Industrial Relations Act 1996 (NSW)

Industrial Relations Act 1996 No 17 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, (i) to encourage strategies to attract and retain skilled staff where there are skill shortages so as to ensure effective and efficient delivery of services. 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 52 of the Government Sector Employment Act 2013, or any similar determination relating to employment in the public sector (including employment with a local health district), 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, giv