Western Australian Industrial Relations Commission

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Welcome to the Western Australian Industrial Relations Commission 

 We are an independent quasi-judicial tribunal established under the Industrial Relations Act 1979 to deal with industrial matters in the State of Western Australia by conciliation or, if necessary, arbitration. Our main objectives are to prevent and settle industrial disputes.

The WAIRC will deal with an application providing it has the jurisdiction or power to do so.   Click here for more information about who can apply to the WAIRC.

Online lodgement

You can now lodge documents online, including referring new claims to the Commission.  Click on this link, or click on the Applications and Forms tab above. 

Our new online lodgement system provides access to the Commission’s modernised Forms, in an interactive environment.

If you have any feedback or ideas about our new online lodgement system, please let us know by completing our Contact Form.

 

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Latest News

Full Bench found truck driver's conduct to be serious misconduct Friday, 27 March 2020 The Full Bench has unanimously dismissed an appeal against a decision of the Road Freight Transport Industry Tribunal (Tribunal) that found that the respondent lawfully terminated a Cartage Agreement (Agreement) with the appellant after the... More detail
Full Bench grants extension of time for appellant lodge appeal and to file appeal books Tuesday, 17 March 2020 The Full Bench has unanimously granted an extension of time for an appellant who filed a Notice of Appeal out of the time limit prescribed by the Industrial Relations Act 1979 (WA) (Act) and had not filed appeal books as required by the Industrial... More detail
Unfair dismissal claim dismissed for lack of jurisdiction as family trusts found to be national system employer Friday, 06 March 2020 The Commission has determined on the papers that it is unable to hear an unfair dismissal claim because the applicant was employed by a national system employer and the Commission does not have jurisdiction to hear the matter. The application... More detail

Who is an employee?

Only an employee can make a claim of unfair dismissal.  Some people may think that a person is an employee when they are actually an independent contractor.  If there is doubt, the Commission will consider the following factors to determine whether the person is, in fact, an employee.  Most importantly, the Commission will look at the totality of the relationship, weighing up all of these factors.  No one factor is determinative.  Under some statutory schemes, such as workers' compensation and payroll tax, certain people are 'deemed' to be employees.  This does not automatically make them employees for the purpose of an unfair dismissal claim. 

Control: if a hirer exercises a high degree of control over a person, it is more likely that the person will be an employee.  The person is more likely to be an employee if their hours and location of work are determined by the hirer.  A person who enjoys a high level of autonomy over where and when they work is more likely to be an independent contractor. 

Right to work for more than one hirer:  if a person is entitled to work for more than one hirer, this will tend to indicate that they are an independent contractor.  The Commission will look at the reality of the situation; if a person has the right to work for other hirers but in reality does not because they reasonably fear reprisal from the first hirer, then this will weigh against the person being found to be an independent contractor. 

Tools and equipment:  if a person has to supply their own tools and equipment to perform work for the hirer, the Commission is more likely to find that the worker is an independent contractor.  The cost of the tools and equipment is relevant.  If the cost is high (for example, the purchase of a truck), then this will tend to indicate that the person is an independent contractor.  If the cost is low (such as a bicycle), this will not weigh so heavily for the person having the status of an independent contractor. 

Subcontract out or delegate:  employment is a personal relationship.  If a person has the right to delegate the hirer's work to a subcontractor, this will tend to indicate that they are independent contractors.  However, if the person is simply 'shift swapping' – that is, arranging for the work to be done by someone else also in the hirer's employ – then this factor will not weigh so heavily. 

Uniform and branding:  if a person is required to wear a uniform and branding of the hirer, this may tend to indicate that they are an employee.  This factor will be less important when the person has little or no interaction with the public. 

Income tax deductions:  the way the hirer pays or does not pay income tax in relation to the person is of little or no effect.  However, if the person has an ABN, produces invoices and collects GST, then this will tend to indicate that the person is an independent contractor.  If the hirer dictates to the person how, when and how much they are to invoice for, this will count against the person having the status of an independent contractor.

Paid hourly or by pieces:  if a person is paid an hourly rate, this will tend to indicate that they are an employee.  If they are paid based on output, such as a piece-rate, this may indicate that they are an independent contractor.  A person receiving a piece-rate is not excluded from being an employee.  What is important is whether there is some chance that the employee will make a profit or loss on the job.  If so, this indicates that the person is an independent contractor. 

Discipline:  if a hirer disciplines a person, this will tend to indicate that they are an employee.  If a hirer has to discipline an independent contractor, they will tend to simply not reengage the person. 

Leave entitlements:  a person who is not entitled to paid leave is not automatically an independent contractor because they may be a casual employee.  However, if a person is entitled to paid leave, this will tend to indicate that they are an employee. 

Advertising and benefit of good will:  if the person advertises their own business and benefits from any goodwill, they are likely to be an independent contractor.  That is because it gives them the appearance of running their own business. 

Business expenditure:  if a person's ratio of income to business expenses is quite high – that is, their income only modestly exceeds their business expenses – this tends to indicate that they are an employee. 

Domestic Service:  Under the Industrial Relations Act, people who work in domestic service in a private home are not employees, unless: 

  • more than 6 boarders or lodgers are in that home for pay or reward; or

the person is employed by a person who is not the occupier or owner of the private home.

Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

Free Fax :1800 804 987

Email : Registry

 

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