Benchmark WA Industrial Relations Case Database

s29AA 'industrial instrument' carve-out — when threshold does not apply

doctrinal WA s29AA_instrument_carveout_wa branch: termination
The s29AA salary threshold ($90,000 indexed per Reg 5) does NOT apply where an 'industrial instrument' applies to the employment. The term is defined in s29AA(5) and was interpreted by the Full Bench in Thomas Quinn v Kalgoorlie Consolidated Gold Mines Pty Ltd [2006] WAIRC 05220; (2006) 86 WAIG 2725 — leading authority on what falls within the definition. Cross-tag with the relevant general order leaf (general_order_s50_wa / s51B / s51I) where the case turned on which instrument applied.
Statute Industrial Relations Act 1979 (WA) — s29AA(5)

Synthesis · 61 tagged cases

61 tagged decisions (19 as primary). Of primary decisions, the most common outcome is 'dismissed_jurisdiction' (6, 32%).

Outcome distribution

Outcomen%
Against applicant dismissed_jurisdiction 6 32%
For applicant granted 5 26%
Against applicant dismissed 4 21%
Resolved other 2 11%
Resolved adjourned 1 5%
Resolved partial 1 5%

By jurisdiction

Courtn
Single Commissioner (WAIRC)43
Full Bench (WAIRC)9
Industrial Appeal Court5
WA Court of Appeal2
Industrial Magistrates Court1
Fair Work Australia (former)1

Key articulated principles · 12

para 21 — from [2013] WAIRC 581 WAIRC — Single Commissioner
The word 'remuneration' in reg 5(2)(c) must be read down to mean 'salary' in its common law sense, consistent with the use of that term in reg 5(2)(a) and (b), and consistent with s29AA(5) of the Act which refers only to 'salary' and not 'remuneration'.
para 23 — from [2013] WAIRC 581 WAIRC — Single Commissioner
To construe 'remuneration' in reg 5(2)(c) to include all benefits and entitlements would lead to arbitrary and capricious results, such as an employee with 364 days service having a higher calculated 'salary' than the same employee with 365 days service, which is a construction to be avoided.
para 24 — from [2013] WAIRC 581 WAIRC — Single Commissioner
Where there is conflict between the Act and the Regulations, the conflict must be resolved in favour of the Act, which controls by referring to 'salary' and not 'remuneration'.
para 86 — from [2016] WAIRC 73 WAIRC — Full Bench
Section 23(1) cannot be read in isolation or only with s29(1)(b)(ii); both provisions must be read together with the restrictions in s29AA(4) and (5). The general jurisdiction in s23(1) must give way to the specific limitations in s29AA.
para 86 — from [2016] WAIRC 73 WAIRC — Full Bench
Section 29AA(4) and (5) are specific provisions that unambiguously prohibit the Commission from determining a claim where the employee's contract provides for a salary exceeding the prescribed amount and no industrial instrument applies, regardless of whether the employer is a constitutional corporation or state-system employer.
para 35 — from [2022] WAIRC 317 WAIRC — Full Bench
Where an employer policy incorporates review requirements at regular intervals and specifies successful review as condition of continuation, and the required review is not conducted, the contract does not renew for the subsequent period.
Test: Incorporation of external policy requirements
para 45 — from [2021] WAIRC 474 WAIRC — Single Commissioner
The ordinary and natural meaning of 'salary' in s29AA(4) IR Act is a fixed payment made periodically to a person as compensation for regular work, adopting the principle from The Totalisator Agency Board v Fisher.
Test: Fixed payment for regular work
para 47 — from [2021] WAIRC 474 WAIRC — Single Commissioner
Where a contract expressly provides that an allowance does not form part of Total Fixed Remuneration (as per clause 9.1), and the allowance is only payable depending on work location rather than for regular work, it does not constitute salary for the purposes of s29AA(4).
para 1 — from [2015] WAIRC 782 WAIRC — Single Commissioner
Where an employer is a constitutional corporation, the General Order on Termination, Change and Redundancy no longer applies because it was cancelled as a Notional Agreement Preserving State Award (NAPSA) under the Workplace Relations Act 1996 (Cth), and therefore cannot satisfy the industrial instrument requirement under s29AA.
para 1 — from [2015] WAIRC 782 WAIRC — Single Commissioner
Under s29AA, the Commission must not determine claims of harsh, oppressive or unfair dismissal or denied contractual benefits if (a) no industrial instrument applies to the employment, and (b) the employee's contract provides for a salary exceeding the prescribed amount.
para 32 — from [2024] WAIRC 173 WAIRC — Single Commissioner
Where the Local Government Industry Award 2020 expressly excludes the Chief Executive Officer from coverage under clause 4.3(a), no industrial instrument within the meaning of s 29AA applies to such an employee.
para 13 — from [2024] WAIRC 173 WAIRC — Single Commissioner
Section 29AA(3) of the Industrial Relations Act 1979 (WA) creates a specific jurisdictional limit that prevails over general provisions conferring jurisdiction; the Commission must not determine unfair dismissal claims where no industrial instrument applies and the employee's salary exceeds the prescribed amount.

