order or industrial agreement relating to government officers 1 30. Minister may intervene on behalf of State 1 31. Representation of parties to proceedings 1 32. Conciliation and arbitration of industrial matters 1 32A. Conciliation and arbitration functions of Commission are unlimited 1 33. Evidence before Commission 1 33A. Misconduct before Commission 1 34. Decisions of Commission, form of and review of 1 35. Decision to be first drawn up as minutes 1 36. Copy of decision must be given to parties and be available for inspection 1 Division 2AA — Certain industrial matters relating to public sector employment Subdivision 1 — Preliminary 36AA. Industrial matters relating to public sector employment 1 Subdivision 2 — Certain industrial matters relating to government officers 36AB. Meaning of government officer 1 36AC. Commission's additional power of review for industrial matters relating to government officers 1 36AD. Effective date of reclassification decision 1 36AE. No appeal from certain decisions relating to government officers 1 Subdivision 3 — Provisions related to certain substandard performance or disciplinary decisions or findings 36AF. Application of Subdivision 1 36AG. Commission's powers on exercising jurisdiction in relation to certain decisions or findings 1 36AH. Limit on Commission's powers in relation to lawful redeployment direction matters 1 Division 2A — Awards 36A. Non‑award employees, interim award for etc. 1 37. Effect, area of operation and duration of award 1 37A. Public sector awards and enterprise awards 1 37B. Private sector awards: general 1 37C. Private sector awards: limitations on making and varying 1 37D. Private sector awards: variations of the Commission's own motion 1 38. Named parties to awards 1 39. When award operates 1 40. Varying and cancelling awards generally 1 40A. Incorporation of industrial agreement provisions into awards by consent 1 40B. Power to vary awards to reflect statutory etc. requirements, to promote efficiency and to facilitate implementation 1 Division 2B — Industrial agreements 40C. Terms used 1 41. Industrial agreements, making, registration and effect of 1 41A. Which industrial agreements must not be registered under s. 41 1 42. Bargaining for industrial agreement, initiating 1 42A. Response to initiation of bargaining 1 42B. Bargaining for industrial agreements, good faith required etc. 1 42C. Code of good faith 1 42D. Duty of good faith does not require concluded industrial agreement 1 42E. Commission may assist bargaining 1 42F. Commission's power over negotiating parties restricted 1 42G. Parties may agree to Commission making orders as to terms of agreement 1 42H. Commission may declare that bargaining has ended 1 42I. Enterprise order, applying for and making 1 42J. Enterprise order, effect of 1 42K. Enterprise order, term of and varying etc. 1 42L. When bargaining ends 1 42M. Regulations for this Division 1 43. Industrial agreement, varying, renewing and cancelling 1 Division 2C — Holding of compulsory conferences 44. Compulsory conference, summoning, holding etc. 1 45. Conference etc. not to be held in relation to certain disputes about long service leave entitlement 1 Division 2D — Miscellaneous provisions relating to awards, orders and agreements 46. Interpretation of awards and orders by Commission 1 47. Defunct awards etc., cancelling; employers not in business etc., deleting from awards etc. 1 48A. Awards etc. to provide for dispute resolution 1 48B. Superannuation, provisions about in awards etc. 1 Division 2E — Appeals to the Full Bench 49. Appeal from Commission's decision 1 Division 2F — Keeping of and access to employment records and pay slips 49D. Employer's duties as to employment records 1 49DA. Employer obligations in relation to pay slips 1 49E. Access to employment records 1 49F. Enforcement of this Division 1 Division 2G — Right of entry and inspection by authorised representatives Subdivision 1 — Preliminary 49G. Terms used 1 Subdivision 2 — Right of entry and inspection 49H. Entry for discussions with employees 1 49I. Entry to investigate certain breaches 1 49K. No entry to premises used for habitation 1 49L. Right of entry permit must be shown to occupier on request 1 49M. Obstructing etc. rights etc. under this Division etc. 1 Subdivision 3 — Right of entry permits 49N. Application for right of entry permit 1 49O. Commission may issue right of entry permit 1 49P. Deciding whether nominated representative is fit and proper person 1 49Q. Form of right of entry permit 1 49R. Expiry of right of entry permit 1 49S. Commission may decide on later expiry day 1 Subdivision 4 — Imposing or changing conditions, suspending or revoking right of entry permit 49T. When Commission may impose or change conditions, suspend or revoke right of entry permit 1 49U. When right of entry permit is suspended 1 49V. Revocation of right of entry permit on application of secretary of organisation 1 Subdivision 5 — Miscellaneous 49W. Return of right of entry permit 1 49X. Commission's powers on dispute about right of entry or investigation 1 49Y. Limit on Commission's jurisdiction in relation to awards, orders and agreements 1 Division 3 — General Orders 50. General Orders, nature of and making 1 50A. Rates of pay etc. for MCE Act and awards, annual State Wage order as to 1 50B. Apprentices, matters relevant to setting rates for in State Wage order 1 51A. Public sector discipline, General Orders as to 1 51B. General Order not to set minimum condition set by MCE Act 1 51BA. Notice of hearing to make General Order 1 51BB. Right to be heard before General Order made 1 51BC. Commissioner may deal with certain proceedings 1 51BD. Awards etc. affected by General Order, publication of 1 51BE. Publication of order 1 Division 3AA — Bullying at work and sexual harassment in connection with work Subdivision 1 — Preliminary 51BF. Terms used 1 51BG. Person conducting a business or undertaking 1 51BH. Worker 1 Subdivision 2 — Bullying at work 51BI. Worker bullied at work 1 51BJ. Worker may make stop bullying application 1 51BK. Dealing with stop bullying application 1 51BL. Power to dismiss stop bullying applications involving covert operations 1 51BM. Commission may make stop bullying order 1 51BN. Matters to be taken into account in considering terms of stop bullying order 1 51BO. Person must comply with stop bullying order 1 51BP. Enforcement of contravention of stop bullying order 1 Subdivision 3 — Sexual harassment in connection with work 51BQ. Meaning of sexually harasses 1 51BR. Sexual harassment in connection with work prohibited 1 51BS. Vicarious liability for sexual harassment in connection with work 1 51BT. Aggrieved person may commence sexual harassment proceeding 1 51BU. Time for commencing sexual harassment proceeding 1 51BV. Dealing with sexual harassment proceeding 1 51BW. Power to dismiss stop sexual harassment application involving covert operations 1 51BX. Commission may make stop sexual harassment order 1 51BY. Matters to be taken into account in considering terms of stop sexual harassment order 1 51BZ. Commission may make declarations and orders for referrals 1 51BZA. Person must comply with order made by Commission 1 51BZB. Enforcement of contravention of order 1 51BZC. Enforcement of contravention of prohibition on sexual harassment 1 51BZD. Restrictions on multiple actions 1 51BZE. Other laws not excluded or limited 1 Division 3A — MCE Act matters