Industrial Relations Act 1996

This Act is the Industrial Relations Act 1996.

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

The objects of this Act are as follows—

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

to promote efficiency and productivity in the economy of the State,

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

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,

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

to prevent and eliminate discrimination, bullying and sexual harassment in the workplace,

to achieve gender equality in the workplace, and in particular—

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

to eliminate gender-based undervaluation of work,

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,

to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations,

to encourage strategies to attract and retain skilled staff where there are skill shortages so as to ensure effective and efficient delivery of services.

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.

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.

General definition In this Act, employee means—

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

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

A person is not prevented from being an employee only because—

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

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

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

the person is an outworker, or

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

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.

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.

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.

Examples Examples of industrial matters are as follows—

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

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

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

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

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

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

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,

procedures for the resolution of industrial disputes,

the established customs in any industry,

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

the surveillance of employees in the workplace,

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.

In this Act, industry includes—

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

a part of an industry or a number of industries.

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

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.

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.

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.

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.

The Commission may, on the application of the Minister or any party to the transitional State instrument—

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

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

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.

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).

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—

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

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

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

In this section—

federal industrial instrument means—

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

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

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—

an Australian workplace agreement,

a pre-reform Australian workplace agreement,

an individual transitional employment agreement.

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.

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.

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