Unions NSW & Ors v State of New South Wales

Unions NSW and others (the applicants) sought judicial review of the validity of the *Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2020* (NSW) (the Regulation). The applicants contended that the Regulation, which imposed limitations on the ability of public sector employees to negotiate certain conditions of employment, was beyond the scope of the power conferred by the *Industrial Relations Act 1996* (NSW) to make regulations. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Regulation was a valid exercise of the regulation-making power granted by section 212 of the *Industrial Relations Act 1996* (NSW). Specifically, the Court had to determine if the Regulation, by restricting the scope of bargaining for public sector employees, fell within the purpose and intent of the Act, which was to provide for the regulation of industrial relations in New South Wales.

The High Court held that the Regulation was invalid. The majority reasoned that the power to make regulations under section 212 of the Act was intended to facilitate the objects of the Act, which included the provision for conciliation and arbitration of industrial disputes. The Regulation, by imposing a blanket prohibition on the negotiation of certain conditions, went beyond the scope of the Act's purpose and effectively curtailed the jurisdiction of the Industrial Relations Commission to arbitrate disputes concerning those conditions. The Court found that the Regulation sought to achieve by regulation what could only be achieved by primary legislation, thereby exceeding the executive power to make subordinate legislation.

The High Court made orders declaring the *Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2020* (NSW) invalid.