Industrial Magistrates Court of Western Australia

Types of claims

The Court can deal with breaches of legislated minimum entitlements and industrial instruments (such as awards, industrial or enterprise agreements, and Orders).

Claims can be made pursuant to the:

• Industrial Relations Act 1979 (WA) including breaches of:
• employee protection provisions set out in Part 6B, such as damaging action
• the Minimum Conditions of Employment Act 1993 (WA)
• the criminal prosecution jurisdiction
• Long Service Leave Act 1958 (WA)
• Fair Work Act 2009 (Cth), including small claims under section 548
• Orders of the Western Australian Industrial Relations Commission

In addition to its power under the Industrial Relations Act 1979 (WA), the Court can hear certain matters pursuant to the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) and the Children and Community Services Act 2004 (WA).

Two main types of claims that can be made to the Court are:

• Minimum entitlements
• Protected employee rights

Minimum entitlements

A claim for minimum entitlements can be made when an employer has not paid an employee an entitlement due under industrial legislation or an industrial instrument (such as an award, industrial or enterprise agreement, or Order).

External publications that may provide guidance with this type of claim include:

• Wageline: Taking a claim to the Industrial Magistrates Court: A guide for employees
• Circle Green Community Legal: Unpaid minimum entitlements for WA employees

Please note the Court is not responsible for the content of external publications or the services of external providers.

Protected employee rights

A claim for protected employee rights can be made when an employer covered by the state system of employment laws has done one of the following:

• Taken damaging action against an employee because the employee has made, or is able to make, an employment related inquiry or complaint
• Misrepresented to an employee, or a prospective employee, that they are an independent contractor instead of an employee
• Advertised employment pay rates below the legal minimum rates
• Made an employee accept goods, accommodation or other services instead of money as a part of the employees pay
• Unreasonably required an employee to pay back their wages
• Unreasonably deducted money from an employee’s pay

External publications that may provide guidance on this type of claim include:

• Wageline: Changes to state employment laws in WA - New employee protections provisions
• Circle Green Community Legal: Protection of employee rights for state system employees

Please note the Court is not responsible for the content of external publications or the services of external providers.

Making a claim

To make a claim for minimum entitlements or protected employee rights, you must lodge all three of the following forms:

• Form 1.1 – Court Copy
• Form 1.2 – Claimant’s Copy
• Form 1.3 – Respondent’s Copy

When completing these forms, please note the following:

• The information on all three forms must be identical
• It is important to correctly names parties
• A statement of claim should be included and can be attached as a separate document
• The respondent’s address cannot be a Post Office Box address
• The Grounds, Act and Orders Sought sections must be completed

The completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. The lodgment fee is $40.00. Once you have lodged your claim, you will usually have 30 days to serve the respondent/s. After you have served the respondent/s, you must lodge an affidavit of service with the Court.

Responding to a claim

If you have been served a Form 1.3 – Respondent’s Copy where you are a named respondent, it is important that you lodge a completed Form 2 – Response with the Court within the time specified on the front of the form. The time specified will either be 21 or 28 days. The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. The lodgment fee is $5.00. You must then serve the claimant with a copy of your response within 14 days of the lodgement of your response. If you do not do these things, the claimant may obtain default judgment against you.

When completing your response, you must select one of the following options in the Response section:

• Wholly deny the claim
• Admit part of the claim
• Wholly admit the claim

If you are not wholly admitting the claim, you need to provide your reasons for this.

Pre-trial conference

If a response has been lodged which does not wholly admit the claim, the Court will arrange a pre-trial conference. A pre-trial conference is a meeting between the parties facilitated by a Clerk of the Court. It is an opportunity for the parties to confidentially discuss the claim and come to an agreed resolution without the need to go to a hearing.

Attendance is compulsory and you should let the Court know as soon as possible if you have any concerns about attending or accessibility by contacting the Registry on (08) 9420 4467 or registry@wairc.wa.gov.au.

If the claim cannot be resolved at the pre-trial conference, it will be scheduled to proceed to a hearing. This may involve the Clerk of the Court making orders to help prepare the matter for hearing. These orders can include:

The requirement for one or more parties to lodge Case Outlines/Further and Better Particulars of Case Outline. The Industrial Magistrates Courts Practice Direction No. 1 of 2017 outlines the procedures to be followed for these outlines at point[1]

Programming the matter to substantive hearing which may include timelines for the exchange of documents between the parties, including witness statements

Initial hearing

 An Industrial Magistrate will conduct an initial hearing before a claim goes to the substantive hearing. The purpose of an initial hearing is to:

• Assess the merits of the claim
• Identify any issues that need to be determined before the substantive hearing and those that need to be determined at the substantive hearing
• Determine which facts are in dispute and which facts are not in dispute
• Issue or amend the programming orders

List the claim for a directions hearing and/or a substantive hearing

Substantive hearing

 A substantive hearing is where the Court will hear and determine the substance or merits of the claim in dispute. It is a formal process held at the Court where each party presents their version of what has happened to an Industrial Magistrate.

Hearings usually proceed in the following manner:

• The claimant will make their case first, calling witnesses and providing documents and other evidence to the Court.
• The respondent then has their turn to make their case and respond to anything the claimant has raised and present their evidence to the Court.

Decision

The Industrial Magistrate looks at the evidence , decides the outcome of the claim and makes an order/s. The Industrial Magistrate may give their decision and make orders at the end of the hearing or they may reserve their decision (meaning they will give their decision and make orders at a later date).

The Court’s decisions are required to be published online and remain on the public record.

Final Order

 If a final order is not complied with, an application for enforcement can be made 21 days from the date of the order.

 To do this, you first need to contact the Court on (08) 9420 4467 or registry@wairc.wa.gov.au to request a certified copy of the final order. Once you have obtained this, you will need to attend your local Magistrates Court and provide a copy of the certified order and an affidavit stating to what extent the order has not been complied with. The affidavit form will not be the same as the Court’s forms.

If you have any questions regarding the processes involved with the Magistrates Court, please contact the Magistrates Court directly on (08) 9425 2222. The Court is a separate court to the Magistrates Court and cannot answer any questions relating to the processes involved in enforcing orders.

Appeal

You may be able to appeal a decision of the Court to the Full Bench of the Western Australian Industrial Relations Commission or to the Federal Court of Australia. Please note, timeframes for appealing may apply and can be as short as 21 days. It is suggested that you seek legal advice to determine which commission or court is appropriate for your appeal.