An Act to reform the law concerning industrial relations, and to repeal the Industrial Relations Act 1991.

Chapter 1 Preliminary

1   Name of Act

This Act is the Industrial Relations Act 1996.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   Objects

The objects of this Act are as follows:

(a)  to provide a framework for the conduct of industrial relations that is fair and just,

(b)  to promote efficiency and productivity in the economy of the State,

(c)  to promote participation in industrial relations by employees and employers at an enterprise or workplace level,

(d)  to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,

(e)  to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

(f)  to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value,

(g)  to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality,

(h)  to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

4   Dictionary

(1)  Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

(2)  Key expressions used in this Act are defined in the following provisions of this Chapter.

Note. Some expressions used in this Act are defined in the Interpretation Act 1987, and have the meanings given to them in that Act.

5   Definition of employee

(1) General definition
In this Act, employee means:

(a)  a person employed in any industry, whether on salary or wages or piece-work rates, or

(b)  any person taken to be an employee by subsection (3).

(2)  A person is not prevented from being an employee only because:

(a)  the person is working under a contract for labour only, or substantially for labour only, or

(b)  the person works part-time or on a casual basis, or

(c)  the person is the lessee of any tools or other implements of production, or

(d)  the person is an outworker, or

(e)  the person is paid wholly or partly by commission (such as a person working in the capacity of salesperson, commercial traveller or insurance agent).

(3) Deemed employees
The persons described in Schedule 1 are taken to be employees for the purposes of this Act. Any person described in that Schedule as the employer of such an employee is taken to be the employer.

(4) Exclusion
A person employed or engaged by his or her spouse, de facto partner or parent is not an employee for the purposes of this Act.

Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

6   Definition of industrial matters

(1) General definition
In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

(2) Examples
Examples of industrial matters are as follows:

(a)  the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees),

(b)  the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry,

(c)  the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done),

(d)  part-time or casual employment (including part-time work agreements),

(e)  the termination of employment of (or the refusal to employ) any person or class of persons in any industry,

(f)  discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies,

(g)  procedures for the resolution of industrial disputes,

(h)  the established customs in any industry,

(i)  the authorised remittance by employers of membership fees of industrial organisations of employees,

(j)  the surveillance of employees in the workplace,

(k)  the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades.

Note. The Apprenticeship and Traineeship Act 2001 deals with apprenticeships and traineeships. Section 80 of that Act provides that that Act (and regulations, orders and directions under that Act) prevail over this Act (and regulations, orders, awards and agreements under this Act) to the extent of any inconsistency.

7   Definition of industry

In this Act, industry includes:

(a)  any trade, manufacture, business, project or occupation in which persons work, or

(b)  a part of an industry or a number of industries.

8   Definition of industrial instrument

In this Act, industrial instrument means an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement.

9   Notes in text

Notes in the text of this Act do not form part of this Act.

9A   Employers declared not to be national system employers

(1)  An eligible employer is declared not to be a national system employer for the purposes of the Fair Work Act 2009 of the Commonwealth if the Minister, by order published on the NSW legislation website, declares the employer not to be a national system employer.

(2)  An eligible employer is an employer that, under section 14 of the Fair Work Act 2009 of the Commonwealth, is eligible to be declared not to be a national system employer for the purposes of that Act.

(3)  If an eligible employer is declared not to be a national system employer, an industrial instrument (the transitional State instrument) is, on the declaration, taken to be established under this Act with the same terms and provisions of any federal industrial instrument that applied to the employees of that employer immediately before the declaration, subject to this section and to any modifications as are necessary or as may be prescribed by the regulations.

(4)  Subject to subsection (5), the transitional State instrument is, depending on the nature of the corresponding federal industrial instrument, taken to be either an award or an enterprise agreement under this Act.

(5)  The Commission may, on the application of the Minister or any party to the transitional State instrument:

(a)  make a determination as to whether the instrument is to be taken to be an award or an enterprise agreement under this Act, and

(b)  vary or revoke any term or provision of the instrument if the Commission is satisfied that it is fair and reasonable to do so in the circumstances, and

(c)  exempt a party to the instrument from any provision of this Act if the Commission is satisfied that it is fair and reasonable to do so in the circumstances.

(6)  If the transitional State instrument provides for any matter, including remuneration or conditions of employment, that does not meet the requirements set out in Division 2 of Part 1 of Chapter 2, the instrument is taken to be modified to the extent necessary to meet those requirements (but only in the case where the instrument is taken to be an award under this Act).

(7)  The transitional State instrument applies (unless earlier rescinded or terminated in accordance with this Act) for a nominal term that ends on the earlier of the following dates, and after that date, applies until rescinded or terminated in accordance with this Act:

(a)  the end of the day that is 2 years after the relevant eligible employer was declared not to be a national system employer,

(b)  the end of the day that is the expiry date of the corresponding federal industrial instrument.

(8)  The regulations may make provision for or with respect to the application of this Act to transitional State instruments.

(9)  In this section:

federal industrial instrument means:

(a)  a fair work instrument under the Fair Work Act 2009 of the Commonwealth, or

(b)  a Division 2B State instrument under Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth, or

(c)  an instrument given continuing effect under Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth, other than the following:

(i)  an Australian workplace agreement,

(ii)  a pre-reform Australian workplace agreement,

(iii)  an individual transitional employment agreement.

9B   Referral of workplace relations matters to Commonwealth

(1)  This Act is subject to the Fair Work Act 2009 of the Commonwealth, including provisions of that Act that have effect in this State because of the referral of matters relating to workplace relations to the Commonwealth Parliament by the Industrial Relations (Commonwealth Powers) Act 2009.

(2)  A reference in any Act or instrument to an industrial instrument or agreement (however described) includes a reference to a relevant federal industrial instrument or agreement if the context permits and it is necessary to do so to take account of the reference of those matters to the Commonwealth Parliament.

Chapter 2 Employment

Part 1 Awards

Division 1 Awards generally

10   Commission may make awards

The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.

11   When award may be made

(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.

12   Persons bound by 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.

15   Commencement of award

(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.

16   Term of award

(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.

18   Exemptions from awards

(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.

19   Review of awards

(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.

20   Consolidation of awards and rescission of obsolete awards

(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.

20A   (Repealed)

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).

Part 2 Enterprise agreements

Division 1 Preliminary

28A   Definitions

In this Part:

Federal award means:

(a)  a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth, or

(b)  a Division 2B State award under Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.

State award means:

(a)  an award made, or taken to be made, by the Commission under this Act, and

(b)  any order of the Commission under this Act that sets conditions of employment (but not including a dispute order, an order under Part 6 or a stand-down order under section 126), and

(c)  a determination under section 63 of the Public Sector Management Act 1988, or any similar determination relating to employment in the public sector (including employment with an area health service), and

(d)  a public sector industrial agreement, and

(e)  a former industrial agreement, and

(f)  any other instrument made under this Act, or made under any other Act, relating to conditions of employment that is declared by the regulations to be a State award for the purposes of this Part.

29   Making of enterprise agreements

An enterprise agreement may be made in accordance with this Act setting conditions of employment for employees.

30   Coverage of enterprise agreement

(1)  An enterprise agreement may (subject to this Part) be made for any relevant group of employees, including the following:

(a)  employees of a single employer (whether all employees or a group or category of employees),

(b)  employees of 2 or more associated employers (whether associated because they are related corporations, because they are engaged in a joint or common venture or because they undertake similar work),

(c)  employees engaged in a project (including a proposed project),

(d)  public sector employees (whether employees of all or of one or more authorities or whether all or some of the employees of an authority).

(2)  An enterprise agreement cannot be made for a group of employees if that group is limited by the agreement only to members of an industrial organisation.

31   Parties to an enterprise agreement

(1)  An enterprise agreement may be made between:

(a)  the employer or employers of the employees for whom it is made, and

(b)  one or more industrial organisations representing any of those employees.

An industrial organisation may represent only employees who are, or are eligible to be, members of the organisation.

(2)  An enterprise agreement may also be made between:

(a)  the employer or employers of the employees for whom it is made, and

(b)  the employees at the time the agreement is made.

Note. Section 36 (4) provides that the agreement must be approved by at least 65% of the employees at a secret ballot. Section 36 (5A) provides that an industrial organisation can become a party to the agreement.

(3)  A State peak council or an industrial organisation of employers may sign an enterprise agreement on behalf of industrial organisations or of employers and may apply for approval for the agreement. In that case, the industrial organisations or employers on whose behalf the agreement is signed are taken to be parties to the agreement and not the State peak council or the industrial organisation of employers.

(4)  An industrial organisation of employers may so sign an enterprise agreement on behalf of any employers (whether or not named in the agreement) who may in future employ persons in the project, venture or other industry for which the agreement is made.

(5)  In the case of an enterprise agreement made under subsection (2), the group of employees from time to time covered by the agreement is taken to be one of the parties to the agreement for the purposes of this Part.

Division 2 Approval of enterprise agreements

32   Enterprise agreement required to be approved

(1)  An enterprise agreement does not have any effect unless it is approved by the Commission under this Part.

(2)  This section extends to an enterprise agreement that varies an earlier agreement.

33   Principles for approval of enterprise agreements

(1)  A Full Bench of the Commission is required to set principles to be followed by the Commission in determining whether to approve enterprise agreements.

(2)  In determining those principles, the Full Bench is to have regard, in particular, to the following:

(a)  the objects of this Act and the public interest,

(b)  the relevant criteria for approval imposed by this Part,

(c)  the need for an appropriate process for approving agreements to be followed by the Commission,

(d)  the need for an appropriate process for ensuring sufficient information about the effect of the agreement is provided to employees who are to be covered by the agreement,

(e)  the need for an appropriate negotiating process for the agreement.

(3)  A Full Bench of the Commission is to review the principles for approval at least once every 3 years.

(4)  Principles for approval may be set or reviewed on the application of any party that can apply for approval of an enterprise agreement or on the Commission’s own initiative.

(5)  Industrial organisations are entitled to be notified of any proceedings of a Full Bench under this section and to make submissions on the setting or review of the principles for approval.

(6)  The Industrial Registrar is to publish the principles for approval on the NSW industrial relations website.

(7)  Principles for approval are to be set and published under this section within 6 months after the commencement of this Act.

34   Application for approval of enterprise agreement

(1)  Application for approval of an enterprise agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission.

(2)  At proceedings of the Commission relating to any such application for approval, the following may appear or be represented:

(a)  any party to the agreement,

(b)  an industrial organisation, if its members or persons eligible to become members are affected by the agreement,

(c)  a State peak council (but only with leave of the Commission),

(d)  the President of the Anti-Discrimination Board (but only with leave of the Commission).

(3)  The Commission is to deal with any such application for approval within 28 days, unless it requires additional time to do so because of the special circumstances of the case.

35   Approval of enterprise agreement by Commission

(1)  The Commission is to approve each enterprise agreement lodged for approval, but only if the Commission is satisfied that:

(a)  the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and

(b)  in the case of an agreement that covers employees to whom State awards would otherwise apply—the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards, and

(b1)  in the case of an agreement that covers employees to whom Federal awards would otherwise apply—the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and

(b2)  in the case of an agreement that covers employees to whom no State or Federal award would otherwise apply—the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement, and

(c)  the parties understand the effect of the agreement, and

(d)  the parties did not enter the agreement under duress.

(2)  This subsection applies to an enterprise agreement that applies to some but not all the employees of an employer, unless the employees to whom it applies comprise a distinct geographic, operational or organisational unit. The Commission is not to approve such an enterprise agreement if it is satisfied that:

(a)  the agreement fails to cover employees who would reasonably be expected to be covered, given the nature of the work performed under the agreement and the organisational and operational relationships between the employees covered by the agreement and the remainder of the employees, and

(b)  it is unfair not to cover the employees excluded from the agreement.

(3)  The Commission is to follow the principles for approval set under section 33 when deciding whether to approve an enterprise agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement.

(4)  (Repealed)

36   Special requirements relating to enterprise agreements to which employees are parties

(1)  An enterprise agreement under which employees are a party is not to be approved unless the requirements of this section have been complied with.

(2)  Before or at the time the employer first undertakes formal negotiations with the employees for the purposes of an agreement, the employer is to advise the Industrial Registrar in writing of the following:

(a)  that an enterprise agreement is proposed or under negotiation,

(b)  the State or Federal awards or enterprise agreements that then apply to the employees.

(3)  The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed enterprise agreement.

(4)  The enterprise agreement must be approved in a secret ballot by not less than 65% of the employees who are to be covered by the agreement at the time the ballot is conducted.

(5)  The Industrial Registrar must, after the enterprise agreement is lodged for approval, prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant State or Federal awards. If there are no relevant State or Federal awards, the report is to outline any relevant employment conditions of the employees.

(5A)  The Commission must, by its order, make an industrial organisation a party to the enterprise agreement if it is satisfied that:

(a)  the industrial organisation represents any of the employees covered by the enterprise agreement, and

(b)  the industrial organisation has notified the Commission of its intention to become a party to the agreement by lodging a notice to that effect with the Industrial Registrar at any time before the Commission approves of the agreement under this Part, and

(c)  an employee covered by the agreement is a member of the industrial organisation and has requested the industrial organisation to become a party to the agreement.

The Commission may direct that the name of an employee who made that request is not to be disclosed to the employer or other person.

(6)  (Repealed)

36A   Determination of comparable award for purposes of approval of agreement for employees without award coverage

(1)  This section applies to an enterprise agreement that is in the process of being negotiated and that will cover employees to whom no State or Federal award would otherwise apply.

(2)  A party to any such enterprise agreement may, before making an application for approval of the enterprise agreement under this Part, make a written application to the Industrial Registrar for a determination of the relevant State or Federal award against which the enterprise agreement will be compared for the purposes of the application of the “no net detriment” test in section 35 (1) (b2).

(3)  The Industrial Registrar must:

(a)  advise any person or body entitled to be advised of the proposed enterprise agreement under section 36 (3) of the application made under this section, and

(b)  advise the applicant, any such person or body and the Commission of the relevant State or Federal award determined by the Industrial Registrar.

(4)  If a determination is made by the Industrial Registrar under this section, the determination applies for the purposes of the application of the “no net detriment” test in section 35 (1) (b2), subject to the result of any appeal under this Act to the Commission against the determination of the Industrial Registrar.

(5)  If a determination is not made by the Industrial Registrar under this section, the determination of the matter is to be made by the Commission at the time of the application of the “no net detriment” test under section 35 (1) (b2).

37   Secret ballots under this Part

(1)  Except as provided by subsection (2), a secret ballot under this Part must be conducted by a person (other than the employer or a person selected by that employer) on behalf of the employees entitled to vote in the ballot, being a person who meets any other requirement that may be imposed by the regulations or the principles established by the Commission.

(2)  If, within 14 days next following the holding of such a ballot, the Industrial Registrar receives a written complaint from at least 20% of the persons entitled to vote in the ballot alleging specified irregularities in the conduct of the ballot and requesting that a further secret ballot be conducted by an independent person, the Industrial Registrar may (if of the opinion that such action is justified) arrange with the persons concerned:

(a)  for the conduct of such a further secret ballot, and

(b)  for evidence of the result of the further ballot to be supplied to the Industrial Registrar.

(3)  The Commission may adjourn proceedings for the approval of an enterprise agreement if a request is made for a further ballot.

(4)  The Industrial Registrar may, in any special case, extend the time for receiving a request for a further ballot.

(5)  The result of a further ballot is to be disregarded if the Industrial Registrar is not satisfied that it has been conducted in accordance with the Industrial Registrar’s directions.

Division 3 General

38   Form and content of enterprise agreement

(1)  An enterprise agreement is required to be in writing and signed by or on behalf of the parties to it.

(2)  An enterprise agreement must:

(a)  identify the parties to the agreement and describe the employees for whom it is made, and

(b)  set all or some conditions of employment for those employees.

(3)  If an enterprise agreement does not specify the place or places of employment to which it applies, the agreement applies:

(a)  to any place of employment at which those employees were employed at the time the agreement was made, and

(b)  to any other place at which those employees could reasonably be expected to be employed during the currency of the agreement.

39   Mandatory dispute resolution procedures in enterprise agreements

(1)  An enterprise agreement is not to be approved unless it contains procedures for the resolution of industrial disputes under the enterprise agreement (dispute resolution procedures).

(2)  However, an enterprise agreement need not contain dispute resolution procedures if the Commission is satisfied that another relevant agreement or award already does so.

