Part 1The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.
(1) An award may be made:(a) on application to the Commission or on the Commission’s own initiative, or(b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.(2) An application for an award may be made only by:(a) an employer, or(b) an industrial organisation of employers or employees, or(c) a State peak council.(3) Anyone who can apply for an award may become a party to any proceedings for making an award.(4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award.
(1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award.(2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry.(3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award.
13 Formal matters relating to making of award
(1) An award is required to be in writing, expressed to be an award and signed by at least one member of the Commission.(2) An award is to be published by the Industrial Registrar on the NSW industrial relations website.(3) An award is to comply with such other requirements as to form and procedure for its making as may be made by the regulations or (subject to any such regulations) by the rules of the Commission.(4) The Commission may give directions as to the standard format for awards.
14 Mandatory dispute resolution procedures in awards
(1) An award is not to be made unless it contains procedures for the resolution of industrial disputes under the award (dispute resolution procedures).(2) However, an award need not contain dispute resolution procedures if the Commission is satisfied that another specified award already does so.(3) Dispute resolution procedures are to include procedures for:(a) consultation at the workplace, and(b) the involvement of relevant industrial organisations.(4) Dispute resolution procedures in awards do not apply to employers who employ fewer than 20 employees, unless the award specifically applies those procedures to such an employer.
(1) An award comes into force on the date specified by the Commission.(2) However, legal proceedings relating to the enforcement of the award cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website.(3) An award may be expressed to apply retrospectively, but not earlier than the date on which:(a) application for the award was lodged with the Industrial Registrar, or(b) the Commission itself initiated proceedings for the award, or(c) the industrial dispute giving rise to the award was notified to the Commission.(4) Despite subsection (3), the following awards may, with the consent of the parties to the making of the award, apply retrospectively from a date, specified in the award, that is earlier than any date referred to in that subsection:(a) an award that sets conditions of employment in connection with a project,(b) an award that sets conditions of employment for employees of a single employer or for employees of two or more associated employers.Note. Section 190 enables the Full Bench or a Presidential Member to stay the operation of the whole or any part of an award for the purposes of appeal pending determination of the appeal or further order of the Commission.
(1) An award applies for the period specified in it as its nominal term and, after that period, until rescinded by the Commission.(2) The nominal term of an award must not be less than 12 months nor more than 3 years.(3) However, an award that sets conditions of employment in connection with a project may have a specified nominal term that does not exceed the expected duration of the project.(4) An award may in special circumstances be made on an interim basis. Any such award is to be expressed to be an interim award and applies only for the period (not exceeding 12 months) specified in it.
17 Variation or rescission of award
(1) The Commission may vary or rescind an award.(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.(3) An award may be varied or rescinded in any of the following circumstances only:(a) at any time with the mutual consent of all the parties to the making of the original award,(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.Note. Section 169 also enables an award to be varied at any time to remove unlawful discrimination.
(1) The Commission may, on application, grant an exemption from the whole or any part of an award if it is satisfied that it is not contrary to the public interest and that:(a) it is in the best interests of the employees and employers concerned, or(b) the operation of the award (or part of the award) would result in significant unemployment or other serious consequences for the employees and employers concerned.(2) An exemption may be granted for a period not exceeding 3 years at any one time.(3) The Commission may, on application or on its own initiative, review any exemption, and may confirm, vary or revoke the exemption.
(1) The Commission is required to review each award before September 2001 and subsequently at least once in every 3 years.(2) The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards.(3) The Commission must take account of the following matters in the review of awards:(a) any decision of the Commission under Part 3 or any other test case decision of the Commission,(b) rates of remuneration and other minimum conditions of employment,(c) part-time work, casual work and job-sharing arrangements,(d) dispute resolution procedures,(e) any issue of discrimination under the awards, including pay equity,(f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards,(g) any other matter relating to the objects of the Act that the Commission determines.(4) The Commission must also take account of the effect of the awards on productivity and efficiency in the industry concerned.(5) During a review of awards, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed.(6) The Commission is to make such changes to awards as it considers necessary as a result of a review.Note. In addition to submissions of relevant industrial organisations, the Minister, the President of the Anti-Discrimination Board and State peak councils may make submissions in pursuance of their general right of intervention in Commission proceedings under section 167.
