Chapter 4 Industrial Relations Commission
Part 1 Establishment and functions of Commission
145 Establishment of Commission
(1) There is established by this Act the Industrial Relations Commission of New South Wales.(2) The Commission is to have a seal and the seal is to be judicially noticed.
146 General functions of Commission
(1) The Commission has the following functions:(a) setting remuneration and other conditions of employment,(b) resolving industrial disputes,(c) hearing and determining other industrial matters,(d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister,(e) functions conferred on it by this or any other Act or law.(2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to:(a) the objects of this Act, and(b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.This subsection does not apply to proceedings before the Commission in Court Session that are criminal proceedings or that it determines are not appropriate.
Part 2 Membership of Commission
(1) The Commission consists of the following members:(a) a President,(b) a Vice-President,(c) Deputy Presidents,(d) Commissioners.(2) The President, the Vice-President and the Deputy Presidents of the Commission are referred to in this Act as Presidential Members.
148 Appointment of members of the Commission
The members of the Commission are to be appointed by the Governor by commission under the public seal of the State.
(1) The Governor may appoint a Presidential Member of the Commission as a Member of the Commission in Court Session. The appointment may be made by the commission appointing the person as a member of the Commission or by subsequent commission under the public seal of the State.(2) A person is not eligible to be appointed as a member of the Commission in Court Session unless the person is:(a) a person who holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory, or(b) a legal practitioner of at least 7 years’ standing.(3) A person appointed as a member of the Commission in Court Session is referred to in this Act as a judicial member of the Commission.
150 Provisions relating to members of Commission
Schedule 2 has effect with respect to the members of the Commission (including judicial members).Note. Part 9 of the Constitution Act 1902 and Parts 7 and 8 of the Judicial Officers Act 1986 deal with the suspension, removal or retirement from office of members.
Part 3 The Commission in Court Session
151 Judicial members to constitute Commission in Court Session
(1) The Commission in Court Session is the Commission constituted by a judicial member or members only for the purposes of exercising the functions that are conferred or imposed on the Commission in Court Session by or under this or any other Act or law.(2) This section does not prevent the Commission from being constituted by judicial members when not exercising those functions.
152 Commission in Court Session superior court of record
(1) The Commission in Court Session is established by this Act as a superior court of record.(2) For the purposes of Part 9 of the Constitution Act 1902, the Commission in Court Session is a court of equivalent status to the Supreme Court and the Land and Environment Court, and is of higher status than the courts referred to in section 52 (2) (b) and (c) of that Act.Note. Part 9 of the Constitution Act 1902 is amended by Schedule 5 to this Act to extend that Part to members of the Commission in Court Session. That Part already applies to Judges of the Industrial Court. As a consequence of the abolition of the Industrial Court by this Act, that Part confers a right on the former Judges of that Court to be appointed to judicial office in a court of equivalent or higher status. The above provision ensures that the appointment of all Judges of the former Industrial Court as members of the Commission in Court Session (by Part 4 of Schedule 4 to this Act) satisfies the requirements of the Constitution Act 1902.
153 Jurisdiction of Commission in Court Session
(1) The following functions of the Commission are to be exercised only by the Commission in Court Session:(a) proceedings for an offence taken before the Commission (including proceedings for contempt),(b) proceedings for declarations of right under section 154,(c) proceedings under Part 9 of Chapter 2 (Unfair contracts),(d) proceedings under section 139 (Contravention of dispute order),(e) proceedings under Parts 3, 4 and 5 of Chapter 5 (Registration and regulation of industrial organisations), other than Division 3 of Part 4 (Election of officers),(f) proceedings under Part 1 of Chapter 7 (Breach of industrial instruments),(g) proceedings for the recovery of money under Part 2 of Chapter 7 (other than small claims under section 380),(h) proceedings on a superannuation appeal under section 40 or 88 of the Superannuation Administration Act 1996,(i) proceedings on an appeal from a member of the Commission exercising the functions of the Commission in Court Session,(j) proceedings on an appeal or case stated from an Industrial Magistrate or any other court,(k) any other proceedings that are, by this Act or any other Act, required to be taken before the Commission in Court Session.(2) The functions referred to in subsection (1) (i) and (j) and functions relating to proceedings for the cancellation of the registration of industrial organisations, may be exercised only by a Full Bench of the Commission in Court Session.(3) Subject to subsection (4), the functions of the Commission relating to proceedings for contempt of the Commission may be exercised only by a Full Bench of the Commission in Court Session.(4) The functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member.
