In 2016/17, the WA tourism industry directly employed 71,100 people and indirectly created a further 32,800 jobs.
As a sector providing significant employment in our state, it is important for businesses in tourism to understand their legal obligation to their employees.
Fair Work System
The majority of employers in tourism will be covered by the national Fair Work Act 2009. The Fair Work Act sets out National Employment Standards (NES), which are 10 minimum employment entitlements that must be adhered to by all employers under the system.
These stands include: maximum working hours, leave arrangements (including annual, personal, parental, community service and public holiday entitlements), the right to request flexible working arrangements, and notice and redundancy requirements.
The NES also required that all new employees must be provided with a Fair Work Information Statement by their employer. You can access a copy here: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/fair-work-information-statement
Awards & enterprise agreements
Your business may also be required to meet further minimum standards of employment set by a registered agreement or modern awards.
If there is no registered agreement in place, it may be unclear to an employer which, if any, award applies.
Your business may be covered by more than one award depending on the jobs carried out by your employees. You should refer to the section of each award that deals with ‘coverage’ to ascertain whether the award applies to you.
Individual flexibility agreements
If an award or agreement does apply, an employer may choose to vary certain terms of an employee’s employment through a written employment agreement, referred to as an Individual Flexibility Agreement (IFA).
An IFA can assist both parties in structuring an employment agreement that meets their specific requirements. However, only certain terms can be varied, which will be outlined in the award or agreement.
If an employer is varying award or registered agreement terms, the employer must ensure that the employee is better off under the varied agreement than they would be if the relevant modern award or registered agreement applied. This is known as the ‘Better Off Overall Test’ or ‘BOOT’.
An IFA may pass the test even if some benefits have been reduced, as long as overall those reductions are more than offset by the benefits of the IFA.

OH&S
Employers should also be aware of their duty to protect employees from risks in the workplace, including duties imposed by workplace health and safety laws.
The Occupational Safety and Health Act 1984 (WA) and Occupational Safety and Health Regulations 1996 (WA), currently apply to workplaces in Western Australian.
New workplace health and safety legislation in Western Australia has been proposed and is in the consultation phase.
This new legislation is based on the national model work health and safety laws. Other states have now adopted this model, and WA employers should be aware that there are likely to be significant changes to workplace health and safety legislation in WA in the near future.
Further Resources: Resources to assist small businesses to comply with safety obligations, including guides, action plans and checklists, can be found on the WA Department of Mines, Industry Regulation and Safety website at: https://www.commerce.wa.gov.au/worksafe/small-business
If you would like more information on these issues, please contact Kim Jones at Bailiwick Legal – kim@bailiwicklegal.com.au or call (08) 9321 5451.
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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