Our History

The Court of Arbitration, established by the Industrial Arbitration Act 1901, was a court of record constituted by a President (a Supreme Court judge) and two members representing employers and employees respectively. The Court came about as a result of the failure of employers and unions to use a system of voluntary arbitration. The Court had jurisdiction to hear and determine any industrial dispute or matter referred to it by an industrial union or the Registrar, prescribe a minimum wage and make orders or awards pursuant to such hearing or determination. This Court and its registry, the Industrial Arbitration Office, came under the administration of the Department of Attorney-General and of Justice from 12 December 1901. 

The Industrial Court, established by the Industrial Disputes Act 1908, was constituted by a Supreme Court or District Court Judge appointed for a period of seven years. The Court did not require the existence of a dispute to ground its jurisdiction and had power to arbitrate on conditions of employment and could hear prosecutions. Together with its registry, known during 1911 as the Industrial Registrar's Office, the Court remained under the administration of the Department of Attorney-General and of Justice. 

The Act also established a system of Industrial Boards that consisted of representatives of employers and employees sitting under a chairman. The Industrial Court heard appeals from the Industrial Boards.

The Court of Industrial Arbitration was established by the Industrial Arbitration Act 1912. It was constituted by judges, not exceeding three, with the status of judges of the District Court. The Court was vested with all the powers conferred on all industrial tribunals and the chairman thereof. The Act empowered the Minister to establish Conciliation Committees with powers of conciliation but not arbitration. They fell into disuse after about twelve months and a Special Commissioner (later known as the Industrial Commissioner) was appointed on 1 July 1912. 

This Court and its registry were placed under the jurisdiction of the Department of Labour and Industry, which administered the Act from 17 April 1912.

A Royal Commission on Industrial Arbitration in 1913 led to some major changes under the Industrial Arbitration (Amendment) Act 1916, which resulted in an increase in the membership of the Court and the transfer of powers of the Industrial Boards to the Court.

The Board of Trade was established by the Industrial Arbitration (Amendment) Act 1918. It functioned concurrently with the Court of Industrial Arbitration and was constituted by a President (a Judge of the Court), a Vice-President and representatives of employers and employees. The Board's functions were to conduct a public inquiry into the cost of living and declare an adult male and female living wage each year for industry generally and for employees engaged in rural occupations. In addition, it was to investigate and report on conditions in industry and the welfare of workers. The Board was in practice particularly concerned with matters relating to apprenticeships. 

The Industrial Arbitration (Amendment) Act 1926 abolished the Court of Industrial Arbitration and the Board of Trade and set up an Industrial Commission constituted by a Commissioner and a Deputy Commissioner. The Commissioner or Deputy Commissioner sat with employer and employee representatives selected from a panel. On any reference or application to it the Commission could make awards fixing rates of pay and working conditions and determine the standard hours to be worked in industries within its jurisdiction and had power to determine any "industrial matter". The Commission had authority to adjudicate in cases of illegal strikes, lockouts, or unlawful dismissals, and could summon persons to a compulsory conference and hear appeals from determinations of the subsidiary industrial tribunals. The former boards, which had not exercised jurisdiction since 1918, continued in existence but as Conciliation Committees with exclusive new jurisdiction in arbitration proceedings.

A number of controversial decisions by the Industrial Commission led to the proclamation of the Industrial Arbitration (Amendment) Act 1927, which abolished the position of Industrial Commissioner (but not Deputy Industrial Commissioner) and the constitution of the Commission was altered to that of three members with the status of Supreme Court Judge. The Committees were still the tribunals of first instance and their decisions were to be the majority of members other than the chairman, whose decision could be accepted by agreement if the members were equally divided. Otherwise the chairman had no vote and no part in the decision. Where a matter remained unresolved in committee it passed to the Commission for determination.

In 1932, under the Industrial Arbitration (Amendment) Act, the emphasis fell on conciliation. The offices of Deputy Industrial Commissioner and Chairman of Conciliation Committees were abolished and a Conciliation Commissioner was appointed to fill the latter position. This Act also provided for the appointment of an Apprenticeship Commissioner and for the establishment of Apprenticeship Councils. The Conciliation Commissioner could call compulsory conferences in industrial disputes to effect an agreement between the parties when sitting alone or between the members of the committee when sitting as chairman. Any such agreement, when reduced to writing, took effect as an Award but was subject to appeal to the Industrial Commission. In addition, the conciliation commissioner or a conciliation committee could not call witnesses or take evidence except as directed by the Industrial Commission. Unresolved matters were referred to the Commission.

