The new act - it starts monday


The new act - it starts monday

The new New South Wales Industrial Relations Act 1996 commences Monday, 2 September, 1996.


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The new New South Wales Industrial Relations Act 1996commences Monday, 2 September, 1996.

The following is a short summary of the major changes introduced by the Act.

Unfair dismissals

The NSW unfair dismissals laws will now be available to all NSW employees. Previously, only State award workers have been entitled to use the State remedy.

There will be, however, a $62,200 salary limit applicable to employees who are not subject to either a NSW award or NSW enterprise agreement.

Assuming that unfair dismissal laws are here to stay, the changes to the State system are possibly a positive development for employers. This is because the NSW unfair dismissal system is far less complicated and far less onerous than the federal system.

On the other hand, until the federal Act is amended, it is likely that employees who commence an action under the federal remedy will be able to proceed with that remedy. It had been hoped that NSW employers would have been able to transfer these cases back into the State system.

Enterprise agreements

The amendments to the State’s enterprise bargaining provisions raise a number of problems for employers, especially employers who wish to make an non-union enterprise agreement.

The new Actwill allow for three forms of enterprise agreements: agreements involving one or more unions; non-union agreements; and, "project" agreements.

All proposed agreements will have to be approved by the State Commission subject to a "no net detriment" test. The "no net detriment" test provides that the proposed agreement must not, in an overall sense, provide a net detriment to the workers in comparison to their award conditions.

The "no net detriment" test is one of the means by which the State Government is saying that the workplace parties can have enterprise bargaining but "we are not very sure that we can trust employers not to use it to reduce workers award conditions".

The other means by which the Government has displayed its unwillingness to trust employers is by allowing unions a "watchdog" role over non-union enterprise agreements. This will be done in three ways:

  1. when an employer "first undertakes formal negotiations" for a non-union enterprise agreement, the employer will be required to notify the Industrial Registrar who must then notify the Trades and Labor Council and any union which is a party to an award or agreement which the employees presently work under;
  2. at the approval proceedings, a union which has members or employees eligible to be members covered by the agreement is entitled to be heard; and,
  3. once approved, the agreement can be publicly seen or photocopied at the Industrial Registrar’s office.

Thus, employers who want to make a non-union agreement will still have to contend with any number of unions.

Union rights of entry

Trade union officials will have increased right of entry powers under the Act. They will be entitled to enter workplaces to hold discussions with members (or with employees eligible to be members) or to investigate a breach of the Act(eg underpayment of award).

A union official can hold discussions without giving the employer notice but only during any lunch time or non-working time. On the other hand, when investigating a suspected breach of the Act, the union official must give the employer 48 hours notice.

Note that the occupier of a premise which an authorised union official is seeking to enter, or a person who has been requested by the authorised union officer to produce anything or to answer any question, are entitled to demand to see the authorised industrial officers authority.

It is an unfortunate reality that NSW employers must also be mindful of the powers union officials have under the Occupational Health and Safety Act 1983to enter any premises without notice for the purpose of investigating a suspected breach of the OHS laws

Part-time work agreements

The Actprovides for far greater regulation of part-time work agreements than was the case under the former Act. For example, there will be minimum and maximum hours a part-time work agreement can provide for. In addition, the employer must send a copy of the agreement to the Industrial Registrar no later than 1 month after it is made, and the agreement will be publicly available at the Registrar’s office.


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