Minimum Conditions of Employment Act 1993 03-a0-02 Xml


		Reprinted under the Reprints Act 1984 as at 5 May 2006

Western Australia

Minimum Conditions of Employment Act 1993

An Act to provide for minimum conditions of employment for employees in Western Australia and for related purposes.

Part 1 — Preliminary

1.Short title

This Act may be cited as the Minimum Conditions of Employment Act 1993 1.

2.Commencement

This Act comes into operation on the day on which the Workplace Agreements Act 1993 comes into operation 1.

3. Terms used in this Act

(1)In this Act, unless the contrary intention appears —

“apprentice” has the same meaning as in the IR Act;

“award” means an award made under the IR Act and includes any industrial agreement or order of the Commission under that Act;

“casual employee” means an employee who is employed on the basis that —

(a)the employment is casual; and

(b)there is no entitlement to paid leave,

and who is informed of those conditions of employment before he or she is engaged;

“employee” means a person who is an employee within the meaning of the IR Act, but does not include a person who belongs to a class of persons prescribed by the regulations as persons not to be treated as employees for the purposes of this Act;

“employer” has the same meaning as in the IR Act;

“employer‑employee agreement” means an employer‑employee agreement under Part VID of the IR Act;

“IR Act” means the Industrial Relations Act 1979;

“medical practitioner” means a person who is registered under the Medical Act 1894 and who has a current entitlement to practise under that Act;

“minimum condition of employment” means —

(a)a rate of pay prescribed by this Act;

(b)a requirement as to pay, other than a rate of pay, prescribed by this Act;

(c)a condition for leave prescribed by this Act;

(d)the use, in manner prescribed by this Act, of a condition for leave prescribed by this Act; or

(e)a condition prescribed by Part 5;

“trainee” has the same meaning as in the IR Act.

(2)In this Act a reference to a period worked does not include a reference to a period outside the hours the employee was required ordinarily to work during which the employee was on call.

(3) For the purposes of subsection (2), the employee was “on call” in a period if, in that period the employee was required —

(a)to remain at his or her place of employment; or

(b)to be available to undertake duties of employment,

but was not required to undertake any other duty of employment.

[Section 3 amended by No. 79 of 1995 s. 66(5); No. 58 of 1996 s. 4; No. 20 of 2002 s. 22(2), 164 and 177; No. 28 of 2003 s. 144; amended in Gazette 15 Aug 2003 p. 3688.]

4.Application to Crown

This Act binds the Crown.

Part 2 — Application of minimum conditions

5.Minimum conditions implied in awards etc.

(1)The minimum conditions of employment extend to and bind all employees and employers and are taken to be implied —

[(a)deleted]

(aa)in any employer‑employee agreement;

(b)in any award; or

(c)if a contract of employment is not governed by an employer‑employee agreement or an award, in that contract.

(2) A provision in, or condition of, an employer‑employee agreement, an award or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect.

(3) A provision in, or condition of, an agreement or arrangement that purports to exclude the operation of this Act has no effect, but without prejudice to other provisions or conditions of the agreement or arrangement.

(4) A purported waiver of a right under this Act has no effect.

(5) This section has effect subject to sections 8 and 9(1).

[Section 5 amended by No. 20 of 2002 s. 22(3)‑(4); amended in Gazette 15 Aug 2003 p. 3688.]

6.Application offshore

(1)Where under section 3 of the IR Act that Act applies to and in relation to employers and employees in any industry carried on wholly or partly in an offshore area —

(a)this Act applies to those employers and employees; and

(b)subsection (4) of that section applies with all necessary changes for the purposes of this Act.

(2) In subsection (1), “offshore area” means the areas referred to in section 3(3) of the IR Act.

[Section 6 amended by No. 20 of 2002 s. 177.]

7.Enforcement of minimum conditions

A minimum condition of employment may be enforced —

(a)under section 102 of the Labour Relations Reform Act 2002;

(aa)where the condition is implied in an employer‑employee agreement, under section 83 of the IR Act;

(b)where the condition is implied in an award, under Part III of the IR Act; or

(c)where the condition is implied in a contract of employment, under section 83 of the IR Act as if it were a provision of an award, industrial agreement or order other than an order made under section 32 or 66 of that Act.

[Section 7 amended by No. 20 of 2002 s. 22(5) and 177; amended in Gazette 15 Aug 2003 p. 3688.]

