This is the first of a series of monthly updates on the proposed transition of WA Local Governments and Regional Councils (LGs) to the State industrial relations system (State IR System).

Are WA LGs still moving to the State IR System?

In ER Alert 35 / 2020 we confirmed the Industrial Relations Legislation Amendment Bill 2020 (WA) (IR Bill) failed to pass the Legislative Council.

Earlier this year, the Hon. Stephen Dawson MLC, Minister for Industrial Relations, confirmed the State Government intends to reintroduce a new IR Bill into State Parliament towards the end of this year. Given the composition of State Parliament it is expected that the Bill will pass through the legislature.

After the Bill is passed and the required regulations are drafted, for the transition to occur the Federal Minister for Industrial Relations will need to sign a declaration that WA LGs are not ‘national system employers’ under s.14(2) of the Fair Work Act 2009 (Cth) (FW Act).

Which WA LGs will be impacted?

Currently, LGs operate in a dual system whereby 79% of the sector operate in the Federal IR System and only 21% operate in the State IR System. The transition will affect LGs that currently operate in the Federal IR System and apply the FW Act. We anticipate the transition and the new IR Bill will affect approximately 22,000 employees.
What will the new Bill contain?
WALGA has been informed that the new Bill will be in similar terms to the IR Bill. The IR Bill amends the following legislation relevant to LGs: Last year the Department of Mines, Industry Regulation and Safety (DMIRS) joined WALGA to present a webinar about the IR Bill and the amendments to the IR Act and proposed transfer of LGs to the State IR System. A copy of the presentation can be viewed on the WALGA website.
When will the changes commences?

WALGA has not been advised of the exact timing of when the new Bill will be introduced into State Parliament, other than it was intended to be reintroduced by the end of the year.

We do know that once a new Bill passes through Parliament, the relevant sections of the IR Act and MCE Act will commence later for LGs as the changes are dependent on:
  • the commencement of regulations, which are likely to require further consultation, and
  • engagement with the Commonwealth to enable a declaration to be made by the Federal Minister for Industrial Relations that LGs are not ‘national system employers’.
What should WA LGs be doing now?

With the proposed changes there are a few things that LGs operating in the Federal IR System can start to do to prepare for the transfer to the State IR System, including the following:
  • Become familiar with the proposed changes (by watching the DMIRS/WALGA Webinar and reviewing the proposed legislation)
  • Work out which Federal industrial instruments will transfer to the State IR System (this will include any Federally registered enterprise agreement and the Local Government Industry Award 2020 (LGIA))
  • Work out which State instruments will apply after the transitional period
  • Consider the differences between the current conditions of your workforce and State legislation (under the IR Act, MCE Act and the State Awards)
  • Register to attend the first State IR System webinar on 16 November 2021 (see below for further details)
  • If you are a subscriber to the WALGA Employee Relations service, engage with us by asking questions about the transition or let us know what resources you might need.  
What happens if an enterprise agreement has passed its nominal expiry date at the time of the transition?

An enterprise agreement that has passed its nominal expiry date (NED) at the time of the transition will still become a new State instrument. The NED will be the date specified in the agreement (see s. 80BB(3)(c)(ii) of the IR Bill) and that it will continue in effect beyond the NED and can be:
  • replaced by a new industrial agreement negotiated in the State IR system, or
  • retired from by a party as per s. 41(6) of the IR Act.
What new transition resources are available?

WALGA webinar series for ER subscribers  Differences between Federal and State minimum employment standards

This webinar is the first in an upcoming series of webinars about the proposed transition to the State IR System and aims to assist in understanding the differences between the Federal and State minimum employment statutory entitlements. This webinar will focus on the key differences between the National Employment Standards (NES) and the MCE Act.
Date: Tuesday, 16 November 2021
Time: 11:00am to 11:45 am
Registration: Please click here to register
The webinar is for WALGA Employee Relations subscribers only.
Please note the content of this webinar is similar to the presentation delivered during the WALGA HR Forums held in June and July 2021. A recording of this webinar and a copy of a fact sheet on the differences between the NES and MCE Act will be made available following the event.
State award summaries for the sector
To assist with the transition to the State IR System, WALGA Employee Relations approached DMIRS to request support for the preparation of award schedules for the Local Government Officers’ (Western Australia) Award 2021 and the Municipal Employees (Western Australia) Award 2021. These are the two awards that apply to WA LGs operating in the State IR System and will apply after the two year transitional period to WA LGs currently operating in the Federal IR System.
The summaries have now been published and are available on the DMIRS website here.
What to expect in the next bulletin?

The November 2021 bulletin will contain a summary of the differences between the minimum statutory entitlements in the State IR System and the Federal IR System. This will coincide with our first webinar in an upcoming series of webinars about the proposed State IR transition.

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.