New South Wales: 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, 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.