Bargaining for WA teachers and lecturers, and what is happening now.

An industrial agreement is an agreement about industrial matters between a union and an employer, registered by the Commission (IR Act s 41(1)–(2)). Where it is inconsistent with an award, the agreement prevails (s 41(9)).

An agreement operates for the term it states (IR Act s 41(5)(b)). After that, it "continues in force" for all parties, except any that retire from it, until a new agreement or an award is made in its place (s 41(6)). The TAFE agreement repeats this: "Notwithstanding the expiry of this Agreement, its terms and conditions will continue in force until it is replaced by a new agreement" (WES337 cl 7.1).

What this means for pay:

(a) the rates do not fall on the expiry date, but they do not rise either. Neither agreement schedules an increase after December 2025, so from 6 December 2026 (schools) and 16 December 2026 (TAFE) members stay on the December 2025 rates until a replacement is registered (SCH013 Schedule A; WES337 Schedule G);

(b) a party may retire from an expired agreement by filing a notice of intention to retire, from 30 days before expiry onwards; it stops being a party 30 days after filing (s 41(7));

(c) when a replacement agreement is registered, the old one is cancelled except to the extent the new one keeps its terms (s 41(8)). Both current agreements were registered that way, replacing the 2021 agreements (Director General, Department of Education v The State School Teachers' Union of W.A. [2024] WAIRC 00949; Governing Council of North Metropolitan TAFE [2024] WAIRC 00932).

What happened last time. In the 2023 round, back pay was paid only to employees still employed on the date the new agreement was registered. A person who had resigned, retired or otherwise left before registration received nothing (SCH013 cl 23.2–23.3; WES337 cl 28.2, 28.5).

A union or employer starts formal bargaining by written notice to the other party (IR Act s 42(1)). While an agreement is in force, the notice cannot be given earlier than 90 days before its nominal expiry date (s 42(5)), and the other party has 21 days to say whether it will bargain (s 42A(1)). Negotiations can run before a formal notice is given: in the 2008 TAFE round the parties had been negotiating since August 2007, and the union lodged its notice to initiate bargaining on 7 December 2007 (Director General, Department of Education and Training v The State School Teachers' Union of W.A. (Incorporated) [2008] WAIRC 00391, recitals). The TAFE agreement's own commitment to start negotiations six months before expiry (cl 7.2) is a promise in the agreement, separate from the statutory notice.

Once bargaining has started, each negotiating party "must bargain in good faith" (s 42B(1)). Good faith includes (s 42B(2)):

(a) stating and explaining your position on the matters at issue;

(b) meeting at reasonable times, intervals and places for face-to-face bargaining;

(c) disclosing relevant and necessary information;

(d) acting honestly and openly, "which includes not capriciously adding or withdrawing items for bargaining";

(e) recognising bargaining agents;

(f) giving union representatives reasonable facilities to do their job;

(g) "bargaining genuinely and dedicating sufficient resources to ensure this occurs";

(h) keeping to agreed outcomes and commitments.

Good faith does not require a party to agree to any term, or to make an agreement at all (s 42D). The Commission may help the parties bargain and make orders to ensure they bargain in good faith (s 42E), but it cannot make a party enter an agreement or dictate its terms (s 42F), unless the parties have agreed some of the terms and jointly ask it to decide the rest (s 42G).

If bargaining stalls, a negotiating party can ask a single commissioner to declare that bargaining has ended. The commissioner may do so if satisfied that (s 42H(1)):

(a) the applicant has bargained in good faith;

(b) bargaining between the applicant and another negotiating party has failed; and

(c) there is no reasonable prospect of the negotiating parties reaching an agreement.

No appeal lies from the declaration (s 42H(2)).

After a declaration, the negotiating party named in it may apply for an enterprise order (s 42I(2)(a)), within 21 days (s 42I(3)(a)). The Commission then writes the terms itself: it may make an order "providing for any matter that might otherwise be provided for in an industrial agreement" between those parties, and that it "considers is fair and reasonable in all of the circumstances" (s 42I(1)(c)–(d)). An enterprise order:

(a) binds only the employer named in it and employees in the callings it names (s 42J(1));

(b) prevails over an award or industrial agreement where they conflict (s 42J(3));

(c) lasts no more than 2 years from when it comes into operation (s 42K(2)), and then continues until replaced (s 42K(7)).

