When exercising its judicial powers, the Commission sits as the Commission in Court Session, known as the Industrial Court of NSW (Industrial Court).

Work Health and Safety

The Industrial Court has a criminal jurisdiction to determine matters arising under the WHS Act. This jurisdiction is not limited to public sector and local government workers and workplaces.

It hears criminal prosecutions under the WHS Act, other than Category 1 offences against an individual.<> It also hears proceedings for breaches of civil penalty provisions under the WHS Act.¹³ Such proceedings may brought by the regulator, an inspector with the written authorisation of the regulator, or a registered organisation acting on behalf of the person affected by the contravention.¹⁴

In addition, the Industrial Court determines applications under the WHS Act brought by:

• the regulator to enforce a breach of an enforceable undertaking;¹⁵
• the regulator for an injunction compelling compliance with an improvement notice, prohibition notice, non-disturbance notice or prohibited asbestos notice;¹⁶ and
• a worker for relief in respect of discriminatory conduct engaged in for a prohibited reason.¹⁷

Civil Penalties and Underpayments

In its civil jurisdiction, the Industrial Court can hear applications for a civil penalty order by an industrial organisation, inspector, employer or duly authorised person,¹⁸ for breach of an industrial instrument made under the NSW Industrial Relations Act.¹⁹

The Industrial Court can also hear and determine matters of a similar nature arising under the Fair Work Act 2009 (Cth) (FW Act).²⁰ An applicant who is entitled to bring proceedings for breach of a civil remedy provision under Chapter 4 of the FW Act may choose to commence proceedings in the Industrial Court and seek appropriate orders in respect of that contravention. Such orders may include the payment of a monetary penalty by the party found to be in breach.

The Industrial Court has an uncapped monetary jurisdiction in underpayment claims involving unpaid remuneration²¹ and unpaid superannuation payable under an industrial instrument.²² The Industrial Court does not have authority to hear underpayment claims where the obligation to pay arises solely under a contract, rather than pursuant to statute or under an industrial instrument such as an award, enterprise agreement or contract determination. An application may be brought by the person to whom the money is payable or a person with written consent to bring a claim on that person’s behalf, including an officer of an industrial organisation or an inspector.²³

In some circumstances a national system worker, such as an employee of a private company or business or the federal government, can commence proceedings in the Industrial Court for unpaid remuneration payable under a modern award or federal enterprise agreement. For more information, visit: [insert link to ‘Industrial Relations Commission or Fair Work Commission?[AI1] ’].

A worker may apply to the Industrial Court for an order for recovery of a payment owing to them under the Long Service Leave Act 1955²⁴ and Annual Holidays Act 1944.²⁵ Such applications are not limited to NSW public sector and local government workers. The Industrial Court also hears applications for the recovery of penalties under the Annual Holidays Act 1944.²⁶

Unfair Contracts

The Industrial Court may declare wholly or partially void, or vary, a contract under which a person performs work on the basis that the contract is unfair, harsh, unconscionable, against the public interest, designed to avoid the provisions of an industrial instrument or provides a total remuneration that is less than an employee would receive for performing the same work. An unfair contract application may be made by a party to the contract, a person’s union or an industrial organisation in the industry to which the contract relates.²⁷

Other Functions of the Industrial Court

Section 153 of the IR Act provides the Industrial Court with jurisdiction to determine: 

• offences before the Commission, including proceedings for contempt;
• declarations of right;
• contraventions of dispute orders;
• the regulation and registration of industrial organisations
• superannuation appeals under the Superannuation Administration Act 1996 (NSW);
• proceedings on an appeal from a Commission member exercising the functions of the Industrial Court  or on appeal or case stated from an Industrial Magistrate or another court;
• appeals on questions of law relating to public sector promotional and disciplinary matters; and any other proceedings that are permitted to be taken before the Court under the IR Act or another Act.

Industrial Registry

The Industrial Registry staff provide day-to-day administrative, operational and clerical support to the Commission.  This includes receiving applications, fees, submissions, and other documents.  It maintains the Commission’s records and administers certain regulatory and governance responsibilities.

^{12 Work Health and Safety Act 2011 (NSW) s 229B(3) (the Industrial Court has only summary jurisdiction for criminal proceedings).; 13 Work Health and Safety Act 2011 (NSW) s 255.; 14 Work Health and Safety Act 2011 (NSW) s 230.; 15 Work Health and Safety Act 2011 (NSW) s 219.; 16 Work Health and Safety Act 2011 (NSW) s 215.; 17 Work Health and Safety Act 2011 (NSW) s 112.; 18 Industrial Relations Act 1996 (NSW) s 400E.; 19 Industrial Relations Act 1996 (NSW) Ch 7, Pt 1.; 20 Fair Work Act 2009 s 12.; 21 Industrial Relations Act 1996 (NSW) ss 365-367.; 22 Industrial Relations Act 1996 (NSW) s 368.; 23 Industrial Relations Act 1996 (NSW) s 369.; 24 Long Service Leave Act 1955 (NSW) s 12.; 25 Annual Holidays Act 1944 (NSW) s 14.; 26 Section 12.; 27 Industrial Relations Act 1996 (NSW) s 108.}