Western Australian Industrial Relations Commission

Coverage of Industrial Relations Act 1979 (WA)

Coverage Of Industrial Relations Act 1979 (WA)

The coverage of the WA Industrial Relations Act 1979 changed significantly in March 2006 when the Commonwealth Government’s Work Choices legislation came into effect. This change continued under the Commonwealth Fair Work Act 2009. This means that although you may make an application to the WAIRC, the Commonwealth Fair Work Act may override the Commission’s jurisdiction to deal with it. In this case your application will not be able to be dealt with by the WAIRC.

The following is intended as a general guide only. Its aim is to answer a number of the questions received by the WAIRC about the effect of the Commonwealth legislation on the powers of the WAIRC to deal with an application. Please note that information in this guide will change over time as the Commission makes formal decisions about applications made to it.

Anyone wanting advice on whether this issue affects their application should seek legal advice. Commission staff are not permitted to give that advice.

The WAIRC will deal with an application except where it is established that it does not have the jurisdiction or power to do so.

Except where an employee is claiming benefits under his or her contract, the WAIRC cannot deal with an application where the employer is a trading, financial or foreign corporation, or the Commonwealth government. The WAIRC will continue to deal with an application where the employer is unincorporated – that is the employer is a partnership, sole trader, or is a corporation which does not substantially engage in trading or financial activities.

 

CONTENTS (LINKS)

How has the coverage of the WAIRC been affected?
Who is covered by the Commonwealth legislation?
Who is not covered by the Commonwealth legislation?
What applications will the WAIRC deal with?
What about claims of unfair dismissal?
What if the claim is for unfair dismissal and the employer is a local government employer?
What if the claim of unfair dismissal is against an employer that is a trust?
Who can bring a claim for enforcement of a contractual benefit?
What happens if there is a dispute about the Commission’s jurisdiction?

The power of the WAIRC to deal with an application.

Commonwealth legislation overrides State legislation where the two are inconsistent. Where an application made to the Commission deals with a matter covered by the Commonwealth legislation the Commission’s jurisdiction to enquire into and deal with the matter will be overridden.

If the employer is a trading, financial or foreign corporation, the WAIRC can mediate the issue if the employer and employee agree to mediation.

Who is covered by the Commonwealth legislation?

From March 2006 Commonwealth legislation has applied to all employers who are trading, financial or foreign corporations, as defined in the Australian Constitution. This includes incorporated businesses, Australian Government and some local government employers. The test whether an employer is or is not a trading or financial corporation is whether its trading or financial activities form a substantial part of its overall activities.

Not all incorporated employers will be trading, financial or foreign corporations, although most are likely to be. A decision of the Industrial Appeal Court that discusses some relevant principles and that decided that a particular corporation is not a trading corporation is listed here:

Aboriginal Legal Service of Western Australia Incorporated v. Mark James Lawrence (No 2) (2008) 89 WAIG 243; [2008] WASCA 254

Who is not covered by the Commonwealth legislation?

The Commonwealth legislation does not apply to employers who are not constitutional corporations – that is, those employers who do not come within the definition of a trading, financial or foreign corporation. This covers unincorporated business, the State government and some local government employers.

What applications will the WAIRC deal with?

The Commission will still accept applications made to it and the Commonwealth legislation will only prevent the WAIRC from dealing with the application when it is established as a matter of law that the Commonwealth legislation covers the application.

What about claims of unfair dismissal?

Where the employer is not a trading, financial or foreign corporation, the Commission can deal with a claim of unfair dismissal.

Where the employer is a trading, financial or foreign corporation, the Commission is unable to deal with a claim of unfair dismissal.

What if the claim is for unfair dismissal and the employer is a local government employer?

Some shire councils in WA have been found to be trading corporations, and are therefore covered by the Commonwealth legislation, and some have been found not to be trading corporations. A Full Bench of the Commission has considered this issue in the context of the Shire of Ravensthorpe:

Shire of Ravensthorpe v. John Patrick Galea (2009) 89 WAIG 2283; [2009] WAIRC 01149

What if the claim of unfair dismissal is against an employer that is a trust?

The Commission has dealt with a claim of unfair dismissal brought against a trust. In this case the trustee was a company and the Commissioner held that it was a trading corporation. For that reason the Commission did not have the jurisdiction to deal with the claim and the claim was dismissed. The decision is listed here:

Joe Visser v. Eral Pty Ltd as trustee for the Prestige Products Unit Trust trading as Compleat Angler & Camping World Rockingham (2007) 87 WAIG 2850; [2007] WAIRC 01148

Who can bring a claim for enforcement of a contractual benefit?

The WAIRC has the power to deal with claims for benefits under a contract of employment against all employers, local government and some public sector agencies.

Some examples where this has occurred are Triantopolous v. Shell Company of Australia Ltd [2010] WAIRC 00004 which involved a claim for redundancy pay and Higgins v. Gateway Printing (2010) 90 WAIG 525, 529; [2010] WAIRC 00083, 000296 which involved claims for pay in lieu of notice, annual leave and superannuation entitlements.

The Commission has also dealt with a claim for the enforcement of contractual entitlements brought against a trust. In Stylianou v. Country Realty Pty Ltd as Trustee for the Marcelli Family Trust [2010] WAIRC 01074.

What happens if there is dispute about the Commission’s power to deal with an application.

Most applications to the Commission will be set down for conciliation to see if the matter can be resolved by agreement between the parties. In some cases the employer may clearly be an employer as defined by the federal legislation; however, whether an employer is, for example, a trading corporation will depend upon the facts of the business concerned. It might not be clear whether its trading or financial activities are only slight or incidental to their principal non-trading or non-financial activity.

If there is no agreement about the WAIRC's power to deal with an application, or the conciliation conference cannot be held until the dispute about jurisdiction is determined, the Commission will decide the dispute by hearing evidence about whether the employer is a trading or financial corporation. Where the claim is for enforcement of a contractual benefit, the Commission will also decide whether the Commission has jurisdiction to deal with the subject matter of the claim. When the issue of jurisdiction is raised it must first be established whether the employer is an employer as defined by the Commonwealth legislation.

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

Phone : (08) 9420 4444
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