Industrial disputes

What is an industrial dispute? 

An industrial dispute is a dispute about matters or things affecting or relating to work, or the privileges, rights, duties or obligations of employers or employees in any industry.

It includes a demarcation dispute, a threatened or likely industrial dispute and a situation likely to give rise to a dispute if preventative action is not taken.

An industrial dispute may concern, for example, the remuneration paid to employees or their conditions of employment. It can also concern a dispute about the return to work of employees who received a workplace injury.

Who can notify the Commission of an industrial dispute?

The Industrial Relations Commission of New South Wales (Commission) can assist in the resolution of industrial disputes under the Industrial Relations Act 1996 (NSW) (IR Act).  The following parties can notify the Commission of an industrial dispute: 

• an industrial organisation of employees or employers;

• an employer who is or is likely to be affected by the dispute;

• a person who is or is likely to be the subject of a secondary boycott in connection with the dispute; 

• a State peak council; or

• the Commission can act on its own initiative to resolve an industrial dispute.

Have you followed the dispute resolution procedure? 

Awards and enterprise agreements will contain a dispute resolution procedure.  It is important that parties check the relevant award or enterprise agreement, which can be accessed on the Commission’s website, and make a genuine attempt to follow the procedure. The Commission may refuse to deal with an industrial dispute until the parties have attempted to resolve the issues.

How to notify the Commission of an industrial dispute? 

A party can file a Notification an Industrial Dispute (Form IRC 4) with the Registry at the Commission online, by post or in person. A Notification can be filed by email but only if the Online Registry will not accept the form due to technical difficulties and the application is of sufficient urgency that the applicant cannot wait for those issues to be resolved.  The email must set out why it is being filed by email instead of via the Online Registry.  

If the matter is urgent the filing party should bring the urgency to the attention of the Commission by telephone or email.

The matter will be allocated to a Member of the Commission within 48 hours but can be listed the same day if the dispute is urgent. 

What can the Commission do? 

Compulsory conference

The Commission may convene a compulsory conference.  The Industrial Registrar can issue a summons to ensure the attendance of a person that can help resolve the dispute including to confer, give evidence, or produce documents. It is usual for the matter to proceed into conciliation at the compulsory conference.

Conciliation

The Commission will initially attempt to resolve the industrial dispute by conciliation and will only proceed to arbitration after reasonable attempts have been made to find a resolution. The Commission expects parties to bargain in good faith during conciliation and may take any failure to do so into account in later proceedings. 

The Commission may make recommendations or give directions to the parties, including to undertake mutual gains bargaining if appropriate.  A party must give reasons for non-compliance with a recommendation or direction if directed to do so.

Arbitration

If conciliation fails, the Commission will issue a certificate of attempted conciliation and proceed to arbitration of the industrial dispute. The Commission will consider several factors when deciding whether to issue a certificate of attempted conciliation, including the effect that any industrial action in connection with the dispute is having on the parties and the public generally. 

In arbitration proceedings, the Commission may:

• make a recommendation or give a direction to the parties;

• make or vary an award under Part 1 of Chapter 2 of the IR Act;

• issue a dispute order, including: 

•  an order to cease or refrain from taking industrial action;

•  an order for an employer not to dismiss employees during the dispute;

•  an order to reinstate or re-employ any employees dismissed during or because of the dispute; or 

•  an order to cease a secondary boycott imposed in connection with the dispute.  

• issue an interim or final order or determination with prospective application, including about the interpretation or application of an industrial instrument to resolve the dispute; or

• make another order it is authorised to make under law, including on an interim basis.

An examination of the Commission’s powers can be found in Local Government Engineers’ Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069.  Since that decision section 136 has been amended in a way that adds the power to make an order or determination with prospective application.

Civil penalties may apply for breaches of an order or determination made on a final basis under s 136(1)(d) of the IR Act.

Can the Commission’s decision be appealed? 

The Commission’s decision at arbitration can be appealed to the Full Bench of the Commission.  See ‘Appeals’ for further details.