Western Australian state industrial laws (Updated July 2023)

Minimum conditions of employment – non-national system employers

Farm Employees’ Award

It is unclear whether the Farm Employees Award applies to the dairy industry in Western Australia. Investigations concerning the making of the award in 1985 suggest that the dairy industry was not specifically considered as an industry to be covered by the award at that time. The dairy industry is therefore said to be award-free and dairy farmers should look to the WA Minimum Conditions of Employment laws for conditions of employment and entitlements.

Farmers who wish to apply the terms and conditions of the Farm Employees Award should first seek legal advice or advice from their state farming organisation

Minimum Conditions of Employment Act 1993

The WA Minimum Conditions of Employment Act 1993 provides minimum entitlements for employees of all non-national system employers. Terms of employment in an award, a workplace agreement or a common law contract of employment which are less favourable than the minimum conditions have no effect and the minimum standard applies in their place.

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Minimum wage / maximum hours of work (updated July 2023)

In WA, the pay rates which apply depend on how you run your business. If you run your business with a company or a trust with a company as trustee, the Federal pay rates apply.

If you run your business as a sole trader or partnership or a trust with an individual as trustee, then state WA laws apply to you. The state minimum wage applies as the dairy industry is award free in WA – these are available here

The Minimum Conditions of Employment Act lays down a minimum adult weekly rate of pay for a 38 hour week as well as junior rates for employees aged under 21 years and rates for trainees and apprentices which apply unless award rates are higher.

The current minimum weekly rate of pay is $863.40 per week from the first full pay period beginning on or after 1 July 2023 – view the pay rates here

The high income threshold for WA is $187,800 from 1 July 2023.

Read the following Wageline article for more information: State minimum wage and WA award pay rates to increase from 1 July 2023

The Minimum Conditions of Employment Act also specifies a casual loading of 20% which applies unless the award casual loading is higher. The casual loading compensates casual employees for loss of annual leave, sick leave, paid carer’s leave and pay for public holidays.

No employee, whether covered by an award or agreement can be required or requested to work more than 38 hours in a week plus reasonable additional hours. Whether additional hours are reasonable is determined by giving consideration to a range of relevant factors including the following:

• any risk to occupational health and safety from working the additional hours;
• the employee’s personal circumstances;
•  the business requirements;
• any notice of the need for the additional hours;
• any notice given by the employee of their intention to refuse additional hours;
• whether the additional hours are on a public holiday;
• the employee’s hours of work over the last four weeks

The act does not specify any overtime payments for reasonable additional hours which are payable at the same hourly rate as the minimum wage.

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Public holidays

The Minimum Conditions of Employment Act provides for all employees other than casual employees to be paid their normal pay for any day they are not required to work due to a public holiday, provided they would normally have worked on that day. There is no provision for penalty rates if the employee is required to work on the public holiday. The act does not allow for substitution of week days for public holidays which fall on weekends.

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Annual leave

The Minimum Conditions of Employment Act provides for annual leave for all employees other than casual employees to be calculated according to the number of hours the employee is ordinarily required to work in a four week period up to a maximum of 152 hours for each completed year of service.

This calculation means that full-time employees accrue four weeks leave at 38 hours per week whilst part-time employees accrue pro rata leave based on the number of hours they work. If the number of hours varies from week to week, the amount of leave owing is calculated by averaging the number of hours worked over the previous 52 weeks.

Annual leave does not accrue on unpaid leave taken through the year e.g. parental leave.

Casual employees are not entitled to annual leave as the casual loading compensates them for the loss of this entitlement.

The entitlement to annual leave accrues on a weekly basis and accumulates from year to year if not taken. Annual leave may be taken in advance of it falling due if the employer agrees but there is no obligation to do so.

Payment for annual leave

Annual leave is paid at the rate which applies when the leave is taken excluding any payments usually made for overtime, penalty rates and allowances.

Annual leave is paid to the employee on the usual pay day unless the employee requests in writing that it be paid in advance, in which case the employer must comply.

Accrued annual leave must be paid out when employment is terminated. There are special rules for payment of accrued annual leave if an employee is dismissed for serious misconduct. Employers should always seek legal advice before summarily dismissing an employee.

