This speech was delivered on 11.10.2016 in the NSW Upper House. You can read the full debate online here.

On behalf of The Greens I state at the outset that we oppose the Industrial Relations Amendment (Industrial Court) Bill 2016. The objects of the bill are to amend the Industrial Relations Act 1996 to abolish the Industrial Court, which is often referred to in the legislation as the Industrial Relations Commission in Court Session; to appoint the current President of the Industrial Relations Commission, the only remaining judicial member of that court, as a judge of the Supreme Court; to transfer certain functions of the Industrial Court primarily to the Supreme Court but in relation to work, health and safety matters to the District Court and, in a small minority of cases, to the Industrial Relations Commission; and to reconstitute the Industrial Relations Commission so that instead of having a president it has a chief commissioner and commissioners. The bill also contains a large number of consequential amendments to other Acts, many of which contain appeals to the Industrial Court for review under the existing law.

The Industrial Relations Commission has an extremely proud history. Indeed, the process of having an Industrial Court commenced in 1901 with the Court of Arbitration. At the turn of the last century Australia, and to some extent New Zealand, was seen as an extraordinary experiment in social cohesion and industrial regulation. The concept of conciliation and arbitration of industrial disputes, not allowing it to be a dog-eat-dog process of union muscle against employer strength but trying to civilise the industrial relations landscape was, if you like, a South Pacific invention. It was a key part of our industrial and social history that we had courts and tribunals at a State and a Federal level that sought to resolve industrial disputes in what was considered—and for many still is considered—a fair, even-handed and positive way. That experimentation came after decades of industrial strife, particularly in the 1890s, which caused a large amount of social disunion in Australia.

The New South Wales Government at the time responded by creating the Court of Arbitration under the Industrial Arbitration Act 1901. The Court of Arbitration was, as is the Industrial Court today, a court of record. The president was a Supreme Court judge and there were two additional members of the court—one representing employers and the other representing employees. It was required that the court be legislated because a voluntary process of industrial arbitration had been available under previous legislative regime. But that voluntary process was effectively not used because when one side or the other, the unions or the employers, thought they had the relevant industrial muscle they would refuse to agree to voluntary arbitration—given their relative powers, we can understand why that happened.

So the failure of voluntary arbitration led to the establishment of the Court of Arbitration in 1901 and that was a matter of quite substantial political debate. Should there be an Industrial Court? Should there be an arbitral body? The industrial court was established by amending legislation in 1908 and under the Industrial Disputes Act 1908 we had the first formally named Industrial Court in New South Wales. Again, it was constituted by a Supreme Court or District Court judge, who had a seven-year appointment, and it had jurisdiction to arbitrate even where a formal dispute had not been brought before the tribunal. It also established a system of industrial boards that continued through the twentieth century.

I could enumerate the 50 different processes that have happened since then, but I have done that before in a fairly lengthy contribution to this House: in 1912 the Court of Industrial Arbitration; in 1918, the Board of Trade; in 1926, the Industrial Commission, constituted by a commissioner and deputy commissioner; and the 1932 amendments created the offices of deputy industrial commissioner and the chairmen of conciliation committees. There were a number of additional amendments throughout the 1930s but it was the Industrial Arbitration Act 1940 that ultimately became the bedrock of the commission structure throughout the balance of the twentieth century.

The current structure was established in 1996. It drew a distinction between what is described in shorthand as the Industrial Court, but it is actually the Industrial Relations Commission in Court Session, and the Industrial Relations Commission proper. The idea was that one would determine judicial rights—that is, rights that currently exist in law—and one would create rights through the arbitral process as well as deal with many of the regulation matters for the registration of unions, employer groups and industrial disputes. We then had Work Choices, which in large part has been rebadged as the Fair Work Act. That greatly reduced the jurisdiction of the Industrial Court, in particular the unfair contracts jurisdiction, and a raft of other statutory jurisdictions of the court were gutted by Work Choices and the legislative prohibitions on the State having separate employment-related jurisdiction have been repeated in the Fair Work Act.

In large part I adopt the submissions of the Leader of the Opposition, but if the Labor Party is serious about reinvigorating the jurisdiction of the Industrial Court then it should agree to amend the Fair Work Act to remove the odious provisions that prohibit State jurisdictions from granting adequate industrial remedies under State law. Indeed, that should be a matter of national debate because the Fair Work Act effectively sets low national legal minimums for industrial matters and then works to prohibit the States from effectively legislating for improved standards and remedies at a State level. It is because of that proud history and the unalloyed good of having a separate industrial jurisdiction that The Greens oppose this bill. We accept the Government’s argument that there has been a radical reduction to only a tiny fraction of the jurisdiction it had in 2005, but a large part of that came about because of the Work Choices and now the Fair Work Act amendments at the Federal level prohibiting and excluding a series of State remedies under the Industrial Relations Act.