(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.
Part 4 Organisation of Commission
155 Constitution of Commission for exercise of functions
The Commission may be constituted by:(a) 1 member, or(b) a Full Bench of the Commission.Note. Section 199 authorises an Industrial Committee to exercise the functions of the Commission. The rules of the Commission under section 185 may also authorise the Industrial Registrar or other officer of the Commission to exercise the functions of the Commission.
(1) A Full Bench of the Commission consists of at least 3 members who are constituted as a Full Bench by the President for the purposes of a proceeding.(2) A Full Bench of the Commission (other than the Commission in Court Session) must include at least one Presidential member and at least one Commissioner.(3) A Full Bench of the Commission in Court Session must include only judicial members.(4) A Full Bench of the Commission constituted to hear an appeal from a decision of the Commission must not include a member of the Commission who made the decision.(5) A Full Bench of the Commission may:(a) refer a particular matter in relation to a proceeding before it to a member of the Commission for report to the Full Bench, or(b) authorise a member of the Full Bench to make any order or give any direction in proceedings before it, other than an order or direction involving the determination of the proceeding or the grant of leave to appeal.
(1) The President of the Commission may designate particular members as regional members for different regions in the State.(2) The President of the Commission may allocate a matter before the Commission that the President considers to be of significance for a particular region for hearing and determination by the appropriate regional member.(3) However, a regional member must be designated for, and a regional office of the Industrial Registry must be established in, any region of the State prescribed by the regulations.(4) This section does not limit the functions of a regional member or the functions of other members.
158 Matters relating to general award review or discrimination in workplace
(1) The President of the Commission is to designate particular Deputy Presidents to deal with matters relating to general award reviews or discrimination in the workplace.(2) The President of the Commission may allocate such matters for hearing and determination by the appropriate designated Deputy President.(3) This section does not limit the functions of a designated Deputy President or the functions of other members.
(1) The President of the Commission is (subject to this Act and the rules of the Commission) to direct the business of the Commission.(2) Despite anything to the contrary in this Act, if the President of the Commission is not a judicial member, the function of allocating a matter for hearing and determination by a judicial member as the Commission in Court Session (including constituting a Full Bench of the Commission in Court Session) is to be exercised by the most senior judicial member.
The President of the Commission may delegate to another Presidential Member any of the functions of the President, other than this power of delegation.Note. The Vice-President of the Commission may also exercise the functions of the President—see clause 1 of Schedule 2.
The President of the Commission must provide to the Minister an annual report of the operations of the Commission for presentation to each House of Parliament.
Part 5 Procedure and powers of Commission
(1) The Commission may, subject to this Act, determine its own procedure.(2) The Commission:(a) is to act as quickly as is practicable, and(b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and(c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and(d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and(e) may sit at any place, and(f) may require a document to be served outside the State, and(g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and(h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and(i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and(j) may, on its own initiative, inquire into any industrial matter.
162A Transfer of certain proceedings to Industrial Magistrates
(1) This section applies to the following proceedings:(a) proceedings for a civil penalty under Part 1 of Chapter 7,(b) proceedings for the recovery of money under Part 2 of Chapter 7.(2) If any proceedings to which this section applies have been instituted in or before the Commission in Court Session, but the hearing of the matter has not been commenced, the President of the Commission, or a judicial member of the Commission authorised by the President for the purposes of this section, may order the transfer of the proceedings to a Local Court to be dealt with by that court.(3) The President or judicial member is not to make an order under this section unless:(a) the President or judicial member is satisfied that the proceedings concerned should have been instituted in a Local Court because of the nature of the proceedings, and(b) the Local Court has jurisdiction to deal with the proceedings.(4) Any proceedings to which this section applies that are transferred to a Local Court under this section are to continue before the Local Court as if they had been instituted there.(5) In this section:Local Court means a Local Court constituted by an Industrial Magistrate sitting alone.
163 Rules of evidence and legal formality
(1) The Commission:(a) is not bound to act in a formal manner, and(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session.
164 Powers of Commission as to the production of evidence, perjury and contempt
(1) The Commission may exercise the functions of the Supreme Court in relation to:(a) compelling the attendance of witnesses and examining them on oath or affirmation, or by use of a statutory declaration, and(b) compelling the production, discovery and inspection of records and other documents, and(c) compelling witnesses to answer questions which the Commission considers to be relevant in any proceeding before it, and(d) directing that a witness be prosecuted for perjury.(2) The Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission).(3) Without limiting subsection (2), a judicial member may exercise the functions of the Supreme Court in relation to the commencement of proceedings for contempt of the Commission.Note. Section 153 (4) provides that the functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member.