Teachers have been through this. In 2008 the Commission declared that bargaining had ended for both the schools agreement (Director General, Department of Education and Training v State School Teachers' Union of Western Australia [2008] WAIRC 00341, 6 June 2008) and the TAFE lecturers' agreement (Director General v SSTUWA [2008] WAIRC 00391, 3 July 2008). In both cases the employer applied for the declaration. No enterprise order was made in either round: agreements were reached and registered instead: the schools agreement on 16 December 2008 (Director General, Department of Education and Training v State School Teachers' Union of Western Australia Inc. [2009] WAIRC 00274) and the TAFE lecturers' agreement on 28 April 2009 (The Governing Council of Central TAFE [2009] WAIRC 00218), and the TAFE enterprise order application was discontinued (Director General, Department of Education and Training v The State School Teachers' Union of W.A. (Incorporated) [2009] WAIRC 00588). Case example 1 below describes one ruling in the TAFE enterprise order case.

The Government sets its bargaining position through a public sector wages policy. The Public Sector Wages Policy Statement 2026, issued on 26 May 2026, applies to WA public sector industrial agreements, except that the 2023 Statement "continues to apply to industrial agreements that expired before 6 May 2026" (cl 4–5). Both teacher agreements expire in December 2026, so their replacements fall under the 2026 Statement. It says:

(a) in making offers, the Government will "place specific emphasis on delivering financially sustainable outcomes that are reasonable in the context of each negotiation", and prioritise the timely negotiation of replacement agreements (cl 6). The Statement sets no percentage figure;

(b) subject to that, it will prioritise attraction and retention of skilled workers, service delivery in regional and remote WA, "direct and permanent employment as the preferred mode of employment", and the performance of public sector organisations (cl 7);

(c) a new agreement applies "from the date of registration", and the Government "may consider retrospective wage increases up to the expiry of any previous agreement, in the context of good faith bargaining" (cl 9);

(d) a new agreement does not apply to employees who leave before it is registered (cl 10).

The policy binds the Government's negotiators. It does not bind the Commission. But if the Commission has to decide terms in a "public sector decision", which includes an enterprise order or a s 42G order that will bind a public sector entity, it must take into account (IR Act s 26(2A), (2B)):

(a) any Public Sector Wages Policy Statement applicable to negotiations with that entity;

(b) the State's financial position and fiscal strategy, as set out in the most recent Government Financial Strategy Statement and the Government Financial Projections Statement, and any submissions made for the entity or the State;

(c) the entity's own financial position, as set out in its part of the budget papers and any submissions.

A "public sector entity" includes a public sector body (s 26(2B)). The Department of Education is a department, and the TAFE colleges are listed as SES organisations, so both are agencies and therefore public sector bodies (Public Sector Management Act 1994 (WA) s 3, Schedule 2 item 3F).

These factors are "in addition to" the economic factors the Commission must consider in every case, such as the state of the economy, the employer's capacity to pay, productivity and the likely effect on employment and inflation (s 26(1)(d), (2C)). The Commission in Court Session has said: "The legislation does not make s 26(2A) a standard against which the other considerations are to be assessed. Nor is s 26(2A) of greater weight than those matters in s 26(1)(d)" (The Minister for Health v Health Services Union of Western Australia (Union of Workers) [2015] WAIRC 00332 at [123]). In the same decision it said that, in the fiscal conditions of the time, arbitrated increases greater than projected CPI "should be the exception rather than the rule due to the State experiencing the most challenging fiscal environment for many years" (at [136]), but it still found that fairness required an increase above projected CPI in that case (at [135], [138]). That was a health sector arbitration under the 2014 text of s 26, which has been amended since. No decision applying s 26(2A) to teachers or TAFE lecturers was found.

"Industrial action" is defined widely. It covers any act or omission by a union, employer, employee or other person for the purpose, "or in the opinion of the Commission for the purpose", of compelling acceptance of terms or conditions of employment or enforcing a demand about employment (IR Act s 7(1), definition of industrial action).

