Breach of industrial instruments

Industrial instruments made by the Industrial Relations Commission, such as Awards and Enterprise agreements, are legally enforceable documents containing terms and conditions of employment that apply to state-based public sector employees and local government employees in New South Wales.

A breach of an industrial instrument under Chapter 7, Part 1 of the Industrial Relations Act 1996 (NSW) (IR Act) includes:

• the failure to comply with a provision of an industrial instrument;¹
• offering or seeking employment on terms that would constitute a contravention of an industrial instrument;² or
• a failure to exhibit the industrial instrument that applies to that workplace in a clearly visible location and in a language employees will understand.³

How to make a claim

The party alleging the breach of a provision in an industrial instrument must complete an Application for recovery of money or civil penalties and file the paperwork with the Registry at the Industrial Relations Commission of New South Wales (Commission) by email at IRC.Registry@courts.nsw.gov.au. 

Alternatively, the paperwork can be filed in-person or by post. 

What can the Industrial Court do?

The Commission will first attempt to resolve the matter by conciliation being a process to assist the parties to reach an acceptable settlement. The matter will proceed to hearing if conciliation is unsuccessful before a Judge of the Commission in Court Session (Industrial Court).

If the breach is proven, the Industrial Court can issue a civil penalty of up to $10,000 for any breach of a provision in an industrial instrument.⁴  If the breach has resulted in unpaid remuneration, the Industrial Court may also issue an order for the payment of money under Chapter 7, Part 2 of the IR Act in the same proceedings (See Recovery of Remuneration).⁵

The Industrial Court may issue additional orders under the IR Act relevant to the breach.

Can the Commission’s decision be appealed?

The judge’s decision can be appealed to the Full Bench of the Industrial Court.

^{1 Industrial Relations Act 1996 (NSW) s 357.; 2 Ibid s 360.; 3 Ibid s 361.; 4 Ibid s 357.; 5 Ibid s 358}