The membership of the Commission was increased to four by the Industrial Arbitration Act 1936, and certain provisions regarding appeals were altered under this Act. 

The Industrial Arbitration (Amendment) Act 1937 repealed the Commission's power of determining a standard of living and living wages and provided for the adoption of the needs basic wage and fixed loadings determined by the Commonwealth Court of Conciliation and Arbitration. 

In 1938 the number of members of the Commission was increased to no less than five and no more than six and the Act, the Industrial Arbitration and Workers Compensation (Amendment) Act, made provisions regarding investigation of rents and certain price fixing. The Act was again amended in 1939 mainly to address the fixing of maximum prices. 

The Industrial Arbitration Act 1940 consolidated all previous Acts, and an attempt was made to refine and rationalise the procedures and operation of the Industrial Commission. The Act provided for the establishment of an Industrial Commission, Conciliation Committees, Conciliation Commissioners, Special Commissioners, Industrial Magistrates Courts, and the Industrial Registrar.

The Industrial Arbitration (Amendment) Act 1943 empowered the chairman, with the agreement of the members or by special authorisation of the Industrial Commission, to decide matters where there was division. The number of commissioners who might be appointed was also increased to five. The Industrial Arbitration (Amendment) Act 1948 allowed the commissioners to decide matters upon which the members were equally divided as well as make an Award where the disputing parties had been called into a compulsory conference.

In 1955, the maximum number of members of the Industrial Commission was increased to 12 and the next raft of significant changes came with the Industrial Arbitration (Amendment) Act 1959. These changes included defining the wage fixing powers of industrial committees and appeal provisions were also reformed.

In 1979 the Act was again amended to make provision for the establishment of Contract Regulation Tribunals. Generally, this gave the Commission jurisdiction over contracts for the bailment of taxicabs and private hire cars and over contracts for the transportation by motor lorry of loads other than passengers.

In 1981 and again in 1989 the Commission's powers in relation to dealing with apprentices were clarified. In 1989 the Industrial and Commercial Training Act was passed and apprentices were treated as other employees for all industrial purposes.

By 1989 the Act provided that the Industrial Commission consisted of not more than twelve members, one of whom was the President and one of whom was the Vice President. The Act also provided for the appointment of "non judicial" members who did not have to be legally qualified as well as "judicial" members. There were certain jurisdictional limitations for "non judicial" appointees.

In 1988 the then coalition government commissioned a comprehensive review of the State's industrial laws and procedures. The subsequent report, the Niland Report, had far reaching recommendations and became the basis for the Industrial Relations Act 1991. The former Commission was abolished and replaced by the Industrial Relations Commission and a separate Industrial Court. Two of the key features of the report were the introduction of enterprise bargaining outside the formal industrial relations system with agreements specifically tailored to individual workplaces or businesses and the provisions relating to unfair dismissal. Individuals could access the Commission if they believed they had been unfairly dismissed. Their remedy was reinstatement and/or compensation.

On 2 September 1996, the Industrial Relations Act 1996 came into force. It repealed and replaced the 1991 Act and is an example of plain English statute law. Chapter 4 of the Act established a new Industrial Relations Commission. Unlike the federal approach the States had not separated judicial and administrative functions in relation to the Commission's powers. The 1991 Act, for the first time, sought to adopt the federal approach and established the Industrial Relations Commission and the Industrial Relations Court (although the judges' remained members of the Commission at all times). The 1996 Act restored the traditional arrangement by merging these two bodies. When the Commission was dealing with judicial matters it was called the Industrial Relations Commission of New South Wales in Court Session and was a superior court of record of equivalent status to the Supreme Court.

On 9 December 2005 the Industrial Relations Amendment Act 2005 was proclaimed to commence. This Act enabled the Industrial Relations Commission of New South Wales in Court Session to be called the Industrial Court of New South Wales.

