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Employees

Who is an employee?

An employee is generally any person employed by an employer to do work for hire or reward. The types of employees that can make applications and claims to the Commission include:

  • private sector employees;
  • government officers;
  • other government employees; and
  • police, prison and youth custodial officers.

The type of application you can make depends on the identity of your employer and how you are employed.

Who is an employer?

An employer includes persons, firms, companies and corporations, as well as public authorities, employing one or more employees. The State system in Western Australia covers employers who are not national system employers. A national system employer includes a trading, financial or foreign corporation ('constitutional corporation'). Most employers in the private sector are trading corporations. Therefore, they are deemed 'national system' employers and most aspects of the employment relationship are dealt with by the Fair Work Commission.

Are you a subcontractor?

In general terms, independent contractors and sub-contractors are ineligible to make a claim in the Commission, with the exception of owner-drivers under the Owner-Drivers (Contracts and Disputes) Act 2007 (WA). For more information on owner-drivers and the Road Freight Transport Industry Tribunal, click here.

Types of employees

The types of claims you can make depend on who your employer is and how you are employed. 

Private sector employees

Employees who are employed in the private sector and by some local government authorities can make applications to the Commission.

 

Unfair dismissal

The Commission is able to deal with an application from a private sector employee 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 (known as a State system employer). This includes some local government authorities and not-for-profit organisations.

The Commission cannot deal with an unfair dismissal application from a private sector employee where the employer is a trading, financial or foreign corporation (a 'constitutional corporation'), or the Commonwealth government (known as a national system employee).

Denied Contractual Benefit

While only State system employees may be eligible to lodge an unfair dismissal application, both State and national system employees can make a contractual benefit claim.

Government officers

Government officers are:

  • people employed and paid a salary by a public authority. This includes State government departments, statutory bodies, agencies and Ministers of the Crown;
  • public service officers;
  • parliamentary and electoral office staff;
  • members of the Governor’s Establishment; or
  • some employees appointed before 1 March 1985.

Most government officers will be covered by the first two points.

 

Government officers are not:

  • teachers;
  • some railway officers; or
  • post secondary academics.

 

Generally speaking, government officers are eligible to make applications to the Public Service Arbitrator and appeals to the Public Service Appeal Board in relation to their employment.

The types of appeals that can be made by a government officer to the Public Service Appeal Board include:

Government officers may apply to the Public Service Arbitrator for a review of their classification level or position title (see the information sheet attached to Form 8A - Application for Reclassification). 

Public service officers

A public service officer is a fixed term, permanent or executive officer, who is employed in the Public Service (for a definition of these terms, see Public Sector Management Act 1994 (WA)). Broadly speaking, the Public Service is made up of government departments and other government organisations. Not all government employees are public service officers. For example, if an employee is appointed casually, they are unlikely to be a ‘public service officer’. If an employee is appointed to assist a political office holder, they are not an employee of the Public Service and therefore are not public service officers.

In addition to the applications and appeals that can be made by government officers, public service officers are also able to initiate an appeal to the Public Service Appeal Board against a decision of their employer in relation to an interpretation of any section of the Public Sector Management Act 1994 (WA), and any provision of the regulations made under that Act, regarding their conditions of employment (other than salaries and allowances).

For more information, see the information sheet attached to Form 8B - Notice of Appeal,- Government Officers, Public Service Officers.

Other government employees

The category of 'other government employees' refers to those employees who are not government officers or public service officers but are (or were) employed under the Public Sector Management Act 1994 (WA).

For more information on the types of claims that can be made, please click here

Apprentices, police officers, prison and youth custodial officers

There are a number of specific applications that can be made by apprentices, police officers, prison and youth custodial officers.

  • Apprentices may file an appeal against a decision of the Chief Executive Officer, Department of Training and Workforce Development to cancel or terminate a training contract (apprenticeship).
  • Police officers who have been removed from the police force may file an appeal against the decision of the Commissioner of Police under section 33P of the Police Act 1892 (WA).
  • Prison officers who have been removed from office may file an appeal against the decision of the Chief Executive Officer, Department of Justice under section 106 of the Prisons Act 1981 (WA).
  • Youth custodial officers who have been removed from office may file an appeal against the decision of the Chief Executive Officer, Department of Justice under section 11CH of the Young Offenders Act 1994 (WA).

For more information, please see Form 8C - Notice of Appeal or Referral.

Unsure / other

If you are unsure about the status of your employment or whether you may be eligible to make a claim, you may wish to seek legal advice or see our list of external resources

Identifying the relevant claim type

Removal from office

Police officers, youth custodial officers, and prison officers can make appeals to the Commission in relation to their removal from employment.

Claims by government officers

Government officers and public service officers can make a number of specific applications to the Public Service Appeal Board and the Public Service Arbitrator in relation to their employment.

Other government employees

Employees who are not government officers, but are (or were) employed under the Public Sector Management Act 1994 (WA) can make an application to the Commission in relation to specific decisions or findings of their employer in relation to their employment.

Unfair dismissal applications

An unfair dismissal occurs when an employer ends an employee’s employment in circumstances that are harsh, oppressive or unfair.

Contractual benefit claims

A contractual benefit claim is a claim made by an employee or former employee that they are entitled to a benefit under their employment contract which has been denied to them by their employer.

Appeal termination of apprenticeship

An apprentice can make an appeal to the Commission against the decision of the Chief Executive Officer of the Department of Training and Workforce Development to cancel or terminate the apprentice’s training contract (apprenticeship).

Removal from office

Police officers, youth custodial officers, and prison officers can make appeals to the Commission in relation to their removal from employment.

Frequently asked questions

Parties may be represented or they may represent themselves. Parties can be represented by a lawyer, industrial agent or a relative or friend. Except where the representative is a lawyer, the party being represented must file a Form 11 – Notification of Representative Commencing or Ceasing to Act to confirm that another person,agency or organisation is representing them.

You can contact the Commission's Registry by email, phone or in-person. We also have helpful Fact Sheets which may assist in answering your questions.

You will need to provide the Commission with the contact details of your employer to enable a copy of your application to be served on them. The employer is not necessarily the director, owner or manager of the business.

To identify your former or current employer, one or more of the following may be helpful: group certificate, pay slip, letter of appointment, job advertisement, written employment contract or agreement, and performing a company or business name search.

You could also try to obtain company information from the Australian Securities and Investments Commission (ASIC), or the Department of Mines, Industry Regulation and Safety. 

Information about the supported wage system is available on the website of the Commonwealth Department that deals with employment and jobs, currently the Department of Employment, Skills, Small and Family Business.

The Australian Taxation Office deals with enquiries in relation to superannuation. You can contact the ATO about superannuation enquiries on 13 10 20.

Additional information

Our Fact Sheets provides guidance on legal proceedings at the Commission.

Please visit our About us page for more information on the coverage and jurisdiction of the Commission, including matters it has the power to deal with.

Other agencies

More resources