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Time for taking annual leave

Annual leave should be taken at a time agreed to between the employer and the employee. However, the act says that employers cannot refuse to allow employees to take annual leave which has accrued for more than 12 months at any time suitable to the employee provided the employee gives the employer at least two weeks’ notice.

Cashing out of annual leave

Cashing out of annual leave is permitted in certain circumstances. Employees must have completed a year of employment with the employer and can only cash out up to 50% of the annual leave which has accrued in the particular year. Employers cannot require employees to cash out annual leave or apply pressure on them to do so and the agreement must be recorded in writing. Cashing out of annual leave cannot be made a condition of employment.

Written records must be kept of any cashing out arrangement signed by both employer and employee for 7 years.

Annual leave loading

Annual leave loading is an award condition which is not a part of the WA Minimum Conditions of Employment laws.

Personal leave

Sick leave and carer’s leave have been replaced by Personal Leave as of June 2022.

For each year of service, full time and part time employees will be entitled to paid personal leave for the number of hours the employee is required ordinarily to work in a two week period during that year up to 76 hours.

Personal leave accrues on a weekly basis and accrues from year to year.

There is no longer a limit on the amount of accrued leave that can be taken for caring purposes.

Employees can take paid personal leave in the following circumstances;

• because the employee is not fit for work due to a personal illness or injury; or
• to provide care or support to a member of the employee’s family or household who requires care or support because of a personal illness or injury affecting the member or an unexpected emergency affecting the member

Unpaid personal leave for caring purposes

Member of the employee’s family or household’ is defined as follows:

• the employee’s spouse or de facto partner;
• a child, step-child or grandchild of the employee;
• a parent, step-parent or grandparent of the employee;
• a sibling of the employee;
• a member of the employee’s household

Permanent employees, are entitled to unpaid personal leave for caring purposes if they do not have accrued paid personal leave for each occasion when a member of the employee’s family or household requires care or support because of:

• a personal illness or injury affecting the member; or
• an unexpected emergency affecting the member.

Unpaid personal leave may be taken as a single continuous period of up to two days, or any separate periods to which the employee and their employer agree.

Casual employees can access up to two days unpaid personal leave per occasion for caring purposes.

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Evidence requirements

Employees who take paid and unpaid carer’s leave must provide reasonable evidence of the need for the leave.

Bereavement leave

The Minimum Conditions of Employment Act provides for all employees, including casual employees, to take up to two days paid bereavement leave on the death of a family member or a member of the employee’s household. The two days do not have to be consecutive.

Evidence requirements

If requested to do so by the employer, employees taking bereavement leave must provide reasonable evidence that the death is the reason for the leave and the relationship of the person to the employee.

Unpaid Family and Domestic Violence Leave

Full time, part time and casual employees are entitled to five days’ unpaid Family and Domestic Violence Leave in each 12 month period.

Unpaid Family and Domestic Violence Leave is available in full at the start of each 12 month period of the employee’s employment; and does not accumulate from year to year.

An employee will be able to take unpaid family and domestic violence leave if:

• the employee is experiencing family and domestic violence; and
• the employee needs to do something to deal with the impact of the family and domestic violence; and
• it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.

Taking unpaid Family and Domestic Violence leave

Employees can take unpaid Family and Domestic Violence Leave as:

• a single continuous five day period;
• separate periods of one or more days each; or
• in any separate periods to which the employee and the employer agree, including periods of less than one day.

Evidence to be provided

If required by the employer, an employee who claims to be entitled to unpaid Family and Domestic Violence Leave should provide evidence that would satisfy a reasonable person of the entitlement.

This could be a document issued by:

• a police service;
• a court of family violence support service;
• a medical practitioner;
• a legal service;
• a counsellor;
• a refuge service; or
• a financial institution.
  It could also be a statutory declaration.

Confidentiality

Employers must take steps to ensure information concerning any notice or evidence an employee has given of the employee taking unpaid Family and Domestic Violence Leave is treated confidentially, as far as it is reasonably practicable to do so.

Nothing will prevent an employer from disclosing information provided by an employee if the disclosure is required by a written law or is necessary to protect the life, health or safety of the employee or another person.