(3)  Dispute resolution procedures may (but need not) be included in an enterprise agreement if the employer employs fewer than 20 employees.

40   Persons bound by enterprise agreement

An enterprise agreement is binding on:

(a)  the parties to the agreement, and

(b)  each employee for whom the agreement is made (whether or not such an employee at the time the agreement was made).

41   Enterprise agreements prevail over State awards

(1)  The provisions of an enterprise agreement prevail over the provisions of any State award of the Commission that deal with the same matters in so far as the provisions of the State award apply to a person bound by the enterprise agreement. This subsection is subject to the terms of the enterprise agreement.

(2)  Nothing in this Part limits the application to an employee bound by an enterprise agreement of any conditions of employment that apply to employees generally under this Act or any other Act.

(3)  (Repealed)

42   Term of enterprise agreement

(1)  An enterprise agreement applies for the period specified in it as its nominal term and, after that period, until terminated in accordance with this Part.

(2)  The nominal term of an enterprise agreement must not be more than 3 years.

(3)  However, an enterprise agreement made for a project may have a specified nominal term not exceeding the expected duration of the project.

(4)  An enterprise agreement varying an earlier agreement applies for the residue of the term of the agreement it varies.

43   Variation of an enterprise agreement

(1)  An enterprise agreement may be varied at any time by a further enterprise agreement made and approved in accordance with this Part.

(2)  The parties to the further agreement need not be the same as the parties to the earlier agreement.

Note. Section 169 also enables an enterprise agreement to be varied at any time to remove unlawful discrimination.

44   Termination of enterprise agreement

(1)  An enterprise agreement can be terminated only in accordance with this section.

(2)  An enterprise agreement can be terminated at any time with the approval of all the parties to it, whether during or after its nominal term.

(3)  An enterprise agreement can also be terminated at or after the end of its nominal term by any one of the parties giving at least 3 months’ written notice of intention to terminate to each other party. The notice may be served before the end of the nominal term.

(4)  In the case of an enterprise agreement in which the employees are a party, the proposed termination of the agreement by the employees must be approved in a secret ballot by not less than 65% of the employees covered by the agreement at the time the ballot is conducted.

(5)  Termination of the enterprise agreement is not effective until the Industrial Registrar has been given written notice of the approval to terminate or of service of the notice of intention to terminate.

45   Register and publication of enterprise agreements

(1)  The Industrial Registrar is to keep a register of all enterprise agreements that have been approved by the Commission, approvals or notices to terminate enterprise agreements, and such other particulars as the Industrial Registrar considers appropriate.

(2)  The Industrial Registrar is to publish the following details on the NSW industrial relations website of each enterprise agreement as soon as practicable after the agreement is approved:

(a)  the identity of the parties to the agreement and the description of the employees covered by the agreement,

(b)  the commencement and the nominal term of the agreement,

(c)  a statement of whether the agreement is a new agreement or the variation of an earlier agreement.

(3)  The register of enterprise agreements is to be open for public inspection during ordinary office hours.

(4)  A person may make copies of any document kept in the register of enterprise agreements on payment of such fee, if any, as is prescribed by the regulations.

46   Notification of enterprise agreements to new employees

Before an employer bound by an enterprise agreement employs a person who will be bound by conditions of employment set by the agreement, the employer must give the person notice of the existence of the agreement and access to a copy or to a summary of the agreement, for perusal by the person, in a language the person understands.

Maximum penalty: 10 penalty units.

47   Enterprise agreement conditions—flow-on

When making awards or exercising its other arbitral functions under this Act, the Commission is not to regard conditions of employment set by enterprise agreements as standard conditions of employment for other employees.

Part 3 National and State decisions

48   What is a National decision?

A National decision is a decision of the Minimum Wage Panel or a Full Bench of Fair Work Australia that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to the jurisdiction of that panel or body.

49   What is a State decision?

A State decision is a decision of a Full Bench of the Commission that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to its jurisdiction.

50   Adoption of National decisions

(1)  As soon as practicable after the making of a National decision, a Full Bench of the Commission must give consideration to the decision and, unless satisfied that it is not consistent with the objects of this Act or that there are other good reasons for not doing so, must adopt the principles or provisions of the National decision for the purposes of awards and other matters under this Act.

(2)  A Full Bench of the Commission is to give consideration to the National decision either on application or on its own initiative.

(3)  The principles or provisions of a National decision may be adopted:

(a)  wholly or partly and with or without modification, and

(b)  generally for all awards or other matters under this Act or only for particular awards or other matters under this Act.

(4)  The principles or provisions of a National decision so adopted may be varied by a Full Bench of the Commission, whether or not another National decision is made.

51   Making of State decisions

(1)  A Full Bench of the Commission may, if satisfied that it is consistent with the objects of this Act and that there are good reasons for doing so, make a State decision setting principles or provisions for the purposes of awards and other matters under this Act.

(2)  A Full Bench of the Commission may make a State decision only on the application of a State peak council or on its own initiative.

(3)  A State decision may apply generally to all awards or other matters under this Act or only to particular awards or other matters under this Act.

(4)  The principles or provisions of a State decision may be varied by a Full Bench of the Commission.

52   Variation of awards and other orders on adoption of National decisions or making of State decisions

(1)  A Full Bench of the Commission may, when adopting the principles or provisions of a National decision or making a State decision, make or vary awards , or make other orders, to the extent necessary to give effect to its decision.

(2)  (Repealed)

Note. The adoption of a National decision or the making of a State decision enables the variation of an award to give effect to the decision without the concurrence of the parties to the award (see section 17).

Part 4 Parental leave

Division 1 Parental leave generally

53   Employees to whom Part applies

(1)  This Part applies to all employees, including part-time employees or regular casual employees, but does not apply to other casual or seasonal employees.

(2)  For the purposes of this Part, a regular casual employee is a casual employee who works for an employer on a regular and systematic basis and who has a reasonable expectation of on-going employment on that basis.

54   Entitlement to unpaid parental leave

(1)  An employee is entitled to a total of 52 weeks unpaid parental leave in connection with the birth or adoption of a child, as provided by this Part.

(2)  Parental leave is not to extend beyond 1 year after the child was born or adopted.

Note. See also Part 5 relating to entitlements to part-time work agreements.

55   What is parental leave?

(1)  For the purposes of this Part, parental leave is maternity leave, paternity or partner leave or adoption leave.

(2)  Maternity leave is leave taken by a female employee in connection with the pregnancy, or the birth of a child following the pregnancy, of the employee. Maternity leave consists of an unbroken period of leave.

(3)  Paternity or partner leave is leave taken by an employee in connection with the birth of a child of the employee or a child of the employee’s spouse (being a child born as a result of the pregnancy of that spouse). Paternity or partner leave consists of:

(a)  an unbroken period of up to one week at the time of the birth of the child or other termination of the pregnancy (short paternity or partner leave), and

(b)  a further unbroken period in order to be the primary care-giver of the child (extended paternity or partner leave).

(4)  Adoption leave is leave taken by a female or male employee in connection with the adoption by the employee of a child under the age of 18 years (other than a child who has previously lived continuously with the employee for a period of at least 6 months or who is a child or step-child of the employee or of the employee’s spouse). Adoption leave consists of:

(a)  an unbroken period of up to 3 weeks at the time of the placement of the child with the employee (short adoption leave), and

(b)  a further unbroken period in order to be the primary care-giver of the child (extended adoption leave).

(5)  For the purposes of this Part, spouse includes a de facto partner.

Note. Employees are also entitled to special maternity leave for recovery from a termination of pregnancy or illness related to pregnancy (section 71) and to special adoption leave up to 2 days to attend interviews or examinations for the purposes of adoption (section 72). The requirement of unbroken periods of leave is subject to section 63 (Employee and employer may agree to interruption of parental leave by return to work).

56   This Part provides minimum entitlements

(1)  This Part sets out the minimum entitlements of employees to parental leave.

(2)  The provisions of an industrial instrument, contract of employment or other agreement (whether made or entered into before or after the commencement of this Part) do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under this Part.

57   Length of service for eligibility

(1)  An employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer.

(2)  Continuous service is service under one or more unbroken contracts of employment, including:

(a)  any period of authorised leave or absence, and

(b)  any period of part-time work.

(3)  However, in the case of a casual employee:

(a)  the employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer as a regular casual employee (or partly as a regular casual employee and partly as a full-time or part-time employee), and

(b)  continuous service is work for an employer on an unbroken regular and systematic basis (including any period of authorised leave or absence).

Note. Under Part 8 of this Chapter a period of service in the business of a former employer counts as service with a new employer to whom the business concerned has been transferred.

58   Notices and documents required to be given to employer

(1) Maternity leave
The notices and documents to be given to the employer for the purposes of taking maternity leave are as follows:

(a)  The employee should give at least 10 weeks’ written notice of the intention to take the leave.

(b)  The employee must, at least 4 weeks’ before proceeding on leave, give written notice of the dates on which she proposes to start and end the period of leave.

(c)  The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that she is pregnant and the expected date of birth.

(d)  The employee must, before the start of leave, provide a statutory declaration by the employee stating, if applicable, the period of any paternity or partner leave sought or taken by her spouse.

(2) Paternity or partner leave
The notices and documents to be given to the employer for the purposes of taking paternity or partner leave are as follows:

(a)  In the case of extended paternity or partner leave, the employee should give at least 10 weeks’ written notice of the intention to take the leave.

(b)  The employee must, at least 4 weeks before proceeding on leave, give written notice of the dates on which the employee proposes to start and end the period of leave.

(c)  The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that the employee’s spouse is pregnant and the expected date of birth.

(d)  In the case of extended paternity or partner leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:

(i)  if applicable, the period of any maternity leave sought or taken by the employee’s spouse, and

(ii)  that the employee is seeking that period of extended paternity or partner leave to become the primary care-giver of a child.

(3) Adoption leave
The notices and documents to be given to the employer for the purposes of taking adoption leave are as follows:

(a)  In the case of extended adoption leave, the employee should give written notice of any approval or other decision to adopt a child at least 10 weeks’ before the expected date of placement.

(b)  The employee must give written notice of the dates on which the employee proposes to start and end the period of leave, as soon as practicable after the employee is notified of the expected date of placement of the child but at least 14 days before proceeding on leave.

(c)  The employee must, before the start of leave, provide a statement from an adoption agency or another appropriate body of the expected date of placement of the child with the employee for adoption purposes.

(d)  In the case of extended adoption leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:

(i)  if applicable, the period of any adoption leave sought or taken by his or her spouse, and

(ii)  that the employee is seeking that period of extended adoption leave to become the primary care-giver of a child.

(4)  An employee does not fail to comply with this section if the failure was caused by:

(a)  the child being born (or the pregnancy otherwise terminating) before the expected date of birth, or

(b)  the child being placed for adoption before the expected date of placement,

      or if it was not otherwise reasonably practicable to comply in the circumstances.

In the case of the birth of a living child, notice of the period of leave is to be given within 2 weeks after the birth and the certificate of the medical practitioner is to state that the child was born and the date of birth. In the case of the adoption of a child, notice of the period of leave is to be given within 2 weeks after the placement of the child.

(5)  An employee must notify the employer of any change in the information provided under this section within 2 weeks after the change.

(6)  If required by the employer, an employee who applies for parental leave is to give the employer a statutory declaration, or enter into an agreement with the employer, that for the period of the leave the employee will not engage in any conduct inconsistent with the employee’s contract of employment.

59   Continuity of service

(1)  Parental leave does not break an employee’s continuity of service, but is not to be taken into account in calculating an employee’s period of service for any purpose.

(2)  However, parental leave counts as service for any purpose authorised by law or by any industrial instrument or contract of employment.

60   Parents not to take parental leave at the same time

(1)  An employee is not entitled to parental leave at the same time as his or her spouse is on parental leave under this Part.

(2)  If this section is contravened the period of parental leave to which the employee is entitled under this Part is reduced by the period of leave taken by his or her spouse.

(3)  This section does not apply to short paternity or partner leave or short adoption leave.

61   Cancellation of parental leave

(1) Before starting leave
Parental leave applied for but not commenced is automatically cancelled if:

(a)  the employee withdraws the application for leave by written notice to the employer, or

(b)  the pregnancy concerned terminates other than by the birth of a living child or the placement of the child concerned does not proceed.

(2) After starting leave
If:

(a)  the pregnancy of an employee or an employee’s spouse terminates other than by the birth of a living child while the employee or spouse is on parental leave, or

(b)  the child in respect of whom an employee is then on parental leave dies, or

(c)  the placement of a child for adoption purposes with an employee then on adoption leave does not proceed or continue,

      the employee is entitled to resume work at a time nominated by his or her employer within 2 weeks after the date on which the employee gives his or her employer a notice in writing stating that the employee intends to resume work and the reason for the intended resumption.

(3) Special leave not affected
This section does not affect an employee’s entitlement to special maternity leave under section 71.

62   Parental leave and other leave

(1)  An employee may take any annual leave or long service leave (or any part of it) to which the employee is entitled instead of or in conjunction with parental leave.

(2)  However, the total period of leave cannot be so extended beyond the maximum period of parental leave authorised by this Part.

(3)  Any paid sick leave or other paid absence authorised by law or by an industrial instrument or contract of employment is not available to an employee on parental leave, except if the paid absence is annual leave or long service leave or with the agreement of the employer.

63   Employee and employer may agree to interruption of parental leave by return to work

(1)  An employee on parental leave may, with the agreement of the employer, break the period of leave by returning to work for the employer, whether on a full-time, part-time or casual basis.

(2)  The period of leave cannot be extended by such a return to work beyond the maximum period of leave authorised by this Part.

(3)  Nothing in this section affects any other work undertaken by the employee during parental leave.

Note. Section 58 (6) requires the employee when taking parental leave to provide the employer with a statutory declaration, or enter into an agreement with the employer, that the employee will not engage during leave in any conduct inconsistent with the employee’s contract.

64   Extension of period of parental leave

(1)  An employee may extend the period of parental leave once only by giving the employer notice in writing of the extended period at least 14 days before the start of the extended period. The period of leave cannot be extended by such a notice beyond the maximum period of leave authorised by this Part.

(2)  An employee may extend the period of parental leave at any time with the agreement of the employer. The period of leave can be extended by such an agreement beyond the maximum period of leave authorised by this Part.

(3)  This section applies to an extension of leave while the employee is on leave or before the employee commences leave.

65   Shortening of period of parental leave

An employee may shorten the period of parental leave with the agreement of the employer and by giving the employer notice in writing of the shortened period at least 14 days before the leave is to come to an end.

66   Return to work after parental leave

(1)  An employee returning to work after a period of parental leave is entitled to be employed in:

(a)  the position held by the employee immediately before proceeding on that leave, or

(b)  if the employee worked part-time or on a less regular casual basis because of the pregnancy before proceeding on maternity leave—the position held immediately before commencing that part-time work or less regular casual work, or

(c)  if the employee was transferred to a safe job under section 70 before proceeding on maternity leave—the position held immediately before the transfer.

(2)  If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position as nearly as possible comparable in status and pay to that of the employee’s former position.

(3)  This section extends to a female employee returning to work after a period of leave under section 71 (Special maternity leave and sick leave).

(4)  An employer who does not make available to an employee a position to which the employee is entitled under this section is guilty of an offence.

Maximum penalty: 100 penalty units.

(5)  In this section, a reference to employment in a position includes, in the case of a casual employee, a reference to work for an employer on a regular and systematic basis.

Note. An employee returning to work after parental leave may also have an entitlement to work part-time under an industrial instrument or a part-time work agreement under Part 5.

Division 2 Miscellaneous provisions

67   Employer’s obligations

(1) Information to employees
On becoming aware that an employee (or an employee’s spouse) is pregnant, or that an employee is adopting a child, an employer must inform the employee of:

(a)  the employee’s entitlements to parental leave under this Part, and

(b)  the employee’s obligations to notify the employer of any matter under this Part.

An employer cannot rely on an employee’s failure to give a notice or other document required by this Part unless the employer establishes that this subsection has been complied with in relation to the employee.

(2) Records
An employer must keep, for at least 6 years, a record of parental leave granted under this Part to employees and all notices and documents given under this Part by employees or the employer.

Maximum penalty: 20 penalty units.