The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) which took effect on 27 March 2006 had the effect of overriding State industrial law to the extent that it applied to corporations and their employers.  This Amendment removed the jurisdiction of the Industrial Relations Commission pertaining to the regulation of conditions of employment  for most private sector employees.

The Industrial Relations (Commonwealth Powers) Act 2009, proclaimed to commence on 1 January 2010, referred certain powers relating to industrial relations to the Commonwealth for the purpose of s 51(xxxvii) of the Australian Constitution and amended the 1996 Act. The effect of this Act was to transfer the residue of the private sector to the national industrial relations system. It provided that the Industrial Relations Commission retained jurisdiction in relation to State public sector employees and Local Government employees.

On 17 June 2011, the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 commenced, inserting s 146C into the 1996 Act, requiring the Industrial Relations Commission to give effect to aspects of government policy declared by the regulations relating to public sector conditions of employment.  The Government made a relevant policy limiting increases in employee related costs for public sectors workers to 2.5% per annum, which became known as the ‘wages cap’.  The effect of this was to largely prevent the Commission from awarding increases in pay and conditions above 2.5% in any given year.

With the commencement of the Work Health and Safety Act 2011 on 1 January 2012, the jurisdiction of the Industrial Court to deal with work, health and safety prosecutions involving death or serious injury occurring in workplaces across the State was removed and transferred to the District Court. The Industrial Court retained jurisdiction to deal with matters filed prior to 31 December 2011 under the Occupational Health and Safety legislation. The Court also retained its jurisdiction in relation to minor breaches of the work, health and safety legislation.

On 20 December 2013, the Industrial Relations Amendment (Industrial Court) Act 2013 commenced and amended the 1996 Act. The major changes were that the Industrial Court could only be constituted by a single judicial member and not by a Full Bench of judicial members; a judge of the Supreme Court could act as a judge of the Industrial Court; the jurisdiction of a Full Bench of the Industrial Court to deal with cancellation of industrial organisations was transferred to the Industrial Relations Commission and provided that a Full Bench of the Commission for that purpose was to be constituted by a judge of the Industrial Court and two members who were Australian lawyers; the jurisdiction of a Full Bench of the Industrial Court to deal with contempt and to hear appeals from the Local Court and appeals on a question of law in relation to a public sector promotional or disciplinary appeal were transferred to a single judge of the Court; the jurisdiction of a Full Bench of the Industrial Court to hear appeals from a judge of the Industrial Court was transferred to the Supreme Court.

Amendments to other Acts around this time provided for: appeals from the Industrial Court to the Court of Criminal Appeal; for certain matters under the Police Act 1990 to be dealt with by Commission members who are Australian Lawyers; and for a judicial member of the Commission to act as a judge of the Supreme Court.

On 19 October 2016, the Industrial Relations Amendment (Industrial Court) Act 2016 commenced. This Act made further changes to the 1996 Act, abolishing the Industrial Court and allocating functions previously undertaken by judicial members of the Commission to the Supreme Court or to the Commission. Any references to the Industrial Court remaining in the 1996 Act, were said to refer to the Supreme Court. Accordingly, the role of President as Head of the Industrial Relations Commission was removed and in most respects the President’s functions, including as Head of Jurisdiction, were transferred to the newly created role of Chief Commissioner.

The Industrial Relations (Amendment) Act 2023 once again amended the 1996 Act by reintroducing the Industrial Court of NSW as a superior court of record, with equivalent status to the Supreme Court and the Land and Environment Court, commencing 1 July 2024. The Act provides that there be a President and Vice President and one or more Deputy President who are Justices of equivalent status to Supreme Court Judges.  Other amendments included the introduction of mutual gains bargaining provisions and the removal of the wages cap by the repeal of s146C of the 1996 Act.  The Amendment Act abolished the position of Chief Commissioner who became a Senior Commissioner. The Commission is now constituted by the President, Vice President, Deputy President (who sit as Justices of the Industrial Court) and Commissioners, including one Senior Commissioner. All judicial matters arising under the Act pertaining to NSW State Government and Local Government employees along with all work health and safety prosecutions are heard by the NSW Industrial Court. The Court also regained jurisdiction over matters transferred to other courts in 2016.