Reformation of the Industrial Court of NSW and more – Employment Litigation/ Tribunals

This has certainly been the season of industrial relations and
workplace legislative reform. We have already seen three recent
tranches from the Federal Government, and now a new wave of
industrial relations reform in the NSW State system is upon us.

In November 2023, in the first raft of industrial changes for
the Industrial Relations Act 1996 (NSW) (IR Act) NSW State
IR Minister Sophie Cotsis introduced the Industrial Relations
Amendment Bill 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 wages cap, improve recruitment
and retention practices, and implement “more cooperative,
interest-based” bargaining for the public sector in NSW.

Schedules related to bargaining and other provisions described
below came into force in December last year. The provisions
relating to the Industrial Court are anticipated to commence early
this year.

The Industrial Relations Court

Once the relevant Schedules of the Bill commence, the Industrial
Court will be re-established – almost as if 2016 never
happened.

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

The Industrial Court will also have an appellant jurisdiction
that will allow it to hear proceedings on an appeal or case stated
basis from an Industrial Magistrate or other court; or from a
member of the Commission exercising the functions of the Commission
in Court Session. Appeals will also be possible from the Full Bench
of the Industrial Court to the Court of Criminal Appeal concerning
criminal proceedings.

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

Minister Cotsis claims the changes will encourage quick, cheap
and practical resolutions for industrial issues, stating that the
members of the Industrial Court will be able to “switch
roles immediately and act in either a conciliation or arbitration
role”, as opposed to what he alleged was
“legalistic, slow and costly” processes that
workers, employers and unions currently experienced in the Supreme
Court.

In response, Chief Justice Bell issued a statement on behalf of
the Supreme Court’s judges insisting that the Minister’s
observations were “not accurate and cannot go uncorrected
as a matter of public record.” In fact, many industrial
relations matters have been dealt with by judgment delivered by the
Supreme Court on the same day of hearing or within a matter of
days.

Wages gap and mutual gains bargainin

The Bill has now repealed the wage cap on the public sector
imposed by section 146C of the IR Act.

A new Chapter 2A has been inserted into the IR Act, enshrining
“mutual gains bargaining” for the public sector,
and the modernisation of good faith bargaining. Minister Cotsis has
framed these amendments as a move towards “more
consultative” bargaining, allowing workers and unions to
engage with government agencies for mutual gain.

Section 129L of the IR Act lists the following as the
application bargaining principles:

• a “collaborative approach”




• parties are to “identify and communicate their key
  needs” to…“maximise…common interests and
  reconcile…conflicting interests”




• negotiations are to be “consensus-seeking”;
  and “parties are to work together”




• parties are to aim to reach an agreement that meets their
  “core needs”, so that the parties are
  satisfied




• the bargaining is efficient




• the bargaining creates, maintains or strengthens relationships
  between the parties




• each party is satisfied their interests have been
  addressed.

Minister Cotsis also said that the Government hoped that
overall, the amendments would allow all parties to
“negotiate effectively with public sector workers to
promote potential increases in real wages while returning benefit
to the people of New South Wales”.

Finally, the miscellaneous provisions of the Bill include a
requirement that the Industrial Relations Commission take into
account the Government’s fiscal position and outlook in the
exercise of its functions regarding public sector employees.

Conclusion

It remains to be seen whether “mutual gains
bargaining”, 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.

The reformation of the Industrial Court may reinvigorate the
industrial relations system in NSW, giving unions more confidence
to commence proceedings in a familiar setting 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 being more flexible and forgiving in comparison
to the strict legal procedures applied in the District &
Supreme Courts.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.