68   Termination of employment because of pregnancy or parental leave

(1)  An employer must not terminate the employment of an employee because:

(a)  the employee or employee’s spouse is pregnant or has applied to adopt a child, or

(b)  the employee or employee’s spouse has given birth to a child or has adopted a child, or

(c)  the employee has applied for, or is absent on, parental leave,

      but otherwise the rights of an employer in relation to termination of employment are not affected by this Part.

Maximum penalty: 100 penalty units.

(2)  For the purposes of establishing such a termination of employment, it is sufficient if it is established that the alleged reason for termination was one of two or more reasons for termination.

(3)  This section does not affect any other rights of a dismissed employee under this or any other Act or under any industrial instrument or contract of employment, or the rights of an industrial organisation representing such an employee.

Note. A dismissed employee may also make a claim under Part 6 (Unfair dismissals).

69   Replacement employees

(1)  A replacement employee is a person who is specifically employed as a result of an employee proceeding on parental leave (including as a replacement for an employee who has been temporarily promoted or transferred in order to replace the employee proceeding on parental leave).

(2)  Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee on parental leave to return to work.

Maximum penalty: 50 penalty units.

(3)  A reference in this section to an employee proceeding on parental leave includes a reference to a pregnant employee exercising a right under section 70 to be transferred to a safe job.

70   Transfer to a safe job

(1)  This section applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or of her unborn or new born child. The assessment of such a risk is to be made on the basis of a medical certificate supplied by the employee and of the obligations of the employer under the Work Health and Safety Act 2011.

(2)  The employer is to temporarily adjust the employee’s working conditions or hours of work to avoid exposure to that risk.

(3)  If such an adjustment is not feasible or cannot reasonably be required to be made, the employer is to transfer the employee to other appropriate work that:

(a)  will not expose her to that risk, and

(b)  is as nearly as possible comparable in status and pay to that of her present work.

(4)  If such a transfer is not feasible or cannot reasonably be required to be made, the employer is to grant the employee maternity leave under this Part (or any available paid sick leave) for as long as is necessary to avoid exposure to that risk, as certified by a medical practitioner.

(5)  An employer who does not comply with any obligation imposed on the employer by this section is guilty of an offence.

Maximum penalty (subsection (5)): 50 penalty units.

71   Special maternity leave and sick leave

If the pregnancy of an employee terminates before the expected date of birth (other than by the birth of a living child), or she suffers illness related to her pregnancy, and she is not then on maternity leave:

(a)  the employee is entitled to such period of unpaid leave (to be known as special maternity leave) as a medical practitioner certifies to be necessary before her return to work, or

(b)  the employee is entitled to such paid sick leave (either instead of or in addition to special maternity leave) as she is then entitled to and as a medical practitioner certifies to be necessary for her return to work.

72   Special adoption leave

An employee who is seeking to adopt a child is entitled to up to 2 days unpaid leave if the employee requires that leave to attend compulsory interviews or examinations as part of the adoption procedure.

Part 4B Leave for victims of crime

72AA   Employees to whom Part applies

This Part applies to all employees, including part-time employees and casual employees.

72AB   Definitions

(1)  In this Part:

court proceedings means proceedings before a court against a person charged with a violent crime, including:

(a)  committal proceedings, and

(b)  sentencing proceedings, and

(c)  proceedings on appeal, and

(d)  proceedings on a back up offence or related offence (as defined in section 35 of the Criminal Procedure Act 1986) in relation to the alleged violent crime, and

(e)  any other proceedings prescribed by the regulations.

harm means actual physical bodily harm, mental illness or nervous shock.

victim of crime means a person:

(a)  who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of an alleged violent crime, or

(b)  who is the parent, grandparent or guardian of a child who suffers such harm (but only if the child is under the age of 18 years at the time victims leave is taken), or

(c)  who is a member of the immediate family of a person who dies as a direct result of an act committed, or apparently committed, by another person in the course of an alleged violent crime.

victims leave means leave under this Part.

violent crime means a serious indictable offence involving violence (including sexual or indecent assault).

Note. The Interpretation Act 1987 defines a serious indictable offence as an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

(2)  A member of the immediate family of a person is:

(a)  the person’s spouse, or

(b)  the person’s de facto partner, or

(c)  a parent or guardian, or step-parent, of the person, or

(d)  a grandparent or step-grandparent of the person (a step-grandparent being a step-parent of a parent of the person), or

(e)  a child or step-child of the person or some other child of whom the person is the guardian, or

(f)  a grandchild or step-grandchild of the person (a step-grandchild being a step-child of a child of the person), or

(g)  a brother, sister, step-brother or step-sister of the person.

72AC   Entitlement to unpaid victims leave

(1)  An employee who is a victim of crime is entitled to unpaid victims leave in connection with court proceedings relating to the violent crime, as provided by this Part.

(2)  This Part does not affect any other entitlement to paid or unpaid leave of the employee.

72AD   Purposes for which victims leave may be taken

(1)  Victims leave may be taken:

(a)  for the purpose of attending court proceedings scheduled in relation to the violent crime (whether or not as a witness), and

(b)  for the purpose of travelling to attend those court proceedings if the victim usually resides more than 100 kilometres from the place where the proceedings are scheduled to be held.

(2)  Victims leave may be taken for a full working day for the purpose of attending court proceedings even if the proceedings are only scheduled for a part of the day or, without prior notice to the employee, the proceedings do not proceed on the day on which they were scheduled.

(3)  Victims leave for the purpose of travel to attend court proceedings is not to exceed one working day for the duration of any stage of the court proceedings.

72AE   Notices and documents required to be given to employer

(1)  The notices and documents to be given to the employer for the purpose of taking victims leave are as follows:

(a)  the employee is to give at least one week’s notice of the intention to take the leave,

(b)  if requested by the employer, the employee is to provide to the employer a certificate from a police officer, prosecutor or other relevant official confirming that the employee is a victim of crime (within the meaning of this Part) and the date or dates on which the court proceedings will be held.

(2)  An employee is not required to comply with this section if the employee is not notified of the court proceedings in sufficient time to give the required period of notice or if it was not otherwise reasonably practicable to comply in the circumstances.

72AF   Return to work after victims leave

(1)  An employee returning to work after a period of victims leave is entitled to be employed in the position held by the employee immediately before proceeding on leave.

(2)  If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position as nearly as possible comparable in status and pay to that of the employee’s former position.

Note. See Part 6 of this Chapter and Part 1 of Chapter 5 for remedies available to an employee who is dismissed or otherwise victimised for claiming the benefit of victims leave.

72AG   Miscellaneous provisions relating to victims leave

(1)  Victims leave does not break an employee’s continuity of service, but any period of leave that exceeds 3 months is not to be taken into account in calculating the employee’s period of service for any purpose.

(2)  An employee may take any annual, long service or other leave to which the employee is entitled instead of or in conjunction with victims leave.

(3)  This Part sets out the minimum entitlements of employees to victims leave. The provisions of an industrial instrument, contract of employment or other agreement (whether made or entered into before or after the commencement of this Part) do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under this Part.

(4)  This Part extends to persons employed on or after the commencement of this Part and to violent crimes committed before or after that commencement.

Part 5 Part-time work

73   Employees to whom Part applies

This Part applies to employees for whom any conditions of employment are set by an industrial instrument.

74   What is part-time work?

For the purposes of this Part, part-time work is work of a lesser number of hours than constitutes full-time work under the relevant industrial instrument, other than casual work.

75   This Part not to affect other entitlements to work part-time

Nothing in this Part affects any entitlement that an employee has to part-time work under any industrial instrument.

76   Entitlement to work part-time with agreement of employer

(1)  An employee may work part-time in accordance with this Part with the agreement of the employer (a part-time work agreement).

(2)  A part-time work agreement must be in writing and signed by the employer and employee.

(3)  A part-time work agreement must provide for agreement on the following:

(a)  the entitlement of the employee to work part-time,

(b)  the number of hours to be worked by the employee, the days on which they will be worked and commencing and finishing times for the work,

(c)  the classification applying to the work to be performed,

(d)  the entitlement (if any) of the employee to return to full-time employment.

(4)  The agreement may be limited to a specified period or periods of part-time employment, but need not be so limited.

(5)  The agreement may be made prior to the employee commencing employment with the employer.

77   Variation of part-time work agreements

A part-time work agreement may be varied by a further agreement in writing between the employee and employer.

78   Obligations of employer under part-time work agreements

(1)  A part-time work agreement must be retained by the employer during the period of part-time work.

(2)  The employer must give a copy of the agreement to the employee immediately after it is made.

(3)  The employer must send a copy of the agreement to the Industrial Registrar not later than 1 month after it is made.

(4)  The copy of the agreement is to be made available by the Industrial Registrar for public inspection during ordinary office hours. A person may make copies of it on payment of such fee, if any, as is prescribed by the regulations.

(5)  This section extends to any variation of the agreement.

Maximum penalty: 20 penalty units.

79   Application of industrial instruments

(1) Application generally
Part-time work under this Part is to be in accordance with the provisions of the industrial instrument applicable to the work concerned, except where the provisions do not have effect or are modified because of this section.

(2) Application pro rata
To the extent that any such provision of the industrial instrument is based on an employee engaged on a full-time basis, the provision is to apply pro rata to part-time work under this Part.

(3) Commission to make State decision on part-time work
A Full Bench of the Commission is required to make a State decision under Part 3 relating to part-time work by employees covered by industrial instruments and to set, by that decision, minimum conditions of employment to which part-time work agreements under this Part are to be subject. The minimum conditions must include minimum and maximum hours of work and other relevant conditions of employment.

(4) Inconsistent provisions
Any of the following provisions of an industrial instrument has, except to the extent that it is identified as a minimum condition by any such State decision, no effect if it would prevent an employee working part-time under this Part:

(a)  a provision limiting the number of employees who may work part-time,

(b)  a provision establishing quotas as to the ratio of part-time to full-time employees,

(c)  a provision prescribing a minimum or maximum number of hours a part-time employee may work.

80   Additional hours of work

An employer may request, but not require, an employee working part-time under this Part to work for longer than the hours agreed to under the part-time work agreement.

81   Leave

(1)  The leave entitlements of an employee working part-time under this Part (including entitlements previously accrued) are to be converted into hours. The conversion is to be based on a day’s leave being equivalent to the number of ordinary hours of work for a day of full-time employment.

(2)  Leave entitlements based on full-time work are to accrue pro rata during the part-time work.

(3)  Leave taken during part-time work is to be taken on an hourly basis for each ordinary hour of part-time work during which the employee is absent from work.

(4)  Any accrued leave entitlements on return to full-time employment are to be re-converted into days.

(5)  By agreement between the employer and the employee, the period over which leave is taken during part-time work may be shortened to the extent necessary for the employee to receive pay at the employee’s current full-time rate.

(6)  This section is subject to any provision of a relevant industrial instrument that provides for leave during part-time work.

82   Replacement employees

(1)  A replacement employee is a person who is specifically employed as a result of an employee working part-time under this Part and whose employment may be terminated on the return of that employee to full-time employment.

(2)  Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee working part-time to return to full-time employment.

Maximum penalty: 50 penalty units.

Part 6 Unfair dismissals

83   Application of Part

(1)  This Part applies to the dismissal of:

(a)  any public sector employee, or

(b)  any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations).

(1A)  This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if:

(a)  the person is entitled to make an application to Fair Work Australia with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or

(b)  the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Fair Work Act 2009 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)).

(2)  This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes:

(a)  employees engaged under a contract of employment for a specified period of time or a specific task,

(b)  employees serving a period of probation or qualifying period,

(c)  employees engaged on a casual basis for a short period,

(d)  employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances,

(e)  employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of:

(i)  their particular conditions of employment, or

(ii)  the size or nature of the undertakings in which they are employed.

(3)  This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 or Part 5 of the Police Act 1990 applies.

(4)  This Part applies to the dismissal of an employee even though it occurred in the course of an industrial dispute and the Commission is otherwise authorised under this Act to order the reinstatement of the employee.

(5)  In this Part:

dismissal includes:

(a)  the threat of dismissal, and

(b)  in the case of a public sector employee—dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.

Federal award means:

(a)  a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth, or

(b)  a Division 2B State award under Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.

industrial instrument includes a Federal award.

84   Application for remedy by dismissed employee

(1)  If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.

(2)  An application may be made on behalf of the employee by an industrial organisation of employees.

(3)  An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually.

(4)  An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable.

85   Time for making applications

(1)  An application under this Part must be made not later than 21 days after the dismissal of the employee.

(2)  The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and:

(a)  the similar application was made within the time required by that Commonwealth law, and

(b)  the similar application has not been settled or determined, and

(c)  the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part.

(3)  The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to:

(a)  the reason for, and the length of, the delay in making the application, and

(b)  any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

(c)  the conduct of the employer relating to the dismissal.

86   Conciliation of applications

The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant’s claim by conciliation.

87   Arbitration where conciliation unsuccessful

(1)  When, in the opinion of the Commission, all reasonable attempts to settle the applicant’s claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act.

(2)  Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order.

88   Matters to be considered in determining a claim

In determining the applicant’s claim, the Commission may, if appropriate, take into account:

(a)  whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

(b)  if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c)  whether a warning of unsatisfactory performance was given before the dismissal, and

(d)  the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e)  whether or not the applicant requested reinstatement or re-employment with the employer, and

(f)  such other matters as the Commission considers relevant.

89   Orders for reinstatement, re-employment, remuneration, compensation

(1) Reinstatement
The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

(2) Re-employment
If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission’s opinion, is suitable.

(3) Remuneration
If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.

(4) Continuity
If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.

(5) Compensation
If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave.

(6)  When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment.

(7) Threat of dismissal
In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.

(8)  An order under this section may be made on such terms and conditions as the Commission determines.

90   Effect of availability of other remedies

The Commission must not determine an applicant’s claim by making an order under section 89 if:

(a)  another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and

(b)  the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.

90A   Industrial agent must not represent an applicant or employer in proceedings unless there are reasonable prospects of success

(1)  In this section:

compensation order means an order for compensation under section 89 (5).

compensation proceedings means proceedings under this Part in which a compensation order is sought (whether or not any other order is sought in addition to or as an alternative to the compensation order).

(2)  An industrial agent must not represent an applicant in compensation proceedings unless the industrial agent has filed a certificate with the Industrial Registrar certifying that the industrial agent has reasonable grounds for believing, on the basis of provable facts, that the applicant’s claim in the proceedings has reasonable prospects of success.

(3)  An industrial agent must not represent an employer in compensation proceedings unless the industrial agent has filed a certificate with the Industrial Registrar certifying that the industrial agent has reasonable grounds for believing, on the basis of provable facts, that the employer’s response to the claim in the proceedings has reasonable prospects of success.

(4)  A fact is provable only if the industrial agent reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.

(5)  A claim has reasonable prospects of success if there are reasonable prospects of the Commission making the compensation order or, if the compensation order is sought in addition to or as an alternative to another order, any of the other orders sought.

(6)  A response has reasonable prospects of success if there are reasonable prospects of the Commission refusing to make the compensation order or, if the compensation order is sought in addition to or as an alternative to another order, any of the other orders sought.

(7)  This section does not apply to any service provided as a preliminary matter for the purpose of a proper and reasonable consideration of whether a claim or response has reasonable prospects of success.

(8)  If the Commission hearing proceedings under this Part finds that the facts established by the evidence before the Commission do not form a basis for a reasonable belief that the claim or the response had reasonable prospects of success, there is a presumption for the purposes of this section that industrial agent services provided on the claim or the response (as appropriate) were provided without reasonable prospects of success.

(9)  A presumption arising under this section is rebuttable and an industrial agent who seeks to rebut it bears the onus of establishing that at the time industrial agent services were provided there were provable facts (as provided by subsection (2) and (3)) that provided a basis for a reasonable belief that the claim or the response on which they were provided had reasonable prospects of success.

(10)  An industrial agent may, for the purpose of establishing that at the time industrial agent services were provided there were provable facts (as provided by subsection (2) and (3)) that provided a basis for a reasonable belief that the claim or the response on which they were provided had reasonable prospects of success, produce information or a document despite any duty of confidentiality in respect of a communication between the industrial agent and a client, but only if:

(a)  the client is the client to whom the industrial agent services were provided or consents to its disclosure, or

(b)  the Commission is satisfied that it is necessary for the industrial agent to do so in order to rebut a presumption arising under this section.