8.Limited contracting‑out of annual leave conditions

(1)An employer and employee may agree that the employee may forgo up to 50% of his or her entitlement to annual leave under Division 3 of Part 4 if —

(a)the employee is given an equivalent benefit in lieu of the entitlement; and

(b)the agreement is in writing.

(2)An agreement referred to in subsection (1) is of no effect if the employer’s offer of employment was made on the condition that the employee would be required to enter into the agreement.

[Section 8 amended by No. 20 of 2002 s. 165(1) and (2).]

9.Limited contracting‑out of minimum wage entitlement

(1)An employer and an employee may agree that the employee is entitled to some other weekly rate of pay instead of the minimum weekly rate of pay that is applicable to the employee under section 12, 13, 14 or 15 if —

(a)the employee is either permanently or temporarily mentally or physically disabled; and

(b)the agreement is in writing.

(2) Nothing in subsection (1) is to be taken to give a person capacity to enter into a contract if in law he or she lacks that capacity.

[Section 9 amended by No. 20 of 2002 s. 166.]

Part 3 — Minimum rates of pay

[Heading inserted by No. 20 of 2002 s. 167.]

10.Entitlement of employees to be paid a minimum rate of pay

An employee is entitled to be paid, for each hour worked by the employee in a week, the minimum weekly rate of pay applicable to the employee under section 12, 13, 14 or 15, divided by 38.

[Section 10 inserted by No. 20 of 2002 s. 167.]

11.Minimum rate of pay for casual employees includes a loading

(1)A casual employee is entitled to be paid the amount which he or she is entitled to be paid under section 10 plus the prescribed percentage of that amount.

(2)In subsection (1) —

“prescribed percentage” means —

(a)20%; or

(b)if a percentage higher than 20% is set by order under section 51I of the IR Act for the purposes of this section, that percentage.

[Section 11 inserted by No. 20 of 2002 s. 167.]

12.Minimum weekly rate of pay for employees aged 21 or more

The minimum weekly rate of pay applicable at a particular time to an employee —

(a)who has reached 21 years of age; and

(b)who is not an apprentice or trainee,

is the rate in effect at that time under section 51F of the IR Act in relation to employees who have reached 21 years of age and who are not apprentices or trainees.

[Section 12 inserted by No. 20 of 2002 s. 167.]

13.Minimum weekly rate of pay for employees aged under 21

The minimum weekly rate of pay applicable at a particular time to an employee —

(a)who is of the age mentioned in the first column in the Table to this section; and

(b)who is not an apprentice or trainee,

is the percentage, set out opposite that age in the second column in the Table, of the rate referred to in section 12 in effect at that time, rounded up to the nearest 10 cents.

Table

Age	Percentage of 21 year old rate
20 years	90%
19 years	80%
18 years	70%
17 years	60%
16 years	50%
Under 16 years	40%

[Section 13 inserted by No. 20 of 2002 s. 167.]

14.Minimum weekly rates of pay for apprentices

The minimum weekly rate of pay applicable at a particular time to an employee who is an apprentice —

(a)in the case where a rate is in effect at that time under section 51F of the IR Act in relation to the class of apprentice to which the employee belongs, is that rate;

(b)otherwise, is the rate in effect at that time under section 51F of the IR Act in relation to apprentices generally.

[Section 14 inserted by No. 20 of 2002 s. 167.]

15.Minimum weekly rates of pay for trainees

The minimum weekly rate of pay applicable at a particular time to an employee who is a trainee —

(a)in the case where a rate is in effect at that time under section 51F of the IR Act in relation to the class of trainee to which the employee belongs, is that rate;

(b)otherwise, is the rate in effect at that time under section 51F of the IR Act in relation to trainees generally.

[Section 15 inserted by No. 20 of 2002 s. 167.]

[16-17.Repealed by No. 20 of 2002 s. 167.]

Part 3A — Other requirements as to pay

[Heading inserted by No. 79 of 1995 s. 66(6).]

17A. Terms used in Part 3A

(1)A reference in this Part to an employee includes a reference to any person in any manner employed for wages in work of any kind or in manual labour.

(2) In subsection (1), “wages” includes any money or thing had or contracted to be paid, delivered, or given as a recompense, reward, or remuneration.

(3) A reference in this Part to the contract of employment only applies if the contract is in writing.

[Section 17A inserted by No. 79 of 1995 s. 66(6).]

17B. Employee not to be compelled to accept other than money for pay etc.

