New Respect@Work Legislation

By Justin Lillyman

In response to the recommendations of the Australian Human Rights Commission report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, the Federal parliament has passed new legislation that will apply to all Australian workplaces.

The key legislation passed involved amendments to the Sex Discrimination Act 1984 (Cth) and Australian Human Rights Commission Act 1986 (Cth) as well as the Fair Work Act 2009 (Cth) and is set out below:

Sex Discrimination Act 1984 (Cth) and Australian Human Rights Commission Act 1986 (Cth)

  • Equality of opportunity – there is a new object in the Sex Discrimination Act to make it clear that, along with the elimination of discrimination and harassment, this Act aims ‘to achieve, so far as practicable, equality of opportunity between men and women’.
  • Sex based harassment now an express, new form of unlawful conduct – harassing conduct on the ground of sex will need to be sufficiently serious or sustained to meet the threshold of offensive, humiliating, or intimidating, as well as seriously demeaning.
  • All paid and unpaid workers now expressly protected from sex based and sexual harassment – the scope of the Sex Discrimination Act has been broadened by adopting the concepts of ‘worker’ and ‘person conducting a business or undertaking’ from the model Work Health and Safety Act 2011.
  • Victimising conduct can give rise to civil and criminal proceedings – this change clarifies that a person who is threatened or subjected to detriment (eg because they make a complaint to the AHRC) can make a civil claim under the Sex Discrimination Act. 
  • AHRC discretion to terminate complaint extended from six to 24 months – although there is no timeframe for complaints to be lodged with the AHRC, the AHRC President’s discretion to terminate a complaint has now been extended from six to 24 months.
  • Ancillary or accessorial liability – the Sex Discrimination Act deems the conduct of a person who ‘causes, instructs, induces, aids or permits’ another person to do an unlawful act of discrimination to have engaged in that same conduct.
  • Scope of Sex Discrimination Act extended – to include broadly, among other workers and entities, all members of State and Federal parliament, judges and their staff and consultants, as well as state and territory public servants.

Fair Work Act 2009 (Cth)

  • FWC sexual harassment ‘stop orders’ – to give workers access to a fast, low cost, informal mechanism to deal with complaints, changes to the Fair Work Act will enable the FWC to make an order to stop sexual harassment in the workplace, as part of the FWC’s existing anti-bullying jurisdiction.
  • Sexual harassment can be a valid reason for dismissal – the amendments make it clear that sexual harassment can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable. 
  • Miscarriage leave – the changes allow an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage.

Please contact REEFWA on (08) 9365 7510 or ReefWA@cciwa.com if you require assistance in managing any of these legislative changes within your workplace.

Is your business paying your employees correctly?

By Justin Lilleyman

Over the past few years there have been many high profile companies facing public, media and regulatory scrutiny involving incorrect payment of employees wages and entitlements.

It is not only the well-publicised cases that receive attention, the Fair Work Australia website has a long list of media releases that are dedicated to naming and shaming employers who fail to meet their employer obligations and comply with payroll legislation.  

With penalties in the millions of dollars for some of these giants, the sanctions imposed if you’re found to be of breach of payroll obligations can be equally as harsh. Which is why payroll compliance deserves the attention and respect it needs to avoid being another employer in the headlines for all the wrong reasons.

REEFWA in partnership with CCIWA can assist members in undertaking an audit of all current payroll processes to identify shortcoming and weaknesses.

The audit conducted by an experienced consultant at a member discounted rate will undertake a spot-check payroll audit of your employees covered by the Real Estate Industry Award 2020 and Clerks-Private Sector Award 2020.

The audit will determine whether the Company has complied with all relevant legislation requirements as well as the Modern Award(s) and provide recommendations to help rectify any shortfalls.

Please contact REEFWA on (08) 9365 7510 or ReefWA@cciwa.com to arrange for a payroll audit to be conducted at your business.

Award Coverage

By Paris Lynch

Employee Relations Advisor

What are awards?

In Western Australia there are two Industrial Relations Jurisdictions. The Fair Work Act 2009 (Cth) (FW Act) covers National System Employers and the Industrial Relations Act 1979 (WA) (IR Act) and Minimum Conditions of Employment Act 1993 covers State System Employers. For more information on which system your business is covered by, contact the Employee Relations Advice Centre on 08 9365 7660.

Whilst the minimum employment standards are set out in the legislation, many employers are also covered by awards which prescribe additional employment entitlements. In the National System, these are called Modern Awards, and they provide entitlements in addition to the National Employment Standards. State Awards, which apply to State System Employers, contains entitlements in addition to the Minimum Conditions of Employment Act 1993. Awards will generally include entitlements such as minimum wages, overtime and penalty rates, hours of work, allowances, breaks and rostering provisions.

It is important for employers to be aware of the applicable Award/s that apply to their business and employees as failure to comply with an Award can result in underpayment claims and penalties.

When will an employee not be award covered?

Majority of employees will be covered by an Award. An Award will apply if it covers an employee and employer in accordance with the ‘Coverage’ or ‘Scope’ clause contained in the Award. Additionally, there needs to be no other provisions contained in the FW Act or the IR Act that provides or has effect, that the Award does not apply.

