At Robertson Hayles Lawyers, we frequently act for international clients with commercial operations in Western Australia.
As a reality of doing business, international firms must inevitably hire, fire, and manage their staff, and are often faced with the unenviable task of navigating employment laws across multiple jurisdictions throughout Asia and globally.
Generally, employment laws in Western Australia are vastly different from elsewhere in Asia and other parts of the world – getting things wrong could result in claims being filed in the courts and/or reputational damage to an international brand.
Some common Western Australian employment laws which are often overlooked by international clients are as follows:
- Redundancy and Consultation.
The Fair Work Act 2009 prescribes that an employer must take certain steps before making an employee redundant. While a genuine need to restructure the business will be required, in most cases, employers must take the extra step of consulting with an employee before any decision is made. The consultation must not be perfunctory in nature and must offer the employee a genuine chance to influence the decision.
- Requirement to avoid taking “adverse action” for any prohibited reason.
The Fair Work Act 2009 prescribes that employers must not take “adverse action” against an employee for any prohibited reason. In most cases the “adverse action” will be the termination of the employment. Prohibited reasons are vast and can include things because the employee has made a complaint about their employment, because the employee is pregnant, or because of the employee’s gender, race, disability or trade union affiliation.
- Requirement to avoid “Direct Discrimination”.
State and federal discrimination laws prohibit “direct discrimination” which occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics.
Such protected traits might include a person’s race, sex, pregnancy, marital status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status.
Lessons for International Clients
If managing an operation in Western Australia from an overseas jurisdiction, we would recommend seeking advice from experienced employment lawyers before taking major decisions such as employing staff, terminating staff or restructuring an operation.