This Bill is cognate with the Industrial Relations (Child Employment) Bill 2006.

Overview of Bill

The objects of this Bill are:

(a) to amend the Industrial Relations Act 1996:

        (i) to enable the Industrial Relations Commission of New South Wales (the
Commission) to exercise certain dispute resolution functions if it is
authorised or permitted to do so under federal workplace agreements,
and
        (ii) to enable the Commission to exercise its functions in co-operation with
the industrial relations tribunals of other States, and
        (iii) to enable documents and notices that are currently published in the
Industrial Gazette to be published instead on a NSW industrial relations
website, and
        (iv) to confirm the effect of certain provisions of the Act that deal with
outworkers in clothing trades, and
        (v) to make it an offence for certain persons (in addition to subcontractors)
to give a false written statement to principal contractors for the purposes
of section 127 of the Act, and

(b) to amend the Occupational Health and Safety Act 2000 to enable certain
employees who have been dismissed because of making a complaint about, or
exercising certain functions in connection with, occupational health and safety
matters to apply to the Industrial Court of New South Wales for reinstatement,
and

(c) to amend the Workers Compensation Act 1987 to relocate the provisions of
Part 7 (Protection of injured employees) of Chapter 2 of the Industrial
Relations Act 1996 in the former Act, and

(d) to make consequential amendments to the Employment Protection Act 1982
and the Industrial Relations Commission Rules 1996.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Industrial
Relations Act 1996 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the
Occupational Health and Safety Act 2000 set out in Schedule 2.

Clause 5 is a formal provision that gives effect to the amendments to the Workers
Compensation Act 1987 set out in Schedule 3.

Clause 6 is a formal provision that gives effect to the consequential amendments to
the Employment Protection Act 1982 and the Industrial Relations Commission
Rules 1996 set out in Schedule 4.

Clause 7 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced, the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Industrial Relations Act
1996
Dispute resolution functions under federal workplace agreements
Section 353 of the Workplace Relations Act 1996 of the Commonwealth (the federal
Act) provides that a federal workplace agreement must include procedures for
settling disputes about matters arising under the agreement between the employer
and the employees whose employment will be subject to the agreement. The section
also provides that if the workplace agreement does not include such procedures, then
the agreement is taken to include the model dispute resolution process set out in Part
13 of that Act.

Schedule 1 [8] inserts section 146B in the Industrial Relations Act 1996 to enable the
Commission to exercise any dispute resolution functions conferred on it by or under
a federal workplace agreement. The functions that the Commission may exercise will
be limited to what it is authorised or permitted to do under the workplace agreement
concerned and the federal Act.

Co-operation between State industrial tribunals
Schedule 1 [9] inserts a new Part 9A in Chapter 4 of the Industrial Relations
Act 1996 to facilitate co-operation between the Commission and the industrial
tribunals of other States. The new Part contains the following provisions:

(a) Proposed section 206A contains definitions for terms and expressions used in
the new Part.

(b) Proposed section 206B enables a member of the Commission to exercise
functions of the Commission in joint proceedings with a member of an
industrial relations tribunal of another State. The provision enables evidence
to be given, and submissions to be made, jointly for the purposes of the
proceedings before the Commission and the industrial tribunal of another
State.

(c) Proposed section 206C enables the Commission to exercise a function
conferred on it by an industrial law of another State unless the regulations
exclude the Commission from exercising that function.

NSW industrial relations website
Schedule 1 [10] inserts a new Part 11 in Chapter 4 of the Industrial Relations Act
1996 to enable matters to be published on a NSW industrial relations website instead
of the Industrial Gazette. The new Part contains the following provisions:

(a) Proposed section 208A provides that the NSW industrial relations website is
the Internet website used for the time being by the Industrial Registrar to
provide public access to information relating to New South Wales industrial
relations matters.

(b) Proposed section 208B provides for when a matter is published on the NSW
industrial relations website. The date of publication will be whatever date is
notified by the Industrial Registrar as the publication date. The provision also
authorises the Industrial Registrar to publish a matter by other means if the
matter cannot be published on the NSW industrial relations website for
technical or other reasons.

(c) Proposed section 208C enables the Industrial Registrar to issue certificates
concerning certain matters about the NSW industrial relations website and
publications on the website. These certificates are admissible as evidence in
legal proceedings of the matters that they certify.

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Explanatory note page 4

Industrial Relations Further Amendment Bill 2006
Explanatory note
Schedule 1 [2], [11], [12] and [15] make consequential amendments to the Industrial
Relations Act 1996.

Outworkers in clothing trades
Part 11 of Chapter 2 of the Industrial Relations Act 1996 provides that the conditions
of employment set out in the Clothing Trades (State) Award made by the
Commission and published in the Industrial Gazette on 19 October 2001, as amended
and in force from time to time, apply by force of section 129B of that Part as the
conditions of employment for outworkers in clothing trades employed by
constitutional corporations.

Schedule 1 [6] amends section 129B of the Industrial Relations Act 1996 to make it
clear that the conditions of employment that are made applicable by force of that
section include provisions of the award relating to:

(a) the giving out of work, and

(b) the making or keeping of records in connection with the giving out of work,
and

(c) the disclosure of information about the giving out of work, and

(d) the registration of persons for the purpose of giving out work.

Schedule 1 [7] amends section 129C of the Industrial Relations Act 1996 to make it
clear that section 406 (Awards and other industrial instruments provide minimum
entitlements) has effect in relation to the conditions of employment made applicable
in relation to constitutional corporations by Part 11 of Chapter 2 of that Act.