Subdivision 1 — Preliminary 51C. Terms used 1 Subdivision 2 — Disputes relating to flexible working arrangement requests 51D. Flexible working arrangement dispute 1 51E. Restriction on application for compulsory conference 1 51F. Commission may make certain declarations on deciding dispute by arbitration 1 51G. Commission may make flexible working arrangement order 1 51H. Employer must comply with flexible working arrangement order 1 51HA. Enforcement of contravention of order 1 51HB. Enforcement of minimum condition of employment relating to flexible working arrangement request 1 51HC. Restriction on multiple actions 1 Subdivision 3 — Casual employees' loading 51I. Casual employees' loading, setting for MCE Act s. 11 1 51J. Notice of hearings 1 51K. Right to be heard before order made 1 51L. Limits on orders made under section 51I 1 51M. Publication of orders 1 51N. Variation and rescission of s. 51I orders 1 Division 3B — Equal remuneration 51O. Equal remuneration orders 1 51P. Employer not to reduce remuneration 1 51Q. Alternative remedies 1 51R. Remuneration‑related action 1 Division 4 — Registered organisations and associations 52. Terms used 1 52A. Counterpart federal body 1 53. Organisations of employees that may be registered 1 54. Organisations of employers that may be registered 1 55. Applications for registration under s. 53 or 54 1 56. Rules of organisations to provide for secret ballots etc. at elections 1 56A. Casual vacancies, rules as to filling 1 57. Elections by direct voting system to be by secret postal ballot 1 58. Registering organisations, rules etc. 1 59. Names of registered organisations, restrictions on 1 60. Organisation becomes incorporated on registration 1 61. Effect of registration 1 62. Altering registered rules 1 63. Records, organisations' duties as to etc. 1 64. Membership register, Registrar may direct rectification of etc. 1 65. Accounts of organisation, audit and filing of 1 65A. Auditor's powers 1 66. Power of Chief Commissioner to deal with rules of organisation 1 67. Registering associations 1 68. Declaration as to certain functions 1 69. Election, conduct of by Registrar or Electoral Commissioner 1 70. Offences in relation to elections 1 71. Rules of State and federal organisations as to membership and offices 1 71A. State organisation may adopt rules of federal organisation 1 72. Amalgamated organisations, registration of 1 72A. Orders as to the employees represented by employee organisation 1 72B. AMA may represent interests of medical practitioners 1 73. Cancelling and suspending registration of organisation, procedure for 1 Division 5 — Duties of officers of organisations 74. Finance official's duties 1 75. Auditor to report on compliance with s. 74 duties 1 77. Duty under s. 74, enforcing 1 78. Failure to comply with s. 77(2)(e) order 1 79. Proceedings under s. 77, effect on or of other proceedings 1 80. Disqualification from office for breach of s. 74 duty 1 Part 2AA — Employers declared not to be national system employers Division 1 — Declarations 80A. Employers declared not to be national system employers 1 Division 2 — Change from federal to State system 80B. Terms used 1 80BA. Operation of awards, industrial agreements or orders 1 80BB. New State instruments 1 80BC. Amendment of new State instruments 1 80BD. Ability to carry over matters 1 80BE. References in new State instruments to federal industrial authority and General Manager 1 80BF. References in new State instruments to provisions of Commonwealth laws 1 80BG. References in new State instruments to federal organisations 1 80BH. Named parties to new State instruments 1 80BI. Employment under old federal instrument 1 80BJ. Leave accrued immediately before relevant day 1 80BK. Leave taken under old federal instrument 1 Part IIB — Enquiries 80ZE. Minister may refer matter to Commission for enquiry 1 Part IIC — Arrangements with other industrial authorities 80ZF. Term used: FW Commission 1 80ZG. Joint proceedings of Commission and FW Commission 1 80ZH. Referring matters to FW Commission for determination under this Act 1 80ZI. Conferences with other industrial authorities 1 80ZJ. Commission may exercise powers conferred by FW Act or prescribed enactments 1 Part III — Enforcement of Act, awards, industrial agreements and orders Division 1 — Industrial magistrate's court 81. Industrial magistrate's courts established 1 81A. Jurisdiction of industrial magistrate's court 1 81AA. Terms used 1 81B. Industrial magistrate's courts, constitution of 1 81C. Sittings of industrial magistrate's courts 1 81CA. Procedure etc. of industrial magistrate's courts 1 81CAA. Onus of proving individual is or was not employee 1 81CB. Industrial magistrate's court judgments, enforcement of 1 81D. Clerks of industrial magistrate's courts 1 81E. Representation of parties in industrial magistrate's court 1 81F. Industrial magistrate's court records, access to 1 81G. Industrial inspectors may assist industrial magistrate's court 1 Division 2 — Enforcement generally 82. Jurisdiction of Full Bench 1 82A. Time limit for certain applications 1 83. Enforcing awards etc. 1 83A. Underpayment of employee, orders to remedy 1 83B. Unfair dismissal, enforcing s. 23A order as to 1 83C. Costs of enforcement orders under s. 83, 83A and 83B 1 83D. Offences under this Act, jurisdiction as to 1 83E. Proceedings for contravening civil penalty provisions 1 83EA. Serious contravention of entitlement provision or civil penalty provision 1 83EB. Employer to have burden of disproving certain allegations by applicant under s. 83 1 83F. Costs and penalties, payment of 1 84. Appeal from industrial magistrate's court to Full Bench 1 84AA. Illegal contracts of employment may be treated as valid 1 84A. Certain contraventions of Act, enforcement of before Full Bench 1 Division 3 — Civil infringement notices 84B. Terms used 1 84C. Giving civil infringement notice 1 84D. Content of civil infringement notice 1 84E. Amount of civil infringement notice penalty 1 84F. Time for payment of civil infringement notice penalty 1 84G. Extension of time to pay civil infringement notice penalty 1 84H. Withdrawal of civil infringement notice 1 84I. Effect of payment of civil infringement notice penalty 1 84J. Refund of civil infringement notice penalty 1 Division 4 — Enforceable undertakings 84K. Terms used 1 84L. Application of Division 1 84M. Enforceable undertaking 1 84N. Enforcement of enforceable undertakings 1 Division 5 — Compliance notices 84O. Terms used 1 84P. Application of Division 1 84Q. Giving compliance notice 1 84R. Relationship with enforceable undertakings 1 84S. Relationship with proceedings under s. 83 1 84T. Person must comply with compliance notice 1 84U. Review of compliance notices 1 84V. Withdrawal of compliance notice 1 Part IV — Western Australian Industrial Appeal Court 85. Constitution of Court 1 86. Jurisdiction of Court 1 87. Decision of Court 1 88. Judgments, enforcement of 1 90. Appeal from Commission to Court 1 91. Representation before Court 1 91A. Court's power to order costs and expenses 1 92. Contempt, Court's powers as to 1 Part V — The Registrar and other officers of the Commission 93. Appointment and duties of officers 1 94. Authority of officers to do acts as directed 1 95. Deputy registrar's functions 1 96. Delegation by Commission to Registrar 1 Part VIA — Freedom of association 96A. Terms used 1 96B. Awards etc. not to contain certain provisions about