The IR Act has no scheme of "protected" industrial action. Four provisions bear on strikes and bans:

(a) good faith: the Commission may, "having regard to the circumstances in which the industrial action occurs, determine that engaging in industrial action is a breach of the duty to bargain in good faith" (s 42B(3));

(b) s 44 orders: the Commission may summon the parties to a compulsory conference, including on its own motion whenever industrial action has occurred or is likely (s 44(1), (7)), and make orders to "prevent the deterioration of industrial relations" or to enable conciliation or arbitration to resolve the matter (s 44(6)(ba)). In a 2011 appeal about an interim order for an individual teacher during a disciplinary dispute (not industrial action), the Acting President of the Full Bench said s 44(6)(ba) orders "are not confined to making orders to maintain the status quo" (The Director General, Department of Education v The State School Teachers' Union of WA (Inc) [2011] WAIRC 00058 at [58]);

(c) who an order binds: a registered union is "a separate legal entity from its officers, members and employees", so a s 44 order is made against the union, which can breach it through what its officers, employees and members do (The State School Teachers' Union of W.A. (Incorporated) v Director-General, Department of Education and Training [2008] WAIRC 00364 at [87], [94], [96]);

(d) enforcement: if a s 44 order is not obeyed, the Registrar, at the Commission's direction, may apply to the Full Bench (s 84A(1)(b)). If the breach is proved, the Full Bench may accept an undertaking, issue a caution or impose a penalty of up to $13,000, or direct the Registrar to issue a summons under s 73(1) (s 84A(5)(a)). A s 73(1) summons requires a union to show cause why its registration should not be cancelled or suspended (s 73(1)).

The Commission has made s 44 orders about bans and stoppages in past teacher bargaining rounds, and has also declined some of the orders sought. Case examples 2 and 3 below describe two of them.

Each agreement has its own procedure, and both end in the Commission:

(a) schools: a collective dispute about the agreement, policies or conditions goes to a first meeting within two weeks, then to the Employee Relations Executive Committee after six weeks or earlier, then to the Commission "for conciliation and/or arbitration", with the status quo kept meanwhile unless impractical (SCH013 cl 56.4–56.7, 56.10);

(b) TAFE: a workplace dispute goes to the lecturer and manager for five working days, then in writing to the managing director and the union president, then after ten working days to the Commission "for determination", with duties continuing as normal meanwhile (WES337 cl 12.1, 12.4).

Beyond the agreements, a party bound by an agreement can ask the Commission to declare its "true interpretation" (IR Act s 46(1)), and a breach can be enforced in the Industrial Magistrates Court (s 83(1)), with maximum penalties of $93,000 for a body corporate and $18,000 for an individual, or ten times those amounts for a serious contravention (s 83(4A)).

The State is not a national system employer, and WA has not referred its public sector to the Commonwealth (Fair Work Act 2009 (Cth) s 14(1), s 30B). So, for public school teachers and TAFE lecturers:

(a) Fair Work enterprise bargaining, protected industrial action, Fair Work right of entry and the general protections against action by the State as employer do not apply;

(b) no current Fair Work agreement covers WA public school teachers or TAFE lecturers. The Australian Education Union's WA Branch is federally registered and is the SSTUWA's counterpart federal body (The State School Teachers' Union of W.A. (Incorporated) [2013] WAIRC 00382), but bargaining for members happens in the WA system;

(c) some parts of the Fair Work Act still reach State employees (s 742, s 770). Three bear on bargaining and restructures:

(i) dismissal because of union membership or activity outside working hours (or, with the employer's consent, during them) is unlawful termination, applied for in the Fair Work Commission within 21 days (s 772(1)(b), s 774(1));

(ii) if a school or TAFE function moves to a national system employer and staff move with it within 3 months, their State instrument comes with them (s 768AD, s 768AA);

(iii) before 15 or more terminations for economic, technological, structural or similar reasons, the employer must notify Centrelink and consult the union (ss 785 to 787).

From 1996, WA teachers and lecturers were under federal certified agreements made through the Australian Education Union. Schools were back under a State agreement by 2006, and the last federal TAFE agreement reached its nominal expiry on 31 December 2007 (Director General, Department of Education and Training v The State School Teachers' Union of W.A. (Incorporated) [2008] WAIRC 01507 at [5]). The federal route closed when the federal system moved onto the corporations power (New South Wales v Commonwealth [2006] HCA 52). It is history, not a route open today.