90B   Extinguishment of rights and liabilities

A payment made after the commencement of this section in compliance with an order under this Part or any other agreement between the applicant and employer in relation to proceedings under this Part does not extinguish any right given, or liability imposed, on an applicant or employer by the order or agreement unless the payment is made:

(a)  directly to the applicant or employer, or

(b)  to an industrial organisation on behalf of the applicant or employer, or

(c)  to an Australian legal practitioner on behalf of the applicant or employer, or

(d)  to another person in accordance with the directions of the Commission.

Note. Section 181 provides that the Commission may order costs to be paid in proceedings under this Part in the circumstances set out in that section. Section 380 enables the Commission in the course of proceedings under this Part to make an order for a small claim under Part 2 of Chapter 7 (Recovery of remuneration and other amounts) connected with the unfair dismissal.

Part 7 Public sector promotion and disciplinary appeals

Division 1 Preliminary

91   Interpretation

(1)  In this Part:

appeal means a promotion appeal or a disciplinary appeal.

appealable decision means a decision of a kind referred to in section 97 (1).

approved form means a form in or to the effect of a form approved by the President of the Commission.

disciplinary appeal means an appeal under section 98.

office includes position.

promotion appeal means an appeal under section 94.

public sector employee means a person who is:

(a)  employed in a Division of the Government Service within the meaning of the Public Sector Employment and Management Act 2002 (other than a temporary employee who is employed under Part 2.5 of that Act as a special temporary employee), or

Note. The persons referred to in paragraph (a) are staff of Government Departments and other staff in the Government Service other than Ministerial staff.

(b)  employed under Part 1 of Chapter 9 of the Health Services Act 1997 in the NSW Health Service, or

(c)  an officer, or a temporary employee, within the meaning of the Teaching Service Act 1980, or

(c1)  employed under Part 7A of the Transport Administration Act 1988 in the Transport Service, or

(d)  employed, whether permanently or otherwise:

(i)  as an officer of either House of Parliament, or

(ii)  in any position under the separate control of the President of the Legislative Council or Speaker of the Legislative Assembly, or under their joint control, or

(e)  otherwise employed in the service of the Crown.

public sector employer means the following:

(a)  for a public sector employee of the class referred to in paragraph (a) of the definition of public sector employee—the appropriate Division Head within the meaning of the Public Sector Employment and Management Act 2002,

(b)  for a public sector employee of the class referred to in paragraph (b) of that definition—the Director-General of the Department of Health,

(c)  for a public sector employee of the class referred to in paragraph (c) of that definition—the Director-General of the Department of Education and Training,

(c1)  for a public sector employee of the class referred to in paragraph (c1) of that definition—the Director-General of the Department of Transport,

(d)  for a public sector employee of the class referred to in paragraph (d) of that definition:

(i)  who is an officer of the Legislative Council or under the separate control of the President of the Legislative Council—the President, or

(ii)  who is an officer of the Legislative Assembly or under the separate control of the Speaker of the Legislative Assembly—the Speaker, or

(iii)  who is under the joint control of the President of the Legislative Council and the Speaker of the Legislative Assembly—the President and Speaker jointly,

(e)  for a public sector employee of the class referred to in paragraph (e) of that definition—the person in whose service the employee is employed.

(2)  A reference in this Part to:

(a)  the appointment of a public sector employee to fill a vacant office includes a reference to the appointment of a public sector employee to a higher position, and

(b)  a vacant office includes a reference to a higher position the subject of an appointment referred to in paragraph (a).

92   Application of Part

(1)  This Part applies to and in respect of promotion appeals and disciplinary appeals by public sector employees other than those public sector employees or employees of a class of public sector employees who under:

(a)  an award or enterprise agreement made or approved by the Commission on or after the commencement of this section are not entitled to appeal to the Commission under this Part, or

(b)  an industrial instrument or any other agreement, contract, understanding or undertaking (whether express or implied) were not entitled to appeal to the Government and Related Employees Appeal Tribunal under the Government and Related Employees Appeal Tribunal Act 1980 as in force immediately before its repeal.

(2)  Notice of an industrial instrument or any other agreement, contract, understanding or undertaking referred to in subsection (1) in relation to public sector employees or employees of a class of public sector employees may be published on the website of the Department of Premier and Cabinet.

(3)  Any such notice is prima facie evidence that this Part does not apply to the employees to whom the notice relates.

Division 2 Promotion appeals

93   Publication of notices

(1)  A public sector employer who decides to appoint or recommend the appointment of a person to fill a vacant office or position in the establishment of the employer must cause particulars of the decision to appoint or recommend the appointment of the person to be published in a notice (an appointment notice) in accordance with this section.

(2)  Subsection (1) applies if the public sector employer is:

(a)  a Department Head (within the meaning of the Public Sector Employment and Management Act 2002) and the person appointed or whose appointment is recommended is an officer within the meaning of that Act in that or any other Department, or

(b)  a Division Head (within the meaning of the Public Sector Employment and Management Act 2002) other than a Department Head and the person appointed or whose appointment is recommended is an employee in that Division, or

(c)  the Director-General of the Department of Health and the person appointed or whose appointment is recommended is a member of the NSW Health Service, or

(d)  any other employer and the person appointed or whose appointment is recommended is an employee of that employer.

(3)  The appointment notice is to be published not later than 14 days after the acceptance by the person of the appointment and the notice is to be distributed to the employees of the employer.

(4)  The employees of an employer referred to in subsection (2) (c) are, for the purpose of distributing the appointment notice, those members of the NSW Health Service who are employed in or in connection with the public health organisation or other division of that Service in which the vacant office forms part.

(5)  The appointment notice:

(a)  may, without limiting the manner in which it may otherwise be published, appear on the NSW Government’s recruitment website, and

(b)  is taken to have been distributed in accordance with this section if that website contains the notice and is made available to the employees of the employer.

(6)  If the person accepts the appointment, the employer must give notice in writing of the following to every other person who applied unsuccessfully for the appointment (other than a person who withdrew his or her application):

(a)  the fact of that person’s acceptance,

(b)  the fact of publication of the appointment notice,

(c)  the date of the appointment notice.

(7)  The notice under subsection (6) must be given not later than 14 days after the acceptance.

(8)  If, by or under any other Act, an employer is required to give notice of the particulars of a decision of the kind referred to in subsection (1), any such notice is taken to be an appointment notice if given within the time limited by subsection (3).

(9)  An appointment notice (other than a notice to which subsection (8) applies) is, if a form is prescribed by the regulations, to be in the form so prescribed.

(10)  The Commission may, on application by an employer, permit an appointment notice to be given to the employer’s employees in an approved form.

94   Right of appeal

(1)  Subject to and in accordance with this Part, a public sector employee who is:

(a)  employed as an officer in a Department within the meaning of the Public Sector Employment and Management Act 2002—may appeal on the promotions appeal ground to the Commission against a decision of an employer (being a Department Head within the meaning of that Act) to appoint or recommend the appointment of another such officer to fill a vacant office in that or any other Department, and

(b)  employed as a member of staff of a Division of the Government Service other than a Department—may appeal on the promotions appeal ground to the Commission against a decision of the employee’s employer (being the appropriate Division Head within the meaning of that Act) to appoint or recommend the appointment of another employee in that Division to fill a vacant office in that Division, and

(c)  a member of the NSW Health Service employed in or in connection with a division of the Service—may appeal on the promotions appeal ground to the Commission against a decision of the employee’s employer (being the Director-General of the Department of Health) to appoint or recommend the appointment of another employee employed in or in connection with that division to fill a vacant office in or in connection with that division, and

(d)  a person other than an officer referred to in paragraph (a), (b) or (c)—may appeal on the promotions appeal ground to the Commission against a decision of the employee’s employer to appoint or recommend the appointment of another employee of that employer to fill a vacant office.

(2)  For the purposes of this section, the promotions appeal ground is that the appellant is, having regard to any relevant document in relation to the vacant office, more entitled to be appointed to the vacant office than the employee in whose favour the decision was made.

(3)  In this section:

relevant document, in relation to a vacant office, means the provisions of any Act, statutory instrument, industrial award or agreement or of any advertisement which is required to be applied or taken into consideration by the employer in respect of an appointment to the vacant office that is published in good faith in relation to the vacant office.

95   Excluded circumstances

A public sector employee is not entitled to appeal under section 94 in respect of the decision of a public sector employer relating to a vacant office:

(a)  if the appointment to the vacant office is not a permanent appointment, or

(b)  if the vacant office is an office specified in Schedule 1, 2 or 3 to the Statutory and Other Offices Remuneration Act 1975, or

(c)  if the vacant office is a Department Head position in the Public Service, or

(d)  if the maximum salary applicable to the vacant office at the date of the decision of the employer exceeds:

(i)  except as provided by subparagraph (ii)—the amount equal to the maximum salary applicable to a clerk’s position graded 12 in the Public Service, or

(ii)  where another amount is prescribed by the regulations—that other amount, or

(e)  unless the maximum salary applicable to the vacant office is greater than the salary paid, at the date of the decision of the employer, to the appellant in relation to the office held by the appellant at that date, or

(f)  unless the maximum salary applicable to the vacant office is greater than the salary paid, at the date of the decision of the employer, to the employee in whose favour that decision is made in relation to the office held by the employee at that date, or

(g)  unless, where an invitation to apply for appointment to the vacant office was given by the employer to its employees or advertised generally, the employee duly made application for appointment to the vacant office, or

(h)  unless the employee satisfies the minimum requirements, in relation to the vacant office, of any Act, statutory instrument, industrial award or agreement or advertisement referred to in section 94, or

(i)  unless the employee is willing to take up duties in the vacant office, or

(j)  if the employee or the employee in whose favour the decision of the employer is made is:

(i)  a temporary employee or a casual employee (within the meaning of Part 2.1 of the Public Sector Employment and Management Act 2002) of the Public Service, or

(ii)  a temporary employee within the meaning of the Teaching Service Act 1980, or

(iii)  in relation to a public sector employee of a class referred to in paragraph (a), (b), (d) or (e) of the definition of public sector employee in section 91 (1), an employee who is employed, otherwise than permanently, in the service of his or her employer.

96   Effect of failure to notify vacancy

(1)  If no invitation to apply for appointment to a vacant office in the establishment of a public sector employer:

(a)  is given by the employer to the employer’s employees, or

(b)  is advertised generally (whether by publication in a newspaper, on a recruitment website used by the employer or in some other manner),

      an affected employee may, if otherwise entitled, appeal to the Commission against the decision of the employer to appoint or recommend the appointment of one of the employer’s employees to fill the vacant office.

(2)  In this section:

affected employee, in relation to a vacant office in the establishment of a public sector employer, means:

(a)  if the vacant office is not one in the Government Service or the NSW Health Service—any public sector employee employed by the employer, or

(b)  if the vacant office is one in the Government Service—only public sector employees employed in the same Division (within the meaning of the Public Sector Employment and Management Act 2002) of which the vacant office forms part, or

(c)  if the vacant office is one in the NSW Health Service—only employees employed in or in connection with the same division of that Service of which the vacant office forms part.

Division 3 Disciplinary appeals

97   Notice of certain decisions etc

(1)  This section applies to the following decisions made by a public sector employer in relation to a public sector employee:

(a)  a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee,

(b)  a decision to reduce the rank, classification, position, grade or pay of the employee,

(c)  a decision to impose a fine or forfeit pay,

(d)  a decision to annul the appointment of an employee appointed on probation,

(e)  a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer,

(f)  a decision to dismiss the employee,

(g)  a decision to direct or to require the employee to resign.

(2)  A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4).

(3)  If the employer is unable to give the employee notice of the decision within 14 days after it is made, the employer may apply to the Commission for an order as to the giving of the notice.

(4)  On receipt of an application under subsection (3), the Commission may make such order as the Commission thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice.

(5)  A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4).

(6)  In subsection (1) (f):

dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee).

(7)  For the purposes of this Division:

(a)  a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and

(b)  a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect.

98   Right of appeal

(1)  Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer.

(2)  Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994.

(3)  However, employees of the following classes cannot appeal to the Commission against an appealable decision referred to in section 97 (1) (d), (f) or (g):

(a)  employees engaged under a contract of employment for:

(i)  a specified period of time that is less than 6 months, or

(ii)  a specified task that is of less than 6 months duration,

(b)  employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either:

(i)  the period, or the maximum duration, is 3 months or less, or

(ii)  if the period, or the maximum duration, is more than 3 months—the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned,

(c)  employees engaged on a casual basis for a short period except those who:

(i)  are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and

(ii)  would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer.

99   Alternative rights of appeal

(1)  Nothing in section 98 derogates from or otherwise affects any right of appeal a public sector employee may have, or other proceedings which may be instituted by the employee or on his or her behalf, under this or any other Act or law or any industrial award or agreement (whether enacted, existing or made before, on or after 1 July 2010) in respect of an appealable decision.

(2)  A public sector employee may not appeal to the Commission under section 98 in respect of an appealable decision if:

(a)  the employee has elected, in writing, to forgo a right of appeal under section 98 in respect of the decision, or

(b)  the employee makes an appeal or institutes other proceedings, or proceedings are instituted on the employee’s behalf, in respect of an appealable decision under an Act or law or an industrial award or agreement referred to in subsection (1).

(3)  If an employee appeals to the Commission under section 98 in respect of an appealable decision, the employee may not then, in respect of that decision, appeal or institute other proceedings or proceedings may not be instituted on his or her behalf under an Act or law or an industrial award or agreement referred to in subsection (1).

100   Appealable decisions may be carried into effect despite right of appeal

(1)  An appealable decision may be carried into effect whether or not an appeal may be (or has been) made against the decision under this Division.

(2)  However, if the decision appealed against is a decision of a kind referred to in section 97 (1) (d), (f) or (g), a permanent appointment is not to be made to the position held by the employee when the decision was made until:

(a)  the time for making an appeal against the decision has expired without an appeal having been made, or

(b)  if an appeal is made within that time—the appeal is determined or has lapsed.

Division 4 Procedures relating to the making of appeals

100A   Notice of appeal

A public sector employee may make an appeal by lodging with the Industrial Registrar a notice of appeal in the approved form.

100B   Time for lodging appeal

(1)  Notice of a promotion appeal must be lodged:

(a)  within 21 days after the date of the notice of particulars under section 93 (1), or

(b)  within 21 days after receipt by the public sector employee of a notice under that subsection that bears no date.

(2)  Notice of a disciplinary appeal must be lodged within 28 days after the public sector employee is notified of the decision against which the appeal is to be made.

(3)  Nothing in this section prevents a public sector employee from appealing against a decision that was not notified, or particulars of which were not notified, to the public sector employee as required by or under this or any other Act.

100C   Decisions with respect to appeals

(1)  The Commission, in relation to a promotion appeal, may decide to allow or disallow the appeal.

(2)  The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.

(3)  Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission:

(a)  is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or

(b)  may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer.

(4)  The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought.

100D   Orders by Commission with respect to payment of salary and continuity of employment

(1)  Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may:

(a)  if the employee has paid a fine imposed by the employer or his or her pay has been forfeited—order the employer to repay the amount of any such fine or forfeited pay, and

(b)  order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and

(c)  order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer.

(2)  Any such order by the Commission must be given effect to by the employer.

(3)  Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment.

Division 5 Hearing of appeals

100E   Conciliation of disciplinary appeals

(1)  Before a disciplinary appeal is heard by the Commission, the Commission must endeavour to settle the matter by conciliation.

(2)  If the conciliation is not successful and the matter proceeds to a hearing, the member who attempted to settle the matter by conciliation cannot sit as a member of the Commission to hear the appeal if a party to the proceedings objects to the member sitting as a member to hear the appeal.

100F   Powers when appeal settled by conciliation

If a matter that is the subject of an appeal to the Commission under this Part is settled by conciliation, the Commission may:

(a)  dismiss the appeal, or

(b)  make an order on the agreed terms for settlement.

100G   Presentation of cases

(1)  A public sector employer must present the employer’s case to the appellant at least 7 days before the hearing of a disciplinary appeal.

(2)  At the hearing of an appeal under this Part, the public sector employer’s case is to be presented first.

(3)  Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies.

100H   Provisions relating to promotion appeals

(1)  A promotion appeal is, subject to the rules of the Commission and any applicable practice note issued under section 185A, to be heard in accordance with this section.

(2)  The hearing of the promotion appeal is to be informal and must not be conducted in an adversarial manner.

(3)  The persons entitled to be present at the hearing are as follows:

(a)  the appellant,

(b)  a person appointed by the public sector employer against whose decision the appeal is brought, being a person appointed generally or in respect of a particular appeal or class of appeals,

(c)  the employee in whose favour the decision referred to in paragraph (b) has been made.

