Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this Act,
unless the contrary intention appears —
alteration , in relation to rules of an
organisation, includes amendment, addition to, variation, rescission or
substitution;
apprentice means an apprentice under the
Industrial Training Act 1975 ;
association means an association that is
registered under Division 4 of Part II;
Australian Commission means the Australian
Industrial Relations Commission established by the Commonwealth Act;
award means an award made by the Commission under
this Act;
calling means any trade, craft, occupation, or
classification of an employee;
canvasser means any person wholly and solely
employed in the writing of industrial insurance business or in the collection
of premiums at not longer intervals than one month in respect of such
insurance, or in both, but does not include a person who directly or
indirectly carries on or is concerned in the carrying on or conduct of any
other business or occupation in conjunction with that of industrial insurance;
Chamber means the body known as the Chamber of
Commerce and Industry of Western Australia (Inc);
Chief Commissioner includes an acting Chief
Commissioner;
civil penalty provision means a provision of this
Act, or any other written law, that is specified to be a civil penalty
provision for the purposes of section 83E;
Commission means the body continued and
constituted under this Act under the name of The Western Australian Industrial
Relations Commission;
Commission in Court Session means the Commission
constituted as provided by section 15(2);
commissioner means a commissioner appointed under
this Act and includes the Chief Commissioner, the Senior Commissioner and an
acting commissioner;
Commonwealth Act means the Workplace Relations
Act 1996 of the Commonwealth;
constituent authority means the public service
arbitrator, a Public Service Appeal Board, or the Railways Classification
Board, established or appointed under Part IIA;
Council means the body known as the Trades and
Labor Council of Western Australia;
Court means the Western Australian Industrial
Appeal Court continued and constituted under this Act;
decision includes award, order, declaration or
finding;
declaration means a declaration made by the
Commission under this Act;
deputy registrar means a deputy registrar
appointed pursuant to this Act;
employee means —
(a) any
person employed by an employer to do work for hire or reward including an
apprentice or trainee;
(b) any
person whose usual status is that of an employee;
(c) any
person employed as a canvasser whose services are remunerated wholly or partly
by commission or percentage reward; or
(d) any
person who is the lessee of any tools or other implements of production or of
any vehicle used in the delivery of goods or who is the owner, whether wholly
or partly, of any vehicle used in the transport of goods or passengers if he
is in all other respects an employee,
but does not include any person engaged in
domestic service in a private home unless —
(e) more
than 6 boarders or lodgers are therein received for pay or reward; or
(f) the
person so engaged is employed by an employer, who is not the owner or occupier
of the private home, but who provides that owner or occupier with the services
of the person so engaged;
employer includes —
(a)
persons, firms, companies and corporations; and
(b) the
Crown and any Minister of the Crown, or any public authority,
employing one or more employees and also includes
a labour hire agency or group training organisation that arranges for an
employee (being a person who is a party to a contract of service with the
agency or organisation) to do work for another person, even though the
employee is working for the other person under an arrangement between the
agency or organisation and the other person;
employer-employee agreement or EEA means an
employer-employee agreement provided for by section 97UA;
employment record means a record kept under
section 49D;
enterprise order has the meaning given by
section 42I(1);
final offer arbitration means arbitration in which
an issue is decided by the Commission by awarding, without qualification or
amendment, that one of the final proposals made by the parties concerned
which, viewed in its entirety is, in the opinion of the Commission, the more
or the most reasonable, as the case may be;
finding means a decision, determination or ruling
made in the course of proceedings that does not finally decide, determine or
dispose of the matter to which the proceedings relate;
Full Bench means the Commission constituted as
provided by section 15(1);
group training organisation means an organisation
that manages the employment and training of apprentices and trainees under
contracted work based arrangements for the purpose of hosting those
apprentices and trainees out to other employers;
industrial action means any act, omission, or
circumstance done, effected, or brought about by an organisation or employer
or employee or by any other person for the purpose, or in the opinion of the
Commission for the purpose, of compelling an employer or an employee or an
organisation to accept any terms or conditions of employment or to enforce
compliance with any demand relating to employment not including an application
made under this Act;
industrial agreement means an agreement registered
by the Commission under this Act as an industrial agreement;
Industrial Gazette means the Western Australian
Industrial Gazette published pursuant to this Act;
industrial inspector means an industrial inspector
appointed pursuant to this Act;
industrial magistrate’s court means
industrial magistrate’s court established under section 81(1);
industrial matter means any matter affecting or
relating or pertaining to the work, privileges, rights, or duties of employers
or employees in any industry or of any employer or employee therein and,
without limiting the generality of that meaning, includes any matter affecting
or relating or pertaining to —
(a) the
wages, salaries, allowances, or other remuneration of employees or the prices
to be paid in respect of their employment;
(b) the
hours of employment, leave of absence, sex, age, qualification, or status of
employees and the mode, terms, and conditions of employment including
conditions which are to take effect after the termination of employment;
(c) the
employment of children or young persons, or of any person or class of persons,
in any industry, or the dismissal of or refusal to employ any person or class
of persons therein;
(ca) the
relationship between employers and employees;
(d) any
established custom or usage of any industry, either generally or in the
particular locality affected;
(e) the
privileges, rights, or duties of any organisation or association or any
officer or member thereof in or in respect of any industry;
(f) in
respect of apprentices or trainees —
(i)
their wage rates; and
(ii)
subject to the Industrial Training Act 1975
—
(I) their other conditions of employment;
and
(II) the rights,
duties, and liabilities of the parties to any agreement of apprenticeship or
training agreement;
(g) any
matter relating to the collection of subscriptions to an organisation of
employees with the agreement of the employee from whom the subscriptions are
collected including —
(i)
the restoration of a practice of collecting subscriptions
