Fair Work Act 1994 (SA)

South Australia

Fair Work Act 1994

An Act about the relationship of employer and employee; and other matters.

The Parliament of South Australia enacts as follows:

Chapter 1Preliminary1Short title

This Act may be cited as the Fair Work Act 1994.

3Objects of Act

(1)
The objects of this Act are—
(a)
to promote goodwill in industry; and
(b)
to contribute to the economic prosperity and welfare of the people of South Australia; and
(c)
to facilitate industrial efficiency and flexibility, and improve the productiveness of South Australian industry; and
(ca)
to promote and facilitate employment; and
(d)
to encourage enterprise agreements that are relevant, flexible and appropriate; and
(e)
to provide for awards that are relevant, flexible and expressed in non-technical language; and
(f)
to provide a framework for making enterprise agreements, awards and determinations affecting industrial matters that is fair and equitable to both employers and employees;
(fa)
to establish and maintain an effective safety net of fair and enforceable conditions for the performance of work by employees (including fair wages); and
(fb)
to promote and facilitate security in employment; and
(g)
to encourage prevention and settlement of industrial disputes by amicable agreement, and to provide a means of conciliation for that purpose; and
(h)
to provide a means for settling industrial disputes that cannot be resolved by amicable agreement as expeditiously as possible and with a minimum of legal formality and technicality; and
(i)
to ensure compliance with agreements and awards made for the prevention or settlement of industrial disputes, and to ensure compliance with any obligations arising under this Act; and
(j)
to provide employees with an avenue for expressing employment-related grievances and having them considered and remedied including provisions for a right to the review of harsh, unjust or unreasonable dismissals—
(i)
directed towards giving effect to the Termination of Employment Convention; and
(ii)
ensuring industrial fair play; and
(k)
to provide for absolute freedom of association and choice of industrial representation; and
(l)
to encourage the democratic control of representative associations of employers or employees, and the full participation by members in their affairs; and
(m)
to help prevent and eliminate unlawful discrimination in the workplace; and
(ma)
to promote and facilitate gender equity; and
(n)
to ensure equal remuneration for men and women doing work of equal or comparable value; and
(o)
to facilitate the effective balancing of work and family responsibilities; and
(p)
to facilitate the establishment and operation of a national industrial relations system based on co‑operative federalism through—
(i)
the use of dual appointments to Commonwealth and State bodies; and
(ii)
the promotion and facilitation of other arrangements that assist in integrating State and federal workplace relations systems and processes.
(2)
In exercising powers and carrying out functions under this Act, SAET is to have regard (where relevant) to the provisions of—
(a)
the Worst Forms of Child Labour Convention 1999 (See Schedule 9); and
(b)
the Workers with Family Responsibilities Convention 1981 (See Schedule 10); and
(c)
the Workers' Representatives Convention 1971 (See Schedule 11).

