NSW industrial tribunal reform and more – Employment disputes / Tribunals

This was certainly a period of industrial relations and legislative reform in the workplace. We’ve already seen three recent tranches from the federal government and now a new wave of industrial relations reform is upon us in the NSW state system.

In November 2023, at the forefront of industrial change Industrial Relations Act 1996 (NSW) (IR Act) NSW State IR Minister Sophie Cotsis introduced Industrial Relations Amendment Act 2023.

The Bill not only re-establishes the Industrial Court of NSW (which was abolished in 2016) but also delivers on election promises to remove the public sector pay cap, improve recruitment and retention practices and introduce a “more co-operative and interest-based” approach. public sector bargaining in NSW.

The timetables related to the negotiation and other provisions below came into force in December last year. The industrial court provisions are expected to come into force early this year.

Labor Relations Court

Once the relevant timetables for the Bill begin, the Industrial Court will be re-established – almost as if 2016 never happened.

This means that the Industrial Relations and Workplace Health and Safety (WH&S) jurisdictions previously held by the High Court, the District Court and the Commission will be transferred to the new Industrial Court. The Industrial Court will be a superior court, equivalent to the Supreme Court of NSW, and will have the power to resolve disputes, impose fines, deal with WH&S prosecutions and hear arrears cases. It may also exercise powers of arrest, detention and punishment of persons guilty of contempt of the Commission.

The Industrial Court will also have appellate jurisdiction to enable it to hear proceedings on appeal or a case referred from an Industrial Judge or other Court; or from a member of the commission performing commission functions during a court session. An appeal will also be possible from the plenary session of the Industrial Court to the Criminal Court of Appeal in the matter of criminal proceedings.

The office of Chief Commissioner of the Labor Relations Commission will be abolished. The offices of President, Vice-President and Vice-President will be restored as judicial members of the Commission.

Minister Cotsis says the changes will promote quick, cheap and practical solutions to industrial problems, stating that members of the Industrial Court will be able “immediately switch roles and act in either a conciliation or arbitration role”, contrary to what he claimed
“legal, slow and expensive” processes that employees, employers and unions are currently experiencing at the Supreme Court.

In response, Chief Justice Bell issued a statement on behalf of the High Court judges, insisting that the minister’s comments were “is not accurate and cannot remain uncorrected as a matter of public record.” In fact, many industrial relations matters have been decided by judgment handed down by the Supreme Court on the same day of hearing or within a matter of days.

The wage gap and the mutual negotiation of profits

The Bill has now abolished the public sector wage cap set by section 146C of the IR Act.

A new Chapter 2A has been inserted into the International Law Act which enshrines
“negotiation for mutual gains” for the public sector and the modernization of good faith bargaining. Minister Cotsis framed the amendments as a move towards more “consultative” bargaining, allowing employees and unions to work together with government agencies for mutual gain.

Section 129L of the IR Act sets out the following application negotiation principles:

  • has “collaborative approach”

  • parts are k “identify and communicate your key needs” on…“maximize…common interests and reconcile…conflicting interests”

  • meetings are supposed to be “seeking consensus”;and “the parties should cooperate”

  • the parties should strive to reach an agreement that suits them
    “basic needs”, so that the parties are satisfied

  • negotiation is effective

  • negotiation creates, maintains or strengthens relationships between parties

  • each party is satisfied, their interests have been addressed.

Minister Cotsis also stated that the government hopes that the amendments will overall enable all parties
“negotiate effectively with public sector workers to support potential increases in real wages while returning benefits to the people of New South Wales”.

Finally, various provisions of the bill include a requirement that the Labor Relations Commission take into account the government’s fiscal position and outlook when exercising its functions vis-à-vis public sector employees.

Conclusion

It remains to be seen whether “negotiation for mutual gains”, heavily influenced by the new Fair Work Ombudsman, Anna Booth (formerly of the Fair Work Commission), will have the desired effect of enabling fair wages to be negotiated.

Industrial Court reform can reinvigorate the industrial relations system in NSW and give unions greater confidence in litigating in a familiar environment with access to enforceable judicial powers. In particular, there may be more union-sponsored WH&S proceedings, as unions will perceive the Industrial Court as more flexible and lenient compared to the strict legal procedures applied in the District and High Courts.

The content of this article is intended to provide a general guide to the issue. Professional advice should be sought regarding your particular situation.

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