membership of organisations 1 96C. Discrimination because of membership of organisation, offence 1 96D. Discriminatory etc. acts against persons performing work for employers because of membership or non‑membership of employee organisation, offence 1 96E. Discriminatory etc. acts against persons because of non‑membership of employee organisation, offence 1 96F. Penalties under s. 96C, 96D and 96E, provisions about 1 96G. Criminal responsibility of officers etc. for offences in s. 96C, 96D and 96E 1 96H. Criminal responsibility of corporations etc. for offences in s. 96C, 96D and 96E 1 96I. Evidentiary provisions for s. 96C, 96D and 96E 1 96J. Court may order compliance with s. 96C, 96D or 96E 1 96K. Appeal against decision under s. 96J 1 96L. Other court orders after conviction under s. 96C, 96D or 96E 1 Part 6B — Protection of employee rights Division 1 — Preliminary 97. Terms used 1 Division 2 — Damaging action 97A. Damaging action because of inquiry or complaint 1 97B. Court orders to employers 1 97C. Court orders to third parties 1 Division 3 — Sham contracts for services 97D. Misrepresenting contract of employment as contract for services 1 97E. Dismissing to engage under contract for services 1 97F. False statement to engage under contract for services 1 97G. Court orders to employers 1 Division 4 — Miscellaneous 97H. Certain advertising prohibited 1 Part VID — Employer‑employee agreements Division 1 — Preliminary 97U. Terms used 1 Division 2 — The making of an EEA 97UA. Employer and employee may make EEA 1 97UB. EEA may deal with post‑employment matters 1 97UC. Other provisions about making EEA 1 97UD. Making of EEA by person with a mental disability 1 97UE. Effect of EEA 1 97UF. EEA not to be made while industrial agreement in operation 1 97UG. Documents etc. to be given to employee before EEA signed 1 97UH. Application of s. 97UG if draft EEA amended 1 97UI. EEA information statement, form of (s. 97UG(2)(b)) 1 97UJ. Bargaining agents, appointing etc. 1 97UK. Prohibited conduct relating to bargaining agents 1 Division 3 — Form and content of EEA 97UL. Form of EEA 1 97UM. Additional formalities for EEA made with employee under 18 1 97UN. EEA must provide for resolution of disputes 1 97UO. EEA dispute provisions, content of 1 97UP. Commission may be specified as arbitrator 1 Division 4 — Commencement, duration and variation 97UQ. New employee, when EEA commences 1 97UR. Existing employee, when EEA commences 1 97US. Expiry of EEA 1 97UT. Employment conditions applicable on expiry of EEA 1 97UU. EEA cannot be varied 1 97UV. Cancelling EEA 1 97UW. Termination of employment, effect of on EEA 1 Division 5 — Registration of EEAs Subdivision 1 — Preliminary 97UX. Delegation by Registrar 1 Subdivision 2 — Registration 97UY. Lodgment of EEA for registration 1 97UZ. EEA with new employee, effect of not lodging 1 97V. Recovery of money if s. 97UZ applies 1 97VA. Employment conditions of new employee if EEA not lodged 1 97VB. Registrar to be satisfied EEA is in order for registration 1 97VC. Registrar's powers for s. 97VB 1 97VD. Registrar to notify parties of certain deficiencies in EEA 1 97VE. Parties may correct deficiencies in EEA 1 97VF. Registration of EEA 1 97VG. Refusal of registration of EEA 1 97VH. When refusal has effect 1 97VI. EEA for new employee refused registration, effect ceases 1 97VJ. Recovery of money if s. 97VI applies 1 97VK. Employment conditions of new employee if registration refused 1 97VL. Registrar to provide copy of registered EEA 1 Subdivision 3 — Appeal against refusal of registration 97VM. Appeal against refusal of registration 1 97VN. Commission to notify parties of certain deficiencies in EEA 1 97VO. Parties may correct deficiencies in EEA 1 97VP. Determination of appeal 1 97VQ. Procedure on appeal 1 Division 6 — No‑disadvantage test Subdivision 1 — Definition 97VR. Terms used 1 97VS. No‑disadvantage test defined 1 97VT. Determining which award etc. is relevant for s. 97VS 1 97VU. All entitlements to be considered 1 97VV. Application of test if Supported Wage System applies 1 Subdivision 2 — Principles to be followed in application of no‑disadvantage test 97VW. Term used: Commission 1 97VX. Commission to establish principles and guidelines 1 97VY. Registrar and Commission to give effect to s. 97VX instrument 1 97VZ. Minister or peak industry body may seek amendment etc. of s. 97VX instrument 1 97W. Public comment to be sought before s. 97VX instrument amended etc. 1 97WA. How public comment to be sought 1 Division 7 — Register 97WB. Terms used 1 97WC. Register of EEAs 1 97WD. Inspection of register 1 97WE. Commission may exempt an EEA from inspection 1 97WF. Protected information not to be disclosed 1 97WG. Certified copies of EEAs 1 Division 8 — Disputes 97WH. Terms used 1 97WI. Arbitration jurisdiction of Commission 1 97WJ. Representation of parties 1 97WK. Referral of alleged delay in dispute resolution to Commission 1 97WL. Several disputes may be subject of one arbitration 1 97WM. Arbitrator's power to obtain information 1 97WN. Orders and determinations of arbitrators 1 97WO. Orders and determinations, form of etc. 1 97WP. Enforcing orders and determinations 1 97WQ. Industrial magistrate's court not bound by arbitrator's interpretation of EEA 1 Division 9 — EEAs for persons with mental disabilities Subdivision 1 — Preliminary 97WR. Terms used 1 97WS. Guardianship and Administration Act 1990, relationship of this Division to 1 97WT. Registrar to notify Public Advocate of applications and orders for approval of representative 1 97WU. Public Advocate to notify Registrar of relevant guardianship orders 1 Subdivision 2 — Approval of person to act on behalf of person with a mental disability 97WV. Application for approval 1 97WW. Requirements for s. 97WV application 1 97WX. Forms for s. 97WW to be prescribed 1 97WY. Who may be approved as a representative 1 97WZ. Approval of representative 1 97X. Effect of s. 97WZ order 1 97XA. Refusal of approval 1 97XB. Appeal against refusal of approval 1 97XC. Determination of appeal 1 Subdivision 3 — Functions of representative 97XD. Functions 1 97XE. Effect of acts of representative 1 97XF. Duties of representative 1 Subdivision 4 — Termination of representative's authority to act 97XG. Duration of order approving representative 1 97XH. Resignation of representative 1 97XI. Revocation order, application to SAT for 1 97XJ. Right to be heard on s. 97XI application 1 97XK. SAT may make revocation order 1 97XL. Guardianship and Administration Act 1990, application of for s. 97XK 1 Subdivision 5 — Approval of new representative 97XM. Application for new approval where representative dies or approval is revoked 1 97XN. Approval of representative 1 97XO. Effect of s. 97XN order 1 97XP. Refusal of approval 1 97XQ. Appeal against refusal of approval 1 Subdivision 6 — Miscellaneous 97XR. Registrar's powers for s. 97WV and 97XM 1 97XS. EEA not affected by revocation of order or vacancy in position of representative 1 97XT. Register of s. 97WZ and 97XN orders 1 97XU. Certified copies of registered entry 1 97XV. Information obtained under this Division not to be disclosed 1 97XW. Procedure in proceedings under this Division 1 Division 10 — Certain conduct prohibited 97XX. Purpose of this Division 1 97XY. Enforcing prohibitions in this Division 1 97XZ. Making employment etc. conditional on EEA being entered into prohibited 1 97Y. Certain advertising prohibited 1 97YA. Exception