Industrial Relations Commission Rules 2022

• Employers in the NSW State industrial system, including NSW Government agencies and private sector employers covered by NSW awards or seeking to make enterprise agreements.
• Employees and their unions, who participate in proceedings to make or vary awards, negotiate enterprise agreements, or pursue disputes.
• Legal practitioners and industrial advocates who represent parties before the Commission.
• The Commission itself and its Registrar, who administer proceedings and prepare draft awards.
• Parties to small claims, civil penalty, WHS prosecution, unfair contracts and contempt proceedings, who must follow the specialist procedure rules in Parts 7A-8A.

Originating process form (r 3.1). The originating process must be in the approved form for the proceedings unless the Commission orders otherwise. It must include the specified information including jurisdiction warnings and the address for service.

Notice of appearance. Respondents must file a notice of appearance before the required time. Failure to do so may result in proceedings being determined in their absence.

Electronic filing of awards (r 6.3). A party directed to do so must file an electronic copy of an award, variation or rescission within 7 days after the relevant event. The Commission's papers must be forwarded to the Registrar within 7 days.

Service requirements. Various rules set out how documents must be served on parties, including requirements for registered post, electronic service, and personal service.

Conciliation and dispute resolution. Part 5 requires parties to attempt conciliation in various proceedings before the matter proceeds to formal hearing or determination.

Commission's case management powers. The Commission may order that originating process be set aside (r 3.1(3)(a)), determine it lacks jurisdiction (r 3.1(3)(b)), decline to exercise jurisdiction (r 3.1(3)(c)), or grant other appropriate relief.

Preparation of draft awards. Under r 6.2, the Commission may direct the Registrar or parties to prepare a draft award within a specified period. This enables efficiency in complex award-making proceedings.

Contempt powers. Part 8A establishes the Commission's powers to deal with contempt. A "contemnor" (a person guilty or alleged to be guilty of contempt of the Commission) may be subject to the Commission's coercive powers in this Part.

President's approval of forms. The President may approve forms for use in proceedings under r 2.4.

The Rules are procedural instruments: they do not themselves create offences or penalties. Enforcement consequences arise from the parent Industrial Relations Act 1996:

• Failure to comply with Commission orders: May constitute contempt of the Commission (Part 8A) or breach of a dispute order subject to proceedings under Part 7B.
• Civil penalties: Proceedings for recovery of civil penalties prescribed under the Act are governed by the specialist rules in Part 7A.
• Work health and safety prosecutions: Part 7C sets out the procedural rules for WHS prosecution proceedings before the Commission. The WHS Act and the Industrial Relations Act provide the substantive framework.

Commencing proceedings. File the approved form originating process at the Registry.

Respondent's response. The respondent must file a notice of appearance before the required time (as stated in the originating process). Where no appearance is filed, proceedings may proceed in the respondent's absence.

Electronic document filing (r 6.3). Awards and related documents must be filed electronically within 7 days of the relevant event when directed.

Appeals. Part 7 sets out the procedure for appeals. The Division 3 appeal process (from r 7.15 onwards) applies to appeals to a Full Bench.

Small claims. Part 8 provides a simplified procedure for small claims applications. Rule 8 defines the scope of this track.

Industrial Relations Act 1996 (NSW). The parent Act that confers the Commission's jurisdiction. All proceedings before the Commission occur under the authority of that Act. The Rules govern procedure; the Act provides substantive powers.

Crimes (Appeal and Review) Act 2001 (NSW) and Criminal Appeal Act 1912 (NSW). Applied by the Industrial Relations Act to certain appeals to which Part 7 applies. The Rule's Part 7 note expressly identifies these applied Acts.

Work Health and Safety Act 2011 (NSW). Part 7C governs WHS prosecutions before the Commission. The WHS Act provides the substantive offence and penalty framework.

Fair Work Act 2009 (Cth). Defined in r 1.3 as a relevant reference point for certain award and enterprise agreement provisions. NSW State industrial laws co-exist with the Commonwealth Fair Work system for employers and employees not excluded by the federal system.

These are procedural rules, not substantive law. Persons researching employment rights, award obligations, unfair dismissal or dispute resolution should start with the Industrial Relations Act 1996 (NSW), not the Rules. The Rules only govern how proceedings are conducted before the Commission.

Approved forms are mandatory unless the Commission orders otherwise. Using an incorrect form, or omitting required information from an originating process, may result in the process being set aside under r 3.1(3). Parties should confirm they are using the current approved form from the Commission website.

Electronic filing within 7 days is a firm deadline. Rule 6.3 imposes a 7-day deadline for filing electronic copies of awards and related documents when directed. Failure to comply may attract adverse consequences in the proceedings.

Part 5 Division 1A is new (2024) and governs mutual gains bargaining. Practitioners involved in enterprise agreement negotiations from 2024 onwards should review the mutual gains bargaining rules in Part 5, Division 1A and the conciliation certificate requirement.

Example 1: Commencing a dispute proceedings. A union files an originating process in the Commission to resolve a dispute about the application of an award. The originating process must be in the approved form under r 3.1, state the hearing particulars and warn the employer about default consequences. The employer must file a notice of appearance within the required time.

Example 2: Award variation. An employer seeks to vary an award. The proceedings are conducted under Parts 3-6. After hearing, the Commission makes the variation. Under r 6.3, if directed, the employer must file an electronic copy of the varied award within 7 days.

Example 3: WHS prosecution. A WorkSafe NSW officer refers a WHS prosecution to the Commission. The prosecution proceeds under Part 7C rules, which govern the conduct of WHS prosecution proceedings before the Commission as distinct from general proceedings.

Example 4: Small claims application. An employee seeks to recover unpaid wages under the small claims track. Part 8 provides a simplified procedure intended to be accessible to parties without legal representation. The simplified rules apply instead of the general Parts 3 and 4 rules.