(1)An employee is not to be directly or indirectly compelled by an employer to accept —

(a)goods of any kind; or

(b)accommodation or other services of any kind,

instead of money as any part of his or her pay unless this is authorised or required under the employer‑employee agreement, award or contract of employment or under a written law.

(2) An employee is not to be directly or indirectly compelled by an employer to spend any part of his or her pay in a particular way.

(3) In proceedings by an employee for recovery of any amount due as his or her pay —

(a)anything given or provided by the employer contrary to subsection (1) is to be treated as if it had never been given or provided;

(b)any amount that the employee has been compelled to spend contrary to subsection (2) is to be treated as if it had never been paid to the employee.

[Section 17B inserted by No. 79 of 1995 s. 66(6); amended by No. 20 of 2002 s. 22(7); amended in Gazette 15 Aug 2003 p. 3688.]

17C. Employee’s pay, methods of payment

(1)To the extent that an employee receives his or her pay in money the employee is entitled to be paid in full and payment is to be made —

(a)in cash;

(b)by cheque, postal order or money order payable to the employee;

(c)by payment into an account, specified by the employee, with a bank or financial institution; or

(d)in any other manner authorised or required under the employer‑employee agreement, award or contract of employment.

(2) In the case of any employee who is not employed by the Crown, payment can be made under subsection (1)(b) or (c) if, and only if, the employee so authorises.

[Section 17C inserted by No. 79 of 1995 s. 66(6); amended by No. 20 of 2002 s. 22(7); amended in Gazette 15 Aug 2003 p. 3688.]

17D. Authorised deductions from pay

(1)Despite section 17C, an employer may deduct from an employee’s pay —

(a)an amount the employer is authorised, in writing, by the employee to deduct and pay on behalf of the employee;

(b)an amount the employer is authorised to deduct and pay on behalf of the employee under the employer‑employee agreement, award or contract of employment; and

(c)an amount the employer is authorised or required to deduct by order of a court or under a law of the State or the Commonwealth.

(2) The employee is entitled to have any amount so deducted paid by the employer in accordance with the employee’s instructions or in accordance with the requirements of the employer‑employee agreement, award, contract of employment, court order or law of the State or the Commonwealth (as the case may be).

(3) Nothing in this section requires an employer to make deductions requested by an employee.

(4) An employee may, by giving written notice to the employer, withdraw an authorisation under subsection (1)(a).

[Section 17D inserted by No. 79 of 1995 s. 66(6); amended by No. 20 of 2002 s. 22(7); amended in Gazette 15 Aug 2003 p. 3688.]

Part 4 — Minimum leave conditions

Division 1 — Preliminary

18. Paid leave, how pay calculated

(1)Where leave is paid leave, payment is to be made at the rate the employee would have received as his or her payment at the time the leave is taken under the employer‑employee agreement, award or contract of employment.

(2) If the number of hours for which an employee is entitled to be paid for a period of leave cannot be determined under subsection (1), the total number of hours worked under the employer‑employee agreement, award or contract of employment in the 52 weeks immediately before the time the leave is taken are to be averaged as hours worked each week for the purpose of payment for the leave.

(3) Payment for overtime, penalty rates or any kind of allowance is not required to be taken into account in determining any rate of payment for the purposes of this section.

(4) Matters in relation to payment for leave under this Part or Part 5 may be prescribed by the regulations.

[Section 18 amended by No. 20 of 2002 s. 22(7); amended in Gazette 15 Aug 2003 p. 3688.]

Division 2 — Leave for illness or injury

19. Paid sick leave, entitlement to

(1)Subject to sections 20 and 22, an employee, other than a casual employee, who is unable to work as a result of the employee’s illness or injury, is entitled to paid leave each year for periods of absence from work resulting from the illness or injury for the number of hours the employee is required ordinarily to work in a 2 week period during that year, up to 76 hours.

(2) An entitlement under subsection (1) accrues pro rata on a weekly basis.

(3) In subsection (1), “year” does not include any period of unpaid leave.

[Section 19 amended by No. 20 of 2002 s. 169(1).]

20. Paid sick leave entitlement, exceptions

If an employee’s illness or injury is attributable to —

(a)the employee’s serious and wilful misconduct; or

(b)the employee’s gross and wilful neglect,

in the course of his or her employment, the employee is not entitled to be paid for his or her absence from work resulting from the illness or injury.

20A. Sick leave, employee may use portion of to care for sick relative etc.