to s. 97XZ and 97YB 1 97YB. Employer offering EEA to also offer other employment arrangements 1 97YC. Order for compliance with s. 97YB 1 97YD. Threats and intimidation as to EEA prohibited 1 97YE. Misinformation prohibited 1 97YF. Dismissal etc. because of refusal to make or cancel EEA prohibited 1 97YG. Breach of s. 97YF, court orders that may be made for 1 97YH. Burden of proof in s. 97YF proceedings 1 Division 11 — General 97YI. Review of Div. 5, 6 and 7 1 97YJ. Regulations 1 Part VII — Miscellaneous 98. Industrial inspectors, designation and functions of etc. 1 98A. Information obtained under s. 98 not to be disclosed 1 99A. Identity cards for industrial inspectors 1 99B. Production of identity card 1 99C. Staff for Department 1 99D. Designation of officers, generally 1 99. Wage rates in awards not affected by repeal of basic wage provisions 1 100. False or misleading statement about right to represent industrial interests 1 102. Obstruction etc. prohibited 1 102A. Institution of certain proceedings, powers of Registrar etc. for 1 103. Certain applications may relate to more than one breach 1 104. Prosecutions 1 105. Awards etc., evidence of 1 106. Official signatures and appointments, judicial notice of 1 107. No costs to be awarded against Registrar, deputy registrar or industrial inspector 1 108. Organisations and associations not affected by certain Imperial Acts 1 109. Dues payable to organisation or association may be sued for 1 110. Disputes between organisation or association and its members, how to be determined 1 111. No premiums etc. to be taken for employment 1 112. Certain rules of organisation as to penalties invalid 1 112A. Industrial agents, registration of 1 113. Regulations 1 114. Contracting out from awards etc. prohibited 1 115. Police officers, application of Act to (Sch. 3) 1 Part 8 — Transitional and savings provisions Division 1 — Transitional provisions for Industrial Relations Amendment Act 2018 116. Transitional provisions for Industrial Relations Amendment Act 2018 1 Division 2 — Savings and transitional provision for Industrial Relations Legislation Amendment Act 2021 117. Transitioned private sector awards 1 Division 3 — Transitional provisions for Industrial Relations Legislation Amendment Act 2024 118. Terms used 1 119. Interpretation Act 1984 not affected 1 120. Representation of parties to proceedings 1 121. Boards of Reference abolished 1 122. Existing authorities for entry and inspection by authorised representatives 1 123. Bullying and sexual harassment at work before commencement day 1 124. Office of public service arbitrator abolished 1 125. Public Service Appeal Board abolished 1 126. Railways Classification Board abolished 1 127. No costs to be awarded under section 107 1 128. Deletion of references to Mines and Metals Association 1 Schedule 1 — Matters to be published in the "Western Australian Industrial Gazette" Schedule 3 — Police officers 2. Application of Act to police officer 1 3. Western Australian Police Union of Workers, status of 1 Schedule 4 — Registration requirements for EEAs 1. When EEA is in order for registration 1 Schedule 5 — Powers to obtain information, and related provisions 1. Authorised person's powers to obtain information 1 2. Obstructing authorised person 1 3. False statement to authorised person 1 4. Failure to comply with cl. 1 requirement 1 5. Legal professional privilege overridden 1 6. Incriminating answers or documents 1 Schedule 6 — Transitional provisions Division 1 — Preliminary 1. Terms used 1 Division 2 — Provisions for President 2. Acting President: continuation in office 1 3. Past President's pension entitlements 1 4. Judicial notice of signature and appointment of President 1 Division 3 — Provisions for pending matters 5. Pending matters 1 6. Order under former s. 49 does not begin hearing of appeal 1 7. Notices and applications under former s. 55 1 8. Summonses under former s. 73 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Industrial Relations Act 1979 An Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organisations of employers and employees, and for related purposes. Part I — Introductory 1. Short title This Act may be cited as the Industrial Relations Act 1979. [Section 1 amended: No. 94 of 1984 s. 4.] 2. Commencement The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation. 3. Application of Act off‑shore (1) Subject to subsections (5) and (6) where any industry is carried on — (a) partly within the State and partly within an area to which this subsection applies; or (b) wholly or partly in an area to which this subsection applies, and — (i) facilities for servicing or supporting that industry are maintained in the State by or on behalf of the employer concerned; or (ii) the employer concerned is connected with the State; or (iii) that industry is carried on from, or on, or by means of, an aircraft, ship, or vessel certificated, registered, or licensed under a law of the State or by a public authority, or which is required to be so certificated, registered, or licensed; or (iv) that industry is carried on from, or on, or by means of, a rig or other structure, installation, or equipment, the use or function of which is regulated by the State or by the State and the Commonwealth, or is required to be so regulated; or (v) that industry is authorised or regulated by the State or by the State and the Commonwealth; or (vi) that industry is carried on pursuant to a law of the State, then this Act applies to and in relation to that industry in so far as any employment relates to the area to which this subsection applies and in any such case this Act also applies to and in relation to any related industrial matter or industrial action, and any jurisdiction, function, duty, or power exercisable, imposed, or conferred by or under this Act extends to the matter or action. (2) For the purposes of subsection (1), an employer is connected with the State if that employer — (a) is domiciled in the State; or (b) is resident in the State, normally or temporarily; or (c) being a body corporate, is — (i) registered, incorporated, or established under a law of the State; or (ii) taken to be registered in the State; or (iii) a related body corporate of such a body for the purposes of the Corporations Act 2001 (Commonwealth); or (d) in connection with the industry concerned, has an office or a place of business in the State; or (e) is the holder of a licence, lease, tenement, permit, or other authority, granted under a law of the State or by a public authority under or by virtue of which the industry is carried on. (3) The areas to which subsection (1) applies are — (a) that area situate west of 129° of east longitude reckoning from the meridian of Greenwich, that is part of the areas known as and comprised within — (i) the Australian fishing zone as defined by the Commonwealth Fisheries Act 1952 2; or (ii) the continental shelf, within the meaning of the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 1 to the Commonwealth Petroleum (Submerged Lands) Act 1967 3; (b) any other area seaward of the State to which from time to time the laws of the State apply or, by a law of the Commonwealth, are applied. (4) For the purposes of any proceedings under this Act an averment in the application or process is, in the absence of proof to the contrary, taken to be proved if it is either of the following — (a) that an employer was, pursuant to subsection (2), at a specified time or during a specified period or at all material times connected with the State; or (b) that any conduct, event, circumstance, or matter occurred, or that any place is situate, within an area referred to in subsection (3). (5) Subsections (1), (2), and (3) must not be construed as applying this Act to or in relation to any person, circumstance, thing, or place by reason only of the operation of paragraph (c) of the interpretation of the term industry set out in section 7(1) unless this Act would also apply by reason of the operation of subsection (1). (6) Subsections (1), (2), and (3) have effect only where this Act or any provision of this Act would not otherwise apply as a law of the State, or be applied as a law of the Commonwealth, to or in relation to any person, circumstance, thing, or place. [Section 3 amended: No. 10 of 1982 s. 28; No. 10 of 2001 s. 111; No. 30 of 2021 s. 76(2) and (8), 78(1) and (7).] 