Being outside the federal "national system" does not mean you are outside the Fair Work Act altogether. Several parts of the Fair Work Act 2009 (Cth) apply to every employee in Australia, including WA state system employees. Several WA laws also apply whatever system you are in.
The most important is the federal unlawful termination claim, because its deadline is 21 days, a week shorter than the WA unfair dismissal deadline.
21 days, not 28, if you may have been dismissed for a prohibited reason. If you were dismissed because of illness or injury, union activity, a complaint against your employer, parental leave, or a reason such as your race, sex, age, disability or family responsibilities, you may have a federal unlawful termination claim, which must be lodged with the Fair Work Commission within 21 days (Fair Work Act s 774). Before you lodge it, get advice about the effect on your WA unfair dismissal claim: an application to the Fair Work Commission about your dismissal stops the WAIRC deciding your WA claim until it is withdrawn or dismissed for lack of jurisdiction.
At a Glance
| Federal or WA law | Applies to WA state system employees? |
|---|---|
| Unlawful termination (Fair Work Act s 772) | Yes |
| Minimum notice of termination (Fair Work Act s 759) | Yes |
| Unpaid parental leave (Fair Work Act s 744) | Yes |
| Paid family and domestic violence leave (Fair Work Act s 757B) | Yes |
| Sexual harassment in connection with work (Fair Work Act Part 3-5A) | Yes |
| Federal unfair dismissal | No; use the WA claim |
| General protections and federal anti-bullying orders | No, except possibly for a WA council that is a trading corporation, which is unresolved |
| The rest of the National Employment Standards (annual leave, personal leave, redundancy pay, casual conversion) | No; the WA minimum conditions apply instead |
| Superannuation guarantee | Yes |
| Equal Opportunity Act 1984 (WA) and federal discrimination Acts | Yes |
| Workers' compensation and work health and safety laws | Yes |
| Long Service Leave Act 1958 (WA) | Yes |
Unlawful Termination
The Fair Work Act says an employer must not dismiss an employee for one or more of these reasons, or for reasons that include them (s 772(1)):
- (a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;
- (b) trade union membership, or taking part in union activities outside working hours or, with the employer's consent, during working hours;
- (c) not being a union member;
- (d) seeking office as, or acting or having acted as, a representative of employees;
- (e) filing a complaint, or taking part in proceedings, against the employer involving alleged breaches of laws or regulations, or going to a competent administrative authority;
- (f) race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, being subject to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin;
- (g) absence from work during parental leave;
- (h) temporary absence to engage in a voluntary emergency management activity, where the absence is reasonable.
There are exceptions for the inherent requirements of a position and for some religious institutions (s 772(2)). Ground (a) is narrower than it looks: the absence must be for an illness or injury of a kind the regulations prescribe, so a long or open-ended absence may not qualify.
The employer has to prove its reason. Once you allege you were dismissed for a prohibited reason, it is presumed that you were, unless your employer proves otherwise (s 783). The prohibited reason only needs to be one of the reasons.
How it works. You apply to the Fair Work Commission within 21 days after the dismissal; later applications are accepted only in exceptional circumstances (s 774). The Commission holds a conciliation. If it does not resolve, you can go to the Federal Court or the Federal Circuit and Family Court within 14 days after the Commission's certificate, or both sides can agree to arbitration (ss 776–778). The court can order reinstatement and compensation, with no statutory cap, and penalties. See the Fair Work Commission's guide and our page on unlawful termination.
Managing both claims. If you also want to bring a WA unfair dismissal claim, the order matters. The WAIRC cannot decide your unfair dismissal claim while you have any application with the Fair Work Commission about the dismissal, unless it is withdrawn or dismissed for lack of jurisdiction (IR Act s 29AA). In Glaus-Johnson v City of Subiaco [2026] WAIRC 00750, a Fair Work Commission application that was dismissed because the employee did not respond left her WA claim barred. Plan the sequence with a lawyer before lodging either.
Notice of Termination
The WA minimum conditions do not include notice. Instead, the Fair Work Act gives WA state system employees the same minimum notice as federal employees (s 759): 1 week for up to 1 year's service, 2 weeks for up to 3 years, 3 weeks for up to 5 years and 4 weeks after that, plus 1 week if you are over 45 with at least 2 years' service. Casuals, fixed-term and seasonal employees, some trainees and employees dismissed for serious misconduct are excluded. Unpaid notice can be claimed in the Industrial Magistrates Court as a federal claim within 6 years (CFMEU v Qube Ports Pty Ltd [2024] WAIRC 00789), or in the WAIRC if the notice is also in your contract. See Minimum Conditions in WA.
Parental Leave
WA's own parental leave provisions were repealed on 31 January 2025. Unpaid parental leave for WA state system employees now comes from the Fair Work Act, which extends the National Employment Standards parental leave provisions to them (s 744). A WA award or agreement may give more. Dismissal because you were absent on parental leave is also an unlawful termination ground.
