INDUSTRIAL RELATIONS ACT 1996

New South Wales Consolidated Acts

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- As at 15 December 2023
- Act 17 of 1996

TABLE OF PROVISIONS

Long Title

CHAPTER 1 - PRELIMINARY

1. Name of Act
2. Commencement
3. Objects
4. Dictionary
5. Definition of employee
6. Definition of industrial matters
7. Definition of industry
8. Definition of industrial instrument
9. Notes in text
9A. Employers declared not to be national system employers
9B. Referral of workplace relations matters to Commonwealth

CHAPTER 2 - EMPLOYMENT

PART 1 - AWARDS

Division 1 - Awards generally

10. Commission may make awards
11. When award may be made
12. Persons bound by award
13. Formal matters relating to making of award
14. Mandatory dispute resolution procedures in awards
15. Commencement of award
16. Term of award
17. Variation or rescission of award
18. Exemptions from awards
19. Review of awards
20. Consolidation of awards and rescission of obsolete awards
20A. (Repealed)

Division 2 - Particular conditions of employment in awards

21. Conditions to be provided in awards on application
22. Maximum ordinary hours of employment
23. Equal remuneration and other conditions
24. Employment protection provisions
25. Provisions relevant to technological change
26. Minimum sick leave entitlements
27. Prohibition on cashing-in of accumulated sick leave
28. Other provisions not affected

PART 2 - ENTERPRISE AGREEMENTS

Division 1 - Preliminary

28A. Definitions
29. Making of enterprise agreements
30. Coverage of enterprise agreement
31. Parties to an enterprise agreement

Division 2 - Approval of enterprise agreements

32. Enterprise agreement required to be approved
33. Principles for approval of enterprise agreements
34. Application for approval of enterprise agreement
35. Approval of enterprise agreement by Commission
36. Special requirements relating to enterprise agreements to which employees are parties
36A. Determination of comparable award for purposes of approval of agreement for employees without award coverage
37. Secret ballots under this Part

Division 3 - General

38. Form and content of enterprise agreement
39. Mandatory dispute resolution procedures in enterprise agreements
40. Persons bound by enterprise agreement
41. Enterprise agreements prevail over State awards
42. Term of enterprise agreement
43. Variation of an enterprise agreement
44. Termination of enterprise agreement
45. Register and publication of enterprise agreements
46. Notification of enterprise agreements to new employees
47. Enterprise agreement conditions--flow-on

PART 3 - NATIONAL AND STATE DECISIONS

48. What is a National decision?
49. What is a State decision?
50. Adoption of National decisions
51. Making of State decisions
52. Variation of awards and other orders on adoption of National decisions or making of State decisions

PART 4 - PARENTAL LEAVE

Division 1 - Parental leave generally

53. Employees to whom Part applies
54. Entitlement to unpaid parental leave
55. What is parental leave?
56. This Part provides minimum entitlements
57. Length of service for eligibility
58. Notices and documents required to be given to employer
59. Continuity of service
60. Parents not to take parental leave at the same time
61. Cancellation of parental leave
62. Parental leave and other leave
63. Employee and employer may agree to interruption of parental leave by return to work
64. Extension of period of parental leave
65. Shortening of period of parental leave
66. Return to work after parental leave

Division 2 - Miscellaneous provisions

67. Employer's obligations
68. Termination of employment because of pregnancy or parental leave
69. Replacement employees
70. Transfer to a safe job
71. Special maternity leave and sick leave
72. Special adoption leave

PART 4B - LEAVE FOR VICTIMS OF CRIME

72AA. Employees to whom Part applies
72AB. Definitions
72AC. Entitlement to unpaid victims leave
72AD. Purposes for which victims leave may be taken
72AE. Notices and documents required to be given to employer
72AF. Return to work after victims leave
72AG. Miscellaneous provisions relating to victims leave

PART 5 - PART-TIME WORK

73. Employees to whom Part applies
74. What is part-time work?
75. This Part not to affect other entitlements to work part-time
76. Entitlement to work part-time with agreement of employer
77. Variation of part-time work agreements
78. Obligations of employer under part-time work agreements
79. Application of industrial instruments
80. Additional hours of work
81. Leave
82. Replacement employees

