A contract is a legally enforceable agreement or arrangement. The contract can be in writing, verbal, partly written or partly verbal.
Upon application, the Industrial Relations Court of New South Wales (Industrial Court) may declare wholly or partly void or vary a contract whereby a person performs work in any industry where it is or was:
“Contracts for work in any industry” include employment contracts, independent contractor agreements, and other work-related arrangements. Even if a contract does not directly involve work, it can still be reviewed if it is collateral or related to a contract for work and the performance of work is a significant purpose of the overall contractual arrangement.
In considering whether a contract is against the public interest, the Industrial Court will consider the effect the contract has had or may have on apprenticeships and other training systems in NSW.2 The Industrial Court will also consider whether the person who has claimed the existence of an unfair contract tried to mitigate any loss.3
For the purposes of Chapter 2, Part 9 of the Industrial Relations Act 1996 (NSW) (IR Act), a contract does not include:
An application can be filed by:
The general application form must be submitted to the Registry by email, post or in-person within 12-months from the termination of the contract.6 The time for filing an application cannot be extended unless the applicant can satisfy the Industrial Court that there are exceptional circumstances that justify the delay.8 In that instance, the Industrial Court may consider a late application made within three months of the 12-month deadline.9
Applications cannot be filed in respect of contracts listed under s 108A of the IR Act, including contracts under which a remuneration package in excess of $200,000 (or a greater amount prescribed by the regulations) is paid or received.
Applications must be filed within 12-months of the contract’s termination. The Commission may only extend this time limit pursuant to s 108B of the IR Act if an application is made within 3 months after the 12-month deadline and the applicant demonstrates exceptional circumstances justifying the delay in making the application.
Chapter 2, Part 9 of the IR Act does not apply to a contract of employment that has been or could have been the subject of an unfair dismissal claim in accordance with s 109A of the IR Act. This exclusion applies even if the employee was prevented from making such an application due to the operation of s 83 of the IR Act, which sets out eligibility criteria for unfair dismissal claims.
The Industrial Court will attempt to settle the matter through conciliation after the application is filed.7 If conciliation is unsuccessful, the matter will be scheduled for arbitration, where a judicial member will conduct a formal hearing to determine the matter in accordance with the IR Act.
If a contract is found to be unfair, the Industrial Court may vary the conditions or make an order that declares the contract wholly or partly void.8 The Industrial Court may determine the contract to be unfair from the time the agreement was entered into or decide that it subsequently became an unfair contract because of the conduct of the parties, through a variation of the contract or another reason.9
An order for the payment of money in connection with an unfair contract may be made, depending on the circumstances of the case.10 The Industrial Court may make further orders, if appropriate, to prevent a party entering or inducing other people to enter an unfair contract.11
1 Industrial Relations Act 1996 (NSW) s 105(1).; 2 Ibid s 106(4).; 3 Ibid s 106(6).; 4 Ibid s 109A.; 5 Ibid s 108.; 6 Ibid s 108B(1).; 7 Ibid s 109(1).; 8 Ibid s 106(1).; 9 Ibid s 106(2).; 10 Ibid s 106(5).; 11 Ibid s 107.
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