164A Powers of Commission as to the disclosure of matters before the Commission
(1) A non-disclosure order is any of the following orders:(a) an order prohibiting or restricting:(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission,(c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission,(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings.(2) The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.(3) The Commission (other than in Court Session) may make any non-disclosure order only if:(a) in relation to proceedings under the Child Protection (Prohibited Employment) Act 1998—it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, or(b) in relation to any other proceedings—it is satisfied that it is necessary to do so in the interests of justice.(4) The Commission may from time to time vary or revoke an order it has made under this section.(5) Nothing in this section operates to limit any power of the Commission in Court Session apart from this section to make a non-disclosure order or any other order prohibiting or restricting the disclosure or publication of matters before the Commission.
(1) A summons for the purposes of this Act is to be issued by the Industrial Registrar.(2) Any such summons must be signed by a member of the Commission or the Industrial Registrar or as otherwise provided by the rules of the Commission.(3) Any such summons may require a person to do any one or more of the following:(a) attend and confer,(b) attend and give evidence,(c) attend and produce documents or other things.(4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence.Maximum penalty: 100 penalty units.
(5) A person does not comply with the requirements of a summons to confer if the person leaves the conference without the permission of the person presiding at the conference.(6) A summons may be served within or outside the State.
(1) A party to proceedings before the Commission may appear personally or be represented by a practising legal practitioner or by an agent who is not such a practitioner.(2) However, a party is not entitled to be represented in conciliation proceedings by a person who is a practising legal practitioner or an agent who is an industrial agent without the leave of the Commission.(3) The leave of the Commission is not required if the practising legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation.(4) The leave of the Commission is also not required if the practising legal practitioner represents a State peak council and is an officer or employee of the State peak council.(5) The Commission may allow any party appearing before it the services of an interpreter.
167 Intervention by Minister, ADB and State peak council
(1) The Minister may intervene at any stage of proceedings before the Commission. The Minister may also initiate any proceedings before the Commission.(2) The President of the Anti-Discrimination Board may intervene in any proceedings of the Commission if the President of that Board establishes that the proceedings concern unlawful discrimination under the Anti-Discrimination Act 1977.(3) A State peak council may intervene in any proceedings before the Commission if it establishes that it or any one or more of its members has a sufficient interest in the proceedings.(4) A party that intervenes or initiates proceedings under this section may do so personally or, subject to this Act, by a practising legal practitioner or agent.(5) This section has effect despite any other provision of this Act limiting the persons who may intervene in or initiate the relevant proceedings before the Commission.
(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.(2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session.(3) Nothing in subsection (2) affects the operation of section 170.(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.Note. See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings.
169 Anti-discrimination matters
(1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977.(2) An issue that is the subject of proceedings before the Administrative Decisions Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 may not be the subject of proceedings before the Commission without the leave of the Commission.(3) The Commission may admit in proceedings before it evidence given before, or findings made by, the Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977. This subsection does not prevent the admission of any other evidence in the proceedings that contradicts any such evidence or finding.(4) An industrial instrument may be varied at any time by the Commission in order to remove any unlawful discrimination arising from the instrument. An application for such a variation:(a) may be made by a party to the instrument, and(b) may be made by the President of the Anti-Discrimination Board with the leave of the Commission.(5) This section does not apply to criminal proceedings before the Commission in Court Session.
170 Amendments and irregularities
(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.(2) Any such amendment may be made:(a) at any stage of the proceedings, and(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.
171 Power to impose conditions
A power of the Commission to make an award, order or other decision includes a power to make the decision subject to such conditions (including exemptions) as the Commission specifies when making the decision.
