What’s changed since the return of the Industrial Court of NSW?

This article was originally published by Cat Woods for LSJ Online (23 June 2026).

Two years ago, The Industrial Court of New South Wales was officially re-established and initiated operations on 1 July, 2024. It heralded a return of the "one-stop shop" for workplace hearings that had been shut down in 2016. The Industrial Court operates as the judicial arm of the NSW Industrial Relations Commission.

The re-commencement of the Court was hailed by unions, owing to its jurisdiction primarily focusing on the NSW public sector and local government employees.

LSJ Online spoke with James Mattson, Partner at Bartier Perry, who boasts over 25 years of employment law expertise, about the value of the Court’s return and how it has carried out its promise since 2024.

Mattson explains the justification for the initial closure in 2016, and why the NSW Government saw fit to bring it back.

“With the Federal workplace jurisdiction, there was a drop in cases in the Industrial Court. There was, rightly or wrongly, discontent with work health safety prosecutions in the Industrial Court,” he says.

“In 2012, WHS [workplace health and safety] prosecutions largely went to the District Court. The then-NSW Government transferred its judicial functions to the NSW Supreme Court in 2016. With the new Labor government fulfilling its election promises, the Industrial Court was restored including with the return of safety prosecutions.”

History of the (unique) Industrial Relations Court in NSW

NSW is an outlier in operating a superior court for industrial law concerns, though Queensland, South Australia, and Western Australia have employment tribunals or commissions.

Mattson explains that all judicial matters arising under the Industrial Relations Act 1996 (NSW) pertaining to NSW State Government and Local Government employees along with all work health and safety prosecutions are heard by the NSW Industrial Court. The Court also regained jurisdiction over matters transferred to other courts in 2016.

He says, “Generally, the return of the Industrial Court in its former glory is welcomed by employment lawyers. The Court, along with the Commission, has a respected and rich history in NSW. The overall view is positive with no known criticism of the Court.”

He adds, “The Court, along with the Commission, has engaged with stakeholders in a refreshing and positive way, including conducting regular educational seminars.”

In the final sitting week of NSW Parliament, The Industrial Relations Amendment Bill 2023 passed, which responded to the recommendations from the report of the Industrial Relations Taskforce. The Bill promised to:

• amend the Industrial Relations Act 1996 (NSW) to

  • re-establish the Industrial Relations Commission in Court Session (the Industrial Court);

  • provide for mutual gains bargaining;

  • require the Industrial Relations Commission (the Commission) to consider the New South Wales government’s fiscal position and outlook in the exercise of the Commission’s functions about public sector employees; and

  • repeal section 146C concerning the duty of the Commission to give effect to government policies on conditions of employment of public sector employees prescribed by the regulations

• amend certain other legislation consequent on the re-establishment of the Industrial Relations Commission in Court Session.

With the introduction of the Bill, the office of Chief Commissioner was abolished in favour of the President of the Commission. The Commission consists of four roles: a President, a Vice-President, Deputy Presidents, and Commissioners. The President, Vice-President and Deputy Presidents of the Commission are referred to as Presidential Members, separate to Commissioners.

The current members of the commission are profiled on the IRC website.

Mattson says, “The NSW government appointed very distinguished and experienced industrial counsel to the positions of President and Vice President. They had strong experience in employment and safety at the bar. They each bring with them a fabulous reputation and respect from all practitioners. They have been very pragmatic and sensible in helping with the proper administration of industrial relations in New South Wales.  They have each contributed to the restoration of the Industrial Court’s rich history.”

The Governor may appoint a Presidential Member of the Commission as a member of the Industrial Court. A Full Bench of the Commission in Court Session must include only these members, referred to as judicial members. A judicial member of the Court may also act as a conciliator or arbitrator at the Commission.

The Commission’s president, Ingmar Taylor, SC, invited Unions NSW secretary Mark Morey to speak at the July 2024 welcome in the Chief Secretary’s Building in Sydney. As reported in the media, Morey said the court would “help moderate the excesses” of the federal system.

“A one-size-fits-all limited industrial system does not assist an economy or a state as large as NSW,” Mr Morey said.

Recent cases indicate a breadth of concerns from safety to disciplinary challenges

Mattson says, “NSW State Government and Local Government are mainly governed by this Court, however it does hear work health and safety matters which will involve private sector employers.”

He explains, “While generally it can be said unions and workers benefit from industrial laws, and claims brought in the Court will mainly be against NSW Government employers, the Court is a fair and impartial body applying the law. There is a good balance in the decisions issued to date demonstrating a fair industrial environment.”

Mattson has been involved in a couple of cases that involve industrial disputes.

“The NSW Government is the largest employer in New South Wales. This includes New South Wales Health with over 140,000 employees,” he says.

“After the abolition of the NSW liberal government’s wages cap, there has been a number of industrial disputes in support of wage claims, and some of the largest work value pay cases before the Commission.”

As part of that industrial process, there have been large strikes by doctors and nurses in contravention of dispute orders made by the Commission. The Court had responsibility to enforce its orders.

“The Court issued important decisions this year in respect of imposing penalties for contravening such dispute orders, confirming that the approach to determining penalties largely aligns to the Federal approach but with an eye on the nature of the NSW industrial relation system. The doctor and nurses unions were fined over 60 per cent of the maximum penalty for their disobedience in engaging in the strike action.”

Work health and safety matters

The Industrial Court has a criminal jurisdiction to determine matters arising under the Work Health and Safety Act 2011 (NSW)(WHS Act). This jurisdiction is not limited to public sector and local government workers and workplaces.

Criminal prosecutions that don’t fall under Category 1 offences against an individual are eligible for the Industrial Court, along with proceedings for breaches of civil penalty provisions under the WHS Act, which may be brought by the regulator, an inspector with the written authorisation of the regulator, or a registered organisation acting on behalf of the person affected by the contravention.

The Industrial Court determines applications under the WHS Act brought by:

• the regulator to enforce a breach of an enforceable undertaking;
• the regulator for an injunction compelling compliance with an improvement notice, prohibition notice, non-disturbance notice or prohibited asbestos notice; and
• a worker for relief in respect of discriminatory conduct engaged in for a prohibited reason.

Civil penalties and underpayments

The Industrial Court can hear applications for a civil penalty order by an industrial organisation, inspector, employer or duly authorised person for breach of an industrial instrument made under the Industrial Relations Act 1996 (NSW).

Similar cases can also be heard under the Fair Work Act 2009 (Cth) (FW Act). An eligible applicant may opt to bring proceedings for breach of a civil remedy provision under Chapter 4 of the Fair Work Act in the Industrial Court and seek appropriate orders in respect of that contravention, which may also include the payment of a monetary penalty by the party found to be in breach.

In underpayment claims involving unpaid remuneration and unpaid superannuation payable under an industrial instrument, The Industrial Court has an uncapped monetary jurisdiction.

Unfair contracts

As the Industrial Relations Commission website explains, “The Industrial Court may declare wholly or partially void, or vary, a contract under which a person performs work on the basis that the contract is unfair, harsh, unconscionable, against the public interest, designed to avoid the provisions of an industrial instrument or provides a total remuneration that is less than an employee would receive for performing the same work.”

NSW evolving how it manages industrial and workplace matters

Mattson reflects that recent changes to NSW legislation probably more concern the Commission. “The NSW Industrial Relations Act establishes both the Commission and Court.

“NSW has a new stop bullying and sexual harassment justification but unlike the Federal system, a remedy can be compensation up to $100,000. The Commission is also getting more involved in work health and safety disputes and will soon have a new jurisdiction under worker’s compensation legislation providing an important filter to psychological injury claims.”