In the Federal System, where an employee earns above the high-income threshold, the employer and the employee can enter into a Guarantee of Annual Earnings. In this case the Award will continue to cover the employee for the purposes of unfair dismissal, however, the terms and conditions of the award, such as penalty rates, will no longer apply to that employee.

Some Managers and professionals may also not be covered by an award, however, it is important to investigate potential award coverage before assuming they are not.

Enterprise Agreements and Workplace Agreements provide the opportunity to negotiate terms and conditions of employment as an alternative to Awards. While in operation, the Agreement will override the Award unless specifically stated in the Agreement.

What type of awards are there?

Modern awards can generally be divided into industry and/or occupational awards. Similarly, in the State System, there are industry and/or occupational awards, as well as occupational awards for a specific industry. Industry Awards can only cover a business that operates in the industry as defined by the Award. Occupational Awards aren’t specific to a particular industry, rather the duties and tasks an employee is undertaking in the business.

When determining award coverage, generally employers should start by checking if there is a relevant Industry Award that covers the business. Where there is no Industry Award applicable, the employer may need refer to an applicable Occupational Award. This could also be the case where there is an applicable Industry Award but where certain positions are not covered by the classifications in that particular Industry Award.

How do I find out which award covers my business and employees?

Determining the appropriate award can be challenging. The below steps can be used as a starting point when determining award coverage:

  1. The ‘coverage’ and ‘definitions’ clauses in Modern Awards will specify the industry and/or occupations the award applies to. In State Awards employers will need to refer to the ‘area’ and/or ‘scope’ clause. State System Employers should also refer to the ‘named respondents’ within the award for further clarification on the type of businesses covered by that award.
  2. Check to see if there are any exclusions to the application of the Award that may impact the award coverage
  3. Refer to the ‘classifications’ section of the Award to determine if there is an appropriate classification for the employee’s duties and tasks.

It is strongly recommended employers get advice from the Employee Relations Advice Centre to establish which award may best cover a business and employees.

Practical case example

The case of Mr James Kaufman v Jones Lang Lasalle (Vic) Pty Ltd[1], looked into the award coverage of a high-income earner in the position of ‘Director’ who claimed he had been unfairly dismissed. The employer claimed the employee could not access unfair dismissal based on the following:

  1. The employee earnt above the high-income threshold at the time.
  2. The employer did not have an Enterprise Agreement.
  3. The employee was not covered by a Modern Award because he was a senior manager in a large real estate and asset management business.

The Fair Work Commission (FWC) reached its conclusion that despite the title of ‘Director’, the employee did not have direct reports and selling real estate made up a large portion of his position duties. Based on these factors, the FWC found the employees duties corresponded to the duties set out in the Real Estate Industry Award 2010 classifications.

It was raised by the FWC that although an employee is earning a high-income salary, it does not automatically mean they are not covered by an Award. It should also be highlighted that although an employee has a specific ‘job title’ which suggests they may not be award covered, it comes down the specific duties that employee is undertaking as part of that role to determine whether they are award covered or not.

Want to know more? Contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com


[1] James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC 2623

CCIWA’s Getting Employment Right Hub

CCIWA has just launched a brand new employer support toolbox called the “Getting Employment Right Hub”. This hub contains free materials for employers across Western Australia with a focus on giving them the tools and access they need to get things right in the workplace.

In our Hub you can access many free materials including an eLearning course that guides you through Western Australia’s complex industrial relations systems and introduces you to 15 different State and Modern Awards. We encourage you to register for the eLearning and spend some time looking around the Hub as there is much more to find including free information sheets, FAQ’s, regional workshops and more. To access the hub go to: gettingemploymentright.cciwa.com

Trying out this free eLearning course is also a great way to get a taste of our new eLearning service available to all CCIWA/REEFWA members. We have an existing library of more than 80 unique eLearning modules, with more being added each month, that you can simply sign up for and allocate to your employees immediately. We can also design customised eLearning specific to your needs and your business using the same platform.

If you’d like to know more, we’d love to hear from you. Email CCIWA’s Learning Designer, Chris Nunn at chris.nunn@cciwa.com

Accessing your CCIWA Member Portal

As a member of REEFWA you also receive access to the Chamber of Commerce and Industry  of Western Australia (CCIWA) CCIWA’s Member Portal (www.cciwa.com)

Through CCIWA’s Member Portal you can access to a variety of content, including:

  • Business Toolbox – Business Toolbox is a library of information that you can browse through or search on a specific topic.
  • Access to member discounts on Events, Training, Publications and eLearning.
  • Access economic Information through our Business Confidence, Consumer Confidence and Economic Outlook.
  • Information on our advisory services through Workplace and Employment law, Workplace Health and Safety, International Trade Consulting and Construction Services.

If you are unsure of your login (This login is separate from REEFWA’s login), please use the forgot password option and enter in your username or email and you will be sent a new temporary password to use.

If you don’t believe you have a login, then go to login and use your email as your username and then enter any password, this will create an account for you and it will email you a temporary password to use, once you have logged in successfully, please choose a new password.