Parental leave

The National Employment Standards about parental leave apply to all employers in Australia including non-national system employers in Western Australia. The laws about parental leave and the procedures which must be followed are complex. There are also specific requirements for documentation which must be met when an employee is taking parental leave.

Employers should seek legal advice or advice from their state farming organisation if an employee becomes eligible for parental leave.

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Employing children – national system employers and non-national system employers

Employment of Children in Western Australia is governed by the Children and Community Services Act 2004 and the School Education Act 1999.

It is an offence to employ children under 15 years of age on a farm in Western Australia.

This does not apply to family businesses carried on by parents or relatives of the child.

Children over 15 years of age can work outside of school hours.

It is a offence to employ a child of school age (up to 17 years) during school hours.

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Long service leave – national system employers and non-national system employers

Long service leave is paid leave granted to employees to recognise a long period of service to the employer.

The Western Australian long service leave laws apply to all award and non-award employers in Western Australia.

Long service leave entitlements transfer with a business when it is sold or taken over if the employees continue in employment with the new owner.

Continuous service

Long service leave is calculated on the basis of years of continuous service. Continuous service means service with an employer which is not interrupted. Some breaks from work do not interrupt service for the purposes of the long service leave laws. The main ones are:

• any interruption due to annual leave, long service leave, public holidays, sick leave or defence force service;
• termination by the employer if the employee is reemployed within two months or within six months if the termination was due to slackness of trade, but the period of time away from employment is not taken into account when calculating the actual years of service;
• any other absence authorised by the employer, but the period of time away from employment is not taken into account when calculating the actual years of service;
• if the business is sold or transferred to another employer and the employee continues in employment with the new employer.

Amount of long service leave entitlement

All employees, including casual employees and seasonal employees, are entitled to long service leave of eight and 2/3rd weeks of paid leave after 10 years continuous service. After the initial 10 years, employees are entitled to a further four and 1/3rd weeks for every five years continuous service.

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Termination of employment and long service leave

Employees are entitled to pro rata payment of long service leave, to be paid out on all service including part years, upon death of the employee or on termination of employment after seven years’ continuous service provided the termination of employment is not for serious misconduct.

When an employee dies or their employment is terminated and they have accrued a long service leave entitlement, they or their personal representative in the case of death, are entitled to pro-rata payment of the long service entitlement for all years including part years.

However, employees terminated for serious misconduct are not entitled to long service leave even if they have been employed for more than 10 years.

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Payment for long service leave

Long service leave is paid at the ordinary rate of pay at the time the leave is taken excluding overtime, penalties allowances and shift premiums. Bonuses are included and are calculated as an average weekly amount over the last 12 months before the leave begins or the employment is terminated.

If the employee’s hours of work vary, for instance part-time employees and casual employees, the rate of pay is calculated on the average weekly hours over the whole time the employee has worked for the employer.

When payment for long service leave is to be made

The Long Service Leave Act specifies that payment for long service leave be made on the ordinary pay days. However, employees can request in writing for payment to be made before the leave commences and the employer must comply. Employers and employees can also agree to other methods of payment.

If long service leave is postponed at the request of the employee, the rate is the rate payable when the leave fell due not when it is taken unless the employer and the employee agree otherwise.

Board and lodging

Payment for long service leave includes the value of any board or lodging provided to the employee if the board and lodging is not provided and taken during the period of the leave.

Cashing out of long service leave

Cashing out of long service leave is permissible provided any agreement between the employer and the employee is recorded in writing. (See Records section)

Taking long service leave

Employees can take long service leave for any period including single days, long service leave at half pay or double pay and long service leave can be cashed out  providing the employer and employee agree in writing.

If the long service leave has been due for a period of more than 12 months and the employer and the employee cannot agree when the long service leave is to be taken the employee can take the leave at any time they choose provided the employee gives the employer at least two weeks’ notice.

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Public holidays

If a public holiday falls during the long service leave and the employee would have been entitled to that holiday, the period of leave is increased by one day. This does not apply to long service leave paid out on termination of employment.

Prohibition on employment during long service leave

Employees are not permitted to work in paid employment whilst on long service leave and employers are able to withhold further payment and reclaim monies paid if they do so. This does not apply to long service leave paid out on termination.

