WA's Industrial Relations Commission still has a role in determining some employment entitlements claims

Although the great majority of employers are covered by the national workplace relations system under the Fair Work Act (some exceptions include sole traders, partnerships and trusts), the Western Australian Industrial Relations Commission still has jurisdiction to determine some employee claims for contractual entitlements. Eligible employees can take their case to the WAIRC, even if their employer is covered by the national system.

To be eligible to make such a claim, the affected employee must either be covered by an award or earn less than a prescribed amount (currently $149,400). The employee can make an application to the WAIRC at any time within six years after the entitlement accruing.

Although it may seem counter-intuitive that an employer covered by the national system could face action in the state-based industrial tribunal, the WAIRC has considered the jurisdictional issues and has decided that it retains powers in this area. In a paper titled, Who can make a claim to the WAIRC under the Industrial Relations Act, 1979 (WA), the WAIRC states:

Sections 26 and 27 of the Fair Work Act exclude the jurisdiction of the WAIRC in matters involving the employment of employees employed by a trading or financial corporation (such as unfair dismissal) but do not exclude claims for enforcement of contracts of employment. 

This means that the WAIRC may have jurisdiction to deal with claims for enforcement of contracts of employment by employees against all employers in the private sector, local government and some agencies in the public sector who are not covered by the jurisdiction of the Public Service Arbitrator which is a part of the WAIRC.   Some matters that the Commission may be able to deal with in respect of employers and employees covered by the Fair Work Act may be matters such as commissions and bonuses. 

Some examples where this has occurred are Triantopolous v. Shell Company of Australia Ltd [2010] WAIRC 00004 which involved a claim for redundancy pay and Higgins v. Gateway Printing (2010) 90 WAIG 525, 529; [2010] WAIRC 00083, 000296 which involved claims for pay in lieu of notice, annual leave and superannuation entitlements.  In both matters, the Commission found that the WAIRC does have jurisdiction to deal with a claim for enforcement of contractual benefits in relation to a national system employer.

Whether the Commission has jurisdiction and what claims of enforcement of contractual benefits (if any), can be brought against a trading or financial corporation may depend not only upon the effect of ss 26 and 27 of the Fair Work Act but also on ss 542, 543, 61(2), 139(1) of the Fair Work Act and the definition of "safety net contractual entitlements" in s 12 of the Fair Work Act.  For more information see the Explanatory Memorandum to the Fair Work Bill 2008 at clause 142 and 2144.

In dealing with such claims, the WAIRC first undertakes a conciliation process to attempt to have the parties settle the matter before proceeding to a hearing. Further information about the WAIRC's process is available on the Commission's website at the link below.

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