4. Repeal The Industrial Arbitration Act 1912 is repealed. [Section 4 amended: No. 30 of 2021 s. 78(2).] [5. Deleted: No. 79 of 1995 s. 66(2).] 6. Objects of Act The principal objects of this Act are — (a) to promote goodwill in industry and in enterprises within industry; and (aa) to provide for rights and obligations in relation to good faith bargaining; and (ab) to promote the principles of freedom of association and the right to organise; and (ac) to promote gender equality in the workplace through equal remuneration and eliminating gender‑based undervaluation of work; and (ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; and (ae) to ensure all agreements registered under this Act provide for fair terms and conditions of employment; and (af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises; and (ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises; and (b) to encourage, and provide means for, conciliation with a view to amicable agreement and preventing and settling industrial disputes; and (c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality; and (ca) to provide a system of fair wages and conditions of employment; and (cb) to prevent and eliminate bullying and sexual harassment in the workplace; and (d) to provide for the observance and enforcement of agreements, awards, the LSL Act, the MCE Act and other entitlement provisions; and (e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations; and (f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and (g) to encourage persons, organisations and authorities involved in, or performing functions with respect to, the conduct of industrial relations under the laws of the State to communicate, consult and co‑operate with persons, organisations and authorities involved in, or performing functions with respect to, the conduct or regulation of industrial relations under the laws of the Commonwealth. [Section 6 inserted: No. 94 of 1984 s. 5; amended: No. 20 of 2002 s. 114 and 127; No. 30 of 2021 s. 4 and 78(7); No. 43 of 2024 s. 4.] 7. Terms used (1) In this Act, unless the contrary intention appears — alteration, in relation to rules of an organisation, includes amendment, addition to, variation, rescission or substitution; apprentice means a person who is an apprentice under a training contract registered under the Vocational Education and Training Act 1996 Part 7 Division 2; approved form means a form approved by the Chief Commissioner for the purposes of the provision in which the term is used; association means an association that is registered under Division 4 of Part II; award — (a) means an award made by the Commission under this Act; and (b) for the purposes of section 37C(1), includes an award made under a law of the Commonwealth, another State or a Territory extending to and binding employees; bullying, at work, means behaviour to which section 51BI(1) applies; calling means any trade, craft, occupation, or classification of an employee; CEO means the chief executive officer of the Department; Chamber means the body known as the Chamber of Commerce and Industry of Western Australia (Inc); Chief Commissioner includes an acting Chief Commissioner; civil penalty provision means a provision of this Act, or any other written law, that is specified to be a civil penalty provision for the purposes of section 83E; Commission means the body continued and constituted under this Act under the name of The Western Australian Industrial Relations Commission; Commission in Court Session means the Commission constituted as provided by section 15(2); commissioner means a commissioner appointed under this Act and includes the Chief Commissioner, the Senior Commissioner and an acting commissioner; Court means the Western Australian Industrial Appeal Court continued and constituted under this Act; decision includes award, order, declaration or finding; declaration means a declaration made by the Commission under this Act; Department means the department of the Public Service principally assisting the Minister in the administration of this Act; departmental officer means a person employed in the Department as referred to in section 99C(2); deputy registrar means a person designated as a deputy registrar under this Act; electronic means includes — (a) an electronic database or document management system; or (b) any other means by which a document can be accessed electronically; employee means — (a) an individual who is employed by an employer to do work for hire or reward, including as an apprentice; or (b) an individual whose usual status is that of an employee; Note for this definition: See section 7A which applies for the purposes of determining whether an individual is an employee of a person. employer means — (a) a person or public authority employing 1 or more employees; or (aa) in relation to an industrial matter mentioned in section 36AA — the employing authority of a public service officer or health services employee; or (b) except as provided in the Foreign States Immunities Act 1985 (Commonwealth) section 12, a foreign state or consulate employing 1 or more employees; or (c) a labour hire agency or group training organisation that arranges for an employee (being a person who is a party to a contract of service with the agency or organisation) to do work for another person, even though the employee is working for the other person under an arrangement between the agency or organisation and the other person; Note for this definition: See section 7A which applies for the purposes of determining whether a person is an employer of an individual. employer‑employee agreement or EEA means an employer‑employee agreement provided for by section 97UA; employing authority — (a) in relation to a public service officer, another employee to whom the Public Sector Management Act 1994 Part 5 applies or a public sector body — has the meaning given in section 5 of that Act; or (b) in relation to a health services employee — has the meaning given in the Health Services Act 2016 section 103; employment record means a record kept under section 49D; enterprise award means an award that extends to and binds a single employer who is not a body or entity referred to in the definition of public sector award; enterprise order has the meaning given by section 42I(1); entitlement provision means — (a) a provision of any of the following — (i) an award; (ii) an industrial agreement; (iii) an employer‑employee agreement; (iv) an order made