WA Local Governments will transition to the State IR system on 1 January 2023

The final steps to transition WA Local Governments and Regional Councils (Local Governments) to the State industrial relations (IR) system on 1 January 2023 have now been completed.

The Federal Minister for Employment and Workplace Relations, the Hon Tony Burke, endorsed the declaration that Local Governments named in the Industrial Relations (General) Regulations 1997 (WA) are not national system employers for the purpose of the Fair Work Act 2009 (Cth) (FW Act). The endorsement was made under s.14(4)(a) of the FW Act on 6 December 2022 and registered on the Federal Register of Legislation on 20 December 2022. A copy of the declaration can be found here. The list of declared Local Governments is at Schedule 1.

The Fair Work Amendment (Transitional Arrangements – Western Australian Local Government Employers and Employees) Regulations 2022 (Cth) (Federal Transitional Regulations) were made on 15 December 2022 and registered on the Federal Registry on 19 December 2022. The Federal Transitional Regulations preserve the following Fair Work Commission (FWC) applications:

  • Part 2-2 – The National Employment Standards
  • Part 3-2 – Unfair Dismissal
  • Part 3-5 – Stand Down
  • Part 6-2 – Dealing with Disputes.

This means that the FWC can continue to deal with applications made under these parts of the FW Act, including to hear a matter:

  • which was filed before 1 January 2023. This includes any appeal made under s.604 of the FW Act
  • where the conduct occurred prior to 1 January 2023. For example, if an employee was dismissed on 22 December 2022, they would be able to commence the claim in the FWC.

The Federal Transitional Regulations give the FWC additional discretion to dismiss a preserved application in certain circumstances where an application has been made to another body in relation to the same conduct. For example, where an unfair dismissal claim has been made to the Western Australian Industrial Relations Commission.

Enterprise agreement applications to the FWC have not been preserved. This means a Local Government will need to commence bargaining in the State IR system if an enterprise agreement is not approved by the FWC by 31 December 2022.

Record keeping and pay slip FAQs

We have been receiving a significant volume of enquiries about the record keeping and payslip requirements in the State IR system which are applicable to Federal Local Governments transitioning to the State system from 1 January 2023.

WALGA ER subscribers can now download the new Record Keeping and Pay Slip FAQs. The webinar about record keeping in the State IR system can also be accessed by subscribers here. Please note you will need to login to the subscriber section of the website. If you don’t have a login, please click here to create an account and follow the instructions on how to sign up.

As a reminder the record keeping and pay slip obligations for employers are outlined in the:

The following information about the practical requirements is provided by the Department of Mines, Industry Regulation and Safety:

Wageline can be contacted for further information about the State IR system on 1300 655 266. Wageline will be closed from 4.30pm Friday 23 December 2022 to Monday 2 January 2023.

Transitional LGIA Guide

The Local Government Industry Award 2020 (LGIA) has been recognised as a transitional instrument which means that it will transfer to the State IR system if it applies to a declared employee on 31 December 2022. The LGIA new State instrument is subject to the Minimum Conditions of Employment Act 1993 (WA) and will have a nominal expiry date of 2 years from 1 January 2023.

There are various interpretation issues which may arise when the LGIA transfers to the State IR System. WALGA ER is preparing a series of interpretation guides to assist subscribers to manage these issues. Please note the guides do not constitute legal advice. The first guide covers interpretation issues concerning Personal/Carer’s Leave and Compassionate Leave and can be accessed by subscribers here. Please contact us if you have specific queries that are not covered by the guide.

We will continue to upload each guide as they are completed and will notify you of their publication via the SIRT Bulletin. Please let us know if you have any specific questions which you would like us to address in the Transitional LGIA Guides

Use of WALGA resources

We have been notified that WALGA ER resources that have been prepared for subscribers about the State IR transition have been distributed and are being used by un-associated parties.

Please note that these resources were developed specifically for subscribers. It is not in WALGA’s or ER subscribers’ interests to share these resources and our advice broadly.

To ensure you are relying on the correct and the most up to date information, please access the resources via the subscriber website. We update our resources regularly.

If you subscribe to the WALGA Employee Relations service and have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956.