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Types of Claims

The Court can deal with breaches of legislated minimum entitlements and industrial instruments (such as awards, industrial or enterprise agreements, and Orders).

Claims can be made pursuant to the:

  • Industrial Relations Act 1979 (WA) including breaches of:
    • employee protection provisions set out in Part 6B, such as damaging action
    • the Minimum Conditions of Employment Act 1993 (WA)
    • the criminal prosecution jurisdiction
  • Long Service Leave Act 1958 (WA)
  • Fair Work Act 2009 (Cth), including small claims under section 548
  • Orders of the Western Australian Industrial Relations Commission

In addition to its power under the Industrial Relations Act 1979 (WA), the Court can hear certain matters pursuant to the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) and the Children and Community Services Act 2004 (WA).

Two main types of claims that can be made to the Court are:

  • Minimum entitlements
  • Protection of employee rights

FAQs

There are two systems of employment law in Western Australia. The state system of employment laws are created by the Western Australian state government. This is often referred to as the ‘state system’. The national system of employment laws are created by the federal government. This is often referred to as the ‘national system’. The legal nature of the employing entity will determine which system of employment laws covers the employment relationship in question.

For more information, please see Circle Green Community Legal’s Q&A: State or national system for WA employees. Please note the Court is not responsible for the content of external publications or the services of external providers.

An award sets minimum employment entitlements for employees working in a specific industry or occupation. An industrial or enterprise agreement sets minimum employment entitlements for employees employed by a particular employer or group of employers. Awards and agreements need to be registered with either the Fair Work Commission or the Western Australian Industrial Relations Commission and are published on the relevant commission’s website. Awards and agreements are enforceable through the Court. 

 If you are unsure if you are covered by an award or an agreement, you can contact Wageline on 1300 655 266 if you are employed in the state system or the Fair Work Ombudsman on 13 13 94 if you are employed in the national system.

Damaging action refers to a type of protected employee right. It is where an employer covered by the state system of employment laws has taken damaging action against an employee because the employee has made, or is able to make, an employment related inquiry or complaint. Damaging action can be doing, or threatening to do, the following actions:

  • dismissal
  • altering the employee’s position to their disadvantage
  • refusing a promotion or transfer
  • injuring in relation to employment

For prospective employees, damaging action can also be doing, or threatening to do, the following actions:

  • refusal to employ
  • discrimination in terms or conditions offered for employment

The employment related inquiry or complaint has to be based on an entitlement or right that comes from a contract of employment or industrial legislation or instrument (such as an award or agreement).

If the Court finds an employer has taken damaging action against an employee because the employee has made, or is able to make, an employment related inquiry or complaint, it can make orders for:

  • financial penalties
  • reinstatement (or employment for a prospective employee)
  • compensation

 

External publications that may provide guidance with this type of claim include:

Please note the Court is not responsible for the content of external publications or the services of external providers.

Employees covered by the national system of employment laws making a claim for an amount up to $100,000 can elect to have the small claims procedure apply to the proceedings.

The small claims procedure is designed to be a quicker and more informal process than regular court proceedings. It is a simpler process where lawyers are generally not needed, and penalties cannot be sought. If a party does wish to be represented in a small claims procedure, it must get permission from the Court first by lodging a Form 6 – Application and a Form 7 - Affidavit. The completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au.

Copies of Western Australian Acts and subsidiary legislation can be found at the Parliamentary Counsel’s Office website . Copies of Commonwealth Acts and subsidiary legislation can be found at the Federal Register of Legislation website.

Legislation relevant to the Court includes: