New South Wales act

Industrial Relations Act 1996

In ForceNSW

Jurisdiction

New South Wales

Act Number

17 of 1996

Collection

act

Plain English Summary

9/10 complexity

The Industrial Relations Act 1996 sets the rules for workplaces in New South Wales: it establishes awards and enterprise agreements, requires minimum fairness standards, and provides a system of conciliation and arbitration to resolve workplace disputes.

It covers core employment rights (leave, protections against unfair dismissal, discrimination, bullying and harassment), regulates unions and employer bodies, and affects almost all NSW employers, employees and unions—ensuring fair minimum conditions and accessible dispute resolution.

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What it does

The Industrial Relations Act 1996 (NSW) establishes a comprehensive statutory framework for the conduct of industrial relations within New South Wales. Its primary function is to provide machinery for the making and variation of awards (s.10) and the approval of enterprise agreements (Part 2 of Chapter 2), both of which set legally enforceable minimum conditions of employment. Awards are made by the Industrial Relations Commission on application or its own motion (s.11) and bind all employers and employees in the relevant industry (s.12). They must contain mandatory dispute-resolution procedures (s.14) and are subject to periodic review every three years to modernise terms, remove obsolete provisions, and promote productivity (s.19).

Enterprise agreements, by contrast, are workplace-specific instruments that prevail over awards to the extent of any inconsistency (s.41). They require Commission approval against a “no net detriment” test when compared with the relevant award (s.35(1)(b)) and must be supported by a secret ballot of at least 65 % of the employees to be covered (s.36(4)). The Act also supplies default minimum standards in areas not covered by awards or agreements, most notably the detailed parental-leave regime in Part 4 of Chapter 2 (ss.53–72), which confers 52 weeks’ unpaid leave, a right to return to the pre-leave position (s.66), and protection from dismissal on grounds of pregnancy or parental leave (s.68).

Dispute resolution is a central pillar. The Commission is required to attempt conciliation before arbitration (s.133) and may issue dispute orders, including reinstatement, stand-down, or cessation of industrial action (s.137). The Act expressly prohibits strike pay (s.143) and regulates the lawfulness of industrial action during conciliation (Part 3 of Chapter 3). In the public sector, the Act preserves a distinct disciplinary-appeals jurisdiction (Part 7 of Chapter 2) while integrating it with the Commission’s general powers.

Current sections

Direct links to the current provisions in Industrial Relations Act 1996.

614

Name of Act

1 Name of Act

This Act is the Industrial Relations Act 1996.

Commencement

2 Commencement

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

Objects

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, bullying and sexual harassment in the workplace,

(f1) to achieve gender equality in the workplace, and in particular—

(i) to ensure equal remuneration for men and women doing work of equal or comparable value, and

(ii) to eliminate gender-based undervaluation of work,

(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.

s 3: Am 2023 No 41, Sch 1.3[1]; 2025 No 42, Sch 1[1].

Dictionary

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.

Definition of employee

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.

s 5: Am 2001 No 128, Sch 2 [1]; 2008 No 23, Sch 3.27 [1]; 2010 No 19, Sch 3.49 [1].

Definition of industrial matters

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,

(e1) the return to work for employees who have received a workplace injury,

(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.

s 6: Am 2001 No 80, Sch 3.3 [1]; 2006 No 97, Sch 1 [1]; 2025 No 42, Sch 1[2].

Definition of industry

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.

Definition of industrial instrument

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.

Notes in text

9 Notes in text

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

Employers declared not to be national system employers

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.

s 9A: Ins 2009 No 115, Sch 2 [1]. Am 2010 No 35, Sch 1 [1].

Referral of workplace relations matters to Commonwealth

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.

s 9B: Ins 2009 No 115, Sch 2 [1].

Part 1

Awards

Part 1 Awards

Division 1

Awards generally

Division 1 Awards generally

Commission may make awards

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.

When award may be made

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.

Persons bound by 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.

Formal matters relating to making of 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.

s 13: Am 2006 No 97, Sch 1 [2].

Mandatory dispute resolution procedures in 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.

Commencement of award

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.

s 15: Am 2000 No 67, Sch 1 [1]; 2006 No 97, Sch 1 [2]; 2016 No 48, Sch 1 [1]; 2023 No 41, Sch 1.2[1].

Term of award

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.

Variation or rescission of award

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.

s 17: Am 2010 No 109, Sch 1 [1]–[4]; 2011 No 68, Sch 1 [1]–[3].

Exemptions from awards

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.

Review of awards

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.

s 19: Am 1999 No 39, Sch 2; 2010 No 109, Sch 1 [5] [6]; 2011 No 68, Sch 1 [4] [5].

Consolidation of awards and rescission of obsolete awards

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.

s 20: Am 2010 No 109, Sch 1 [7]; 2011 No 68, Sch 1 [6].

20A

20A (Repealed)

Division 2

Particular conditions of employment in awards

Division 2 Particular conditions of employment in awards

Conditions to be provided in awards on application

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.

Maximum ordinary hours of employment

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.

Equal remuneration and other conditions

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.

Employment protection provisions

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.

Provisions relevant to technological change

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).

Minimum sick leave entitlements

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.

Prohibition on cashing-in of accumulated sick leave

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.

Other provisions not affected

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

Part 2 Enterprise agreements

28A

Definitions

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.

s 28A: Ins 2000 No 67, Sch 1 [2]. Am 2010 No 35, Sch 1 [2]; 2015 No 58, Sch 3.48 [1].

Making of enterprise agreements

29 Making of enterprise agreements

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

Coverage of enterprise agreement

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.

Parties to an enterprise agreement

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.

s 31: Am 2000 No 67, Sch 1 [3].

Enterprise agreement required to be approved

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.

Principles for approval of enterprise agreements

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.

s 33: Am 2006 No 97, Sch 1 [2].

Application for approval of enterprise agreement

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.

Approval of enterprise agreement by Commission

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)

s 35: Am 2000 No 67, Sch 1 [4] [5].

Special requirements relating to enterprise agreements to which employees are parties

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)

s 36: Am 2000 No 67, Sch 1 [6]–[8].

36A

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

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).

s 36A: Ins 2000 No 67, Sch 1 [9].

Secret ballots under this Part

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

Division 3 General

Form and content of enterprise agreement

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.

Mandatory dispute resolution procedures in enterprise agreements

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.

Persons bound by enterprise agreement

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).

Enterprise agreements prevail over State awards

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)

s 41: Am 2000 No 67, Sch 1 [10]–[12]; 2010 No 35, Sch 1 [3].

Term of enterprise agreement

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.

s 42: Am 2000 No 67, Sch 1 [13].

Variation of an enterprise agreement

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.

Termination of enterprise agreement

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.

Register and publication of enterprise agreements

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.

s 45: Am 2006 No 97, Sch 1 [2].

Notification of enterprise agreements to new employees

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.

Enterprise agreement conditions—flow-on

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

Part 3 National and State decisions

What is a National decision?

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.

s 48: Subst 2010 No 35, Sch 1 [4].

What is a State decision?

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.

Adoption of National decisions

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.

Making of State decisions

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.

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

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).

s 52: Am 2010 No 109, Sch 1 [9] [10]; 2011 No 68, Sch 1 [8] [9].

Part 4

Parental leave

Part 4 Parental leave

Employees to whom Part applies

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.

s 53: Subst 2000 No 67, Sch 1 [14].

Entitlement to unpaid parental leave

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.

What is parental leave?

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).

s 55: Am 2003 No 48, Sch 1 [1]; 2008 No 23, Sch 3.27 [2]–[5].

This Part provides minimum entitlements

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.

Length of service for eligibility

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.

s 57: Am 2000 No 67, Sch 1 [15]; 2001 No 47, Sch 1 [1].

Notices and documents required to be given to employer

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.

s 58: Am 2008 No 23, Sch 3.27 [2] [6]–[8].

Continuity of service

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.

Parents not to take parental leave at the same time

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.

s 60: Am 2008 No 23, Sch 3.27 [2].

Cancellation of parental 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.

Parental leave and other leave

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.

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

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.

Extension of period of parental leave

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.

Shortening of period of parental 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.

Return to work after parental leave

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.

s 66: Am 2000 No 67, Sch 1 [16] [17].

Employer’s obligations

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.

Termination of employment because of pregnancy or parental leave

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).

Replacement employees

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.

Transfer 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.

s 70: Am 2000 No 40, Sch 2.6 [1]; 2011 No 67, Sch 4.14 [1].

Special maternity leave and sick leave

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.

Special adoption leave

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

Part 4B Leave for victims of crime

ch 2, pt 4B: Ins 2001 No 21, Sch 1 [1].

72AA

Employees to whom Part applies

72AA Employees to whom Part applies

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

s 72AA: Ins 2001 No 21, Sch 1 [1].

72AB

Definitions

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 assault or sexual touching).

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.

s 72AB: Ins 2001 No 21, Sch 1 [1]. Am 2010 No 19, Sch 3.49 [2]; 2018 No 33, Sch 5.10.