172 Power to order secret ballot
(1) The Commission may order that a secret ballot be taken of any group of employees in order to find out their opinion about an industrial matter.(2) The Commission may order a secret ballot for the purpose of the exercise of any of its functions, for example, the resolution of industrial disputes, the approval of enterprise agreements and the registration of organisations.(3) The Commission is to have regard to the result of a secret ballot under this section when exercising a function relating to any matter on which persons expressed an opinion in the ballot.(4) A secret ballot may (but need not) be limited to some or all of the members of an industrial organisation of employees.(5) The Commission may order a secret ballot on the Commission’s own initiative or on application by:(a) any industrial organisation of employees, being an organisation with members who are affected by the industrial matter, or(b) at least 5% of the members of an industrial organisation of employees or 250 members of that organisation (whichever is the lesser number), or(c) an employer of the employees concerned or an industrial organisation of employers a member of which is such an employer.(6) When the Commission orders that a secret ballot be taken under this section, it must by its order:(a) give directions about the manner in which the secret ballot is to be conducted (including the type of ballot, the question to be put and the persons eligible to vote), and(b) give directions about the person who is to conduct the ballot (whether an industrial organisation of employees, the Industrial Registrar, the Electoral Commissioner or some other person), and(c) give such other directions as the Commission considers necessary to ensure that the ballot is effectively conducted.(7) The expenses incurred in the conduct of a secret ballot under this section are to be borne by the State.(8) This section does not apply to criminal proceedings.
173 Members who may exercise arbitration powers after attempted conciliation
(1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers.(2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because:(a) the member attempted conciliation after having begun to exercise arbitration powers, or(b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or(c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present.
174 Powers when application settled by conciliation
If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may:(a) dismiss the application, or(b) make an order on the agreed terms for settlement.
The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).
176 Reconstitution of Commission during hearing
(1) The President of the Commission may replace the member, or one of the members, constituting the Commission after the hearing of a matter has commenced if the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined. This subsection does not apply to proceedings before the Commission in Court Session unless the parties consent.(2) The Commission as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Commission was reconstituted.(3) If a matter arises in proceedings before the Commission (otherwise than in Court Session) that is within the jurisdiction of the Commission in Court Session, the Commission may continue to deal with that matter as the Commission in Court Session if:(a) the Commission is duly constituted or reconstituted by a judicial member or members, and(b) any member who is not a judicial member does not take part in the proceedings on that matter, and(c) only such evidence given in the existing proceedings before the Commission as is admissible in evidence in proceedings before the Commission in Court Session is taken into account in determining that matter.(4) This section does not apply to criminal proceedings.
177 Commission may reserve decision
(1) The Commission may reserve its decision in any proceedings before it.(2) A reserved decision of a member or members of the Commission may be given:(a) by the member or members at a subsequent sitting of the Commission, or(b) if the decision of a member is set out in writing and signed by the member—by being delivered by a member of the Commission, or by the Industrial Registrar, at a time and place of which the parties have been given reasonable notice.
178 Commission divided in opinion
(1) If the members sitting as the Full Bench of the Commission are divided in opinion, the opinion of the majority is taken to be the decision of the Commission.(2) If the members are equally divided in their opinion, the opinion that prevails is:(a) the opinion of the President if the President is sitting, or(b) if the President is not sitting but the Vice-President is sitting—the opinion of the Vice-President, or(c) if the President and Vice-President are not sitting and only one Deputy President is sitting—the opinion of the Deputy President, or(d) if the President and Vice-President are not sitting and more than one Deputy President is sitting—the opinion of the senior Deputy President.
(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):(a) is final, and(b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).(2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted.(3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.
180 Contempt of Commission—offence
(1) A person in contempt of the Commission is guilty of an offence.Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both.
(2) For the purposes of subsection (1), conduct is a contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court.(3) Proceedings for an offence against this section may be taken only before the Commission in Court Session.
(1) Subject to the rules of the Commission and any other Act or law:(a) the Commission may award costs, and(b) costs are in the discretion of the Commission, and(c) the Commission may determine by whom and to what extent costs are to be paid, and(d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.(2) However, the Commission when it is not in Court Session may award costs only in the following cases:(a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or(b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or(c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or(c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if:(i) the industrial agent fails to file a certificate as required by section 90A, or(ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant’s claim or employer’s response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or(d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373.(3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations).(4) In this section, costs includes:(a) costs of or incidental to proceedings in the Commission, and(b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.