(4)  The persons entitled, pursuant to subsection (3), to be present at an informal hearing of the Commission are not entitled to be represented by an Australian legal practitioner or an agent or otherwise.

Part 8 Protection of entitlements on transfer of business

101   Definitions

(1)  In this Part:

transfer of business means the transfer, transmission, conveyance, assignment or succession, whether by agreement or by operation of law, of the whole or any part of a business, undertaking or establishment.

transferred employee means a person who becomes an employee of an employer (the new employer) as a result of the transfer of business to that employer from another employer (the former employer).

(2)  A person is to be regarded as a transferred employee even if the person’s employment with the former employer is terminated before the transfer of business, so long as:

(a)  the person is employed by the new employer after the transfer of business, and

(b)  the circumstances of that termination and employment indicate an intention to avoid the operation of this Part.

In that case, the termination of employment of such a transferred employee is to be disregarded for the purposes of this Part.

102   Continuity of service for determining entitlements

(1)  This section applies for the purpose of determining a transferred employee’s entitlements as an employee of the new employer under an industrial instrument or the industrial relations legislation.

(2)  For the purpose of determining those entitlements:

(a)  the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of business, and

(b)  a period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer.

(3)  Service with the former employer includes service that because of this section or a former Act is taken to be service with that employer as a result of a previous transfer of the business.

103   Entitlements when industrial instrument or legislation contravened

(1)  This section applies only to an entitlement (the avoided entitlement) that a former employer has failed to provide to a transferred employee in contravention of an industrial instrument or the industrial relations legislation.

(2)  If the avoided entitlement relates to the payment of remuneration, this Part does not operate:

(a)  to create an entitlement to payment by the new employer, or

(b)  to relieve the former employer from liability for the payment.

(3)  If the avoided entitlement relates to anything else and the new employer is required because of this Part to provide the entitlement, the new employer is entitled to be indemnified by the former employer for the reasonable cost of providing it.

104   Prevention of double entitlement

This Part does not entitle a transferred employee to claim a benefit from more than one employer in respect of the same period of service.

Part 9 Unfair contracts

Division 1 Definitions

105   Definitions

(1)  In this Part:

contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument.

unfair contract means a contract:

(a)  that is unfair, harsh or unconscionable, or

(b)  that is against the public interest, or

(c)  that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or

(d)  that is designed to, or does, avoid the provisions of an industrial instrument.

(2)  A contract is not an unfair contract for the purposes of this Part merely because of any provision in the contract that gives effect to a policy that is declared under section 146C.

(3)  A contract relating to the employment of a police officer is not an unfair contract for the purposes of this Part merely because of a matter relating to payments of a kind to which section 146D applies.

Note. The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court Session.

Division 2 Unfair contracts may be declared void or varied

106   Power of Commission to declare contracts void or varied

(1)  The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.

(2)  The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.

(2A)  A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as:

(a)  the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and

(b)  the performance of work is a significant purpose of the contractual arrangements made by the person.

(3)  A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.

(4)  In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.

(5)  In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.

(6)  In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss.

107   Orders to prevent further unfair contracts

(1)  The Commission, when making an order under section 106 or at a later time, may make such further order as the Commission considers appropriate for the purpose of prohibiting (either absolutely or otherwise than in accordance with specified conditions):

(a)  any party to the contract, or

(b)  any other person who is (in any way considered relevant by the Commission) associated with any such party,

      from:

(c)  entering into any specified kind of contract whereby a person performs work in an industry, or

(d)  doing any act (whether by way of advertising or otherwise) which may reasonably be construed as being intended to induce other persons to enter into any such contract.

(2)  An order under this section must identify the person or persons bound by the order and takes effect in respect of each such person:

(a)  on service on the person of a copy of the order, or

(b)  on publication of the order in a daily newspaper circulating generally throughout New South Wales,

      whichever first occurs.

108   Who may apply for order

An order may be made under this Division on the application of:

(a)  any party to the contract, or

(b)  any person who, but for the making of such an order, would be a party to the contract, or

(c)  an industrial organisation of employers whose members employ persons working in the industry to which the contract relates, or

(d)  an industrial organisation of employees whose members are employed in the industry to which the contract relates, or

(e)  an association registered under Chapter 6 of which a party to the contract is a member,

and not otherwise.

108A   Employment contracts in respect of which applications cannot be made

(1)  An application cannot be made for an order under this Division if the application relates to a contract of employment under which:

(a)  a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination), or

(b)  a remuneration package is paid or received (or is payable or receivable) during a period of less than 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination) that would, if the remuneration package had been paid or received (or been payable or receivable) for a period of 12 months, have exceeded the remuneration cap.

(2)  An application cannot be made for an order under this Division by a person who is a partner carrying on a business if:

(a)  the application relates to a contract between that partner and the other persons carrying on that business in partnership, and

(b)  the share of the net profits, or payments contingent on the net profits, of the business that are paid to or received by (or payable to or receivable by) the applicant during the period of 12 months immediately before the application is made (or, if the application relates to a contract that has been terminated, immediately before the termination) exceed:

(i)  $200,000, or

(ii)  if an amount is prescribed for the purposes of paragraph (b) of the definition of “remuneration cap” in subsection (3)—that amount.

(3)  In this section:

contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract.

employment benefit means a benefit provided to an employee at the cost of his or her employer (being a benefit of a private nature) and, without limitation, includes:

(a)  contributions payable to a superannuation scheme by an employer in respect of the employee, including any liability of that employer to make any such contributions or to pay costs associated with that scheme, or

(b)  the provision by an employer of a motor vehicle for private use by the employee, or

(c)  any other benefit prescribed by the regulations for the purposes of this definition.

monetary remuneration includes any performance-related bonus or incentive payment.

remuneration cap means:

(a)  $200,000, except as provided by paragraph (b), or

(b)  any greater amount prescribed by the regulations (being a regulation that increases the amount by reference to increases in the amount referred to in section 83 (1) (b)).

remuneration package means the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment.

108B   Time for making application

(1)  An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract.

(2)  The Commission does not have jurisdiction to extend the time for making any such application or, subject to subsection (3), to accept an application made after the time prescribed by subsection (1).

(3)  The Commission may accept an application made within 3 months after the time prescribed by subsection (1) if the applicant satisfies the Commission that there are exceptional circumstances justifying the making of the late application.

109   Conciliation of applications to be attempted first

(1)  The Commission must endeavour, by all means it considers proper and necessary, to settle a matter under this Division by conciliation.

(2)  When, in the opinion of the Commission, all reasonable attempts to settle the matter by conciliation have been made but have been unsuccessful, the Commission is to determine the matter in accordance with this Act.

(3)  Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order.

(4)  Any member of the Commission (whether or not a judicial member) may undertake the conciliation of a matter under this Division.

109A   Exclusion of certain contracts in connection with unfair dismissals

(1)  This Division does not apply to a contract of employment that is alleged to be an unfair contract for any reason for which:

(a)  an application has been or could have been made by the employee under Part 6 (Unfair dismissals), or

(b)  such an application could have been made but for the provisions of section 83 that exclude the employee from making an application under that Part.

(2)  In this section:

contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract.

dismissal has the same meaning that it has in Part 6.

Division 3 Determination of remuneration of contractors under unfair building and certain other contracts

110   Application of Division

(1)  This Division applies to a contract for the carrying out of:

(a)  building work, or

(b)  door-to-door handbill delivery work, or

(c)  door-to-door sales work,

      except as provided by this Division.

(2)  This Division does not apply to any such contract:

(a)  to the extent that it is a contract under which the work is done by a person in the capacity of an employee, or

(b)  unless at least one of the parties to the contract (other than a person who actually does the work) is a person who carries on a business of doing, or arranging for the doing, of that kind of work.

(3)  The regulations may declare any specified work to be, or not to be, building work, door-to-door handbill delivery work or door-to-door sales work for the purposes of this Division.

111   Division applies only if Commission declares contract unfair

(1)  This Division does not apply to a contract unless the Commission has found (under Division 2 or on application under this section) that the contract is an unfair contract.

(2)  An application for such a finding for the purposes of this Division may be made only by an industrial organisation of employees whose members are employed in the industry in connection with which work is done of the same kind as that done under the contract to which the application relates.

112   Commission may determine remuneration under unfair contract

The Commission may, by its order, prescribe the minimum rate at which a person is (otherwise than as an employee) to be remunerated under a contract to which this Division applies.

113   Notice of possible order

(1)  Before making an order under this Division, the Commission is to require the person in whose favour the order would be made to serve notice on such persons as the Commission considers have an interest in the matter that such an order might be made.

(2)  A person served with such a notice is entitled to appear and be heard in relation to the matter.

114   Time at which order takes effect

An order under this Division takes effect:

(a)  28 days after its publication on the NSW industrial relations website, or

(b)  if the order so provides—on any later day specified in the order.

115   Incorporation of order in contract and other contracts

(1)  If an order is in force under this Division in relation to the doing of work under a contract:

(a)  that contract, and

(b)  any other contract that is a contract for the doing of the same kind of work and is a contract of a kind in respect of which the Commission may make a finding that it is an unfair contract,

      are taken to incorporate the order in so far as it relates to that kind of work.

(2)  If there is an inconsistency between a provision of an order in force under this Division and a contract in which it is incorporated by this section, the provision of the order prevails to the extent of the inconsistency.

116   Variation or revocation of order

The Commission may vary or revoke an order in force under this Division on its own initiative or on application by the industrial organisation of employees whose members are employed in the industry concerned or by any other person affected by the order.

Part 10 Payment of remuneration

117   Employees to be paid in money

(1)  Remuneration payable to an employee must be paid in money and, if demanded, at least once each fortnight.

(2)  Payment is made in money only if it is made:

(a)  in cash, or

(b)  with appropriate authority, by cheque payable to the employee, or

(c)  with appropriate authority, into an account in the name of the employee (whether or not jointly with another person) at a financial institution by electronic transfer of funds or other means.

Appropriate authority is authority conferred in writing by the employee or authority conferred by an industrial instrument.

(3)  Payment of remuneration is to be made in advance if the employee is entitled to payments in advance by agreement, custom or otherwise.

(4)  An employer must not pay remuneration to an employee contrary to this section.

Maximum penalty: 100 penalty units.

118   Employees to be paid in full

(1)  Payment of remuneration to an employee is to be made in full without any deduction for goods, board or lodging or any other services supplied by the employer in payment (or part payment) of remuneration.

(2)  However, an employer can deduct and pay on behalf of an employee from any remuneration payable to the employee:

(a)  any payments principally for the benefit of the employee that are authorised in writing by the employee to be deducted and paid, or

(b)  any payments that are authorised by an industrial instrument to be deducted and paid.

(3)  An employer must not pay remuneration to an employee contrary to this section.

Maximum penalty: 100 penalty units.

119   Employer not to stipulate how remuneration to be spent

An employer must not, directly or indirectly, impose as a condition of the employment of an employee any terms as to the place where or the manner in which or the person with whom any remuneration paid to the employee is to be spent.

Maximum penalty: 100 penalty units.

120   Recovery of remuneration—no set-off or action for goods or services supplied by employer

(1)  In any proceedings by an employee against the employer to recover any amount due as remuneration, the employer is not entitled to any set-off or reduction of the claim in respect of:

(a)  any goods or services supplied to the employee as, or as part of, remuneration, or

(b)  any goods sold or supplied at any shop or other premises of the employer or in the profits of which the employer has any share or interest, or

(c)  any goods supplied to the employee by any person under the direction of the employer or the employer’s agent.

(2)  An employer is not entitled to maintain any action in any court or tribunal against an employee for or in respect of any goods sold or supplied to the employee by the employer while in the employer’s employment as or as part of the employee’s remuneration.

121   Unauthorised payments—civil effect

(1)  Payment of remuneration to an employee contrary to this Part is not to be considered to be payment or part payment of that remuneration, except to the extent (if any) permitted by the Commission.

(2)  A provision of a contract that provides for payment of remuneration to an employee in a manner that is contrary to this Part is void.

122   Payment of unclaimed remuneration

(1)  If:

(a)  an employee has left the employment of an employer without being paid the full amount due to the employee in respect of the employment, and

(b)  the employer has been unable, during a period of 30 days after the termination of the employment, to make the payment because the location of the employee is unknown to the employer, and cannot with reasonable diligence be found,

      the employer must, immediately after the expiration of that period, pay the full amount to the Treasury.

Maximum penalty: 50 penalty units.

(2)  A receipt issued on behalf of the Treasury for money so paid is a sufficient discharge to an employer for the amount specified in the receipt.

(3)  The amount so paid is to be paid into the Consolidated Fund.

(4)  If the Treasurer is satisfied that a person is entitled to money that has been so paid into the Consolidated Fund, the Treasurer is to pay that amount of money to that person.

123   Particulars of remuneration to be supplied to employees

(1)  An employer must, when paying remuneration to an employee, supply the employee with such written particulars regarding the payment as are prescribed by the regulations.

Maximum penalty: 20 penalty units.

(2)  The employer may, instead of supplying those written particulars, make other arrangements approved by the Industrial Registrar for supplying information about remuneration to all or any of the employees of the employer. Any such approval:

(a)  must be granted to the employer in writing, and

(b)  must not be granted unless the Industrial Registrar is satisfied that the arrangements are in the interests of the employees concerned and meet their reasonable requirements for information about remuneration, and

(c)  may be revoked or varied by the Industrial Registrar by notice in writing to the employer.

124   Superannuation fund contributions

(1)  If an industrial instrument requires an employer to pay contributions to a specified superannuation fund for the purpose of providing superannuation benefits to or in respect of an employee of the employer, the required contributions may, despite the industrial instrument, be paid to a complying superannuation fund nominated for the time being by the employee and approved by the employer.

(2)  However, subsection (1) applies only if:

(a)  the nomination of the complying superannuation fund by the employee is in writing and signed by the employee, and

(b)  the employer has given the employee a copy of the nomination and written notice of the employer’s approval of the nomination, and

(c)  the employer retains a copy of the nomination.

(2A)  An employee may, by notice in writing, revoke a nomination under this section.

(3)  In this section:

complying superannuation fund means a superannuation fund that, for the relevant year of income, is a complying superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.

superannuation fund has the same meaning as it has in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.

125   Permits—special wage payments

(1)  Any employee may apply to the Industrial Registrar for a written permit authorising the employee to work for less than the rate of pay set for the employee by an industrial instrument if the employee considers himself or herself unable to earn the minimum rate of pay set by the industrial instrument because of any impairment of the employee.

(2)  An application may be made by post and may, with the approval of the Industrial Registrar, be made by a person on behalf of the employee.

(3)  The Industrial Registrar may grant a permit under this section (with or without conditions) or refuse to grant the permit. Any such permit has effect according to its tenor.

(4)  The Industrial Registrar may at any time cancel any such permit.

(5)  If the Industrial Registrar grants a permit, the Industrial Registrar must notify the industrial organisation of employees for the industry in which the applicant is employed or intends to be employed of the grant of the permit and its conditions.

(6)  The organisation may at any time after being given such notice apply to the Industrial Registrar for cancellation of the permit.

Note. Under section 194 a person may appeal to the Commission against the granting of or the refusal or failure to grant or the cancellation of a permit.

126   Stand-down orders—suspension of payment of remuneration

(1)  The Commission may, on the application of an employer or an industrial organisation of employers, order the stand down of employees of that employer or of members of that organisation if there is no useful work for the employees because of:

(a)  industrial action, or

(b)  breakdown of machinery, or

(c)  any other act or omission,

      for which the employer or employers concerned are not responsible.

(2)  The Commission is to give high priority to the hearing and determination of any such application.

(3)  An employee who is stood down by the Commission is not entitled to any remuneration (including allowances) while stood down. However, this subsection does not apply to any allowance that the Commission considers should be paid despite the stand-down order.

(4)  The period during which an employee is stood down is to be regarded as a period of employment with the employer for all other purposes, including the accrual of leave and the calculation of superannuation and other entitlements.

(5)  A stand-down order does not apply to an employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001.

127   Liability of principal contractor for remuneration payable to employees of subcontractor

(1) Application
This section applies where:

(a)  a person (the principal contractor) has entered into a contract for the carrying out of work by another person (the subcontractor), and

(b)  employees of that subcontractor are engaged in carrying out the work (the relevant employees), and

(c)  the work is carried out in connection with a business undertaking of the principal contractor.