Paid Family and Domestic Violence Leave
WA state system employees, including part-time and casual employees, are entitled to 10 days of paid family and domestic violence leave a year under the Fair Work Act (s 757B). That sits alongside the 5 days of unpaid family and domestic violence leave in the WA minimum conditions (MCE Act s 39B). See the wa.gov.au guide.
Sexual Harassment
The Fair Work Act prohibits sexual harassment in connection with work (s 527D), and that prohibition is not limited to federal system employers. So a WA state system worker who is sexually harassed may be able to go to the Fair Work Commission as well as the WAIRC, the Equal Opportunity Commission or the Australian Human Rights Commission. The Fair Work Commission can make a stop order and deal with disputes, and may dismiss an application made more than 24 months after the last incident (s 527G).
Which forum you choose first can close off others, and the rules are not the same in each direction. See Bullying and Sexual Harassment before lodging anything.
General Protections and Anti-Bullying for Council Employees
The federal general protections and anti-bullying laws only apply to employers that are "constitutionally covered", which in practice means trading or financial corporations. Sole traders, partnerships and State government departments are not, so their employees cannot use those laws.
WA local governments are a grey area. They were declared out of the federal system on 1 January 2023, but a council that is itself a trading corporation might still be covered by the general protections and anti-bullying laws. The Fair Work Commission's website says councils may still be covered; but the Commission has also recorded that its earlier decisions found WA local governments are not constitutional corporations. The question is unresolved. For council employees the WAIRC claims are the secure route, and any Fair Work Commission application needs careful handling because of the s 29AA problem described above.
Discrimination
Two sets of discrimination laws apply to everyone working in WA:
| Equal Opportunity Act 1984 (WA) | Federal discrimination Acts | |
|---|---|---|
| Where to complain | Commissioner for Equal Opportunity, then the State Administrative Tribunal | Australian Human Rights Commission, then the Federal Court or Federal Circuit and Family Court |
| Time | 12 months, later with good cause (s 83) | The President may end a complaint made more than 24 months after the conduct |
| Compensation | Capped at $40,000 (s 127) | No cap |
| Costs | Tribunal practice | Applicant costs protection since 2 October 2024 |
| Getting to a hearing | Referral by the Commissioner, or at your request after a dismissal of the complaint | Within 60 days of the complaint ending; the court's permission is needed unless the complaint was ended because conciliation could not settle it or because it raises an issue of public importance |
The WA Act's grounds include family responsibility or family status, religious or political conviction, and publication of details on the Fines Enforcement Registrar's website, so check which Act covers your situation. The federal route has no cap and now offers protection from adverse costs orders, but needs the court's permission to proceed unless the complaint was ended because conciliation could not settle it or because it raises an issue of public importance. If the discrimination led to your dismissal, the federal unlawful termination claim (21 days) may also be available. See the Equal Opportunity Act and our pages on discrimination, bullying and harassment.
Workers' Compensation
The Workers Compensation and Injury Management Act 2023 (WA), in force since 1 July 2024, applies to every WA employer. For the 12 months starting on the day you first have an incapacity for work because of a work injury:
- your employer must provide your pre-injury job, or a suitable alternative if that is not reasonably practicable (s 166);
- it must not dismiss you solely or mainly because of your incapacity (s 168(2));
- it must not dismiss you for any reason unless it gives you at least 28 days' notice of its intention, in the approved form (s 168(3)–(4)).
Breaches are offences with fines of up to $10,000. They are not a separate claim you can bring yourself, but a dismissal in breach of them is strong evidence in a WA unfair dismissal claim, and may support a federal unlawful termination claim if the injury is of a prescribed kind. Note that the 12 months runs from when you first could not work, not from the date of the injury.
Work Health and Safety
Under the Work Health and Safety Act 2020 (WA), it is unlawful to dismiss you, or treat you worse, because you raised a safety concern, were a health and safety representative, or took part in resolving a safety issue (ss 104–106). You can bring a claim in the Work Health and Safety Tribunal within 1 year of when you knew or ought to have known about it (s 113(1)). The tribunal can order compensation and reinstatement, and your employer must prove the prohibited reason was not a substantial reason (s 113(2)). Be careful: a claim about the same matter in another forum can block this one (s 115), so decide the order of claims deliberately.
Superannuation
The superannuation guarantee applies to every employer in Australia. Unpaid superannuation is generally pursued through the Australian Taxation Office, not as a contract claim, unless your contract specifically promises a contribution rate or a particular fund (Bignold v The Orange Card Pty Ltd [2026] WAIRC 00149).
How MKI Legal Can Help
The overlap between WA and federal law is where many claims are lost, usually because of the 21-day deadline or because a federal application blocked a WA one. We can work out every claim available to you in both systems, in which order to bring them, and how to keep your options open. Contact us for a free, no-obligation and confidential discussion about your circumstances.