If you receive an error message that says, “this account already exits”, you will need to use the forgot password option, if any other error message appears then please contact REEFWA.

Please feel free to contact REEFWA on 9365 7510 or reefwa@cciwa.com for any issues with either your REEFWA or CCIWA login.

Mental Health in the Workplace

By Justin Lillyman

As an employer, it is highly likely you will manage an employee with a mental health issue at some point in your career.

Managing people is complex and challenging in itself. Managing staff with suspected or known mental health issues is even more demanding as you need to ensure you take a sensitive and effective approach that is consistent with legislative requirements.

Regular, open communication is important to staff wellbeing, you may wish to:

  • hold regular meetings with your employees;
  • arrange one-on-one check-ins once a day or more or more for those who need it;
  • try not to micromanage. Try to focus on and manage outcomes instead of daily tasks;
  • remember to celebrate wins—employees may be working under extra pressure to deliver them;
  • consider holding end of week gatherings or lunches for socialising;
  • create policy to limit the hours for sending and receiving emails; and
  • keep team check-ins upbeat and positive as a break from the circulation of negative information, and
    be kind.

If you believe an employee is struggling with mental health issues, there are number of measures you can take to support them.

  • Modify employee tasks. Perhaps move them to a different project, allow them to try something new or offer them smaller tasks instead.
  • Encourage your employee to talk with you about what supports are available.
  • Refer them to any support programs you may run such as an Employee Assistance Program. Guide staff who are needing extra help to talk to their GP or support services like Lifeline and Beyond Blue.

If you have any queries in relation to mental health in the workplace, please contact REEFWA via email: ReefWA@cciwa.com or on (08) 9365 7510,  in addition, for members, CCIWA has available a free Mental Health Toolkit.

Long Service Leave

By Justin Lillyman

Long service leave (LSL) is an entitlement unique to the Australian industrial relations system that has its origins in the colonial public services of Australia. LSL was awarded to long serving colony employees to enable them sufficient time to visit the United Kingdom.

Each State and Territory throughout Australia operates in accordance with its own unique LSL legislative provisions, and only have coverage in their respective State or Territory (as distinct from national coverage). In Western Australian LSL is governed by the Long Service Leave Act 1958 (WA) (LSL Act).

Where employees are covered by a modern award (I.e. Real Estate Industry Award 2020) or enterprise agreement that may contain specific provisions and/or entitlements to LSL, these terms apply subject to any terms contained in the LSL Act. This means that employers must consider the LSL entitlements in these industrial instruments in conjunction with those contained in the LSL Act and provide employees with the more beneficial entitlement. For example, an enterprise agreement may provide 13 weeks of LSL after a qualifying period of 7 years’ continuous service with the employer. The LSL Act, however, prescribes a LSL entitlement of 8 2/3 weeks after 10 years’ continuous service. As the former is more beneficial to the employee, they will receive the quantity of LSL prescribed in the enterprise agreement.

Where an employee is employed on a ‘commission only’ basis the employee’s ordinary time rate of pay for the purposes of LSL is the average weekly amount earned by the employee in the 12 months prior to the employee accessing their LSL entitlement. To calculate the average weekly rate of pay for a commission only employee, the commissions earned by the employee over the 12 months prior to the employee accessing their LSL entitlement are totalled and this figure is divided by 52 (as there are 52 weeks in a year). This rate should then be applied to the number of weeks LSL owing to the employee.

The REEFWA Contracts currently allow for the paying of long service leave in lieu of the entitlement being taken by mutual agreement between the Employee and Agent. This practice has been subject to contention as to whether LSL can be cashed out in advance of the entitlement coming due, however no definitive ruling by a tribunal or court has yet been made on the matter.  Please be aware that the McGowan State government has flagged possible legislative changes in the future banning the paying of LSL in advance of the entitlement coming due.

If you have any queries in relation to LSL, please contact REEFWA via email: ReefWA@cciwa.com or on (08) 9365 7510,  in addition, CCIWA has available a LSL Guide for $253.00.

Police Clearances

James Linn Employee Relations Adviser A National Police Clearance is a summary of a person’s police history in Australia. It is a list of a person’s disclosable court outcomes and includes any pending charges from all jurisdictions across the country. Conducting a police clearance on a potential new employee is often a staple part of […]

This post is only available to members.

Casual Employment Information Sheet

The Fair Work Act 2009 (Act)was recently revised to include a statutory definition of a “casual employee”. Under this definition, a person will be classified as a “casual employee” if the person has been offered employment without a “firm advance commitment to continuing and indefinite work according to an agreed pattern of work” and the person […]

This post is only available to members.

Trainee Contract

REEFWA has recently included a Trainee Contact of employment to its suite of contracts of employment on the member website. It is noted that, the Australian Government has introduced a new wage subsidy to support businesses and Group Training Organisations employ new apprentices and trainees. Find out more about the scheme and what it means […]

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Please Note! - The Membership fees will pro-rata depending on the day you join, to get today's rate please contact us on 9365 7510.