(1)An employee is entitled to use, each year, up to 5 days of the employee’s entitlement under section 19(1) for that year to be the primary care giver of a member of the employee’s family or household who is ill or injured and in need of immediate care and attention.

(2)In subsection (1) —

“member of the employee’s family” means any of the following persons —

(a)the employee’s spouse or de facto partner;

(b)a child for whom the employee has parental responsibility as defined by the Family Court Act 1997;

(c)an adult child of the employee;

(d)a parent, sibling or grandparent of the employee.

[Section 20A inserted by No. 20 of 2002 s. 170; amended by No. 28 of 2003 s. 145.]

21.Certain matters as to sick leave not minimum conditions

Nothing in this Division requires —

(a)an employee’s untaken entitlement under section 19(1) or 20A(1) to be carried over from the year in which the entitlement arose to the next year;

(b)an entitlement under section 19(1) or 20A(1) to be taken as a whole working day; or

(c)an employer to pay an employee in lieu of the employee’s untaken entitlement under section 19(1), on the termination of the employee’s employment.

[Section 21 inserted by No. 20 of 2002 s. 171.]

22. Employee to prove entitlements under this Division

An employee who claims to be entitled —

(a)to paid leave under section 19(1); or

(b)to use the employee’s entitlement under section 19(1) to care for a person in accordance with section 20A(1),

is to provide to the employer evidence that would satisfy a reasonable person of the entitlement.

[Section 22 inserted by No. 20 of 2002 s. 172.]

Division 3 — Annual leave

23.Paid annual leave , entitlement to

(1)An employee, other than a casual employee, is entitled for each year of service, to paid annual leave for the number of hours the employee is required ordinarily to work in a 4 week period during that year, up to 152 hours.

(2) An entitlement under subsection (1) accrues pro rata on a weekly basis.

(3) In subsection (1), “year” does not include any period of unpaid leave.

(4) Subsection (1) does not apply to an employee of a class prescribed by the regulations.

[Section 23 amended by No. 20 of 2002 s. 173(1).]

24.Annual leave payments, when to be made

(1)An employee is to be paid for a period of annual leave at the time payment is made in the normal course of the employment, unless the employee requests in writing that he or she be paid before the period of leave commences in which case the employee is to be so paid.

(2) If —

(a)an employee lawfully leaves his or her employment; or

(b)an employee’s employment is terminated by the employer through no fault of the employee,

before the employee has taken annual leave to which he or she is entitled, the employee is to be paid for all of that annual leave.

(3) If —

(a)an employee leaves his or her employment; or

(b)that employment is terminated by the employer,

in circumstances other than those referred to in subsection (2) before the employee has taken annual leave to which he or she is entitled, the employee is to be paid for any untaken leave that relates to a completed year of service, except that if the employee is dismissed for misconduct, the employee is not entitled to be paid for any untaken leave that relates to a year of service that was completed after the misconduct occurred.

(4) In this section —

“year” does not include any period of unpaid leave.

[Section 24 amended by No. 3 of 1997 s. 39.]

25.Annual leave, when may be taken

(1)Where an employer and an employee have not agreed when the employee is to take his or her annual leave, subject to subsection (2), the employer is not to refuse the employee taking, at any time suitable to the employee, any period of annual leave the entitlement to which accrued more than 12 months before that time.

(2) The employee is to give the employer at least 2 weeks’ notice of the period during which the employee intends to take his or her leave.

26.General Order as to annual leave of no effect

The General Order prescribing minimum conditions as to annual leave under section 50(5) of the IR Act in force at the commencement of this Act is of no effect after the commencement.

[Section 26 amended by No. 20 of 2002 s. 177.]

Division 4 — Bereavement leave

27.Paid bereavement leave , entitlement to

(1)Subject to section 28, on the death of —

(a)the spouse or de facto partner of an employee;

(b)the child or step‑child of an employee;

(c)the parent or step‑parent of an employee; or

(d)any other person who, immediately before that person’s death, lived with the employee as a member of the employee’s family,

the employee is entitled to paid bereavement leave of up to 2 days.

(2) The 2 days need not be consecutive.

(3)Bereavement leave is not to be taken during a period of any other kind of leave.

[Section 27 amended by No. 28 of 2003 s. 146.]

28.Proof of entitlement may be required

An employee who claims to be entitled to paid leave under section 27(1) is to provide to the employer, if so requested by the employer, evidence that would satisfy a reasonable person as to —

(a)the death that is the subject of the leave sought; and

(b)the relationship of the employee to the deceased person.

