Industrial Relations Commission - Purpose and Functions
Purpose and Functions
The Industrial Relations Commission conciliates and arbitrates to resolve industrial disputes, sets conditions of employment and fixes wages and salaries by making industrial awards, approves enterprise agreements and decides claims of unfair dismissal.
The Industrial Relations Commission is part of the New South Wales Department of Attorney General and Justice. The Department provides the legal and administrative framework within which the Attorney General, as the first law officer of the State, operates. The Department also provides the support services necessary to enable the Attorney General to meet legislative and advisory responsibilities to the Parliament and Cabinet. The Department also works co-operatively with the judiciary to support the courts and justice system.
The Industrial Relations Commission is established under the Industrial Relations Act 1996 with conciliation and arbitral functions. Section 3 of that Act sets out its functions 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 agreement and other industrial instruments
- To prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value
- 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, and
- To encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.
The Commission may be constituted as the Industrial Court of New South Wales, and in such circumstances is a court of equivalent status to the Supreme Court and is, therefore, a superior court of record.
The role of the Commission is to regulate the industrial affairs in this State. Whilst the Commission, depending on the issue, exercises both a civil (in its administrative role as the Industrial Relations Commission) and criminal (in its judicial role as the Industrial Court of New South Wales) jurisdiction, it seeks to conduct its proceedings in a non-technical and expeditious manner.
Broadly, the Commission exercises its jurisdiction in relation to:
- The regulation of the workplace through the making and/or variation of an Award – a key feature is the triennial review of awards to eliminate discriminatory provisions, modernise language and rescind awards made redundant through legislative enactment, completion of the project or no employees being covered by the award
- The making and approval of Enterprise Agreements – when approving the agreement, the Commission must be satisfied it complies with the Industrial Relations Act 1996, the Anti-Discrimination Act 1977 and that, on balance, the agreement does not “…provide a net detriment to the employees who are to be covered by the agreement compared with the aggregate package of conditions of employment under relevant awards…” [s 35(1)(b)]
- The promotion of equal opportunity in employment – examples include the Commission exercising powers to resolve disputes over the industrial matter of employment discrimination by conciliation and arbitration; the Commission, in making awards, is required to grant equal remuneration and other conditions to both men and women doing the work of comparable value; and, the President of the Anti-Discrimination Board may, with the leave of the Commission, intervene in matters before the Commission to seek variations to awards or agreements if the Board has found the provision to be illegal.
- Civil matters and prosecutions under various industrial laws - these include underpayment of statutory and award entitlements and superannuation appeals
- The resolution of industrial disputes through conciliation and arbitration – the Commission may only arbitrate after it has issued a certificate of attempted conciliation and when arbitrating the dispute, the Commission may issue dispute orders, including ordering parties to cease industrial action and return to work, or ordering parties to discontinue a secondary boycott. If a dispute order is ignored or contravened, the Commission may impose a range of penalties, including suspending the operation of an award, cancelling the approval of an agreement or imposing a maximum penalty of $10,000
- Criminal prosecutions for alleged breaches of the Occupational Health and Safety Act 1983
- Registration and regulation of employer and employee organisations, including proceedings for the enforcement of rules, challenges to the validity of rules and the acts of officials
- Proceedings for relief from alleged unfair dismissal, and
- Proceedings for the avoidance and variation of unfair, harsh or unjust contracts, with consequential orders for the payment of money.
From 1 January 2010 a decision was made by the NSW government that all employees currently covered by the NSW industrial relations system (other than state public sector or local government employees) would be transferred into the national scheme. This was, generally, those employees who were employed by sole traders or partnerships, employees of constitutional corporations having been covered under the national scheme since the Workchoices legislation was enacted in March 2006.
The Commission retains jurisdiction in relation to the terms and conditions of employment of State government and Local government employees.
