BlogDavid TaylorEmployment & Industrial law

Special issues for NSW public sector employment

Employees engaged in the NSW State Public Sector, by local councils or by various State Government entities (such as Local Health Districts) are subject to the NSW state industrial system, unlike  all other  employees who as subject to the Commonwealth industrial system. In the NSW state industrial system, the main relevant Act is the NSW Industrial Relations Act (as opposed to the Fair Work Act), and the relevant tribunal is the  State Industrial Commission, as opposed to the Fair Work Commission.

The opportunities, rules and procedures under the NSW Industrial Relations Act are  different to those under the Fair Work Act, and special care and experience is required.

Unfair Dismissal

Like the federal system, the NSW state industrial system contains a similar but different for unfair dismissal.

There are many similarities between the two systems.  Unfair dismissal claims under the NSW state industrial system must be commenced within 21 days of termination.  Matters proceed first to a conciliation, and then onto a final hearing.

However, there are also important differences.  The form of the application is different, as is the law as to what constitutes an unfair dismissal.  Reinstatement is significantly more common in the state public sector system than it is under the Fair Work system.

In addition to unfair dismissal right,s employees who are about to be or are dismissed often have rights to review decisions in the State Industrial Commission.  Those rights do not exist under the Commonwealth system.

Awards

Most public sector employees are covered by State Awards. These Awards are prescriptive as to the terms and conditions of employment.

Unlike the Federal system where only a single Award may apply to any employee at a given time, under a State Award the terms and conditions of employment may be governed by multiple Awards, along with any contract of employment or Enterprise Agreement that exists.

Segelov Taylor Lawyers can assist in determining entitlements under varying State Awards.

Unfair Contract Jurisdiction

In addition to claims for unfair dismissal, there remains scope for NSW public sector employees to bring claims for unfair contracts. Unfair contracts claim are now brought in the  NSW Supreme Court and involve an allegation that a  contract of employment, or arrangement under which work was performed is unfair.

If the Court makes a determination of unfairness it can then vary the contract and/or make an award for a payment of money, similar to damages.

Prior to the introduction of Work Choices in 2008 the unfair contract jurisdiction was a very busy one in NSW. Since then as a result of the changes to employment law NSW public sector employees who still have access.

Segelov Taylor has extensive experience in acting for workers and employers in unfair contract claims.

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