Division 5 — Public holidays

29. Terms used in Division 5

In this Division —

“public holiday”, in respect of an area in the State, means a day mentioned in Schedule 1 that is a public holiday in that area.

30.Public holidays , entitlement to pay for

An employee, other than a casual employee, who in any area of the State is not required to work on a day solely because that day is a public holiday in that area, is entitled to be paid as if he or she were required to work on that day.

31.Penalty rates for work on public holidays not a minimum condition

Section 30 is not to be read as requiring an employer to pay a penalty rate in respect of work done on a public holiday.

Division 6 — Parental leave

32. Terms used in Division 6

In this Division —

“adoption”, in relation to a child, is a reference to a child who —

(a)is not the child or the step‑child of the employee or the employee’s spouse or de facto partner;

(b)is less than 5 years of age; and

(c)has not lived continuously with the employee for 6 months or longer;

“continuous service” means service under an unbroken contract of employment and includes —

(a)any period of parental leave; and

(b)any period of leave or absence authorised by the employer or by an employer‑employee agreement, an award, a contract of employment or this Act;

“expected date of birth” means the day certified by a medical practitioner to be the day on which the medical practitioner expects the employee or the employee’s spouse or de facto partner, as the case may be, to give birth to a child;

“parental leave” means leave provided for by section 33(1).

[Section 32 amended by No. 20 of 2002 s. 22(6); No. 28 of 2003 s. 147; amended in Gazette 15 Aug 2003 p. 3688.]

33. Unpaid parental leave, entitlement to

(1)Subject to sections 35, 36(1) and 37(1), an employee, other than a casual employee, is entitled to take up to 52 consecutive weeks of unpaid leave in respect of —

(a)the birth of a child to the employee or the employee’s spouse or de facto partner; or

(b)the placement of a child with the employee with a view to the adoption of the child by the employee.

(2) An employee is not entitled to take parental leave unless he or she —

(a)has, before the expected date of birth or placement, completed at least 12 months’ continuous service with the employer; and

(b)has given the employer at least 10 weeks’ written notice of his or her intention to take the leave.

(3)An employee is not entitled to take parental leave at the same time as the employee’s spouse or de facto partner but this subsection does not apply to one week’s parental leave taken by the employee and the employee’s spouse or de facto partner immediately after —

(a)the birth of the child; or

(b)a child has been placed with them with a view to their adoption of the child.

(4)The entitlement to parental leave is reduced by any period of parental leave taken by the employee’s spouse or de facto partner in relation to the same child, except the period of one week’s leave referred to in subsection (3).

[Section 33 amended by No. 28 of 2003 s. 148 and 150.]

34.Maternity leave to start 6 weeks before birth

A female employee who is pregnant and has given notice of her intention to take parental leave is to start the leave 6 weeks before the expected date of birth unless in respect of any period closer to the expected date of birth a medical practitioner has certified that the employee is fit to work.

[Section 34 amended by No. 28 of 2003 s. 149.]

35. Employee to prove entitlement to parental leave

An employee who has given notice of his or her intention to take parental leave, other than for adoption, is to provide to the employer a certificate from a medical practitioner stating that the employee or the employee’s spouse or de facto partner, as the case may be, is pregnant and the expected date of birth.

[Section 35 amended by No. 28 of 2003 s. 150.]

36. Employee to notify employer of spouse’s parental leave

(1)An employee who has given notice of his or her intention to take parental leave or who is actually taking parental leave is to notify the employer of particulars of any period of parental leave taken or to be taken by the employee’s spouse or de facto partner in relation to the same child.

(2)Any notice given under subsection (1) is to be supported by a statutory declaration by the employee as to the truth of the particulars notified.

[Section 36 amended by No. 28 of 2003 s. 150.]

37.Parental leave period, notice to employer of etc.

(1)An employee who has given notice of his or her intention to take parental leave is to notify the employer of the dates on which the employee wishes to start and finish the leave.

(2) An employee who is taking parental leave is to notify the employer of any change to the date on which the employee wishes to finish the leave.

(3) The starting and finishing dates of a period of parental leave are to be agreed between the employee and employer.

38.Return to work after parental leave

(1)On finishing parental leave, an employee is entitled to the position he or she held immediately before starting parental leave.

(2) If the position referred to in subsection (1) is not available, the employee is entitled to an available position —

(a)for which the employee is qualified; and

(b)that the employee is capable of performing,

most comparable in status and pay to that of his or her former position.

