WA Industrial Relations System Review – a Waste of Time?

This update was co-authored by Jonathan O’Connor, Law Graduate

On 22 September 2017, the WA State Government commissioned Mark Ritter SC, assisted by Stephen Price MLA, to undertake a Ministerial Review of the WA industrial relations system (the Review).

Ritter is a barrister with extensive experience in employment and industrial relations (IR) law. He was acting president of the WAIRC from 2005 to 2009.  Price was AWU WA branch secretary for a number of years prior to being elected the Member for Forrestfield at the recent election.  His involvement is interesting, given that his previous role saw him act almost exclusively within the federal jurisdiction. So, we are unsure what if any particular insight he will bring to this exercise.

Somewhat quizzically the Terms of Reference state that the system ‘has not been comprehensively reviewed and updated since 2002’.  This is in spite of the fact the previous Barnett government spent $850,000 on the Amendola Review of 2010, choosing to reject all its recommendations on the basis that it was ‘too much like Workchoices’.

Terms of Reference

Ritter has been asked to:

  1. review the jurisdiction and powers of the WAIRC with the objective of examining the access for public sector employees to the WAIRC on a range of matters for which they are currently excluded;
  2. consider the inclusion of an equal remuneration provision in the Industrial Relations Act 1979 (WA) with the objective of facilitating the conduct of equal remuneration cases and other initiatives in the WAIRC;
  3. review the definition of ‘employee’ in the Industrial Relations Act and the Minimum Conditions of Employment Act 1993 (WA) with the objective of ensuring comprehensive coverage for all employees;
  4.  review the minimum conditions of employment in the Minimum Conditions of Employment Act, the Long Service Leave Act 1958 (WA) and the Termination, Change and Redundancy General Order of the WAIRC to consider whether:
      1. the minimum conditions should be updated; and if
      2. there should be a process for statutory minimum conditions to be periodically updated by the WAIRC, without the need for legislative change;
  5. devise a process for the updating of State awards for private sector employers and employees, with the objectives of:
      1. ensuring the scope of awards provide comprehensive coverage to employees;
      2. ensuring awards reflect contemporary workplaces and industry, without reducing existing employee entitlements;
      3. ensuring awards are written in plain English and are user friendly for both employers and employees; and
      4. ensuring that any award updating process is driven by the WAIRC, with appropriate input from the award parties and other relevant stakeholders;
  6. review statutory compliance and enforcement mechanisms with the objectives of:
      1. ensuring that employees are paid their correct entitlements;
      2. providing effective deterrents to non-compliance with all State industrial laws and instruments; and
      3. updating industrial inspectors’ powers and tools of enforcement to ensure they are able to effectively perform their statutory functions; and
  7. consider whether local government employers and employees in WA should be regulated by the State industrial relations system, and if so, how that outcome could be best achieved.

According to the Minister, the Review is aimed at delivering a State IR system that is ‘contemporary, fair and accessible’.

Ritter’s report on his findings and recommendations is expected to be completed in approximately four months.

Is a review of the WA industrial relations system needed?

Since the seminal ‘Workchoices’ decision of 2006, confirming  that the Corporations power was capable of sustaining a national legislative framework for workplace relations, state governments of both persuasions have  floundered as they have sought to find a response that satisfied both state and national interests.

The simple way forward would be for the WA Government to refer its industrial relations powers to the Commonwealth, as Victoria, New South Wales, Queensland, Tasmania and South Australia did in 2009. To be in lock step with the rest of the country, we do not need another $850,000 review of a system that is patently out of kilter with the needs of the state and the country.

Unfortunately, we fear that parochial interests will prevent a sensible policy outcome in this vital area of public policy. Rather, post review, WA will continue to meander along, vainly trying to battle the winds of economic change with tools designed at the beginning of last century.  The results of this futile approach ought to be obvious to all.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.