PART 6 - UNFAIR DISMISSALS

83. Application of Part
84. Application for remedy by dismissed employee
85. Time for making applications
86. Conciliation of applications
87. Arbitration where conciliation unsuccessful
88. Matters to be considered in determining a claim
89. Orders for reinstatement, re-employment, remuneration, compensation
90. Effect of availability of other remedies
90A. Industrial agent must not represent an applicant or employer in proceedings unless there are reasonable prospects of success
90B. Extinguishment of rights and liabilities
Note

PART 7 - PUBLIC SECTOR DISCIPLINARY APPEALS

Division 1 - Preliminary

91. Interpretation
92. Application of Part

Division 2 - (Repealed)
None

Division 3 - Disciplinary appeals

97. Notice of certain decisions etc
98. Right of appeal
99. Alternative rights of appeal
100. Appealable decisions may be carried into effect despite right of appeal

Division 4 - Procedures relating to the making of appeals

100A. Notice of appeal
100B. Time for lodging appeal
100C. Decisions with respect to appeals
100D. Orders by Commission with respect to payment of salary and continuity of employment

Division 5 - Hearing of appeals

100E. Conciliation of disciplinary appeals
100F. Powers when appeal settled by conciliation
100G. Presentation of cases
100H. (Repealed)

PART 8 - PROTECTION OF ENTITLEMENTS ON TRANSFER OF BUSINESS

101. Definitions
102. Continuity of service for determining entitlements
103. Entitlements when industrial instrument or legislation contravened
104. Prevention of double entitlement

PART 9 - UNFAIR CONTRACTS

Division 1 - Definitions

105. Definitions

Division 2 - Unfair contracts may be declared void or varied

106. Power of Supreme Court to declare contracts void or varied
107. Orders to prevent further unfair contracts
108. Who may apply for order
108A. Employment contracts in respect of which applications cannot be made
108B. Time for making application
109. Supreme Court may refer applications to Commission for conciliation
109A. Exclusion of certain contracts in connection with unfair dismissals

Division 3 - Determination of remuneration of contractors under unfair building and certain other contracts

110. Application of Division
111. Division applies only if Supreme Court declares contract unfair
112. Supreme Court may determine remuneration under unfair contract
113. Notice of possible order
114. Time at which order takes effect
115. Incorporation of order in contract and other contracts
116. Variation or revocation of order

PART 10 - PAYMENT OF REMUNERATION

117. Employees to be paid in money
118. Employees to be paid in full
119. Employer not to stipulate how remuneration to be spent
120. Recovery of remuneration--no set-off or action for goods or services supplied by employer
121. Unauthorised payments--civil effect
122. Payment of unclaimed remuneration
123. Particulars of remuneration to be supplied to employees
124. Superannuation fund contributions
125. Permits--special wage payments
126. Stand-down orders--suspension of payment of remuneration
127. Liability of principal contractor for remuneration payable to employees of subcontractor
127A-127G. (Repealed)
128. Minimum remuneration for musicians
129. Records to be kept by employers concerning employees

PART 11 - OUTWORKERS IN CLOTHING TRADES

Division 1 - Preliminary

129A. Definitions

Division 2 - Conditions of employment

129B. Outworkers in clothing trades employed by constitutional corporations
129C. Application of certain enforcement provisions

Division 3 - Remuneration

129D. Claims by outworkers in clothing trades for unpaid remuneration
129E. Liability of apparent employer for unpaid remuneration for which an unpaid remuneration claim has been made
129F. Liability of actual employer for unpaid remuneration for which an unpaid remuneration claim has been made
129G. Recovery of amount of unpaid remuneration
129H. Offences relating to unpaid remuneration claims and referred claims

Division 4 - Miscellaneous

129I. Effect of this Part
129J. Relationship of this Part to Industrial Relations (Ethical Clothing Trades) Act 2001

CHAPTER 2A - MUTUAL GAINS BARGAINING

129K. Application of chapter
129L. Principles of mutual gains bargaining
129M. Meaning of "good faith" in mutual gains bargaining
129N. Notification of intention to commence mutual gains bargaining
129O. Facilitator for mutual gains bargaining
129P. Provisions applying if mutual gains bargaining unresolved
129Q. Application of Chapter 3 after mutual gains bargaining