(3) Where, immediately before starting parental leave, an employee was acting in, or performing on a temporary basis the duties of, the position referred to in subsection (1), that subsection applies only in respect of the position held by the employee immediately before taking the acting or temporary position.

39.Effect of parental leave on service record

Absence on parental leave —

(a)does not break the continuity of service of an employee; and

(b)is not to be taken into account when calculating the period of service for a purpose of a relevant employer‑employee agreement, award or contract of employment.

[Section 39 amended by No. 20 of 2002 s. 22(7); amended in Gazette 15 Aug 2003 p. 3688.]

Part 5 — Minimum conditions for employment changes with significant effect, and redundancy

40. Terms used in Part 5

(1)In this Part —

“employee” does not include a casual employee or an apprentice or trainee;

“redundant” means being no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person.

(2) For the purposes of this Part, an action of an employer has a significant effect on an employee if —

(a)there is to be a major change in the —

(i)composition, operation or size of; or

(ii)skills required in,

the employer’s work‑force that will affect the employee;

(b)there is to be elimination or reduction of —

(i)a job opportunity;

(ii)a promotion opportunity; or

(iii)job tenure,

for the employee;

(c)the hours of the employee’s work are to significantly increase or decrease;

(d)the employee is to be required to be retrained;

(e)the employee is to be required to transfer to another job or work location; or

(f)the employee’s job is to be restructured.

[Section 40 amended by No. 20 of 2002 s. 174.]

41.Employee to be informed

(1)Where an employer has decided to —

(a)take action that is likely to have a significant effect on an employee; or

(b)make an employee redundant,

the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).

(2) The matters to be discussed are —

(a)the likely effects of the action or the redundancy in respect of the employee; and

(b)measures that may be taken by the employee or the employer to avoid or minimize a significant effect,

as the case requires.

42.Employer not bound to disclose prejudicial information

Nothing in this Act requires an employer, when providing information or holding a discussion under section 41(1) to disclose information that may seriously harm —

(a)the employer’s business undertaking; or

(b)the employer’s interest in the carrying on, or disposition, of the business undertaking.

43.Paid leave for job interviews , entitlement to

(1)An employee, other than a seasonal worker who has been informed that he or she has been, or will be, made redundant is entitled to paid leave of up to 8 hours for the purpose of being interviewed for further employment.

(2) The 8 hours need not be consecutive.

(3) An employee who claims to be entitled to paid leave under subsection (1) is to provide to the employer evidence that would satisfy a reasonable person of the entitlement.

(4) Payment for leave under subsection (1) is to be made in accordance with section 18.

[Section 43 amended by No. 20 of 2002 s. 175.]

Part 6 — Keeping of records

44.Employment records to be kept by employer

(1)Subsection (2) does not apply to an employee during any period when the employee’s contract of employment is governed by an employer‑employee agreement or an award.

(2) An employer must ensure that details are recorded of —

(a)the employee’s name and, if the employee is under 21 years of age, his or her date of birth;

(aa)the date on which the employee commenced employment with the employer;

(ab)the total number of hours worked by the employee in each week of the employee’s employment with the employer unless the employee’s contract of employment provides for an annual salary exceeding $45 000 or the salary specified, or worked out in a manner specified, by the regulations;

(b)the gross and net amounts paid to the employee under the contract of employment, and all deductions and the reasons for them;

(c)all leave taken by the employee, whether paid, partly paid or unpaid;

(ca)such details as are necessary for the calculation of the entitlement to, and payment for, long service leave under the Long Service Leave Act 1958; and

(d)other matters prescribed by the regulations.

(3) The employer must ensure that —

(a)the records are kept in accordance with the regulations; and

(b)each entry in relation to long service leave is retained during the employment of the employee and for not less than 7 years thereafter, and any other entry is retained for not less than 7 years after it is made.

Penalty: $5 000.

[Section 44 amended by No. 79 of 1995 s. 64; No. 20 of 2002 s. 22(7) and 176; amended in Gazette 15 Aug 2003 p. 3688.]

45.Access to records kept by employer

(1)An employer, on request in writing by a relevant person, must —

(a)produce to the person the records under section 44 relating to an employee to whom that section applies; and

(b)let the person inspect the records.

Penalty: $5 000.

(2)Relevant persons are —

(a)the employee or a person authorised in writing by the employee; and

(b)an industrial inspector under the IR Act.