Leading cases · by citation count

CitationCourtRoleCited
[2013] WAIRC 581 WAIRC — Single Commissioner primary 5
[2016] WAIRC 73 WAIRC — Full Bench primary 2
[2014] WAIRC 303 WAIRC — Single Commissioner primary 2
[2013] WAIRC 725 WAIRC — Single Commissioner primary 2
[2017] WAIRC 250 WAIRC — Single Commissioner primary 1
[2015] WAIRC 369 WAIRC — Single Commissioner primary 1
[2016] WAIRC 862 WAIRC — Single Commissioner secondary 9
[2022] WAIRC 317 WAIRC — Full Bench secondary 2

All tagged cases · 61

CitationCourtRoleDateOutcomeCited
[2013] WAIRC 581 WAIRC — Single Commissioner primary 2013-08-07 For applicant 5
[2016] WAIRC 73 WAIRC — Full Bench primary 2016-02-10 Against applicant 2
[2014] WAIRC 303 WAIRC — Single Commissioner primary 2014-04-14 For applicant 2
[2013] WAIRC 725 WAIRC — Single Commissioner primary 2013-08-16 Against applicant 2
[2017] WAIRC 250 WAIRC — Single Commissioner primary 2017-05-04 For applicant 1
[2015] WAIRC 369 WAIRC — Single Commissioner primary 2015-05-11 For applicant 1
2025 WAIRC 00364 Industrial Magistrates Court primary 2025-06-17 Against applicant 0
[2025] WAIRC 00284 WAIRC — Single Commissioner primary 2025-05-12 Resolved 0
2025 WAIRC 00108 WAIRC — Single Commissioner primary 2025-02-21 Against applicant 0
[2024] WAIRC 173 WAIRC — Single Commissioner primary 2024-04-19 Against applicant 0
[2024] WAIRC 107 WAIRC — Single Commissioner primary 2024-03-18 Resolved 0
[2021] WAIRC 474 WAIRC — Single Commissioner primary 2021-06-25 Against applicant 0
[2021] WAIRC 61 WAIRC — Single Commissioner primary 2021-03-10 Against applicant 0
[2021] WAIRC 25 Industrial Appeal Court primary 2021-02-03 Against applicant 0
[2020] WAIRC 277 WAIRC — Single Commissioner primary 2020-05-15 Resolved 0
[2016] WAIRC 930 WAIRC — Single Commissioner primary 2016-12-13 For applicant 0
[2016] WAIRC 29 WAIRC — Single Commissioner primary 2016-01-15 Against applicant 0
[2015] WAIRC 782 WAIRC — Single Commissioner primary 2015-08-10 Against applicant 0
[2013] WAIRC 367 WAIRC — Single Commissioner primary 2013-06-19 Resolved 0
[2016] WAIRC 862 WAIRC — Single Commissioner secondary 2016-11-03 Against applicant 9
[2022] WAIRC 317 WAIRC — Full Bench secondary 2022-07-29 Against applicant 2
[2020] WAIRC 859 WAIRC — Single Commissioner secondary 2020-10-22 Against applicant 2
[2018] WAIRC 419 WAIRC — Single Commissioner secondary 2018-07-16 Resolved 2
[2009] WASCA 162 WA Court of Appeal secondary 2009-09-03 Against applicant 2
[2017] WAIRC 792 WAIRC — Full Bench secondary 2017-09-08 Against applicant 1
[2016] WAIRC 715 WAIRC — Full Bench secondary 2016-08-18 Against applicant 1
[2011] WAIRC 39 WAIRC — Full Bench secondary 2011-01-01 Resolved 1