(1) The Commission may make an award consolidating, with or without amendments, related awards.(2) The Commission may rescind an obsolete award or an obsolete part of an award, whether or not in connection with the consolidation of awards.(3) The Industrial Registrar may, in accordance with the rules of the Commission, exercise the functions of the Commission under this section.
Division 2 Particular conditions of employment in awards
21 Conditions to be provided in awards on application
(1) The Commission must, on application, make an award setting any of the following conditions of employment:(a) ordinary hours of employment,(b) equal remuneration and other conditions for men and women doing work of equal or comparable value,(c) employment protection provisions,(d) provisions relevant to technological change,(e) sick leave,(f) part-time work,(g) casual work.(2) Those conditions are to be set:(a) in accordance with any relevant requirement of this Division and any other provision of this Act, and(b) with due regard to any established principles of the Commission or other matters considered relevant.(3) Those conditions may be set in a new award or by the variation of an existing award.(4) This section applies even though there is an existing award dealing with the matter.
22 Maximum ordinary hours of employment
(1) The number of ordinary working hours of an employee when set by an award must not exceed 40 hours per week, averaged over a 12 week period.(2) However, those ordinary hours may be averaged over a period not exceeding 52 weeks in the case of seasonal employment.(3) The ordinary working hours of an employee cannot be reduced by an award unless the reduction is made by a Full Bench of the Commission.
23 Equal remuneration and other conditions
Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
24 Employment protection provisions
Employment protection provisions in an award are to be provisions relating to the obligations and rights of an employer and an employee on the termination or proposed termination of employment of the employee.
25 Provisions relevant to technological change
Provisions relevant to technological change may include provisions as to:(a) the obligations of an employer on the introduction of technological change in the industry concerned, and(b) the giving of notice of termination of services to employees and relevant organisations on account of the introduction of technological change (including the minimum period of notice).
26 Minimum sick leave entitlements
(1) Sick leave when set by an award must include provisions under which:(a) each employee is entitled to not less than one week of sick leave on full pay for each year of service with an employer, and(b) sick leave accumulates from year to year for at least 3 years, that is, sick leave not taken in each year of service will be available to the employee for a period of at least 3 years from the end of each such year.(2) Nothing in this Division prevents the Commission from making or varying awards relating to the conditions under which sick leave may be taken or imposing limitations on the amount of sick leave that may be accumulated by an employee.
27 Prohibition on cashing-in of accumulated sick leave
(1) An award must not allow or require an employee to cash-in the employee’s accumulated sick leave.(2) Accumulated sick leave is cashed-in if the leave is not taken and a payment is made by the employer to or on behalf of the employee of the amount of remuneration for the period of accumulated leave or of any other amount calculated by reference to that period.(3) It is immaterial when the accumulated sick leave is to be cashed-in, including on termination of employment (whether by resignation, retirement, death or otherwise) or during the period of employment.(4) A provision of an award, whether made before or after the commencement of this section, does not have any effect to the extent that the provision contravenes this section.(5) In this section, award includes:(a) a former industrial agreement, and(b) a public sector industrial agreement.Note. The above section does not apply to the cashing-in of sick leave under an enterprise agreement. Clause 14 of Schedule 4 preserves the cashing-in under an existing award of accumulated sick leave accrued before 15 February 1993, the date of commencement of section 99A of the Industrial Relations Act 1991 which was the predecessor of the above section.
28 Other provisions not affected
Nothing in this Division affects:(a) the requirements of this Part for the making or varying of awards, or(b) the powers of the Commission and the Industrial Registrar under sections 18 and 125 (provisions relating to Commission granting exemptions from awards and Industrial Registrar issuing special wage permits).