72AC

Entitlement to unpaid victims leave

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.

ss 72AC–72AG: Ins 2001 No 21, Sch 1 [1].

72AD

Purposes for which victims leave may be taken

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.

ss 72AC–72AG: Ins 2001 No 21, Sch 1 [1].

72AE

Notices and documents required to be given to employer

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.

ss 72AC–72AG: Ins 2001 No 21, Sch 1 [1].

72AF

Return to work after victims leave

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.

ss 72AC–72AG: Ins 2001 No 21, Sch 1 [1].

72AG

Miscellaneous provisions relating to 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.

ss 72AC–72AG: Ins 2001 No 21, Sch 1 [1].

Part 5

Part-time work

Part 5 Part-time work

Employees to whom Part applies

73 Employees to whom Part applies

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

What is part-time work?

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.

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

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.

Entitlement to work part-time with agreement of employer

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.

Variation of part-time work agreements

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.

Obligations of employer under part-time work agreements

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.

Application of industrial instruments

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.

s 79: Am 1998 No 54, Sch 2.20 [1].

Additional hours of 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.

Leave

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.

Replacement employees

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

Part 6 Unfair dismissals

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.

Application of Part

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 the Secretary of a Department or a Public Service senior executive under the Government Sector Employment Act 2013 or an executive officer to whom 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.

s 83: Am 1998 No 164, Sch 1 [1] [2]; 2000 No 67, Sch 1 [18] [19]; 2001 No 80, Sch 3.3 [2]; 2010 No 35, Sch 1 [5]–[8]; 2011 No 62, Sch 3.15; 2013 No 40, Sch 6.4 [1].

Application for remedy by dismissed employee

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.

Time for making applications

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.

Conciliation of applications

86 Conciliation of applications

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

Arbitration where conciliation unsuccessful

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.

Matters to be considered in determining a claim

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.

Orders for reinstatement, re-employment, remuneration, compensation

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.

Effect of availability of other remedies

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

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.

s 90A: Ins 1998 No 164, Sch 1 [3]. Rep 2000 No 67, Sch 1 [20]. Ins 2002 No 120, Sch 1 [1].

90B

Extinguishment of rights and liabilities

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.

s 90B: Ins 1998 No 164, Sch 1 [3]. Rep 2000 No 67, Sch 1 [20]. Ins 2002 No 120, Sch 1 [1]. Am 2006 No 120, Sch 3.13 [1].

Part 7

Public sector disciplinary appeals

Part 7 Public sector disciplinary appeals

ch 2, pt 7, hdg: Am 2013 No 40, Sch 6.4 [2].

ch 2, pt 7: Rep 2006 No 97, Sch 1 [3]. Ins 2010 No 54, Sch 1 [1].

Interpretation

91 Interpretation

(1) In this Part—

appeal means 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.

public sector employee means a person who is—

(a) employed in the Public Service, or

(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 head of the relevant Public Service agency,

(b) for a public sector employee of the class referred to in paragraph (b) of that definition—the Secretary of the Ministry of Health,

(c) for a public sector employee of the class referred to in paragraph (c) of that definition—the Secretary of the Department of Education,

(c1) for a public sector employee of the class referred to in paragraph (c1) of that definition—the Secretary 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) (Repealed)

s 91: Am 1998 No 85, Sch 2.7 [1]. Rep 2006 No 97, Sch 1 [3]. Ins 2010 No 54, Sch 1 [1]. Am 2011 No 41, Sch 5.12 [1] [2]; 2013 No 40, Sch 6.4 [3]–[7]; 2015 No 58, Sch 3.48 [2]; 2016 No 48, Sch 1 [2]; 2023 No 41, Sch 1.2[2].

Application of Part

92 Application of Part

(1) This Part applies to and in respect of 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 Premier’s Department.

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

s 92: Rep 2006 No 97, Sch 1 [3]. Ins 2010 No 54, Sch 1 [1]. Am 2013 No 40, Sch 6.4 [8]; 2023 No 35, Sch 4.20.

Notice of certain decisions etc

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.

s 97: Rep 2006 No 97, Sch 1 [3]. Ins 2010 No 54, Sch 1 [1].

Right of appeal

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) An appeal may be made on the ground the decision appealed against constituted a detrimental action offence within the meaning of the Public Interest Disclosures Act 2022.

(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.

s 98: Rep 2006 No 97, Sch 1 [3]. Ins 2010 No 54, Sch 1 [1]. Am 2011 No 37, Sch 2.3 [1] [2]; 2022 No 14, Sch 8.14.