The Commission also has an appellate jurisdiction considering matters dealt with by single Members of the Commission, the Industrial Magistracy and the Registrar. Appeals are to a Full Bench of the Commission and proceed by way of application for leave to appeal. In a practical sense, the appeal itself often forms part of the grounds for leave to appeal and it is not unusual for leave to be granted but the appeal be dismissed as part of the same proceedings. In other circumstances, the consideration of an application for leave to appeal can be a distinct and separate hearing from the appeal with the Full Bench reserving its decision in relation to the application for leave, delivering that decision and subsequently listing the appeal for hearing on a further occasion.
A Full Bench of the Commission constituted to hear an appeal from a decision of the Commission consists of at least three Members and, other than a Full Bench of the Industrial Court of New South Wales, includes at least one Presidential Member (that is, a Judge or a Deputy President) and at least one Commissioner. A Full Bench of the Industrial Court of New South Wales must include only judicial members.
The Industrial Court of New South Wales exercises jurisdiction in the following circumstances:
- Proceedings for an offence taken before the Commission (including proceedings for contempt)
- Proceedings for declarations of right under s 154
- Proceedings for unfair contract (Part 9 of Chapter 2)
- Proceedings under s 139 for contravention of dispute orders
- Proceedings under Parts 3, 4 and 5 of Chapter 5 – Registration and regulation of industrial organisations
- Proceedings for breach of an industrial instrument
- Proceedings for the recovery of money payable under and industrial instrument other than small claims under s 380 (which are dealt with by the Chief Industrial Magistrate or an Industrial Magistrate
- Proceedings on a superannuation appeal under s 40 or 88 of the Superannuation Administration Act 1996
- Proceedings on appeal from a Member of the Commission exercising the functions of the Industrial Court of New South Wales, and
- Proceedings on appeal from an Industrial Magistrate or any other court.
Where an appeal to the Full Bench of the Commission has been exercised, a decision or purported decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called in question by any court or tribunal, whether on an issue of fact, law jurisdiction or otherwise – s 179(1).
Appearing before the Commission
By its character, the Industrial Relations Commission seeks to be flexible and responsive when exercising its general powers and functions. As required by s 162(2) of the Industrial Relations Act, the Commission, in appropriate circumstances, is to act as quickly as possible and is to conduct its proceedings publicly unless it is considered necessary to do otherwise.
The Commission may also:
- require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases
- require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument
- sit at any place
- require a document to be served outside the State
- adjourn proceedings to any time and place (including for the purpose of enabling parties to negotiate a settlement)
- dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious
- exercise, on its own initiative, any function exercisable by it on application, except when it is sitting as the Industrial Court of New South Wales, and
- on its own initiative, inquire into any industrial matter.
The Industrial Relations Commission also has the power to remit to an Industrial Magistrate any proceedings for a civil penalty for a breach of an industrial instrument under Part 1 of Chapter 7 or proceedings for the recovery of money (a small claim) under Part 2 of Chapter 7.
The Commission, when not sitting as the Industrial Court of New South Wales, is
The rules of evidence and other formal procedures of a superior court of record apply to the Industrial Court of New South Wales.
- not bound to act in a formal manner
- not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and
- is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
A party to proceedings before the Commission may appear personally or be represented by a practising legal practitioner or by an agent who is not such a practitioner. However, a legal practitioner cannot appear in conciliation proceedings without the leave of the Commission except when the legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation. The leave of the Commission is also not required if the practising legal practitioner represents a State peak council and is an officer or employee of the State peak council. The Commission may also allow any party appearing before it the services of an interpreter.
The Power to Order Costs
The Industrial Relations Commission has the discretion to order costs and may determine by whom and to what extent costs are to be paid. However, the Commission when it is not sitting as the Industrial Court of New South Wales may only award costs:
- against an applicant if it considers that an application to it was frivolous or vexatious, or
- against a party to proceedings who, in the opinion of the Commission, commenced proceedings without reasonable cause, or
- against a party in unfair dismissal proceedings who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or
- in proceedings for a breach of an industrial instrument or the recovery of money such as remuneration for work done, money remaining unpaid under a contract of employment or unpaid superannuation.