Many of Western Australia’s most disadvantaged employees will remain unable to access legal advice, with neither major party committing to funding services in the area in the lead-up to the state election.

The Employment Law Centre (ELC) of Western Australia is the only organisation in the state that provides free legal advice to employees who have a low income, a disability, are from a non-English speaking background, identify as being an Aboriginal or Torres Strait Islander, live in a remote location, or are at risk of homelessness. Last week, it secured federal government funding for the next four years.

However, the ELC can’t use this money to help anyone who isn’t covered by federal employment laws, leaving roughly 30% of their callers (mostly employees of small businesses) with nowhere to go. The ELC previously received state government funding, but this ceased in July, almost halving their budget.

Despite WA Premier Colin Barnett putting employment law back on the table as an election issue, there are no plans to fund the ELC or any other employment law service.

“The WA Government will not be providing additional funding to the ELC,” said Commerce Minister Michael Mischin. “It believes sufficient information and services are available to assist persons within the Western Australian industrial relations jurisdiction.”

Mischin points to the pro bono referral services offered by the Western Australian Industrial Relations Commission (the state industrial tribunal), wherein disadvantaged employees can be referred for free advice to a legal firm partnered with the commission.

However, he conceded the commission is not under any obligation to refer anyone for assistance and there is no guarantee that a firm will be available to accept the referral.

The commission confirmed since the program was introduced in November 2014 there have been 10 referrals under the scheme.

Kate Doust, shadow minister for commerce, said Labor would “look at” services for disadvantaged employees, but stopped short of making a commitment committing to resuming funding.

Jessica Smith, principal solicitor at the ELC, said their inability to help employees covered by state law leaves many employees with nowhere to go.

“For example, before we lost our state funding, we helped a 15-year-old girl from a fast food restaurant in Rural WA,” she said.

“She was casual, got paid less than 10 dollars an hour and got fired because she queried an unlawful deduction that her boss made from her pay.

We helped her with a claim against her employer, but if she came to us now, we’d have to turn her away.”

Meanwhile, over the last five years the State Government has slashed its’ own employment law services to the bone. Call centre Wageline has less than four full-time staff, and can only give a factual rundown of pay and conditions.

“Wageline is fine,” Doust said. “But there is advice they simply can’t provide like, say, the merits of someone’s unfair dismissal claim, or how they might navigate the process.”

The department previously provided regional inspectors who would service remote communities, educating people about the law and recovering underpayments, but these roles have all been made redundant. As such, the lack of services has a disproportionate impact on the regions and small business employees, who are often the people most vulnerable to poor employment conditions.

Employment law policy in Western Australian has been a vexed issue since the introduction of John Howard’s WorkChoices legislation in 2006. Among the many changes WorkChoices brought about was to bring the majority of private sector employment under the federal government’s legislative control (see page 2). Since then, the states have gradually handed over whatever they had left. WA is the only state to hold on to its powers. Both parties confirmed this would not change after the election.

In June 2009, the Barnett government commissioned (see page 155) lawyer Steve Amendola to conduct a review of the WA industrial relations system. It cost $850 000, and the government sat on it for over a year after it was submitted, quietly releasing it over Christmas 2010 and later confirming that it would not act on any of its recommendations. Between 2008 and 2013, the minister responsible for the portfolio changed four times.

“We see a lot of confusion amongst our callers because of the two systems in Western Australia — even I as a lawyer didn’t know about it before I started with the ELC,” said Smith. “So it’s particularly hard for vulnerable to know what laws apply to them, and where to go for help.”

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Peter Fray
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