Western Australian Industrial Relations Commission

General Information

A claim of unfair dismissal must be referred to the Commission within 28 days of the employee being dismissed.  If a claim is referred after the 28 days (or “out of time”), the employee must convince the Commission that it would be unfair not to allow the employee to refer the claim. 

The Commission will take into account the following principles to determine whether it is unfair not to allow the employee to refer a claim: 

  • Special circumstances are not necessary but the Commission must be positively satisfied that the prescribed period should be extended. The starting point is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
  • Action taken by the employee to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested.  It may favour the granting of an extension of time.
  • Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
  • The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
  • The merits of the substantive application may be taken into account in a 'rough and ready way' in determining whether to grant an extension of time.
  • Consideration of fairness as between the employee and other persons in a like position are relevant to the exercise of the Commission's discretion.

These principles are not exhaustive.  Each case will turn upon its own individual facts and circumstances.  That is, whether in the circumstances it is unfair to not accept the employee's claim.

 

What is a 'State system' employer?

The State system covers employers who are not national system employers.

Employers who are State system employers include:

  • Sole traders
  • Partnerships
  • Some trusts
  • Some local government agencies*
  • Some not for profit organisations*

* The test for these employers is the extent and nature of any 'trading' activities.

A national system employer includes: 

  • A ‘constitutional corporation'. These are trading, financial or foreign corporations;
  • The Commonwealth (federal) government or a Commonwealth authority; and
  • An employer of flight crew, maritime workers or waterside workers in connection with interstate or international trade.

For a complete definition of 'national system employer', see Fair Work Act 2009 (Cth) s 14. 

Many private sector employers are trading corporations.  Therefore, they are national system employers and most aspects of the employment relationship are dealt with by the Fair Work Commission. 

What about trusts? 

A trust does not have a separate legal identity and therefore cannot be an employer.  If the trustee is a national system employer, then the employer is a national system employer.  The business of the trust is carried out by the trustee(s).  The trustee is liable for the business carried out.

What is a 'constitutional corporation'? 

Employer is
a corporation

+

Characterised by trading activities;

Characterised by financial activities;

or

Is incorporated in a foreign country.

=

Constitutional corporation

 

The most common type of constitutional corporation encountered by the Commission is the trading corporation.  Trading corporations are corporations that are characterised by trade or commerce.  There are also financial corporations, which are corporations that are characterised by financial activities.  Financial corporations are likely to be mostly banks and other large financial institutions.  Foreign corporations operating in Australia are also constitutional corporations. 

If an employer is a trading, financial or foreign corporation, the Commission will be unable to deal with most industrial matters related to them and their employees. 

What is a corporation? 

A corporation is a separate legal entity.  Corporations generally have the following words or letters at the end of their name.  These letters indicate the type of corporation they are: 

Pty Ltd

Proprietary Limited

Ltd

Limited

NL

No Liability

Inc.

Incorporated

 

Not all corporations have these letters after their names.  Some corporations are set up by Parliament.  These 'statutory corporations' are given a name by their own special legislation.  Therefore, they do not need to include 'Ltd' or 'Inc.' at the end of their name.  The corporate status of these entities can be confirmed by looking at their enabling legislation. 

Sometimes the enabling legislation will expressly exclude the entity it creates from having corporate status.  It is then necessary to look at the characteristics of the organisation to determine whether, in fact, it has the full characteristics of a corporation.  Important factors for an entity to be considered a corporation are whether:   

  • the entity is a separate right and duty bearing entity;
  • it may possess, own and deal with property;
  • the entity continues to exist despite changes in the natural persons who control its activities; and
  • the entity has a corporate seal.

If the entity has all of these traits, it is likely to have the full character of a corporation.

What is a trading corporation? 

A corporation is a trading corporation if its trading activities are significant or substantial.  Some factors relating to whether a corporation is a 'trading corporation' include: 

  • 'Trade' doesn't have to be the corporation's predominant activity;
  • However, trading must be a substantial and not just a peripheral activity;
  • 'Trading' extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services;
  • Making a profit is not essential to trade, but the two usually go hand-in-hand;
  • The purpose of the trading activity is irrelevant to whether the corporation is 'trading'. The fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily mean the corporation is not a 'trading corporation';
  • Whether the trading activities of a corporation are sufficient to justify its categorisations as a 'trading corporation' is a question of fact and degree;
  • The current activities of a corporation, as well as the reason it was originally established are relevant; and
  • The commercial nature of the trading activities is important when considering whether the corporation is characterised as a 'trading corporation'.

There is no clear determining factor.  If an employer is a corporation and their activities fit within some or most of these indicators, they may be a trading corporation. 

What is a financial corporation?

Financial corporations are corporations involved in 'money dealings.'  Similar principles apply when assessing whether a corporation is a 'financial corporation' as apply to 'trading corporations'.  A financial corporation will 'deal in finance', such as by borrowing and lending money.  That is distinct from a corporation which trades goods or services for money.  Just using money does not make a corporation a 'financial corporation'.  Trade in money must be a significant part of the corporation's activity. 

What is a foreign corporation?

A foreign corporation is the simplest to identify.  If a corporation was formed in a foreign country, it is a foreign corporation. 

A dismissal may be unfair when an employer terminates an employee’s employment in circumstances that are harsh, oppressive or unfair.  The Commission can only deal with unfair dismissal claims made against State system employers.  Claims of unfair dismissal by many government employees are dealt with by the Public Service Appeal Board

An unfair dismissal claim is started by the employee filing a Form 2 – Notice of claim of harsh, oppressive or unfair dismissal.  The Commission's forms can be found here.