CHAPTER 3 - INDUSTRIAL DISPUTES

PART 1 - CONCILIATION AND ARBITRATION OF INDUSTRIAL DISPUTES

130. Notification of industrial dispute to Commission
131. Mandatory dispute resolution procedures to be followed first
132. Compulsory conference
133. Conciliation before arbitration
134. Conciliation of dispute
135. Arbitration after attempted conciliation
136. Arbitration of dispute

PART 2 - DISPUTE ORDERS

137. Kinds of dispute orders
138. Making of dispute orders
139. Contravention of dispute order

PART 3 - COMMON LAW ACTIONS DURING CONCILIATION OF INDUSTRIAL DISPUTES

140. Actions in tort to which Part applies
141. Actions in tort while Commission attempting to conciliate dispute not actionable
142. Injunction not to be granted while industrial tort not actionable

PART 4 - MISCELLANEOUS PROVISIONS RELATING TO INDUSTRIAL DISPUTES

143. Strike pay prohibited
144. Determination of demarcation questions concerning occupations

CHAPTER 4 - INDUSTRIAL RELATIONS COMMISSION

PART 1 - ESTABLISHMENT AND FUNCTIONS OF COMMISSION

145. Establishment of Commission
146. General functions of Commission
146A. (Repealed)
146B. Commission may exercise certain dispute resolution functions under federal enterprise agreements
146C. (Repealed)
146D. Commission has no jurisdiction in respect of death and disability payments for police officers

PART 2 - MEMBERSHIP OF COMMISSION

147. Constitution of Commission
148. Appointment of members of the Commission
149. (Repealed)
150. Provisions relating to members of Commission

PART 3 - (Repealed)
None

PART 4 - ORGANISATION OF COMMISSION

155. Constitution of Commission for exercise of functions
156. Full Bench of Commission
157. Regional matters
158. Matters relating to general award review or discrimination in workplace
159. Arrangement of business
160. Delegation by Chief Commissioner
161. Annual report

PART 5 - PROCEDURE AND POWERS OF COMMISSION

162. Procedure generally
162A. Transfer of certain proceedings to Industrial Magistrates
162B. Exercise of Commission's functions by Industrial Registrar and Registry officers
163. Rules of evidence and legal formality
164. Powers of Commission as to the production of evidence and perjury
164A. Powers of Commission as to the disclosure of matters before the Commission
165. Issue of summons
166. Representation of parties
167. Intervention by Minister, ADB and State peak council
168. (Repealed)
169. Anti-discrimination matters
170. Amendments and irregularities
171. Power to impose conditions
172. Power to order secret ballot
173. Members who may exercise arbitration powers after attempted conciliation
174. Powers when application settled by conciliation
175. Powers of interpretation
176. Reconstitution of Commission during hearing
177. Commission may reserve decision
178. Commission divided in opinion
178A. Reference of questions of law to Supreme Court
178B. Transfer of proceedings from Commission to Supreme Court
179. Finality of decisions
180. Contempt of Commission--offence
181. Costs
181A. Obligation to disclose costs to clients and Commission
182. Recovery of amounts ordered to be paid
183. Regulations relating to fees
184. Power of entry of members of Commission and other authorised officers

PART 6 - RULES OF COMMISSION

185. Rules of Commission
185A. Practice notes
185B. Commission may dispense with rules in particular cases
185C. Commission may give directions in circumstances not covered by rules
186. Establishment and procedure of the Rule Committee of the Commission

PART 7 - APPEALS AND REFERENCES TO COMMISSION

187. Appeal to Full Bench from decision of Commission
188. Appeals to Full Bench by leave only
189. Time and procedure for making appeals
190. Stay of decision appealed against
190A. Interlocutory and other matters in proceedings on appeal
191. Nature of appeal
192. Powers on appeal
193. References by members to Full Bench
194. Appeal from Industrial Registrar to Commission
195. Reference by, or removal from, Industrial Registrar to Commission
196. (Repealed)
197. Appeals from Local Court
197A. (Repealed)
197B. Appeals on questions of law in relation to public sector promotional and disciplinary matters

