In the previous State IR Transition Bulletin Key Update we outlined the changes proposed by the Industrial Relations Legislation Amendment Bill 2021 (IR Bill) for Local Governments (LGs), including the proposed transition to the State industrial relations system (State IR System) and new entitlements and conditions planned for that system.
On 17 November 2021, the IR Bill was introduced and read a second time in the Legislative Council. It is likely the IR Bill will now be passed by the Parliament of WA before the end of the year. If this does not occur it will likely be passed in February 2022. 
The IR Bill seeks to amend the Industrial Relations Act 1979 (IR Act), Long Service Leave Act 1958 (which does not apply to LGs) and the Minimum Conditions of Employment Act 1993 (MCE Act).
If the IR Bill is passed by WA Parliament, the transition of LGs to the State IR System is subject to the drafting of regulations and a written declaration by the Federal IR Minister endorsing that LGs are not national system employers under the Fair Work Act 2009 (Cth) (FW Act).
WALGA is seeking that the commencement of the ‘relevant day’ under the regulations provide for a six month time period before the transition takes effect for LGs. This certainty in timing will allow LGs to finalise any current enterprise agreement negotiations on foot in the Federal IR System and better prepare for the transition.
Differences Between Federal and State Minimum Employment Standards
The Federal minimum employment entitlements are provided for in the National Employment Standards (NES) in the FW Act. In contrast, the State minimum entitlements are provided in the MCE Act and the Termination, Change and Redundancy General Order.
A high-level comparison shows that the key differences between the two jurisdictions are that in the MCE Act there is no:
  • additional week of annual leave for shiftworkers
  • entitlement to request flexible working arrangements, other than after parental leave
  • right of casual conversion
  • requirement for employers to provide a copy of the Fair Work Information Statement or Casual Employment Information Statement to employees.
 There are also differences in the following standards:
  • annual leave accrual
  • scope of personal leave
  • personal leave accrual
  • community service leave, noting that the WA legislation is also applicable to Federal IR System employees in WA
  • compassionate leave entitlements, and  
  • parental leave entitlements, noting the NES is also applicable to State IR System employees.  
 The following entitlements are the same in both jurisdictions:
  • long service leave
  • unpaid family and domestic violence leave, if the IR Bill is passed by the Parliament of WA
  • public holidays
  • notice of termination, and
  • redundancy pay for employees employed by a LG that is not a small business employer
Resources for WALGA ER Subscribers
WALGA has prepared a fact sheet which outlines the differences between the minimum employment standards in the Federal and State IR Systems, including the sections of legislation and where the two systems overlap. The fact sheet can be accessed from the WALGA website here, noting you will need to be logged in to view all resources.
WALGA presented a webinar on 16 November 2021 addressing the differences between Federal and State minimum employment standards in more detail. WALGA ER subscribers can view a recording of the webinar and the PowerPoint slides here.
Transition of Federal Enterprise Agreements to the State IR System
As previously advised, the Department of Mines, Industry Regulation and Safety (DMIRS) has confirmed that an enterprise agreement that has passed its nominal expiry date (NED) will become a new State instrument on the ‘relevant date’. In accordance with s.80BB(3)(c)(ii) of the IR Bill the NED will be that date specified in the agreement. As the new State instrument will be taken to be an industrial agreement (s.80BB(2)), it will continue in effect beyond the NED. The State industrial agreement can either be replaced by a new industrial agreement, or a party can retire from it as per s.41(6) of the IR Act.
An operational certified agreement (made under the Workplace Relations Act 1996 (Cth)), or any other transitional instrument given continuing effect in the Federal IR System under the FW Act, will not be recognised in the State IR System. On the ‘relevant day’  employers and employees previously covered by such an instrument will be covered by any applicable State award. 
The primary State awards are the Municipal Employees (Western Australia) Award 2021 and the Local Government Officers’ (Western Australia) Award 2021, copies of which can be found on the Western Australian Industrial Relations Commission website here. Other State awards may also apply depending on the nature of services and work the LG performs.
Enterprise Bargaining Strategies
Given the uncertainty around the transition of LGs to the State IR System, it is vital that LGs consider or revisit their options around enterprise bargaining. The strategies of whether to commence negotiations for new agreements in the Federal IR System (or whether to wait until jurisdictional coverage is confirmed by the declaration being enforced or revoked by the Federal IR Minister) can be guided by a number of factors. WALGA ER subscribers can contact the service for advice on these strategies.
WALGA will continue to update you on key changes and impacts as they arise via the State IR Transition Bulletin. You can also view the new State IR Transition section of the WALGA website here
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.