Employers who believe this situation may apply to them should seek legal advice.

Record keeping

The long service leave laws require records to be kept which enable the long service leave entitlement and payment for long service leave to be calculated. In particular employees should note that accurate records must be kept of all hours worked for employees whose hours of work vary so that the average can be calculated when long service leave falls due.

Any agreement made by the employer and the employee to cash out long service leave must also be kept.

Long service leave records must be kept during the employment and for seven years after the employment is terminated and be made available for inspection by the employee or their representative or an industrial inspector. Penalties can be imposed for breaches. See below for further information on record keeping

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Termination of employment

(for non-national system employers in WA)

Employers should use fair procedures when terminating employees as replacing employees is expensive and claims for unfair or unlawful dismissal can be costly and time consuming to defend. Read more about termination

Summary dismissal

Summary or instant dismissal is dismissal of an employee ‘on the spot’ and without notice. Employers should only dismiss without notice if the employee is guilty of deliberate and serious misconduct which is so bad that it would be unreasonable to expect the employer to continue employing the employee for the notice period.

Summary dismissal should be reserved for the most serious cases of misconduct and employers who summarily dismiss an employee should always keep accurate records noting what occurred leading up to the dismissal so that they can defend an unfair dismissal action if necessary.

Serious misconduct could include theft, fraud, assault, wilful disobedience of a lawful order or deliberate behaviour which is a serious risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business. However, if the employer has, in the past, allowed similar behaviour to occur without taking any action, the misconduct should not be used to justify summary dismissal. Instead the employer should use a procedure of written warnings before dismissing with notice if there is no improvement. Go to Fair Procedures for Termination for more information.

Notice or pay in lieu of notice is not required in cases of serious employee misconduct.

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Notice of termination

The National Employment Standard about notice of termination applies to all employers in Australia including non-national system employers in WA.

Employee notice and forfeiture of wages

The NES provides for employee notice only if it is a part of an award or enterprise agreement.

This means that non-national system employers in Western Australia in the dairy industry cannot enforce employee notice.

Statement of employment

When terminating employment, all employers must provide employees upon request with a written statement specifying the period of employment and the classification or type of work performed by the employee.

Job search entitlement

In addition, award-free employees who have been given notice of termination are entitled to one day’s time off work per week to seek alternative employment. If the employee takes more than one day off during the notice period the employer may request a statutory declaration confirming proof of attendance at an interview prior to making payment to the employee for that day.

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Records relating to termination must state the following:

• Whether the termination was by consent, notice, without notice or some other manner
• The name of the person who terminated the employment

Unfair dismissal

All non-national system employers in WA are subject to the state laws regarding unfair dismissal.

Unfair dismissal claims are usually based on the allegation that the process used by the employer to terminate the employee was harsh, oppressive or unfair. Employees claiming unfair dismissal will have to prove one or more of these elements to succeed in their claim.

In Western Australia, unfair dismissal claims are brought in the WA Industrial Relations Commission.

Who can make an unfair dismissal claim? (updated June 2023)

Most employees can make a claim for unfair dismissal. However, employees not covered by an award cannot make a claim in the WA Industrial Relations Commission if their wage or salary exceeds $187,800 as of 1 July 2023.

Employees who are dismissed while they are on probation can make a claim for unfair dismissal but the Industrial Relations Commission will take this into account when deciding if the dismissal was unfair. It is generally expected that employees who are on probation are aware that their suitability for the position is being assessed by the employer.

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What happens when a claim is made?

Lodgement of claim

Employees must lodge an unfair dismissal claim with the WA Industrial Relations Commission within 28 days of the date of the dismissal. However, the Industrial Relations Commission will grant extensions of time in certain circumstances. Employers then have 21 days to respond to the claim by lodging a ‘Form 5 Notice of Answer and Counter Proposal’ with the Industrial Relations Commission.

Conciliation conference

Once the claim has been lodged the matter will be listed for a conciliation conference. The purpose of conciliation is to try to resolve the claim by agreement without the need for a full hearing or arbitration involving the giving of evidence and hearing from witnesses. The conference will be held in Perth or one of the regional centres. It can in some circumstances be held by telephone conference.