PART 8 - INDUSTRIAL COMMITTEES

198. Establishment of Industrial Committees
199. Functions of Industrial Committee
200. Duration and dissolution of Industrial Committees
201. Provisions relating to members and procedure of Industrial Committees

PART 9 - CO-OPERATION BETWEEN STATE AND FEDERAL TRIBUNALS

202. Definitions
203. Referral of matter by Federal President to State Commission
204. Referral of matter by State President to Federal Commission
205. Joint proceedings
206. Dual Federal and State appointments of members

PART 9A - CO-OPERATION BETWEEN STATE INDUSTRIAL TRIBUNALS

206A. Definitions
206B. Joint proceedings
206C. NSW Commission may exercise functions conferred under industrial law of another State

PART 10 - INDUSTRIAL REGISTRAR

207. Appointment of Industrial Registrar and staff
208. Functions of Industrial Registrar and Deputy Industrial Registrar

PART 11 - NSW INDUSTRIAL RELATIONS WEBSITE

208A. NSW industrial relations website
208B. When matter is published on NSW industrial relations website
208C. Evidence of publication

CHAPTER 5 - INDUSTRIAL ORGANISATIONS

PART 1 - PRINCIPLES OF ASSOCIATION

209. Freedom of association
210. Freedom from victimisation
211. No preference to members of employee organisations over non-members
212. Conscientious objection to membership of organisation
213. Enforcement
214. Application of Part

PART 2 - STATE PEAK COUNCILS

215. State peak council--employees
216. State peak councils--employers

PART 3 - REGISTRATION OF ORGANISATIONS
Note

Division 1 - Registration

217. Organisations capable of applying for registration
218. Criteria for registration
219. Applications for registration
220. Objections to registration
221. Registration
222. Incorporation of State organisations on registration
223. Continuation of registration of existing industrial organisations
224. Registered office of organisation

Division 2 - Cancellation of registration

225. Institution of proceedings for cancellation of registration
226. Grounds on which registration may be cancelled
227. Cancellation of registration of industrial organisation
228. Consequences of cancellation
229. Alteration of rules (instead of cancellation of registration) of organisation
230. Suspension or other orders where cancellation of registration deferred
231. Supreme Court may make necessary ancillary or consequential orders
231A. Notification of cancellation proceedings and decisions
232. Cancellation or other order to be recorded

PART 4 - REGULATION OF STATE INDUSTRIAL ORGANISATIONS

Division 1 - Application

233. Application of Part to State organisations

Division 2 - Rules

234. State organisations to have rules
235. General requirements for rules of State organisations
236. Rules to specify name, purposes and conditions of eligibility for membership
237. Rules to provide for procedural and administrative matters
238. Rules to provide for elections for offices
239. Rules may provide for elections for offices in State branch of Federal organisation to be elections for purposes of State organisation
240. Rules to provide for electoral system
241. Rules to provide for terms of office
242. Rules may provide for filling of casual vacancies
243. Rules to provide conditions for loans, grants and donations by State organisations
244. Industrial Registrar may determine alterations of rules
244A. Industrial Registrar may determine alterations of rules where breach of demarcation undertaking
245. Alteration of rules of State organisation
246. Change of name of State organisation
247. Rules contravening the requirements for rules under this Part
248. Directions for performance of rules

Division 3 - Election of officers

249. Regulations
250. Offences in relation to elections
251. Cost of elections
252. Application for inquiry concerning irregularity in election
253. Action by Industrial Registrar
254. Inquiry by Commission
255. Interim orders
256. Procedure at inquiry
257. Functions and powers of Commission at inquiry
258. Validity of certain acts where election declared void
259. Costs in relation to inquiries

Division 4 - Membership

260. Entitlement to membership of State organisations
261. Request by member for statement of membership
262. Request by member for copy of rules
263. Copies of report and audited accounts to be provided to members and presented to meetings
264. Resignation from membership
265. Mortality fund
266. Enforcement

