Damaging Action and Other Protections in the WA State System

If you work in the federal system and are treated badly because you exercised a workplace right, you may have a general protections claim under the Fair Work Act. The WA state system has no general protections. What it has instead is a set of narrower protections in the Industrial Relations Act 1979 (WA) (IR Act) and the Minimum Conditions of Employment Act 1993 (WA) (MCE Act).

The most useful is protection from damaging action for asking about or complaining about your employment. It has a reverse onus, no cap on compensation and a 6-year time limit. This page also covers sham contracting, advertising below the minimum wage, union membership, flexible working requests and equal pay.

If you are not sure which system you are in, see Am I in the State or Federal System?. For federal general protections, see our page on general protections.

Damaging Action for an Inquiry or Complaint

An employer must not take damaging action against an employee because the employee is able to make an employment-related inquiry or complaint, to the employer or anyone else (IR Act s 97A(1)). This protects job applicants too.

Damaging action means (IR Act s 97):

• dismissing you;
• changing your position to your disadvantage;
• refusing to promote or transfer you;
• otherwise injuring you in your employment;
• for a job applicant, refusing to employ you or offering worse terms;
• threatening to do any of these.

What counts as an inquiry or complaint. It must relate to an entitlement you have under your contract, an award or legislation. A complaint is an expression of grievance seeking some response, and it does not need to use the word "complaint". Grievances, questions about your pay or tax, a request to work from home raising concerns about workload, and asking why a manager did something have all been treated as capable of qualifying (Gavril v State of Western Australia [2026] WAIRC 00031, an Industrial Magistrates Court decision that is under appeal).

The reverse onus. Once you prove the damaging action was taken, it is up to the employer to prove it did not act because you made or proposed to make the inquiry or complaint (s 97A(2)). The employer usually tries to do this with evidence from the person who made the decision. The provision is modelled on the federal general protections, and federal cases are used to help interpret it.

Plead it precisely. The claim is not a general inquiry into whether you were treated unfairly. You need to identify the specific damaging action and the specific inquiry or complaint you say was the reason. Keep a record of each complaint: when, to whom and what it said.

Where and When

• The claim is brought in the Industrial Magistrates Court, not the WAIRC, on a civil penalty application (IR Act ss 83E, 97B).
• The time limit is 6 years (IR Act s 82A).
• There is no conciliation step built in.
• Managers who were involved in the decision can be joined as accessories (s 83E(1A)).

What You Can Get

If the court finds a contravention, it can order your employer to reinstate you if you were dismissed, employ you if you were refused a job, and pay you compensation for any loss or injury, with no cap (IR Act s 97B(2)). It can also impose a penalty of up to $93,000 on a company, or $930,000 if the contravention was knowing or reckless (s 83E(1)). Compensation for injury (such as humiliation and distress) is assessed in the same way as for unfair dismissal.

The election. The court cannot make these orders if you have applied under another law for relief for the same damaging action, unless that application was withdrawn or failed for lack of jurisdiction, and you cannot be compensated twice (s 97B(5)–(6)). So if you were dismissed, you must choose between a damaging action claim (6 years, uncapped, reverse onus, in court) and an unfair dismissal claim (28 days, capped at 6 months' pay, in the WAIRC).

Costs. Each side usually bears its own legal costs unless the court finds a serious contravention or the proceedings were frivolous or vexatious (s 83E(12)).

Early Days

There is not yet a Full Bench or Industrial Appeal Court decision on damaging action. The leading first-instance decision, Gavril, is under appeal, and both published claims so far failed. The law is still developing.

What the WA System Does Not Protect

Compared with the federal general protections, there is no WA civil protection for:

• exercising workplace rights generally, except making an inquiry or complaint;
• taking sick leave or being temporarily absent because of illness or injury;
• union membership or industrial activity (only the criminal provisions below);
• a protected attribute such as race, sex, age or disability.

Some of these gaps are filled by other laws. A dismissal for union activity, a complaint to a regulator, a prescribed illness absence, parental leave or a discriminatory reason can be a federal unlawful termination claim, with a 21-day limit. Discrimination during employment is covered by the Equal Opportunity Act 1984 (WA) and the federal discrimination Acts. See Federal Laws That Still Apply.

Whether the federal general protections can still reach a WA council that is a trading corporation is unresolved. See Am I in the State or Federal System?.

Sham Contracting

The IR Act prohibits three kinds of sham contracting (ss 97D–97F):

• telling a worker that their employment is a contract for services (a contractor arrangement) when it is really employment, unless the employer proves it did not know and could not reasonably have known;
• dismissing, or threatening to dismiss, an employee in order to re-engage them as a contractor to do the same work (the employer must prove that was not its purpose);
• making a statement it knows or should know is false to persuade an employee to become a contractor for the same work (again, the employer must prove its purpose).