(3)The duty placed on an employer by subsection (1) —

(a)continues so long as the record is required to be kept under section 44(3)(b);

(b)is not affected by the fact that the employee is no longer employed by the employer;

(c)includes the further duties —

(i)to let the relevant person enter premises of the employer for the purposes of inspection of the records; and

(ii)to let the relevant person take copies of or extracts from the records;

and

(d)must be complied with not later than the end of the next pay period after the request for inspection is received.

[Section 45 amended by No. 20 of 2002 s. 177.]

46.Enforcement

(1)Subject to section 19(1) of the Children’s Court of Western Australia Act 1988, an industrial magistrate’s court established under Part III of the IR Act has jurisdiction to hear and determine a charge of an offence under this Part and that jurisdiction is exclusive of any other court except where an appeal lies to that other court.

(2)Part 2 of the Criminal Appeals Act 2004 applies in respect of decisions of an industrial magistrate’s court made under subsection (1).

[Section 46 amended by No. 20 of 2002 s. 177; No. 59 of 2004 s. 141; No. 84 of 2004 s. 78.]

Part 7 — Regulations

47.Regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

Schedule 1

[Section 29]

Public holidays

The following are public holidays —

New Year’s Day.

Australia Day.

Labour Day.

Good Friday.

Easter Monday.

Anzac Day.

Foundation Day.

Celebration Day for the anniversary of the birthday of the reigning Sovereign (the day appointed by proclamation published in the Gazette under the Public and Bank Holidays Act 1972).

Christmas Day.

Boxing Day.

[Schedule 1 amended by No. 74 of 2003 s. 84.]

Notes

1This reprint is a compilation as at 5 May 2006 of the Minimum Conditions of Employment Act 1993 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Minimum Conditions of Employment Act 1993	14 of 1993	23 Nov 1993	1 Dec 1993 (see s. 2 and Gazette 30 Nov 1993 p. 6439)
Industrial Relations Legislation Amendment and Repeal Act 1995 s. 64 and 66(5) and (6)	79 of 1995	16 Jan 1996	s. 64: 16 Jan 1996 (see s. 3(1)); s. 66(5) and (6): 18 May 1996 (see s. 3(2) and Gazette 14 May 1996 p. 2019)
Minimum Conditions of Employment Amendment Act 1996	58 of 1996	11 Nov 1996	1 Dec 1993 (see s. 3)
Labour Relations Legislation Amendment Act 1997 s. 39	3 of 1997	23 May 1997	23 May 1997 (see s. 2(1))
Reprint of the Minimum Conditions of Employment Act 1993 as at 4 Jun 1997 (includes amendments listed above)
Labour Relations Reform Act 2002 s. 22 and Pt. 10 Div. 1 2, 3, 4, 5	20 of 2002	8 Jul 2002	Pt. 10 Div. 1: 1 Aug 2002 (see s. 2 and Gazette 26 Jul 2002 p. 3459); s. 22: 15 Sep 2002 (see s. 2 and Gazette 6 Sep 2002 p. 4487)
Reprint of the Minimum Conditions of Employment Act 1993 as at 4 Oct 2002 (includes amendments listed above)
Acts Amendment (Equality of Status) Act 2003 Pt. 45	28 of 2003	22 May 2003	1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579)
Labour Relations Reform (Consequential Amendments) Regulations 2003 r. 9 published in Gazette 15 Aug 2003 p. 3685‑92			15 Sep 2003 (see r. 2)
Statutes (Repeals and Minor Amendments) Act 2003 s. 84	74 of 2003	15 Dec 2003	15 Dec 2003 (see s. 2)
Courts Legislation Amendment and Repeal Act 2004 s. 141	59 of 2004	23 Nov 2004	1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 78 6	84 of 2004	16 Dec 2004	2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))
Reprint 3: The Minimum Conditions of Employment Act 1993 as at 5 May 2006 (includes amendments listed above)

2The Labour Relations Reform Act 2002 s. 165(3)‑(5) reads as follows:

“

(3)An agreement continues to have effect on and from the commencement day in respect of the employee’s entitlement to annual leave that accrued before the commencement day as if former section 8 had not been amended by this Act.

(4)An agreement that provides for the foregoing of the employee’s entitlement to annual leave that would have accrued after the commencement day if former section 8 had not been amended by subsection (1) has effect on and from the commencement day as if it provided for the foregoing of 50% of that entitlement.

