IR and ER for WA local governments transferred to WA Commission

On 1 January 2023 most of the employment and industrial relations affairs of Western Australian local governments were transferred from the supervision and jurisdiction of the Fair Work Commission to the Western Australian Industrial Relations Commission; this was achieved by a combination of federal and Western Australian regulations effectively defenestrating them as national system employers. One of the objectives of the legislation, for example particularly of interest to members of WALGA,  is to remove the absurd difficulties of determining which local governments in WA are  covered by the State system and which were not.

see https://www.commerce.wa.gov.au/publications/local-government-employers-transferred-state-industrial-relations-system

And see

fact_sheet_-_local_government_employers_transferred_to_the_state_system_0 (002)

Accordingly, as it seems to me, the effect of all of this is that the WAIRC now has jurisdiction over unfair dismissal cases brought against Western Australian local governments after 1 January 2023 (referred to in the regulations as the “endorsement date”). This is achieved by a process in the following federal regulations of distinguisging between applications already commenced in the Fair Work Commission and claims made after 1 January. The Fair Work Amendment (Transitional Arrangements – Western Australian Local Government Employers and Employees) Regulations 2022 (Cth) (Federal Transitional Regulations) were made on 15 December 2022. Those federal regulations preserve the following Fair Work Commission (FWC) applications:

  • Part 2-2 – The National Employment Standards
  • Part 3-2 – Unfair Dismissal
  • Part 3-5 – Stand Down
  • Part 6-2 – Dealing with Disputes.

This means that the FWC can continue to deal with applications made under these parts of the FW Act, including to hear a matter:

  • which was filed before 1 January 2023 which includes any appeal made under s.604 of the FW Act; and
  • where the conduct occurred prior to 1 January 2023; for example, if an employee was dismissed on 22 December 2022, he or she would be able to commence the claim in the FWC.

Continuty of entitlements are preserved by the legislation.

What is not entirely clear to me at least though is the issue of the coverage of the federal general protections given that they apply to inter alia national system employers. Last year the WA government enacted statutory protections equivalent to the general protections of the Fair Work Act and it must be thought that by denying WA local governments potential status as national system employers the default provisions of the State legislation from last year will automatically kick in.

I wonder?