Unfair dismissal claims cannot usually proceed to a formal hearing or arbitration unless there has been an attempt to settle the claim by conciliation.

As a result of the conciliation conference the parties may agree to settle the claim with a negotiated return to work or a financial settlement or both or alternatively the employee may withdraw the claim. The parties can agree that any terms of settlement remain confidential. It is very unusual for legal costs to be awarded in these matters.

Arbitration

If the conciliation fails the claim will then be listed for an arbitration hearing where witnesses can be called and formal evidence is given.

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Redundancy

A job becomes redundant when an employer decides that the job the employee has been doing is no longer needed or that fewer employees are needed at the workplace. Redundancies usually occur in farming when the farmer is retiring, cutting staff to save costs or introducing new machinery or technology.

Redundancy laws for dairy farmers in Western Australia are contained in the Redundancy General Order.

Redundancy General Order

The Redundancy General Order lays down specific requirements which must be undertaken in the event of redundancy throughout Western Australia.

Redundancy and notice

The same notice periods apply to redundancy as to other forms of termination of employment.

Employees who leave during the notice period do not lose their entitlement to severance pay but do not have to be paid in lieu of notice.

Employees are entitled to paid leave of up to eight hours to enable them to attend an interview for alternative employment.

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Severance pay

The Redundancy General Order lays down the following amounts of severance pay for all workplaces which employ 15 or more employees (this includes all casual and part-time employees).

• Week’s pay excludes overtime, penalty rates, bonuses and allowances.
• Severance payments cannot be more than the employee would have earned if they had reached their normal retirement date.

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Continuous service

Continuous service means service with the employer which is not interrupted. The following absences or interruptions do not break continuity of service for the purpose of severance payments:

• any termination or interruption by the employer intended to avoid redundancy obligations;
• absences from work on leave granted by the employer;
• absence with reasonable cause – the employee must prove the cause was reasonable.

Continuous service is not broken where an employee remains employed by a new employer when a business has been transferred and the employee’s entitlement to long service leave has been transferred.

Note that absences on unpaid leave do not break service but are not counted when calculating the years of service e.g. parental leave.

Exclusions from severance pay requirement

The following types of employees are excluded from these severance payments:

• employees dismissed for serious misconduct;
• employees with less than one year’s service;
• probationary employees;
• apprentices and trainees;
• employees engaged for a specific period of time or for a specified task; and
• casual employees.

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Alternative employment

Employers who find alternative employment for employees can make an application to the WA Industrial Relations Commission to have the amount of the severance payment varied.

Notification and consultation requirements

There are specific requirements for notification of unions and employees and discussions regarding the proposed redundancies including giving employees reasons for the redundancies and discussions with employees about possible measures to avoid or minimise the impact of the redundancy upon employees. There are also requirements for notifying Centrelink.

Incapacity to pay

Employers are able to make an application to the WA Industrial Relations Commission for the amount of severance pay to be reduced due to incapacity to pay.

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Workplace agreements

In Western Australia there is no ability to make a workplace agreement which applies to all employees or a group of employees unless one of the parties is a trade union. Employers who have employees who are union members and who wish to make a workplace agreement should consult with the relevant trade union.

The WA Industrial Relations Act does provide for individual workplace agreements between an employer and an employee. These agreements are called Employer-Employee Agreements.

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Residential tenancies laws

The Western Australian residential tenancies laws may apply to accommodation on farms where the accommodation is not a part of the wider lease of the farming property. These laws lay down notice periods for ending the tenancy, whether bonds can be required and how much can be charged as well as rules regarding repairs and inspection and agreements with specific terms. Breaches of these laws attract fines.

Whilst residential tenancy laws can protect both the tenant and the landlord, the notice periods for ending the tenancy can be problematic when accommodation has been part of a remuneration package and an employee leaves as a result of their employment being terminated either with notice but particularly when dismissed summarily for misconduct. Notice periods will continue to apply (usually 60 days). In these circumstances the only avenue available to the employer is to make an application to the tenancy tribunal to have the lease terminated earlier on the ground of hardship.