[2023] WAIRC 943 WAIRC — Single Commissioner secondary 2023-12-05 Against applicant 0
[2023] WAIRC 345 WAIRC — Single Commissioner secondary 2023-06-28 For applicant 0
[2022] WAIRC 152 WAIRC — Single Commissioner secondary 2022-03-15 Against applicant 0
[2021] WAIRC 544 WAIRC — Single Commissioner secondary 2021-10-18 Resolved 0
[2021] WAIRC 119 WAIRC — Single Commissioner secondary 2021-05-03 Resolved 0
[2018] WAIRC 329 WAIRC — Single Commissioner secondary 2018-05-30 For applicant 0
[2016] WAIRC 165 WAIRC — Single Commissioner secondary 2016-03-22 Resolved 0
[2016] WAIRC 137 WAIRC — Single Commissioner secondary 2016-03-11 Against applicant 0
[2015] WAIRC 981 WAIRC — Single Commissioner secondary 2015-11-03 Against applicant 0
[2013] WAIRC 781 WAIRC — Single Commissioner secondary 2013-08-30 Against applicant 0
[2013] WAIRC 96 WAIRC — Single Commissioner secondary 2013-02-22 Against applicant 0
[2011] FWA 7018 FWA (former) secondary 2011-10-19 Against applicant 0
[2006] WAIRC 5711 WAIRC — Full Bench secondary 2006-01-01 Against applicant 0
(2000) 80 WAIG 5342 Industrial Appeal Court secondary 2000-10-03 Resolved 0
[2010] WAIRC 242 WAIRC — Full Bench mentioned 2010-04-28 Against applicant 5
[2015] WASCA 66 WA Court of Appeal mentioned 2015-04-07 Against applicant 4
[2023] WAIRC 277 WAIRC — Single Commissioner mentioned 2023-05-19 Resolved 1
[2017] WAIRC 173 WAIRC — Single Commissioner mentioned 2017-03-24 Resolved 1
2026 WAIRC 00145 WAIRC — Full Bench mentioned 2026-03-13 Against applicant 0
[2025] WAIRC 00756 WAIRC — Single Commissioner mentioned 2025-09-05 For applicant 0
[2025] WAIRC 00303 WAIRC — Single Commissioner mentioned 2025-05-16 Resolved 0
[2023] WAIRC 367 WAIRC — Single Commissioner mentioned 2023-07-06 For applicant 0
[2023] WAIRC 74 WAIRC — Single Commissioner mentioned 2023-02-10 Resolved 0
[2021] WAIRC 524 WAIRC — Single Commissioner mentioned 2021-10-06 Resolved 0
[2019] WAIRC 245 WAIRC — Single Commissioner mentioned 2019-05-16 Against applicant 0
[2019] WAIRC 72 Industrial Appeal Court mentioned 2019-02-19 Against applicant 0
[2018] WAIRC 807 WAIRC — Single Commissioner mentioned 2018-10-17 Against applicant 0
[2015] WAIRC 787 WAIRC — Single Commissioner mentioned 2015-08-11 Resolved 0
[2015] WAIRC 179 WAIRC — Single Commissioner mentioned 2015-02-17 Against applicant 0
[2014] WAIRC 275 WAIRC — Single Commissioner mentioned 2014-04-04 For applicant 0
[2013] WAIRC 144 WAIRC — Single Commissioner mentioned 2013-03-15 Against applicant 0
[2007] WAIRC 1270 WAIRC — Full Bench mentioned 2007-11-30 For applicant 0
(1998) 78 WAIG 1100 Industrial Appeal Court mentioned 1998-03-25 Against applicant 0
(1983) 63 WAIG Industrial Appeal Court mentioned 1983-01-01 Resolved 0