Division 5 - Duties and liabilities of officers

267. Acting dishonestly to deceive or defraud
268. Use of position for profit
269. Officer to disclose interest
270. Compensation to State organisation
270A. Notification of allegations of misconduct
271. Operation of Division

Division 6 - Disqualification from office

272. Interpretation
273. Certain persons disqualified from holding office in State organisations
274. Application for leave to hold office in organisations by prospective candidate for office
275. Application for leave to hold office in organisations by office holder
276. Supreme Court to have regard to certain matters
277. Action by Supreme Court

Division 7 - Records

278. Records to be kept and lodged by organisations
279. Directions by Industrial Registrar concerning maintenance of register of members
280. Organisations to notify particulars of loans, grants and donations
281. Waiver of requirement to keep records

Division 8 - Accounts and audit

282. Regulations

Division 9 - Amalgamation

283. Regulations

Division 10 - Validating provisions

284. Definitions
285. Validation of certain acts done in good faith
286. Validation of certain acts after 4 years
287. Order affecting application of section 285 or 286
288. Supreme Court may make orders in relation to consequences of invalidity
289. Application for membership of organisation by person treated as having been a member
290. No challenge to dual membership with Federal organisation
290A. Amalgamations

Division 11 - Powers relating to cases of dysfunction, misconduct or vacancy in offices in State organisations

290B. Supreme Court may order reconstitution of organisation or branch etc
290C. Provision of assistance to administrator
290D. Liability relating to administration
290E. Power of Industrial Registrar to initiate elections
290F. Application to organisations with federal links
290G. Validation of elections

PART 5 - REGULATION OF INDUSTRIAL ORGANISATIONS (OTHER THAN STATE ORGANISATIONS)

291. Regulations applying Part 4
292. Documents to be lodged with Industrial Registrar
293. Cancellation of registration or other penalty for contravention of this Part

PART 6 - DEMARCATION ORDERS

294. Determination of demarcation questions concerning interests of industrial organisations of employees
295. Demarcation orders--coverage of industrial organisations of employees

PART 7 - ENTRY AND INSPECTION BY OFFICERS OF INDUSTRIAL ORGANISATIONS

296. Definitions
297. Right of entry for discussion with employees
298. Right of entry for investigating breaches
299. Provisions relating to authorities issued to officers
300. No entry to residential premises without permission
301. Offences
302. Powers of Commission

PART 8 - LEGALITY OF TRADE UNIONS

303. Meaning of "trade union"
304. Illegality on grounds of restraint of trade excluded
305. Certain agreements not affected

CHAPTER 6 - PUBLIC VEHICLES AND CARRIERS

PART 1 - APPLICATION AND DEFINITIONS

306. Contracts to which Chapter applies
307. Contract of bailment--meaning
308. Bailor--meaning
309. Contract of carriage--meaning
310. Principal contractor--meaning
310A. Authorisations for purposes of Competition and Consumer Act 2010 of the Commonwealth

PART 2 - CONTRACT DETERMINATIONS

311. Applications to exercise functions
312. Jurisdiction of Commission with respect to contracts of bailment
313. Jurisdiction of Commission with respect to contracts of carriage
314. Jurisdiction with respect to reinstatement of contracts
315. Conference to precede contract determination
316. Making of contract determinations
317. Binding force of determination
318. Commencement of determination
319. Term of determination
320. Variation or rescission of determinations
321. Exemptions from determinations

PART 3 - CONTRACT AGREEMENTS

322. Agreements concerning contract conditions
323. Contract agreement required to be approved
324. Application for approval of contract agreement
325. Approval of contract agreement by Commission
325A. Special requirements relating to contract agreements to which groups of carriers are parties
326. Persons bound by contract agreement
327. Contract agreements prevail over contract determinations
328. Term of contract agreement
329. Variation of a contract agreement
330. Termination of contract agreement
331. Register and publication of contract agreements

PART 4 - DISPUTE RESOLUTION

332. Compulsory conference with respect to disputes

PART 5 - ASSOCIATIONS OF EMPLOYING CONTRACTORS, DRIVERS AND CARRIERS

333. Associations of employing contractors
334. Cancellation of registration
335. Associations of contract drivers and contract carriers
336. Objections to registration of drivers' and carriers' associations
337. Grant or refusal of applications
338. Withdrawal or cancellation of registration
339. Demarcation questions relating to associations
340. Change of name or amalgamation of associations
341. Certificates of registration etc
342. Registers to be kept