Another reason the workload in the commission has reduced greatly is as a result of the cap that was put on public sector wages, which effectively has greatly reduced the real jurisdiction of the Industrial Relations Commission and greatly reduced the number of applications that are brought. So there is undoubtedly a reduction in the number of matters that are before the jurisdiction. But the answer to that problem is not to abolish the jurisdiction. The answer to that problem is to seek to remove the restrictions that apply at a Federal level and to direct more work to a properly constituted State tribunal—and there is a large number of employment-related matters that could be directed there.

It may be that the answer does not lie entirely in giving additional jurisdiction to the existing Industrial Court. I believe we all have a collective obligation to look at the existing legal framework for employment disputes and employment-related disputes—whether it is workers compensation disputes, employment discrimination disputes, award disputes, disputes about police superannuation, section 181D applications under the Police Act or discrimination in employment. There is clearly a need in this State for a comprehensive State employment tribunal, and I believe the appropriate response to the reduction in filings before the Industrial Court is not simply to abolish the court and transfer all that jurisdiction to the Supreme Court—which, of course, would be cost-prohibitive and would deter many employees and employers from accessing the jurisdiction, and the Supreme Court would not have the kind of collective industrial or employment wisdom the current Industrial Court has—but for us to consider a newly constituted and far more comprehensive employment tribunal.

There is a number of options for how we could do this. One would be to create a new division in the NSW Civil and Administrative Tribunal, to head that tribunal with a judicial member and then to provide the relevant employment jurisdiction to that tribunal. We should be exploring these matters so that we retain a tribunal that has critical mass, critical industrial expertise and critical employment expertise, and is also a relatively low‑cost tribunal that does not have the prohibitive cost regimes that apply in the Supreme Court. I note that the Opposition’s amendments highlight some elements of the jurisdiction that it really is not appropriate to refer to the Supreme Court. The Opposition’s amendment No. 7 on sheet C2016-92D seeks to retain in the Industrial Commission a fair amount of the jurisdiction that has been proposed to be transferred to the Supreme Court, and that includes proceedings under section 139 for contravention of a dispute order.

A contravention of a dispute order may arise from an order of the commission saying that 10,000 workers are to attend work on a particular day. It may be that 10 of them reject that and say to the commission, “Sod you; we’re not turning up”. Do we really want to have that application determined in the Supreme Court—whether or not 10 workers turned up on a particular day? Do we really want proceedings under parts 3, 4 and 5 of chapter 5 of the Industrial Relations (General) Regulation going to the Supreme Court? Do we really want demarcation disputes and cancellation of registrations—those sorts of matters—to be dealt with in the Supreme Court? It is not a rational use of scarce resources to suggest that those kinds of disputes should be determined in the high-cost jurisdiction of the Supreme Court, adding to delays in the Supreme Court. It would be far better to keep those kinds of disputes in a specialised industrial tribunal where they can be dealt with.

The same would apply to proceedings under part 1 of chapter 7 for breach of industrial instruments and for the recovery of money under part 2 of chapter 7. Dealing with proceedings for the recovery of money, there is an exclusion for small claims under part 2 of chapter 7. If the claim is $5,000 it will not go to the Supreme Court, it will go to the Local Court. But if the claim is $12,000 we could be seeing $12,000 claims instituted in the Supreme Court or we could be seeing even $200,000 claims instituted in the Supreme Court. Claims of that nature should not be instituted in the Supreme Court; the costs of those applications would overwhelm the actual money sought to be recovered. It seems the Government has not properly thought through that part of the bill. The same would apply for proceedings for an appeal under section 88 of the Superannuation Administration Act 1996 as well as a raft of other proceedings that are currently reviewable or appellable to the Industrial Court.

We should spend a little time sitting down and reflecting maturely upon this. It would be useful to know whether the Government believes there is any merit to some or all of the Opposition’s amendments. There does not seem to be any particular reason to leap to the Committee process tonight. Nothing would be lost in going to the Committee stage tomorrow so the Minister, the Opposition and other parties in this House can sit down and have a bit of mature reflection on whether the Government intends to provide that sort of work to the Supreme Court.

The other amendment I highlight that is relevant to our in-principle opposition to this bill is that there is currently no legislative minimum to the number of commissioners who need to be appointed under the Government’s bill. The Government has given some promises and undertakings that it intends there to be a minimum of five commissioners, but there is no legislative minimum for commissioners. When one realises that there is an internal appeal process in the commission where the Chief Commissioner and at least two other commissioners are brought together to hear an appeal, if we lose just one commissioner it will be next to impossible for an appeal division to be cobbled together in most cases. If we lose two commissioners there cannot be an appeal division. I accept that there is a cumbersome process that may allow a magistrate to be co-opted in certain circumstances—

The Hon. Adam Searle: Only for police matters.

Mr DAVID SHOEBRIDGE: Only for police matters. But for the balance of other matters, if it is down to just three commissioners there cannot be an appeal division. There should be a legislative minimum for the number of commissioners. I hope, with those observations, that The Greens’ position on this bill is clear. We oppose the bill but we urge the Government to sit down in good faith, have a look through some of the amendments and see whether we can do what this House is meant to do: improve the bill rather than just reject it outright.