(5)In this section —

“agreement” means an agreement —

(a)under former section 8 for an employee to forgo his or her entitlement to annual leave; and

(b)that is in effect immediately before the commencement day;

“commencement day” means the day on which subsection (1) comes into operation;

“former section 8” means section 8 of the Minimum Conditions of Employment Act 1993 as it was in effect immediately before the commencement day.

”.

3The Labour Relations Reform Act 2002 s. 167 repealed the former Part 3 (including the former s. 15 relating to minimum rates of pay). Section 168 and Sch. 1 of that Act read as follows:

“

168.Transitional provisions for minimum weekly rates of pay

(1)A minimum weekly rates of pay order under section 15 of the Minimum Conditions of Employment Act 1993 that has effect immediately before the commencement of Part 10 of the Labour Relations Reform Act 2002 has no effect after that commencement.

(2)Schedule 1 and subsections (3) and (4) have effect for the period commencing immediately after the commencement of Part 10 of the Labour Relations Reform Act 2002 and ending when the first order under section 51F(1) of the Industrial Relations Act 1979 has effect.

(3)Schedule 1 clause 2 has the same effect as if it were a provision of an order under section 51F(1) of the Industrial Relations Act 1979 setting the minimum weekly rate of pay in relation to employees who have reached 21 years of age and who are not apprentices or trainees.

(4)Schedule 1 clause 4 has the same effect as if it were a provision of an order under section 51F(1) of the Industrial Relations Act 1979 setting the minimum weekly rate of pay in relation to apprentices and trainees.

Schedule 1 — Transitional minimum weekly rates of pay

[s. 168]

1.Interpretation

Unless the contrary intention appears, words and expressions used in this Schedule have the same respective meanings as they have in the Minimum Conditions of Employment Act 1993.

2.Minimum weekly rate of pay for employees 21 or more years of age

The minimum weekly rate of pay applicable at a particular time to employees who have reached 21 years of age but who are not apprentices or trainees is the rate for the minimum adult weekly award wage for employees who have reached 21 years of age and who are not apprentices or trainees, as provided for in the General Order made under section 51(2) of the Industrial Relations Act 1979 that is in effect at that time.

3.Minimum weekly rate of pay for employees less than 21 years of age

(1)The minimum weekly rate of pay applicable at a particular time to employees who are of the age mentioned in the first column in the Table to this subclause but who are not apprentices or trainees is the percentage, set out opposite that age in the second column in the Table of the rate referred to in clause 2 in effect at that time, rounded up to the nearest 10 cents.

Table

Age	Percentage of 21 year old rate
20 years	90%
19 years	80%
18 years	70%
17 years	60%
16 years	50%
under 16 years	40%

(2)Subclause (1) is for information only and if there is any inconsistency between subclause (1) and section 13 of the Minimum Conditions of Employment Act 1993, the section prevails.

4.Minimum weekly rate of pay for apprentices and trainees

(1)The minimum weekly rate of pay for an apprentice or trainee in relation to whom a workplace agreement or an employer‑employee agreement is not in force is the rate of pay that is provided for under an award that applies to that apprentice or trainee.

(2)The minimum weekly rate of pay for an apprentice or trainee in relation to whom a workplace agreement or an employer‑employee agreement is in force is the rate of pay that is provided for under an award that would, if the workplace agreement or employer‑employee agreement were not in force, apply to that apprentice or trainee.

”.

4The Labour Relations Reform Act 2002 s. 169(2) and (3) read as follows:

“

(2)An entitlement to paid leave for illness or injury that accrued before the commencement day is preserved on and from the commencement day as if former section 19 had not been amended by this Act.

(3)In this section —

“commencement day” means the day on which subsection (1) comes into operation;

“former section 19” means section 19 of the Minimum Conditions of Employment Act 1993 as it was in effect immediately before the commencement day.

”.

5The Labour Relations Reform Act 2002 s. 173(2) and (3) read as follows:

“

(2)An entitlement to paid annual leave that accrued before the commencement day is preserved on and from the commencement day as if former section 23 had not been amended by this Act.

(3)In this section —

“commencement day” means the day on which subsection (1) comes into operation;

“former section 23” means section 23 of the Minimum Conditions of Employment Act 1993 as it was in effect immediately before the commencement day.

”.

6The amendment in the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 78 to amend s. 46(1) is not included because the subsection it sought to amend had been replaced by the Courts Legislation Amendment and Repeal Act 2004 s. 141.