181A Obligation to disclose costs to clients and Commission
(1) An industrial agent who represents a client in proceedings before the Commission must disclose to the client and the Commission in accordance with this section the basis of the costs of any industrial agent services provided by him or her in the proceedings.(2) The following matters are to be disclosed to the client and the Commission:(a) the amount of the costs, if known,(b) if the amount of the costs is not known, the basis of calculating the costs,(c) the billing arrangements,(d) any other matter required to be disclosed by the regulations.(3) A disclosure under the section is to be made at or before the commencement of the proceedings in which the industrial agent is representing the client.(4) A disclosure under this section must be made in writing and be expressed in clear plain language.(5) The disclosure may be made separately or in a costs agreement or in any other contract relating to the representation of the client in the proceedings.(6) A disclosure is not required to be made under this section when it would not be reasonable to require it.(7) The regulations may make provision for or with respect to:(a) the information to be disclosed under this section, and(b) when it would not be reasonable to require a disclosure to be made under this section.(8) If an industrial agent fails to make a disclosure to a client in accordance with this section of the matters required to be disclosed by this section in relation to costs, the client need not pay the costs of the representation.(9) An industrial agent who fails to make a disclosure in accordance with this section of the matters required to be disclosed by this section in relation to costs may not maintain proceedings for the recovery of the costs.(10) In this section:costs agreement means an agreement between a party to proceedings before the Commission (the client) and an industrial agent as to the costs of representing the party in the proceedings.
182 Recovery of amounts ordered to be paid (other than penalties)
(1) For the purposes of the recovery of any amount ordered to be paid by the Commission (including costs, but not including a criminal or civil penalty), the amount is to be certified by the Industrial Registrar.(2) A certificate given under this section must identify the person liable to pay the certified amount.(3) A certificate of the Industrial Registrar that:(a) is given under this section, and(b) is filed in the office of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,operates as such a judgment.(4) To avoid doubt, an appeal lies to the Commission under Part 7 against any amount certified by the Industrial Registrar under this section.(5) To avoid doubt, an appeal lies to a Full Bench of the Commission under Part 7 against an order by the Commission for the payment of costs.
183 Regulations relating to fees
The regulations may make provision for or with respect to the fees to be charged in respect of the business of the Commission (including an Industrial Committee) and the payment of the expenses of witnesses or persons receiving a summons under this Act.
184 Power of entry of members of Commission and other authorised officers
(1) A member of the Commission, the Industrial Registrar or a person authorised in writing by a member of the Commission may at any time during working hours enter any premises in or in respect of which he or she has reasonable grounds to suspect that:(a) any industry is being carried on, or(b) any matter or thing is taking or has taken place in relation to which any industrial action is pending, or(c) any industrial instrument has been or is to be made,and may inspect and view any work, material, machinery, appliance, articles, book, document or other record there.(2) Any such person does not have authority to enter any part of premises used for residential purposes, except with the permission of the occupier.(3) A person who hinders or obstructs a member of the Commission, the Industrial Registrar or any authorised person in the exercise of any power conferred by this section is guilty of an offence.Maximum penalty: 100 penalty units.
(1) Rules of the Commission may be made for or with respect to any matter that by this or any other Act is required or permitted to be prescribed by rules of the Commission or that is necessary or convenient to be prescribed in relation to the practice and procedure of the Commission under this or any other Act.(2) Without affecting the generality of subsection (1), rules of the Commission may be made for or with respect to:(a) the initiation of proceedings in the Commission, or(b) the practice and procedure to be followed in, or for the purposes of, proceedings before the Commission, or(c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Commission, or(d) the functions of the Industrial Registrar or other officers under this Act, including functions in relation to proceedings instituted before the Commission, or(e) any matter that may be the subject of rules under the Supreme Court Act 1970.(3) This section extends to the making of rules relating to the practice and procedure of (and other matters relating to) an Industrial Committee.
186 Establishment and procedure of the Rule Committee of the Commission
(1) The rules of the Commission are to be made by a Rule Committee of the Commission comprising:(a) the President of the Commission, and(b) 2 other Presidential Members appointed by the President.(2) The President of the Commission may co-opt other persons to be members of the Committee, either generally or for limited purposes.(3) The procedure at a meeting of the Committee is to be as determined by the President of the Commission.(4) At a meeting of the Rule Committee of the Commission:(a) the President of the Commission is to preside, or(b) if the President is absent, a member nominated by the President is to preside.
Part 7 Appeals and references to Commission
187 Appeal to Full Bench from decision of Commission
The following may appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member:(a) a party to the proceedings in which the decision was made,(b) an industrial organisation, or an association registered under Chapter 6, affected by the decision,(c) the Minister if the Minister considers that the public interest is, or is likely to be, affected by the decision,(d) the President of the Anti-Discrimination Board if that President considers that the decision is inconsistent with the principles contained in the Anti-Discrimination Act 1977.Note. An appeal lies against a decision of an Industrial Committee as if the decision were that of a member of the Commission (see section 199 (3)).
188 Appeals to Full Bench by leave only
(1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench.(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.(3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.(4) This section does not apply to an appeal made by the Minister.