(2) Liability of principal contractor
The principal contractor is liable for the payment of any remuneration of the relevant employees that has not been paid for work done in connection with the contract during any period of the contract unless the principal contractor has a written statement given by the subcontractor under this section for that period of the contract.

(3) Content and form of statement
The written statement is a statement by the subcontractor that all remuneration payable to relevant employees for work under the contract done during that period has been paid. The regulations may make provision for or with respect to the form of the written statement.

(4) Retention of copies of statements
The subcontractor must keep a copy of any written statement under this section for at least 6 years after it was given.

(5) Payments under contract
The principal contractor may withhold any payment due to the subcontractor under the contract until the subcontractor gives a written statement under this section for any period up to the date of the statement. Any penalty for late payment under the contract does not apply to any payment withheld under this subsection.

(6) Remuneration
For the purposes of this section, remuneration means remuneration or other amounts payable to relevant employees by legislation, or under an industrial instrument, in connection with work done by the employees.

(7) False statement not effective
The written statement is not effective to relieve the principal contractor of liability under this section if the principal contractor had, when given the statement, reason to believe it was false.

(8) False statement is offence
A person who gives the principal contractor a written statement knowing it to be false is guilty of an offence if:

(a)  the person is the subcontractor, or

(b)  the person is authorised by the subcontractor to give the statement on behalf of the subcontractor, or

(c)  the person holds out or represents that the person is authorised by the subcontractor to give the statement on behalf of the subcontractor.

Maximum penalty: 100 penalty units.

(9) Recovery
The provisions of this Act relating to the recovery of amounts payable under industrial instruments apply to the recovery of remuneration payable by a principal contractor under this section.

(10) Exclusion
This section does not apply in relation to a contract if the subcontractor is in receivership or in the course of being wound up or, in the case of an individual, is bankrupt and if payments made under the contract are made to the receiver, liquidator or trustee in bankruptcy.

(11) Application
To avoid doubt, this section extends to a principal contractor who is the owner or occupier of a building for the carrying out of work in connection with the building so long as the building is owned or occupied by the principal contractor in connection with a business undertaking of the principal contractor.

(12)  Nothing in this section limits or excludes any liability with respect to payment of remuneration by a person who is a principal contractor arising under this Act or any other law or any industrial instrument.

127A–127G   (Repealed)

128   Minimum remuneration for musicians

(1)  In any contract for the performance of any work involving the supply for reward of any musical entertainment, the consideration for the contract is not to be less than a sum sufficient to pay, to each person engaged in the performance of the work, the remuneration set by any award for a person performing the work as an employee.

(2)  Any person who offers, enters into or is in any way concerned with a contract that does not comply with this section or who knowingly performs work in pursuance of a contract that does not comply with this section is guilty of an offence.

Maximum penalty: 100 penalty units.

129   Records to be kept by employers concerning employees

(1)  An employer must ensure that the following daily records are kept in relation to employees of the employer:

(a)  records of remuneration paid and hours worked by the employees, and

(b)  any other prescribed records relating to conditions of employment set by the industrial relations legislation or industrial instruments.

(2)  (Repealed)

(3)  The records are to be kept in the manner and form prescribed by the regulations or in accordance with different requirements approved in writing by the Industrial Registrar.

(4)  The employer must ensure that the records are kept for a period of at least 6 years.

(5)  The regulations may make provision for or with respect to the transfer of any such records, or copies of any such records, to the successor of an employer.

(6)  A person who contravenes this section or the regulations under this section is guilty of an offence.

Maximum penalty: 20 penalty units.

Part 11 Outworkers in clothing trades

Division 1 Preliminary

129A   Definitions

In this Part:

constitutional corporation means a corporation to which paragraph 51 (xx) of the Commonwealth Constitution applies.

employer means a person described in clause 1 (f) of Schedule 1 as an employer and, in relation to Division 3, does not include a person whose sole business in connection with the clothing industry is sale of clothing by retail.

Note. A person described in clause 1 (f) of Schedule 1 as an employer is taken to be an employer for the purposes of this Act by section 5 (3).

modification includes addition, exception, omission or substitution.

relevant clothing trades award means the Clothing Trades (State) Award made by the Commission and published in the Industrial Gazette on 19 October 2001, as amended and in force from time to time.

remuneration means an amount payable, within the meaning of the definition of amount payable in section 364 (1), in connection with work done by an outworker and includes an amount payable to the outworker under the Annual Holidays Act 1944 or the Long Service Leave Act 1955.

unpaid remuneration claim means a claim for unpaid remuneration under section 129D.

Division 2 Conditions of employment

129B   Outworkers in clothing trades employed by constitutional corporations

(1)  On and from the commencement of this section:

(a)  the relevant clothing trades award ceases to have effect as an award in relation to outworkers in clothing trades and employers (but only to the extent that such outworkers are employed by constitutional corporations), and

(b)  the conditions of employment set out in that award (as in force from time to time) in relation to outworkers in clothing trades and employers are, by force of this section, the conditions of employment applicable to outworkers employed by constitutional corporations and employers.

Note. The expression conditions of employment is defined in the Dictionary to include any provisions about an industrial matter.

(2)  To avoid doubt, the conditions referred to in subsection (1) (b) include provisions of the award relating to:

(a)  the giving out of work, and

(b)  the making or keeping of records in connection with the giving out of work, and

(c)  the disclosure of information about the giving out of work, and

(d)  the registration of persons for the purpose of giving out work.

(3)  Nothing in this section affects the continued operation of the relevant clothing trades award in its application to employees not employed by constitutional corporations and their employers.

129C   Application of certain enforcement provisions

A reference in Part 1 (Breach of industrial instruments) or Part 2 (Recovery of remuneration and other amounts) of Chapter 7 or in section 406 (Awards and other industrial instruments provide minimum entitlements) to:

(a)  an industrial instrument includes a reference to provisions of the relevant clothing trades award applying under section 129B, and

(b)  an amount payable under an industrial instrument includes a reference to an amount payable to an outworker under any such provision.

Division 3 Remuneration

129D   Claims by outworkers in clothing trades for unpaid remuneration

(1) When may an outworker make an unpaid remuneration claim under this section?
An outworker in the clothing trades may make a claim under this section for any unpaid remuneration against the person the outworker believes is his or her employer (the apparent employer) if the employer has not paid the outworker all or any of the remuneration for work done by the outworker for the employer (the unpaid remuneration).

(2)  The claim must be made within 6 months after the work is completed.

(3) How is an unpaid remuneration claim made?
The claim is to be made by serving a written notice on the apparent employer that:

(a)  claims payment of the unpaid remuneration, and

(b)  sets out the following particulars:

(i)  the name of the outworker,

(ii)  the address at which the outworker may be contacted,

(iii)  a description of the work done,

(iv)  the date on which the work was done,

(v)  the amount of unpaid remuneration claimed in respect of the work.

(4)  The particulars set out in the unpaid remuneration claim must be verified by statutory declaration.

(5)  This section applies only in respect of remuneration for work carried out after the commencement of the section.

(6)  Clause 3 of Schedule 1 does not apply to an employer served with an unpaid remuneration claim under this section.

129E   Liability of apparent employer for unpaid remuneration for which an unpaid remuneration claim has been made

(1)  Except as provided by subsection (4), an apparent employer served with an unpaid remuneration claim under section 129D is liable (subject to any proceedings as referred to in section 129G) for the amount of unpaid remuneration claimed.

(2)  An apparent employer may, within 14 days after being served with an unpaid remuneration claim, refer the claim in accordance with this section to another person the apparent employer knows or has reasonable grounds to believe is the person for whom the work was done (the actual employer).

(3)  An apparent employer refers an unpaid remuneration claim in accordance with this section by:

(a)  advising the outworker concerned in writing of the name and address of the actual employer, and

(b)  serving a copy of the claim (a referred claim) on the actual employer.

(4)  The apparent employer is not liable for the whole or any part of an amount of unpaid remuneration claimed for which the actual employer served with a referred claim accepts liability in accordance with section 129F.

129F   Liability of actual employer for unpaid remuneration for which an unpaid remuneration claim has been made

(1)  An actual employer served with a referred claim under section 129E may, within 14 days after the service, accept liability for the whole or any part of the amount of unpaid remuneration claimed by paying it to the outworker concerned.

(2)  An actual employer who accepts liability must serve notice in writing on the apparent employer of that acceptance and of the amount paid.

(3)  The apparent employer may, after the apparent employer has paid to the outworker concerned any part of the amount of unpaid remuneration claimed for which the actual employer served with the referred claim has not accepted liability, deduct or set-off the amount the apparent employer has paid to the outworker from any amount that the apparent employer owes to the actual employer (whether or not in respect of work the subject of the referred claim).

129G   Recovery of amount of unpaid remuneration

(1)  Part 2 of Chapter 7 (Recovery of remuneration and other amounts) applies to recovery of an amount payable to an outworker in the clothing trades from an apparent employer who fails to make a payment in respect of an amount of unpaid remuneration for which the employer is liable under section 129E. For the purposes of this section, a reference in Part 2 of Chapter 7 to an industrial instrument is to be construed as a reference to the provisions of this section.

(2)  In proceedings referred to in subsection (1), an order for the apparent employer to pay the amount concerned must be made unless the apparent employer proves that the work was not done or that the amount claimed for the work in the unpaid remuneration claim is not the correct amount in respect of the work.

129H   Offences relating to unpaid remuneration claims and referred claims

A person must not:

(a)  by intimidation or by any other act or omission, intentionally hinder, prevent or discourage a person from making an unpaid remuneration claim, or

(b)  make any statement that the person knows is false or misleading in a material particular in any notice given for the purposes of section 129E or 129F, or

(c)  serve a referred claim on a person under section 129E that the person does not know, or have reasonable grounds to believe, is an actual employer.

Maximum penalty: 100 penalty units.

Division 4 Miscellaneous

129I   Effect of this Part

(1)  This Part does not (except as provided by section 129D (6)), limit or exclude any other rights of recovery of remuneration of an outworker in the clothing trades, or any liability of any person with respect to the remuneration of such an outworker, whether or not arising under this Act or any other law or an industrial instrument.

Note. An outworker may, for example, seek an order from an industrial court under section 365 instead of making an unpaid remuneration claim under section 129D.

(2)  Nothing in section 129F (3) limits or excludes any right of recovery arising under any other law with respect to any amount of money owed by the apparent employer to the actual employer.

(3)  Nothing in this Part limits the rights of entry and inspection of officers of industrial organisations for the purpose of investigating any breach of a provision of this Part or a condition of employment conferred by or under this Part.

129J   Relationship of this Part to Industrial Relations (Ethical Clothing Trades) Act 2001

In the event of an inconsistency between the provisions of the mandatory code within the meaning of the Industrial Relations (Ethical Clothing Trades) Act 2001 and the provisions of this Part (or a condition of employment having effect under this Part), the provisions of this Part and those conditions of employment prevail to the extent of the inconsistency.

Chapter 3 Industrial disputes

Part 1 Conciliation and arbitration of industrial disputes

130   Notification of industrial dispute to Commission

(1)  Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute:

(a)  an industrial organisation of employees or employers,

(b)  an employer who is or is likely to be affected by the dispute,

(c)  a person who is or is likely to be the subject of a secondary boycott in connection with the dispute,

(d)  a State peak council.

(2)  The Commission may act on its own initiative to resolve an industrial dispute.

131   Mandatory dispute resolution procedures to be followed first

The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances.

Note. Sections 14 and 39 require the inclusion of dispute resolution procedures in awards and enterprise agreements.

132   Compulsory conference

(1)  For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute.

(2)  A compulsory conference is to be presided over by a member of the Commission.

(3)  The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference.

Note. Section 165 provides that the Industrial Registrar may issue a summons for the purpose of any compulsory conference. Section 380 enables the Commission in the course of a compulsory conference to make an order for a small claim under Part 2 of Chapter 7 (Recovery of remuneration and other amounts) arising out of the industrial dispute.

133   Conciliation before arbitration

The Commission must first attempt to resolve an industrial dispute by conciliation.

134   Conciliation of dispute

(1) Commission to assist parties
The Commission, when attempting the conciliation of an industrial dispute, is to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute.

(2) Recommendations or directions
During conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. Failure to comply with any such recommendation or direction may not be penalised but may be taken into account by the Commission in exercising its functions under this Act.

(3) Conferences
The action that may be taken by the Commission to assist the parties includes making arrangements or giving directions for the convening and conduct of conferences of the parties or their representatives (whether or not compulsory conferences and whether or not presided over by a member of the Commission).

(4) Good faith bargaining
The Commission, when dealing with an industrial dispute, must consider whether the parties have bargained in good faith and, in particular, whether the parties have:

(a)  attended meetings they have agreed to attend, and

(b)  complied with agreed or reasonable negotiating procedures, and

(c)  disclosed relevant information for the purposes of negotiation.

The Commission may make recommendations or give directions to the parties to bargain in good faith.

135   Arbitration after attempted conciliation

(1)  The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation.

(2)  Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation (certificate of attempted conciliation).

(3)  A certificate of attempted conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President.

(4)  When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute.

(5)  A certificate of attempted conciliation may be issued on the Commission’s own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

(6)  The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation.

(7)  The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers.

(8)  The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation.

(9)  Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act.

136   Arbitration of dispute

(1)  The Commission may, in arbitration proceedings, do any one or more of the following:

(a)  make a recommendation or give a direction to the parties to the industrial dispute,

(b)  make or vary an award under Part 1 of Chapter 2,

(c)  make a dispute order under Part 2,

(d)  make any other kind of order it is authorised to make (including an order made on an interim basis).

(2)  Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

Note. Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126).

Part 2 Dispute orders

137   Kinds of dispute orders

(1)  The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:

(a)  The Commission may order a person to cease or refrain from taking industrial action.

(b)  The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

(c)  The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.

(d)  The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.

(2)  If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer.

(3)  A dispute order may not provide for the payment of compensation, lost remuneration or any other amount.

Note. See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals).

138   Making of dispute orders

(1)  A dispute order may be made only against:

(a)  a party or likely party to the industrial dispute, or

(b)  a member, officer or employee of an industrial organisation that is such a party or likely party, or

(c)  a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute.

(2)  A dispute order:

(a)  must clearly identify the persons against whom the order is made and who are bound by the order, and

(b)  must state a time within which the order is to be complied with or state a period during which it remains in force, and

(c)  may be varied or revoked by the Commission at any time.

(3)  If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal.

139   Contravention of dispute order

(1)  The Commission, on application, must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order.

(2)  Before dealing with an alleged contravention of the order, the Commission is required to summon the person alleged to have contravened the order to show cause why the Commission should not take action for the contravention.

(3)  The Commission may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following:

(a)  dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Commission should take no action on the contravention,

(b)  cancel the approval of an enterprise agreement,

(c)  suspend or modify for any period all or any of the entitlements under an industrial instrument,

(d)  cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5,

(e)  impose a penalty on an industrial organisation or an employer as provided by subsection (4),

(f)  make any other determination that the Commission considers would help in resolving the industrial dispute.

(4)  The maximum penalty that may be imposed on an industrial organisation or employer is:

(a)  except as provided by paragraph (b)—a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or

(b)  if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order—a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues.

(5)  Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act.

Note. The jurisdiction of the Commission under this section is exercisable only by the Commission in Court Session.

Part 3 Common law actions during conciliation of industrial disputes

140   Actions in tort to which Part applies

(1)  This Part applies to an action in tort for an act done or omitted to be done:

(a)  by an industrial organisation of employees, or

(b)  by an official or member of any such organisation,

      in contemplation or furtherance of an industrial dispute in which the Commission has jurisdiction.

(2)  However, this Part does not apply to:

(a)  an action for the recovery of damages for death or personal injury, or

(b)  an action for the recovery of damages in connection with the destruction of or damage to property, or

(c)  an action for conversion or detinue, or

(d)  an action for defamation, or

(e)  an action in respect of the acts or omissions of an official or member of an industrial organisation when the person is not acting in the capacity of such an official or member, or

(f)  any action prescribed by the regulations.

141   Actions in tort while Commission attempting to conciliate dispute not actionable

(1)  A person may not bring or continue an action in tort to which this Part applies while the industrial dispute to which the action relates is subject to conciliation by the Commission.

