Employment contract claims in Western Australia

Employment contract claims in the WA Industrial Relations Commission

In addition to its powers to deal with certain unfair dismissal claims, the Western Australian Industrial Relations Commission is conferred with the power by section 29 (1) of the Industrial Relations Act 1979 (WA) to deal with

“(b)         in the case of a claim by an employee —

(ii)         that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,

by the employee.”

This is known as the denied contractual benefit jurisdiction of the Commission and is widely accessed by Western Australian employees who may pursue claims for benefits to which they are entitled under their written and unwritten contracts of employment which have not be paid by their employers. There is a 6 year limitation period.

Sec 26 of the Fair Work Act 2009 (Commonwealth) provides that the Act overrides State and Territory industrial laws which would otherwise apply to a national system employer or employee, which are defined to include general State industrial laws  which apply to employment generally plus a number of individually addressed employment laws including a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment or another arrangement from employment that a court or tribunal finds is unfair.

Thus any unfair contracts’ jurisdictions of the States are rendered invalid to the extent to which they would otherwise apply to national system employers and employees.

Sec 27(2)(o) of the Fair Work Act provides however that certain “non-excluded matters” such as workers compensation and occupational health and safety laws  of the States and Territories are not rendered invalid (and thus are preserved) including claims for enforcement of contracts of employment other than those provided for in sub-sec 26(2)(e) namely State and Territory laws which provide for the variation and setting aside of unfair contracts and their terms.

In Triantopolous v Shell Company of Australia Ltd (2011) WAIRC 4 delivered on 7 January 2011 per Scott ASC (as she then was) held that claims for denied contractual benefits, which are the exercise of judicial functions in the Western Australian Industrial Relations Commission are not “excluded matters” within the meaning of sec 26 Of the Fair Work Act and the State Commission’s jurisdiction is thus not struck down by the Fair Work Act.