189 Time and procedure for making appeals
(1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows.(2) Further time may be allowed, either before or after the end of that 21-day period.
190 Stay of decision appealed against
If an appeal is made under this Part to a Full Bench of the Commission, the Full Bench or the Commission constituted by a Presidential Member may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Full Bench or Commission.
190A Interlocutory and other matters in proceedings on appeal
(1) If an appeal is made under this Part to a Full Bench of the Commission, the Commission constituted by the President (or by another member of the Commission nominated by the President) may do any one or more of the following for the purposes of, or in relation to, the appeal:(a) make any consent order in relation to the appeal,(b) grant leave to withdraw or discontinue the appeal,(c) give any directions in relation to the hearing of the appeal,(d) deal with any interlocutory application in the appeal.(2) If the appeal is made to a Full Bench of the Commission in Court Session:(a) a non-judicial member may not constitute the Commission for the purposes of this section, and(b) this section applies despite section 153 (2).(3) A member of the Commission who made a decision the subject of an appeal may not constitute the Commission for the purposes of this section.(4) This section does not authorise:(a) the Commission constituted in accordance with this section to grant leave to appeal, or(b) the granting of a stay against the decision appealed against otherwise than under section 190.
(1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against.(2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against.(3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.Note. The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders.
(1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act):(a) confirm, quash or vary the decision of the Commission concerned, or(b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or(c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate.The Full Bench may determine a part of the matter and refer the remainder back to the member of the Commission.
(2) The Full Bench may direct that its decision on an appeal under this Part take effect as from any specified date after the lodging of the original application relating to the decision.
193 References by members to Full Bench
(1) A member of the Commission may refer to the President, for decision by a Full Bench of the Commission:(a) a matter (or part of a matter) before the member, or(b) a question arising in a matter before the member.(2) The President is to determine whether or not a Full Bench should deal with the matter or question.(3) The Full Bench may:(a) hear and determine the matter or question, or(b) refer the matter or question back to the member, with such directions or recommendations as the Commission considers appropriate.The Full Bench may hear and determine a part of the matter and refer the remainder back to the member.
(4) This section extends to a reference by a member who is the Chairperson of an Industrial Committee of a matter before the Committee.
194 Appeal from Industrial Registrar to Commission
(1) A person may appeal to the Commission against:(a) a decision made by the Industrial Registrar in a matter (or any part of a matter) arising under this Act that directly affects the person, or(b) a refusal by the Industrial Registrar to make such a decision.However, an appeal does not lie if the decision or refusal relates to settling minutes of an award or other decision of the Commission.
(2) An appeal against a decision relating to the refusal of an application for registration or an objection to any such application may only be made by the applicant or a party to the hearing of the matter by the Industrial Registrar. The regulations and, subject to the regulations, the rules of the Commission may make provision with respect to the persons who may appeal under this section.(3) If an appeal is instituted under this section, the Commission may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Commission.(4) For the purposes of an appeal under this section, the Commission may, by leave, receive further evidence.(5) On hearing an appeal under this section, the Commission may do any one or more of the following:(a) confirm, quash or vary the decision concerned,(b) make a decision dealing with the subject-matter of the decision concerned,(c) direct the Industrial Registrar to take further action to deal with the subject-matter of the decision as directed by the Commission.
195 Reference by, or removal from, Industrial Registrar to Commission
(1) The Industrial Registrar may refer to the President, for decision by the Commission:(a) a matter (or part of a matter) before the Industrial Registrar, or(b) a question arising in a matter before the Industrial Registrar.(2) The President is to determine whether or not the Commission should deal with the matter or question.(3) The Commission may:(a) hear and determine the matter or question, or(b) refer the matter or question back to the Industrial Registrar, with such directions or recommendations as the Commission considers appropriate.The Commission may hear and determine a part of the matter and refer the remainder back to the Industrial Registrar.
(4) A matter before the Industrial Registrar is to be heard and determined by the Commission if the President refers the matter for hearing and determination by the Commission (whether constituted by a single member or by a Full Bench).
196 Appeals from and references by members of Commission in criminal proceedings
(1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.(3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912:(a) to the Court of Criminal Appeal—is taken to be a reference to a Full Bench of the Commission in Court Session, and(b) to the Supreme Court—is taken to be a reference to the Commission in Court Session, and(c) to rules—is taken to be a reference to rules of the Commission, and(d) to the Attorney General—is taken to include a reference to the Minister, and(e) to the Director of Public Prosecutions—is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and(f) to the registrar—is taken to be a reference to the Industrial Registrar.(4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs.