A claim of unfair dismissal can also be pursued by a union under section 44 of the Industrial Relations Act 1979

1  Who can bring an unfair dismissal claim?

The Commission does not have the power to deal with every case when someone is dismissed in what might be unfair circumstances.  For the Commission to be able to deal with a claim: 

  1. The employer must be in the State system;
  2. The claim must be brought within 28-days of the dismissal, unless the Commission decides that it would be unfair not to accept the claim (time limit);
  3. The person dismissed must have been an employee;
  4. Their salary must be less than the prescribed amount (the salary cap), unless they are covered by an industrial instrument; and
  5. They cannot be government officers and some other government employees.

Employees on probation or employed for less than 3 months may make a claim of unfair dismissal, but in deciding whether a dismissal was unfair, the Commission will take these factors into account.

2  What is the claim about?

An unfair dismissal claim is about whether the employer exercised their lawful right to dismiss in a way that was harsh, oppressive or unfair in all of the circumstances.  The Commission can award reinstatement or compensation up to a maximum of 6 months of the employee's wages. 

The claim focusses on two aspects of the dismissal: 

  • whether the penalty of dismissal was appropriate in the circumstances; and/or
  • whether the employer's procedure in arriving at the decision to dismiss was unfair to the employee and therefore it
  • should not be allowed to stand.

A failure by the employer to adopt a fair procedure in reaching the decision to dismiss the employee does not automatically mean that the dismissal was unfair. 

More information about the types of dismissal and what these claims are about can be found here.

3  Process for dealing with an unfair dismissal claim

Claims of unfair dismissal are dealt with by conciliation.  If the parties are unable to reach agreement through conciliation, the matter may be decided by a Commissioner at a hearing. 

More information about the process for dealing with a claim of unfair dismissal and issues that may be encountered along the way can be found here.

4  Outcome of the process

If a claim of unfair dismissal is unsuccessful, it will be dismissed.  If the claim is upheld, the Commission may order reinstatement or compensation for loss or injury. 

More information about the outcome of the process  can be found here.

5  Enforcement

If the Commission makes an order in favour of the employee and the employer refuses to reinstate the employee or does not pay the compensation awarded, the employee can apply to the Industrial Magistrate's Court to have the order enforced. 

The Industrial Magistrate's Court can also impose a penalty of up to $5,000 on the employer. 

Please refer to the Industrial Magistrate's Court website for more information about enforcement.

6  Appeal

A decision of the Commission in relation to a claim for unfair dismissal can be appealed to the Full Bench.  The appeal must be made within 21 days from the date the decision is handed down.  The Commission issues 2 documents at the end of the matter.  The first is the Reasons for Decision in which the Commission sets out why he or she has come to their decision.  The second is the Order which sets out the outcome.  The relevant decision for the purpose of an appeal is the Order made by the Commission. 

More information about appeals to the Full Bench may be found here.

Road Freight Transport Industry Tribunal Forms Page

 

Prescribed forms are located on The Western Australian Industrial Relations Commission’s website here.

General Orders

Click on the order details for more information

Amendment to Awards with an Adult Wage less than the Minimum Wage

Year Application No. Date Delivered WAIG Reference  
   Volume Page  
2008 27/05/2008 88 514

Location Allowances

Year Application No. Date Delivered WAIG Reference  
   Volume Page  
2017 16/06/2017    
2016 22/06/2016 96 631
2015 12/06/2015 95 700
2014 19/06/2014 94 669
2013 14/06/2013 93 461
2012 29/06/2012 92 725
2011 21/06/2011 91 995
2010 09/07/2010 90 561
2009 29/06/2009 89 729
2008 08/07/2008 88 689
2007 26/07/2007 87 2435
2006 06/07/2006 86 1471
2005 30/06/2005 85 1893
2004 30/06/2004 84 2145
2003 30/06/2003 83 1657
2002 21/06/2002 82 1185
2001 25/06/2001 81 1559
2000 01/08/2000 80 3153
1999 28/06/1999 79 1843

Long Service Leave

Year Application No. Date Delivered WAIG Reference  
   Volume Page  
State Government Wages Employees
1982 16/12/1985 66 319

Review and Variation of Awards Agreements and Orders (Labour Relations Amendment Act 1997)

Year Application No. Date Delivered WAIG Reference  
   Volume Page  
1998 22/11/1997 78 3171
1998 06/11/1998 78 4491
Inspection of Records Requirements
1998 16/04/1998 77 1471
Resolution of Disputes Requirements
1998 16/04/1998 78 1563
1997 22/11/1997 77 3079
Right of Entry
1997 22/11/1997 77 3138
Superannuation Requirements
1998 26/06/1998 78 2559

State Wage Cases

Year Application No. Date Delivered WAIG Reference  
   Volume Page  
2018 15/06/2018 TBA TBA
2017 19/06/2017 97 714
2016 10/06/2016 96 636
2015 16/06/2015 95 691
2014 16/06/2014 94 652
2013 14/06/2013 93 476
2012 14/06/2012 92 568
2011 15/06/2011 91 1015
2010 16/06/2010 90 575
2009 23/06/2009 89 747
2008 17/06/2008 88 782
2007 20/06/2007 87 1487
2006 07/07/2006 86 1631
2005 04/07/2005 85 2083
2004 26/07/2004 84 1521
2003 28/10/2003 83 3537
2003 05/06/2003 83 1899
2003 19/06/2003 83 1914
2003 07/07/2003 83 1918
2002 22/07/2002 82 1369
2001 25/07/2001 81 1721
2000 27/07/2000 80 3379
1999 06/07/1999 79 1847

Termination, Change and Redundancy

Year Application No. Date Delivered WAIG Reference  
   Volume Page  
2005 01/06/2005 85 1667

Wage Structures for School-based and Part-time Apprentices

Year Application No. Date Delivered WAIG Reference  
   Volume Page  
2007 18/04/2007 87 733

 

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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