by the Commission, other than an order made under section 23A, 32(8), 44(6) or 66; or (b) a provision of the LSL Act Part III; or (c) a minimum condition of employment; or (d) a local government long service leave provision; equal remuneration means equal remuneration for men and women for work of equal or comparable value; equal remuneration order has the meaning given in section 51O(2); federal organisation means an organisation of employees registered under the FW (Registered Organisations) Act; final offer arbitration means arbitration in which an issue is decided by the Commission by awarding, without qualification or amendment, that one of the final proposals made by the parties concerned which, viewed in its entirety is, in the opinion of the Commission, the more or the most reasonable, as the case may be; finding means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate; flexible working arrangement dispute has the meaning given in section 51D; Full Bench means the Commission constituted as provided by section 15(1); FW Act means the Fair Work Act 2009 (Commonwealth); FW Commission means the body established by the FW Act section 575; FW (Registered Organisations) Act means the Fair Work (Registered Organisations) Act 2009 (Commonwealth); FW (Transitional) Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Commonwealth); government officer has the meaning given in section 36AB; group training organisation means an organisation that manages the employment and training of apprentices under contracted work based arrangements for the purpose of hosting those apprentices out to other employers; health services employee means an employee as defined in the Health Services Act 2016 section 6; in connection with work, in relation to the sexual harassment of a person, has the meaning given in section 51BR(2); industrial action means any act, omission, or circumstance done, effected, or brought about by an organisation or employer or employee or by any other person for the purpose, or in the opinion of the Commission for the purpose, of compelling an employer or an employee or an organisation to accept any terms or conditions of employment or to enforce compliance with any demand relating to employment not including an application made under this Act; industrial agreement means an agreement registered by the Commission under this Act as an industrial agreement; Industrial Gazette means the Western Australian Industrial Gazette published pursuant to this Act; industrial inspector means a person designated as an industrial inspector under this Act; industrial instrument means — (a) an award; or (b) an order of the Commission under this Act; or (c) an industrial agreement; or (d) for the purposes of section 49D or in relation to a SWIIP — an employer‑employee agreement; industrial magistrate's court means industrial magistrate's court established under section 81(1); industrial matter means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee in the industry and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to — (a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment; (b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment; (c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons; (ca) the relationship between employers and employees; (d) any established custom or usage of any industry, either generally or in the particular locality affected; (e) the privileges, rights, or duties of any organisation or association or any officer or member of an organisation or association in or in respect of any industry; (f) in respect of apprentices, these additional matters — (i) their wage rates and, subject to the Vocational Education and Training Act 1996 Part 7 Division 2, other conditions of employment; and (ii) the wages, allowances and other remuneration to be paid to them, including for time spent in performing their obligations under training contracts registered under the Vocational Education and Training Act 1996 Part 7 Division 2, whether at their employers' workplaces or not; and (iii) without limiting subparagraphs (i) and (ii), those other rights, duties and liabilities of them and their employers under such contracts that do not relate to the training and assessment they are to undergo, whether at their employers' workplaces or not; (g) any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including — (i) the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or (ii) the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation; (h) any matter referred to as an industrial matter in section 36AA; (ha) any matter relating to a flexible working arrangement dispute; (i) any matter, whether falling within the preceding part of this interpretation or not, where — (i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and (ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter; and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include — (j) compulsion to join an organisation of employees to obtain or hold employment; or (k) preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees; or (l) non­‑employment by reason of being or not being a member of an organisation of employees; or (m) any matter relating to the matters described in paragraph (j), (k) or (l); industry includes each of the following — (a) any business, trade, manufacture, undertaking, or calling of employers; (b) the performance of the functions of any public authority; (c) any calling, service, employment, handicraft, or occupation or vocation of employees, whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes — (d) a branch of an industry or a group of industries; irregularity, in relation to an election for an office, includes a breach of the rules of an organisation, and any act, omission, or other means by which the full and free recording of votes, by persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered; judge means a judge of the Supreme Court; labour hire agency means a person or entity that conducts a business of the kind commonly known as a labour hire agency; local government long service leave provision means a provision of regulations made under the Local Government Act 1995 section 5.48; Note for this definition: Regulations made under the Local Government Act 1995 section 5.48 provide for the long service leave benefits of — (a) the employees of local governments; and (b) the employees of the Western Australian Local Government Association constituted under section 9.58 of that Act. LSL Act means the Long Service Leave Act 1958; MCE Act means the Minimum Conditions of Employment Act 1993; minimum condition of employment has the meaning given in the MCE Act section 3(1); office in relation to an organisation means — (a) the office of a member of the committee of management of the organisation; and (b) the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation; and (c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest; and (d) an office within the organisation for the filling of which an election is conducted within the organisation; and (e) any other office, all or any of the functions of which are declared by the Commission under section 68 to be those of an office in the organisation, but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation; officer means a person who carries out, or whose duty is or includes the carrying out of, the whole or part of the functions of an office in an organisation; officer