Residential tenancy laws do not usually apply where the tenancy is not ‘for consideration’ which means that no rent is paid for the accommodation. However, farmers should be aware that making accommodation a part of a formal workplace agreement where the accommodation is used as a part of the of the No Disadvantage Test (non-national system employers) or the Better Off Overall test (national system employers).

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Records

Non-national system employers

The Western Australian industrial laws require all employers to keep records for each employee and there are penalties under the act for breaches of these requirements. Records must be in English with separate records for each employee.

Records for long service leave must be kept for the duration of the employee’s employment and for seven years after termination of the employment. Other records must be kept for seven years after the last entry.

Any alterations to records must be made as soon as the error is recognised and a notation of the change made in the record.

Records must be in a form which can be made available for inspection and copying by the employee or their representative or an industrial inspector. Penalties can be imposed for breaches.

Employers must keep the following employment records:

• the employee’s name and (if under 21) date of birth;
• the employer’s name and ABN (if any);
• any industrial instrument such as an award that applies (note the dairy industry is award free in WA for non-national system employers);
• date the employee commenced employment with the employer;
• for each day of work the following:
• starting and finishing times;
• periods for which the employee was paid;
• details of breaks.

• for each pay period:
  • the type of employment- full time/part time /casual and classification;
  • the gross and net amounts paid to the employee under the contract of employment, and
  • all deductions and the reason for them.

• any incentive based payment, bonus, loading, penalty rates of other monetary allowance or entitlement;
• all paid, partly paid, and unpaid leave taken by the employee;
• details necessary to calculate the employee’s entitlement to (and payment for) long service leave.

Records relating to superannuation:

• the amount of the superannuation contribution;
• the period to which the contribution relates;
• the date the contribution was made;
• Fund name;
• Details of how the amount was calculated;
• Choice of fund details and date choice made;

Records relating to termination

• Whether the termination was by consent, notice, without notice or some other manner;
• Name of the person who terminated the employment.

Retention of records

• Records relating to annual leave and long service leave must be kept for not less than 7 years after the employee’s employment terminates.
• All other records must be kept for 7 years after the record is made

Pay slips

From 2022 it is compulsory for all state system employers to provide a pay slip to each employee within one working day of paying the employee for work performed.

The employer can decide whether to give a hard copy or electronic form of the pay slip.

A pay slip must include the following information:

• the employer’s name and Australian Business Number (if any);
• the employee’s name;
• the period to which the pay slip relates;
• the date on which the payment referred to in the pay slip was made;
• the gross and net amounts of the payment, and any amount withheld as tax;
• any incentive based payment, or payment of a bonus, loading, penalty rates or another monetary allowance or separately identifiable entitlement;
• if an amount is deducted from the gross amount of the payment;
  • the name of the person in relation to whom the deduction was made;
  • if the deduction was paid into a fund or account – the name, or the name and number, of the fund or account; and
  • the purpose of the deduction;
• if the employee is paid at an hourly rate of pay:
  • the rate of pay for the employee’s ordinary hours;
  • the number of hours worked during the period to which the payslip relates, and
  • the amount of the payment made at that rate.
• if the employee is paid a weekly or an annual rate of pay – the rate as at the latest date to which the payment relates;
• if the employer is required to make superannuation contributions for the benefit of the employee:
  • the amount of each contribution that the employee made during the period to which the payslip relates, and
  • the name, or the name and number, of any fund to which the contribution was made, or
  • the amounts of the contributions that the employer is liable to make in relation to the period to which the payslip relates and the name or the name and number, of any fund to which the contribution was made;

Penalties

There are penalties of up to $13,000 (or up to $130,000 in the case of a serious contravention) for individuals or a penalty of up to $65,000 for bodies corporate (or up to $650,000 in the case of a serious contravention) for:

• failing to give a pay slip to an employee within one working day of paying the employee for work performed;
• failing to give an employee a pay slip which includes the specified information, and
• providing a pay slip that the employer knows, or could reasonably be expected to know, is false or misleading.

Use our pay slip template which complies with these requirements.

New Employee Protections Laws 2022

In 2022 new provisions have been introduced to increase employee protections and combat wage theft. For more information go to the WA Government’s new employee protections provisions fact sheet.

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