Schedule 1 [5] omits the definition of outworker in the clothing trades from section
129A because of the relocation of that definition to the Dictionary by Schedule 1
[15].

Schedule 1 [1] amends section 6 of the Industrial Relations Act 1996 to make it clear
that an example of an industrial matter for the purposes of that Act includes the
mode, terms and conditions under which work is given out, whether directly or
indirectly, to be performed by outworkers in the clothing trades.

False statements given under section 127
Section 127 of the Industrial Relations Act 1996 provides that a principal contractor
is liable for the payment of any remuneration of the employees of a subcontractor that
has not been paid for work done in connection with a contract for work during any
period of the contract unless the principal contractor has a written statement given by
the subcontractor under the section for that period of the contract.

Section 127 (8) makes it an offence for a subcontractor to give a principal contractor
a written statement knowing it to be false. The maximum penalty for the offence is
100 penalty units (currently, $11,000).

Schedule 1 [4] replaces section 127 (8) with a new provision that makes it an offence
for a person to give a principal contractor a written statement if:

(a) the person is the subcontractor, or

(b) the person is authorised by the subcontractor to give the statement on behalf
of the subcontractor, or

(c) the person holds out or represents that the person is authorised by the
subcontractor to give the statement on behalf of the subcontractor.

The maximum penalty for the offence will continue to be 100 penalty units.

Relocation of provisions for protection of injured employees from
dismissal
Schedule 1 [3] omits Part 7 of Chapter 2 of the Industrial Relations Act 1996 relating
to the protection of injured employees from dismissal. The provisions are to be
relocated to the Workers Compensation Act 1987 by amendments made by
Schedule 3 to the proposed Act.

Savings and transitional provisions
Schedule 1 [13] amends clause 2 of Schedule 4 to the Industrial Relations Act 1996
to enable the Governor to make regulations of a savings or transitional nature
consequent on the enactment of the proposed Act.

Schedule 1 [14] inserts a clause 31C in Schedule 4 to the Industrial Relations Act
1996 to provide that any matter that was duly published in the Industrial Gazette
before the commencement of the amendments relating to the NSW industrial
relations website continue to be duly published for the purposes of the amended
provisions.

Schedule 2 Amendment of Occupational Health and
Safety Act 2000
Section 23 of the Occupational Health and Safety Act 2000 makes it an offence for
an employer to dismiss an employee, injure an employee in his or her employment
or alter an employee’s position to his or her detriment because the employee:

(a) makes a complaint about a workplace matter that the employee considers is
not safe or is a risk to health, or

(b) is a member of an OHS committee or an OHS representative, or

(c) exercises any functions conferred on the employee under Division 2 of Part 2
of that Act (which deals with certain employer consultation duties in relation
to occupational health and safety).

Schedule 2 [2] inserts a new section 23A in the Occupational Health and Safety
Act 2000 to enable employees who have been dismissed in contravention of
section 23 of that Act to apply to the Industrial Court of New South Wales for
reinstatement. Schedule 2 [1] makes a consequential amendment to section 23 of that
Act.

Schedule 2 [3] amends clause 1 of Schedule 3 to the Occupational Health and Safety
Act 2000 to enable the Governor to make regulations of a savings or transitional
nature consequent on the amendment of that Act by the proposed Act.

Schedule 3 Amendment of Workers Compensation
Act 1987
Part 7 of Chapter 2 of the Industrial Relations Act 1996 currently makes provision
with respect to the protection of injured employees from dismissal. That Part, among
other things, enables an employee who is dismissed because he or she is not fit for
employment as a result of an injury to apply, in the first instance, to the employer to
be reinstated and then, if the employer does not reinstate the employee, to the
Commission for a reinstatement order.

Schedule 3 [1] amends the Workers Compensation Act 1987 so as to relocate these
provisions in a new Part 8 of that Act. The relocated provisions are in substantially
the same terms as the provisions of Part 7 of Chapter 2 of the Industrial Relations
Act 1996.

Certain minor modifications have been made to the relocated provisions to ensure
that they have the same operation despite their relocation. For instance, the term
employee has been replaced with worker for consistency with the language of the
Workers Compensation Act 1987. Also, proposed section 250 in the new Part
incorporates into the Part by reference certain enforcement provisions in the
Industrial Relations Act 1996 that are applicable to the current provisions.

The relocated provisions (in particular, proposed section 248 (2)) have also been
modified to take into account the effect on industrial instruments (both State and
federal) of the amendments made by the Workplace Relations Amendment (Work
Choices) Act 2005 of the Commonwealth.

Schedule 3 [2] inserts a new Part in Schedule 6 to the Workers Compensation
Act 1987 that contains savings and transitional provisions consequent on the
enactment of the proposed Act. In particular, it provides that the new Part 8 applies
to workers who are dismissed on or after its commencement while the existing
provisions in the Industrial Relations Act 1996 will continue to apply to employees
who were dismissed before that commencement.

Schedule 3 [3] amends clause 1 of Part 20 of Schedule 6 to the Workers
Compensation Act 1987 to enable the Governor to make regulations of a savings or
transitional nature consequent on the relocation of provisions by the proposed Act.

Schedule 4 Consequential amendment of other
legislation
Schedule 4 makes amendments to the Employment Protection Act 1982 and the
Industrial Relations Commission Rules 1996 that are consequential on the
establishment of the NSW industrial relations website as the principal mechanism for
the publication of information relating to industrial relations matters.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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