to an organisation of employees where that practice has been stopped by an
employer; or
(ii)
the implementation of an agreement between an
organisation of employees and an employer under which the employer agrees to
collect subscriptions to the organisation;
[(h) deleted]
(i)
any matter, whether falling within the preceding part of
this interpretation or not, where —
(i)
an organisation of employees and an employer agree that
it is desirable for the matter to be dealt with as if it were an industrial
matter; and
(ii)
the Commission is of the opinion that the objects of this
Act would be furthered if the matter were dealt with as an industrial matter;
and also includes any matter of an industrial
nature the subject of an industrial dispute or the subject of a situation that
may give rise to an industrial dispute but does not include —
(j)
compulsion to join an organisation of employees to obtain or hold employment;
(k)
preference of employment at the time of, or during, employment by reason of
being or not being a member of an organisation of employees;
(l)
non-employment by reason of being or not being a member of an organisation of
employees; or
(m) any
matter relating to the matters described in paragraph (j), (k) or (l);
industry includes each of the
following —
(a) any
business, trade, manufacture, undertaking, or calling of employers;
(b) the
exercise and performance of the functions, powers, and duties of the Crown and
any Minister of the Crown, or any public authority;
(c) any
calling, service, employment, handicraft, or occupation or vocation of
employees,
whether or not, apart from this Act, it is, or is
considered to be, industry or of an industrial nature, and also
includes —
(d) a
branch of an industry or a group of industries;
irregularity , in relation to an election for an
office, includes a breach of the rules of an organisation, and any act,
omission, or other means by which the full and free recording of votes, by
persons entitled to record votes, and by no other persons, or a correct
ascertainment or declaration of the results of the voting is, or is attempted
to be, prevented or hindered;
judge means a judge of the Supreme Court;
labour hire agency means a person or entity that
conducts a business of the kind commonly known as a labour hire agency;
legal practitioner means a certificated
practitioner within the meaning of the Legal Practice Act 2003 ;
MCE Act means the Minimum Conditions of Employment
Act 1993 ;
member of the Commission means the President or a
commissioner and includes the President or a commissioner when he is
performing the functions of a constituent authority, or of a member of a
constituent authority, but does not include any other member or acting member
of a constituent authority;
Mines and Metals Association means the body known
as the Australian Mines and Metals Association (Incorporated);
office in relation to an organisation
means —
(a) the
office of a member of the committee of management of the organisation;
(b) the
office of president, vice president, secretary, assistant secretary, or other
executive office by whatever name called of the organisation;
(c) the
office of a person holding, whether as trustee or otherwise, property of the
organisation, or property in which the organisation has any beneficial
interest;
(d) an
office within the organisation for the filling of which an election is
conducted within the organisation; and
(e) any
other office, all or any of the functions of which are declared by the Full
Bench pursuant to section 68 to be those of an office in the
organisation,
but does not include the office of any person who
is an employee of the organisation and who does not have a vote on the
committee of management of the organisation;
officer means a person who carries out, or whose
duty is or includes the carrying out of, the whole or part of the functions of
an office in an organisation;
organisation means an organisation that is
registered under Division 4 of Part II;
post-secondary education institution means an
institution or part of an institution established or continued by or under the
University of Western Australia Act 1911 , the
Curtin University of Technology Act 1966 , the
Murdoch University Act 1973 , the Edith Cowan University Act 1984 or
the Vocational Education and Training Act 1996 ;
premises includes any land, building, structure,
mine, mine working, aircraft, ship or other vessel, vehicle and place, and any
part of it;
President means the President of the Commission
and includes an acting President;
presiding judge means the presiding judge of the
Court;
principal executive officer in relation to an
organisation or association means the president or chairman of that
organisation or association;
public authority means the Governor in Executive
Council, any Minister of the Crown in right of the State, the President of the
Legislative Council or the Speaker of the Legislative Assembly or the
President of the Legislative Council and the Speaker of the Legislative
Assembly, acting jointly, as the case requires, under the
Parliamentary and Electorate Staff (Employment) Act 1992 , the Governor
or his or her delegate under the Governor’s Establishment Act 1992
, State Government department, State trading concern, State instrumentality,
State agency, or any public statutory body, corporate or unincorporate,
established under a written law but does not include a local government or
regional local government;
public hospital means a public hospital as defined
in the Hospitals and Health Services Act 1927 ;
public service officer means a public service
officer within the meaning of the Public Sector Management Act 1994 ;
published in the required manner means published
in the next available issue of the Industrial Gazette and —
(a) in a
newspaper circulating throughout the State; or
(b) on
an internet website maintained by the Commission;
record means any thing or process —
(a) upon
or by which information is recorded or stored; or
(b) by
means of which a meaning can be conveyed by any means in a visible or
recoverable form,
whether or not the assistance of some electronic,
electrical, mechanical, chemical or other machine or process is required to
convey the information or meaning;
Registrar means the Registrar appointed pursuant
to this Act;
registration , in relation to an organisation,
means registration under Division 4 of Part II by authority of the Full
Bench;
repealed Act means the Act repealed by
section 4;
representative has the meaning given by
section 97X or 97XO;
represented person has the meaning given by
section 97X or 97XO;
secondary office , in relation to a person who
holds an office of member of the Commission and is subsequently appointed to
an office of the Australian Commission pursuant to section 14A, means the
office of member of the Australian Commission;
Senior Commissioner includes an acting Senior
Commissioner;
subscription means any subscription, fee or dues
payable by a member for or in respect of membership of an organisation;
trainee means a person who belongs to a class of
persons prescribed by regulations made by the Governor as persons to be
treated as trainees for the purposes of this Act;
vary in relation to an award or industrial
agreement means to add a new provision or to add to, alter, amend or rescind
an existing provision.