(1) An appeal lies to a Full Bench of the Commission in Court Session against:(a) any order made under this Act by a Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or(b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or(c) a civil penalty imposed under this Act by a Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty.(2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 that relate to:(a) appeals from a Local Court to the District Court or Supreme Court, and(b) the decisions of the District Court or Supreme Court on any such appeal, and(c) the carrying out or enforcement of any such decision,(including those provisions as applied by section 64 of the Local Courts Act 1982) apply, subject to the regulations under this Act, to any appeal referred to in subsection (1).(3) (Repealed)(4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate.(5) Section 179 (Finality of decisions):(a) applies to a decision or purported decision of a Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and(b) without limiting that section, applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies.Note. The provisions of this section are extended to similar proceedings under other industrial relations legislation eg section 14 of the Annual Holidays Act 1944; section 14 of the Long Service Leave Act 1955.
197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation
(1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation.(2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent.(3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law.(4) The appeal may be made by the Attorney General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made.(5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period.(6) Section 191 applies to an appeal under this section.(7) On an appeal under this section, the Full Bench may:(a) dismiss the appeal, or(b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged).(8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence.(9) This section has effect despite anything to the contrary in section 196 or 197.(10) In this section, occupational health and safety legislation means:(a) the Occupational Health and Safety Act 1983 and the regulations made under that Act, and(b) the Occupational Health and Safety Act 2000 and the regulations made under that Act, and(c) the Coal Mines Regulation Act 1982 and the regulations made under that Act, and(d) the Coal Mine Health and Safety Act 2002 and the regulations made under that Act, and(e) the associated occupational health and safety legislation, within the meaning of the Occupational Health and Safety Act 2000.(11) This section does not apply to a decision made before the commencement of this section.
198 Establishment of Industrial Committees
(1) The Commission constituted by a Presidential Member may, on application, establish an Industrial Committee to operate in relation to the whole or any part of a particular industry (including an occupation).(2) An Industrial Committee is to consist of the following:(a) the member of the Commission to whom the matter to be dealt with by the Committee has been allocated, and(b) equal numbers, determined by the Commission, of representatives of employers and representatives of employees.The relevant member of the Commission is to be the Chairperson of the Committee when it deals with that matter.
(3) The members of an Industrial Committee (other than the Chairperson) are to be appointed by the Industrial Registrar following nomination as prescribed by the regulations.(4) If the Industrial Registrar is satisfied that there has been a failure to nominate a person for appointment, the Industrial Registrar may appoint an appropriately qualified person to the Committee.
199 Functions of Industrial Committee
(1) The functions of the Commission under this Act with respect to a matter may be exercised in accordance with this Act by an Industrial Committee, but only in respect of the industry (or part of the industry) for which the Committee is established.(2) Any such function may be so exercised only if:(a) the matter is allocated to the Committee by the President of the Commission, or(b) application for the exercise of the function in respect of the matter is made to the Committee by:(i) any employer in the industry (or part of the industry) for which the Committee is established or any industrial organisation of such employers, or(ii) an industrial organisation of employees in the industry (or part of the industry) for which the Committee is established.(3) Any function so exercised is taken to have been exercised by the member of the Commission who is the Chairperson sitting alone.(4) An Industrial Committee is not to exercise a function if the Commission has directed that proceedings before the Committee on the matter be discontinued.(5) This section does not apply to a function that may only be exercised by the Commission in Court Session.
200 Duration and dissolution of Industrial Committees
(1) An Industrial Committee continues in existence for 3 years after it is established, unless it is sooner dissolved.(2) The Commission constituted by a Presidential Member may, on application or on its own initiative, dissolve an Industrial Committee.(3) The Commission constituted by a Presidential Member may extend the duration of an Industrial Committee for a period not exceeding 3 years at a time. The duration of the Committee may be extended even though the current period of the Committee has expired.(4) If the duration of an Industrial Committee is extended, the existing members of the Committee (or the members of the Committee on its expiration) continue in office without the need for their re-appointment.(5) Nothing in this section prevents an Industrial Committee that has been dissolved or that has expired from being re-established and new members appointed.(6) Any matter pending before an Industrial Committee on its dissolution is taken to be pending before the member of the Commission constituting the dissolved Committee in connection with the matter.