of the Commission means — (a) the Registrar, a deputy registrar or any other Registrar's Department officer assisting the Commission in the performance of its functions; or (b) an officer appointed under section 93(1a); officer of the Court means the clerk of the Court or any other Registrar's Department officer assisting the Court in the performance of its functions; organisation means an organisation that is registered under Division 4 of Part II; post‑secondary education institution means an institution or part of an institution established or continued by or under the University of Western Australia Act 1911, the Curtin University Act 1966, the Murdoch University Act 1973, the Edith Cowan University Act 1984 or the Vocational Education and Training Act 1996; premises includes any land, building, structure, mine, mine working, aircraft, ship or other vessel, vehicle and place, and any part of it; presiding commissioner, of the Full Bench, means the presiding commissioner under section 15(1A); presiding judge means the presiding judge of the Court; principal executive officer in relation to an organisation or association means the president or chairperson of that organisation or association; private sector award means an award other than a public sector award or enterprise award; produce includes exhibit, send or deliver; public authority means the Crown, the Governor in Executive Council, any Minister of the Crown in right of the State, the President of the Legislative Council or the Speaker of the Legislative Assembly or the President of the Legislative Council and the Speaker of the Legislative Assembly, acting jointly, as the case requires, under the Parliamentary and Electorate Staff (Employment) Act 1992, the Governor or the Governor's delegate under the Governor's Establishment Act 1992, State Government department, State trading concern, State instrumentality, State agency, or any public statutory body, corporate or unincorporate, established under a written law but does not include a local government, regional local government or regional subsidiary; public hospital means a public hospital as defined in the Health Services Act 2016 section 6; public sector award means an award that only extends to and binds the following — (a) a public sector body; (b) an entity specified in the Public Sector Management Act 1994 Schedule 1 column 2; public sector body has the meaning given in the Public Sector Management Act 1994 section 3(1); public service officer means a public service officer within the meaning of the Public Sector Management Act 1994; published in the required manner means published in the next available issue of the Industrial Gazette and — (a) in a newspaper circulating throughout the State; or (b) on an internet website maintained by the Commission; reclassification, of an office held by a government officer, has the meaning given in section 36AD(1); record means any thing or process — (a) upon or by which information is recorded or stored; or (b) by means of which a meaning can be conveyed by any means in a visible or recoverable form, whether or not the assistance of some electronic, electrical, mechanical, chemical or other machine or process is required to convey the information or meaning; record‑related civil penalty provision means the following — (a) section 49D(1), (6) or (8); (b) section 49DA(1) or (3); (c) section 49E(1); (d) section 102(1)(a); (e) the LSL Act section 7I(2), 26(1) or (2) or 26A(1); (f) a local government long service leave provision that requires an employer to keep records about employees' employment that are necessary to calculate the employees' entitlements to, and payment for, long service leave; Registrar means the chief executive officer of the Registrar's Department or, if another person is designated as the Registrar under this Act, that person; Registrar's Department means the department of the Public Service known as the Department of the Registrar Western Australian Industrial Relations Commission; Registrar's Department officer means a person employed in the Registrar's Department as referred to in section 99C(3); registration, in relation to an organisation, means registration under Division 4 of Part II by authority of the Commission in Court Session; repealed Act means the Act repealed by section 4; representative has the meaning given by section 97X or 97XO; represented person has the meaning given by section 97X or 97XO; secondary office, in relation to a person who holds the office of commissioner and is subsequently appointed to an office of the FW Commission under section 14A, means the office of member of the FW Commission; Senior Commissioner includes an acting Senior Commissioner; serious contravention has the meaning given in section 83EA(2); sexually harasses has the meaning given in section 51BQ; subscription means any subscription, fee or dues payable by a member for or in respect of membership of an organisation; supported wage industrial instrument provision or SWIIP means a provision of an industrial instrument that — (a) applies to an employee with a disability; and (b) provides a means (a wage assessment tool) for the assessment of whether, and the extent to which, the employee's productive capacity is reduced because of the disability; and (c) provides that the employer may pay a wage that — (i) relates to the employee's productive capacity as assessed using the wage assessment tool; and (ii) may be less than the applicable minimum wage in the industrial instrument; Supported Wage System or SWS means the scheme known by that name established by the Commonwealth Government to enable the assessment of whether, and the extent to which, a person's productive capacity is reduced because of a disability; vary in relation to an award or industrial agreement means to add a new provision or to add to, alter, amend or rescind an existing provision; worker has the meaning given in section 51BH. (1a) A matter relating to — (a) the dismissal of an employee by an employer; or (b) the refusal or failure of an employer to allow an employee a benefit under the employee's contract of service, is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended. (2) A matter relating to the bullying of a worker at work or the sexual harassment of a person in connection with work is an industrial matter. [(2A) deleted] (3) Any matter within the Commission's jurisdiction conferred by the Work Health and Safety Act 2020 Schedule 1 clause 27(1) is not an industrial matter. (4) Subsections (3) and (4) of section 34 do not apply to a determination that is made contrary to subsection (3) or to any proceeding based on that determination, and in the determination of any application for a prerogative writ or declaratory judgment regard must not be had to the existence of any right of appeal under this Act. [(5) deleted] (6) Subject to subsection (7), for the purposes of the definitions of employee and employer in subsection (1), if a person (the principal) engages a person, or a group of persons, under a contract to personally give a performance as, or as part of, musical, theatrical, dance or comic entertainment, the principal is to be regarded as employing the person, or each person in the group, to do work. (7) Subsection (6) has effect only to the extent necessary to enable a claim of the kind referred to in section 29(1)(d) to be referred to and dealt with by the