Changes to the definition of “industrial matter”

What is the claim that can be made?

The Industrial Relations Commission has jurisdiction over industrial matters regarding the return to work of an employee after a workplace injury. This means that industrial disputes under Chapter 3 of the Industrial Relations Act 1996 (NSW) (“IR Act”) can be brought in relation to the return to work of an employee after a workplace injury. It also means that employees can bring victimisation claims if they are victimised because they participate, or propose to participate, in proceedings relating to the return to work of an employee after a workplace injury: IR Act s 210(1)(e).

Can I make such a claim?

In relation to industrial disputes, only registered organisations, employers, persons who are likely to be the subject of a secondary boycott and state peak councils can bring such claims under s 130 of the IR Act. Employees cannot bring such claims.

In relation to victimisation claims, employees and industrial organisations can bring a claim.

What relief can be granted?

Regarding industrial disputes, s 136 of the IR Act states that the Commission can make the following orders when arbitrating proceedings:

1. Make a recommendation or give a direction;
2. Make or vary an award;
3. Make a dispute order;
4. Make an order or determination with prospective application, whether on an interim or final basis, including an order or determination about the interpretation or application of an industrial instrument for the purposes of resolving the dispute; and
5. Make another kind of order it is authorised to make, including on an interim basis.

Regarding victimisation claims, s 213(2) of the IR Act states that the Commission can make the following orders:

1. Order the reinstatement or re-employment of an employee;
2. Order the employer to promote or otherwise advance an employee in their employment;
3. Order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone;
4. Order the employer to employ a prospective employee;
5. Order the employer not to carry out a threat to victimise an employee or not to make any further such threat;
6. Order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity; and
7. Make consequential orders (including orders concerning continuity of service).

What is the procedure that the Commission will adopt to deal with such claims

The Commission will deal with such claims in the same manner as it deals with all other industrial disputes and victimisation claims. The matter will first be referred to conciliation. If conciliation is unsuccessful, the matter will proceed to arbitration.