201 Provisions relating to members and procedure of Industrial Committees
Schedule 3 has effect with respect to Industrial Committees.
Part 9 Co-operation between State and Federal tribunals
In this Part:Federal Act means the Workplace Relations Act 1996 of the Commonwealth.
Federal Commission means the Australian Industrial Relations Commission.
Federal President means the President of the Federal Commission.
State Commission means the Industrial Relations Commission established by this Act.
State President means the President of the State Commission.
203 Referral of matter by Federal President to State Commission
(1) If the Federal President duly requests the State Commission to deal under the Federal Act with a matter with which the Federal Commission is empowered to deal, the matter may be allocated by the State President to a member of the State Commission.(2) The member of the State Commission must cease dealing with the matter if the request is duly revoked before the matter is determined.(3) The member of the State Commission has the functions conferred by the Federal Act for the purpose of dealing with the matter.(4) The determination of the matter is, for the purposes of this Act, taken not to have been made by a member of the State Commission under this Act.
204 Referral of matter by State President to Federal Commission
(1) The State President may request the Federal Commission to deal under this Act with a matter with which the State Commission is empowered to deal.(2) The State President may revoke that request at any time before the Federal Commission determines the matter.(3) The member of the Federal Commission to whom the matter is allocated has, for the purpose of dealing with the matter, the functions of the State Commission under this Act (other than a Full Bench of the Commission or the Commission in Court Session).(4) The determination of the matter is, for the purposes of this Act, taken to have been made by a member of the State Commission under this Act.(5) This section does not apply to a matter that may only be dealt with by the State Commission in Court Session.
(1) A member of the State Commission may exercise, in the presence of:(a) a member of the Federal Commission, and(b) the parties to any proceedings before the Federal Commission, and(c) any witness summoned by the Federal Commission,any of the functions that are exercisable by the member of the State Commission in relation to a matter.(2) Evidence may be given, and submissions made, jointly for the purposes of the proceedings before the State Commission and the Federal Commission.
206 Dual Federal and State appointments of members
(1) A member of the State Commission may hold office as a member of the Federal Commission.(2) A member of the Federal Commission may, if otherwise eligible, be appointed as a member of the State Commission unless the law of the Commonwealth otherwise provides.(3) A person who is a member of the State Commission and also a member of the Federal Commission may, in accordance with any agreement made between the State President and the head of the Federal Commission:(a) exercise functions as a member of the Federal Commission, and(b) in relation to a particular matter, exercise functions that the person has in relation to the matter both as a member of the State Commission and as a member of the Federal Commission.(4) The appointment, as a member of the State Commission, of a person who is a member of the Federal Commission may be for a fixed term and such a member holds office until:(a) the expiration of the term, or(b) he or she ceases to be a member of the Federal Commission, or(c) he or she resigns, or is removed, from office as a member of the State Commission,whichever first occurs.(5) A member of the Federal Commission who is appointed as a member of the State Commission is not to be remunerated as a member of the State Commission, but may be paid such allowances as the Minister considers to be reasonable for expenses incurred in discharging the duties of a member of the State Commission.(6) In this section:Federal Commission includes any industrial tribunal (in addition to the Federal Commission) constituted by a law of the Commonwealth that is prescribed by the regulations for the purposes of this section.
member of the State Commission includes a judicial member of the State Commission.
Note. Members of the State Commission may also hold dual appointments as members of other State tribunals, for example, as members of the Equal Opportunity Tribunal (section 69E of the Anti-Discrimination Act 1977) or of the Government and Related Employees Appeal Tribunal (sections 7 and 10 of, and Schedule 1 to, the Government and Related Employees Appeal Tribunal Act 1980).
207 Appointment of Industrial Registrar and staff
An Industrial Registrar, Deputy Industrial Registrars and such other staff as may be necessary for the purposes of this Act are to be employed under Part 2 of the Public Sector Management Act 1988.
208 Functions of Industrial Registrar and Deputy Industrial Registrar
(1) The Industrial Registrar has the functions conferred or imposed on the Industrial Registrar by or under this or any other Act or law.(2) A Deputy Industrial Registrar may exercise the functions of the Industrial Registrar:(a) as directed by the Industrial Registrar, and(b) during the absence of, or a vacancy in the office of, the Industrial Registrar.(3) Anything done or omitted by a Deputy Industrial Registrar in exercising a function of the Industrial Registrar has effect as if it had been done or omitted by the Industrial Registrar.(4) The regulations may make provision for or with respect to the functions of the Industrial Registrar.