State awards and agreements

Contributed by Clare Ozich and current to 1 September 2005

AWARDS

State awards, like Federal awards, usually contain detailed conditions of employment. However, they do not cover every aspect of employment, and over-award payments or entitlements of an award covered employee will be part of the employee’s specific contract of employment.

A State award is an award made by the Western Australian Industrial Relations Commission. State awards apply throughout Western Australia, (unless the award says otherwise) to the unions, classifications of employees and employers named in the awards. State awards usually relate to an occupation or industry, or group of industries. These are known as common rule awards and apply regardless of whether the employer is specifically named as a party.

INDUSTRIAL AGREEMENTS

Unions and employers may make industrial agreements covering the terms and conditions of work in a single enterprise, and apply to have the agreement registered by the Western Australian Industrial Relations Commission. The agreement is to operate for the period of time set out in the agreement, but the agreement will continue to operate after it has expired until parties retire from the agreement or until a new agreement is made. While the industrial agreement is in operation, parties will not be covered by any State award, although often industrial agreements will incorporate award provisions.

EMPLOYER-EMPLOYEE AGREEMENTS (EEAS)

Employers and employees in Western Australia may also make individual agreements providing for some or all of the terms and conditions of their employment. These agreements are called Employer-Employee Agreements (EEAs) and are lodged with the WAIRC Registrar for registration. EEAs may be made by an employer and an individual employee.

An employer and employee who have entered into an EEA will also be parties to a contract of employment.

An EEA will not be able to be registered unless a number of requirements for registration set out in the Industrial Relations Act 1979 (WA) are met, one of which must be the inclusion of a dispute resolution clause. EEAs must also pass a no-disadvantage test, where the EEA is compared to a relevant award and cannot on balance provide for a reduction in the overall entitlements of the employee. The no-disadvantage test for EEAs is a stricter test than the no-disadvantage test for AWAs. An EEA cannot be made if an industrial agreement under the Act covering the parties is in force.

An EEA commences when employment commences, provided the EEA is registered within 21 days of being signed or at a later date provided in the EEA. If the employee is already employed, the EEA commences on registration or at a later date provided for in the EEA. EEAs will not have effect if they are refused registration. In a case where the EEA is of no effect, any relevant award provisions extend to the employee; if there is no relevant award, the employment is subject to a contract of employment containing the same conditions as the EEA. Also where an EEA is of no effect, parties may recover amounts they would have been entitled to receive had they not signed the EEA, but they must bring proceedings in the Industrial Magistrates Court to claim these amounts within 28 days. EEAs must be for a term of not more than 3 years.

Unions may not be party to any EEA, but may be appointed in writing to represent an employee as a bargaining agent in relation to negotiations for or matters connected with an EEA. An employee who is covered by a registered EEA will not be covered by any State award or industrial agreement, during the period of operation of the workplace agreement. Like awards and industrial agreements, EEAs are subject to the Minimum Conditions of Employment Act.