NSW unfair contracts law to be amended to clarify application

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NSW unfair contracts law to be amended to clarify application

The Bill referred to below has come in to operation - Industrial Relations Amendment Act 2005 - on 9 December 2005. A Bill was introduced into NSW Parliament on 17 November to amend the Industrial Relations Act 1996 to clarify the unfair contracts jurisdiction of the Industrial Relations Commission in relation to its position with respect to the Supreme Court and also the Commission's jurisdiction over collateral conditions like superannuation.

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The Bill referred to below has come in to operation - Industrial Relations Amendment Act 2005 - on 9 December 2005.

 

Major points

A Bill was introduced into NSW Parliament on 17 November to amend the Industrial Relations Act 1996 to clarify the unfair contracts jurisdiction of the Industrial Relations Commission in relation to its position with respect to the Supreme Court and also the Commission's jurisdiction over collateral conditions like superannuation.

Other minor amendments rename the IRC's judicial forum from the Commission in Court Session to the 'Industrial Court of New South Wales'. The Commission will also be able to extend by three months, in exceptional circumstances, the time for accepting late applications.

The legislation contains transitional arrangements that provide that the new laws do apply to cases already before the IRC, but not to any case that is now before a superior court.

Overview of Bill

The objects of this Bill as stated in the Explanatory Memorandum are as follows:

  1. to enable the Industrial Relations Commission in Court Session to be called
    the Industrial Court of New South Wales,
  2. to reverse so much of the decision of the Court of Appeal of the Supreme Court
    in Solution 6 Holdings Limited and Others v Industrial Relations Commission
    of NSW [2004] NSWCA 200 [see Related] which held that the industrial relations privative
    clause (section 179) did not prevent the exercise of the Supreme Court’s
    supervisory jurisdiction in relation to proceedings or proposed proceedings
    before the Industrial Relations Commission if an application is made to the
    Supreme Court before the Industrial Relations Commission makes a decision
    in the proceedings,
  3. to restrict the operation of that privative [no appeal] clause so that the Supreme Court’s
    supervisory jurisdiction is available if a purported decision of the Industrial
    Relations Commission in Court Session (in dealing with unfair contracts or
    other matters) is alleged to be outside the jurisdiction of the Commission, but
    only after the exercise of any right of appeal to the Full Bench of the
    Commission,
  4. to clarify so much of the decision of the Court of Appeal of the Supreme Court
    that limited the unfair contracts jurisdiction of the Industrial Relations
    Commission with respect to related conditions or collateral arrangements that
    are not work-related, so as to make it clear that the jurisdiction extends to any
    related conditions or collateral arrangements (such as superannuation
    arrangements, share option agreements or franchise agreements) so long as the
    contract to which they are related or collateral is a contract whereby a person
    performs work in an industry and the performance of work is a significant
    purpose of the contractual arrangements made by the parties,
  5. to enable the Commission, in exceptional circumstances, to extend the time in
    which an application relating to an alleged unfair contract may be made.'

Details

Explanatory memorandum
 
Text of Bill
 
Second reading speech

Related

Substantial connection to work required to justify an unfair contracts action (NSW)

Unfair contracts - 'hands-on' role pivotal

 

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