(1a) A matter relating
to —
(a) the
dismissal of an employee by an employer; or
(b) the
refusal or failure of an employer to allow an employee a benefit under his
contract of service,
is and remains an
industrial matter for the purposes of this Act even though their relationship
as employee and employer has ended.
[(2) repealed]
(3) A matter or claim
that has been referred, or appeal that has been brought, to the Tribunal
provided for by section 51G of the Occupational
Safety and Health Act 1984 under a provision mentioned in —
(a)
subsection (1) of that section; or
(b)
section 102(1) of the Mines Safety and Inspection Act 1994 ; or
(c)
clause 69(1) of Schedule 1 to the Petroleum and Geothermal Energy
Resources Act 1967 , clause 69(1) of Schedule 1 to the
Petroleum Pipelines Act 1969 , or clause 70(1) of Schedule 5 to
the Petroleum (Submerged Lands) Act 1982 ,
is not an industrial
matter.
(4)
Subsections (3) and (4) of section 34 do not apply to a
determination that is made contrary to subsection (3)(b) or to any
proceeding based on that determination, and in the determination of any
application for a prerogative writ or declaratory judgment no regard shall be
had to the existence of any right of appeal under this Act.
(5) In this
Act —
(a) a
reference to an industrial matter includes a reference to a matter relating to
bargaining in good faith for an industrial agreement or collective agreement
(as that term is defined in the Commonwealth Act); and
(b) a
reference to jurisdiction to inquire into and deal with an industrial matter
includes a reference to jurisdiction to assist parties to bargain for an
industrial agreement or collective agreement (as that term is defined in the
Commonwealth Act).
(6) Subject to
subsection (7), for the purposes of the definitions of
“employee” and “employer” in subsection (1), if a
person ( the principal ) engages a person, or a group of persons, under a
contract to personally give a performance as, or as part of, musical,
theatrical, dance or comic entertainment, the principal is to be regarded as
employing the person, or each person in the group, to do work.
(7)
Subsection (6) has effect only to the extent necessary to enable a claim
of the kind referred to in section 29(1)(b)(ii) to be referred to and
dealt with by the Commission in respect of a person who would not be an
employee but for the operation of subsection (6).
(8) Notes in
this Act are provided to assist understanding and do not form part of the
Act.
[Section 7 inserted by No. 94 of 1984
s. 6; amended by No. 83 of 1987 s. 38; No. 119 of 1987
s. 5; No. 73 of 1990 s. 45; No. 99 of 1990 s. 4;
No. 44 of 1991 s. 5; No. 40 of 1992 s. 8; No. 15 of
1993 s. 4; No. 32 of 1994 s. 14; No. 103 of 1994
s. 18; No. 1 of 1995 s. 4, 26 and 49; No. 30 of 1995
s. 77; No. 79 of 1995 s. 30; No. 14 of 1996 s. 4;
No. 42 of 1996 s. 71; No. 3 of 1997 s. 29 3 and 35;
No. 36 of 1999 s. 247; No. 20 of 2002 s. 6, 128, 142, 149, 178,
185, 190(1), 191(1) and (2) and 194(2); No. 65 of 2003 s. 41(2); No.
51 of 2004 s. 70(2); No. 59 of 2004 s. 112; No. 68 of 2004
s. 87(2); No. 13 of 2005 s. 49(2); No. 36 of 2006
s. 24 and 67; amended in Gazette 15 Aug 2003 p. 3686;
No. 35 of 2007 s. 97(2).]
[Part 1A (s. 7A-7G) repealed by No. 20 of 2002 4
s. 111(4) and 113(1).]
[Heading amended by No. 94 of 1984
s. 7.]