The court can order reinstatement or employment, compensation and a penalty, and the claim goes to the Industrial Magistrates Court within 6 years. A sham contracting claim usually comes with an underpayment claim for the award or minimum entitlements you missed while treated as a contractor. Whether you are really an employee is decided by the real substance of the relationship (IR Act s 7A); see Am I in the State or Federal System?.

Job Ads Below the Minimum Wage

A person must not advertise a job at a rate below the minimum wage for the position under the MCE Act, an award, a WAIRC order or an industrial agreement (IR Act s 97H). This applies to recruiters and agencies as well as employers. It is enforced by penalty, usually on an application by an industrial inspector.

Union Membership and Freedom of Association

Part VIA of the IR Act makes it a criminal offence to treat someone more or less favourably, refuse to employ them, or prejudice them in their job (including dismissal, demotion or worse pay) because they are, or are not, a union member or officer (ss 96C–96E). Fines range from $400 to $5,000 for an individual and from $1,000 to $10,000 plus $500 a day for others, and the minimums cannot be reduced (s 96F). After a conviction, the court can order reinstatement or compensation (s 96L). A person affected can also ask the Industrial Magistrates Court for an order requiring compliance (s 96J).

Because these are criminal provisions, a dismissed employee usually has a faster civil route through the federal unlawful termination provisions, with a 21-day deadline.

Flexible Working Requests

Since 31 January 2025, WA state system employees have had a right to request flexible working arrangements (MCE Act Part 4A).

Who can ask. You can request a change to your hours, pattern of work or location of work if any of these apply to you (MCE Act s 39F(2)):

• you are pregnant;
• you are the parent of, or care for, a child of school age or younger;
• you are a carer under the Carers Recognition Act 2004 (WA);
• you have a disability;
• you are 55 or older;
• you are experiencing family and domestic violence;
• you are caring for or supporting a member of your family or household who is experiencing family and domestic violence.

You need at least 12 months' continuous service, or for a casual, 12 months' regular and systematic employment and a reasonable expectation of it continuing (s 39F(5)).

How it works. The request must be in writing and say what you want, why, and which circumstance applies (s 39G). Your employer must respond in writing within 21 days (s 39H). It can refuse only if it has discussed the request with you, genuinely tried to reach agreement, considered the consequences for you, and has reasonable business grounds, such as cost, no capacity to change others' arrangements, impracticality, a significant loss of efficiency or productivity, or a significant effect on customer service (ss 39H–39I). A refusal must explain the reasons and the business grounds, and set out any alternative the employer would accept (s 39J).

If it is refused or ignored. You must first try to resolve it through discussions at the workplace (s 39K). Then you can either refer the dispute to the WAIRC under IR Act s 29(1)(k), which can order your employer to grant the request or make another change, or enforce the minimum condition in the Industrial Magistrates Court, where your employer has to prove its refusal complied with the rules. You cannot do both (IR Act s 51HC). Note that lawyers do not have an automatic right to appear on a flexible working referral in the WAIRC; they need consent or permission.

No WAIRC decision has yet decided a flexible working dispute on its merits. The Full Bench has described the right as a minimum condition that binds all state system employers and overrides less favourable terms (Director General, Department of Justice v Civil Service Association of WA [2025] WAIRC 00146). If you are punished for making a request, a damaging action claim may also be available.

Equal Remuneration

The WAIRC can make an equal remuneration order to ensure men and women receive equal pay for work of equal or comparable value, and it must make one if it finds that employees are not receiving equal remuneration (IR Act s 51O). An employee, a union, UnionsWA, the Chamber of Commerce and Industry, the Minister or the Commissioner for Equal Opportunity can apply (s 29(1)(b)). An employer must not cut pay because an application has been made (s 51P).

This is a collective, systemic process about how a type of work is valued. No equal remuneration order had been made as at 25 September 2026. If you are simply paid less than a colleague doing the same job, the better routes are usually an underpayment claim, a contractual claim, or a sex discrimination complaint.

For Employers

The WA state system is narrower than the federal general protections, but damaging action claims carry a reverse onus and uncapped compensation, and there is 6 years to bring them. If an employee has recently raised a complaint or asked about their pay, make sure any adverse decision about them is made for documented reasons that have nothing to do with the complaint, and ideally by someone who can explain that. Treat flexible working requests properly: respond in writing within 21 days, discuss them genuinely, and give specific business reasons if you refuse.

How MKI Legal Can Help

If you have been punished after raising a concern at work, or told you are a contractor when you are really an employee, we can tell you which WA and federal protections apply and which route offers the best outcome, including whether to bring a damaging action claim or an unfair dismissal claim. We also advise employers on managing complaints and flexible working requests. Contact us for a free, no-obligation and confidential discussion about your circumstances.