PART 6 - APPLIED PROVISIONS

343. Application of certain provisions for the purposes of this Chapter
344. Interpretation of applied provisions

PART 7 - COMPENSATION FOR TERMINATION OF CERTAIN CONTRACTS OF CARRIAGE

345. Definitions
346. Claim for compensation
347. Contract of Carriage Tribunal
348. Compulsory conference with respect to claims
349. Arbitration of claim
350. Appeal from Tribunal to Full Bench of Commission
351. General procedure and powers of Tribunal
352. Voting by members of Tribunal
353. Costs
354. Representation of parties
355. Contracting out prohibited in certain circumstances

CHAPTER 6A - INDUSTRIAL PROCEEDINGS BEFORE SUPREME COURT

355A. Definitions
355B. Jurisdiction of Supreme Court
355C. Declaratory jurisdiction
355D. Proceedings for contempt of Commission
355E. Special provisions applicable to industrial proceedings

CHAPTER 7 - ENFORCEMENT

PART 1 - BREACH OF INDUSTRIAL INSTRUMENTS

356. Definition
357. Civil penalty for breach of industrial instruments
358. Related proceedings for recovery of remuneration and other money
359. Injunction to restrain further contraventions of industrial instruments
360. Advertisements that contravene industrial instruments
361. Exhibition of industrial instruments in workplace
362. Power to amend proceedings
363. Secretary or agent of union receiving money for contravention of, or under, industrial instrument

PART 2 - RECOVERY OF REMUNERATION AND OTHER AMOUNTS

364. Definitions
365. Order for recovery of remuneration and other amounts payable under industrial instrument
366. Order for recovery of over-award payments under contract of employment
367. Order for recovery of payments not fixed by industrial instruments
368. Order for recovery of unpaid superannuation
369. Application for order
370. Making of order
371. Conciliation to be attempted before order made
372. Order for interest
373. Order for costs
374. Power to amend application
375. Recovery of amounts ordered to be paid
376. Alternative proceedings for debt recovery in other courts
377. Age of claimant not a bar
378. Payment where employee represented by industrial organisation
379. Small claims procedures
380. Small claims during other Commission hearings

PART 3 - INDUSTRIAL MAGISTRATES

381. Appointment of Chief and other Industrial Magistrates
382. Jurisdiction of Chief and other Industrial Magistrates
383. Procedure
383A. Recovery of amount ordered to be paid by Industrial Magistrate under other legislation

PART 4 - INSPECTORS AND THEIR POWERS

384. Appointment of inspectors
385. Inspectors' powers--employer breaches
385A. Inspectors' powers--misconduct offences
385B. Receipts for seized things
386. No entry to residential premises without permission or search warrant
387. Offences relating to obstruction etc of inspectors
388. Search warrant
389. Disclosure of information

PART 5 - EVIDENTIARY PROVISIONS

390. Evidence of an industrial instrument or order
391. Evidence of registration of industrial organisation
392. Evidence of rules of industrial organisation
393. Evidence of membership of, or office in, industrial organisation
394. List of officers to be evidence
395. Trade and other financial secrets tendered as evidence

PART 6 - CRIMINAL AND OTHER LEGAL PROCEEDINGS

396. Penalty notices
397. Nature of proceedings for offences
398. Time for instituting proceedings
399. Authority to prosecute
400. Offences by corporation
401. Proceedings by and against unincorporated associations
402. Recovery of penalty by appointment of receiver
403. Payment of penalties

CHAPTER 7A - (Repealed)
None

CHAPTER 8 - MISCELLANEOUS

404. Act binds the Crown
405. Statutory provisions relating to public sector employees
406. Awards and other industrial instruments provide minimum entitlements
406A. Costs agreements
407. Regulations
408. Repeal of Industrial Relations Act 1991 No 34 and regulations
409. Savings, transitional and other provisions
410. (Repealed)
411. Review of Act
412, 413. (Repealed)
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
SCHEDULE 5
Dictionary

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