Commission in respect of a person who would not be an employee but for the operation of subsection (6). (8) Notes in this Act are provided to assist understanding and do not form part of the Act. [Section 7 inserted: No. 94 of 1984 s. 6; amended: No. 83 of 1987 s. 38; No. 119 of 1987 s. 5; No. 73 of 1990 s. 45; No. 99 of 1990 s. 4; No. 44 of 1991 s. 5; No. 40 of 1992 s. 8; No. 15 of 1993 s. 4; No. 32 of 1994 s. 14; No. 103 of 1994 s. 18; No. 1 of 1995 s. 4, 26 and 49; No. 30 of 1995 s. 77; No. 79 of 1995 s. 30; No. 14 of 1996 s. 4; No. 42 of 1996 s. 71; No. 3 of 1997 s. 29 5 and 35; No. 36 of 1999 s. 247; No. 20 of 2002 s. 6, 128, 142, 149, 178, 185, 190(1), 191(1) and (2) and 194(2); Gazette 15 Aug 2003 p. 3686; No. 65 of 2003 s. 41(2); No. 51 of 2004 s. 70(2); No. 59 of 2004 s. 112; No. 68 of 2004 s. 87(2); No. 13 of 2005 s. 49(2)(b); No. 36 of 2006 s. 24 and 67; No. 35 of 2007 s. 97(2); No. 21 of 2008 s. 668(2); No. 44 of 2008 s. 53(2)‑(6); No. 53 of 2011 s. 32, 39 and 40; No. 11 of 2016 s. 295(2); No. 26 of 2016 s. 62; No. 32 of 2016 s. 183; No. 39 of 2018 s. 4; No. 36 of 2020 s. 358; No. 30 of 2021 s. 5, 75(1), 76(8), 77(1) and (13) and 78(7); No. 9 of 2022 s. 424; No. 43 of 2024 s. 5.] 7A. Determining whether individual is employee or person is employer (1) This section applies for determining, for the purposes of this Act, the LSL Act or the MCE Act — (a) whether an individual is an employee of a person; or (b) whether a person is an employer of an individual. (2) The matter is determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person. (3) For the purposes of subsection (2), consideration must be given to the totality of the relationship between the individual and the person, including — (a) the terms of the contract governing the relationship; and (b) other factors relevant to the totality of the relationship, including how the contract is performed in practice. Note for this section: This section was enacted as a response to the decisions of the High Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. [Section 7A inserted: No. 43 of 2024 s. 6.] 7B. Determining whether employee is casual employee (1) This section applies for determining, for the purposes of this Act, the LSL Act or the MCE Act, whether an employee of an employer is a casual employee. (2) The matter is determined by ascertaining the real substance, practical reality and true nature of the relationship between the employee and the employer. (3) For the purposes of subsection (2), consideration must be given to the totality of the relationship between the employee and the employer, including — (a) the terms of the contract governing the relationship; and (b) other factors relevant to the totality of the relationship, including how the contract is performed in practice. Note for this section: This section was enacted as a response to the decision of the High Court of Australia in WorkPac Pty Ltd v Rossato [2021] HCA 23. [Section 7B inserted: No. 43 of 2024 s. 6.] [Part 1A (s. 7C‑7G) deleted: No. 20 of 2002 s. 111(4) and 113(1).] Part II — The Western Australian Industrial Relations Commission [Heading amended: No. 94 of 1984 s. 7.] Division 1 — Constitution of the Commission 8. Commission constituted (1) The Commission by the name The Western Australian Industrial Commission established under the repealed Act is continued in existence subject to this Act under the name The Western Australian Industrial Relations Commission. (2) The Commission is to consist of — [(a) deleted] (b) a Chief Commissioner; and (c) a Senior Commissioner; and (d) such number of other commissioners as may, from time to time, be necessary for the purposes of this Act, who are respectively appointed to their offices by the Governor by commission under the Public Seal of the State. (3A) At least 1 commissioner must, in addition to the other attributes required for appointment, have — (a) knowledge of, or experience in, the field of work health and safety; and (b) knowledge of the Work Health and Safety Act 2020, sufficient for exercising the jurisdiction that the commissioner designated under section 16(2A) is required to exercise. (3) The order of seniority of commissioners is — (a) Chief Commissioner; (b) Senior Commissioner; (c) other commissioners according to the dates of their appointments unless 2 or more of their appointments are made on the same day in which case their order of seniority is such as is assigned to them by the Governor when appointing them. [Section 8 amended: No. 94 of 1984 s. 8 and 66; No. 51 of 2004 s. 70(3); No. 68 of 2004 s. 87(3); No. 13 of 2005 s. 49(3); No. 35 of 2007 s. 97(3); No. 36 of 2009 s. 18; No. 39 of 2018 s. 5; No. 36 of 2020 s. 359; No. 30 of 2021 s. 76(3) and 78(2).] 9. Qualifications for appointment of Chief Commissioner [(1)-(1a) deleted] (2) A person must not be appointed Chief Commissioner unless — (a) the person has had experience at a high level in industrial relations; or (b) the person has, not less than 5 years previously, obtained a degree of a university or an educational qualification of similar standard after studies considered by the Governor to have substantial relevance to the duties of the Chief Commissioner. [Section 9 inserted: No. 94 of 1984 s. 9; amended: No. 99 of 1990 s. 5; No. 21 of 2008 s. 668(3); No. 39 of 2018 s. 6; No. 30 of 2021 s. 76(2) and 77(2).] 10. Age limit for commissioners A person who has reached 70 years of age is ineligible for appointment as a commissioner and each commissioner must retire from office upon reaching 70 years of age. [Section 10 inserted: No. 94 of 1984 s. 9; amended: No. 39 of 2018 s. 7; No. 30 of 2021 s. 6.] 11. Oath of office and secrecy (1) Subject to subsection (2), before entering upon office each commissioner must make oath before a judge that the commissioner will faithfully and impartially perform the duties of office of commissioner and will not, except in the discharge of those duties, disclose to any person any evidence or other matter brought before the Commission. (2) When a commissioner is appointed the Chief Commissioner or the Senior Commissioner the commissioner is not required to make again the oath referred to in subsection (1). [Section 11 amended: No. 94 of 1984 s. 66; No. 39 of 2018 s. 8; No. 30 of 2021 s. 77(13).] 12. Commission is court of record etc. (1) The Commission is a court of record and must have an official seal. (2) All courts, judges, and persons acting judicially must take judicial notice of the seal of the Commission affixed to a document and must presume that it has been duly so affixed. [Section 12 amended: No. 30 of 2021 s. 76(2).] 13. Protection of commissioners and others Each of the following persons has the same protection and immunity as a judge has when performing functions of a judge — (a) a commissioner when performing the functions of a commissioner; (b) an industrial magistrate appointed under section 81B when performing the functions of an industrial magistrate. [(c), (d) deleted] [Section 13 inserted: No. 39 of 2018 s. 9; amended: No. 43 of 2024 s. 7.] 14. Exercise of powers and jurisdiction of Commission [(1) deleted] (2) A commissioner sitting or acting alone constitutes the Commission and, except as otherwise provided in this Act, the commissioner has and may exercise while so sitting or acting, all the powers and jurisdiction of the Commission. (3) Where more than one commissioner is sitting or acting at the same time in th