(2)  For the purposes of this section, an industrial dispute is subject to conciliation if:

(a)  the Commission has been notified under this Chapter of the dispute or has decided on its own initiative to resolve the dispute, and

(b)  a certificate of attempted conciliation has not been issued by the Commission under this Chapter in respect of the dispute.

(3)  For the purposes of this section, an industrial dispute is not subject to conciliation if the Commission has decided to dismiss or otherwise discontinue the proceedings concerned.

(4)  A certificate issued by a member of the Commission as to whether a specified industrial dispute is subject to conciliation by the Commission is admissible in evidence in any proceedings in which this Part is in issue and is evidence of the matters stated in the certificate.

142   Injunction not to be granted while industrial tort not actionable

An injunction cannot be granted by any court to restrain a threatened or apprehended tort, or to restrain the continuation or repetition of a tort, if at that time the tort is not actionable under this Part.

Part 4 Miscellaneous provisions relating to industrial disputes

143   Strike pay prohibited

(1)  An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence.

Maximum penalty: 100 penalty units.

(2)  The employer is not guilty of an offence if the payment of the remuneration or provision of the financial benefit was authorised or ordered by the Commission.

(3)  The Commission may, on the application of an industrial organisation of employees, authorise the payment of remuneration or the provision of financial benefits that would otherwise constitute an offence under this section. The Commission may, instead, order the employer to pay any such remuneration or provide any such benefit if it considers it appropriate in the circumstances.

(4)  The Commission may authorise or order an employer to do so:

(a)  only if the applicant satisfies the Commission that the relevant industrial action was based on a reasonable concern for health or safety, and

(b)  only to the particular employees whose health or safety caused that concern.

(5)  For the purposes of this section, industrial action is not based on a reasonable concern for health or safety if the employees whose health or safety is alleged to be involved have engaged in industrial action instead of complying with a direction by the employer:

(a)  to move to a specified safe place in the work place or to another suitable workplace, and

(b)  to do other appropriate and available work there if required.

(6)  In this section, employer includes a person acting on behalf of the employer.

144   Determination of demarcation questions concerning occupations

(1)  The Commission may, for the purpose of resolving an industrial dispute during arbitration proceedings, determine any question as to the right of employees in particular occupations to do particular work in an industry to the exclusion of employees in other occupations.

(2)  Any such determination is to be made by an award of the Commission.

(3)  This section does not limit the power of the Commission to make an award relating to the occupations of employees who may do specified work in an industry to the exclusion of other employees.

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.

146A   (Repealed)

146B   Commission may exercise certain dispute resolution functions under federal enterprise agreements

(1)  A person may apply to the Commission to have a dispute resolution process conducted by the Commission in relation to a matter or matters in dispute if:

(a)  the parties to the dispute are bound by a federal enterprise agreement, and

(b)  the Commission is authorised or permitted to conduct the dispute resolution process under procedures set out in the agreement.

(2)  On any such application, the Commission has and may exercise such functions with respect to the resolution of the dispute as are conferred or imposed on it by or under:

(a)  the federal enterprise agreement concerned, and

(b)  the federal Act.

(3)  The Commission is to be constituted by a single member of the Commission unless the federal enterprise agreement or federal Act (as the case may be) requires otherwise.

(4)  Subject to subsection (5), the exercise of a function conferred or imposed on the Commission as referred to in subsection (2) is, for the purposes of any other provision of this Act, taken not to have been exercised under this Act.

(5)  The regulations may make provision for or with respect to the application of the provisions of this Act (with such modifications, if any, as may be prescribed by the regulations) to the exercise of functions conferred or imposed on the Commission as referred to in subsection (2).

(6)  The functions that the Commission is authorised or permitted to exercise as referred to in this section are in addition to, and do not derogate from, any other function of the Commission.

(7)  Nothing in this section makes any order, determination or other decision of the Commission in respect of the dispute binding on other parties to the dispute unless the federal enterprise agreement concerned or federal Act operate to make it binding on the parties.

(8)  In this section:

federal Act means the Fair Work Act 2009 of the Commonwealth.

federal enterprise agreement means:

(a)  an enterprise agreement, or

(b)  a preserved State agreement (but only if the nominal term of the agreement has not yet expired),

      within the meaning of the federal Act (and includes any workplace agreement within the meaning of the former Workplace Relations Act 1996 of the Commonwealth that continues in force under the law of the Commonwealth).

modification includes addition, exception, omission or substitution.

146C   Commission to give effect to certain aspects of government policy on public sector employment

(1)  The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees:

(a)  that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and

(b)  that applies to the matter to which the award or order relates.

(2)  Any such regulation may declare a policy by setting out the policy in the regulation or by adopting a policy set out in a relevant document referred to in the regulation.

(3)  An award or order of the Commission does not have effect to the extent that it is inconsistent with the obligation of the Commission under this section.

(4)  This section extends to appeals or references to the Full Bench of the Commission.

(5)  This section does not apply to the Commission in Court Session.

(6)  This section extends to proceedings that are pending in the Commission on the commencement of this section. A regulation made under this section extends to proceedings that are pending in the Commission on the commencement of the regulation, unless the regulation otherwise provides.

(7)  This section has effect despite section 10 or 146 or any other provision of this or any other Act.

(8)  In this section:

award or order includes:

(a)  an award (as defined in the Dictionary) or an exemption from an award, and

(b)  a decision to approve an enterprise agreement under Part 2 of Chapter 2, and

(c)  the adoption under section 50 of the principles or provisions of a National decision or the making of a State decision under section 51, and

(d)  anything done in arbitration proceedings or proceedings for a dispute order under Chapter 3.

conditions of employment—see Dictionary.

public sector employee means a person who is employed in any capacity in:

(a)  the Government Service, the Teaching Service, the NSW Police Force, the NSW Health Service, the service of Parliament or any other service of the Crown, or

(b)  the service of any body (other than a council or other local authority) that is constituted by an Act and that is prescribed by the regulations for the purposes of this section.

146D   Commission has no jurisdiction in respect of death and disability payments for police officers

(1)  The Commission does not have jurisdiction or power to make or vary any award or order that provides for death and disability payments to or in respect of police officers.

(2)  The Commission cannot, in any proceedings relating to the remuneration or other conditions of employment of police officers, treat any savings attributable to the operation of the Police Amendment (Death and Disability) Act 2011 as employee-related cost savings that may offset increased employee-related costs arising from any award or order in those proceedings.

(3)  This section does not apply to awards or orders:

(a)  with respect to payments for accrued annual, extended or other leave on the death or termination of employment of police officers, or

(b)  in proceedings to enforce accrued entitlements (including under an award, or provision of an award, rescinded by the Police Amendment (Death and Disability) Act 2011), or

(c)  in proceedings by an incapacitated police officer for the enforcement of obligations of the NSW Police Force under applicable employment policies and practices to provide restricted or other duties to the incapacitated officer, or

(d)  in proceedings on an appeal under section 186 of the Police Act 1990.

(4)  An award or order of the Commission does not have effect to the extent that it is inconsistent with this section.

(5)  This section extends to appeals or references to the Full Bench of the Commission.

(6)  This section does not apply to the Commission in Court Session.

(7)  This section extends to proceedings that are pending in the Commission on the commencement of this section, and to awards or orders made or varied by the Commission after the date on which the Bill for the Police Amendment (Death and Disability) Act 2011 was introduced into Parliament.

(8)  This section has effect despite section 10 or 146 or any other provision of this or any other Act.

(9)  In this section:

award or order includes:

(a)  an award (as defined in the Dictionary) or an exemption from an award, and

(b)  a decision to approve an enterprise agreement under Part 2 of Chapter 2, and

(c)  the adoption under section 50 of the principles or provisions of a National decision or the making of a State decision under section 51, and

(d)  anything done in arbitration proceedings or proceedings for a dispute order under Chapter 3.

death and disability payments has the meaning it has in Part 9B of the Police Act 1990.

Part 2 Membership of Commission

147   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.

149   Judicial members

(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)  an Australian lawyer 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.

151A   Name of Commission in Court Session to be the Industrial Court of New South Wales

The name of the Commission in Court Session is to be the Industrial Court of New South Wales, and a reference in this Act (or any other Act, statutory instrument or document) to the Commission in Court Session (whether enacted or made before or after the commencement of this section) is taken to include a reference to the Industrial Court of New South Wales.

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,

(ja)  proceedings under section 197B,

(jb)  proceedings under section 23A of the Transport Appeal Boards Act 1980,

(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.

154   Declaratory jurisdiction

(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.

156   Full Bench of 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.

(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.

157   Regional matters

(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.

159   Arrangement of business

(1)  The President of the Commission is (subject to this Act and the rules of the Commission) to direct the business of the Commission.

(1A)  Without limiting subsection (1), a direction given under that subsection may be limited to particular proceedings (or particular classes of proceedings) specified in the direction.

(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.

160   Delegation by President

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.

161   Annual report

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

162   Procedure generally

(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 the 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 the 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 the 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 the Local Court constituted by an Industrial Magistrate sitting alone.

162B   Exercise of Commission’s functions by Industrial Registrar and Registry officers

(1)  The President may, by instrument in writing:

(a)  direct that any function of the Commission under this Act or the rules of the Commission may be exercised by the Industrial Registrar, or by a Registry officer, in such circumstances, and subject to such conditions, as are specified in the instrument, and

(b)  vary or revoke any such instrument.

(2)  This section does not limit any provision of this Act by which the Commission is constituted with respect to the exercise of the Commission’s functions.

Note. Similar instruments may be made under section 13 of the Civil Procedure Act 2005 in relation to the functions of the Commission under that Act and the uniform rules made under that Act.

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 Subdivision 2 of Division 2 of Part 7 of the Commission for Children and Young People 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.

165   Issue of summons

(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.

166   Representation of parties

(1)  A party to proceedings before the Commission may appear personally or be represented by an Australian 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 or in proceedings under Part 7 (Public sector promotion and disciplinary appeals) of Chapter 2 by a person who is an Australian legal practitioner or an agent who is an industrial agent without the leave of the Commission.

(2A)  Despite subsections (1) and (2), a party to proceedings referred to in section 100H is not entitled to be represented by an Australian legal practitioner or by an agent who is not a practitioner.

(3)  The leave of the Commission is not required if the Australian 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 Australian 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 an Australian 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.

168   Criminal procedure

(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.

175   Powers of interpretation

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.

179   Finality of decisions

(1)  A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.

(2)  Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal.

(3)  This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law.

(4)  This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of:

(a)  the Full Bench of the Commission in Court Session, or

(b)  the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision.

(5)  This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.

(6)  This section is 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.

(7)  In this section:

decision includes any award or order.

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.

181   Costs

(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 11 of Part 3.2 of the Legal Profession Act 2004 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).

(3A)  Despite subsection (1), the Commission may not award costs in proceedings under Part 7 of Chapter 2.

Note. This subsection does not prevent the award of costs in appeals relating to questions of law in relation to public sector promotional and disciplinary matters under section 197B.

(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.

Part 6 Rules of Commission

185   Rules of Commission

(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

(d1)  authorising any function of the Commission under the Work Health and Safety Act 2011 to be exercised by the Industrial Registrar, or

(e)  any matter that may be the subject of rules under the Supreme Court Act 1970 or the Civil Procedure Act 2005.

(2A)  Without limiting subsection (2) (b), rules of the Commission may provide for the giving of evidence (including by way of reports or other documents) in appeals under Part 7 of Chapter 2 by persons having specialised knowledge of matters relevant to promotion appeals or disciplinary appeals under that Part.

(3)  This section extends to the making of rules relating to the practice and procedure of (and other matters relating to) an Industrial Committee.

(4)  This section extends to the making of rules relating to the practice and procedure (and other matters) relating to promotion appeals and disciplinary appeals under the Transport Appeal Boards Act 1980.

185A   Practice notes

(1)  Subject to rules of the Commission, the President may issue practice notes with respect to any matter for which rules may be made.

Note. The power to make rules under section 185 (4) enables the President to issue practice notes under this section with respect to promotion appeals and disciplinary appeals under the Transport Appeal Boards Act 1980.

(2)  A practice note must be published in the Gazette.

(3)  Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.

185B   Commission may dispense with rules in particular cases

In relation to particular civil proceedings, the Commission may, by order, dispense with any requirement of rules of the Commission if satisfied that it is appropriate to do so in the circumstances of the case.

185C   Commission may give directions in circumstances not covered by rules

(1)  In relation to particular proceedings, the Commission may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act.

(2)  Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.

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.

191   Nature of appeal

(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.

192   Powers on appeal

(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.

197   Appeals from Local Court

(1)  An appeal lies to a Full Bench of the Commission in Court Session against:

(a)  any order made under this Act by the 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 the Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty, or

(d)  a civil penalty imposed under Division 7 of Part 13 of the Work Health and Safety Act 2011 by the Local Court for a contravention of a WHS civil penalty provision 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 the 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 70 of the Local Court Act 2007) 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 the 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   (Repealed)

197B   Appeals on questions of law in relation to public sector promotional and disciplinary matters

(1)  A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Full Bench of the Commission in Court Session against any decision of the Commission in the proceedings on a question of law.

(2)  On an appeal under this section, the Full Bench of the Commission in Court Session may:

(a)  remit the matter to the Commission for determination in accordance with the decision of the Full Bench, or

(b)  make such other order in relation to the appeal as seems fit.

Part 8 Industrial Committees

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

202   Definitions

In this Part:

Federal Act means the Fair Work Act 2009 of the Commonwealth.

Federal Commission means Fair Work Australia under the Federal Act.

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.

205   Joint proceedings

(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).

Part 9A Co-operation between State industrial tribunals

206A   Definitions

In this Part:

industrial law of another State means:

(a)  a law of the State corresponding, or substantially corresponding, to this Act, or

(b)  a law of the State that is declared by the regulations to be a corresponding law (whether or not the law corresponds, or substantially corresponds, to this Act).

industrial tribunal of another State means:

(a)  a tribunal established under a law of the State that has functions corresponding, or substantially corresponding, to functions conferred or imposed on the NSW Commission by this Act, or

(b)  a tribunal established under a law of the State that is declared by the regulations to be the industrial tribunal of the State (whether or not the tribunal has functions corresponding, or substantially corresponding, to functions conferred or imposed on the NSW Commission by this Act).

NSW Commission means the Industrial Relations Commission established by this Act.

206B   Joint proceedings

(1)  A member of the NSW Commission may exercise, in the presence of:

(a)  a member of an industrial tribunal of another State, and

(b)  the parties to any proceedings before an industrial tribunal of another State, and

(c)  any witness summoned by an industrial tribunal of another State,

      any of the functions that are exercisable by the member of the NSW Commission in relation to a matter.

(2)  Evidence may be given, and submissions made, jointly for the purposes of the proceedings before the NSW Commission and the industrial tribunal of another State.

206C   NSW Commission may exercise functions conferred under industrial law of another State

(1)  Subject to subsection (3), the NSW Commission has (and may exercise) such functions as may be conferred on it under the industrial law of another State.

(2)  However, the exercise of any such function by the NSW Commission is taken for the purposes of this Act not to be the exercise of a function under this Act.

(3)  Subsection (1) does not extend to any function (or class of functions) conferred under the industrial law of another State that is excluded by the regulations.

Part 10 Industrial Registrar

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.

Part 11 NSW industrial relations website

208A   NSW industrial relations website

For the purposes of this Act, the NSW industrial relations website is the Internet website used for the time being by the Industrial Registrar to provide public access to information relating to New South Wales industrial relations matters.

208B   When matter is published on NSW industrial relations website

(1)  A matter is published on the NSW industrial relations website:

(a)  if it is made accessible in full on that website, or

(b)  if notice of its making, issue or other production is made accessible on that website and it is made accessible separately in full on that website or in any other identified location.

(2)  The date on which a matter is published on the NSW industrial relations website is the date notified by the Industrial Registrar (whether as part of the matter or elsewhere) as the date of its publication, being a date that is not earlier than the date on which it was first made so accessible.

(3)  If a matter cannot for technical or other reasons be published on the NSW industrial relations website at a particular time, the matter may be published at that time in such other manner as the Industrial Registrar determines and published on that website as soon as practicable thereafter. In that case, it is taken to have been published on that website at that earlier time.

208C   Evidence of publication

(1)  The Industrial Registrar may issue a certificate that certifies either or both of the following matters:

(a)  that a specified website is currently used (or was used during a specified period or on a specified date) by the Registrar to provide public access to information relating to New South Wales industrial relations matters,

(b)  that a specified matter was published on the NSW industrial relations website on a specified date.