Alternative rights of appeal

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).

s 99: Am 2000 No 67, Sch 1 [21] [22]. Rep 2006 No 97, Sch 1 [3]. Ins 2010 No 54, Sch 1 [1].

100

Appealable decisions may be carried into effect despite right of appeal

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.

s 100: Rep 2006 No 97, Sch 1 [3]. Ins 2010 No 54, Sch 1 [1].

Division 4

Procedures relating to the making of appeals

Division 4 Procedures relating to the making of appeals

ch 2, pt 7, div 4: Ins 2010 No 54, Sch 1 [1].

100A

Notice of appeal

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.

s 100A: Ins 2010 No 54, Sch 1 [1].

100B

Time for lodging appeal

100B Time for lodging appeal

(1) (Repealed)

(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) (Repealed)

s 100B: Ins 2010 No 54, Sch 1 [1]. Am 2013 No 40, Sch 6.4 [10].

100C

Decisions with respect to appeals

100C Decisions with respect to appeals

(1) (Repealed)

(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.

s 100C: Ins 2010 No 54, Sch 1 [1]. Am 2013 No 40, Sch 6.4 [11].

100D

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

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.

s 100D: Ins 2010 No 54, Sch 1 [1].

Division 5

Hearing of appeals

Division 5 Hearing of appeals

ch 2, pt 7, div 5: Ins 2010 No 54, Sch 1 [1].

100E

Conciliation of disciplinary 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.

ss 100E–100G: Ins 2010 No 54, Sch 1 [1].

100F

Powers when appeal settled by conciliation

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.

ss 100E–100G: Ins 2010 No 54, Sch 1 [1].

100G

Presentation of cases

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.

ss 100E–100G: Ins 2010 No 54, Sch 1 [1].

100H

100H (Repealed)

Part 8

Protection of entitlements on transfer of business

Part 8 Protection of entitlements on transfer of business

101

Definitions

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.

s 101: Am 1997 No 26, Sch 1.2.

102

Continuity of service for determining entitlements

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

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

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

Part 9 Unfair contracts

105

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) (Repealed)

(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.

s 105: Am 2011 No 13, Sch 1 [1]; 2011 No 73, Sch 4 [1]; 2016 No 48, Sch 1 [4]; 2023 No 41, Sch 1.2[4], Sch 1.3[2].

106

Power of Commission to declare contracts 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.

s 106: Am 2002 No 32, Sch 1 [1]; 2005 No 104, Sch 1 [1]; 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

107

Orders to prevent further unfair contracts

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.

s 107: Am 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

108

Who may apply for order

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

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.

s 108A: Ins 2002 No 32, Sch 1 [2].

108B

Time for making application

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.

s 108B: Ins 2002 No 32, Sch 1 [2]. Am 2005 No 104, Sch 1 [2] [3]; 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

109

Conciliation of applications to be attempted first

109 Conciliation of applications to be attempted first

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

(2) If, in the opinion of the Commission, all reasonable attempts to settle the matter by conciliation have been made but have been unsuccessful, the Commission must 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 an order determining the matter in accordance with this Act.

(4) A member of the Commission, whether or not a judicial member, may undertake the conciliation of a matter under this division.

s 109: Subst 2016 No 48, Sch 1 [5]; 2023 No 41, Sch 1.2[5].

109A

Exclusion of certain contracts in connection with unfair dismissals

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.

s 109A: Ins 1998 No 106, Sch 1 [1].

110

Application of Division

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

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.

s 111: Am 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

112

Commission may determine remuneration under unfair contract

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.

s 112: Am 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

113

Notice of possible order

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.

s 113: Am 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

114

Time at which order takes effect

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.

s 114: Am 2006 No 97, Sch 1 [2].

115

Incorporation of order in contract and other contracts

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.

s 115: Am 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

116

Variation or revocation of order

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.

s 116: Am 2016 No 48, Sch 1 [3]; 2023 No 41, Sch 1.2[3].

Part 10

Payment of remuneration

Part 10 Payment of remuneration

117

Employees to be paid in money

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

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

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

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

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

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

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

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.

s 124: Am 2000 No 67, Sch 1 [23].

125

Permits—special wage payments

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

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.

s 126: Am 2001 No 80, Sch 3.3 [3].

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

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, bullying and sexual harassment in the workplace,

(f1) to achieve gender equality in the workplace, and in particular—

(i) to ensure equal remuneration for men and women doing work of equal or comparable value, and

(ii) to eliminate gender-based undervaluation of work,

(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.

s 3: Am 2023 No 41, Sch 1.3[1]; 2025 No 42, Sch 1[1].