(2)  For the purposes of any proceedings before a court or tribunal, a certificate purportedly issued under subsection (1) is admissible as evidence of the particulars certified in and by the certificate.

(3)  The provisions of this section are in addition to, and do not derogate from, the provisions of section 390.

Chapter 5 Industrial organisations

Part 1 Principles of association

209   Freedom of association

(1)  A person is entitled to be a member of an industrial organisation, but can be prevented from becoming or remaining a member by the organisation acting under its rules and in accordance with section 260.

(2)  A person cannot be compelled to become, or remain, a member of an industrial organisation.

210   Freedom from victimisation

(1)  An employer or industrial organisation must not victimise an employee or prospective employee because the person:

(a)  is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or

(b)  does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or

(c)  refuses to engage in industrial action, or

(d)  exercises functions conferred under this Act, or

(e)  claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or

(f)  informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or

(g)  participates, or proposes to participate, in proceedings relating to an industrial matter, or

(h)  engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee’s duties), or

(i)  informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or

(ia)  informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2008, or

(ib)  reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or

(ic)  informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or

(j)  makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or

(k)  assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995.

(2)  In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

211   No preference to members of employee organisations over non-members

(1)  An industrial instrument cannot confer a right of preference of employment in favour of a member of an industrial organisation of employees over a person who is not a member of such an organisation.

(2)  This section applies to industrial instruments in force on the commencement of this section.

(3)  For the purposes of this section, a member of an industrial organisation includes a person who has applied to become a member of the organisation.

212   Conscientious objection to membership of organisation

(1)  The Industrial Registrar may issue a certificate of conscientious objection to a person who satisfies the Industrial Registrar that he or she holds a genuine conscientious objection to becoming a member of an industrial organisation of employees.

(2)  The Industrial Registrar may refuse to issue or may cancel such a certificate if the person does not pay the Industrial Registrar fees (including periodic fees) of such amount as the Industrial Registrar determines would be payable for membership of a relevant industrial organisation of employees.

(3)  A certificate of conscientious objection may, without limiting this section, be issued to a person (whether or not an employee) who satisfies the Industrial Registrar that he or she is a practising member of a religious society or order (such as the Brethren) whose tenets or beliefs preclude membership of any organisation or body other than that society or order. In the case of a certificate issued to a person who is not an employee, a reference in this section to a relevant organisation of employees is taken to be a reference to a relevant organisation of employers.

213   Enforcement

(1)  The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part.

(2)  The Commission may, in particular, for that purpose do any one or more of the following:

(a)  order the reinstatement or re-employment of an employee,

(b)  order the employer to promote or otherwise advance an employee in his or her employment,

(c)  order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone,

(d)  order the employer to employ a prospective employee,

(e)  order the employer not to carry out a threat to victimise an employee or not to make any further such threat,

(f)  order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,

(g)  make consequential orders (including orders concerning continuity of service).

(3)  An application for an order under this section must be made within 21 days after the contravention concerned.

(4)  The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to:

(a)  the reason for, and the length of, the delay in making the application, and

(b)  any hardship that may be caused to the applicant or other party if the application is or is not rejected, and

(c)  the conduct in relation to which the order is sought.

214   Application of Part

This Part applies despite anything to the contrary in an industrial instrument.

Part 2 State peak councils

215   State peak council—employees

For the purposes of this Act, Unions NSW is the State peak council for employees.

216   State peak councils—employers

(1)  For the purposes of this Act, an organisation approved for the time being by the Commission under this section is a State peak council for employers. More than one organisation may be so approved.

(2)  The Commission may approve as a State peak council for employers an organisation that is representative of a significant number of member associations or organisations of employers (being associations or organisations whose members operate primarily in New South Wales).

(3)  The Commission may at any time revoke any such approval for any reason it thinks fit.

(4)  The regulations may make provision for or with respect to approvals under this section and the application to an approved organisation of any requirements applicable to industrial organisations (with or without modifications).

Part 3 Registration of organisations

Notes. 

1   Some defined terms in the Dictionary that are relevant to this Part include office in an organisation; officer of an organisation; committee of management of organisation.

2   The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court Session.

Division 1 Registration

217   Organisations capable of applying for registration

(1)  Any of the following organisations may apply to the Industrial Registrar to be registered under this Chapter:

(a)  an organisation of employees or employers that is formed for the purpose of its incorporation under this Act, other than a federally registered organisation (or a branch of such an organisation) or another organisation which is already incorporated under the Corporations Act 2001 of the Commonwealth, the Associations Incorporation Act 2009 or any other Act (a State organisation),

(b)  subject to subsection (2), an organisation of employees or employers that is a federally registered organisation (without branches) or a branch of such an organisation (a federal organisation),

(c)  an organisation of employers that is incorporated under the Corporations Act 2001 of the Commonwealth, Associations Incorporation Act 2009 or any other Act, other than a federally registered organisation (a separate organisation).

(2)  A federal organisation of employees cannot apply for registration under this Chapter unless the application is made with the consent of each registered State organisation of employees whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation.

(3)  The regulations may declare that any specified organisation or class of organisation is capable, or is taken, to be registered under this Chapter. The regulations may modify the application of this Chapter in respect of any such organisation.

(4)  In this section, federally registered organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.

218   Criteria for registration

(1)  The Industrial Registrar is to grant the application for registration if, and only if:

(a)  the organisation is a genuine organisation of a kind that is capable of registration under this Chapter, and

(b)  the organisation is an organisation for furthering or protecting the interests of its members, and

(c)  the organisation is capable of representing its members in connection with industrial matters, and

(d)  in the case of an organisation of employees—the organisation has, at the time of registration, at least 50 members who are employees, and

(e)  in the case of an organisation of employers—the organisation has, at the time of registration, at least 2 members who are employers and those members employ between them at least 50 employees, and

(f)  the rules of the organisation make provision as required by this Chapter to be made by the rules of such an organisation, and

(g)  in the case of an organisation consisting of the members of a branch of an organisation—the branch is of sufficient importance to be registered separately, and

(h)  the organisation does not have the same name as that of an organisation registered under this Chapter and does not have a name that is so similar to such a name as to be likely to cause confusion, and

(i)  the name of the association is not, in the opinion of the Industrial Registrar, unsuitable to be the name of a registered organisation, and

(j)  in the case of a State organisation—a majority of the members present at a general meeting of the organisation or an absolute majority of the committee of management of the organisation has passed, under the rules of the organisation, a resolution in favour of registration of the organisation, and

(k)  in the case of a federal organisation—the rules of the organisation (including any parent body) confer on the organisation applying for registration a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales, and

(l)  in the case of a federal organisation of employees—the application for registration of the organisation is made with the consent of each registered State organisation whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation, and

(m)  in the case of an organisation of employees—there is no other industrial organisation of employees to which the members of the organisation might conveniently belong.

(2)  An organisation may be registered even if its members include:

(a)  officers of the organisation, or

(b)  in the case of an organisation of employers—persons other than employees who carry on business but who do not have any employees, or

(c)  in the case of an organisation of employers—persons admitted to membership who have ceased to be employers, or

(d)  in the case of an organisation of employees—independent contractors who would be eligible for membership if their work were done as an employee.

However, an organisation with any such members may be registered only if it is effectively representative of the members who are employees or employers, as the case requires.

219   Applications for registration

(1)  An application for registration under this Chapter is to be made in the manner and form approved by the Industrial Registrar.

(2)  The Industrial Registrar may require information in the application to be verified by statutory declaration and may require proof of the authority of the applicants to act on behalf of the organisation concerned.

(3)  An applicant must, within 14 days after submitting an application, publish a notice of the application in a newspaper circulating throughout the State.

(4)  The Industrial Registrar must, within 14 days after receiving an application, notify any organisation registered under this Chapter that, in the opinion of the Industrial Registrar, may be affected by the application.

(5)  The Industrial Registrar may grant an applicant leave to amend the application (including for the purposes of a change in the name or rules of the organisation to meet an objection to registration).

220   Objections to registration

(1)  Any person may lodge with the Industrial Registrar a notice of objection to an application for registration. The notice must be lodged within 28 days after publication by the applicant of the notice of the application in a newspaper or within 28 days after being notified by the Industrial Registrar of the application (whichever last occurs).

(2)  The notice of objection must set out with reasonable particularity the ground or grounds of the objection and the facts and circumstances relied on as establishing those grounds, and must be verified by statutory declaration.

(3)  A copy of the notice of objection must be served on the applicant for registration by the objector within 7 days after lodging the objection with the Industrial Registrar.

(4)  After conducting a hearing into any objections to an application for registration, the Industrial Registrar is to determine the application. The Industrial Registrar may determine the application without a hearing if there are no objections.

(5)  The procedure to be followed at any hearing in connection with objections to registration is, subject to the rules of the Commission, to be as directed by the Industrial Registrar.

Note. Section 194 provides for an appeal to the Commission against a decision of the Industrial Registrar on the application for registration by the applicant or an objector.

221   Registration

(1)  When the Industrial Registrar grants an application for registration, the Industrial Registrar must immediately record, in the register kept for the purpose:

(a)  the name of the organisation, and

(b)  whether the organisation is an organisation of employees or employers, and

(c)  whether the organisation is a State, federal or separate organisation, and

(d)  such other particulars of the organisation as are prescribed by the regulations or determined by the Industrial Registrar, and

(e)  the date of the entry.

(2)  An organisation is taken to be registered under this Chapter as an industrial organisation of employees or an industrial organisation of employers when the Industrial Registrar records that information in the register.

(3)  The Industrial Registrar must issue to each organisation registered under this Chapter a certificate of registration. The regulations may make provision for or with respect to certificates of registration.

222   Incorporation of State organisations on registration

A State organisation, when registered under this Chapter:

(a)  is a body corporate, and

(b)  has perpetual succession, and

(c)  has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property, and

(d)  is required to have a seal, and

(e)  may sue or be sued in its registered name.

223   Continuation of registration of existing industrial organisations

(1)  Any industrial organisation of employees or employers registered or recognised as such under Chapter 5 of the Industrial Relations Act 1991 immediately before the repeal of that Act is taken to be an industrial organisation of employees or employers registered under this Chapter.

(2)  The Industrial Registrar is to record in the register kept under this Chapter whether such an organisation is a State, federal or separate organisation.

(3)  If the rules of such an organisation do not comply with the requirements of this Chapter, the organisation must ensure that the rules comply with those requirements within 2 years after the commencement of this section. The Industrial Registrar may notify such an organisation of the requirements with which the rules of the organisation do not comply.

(4)  If the rules of such an organisation have not been duly altered within that 2-year period:

(a)  in the case of a State organisation, the Industrial Registrar may, by order, alter the rules of the organisation so that they comply with the relevant requirements, or

(b)  in any other case, the failure to alter the rules is a ground for the cancellation of the registration of the organisation under Division 2.

224   Registered office of organisation

(1)  An industrial organisation must have an office in New South Wales for the time being registered with the Industrial Registrar to which all communications and notices may be addressed.

(2)  An industrial organisation must give notice of the address of its registered office and of any change in that address to the Industrial Registrar.

(3)  Until the organisation has given that notice, it is taken not to have a registered office.

(4)  A contravention of this section is a sufficient ground for the cancellation of the registration of the organisation under Division 2 or for the imposition of any other penalty under that Division.

Division 2 Cancellation of registration

225   Institution of proceedings for cancellation of registration

(1)  An industrial organisation or, with the leave of the Commission, a person who has a sufficient interest in the matter may apply to the Commission for the cancellation of the registration of an industrial organisation.

(2)  The Commission may institute proceedings under this Division on its own initiative.

(3)  An industrial organisation may apply for the cancellation of its own registration.

(4)  An industrial organisation must be given an opportunity to be heard by the Commission in any proceedings against the organisation under this Division.

226   Grounds on which registration may be cancelled

The registration of an industrial organisation may be cancelled on any one or more of the following grounds:

(a)  that the organisation, or a substantial number of its members, has or have contravened the industrial relations legislation, any industrial instrument, or any order of the Commission,

(b)  that the industrial organisation, or a substantial number of its members, has or have engaged in any industrial action that has had, is having or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community,

(c)  that the organisation or a substantial number of its members, has or have engaged in any industrial action that has had or is having a major and substantial adverse effect on the provision of any public service by the State or an authority of the State contrary to the public interest and without reasonable excuse,

(d)  that the industrial organisation was registered by mistake,

(e)  that the industrial organisation is no longer effectively representative of the members who are employees or employers, as the case requires,

(f)  that the organisation has applied for the cancellation of its own registration,

(g)  that the organisation is defunct,

(h)  in the case of a federal organisation—that the rules of the organisation (and any parent body) no longer confer on the organisation a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales.

227   Cancellation of registration of industrial organisation

(1)  The Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established.

(2)  However, the Commission is not to cancel the registration of an industrial organisation on a ground referred to in section 226 (a)–(c) unless the Commission considers that it is appropriate to cancel the registration in the circumstances because of the gravity of the case.

228   Consequences of cancellation

(1)  On cancellation of registration of an industrial organisation, the organisation ceases to be an industrial organisation for the purposes of this Act.

(2)  The cancellation of registration does not relieve the industrial organisation or any of its members from any penalty or liability incurred by the industrial organisation or its members before the cancellation.

(3)  The cancellation of registration of a State organisation also has the following consequences:

(a)  the organisation ceases to be a body corporate under this Act, but does not thereby cease to be an unincorporated organisation,

(b)  the Commission may, on application by a person interested, make such order as it considers appropriate in relation to the satisfaction of the debts and obligations of the organisation out of the property of the organisation,

(c)  the property of the incorporated organisation is, subject to any such order, the property of the unincorporated organisation and is required to be held and applied for the purposes of the organisation under the rules of the organisation so far as they can still be carried out or observed.

229   Alteration of rules (instead of cancellation of registration) of organisation

If:

(a)  the Commission finds that a ground of cancellation has been established, and

(b)  that finding is made, wholly or mainly, because of the conduct of a particular class or group of members of the industrial organisation,

the Commission may, if it considers it just to do so, instead of cancelling the registration of the industrial organisation, make a demarcation order under Part 6 so as to exclude from eligibility for membership of the industrial organisation persons belonging to the class or group.

230   Suspension or other orders where cancellation of registration deferred

(1)  The Commission may, instead of making an order cancelling registration, or altering rules, of an industrial organisation, make one or more of the following orders:

(a)  an order suspending, to the extent specified in the order, all or any of the rights, privileges or capacities of the industrial organisation, or of all or any of its members as such, under this or any other Act or under industrial instruments or orders made under this or any other Act,

(b)  an order giving directions as to the exercise of any rights, privileges or capacities that have been suspended,

(c)  an order restricting the use of the funds or property of the industrial organisation, and for the control of the funds or property for the purpose of ensuring observance of the restrictions.

(2)  Having made such an order, the Commission must defer the determination of the question whether to cancel the registration of the industrial organisation concerned until:

(a)  any order made under this section ceases to be in force, or

(b)  on application by a party to the proceeding, the Commission considers that it is just to determine the question, having regard to any evidence given relating to the observance or non-observance of any order and to any other relevant circumstance,

      whichever happens first.

(3)  An order made under this section has effect despite anything in the rules of the industrial organisation concerned.

(4)  An order made under this section:

(a)  may be revoked by the Commission, by order, on application by a party to the proceeding concerned, and

(b)  unless sooner revoked, ceases to be in force:

(i)  6 months after it came into force, or

(ii)  at the expiration of such longer period after it came into force as is ordered by the Commission on application by a party to the proceeding made while the order remains in force.

(5)  A person who contravenes an order made under subsection (1) (b) or (c) is guilty of an offence.

Maximum penalty: 50 penalty units.

231   Commission may make necessary ancillary or consequential orders

(1)  The Commission may make such orders as are necessary to give effect to, or in consequence of, an order made under this Division.

(2)  In particular, the Commission may, if it cancels the registration of an industrial organisation, direct that an application by that organisation to be registered as an industrial organisation is not to be dealt with under this Act before the end of a specified period.

232   Cancellation or other order to be recorded

The Industrial Registrar must record a cancellation or other order made under this Division, and the date it takes effect, in the register kept under this Part.

Part 4 Regulation of State industrial organisations

Division 1 Application

233   Application of Part to State organisations

This Part applies to industrial organisatio