4Interpretation

(1)
In this Act, unless the contrary intention appears—
adult means a person of or above 21 years of age;
apprentice means an apprentice or trainee within the meaning of the South Australian Skills Act 2008;
association means—
(a)
an association, society or body formed to represent, protect or further the interests of employers or employees; or
(b)
an organisation, or a branch of an organisation, registered under the Commonwealth (Registered Organisations) Act;
award means an order of SAET regulating remuneration or other industrial matters;
child means a person who has not attained the age of 18 years;
Commonwealth Act means the Fair Work Act 2009 of the Commonwealth;
Commonwealth (Registered Organisations) Act means the Fair Work (Registered Organisations) Act 2009 of the Commonwealth;
Consultative Council means the Industrial Relations Consultative Council;
contract of employment means—
(a)
a contract recognised at common law as a contract of employment under which a person is employed for remuneration in an industry; or
(b)
a contract under which a person (the employer) engages another (the employee) to drive a vehicle that is not registered in the employee's name to provide a public passenger service (even though the contract would not be recognised at common law as a contract of employment); or
Exception—
The contract is not a contract of employment if the vehicle is a taxi and the contract would not be recognised at common law as a contract of employment.
(c)
a contract under which a person (the employer) engages another (the employee) to carry out personally the work of cleaning premises (even though the contract would not be recognised at common law as a contract of employment); or
(d)
a contract under which a person (the employer) engages another (the employee) to carry out work as an outworker (even though the contract would not be recognised at common law as a contract of employment);
decision includes a refusal or failure to make a decision;
demarcation dispute includes—
(a)
a dispute within an association or between associations about the rights, status or functions of members of the association or associations in relation to the employment of those members; or
(b)
a dispute between employers and employees, or between members of different associations, about the demarcation of functions of employees or classes of employees; or
(c)
a dispute about the representation under this Act of the industrial interests of employees by an association of employees;
determination means an award, order, declaration, approval or decision;
domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;
employee means a person employed for remuneration under a contract of employment and includes a public employee;
employer means—
(a)
for public employees—the body or person (not being a Minister) declared by regulation to be the employer of the employees;
(b)
for other employees—a person who employs the employees for remuneration in an industry under a contract of employment;
enterprise agreement means an agreement under Chapter 3 Part 2 of this Act between 1 or more employers and a group of employees regulating remuneration or other industrial matters (and includes a provisional enterprise agreement);
Equal Remuneration Convention means the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value set out in Schedule 6;
Fair Work Commission means the Fair Work Commission established under the Commonwealth Act (or an industrial authority that takes the place of the Fair Work Commission under Commonwealth law);
family—the following are to be regarded as members of a person's family—
(a)
a spouse or domestic partner;
(b)
a child;
(c)
a parent;
(d)
any other member of the person's household;
(e)
any other person who is dependent on the person's care;
group of employees—see subsection (2);
(indexed)—see subsection (4);
industrial action means—
(a)
a work practice, or a way of performing work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of the work; or
(b)
a ban, limitation, or restriction affecting the performance of work, or the offering or acceptance of work; or
(c)
a failure or refusal in connection with an industrial dispute to attend for work, or to perform work,
but does not include action taken by an employer with the agreement of the employees, or action taken by employees with the agreement of the employer;
industrial authority means—
(a)
SAET; or
(b)
a commission, court, board, tribunal, or body having authority under the law of the Commonwealth or another State to exercise powers of conciliation, determination or arbitration in industrial matters; or
(c)
a body declared by regulation to be an industrial authority for the purposes of this definition;
industrial dispute means a dispute, or a threatened, impending or probable dispute, about an industrial matter (and an industrial dispute does not come to an end only because the parties, or some of them, cease to be in the relationship of employer and employee);
industrial instrument means—
(a)
an award or enterprise agreement under this Act; or
(b)
a fair work instrument under the Commonwealth Act; or
(c)
an instrument (but not an Australian workplace agreement) given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;
industrial matter means a matter affecting or relating to the rights, privileges or duties of an employer or employers (including a prospective employer or prospective employers) or an employee or employees (including a prospective employee or prospective employees), or the work to be done in employment, including, for example—
(a)
the wages, allowances or remuneration of employees or prospective employees in an industry, or the piece-work, contract or other prices paid or to be paid for the employment, including any loading or amount that may be included in wages, allowances, remuneration or prices as compensation for lost time and the wages, allowances or remuneration to be paid for work done during overtime or on holidays, or for other special work, and also the question whether piece-work will be allowed in an industry;
(b)
the hours of employment in an industry, including the lengths of time to be worked, and the quantum of work or service to be done, to entitle employees to any given wages, allowances, remuneration or prices, and what times are to be regarded as overtime;
(c)
the age, qualification or status of employees, and the manner, terms and conditions of employment;
(d)
the relationship between an employer and an apprentice (and any matter relating to employment arising between an employer and an apprentice);
(e)
the employment of juniors and apprentices in an industry (including the number or proportion that may be employed);
(f)
the employment of any person, or of any class of persons, in addition to those referred to above, in an industry;
(g)
the refusal or neglect, without reasonable cause or excuse, of any person bound by an award, order or enterprise agreement to offer or accept employment, or to continue to be employed on the terms of the award, order or agreement;
(h)
any established or allegedly established custom or usage of an industry, either generally or in a particular locality;
(i)
the monetary value of allowances granted to or enjoyed by employees;
(j)
the dismissal of an employee by an employer;
(k)
a demarcation dispute;
(ka)
any matter affecting or relating to the performance of work by outworkers, including—
(i)
the giving out of work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker;
(ii)
the regulation of any person who gives out work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker;
(iii)
the creation of 1 or more contracts (including a series of contracts) dealing with the performance of work by outworkers;
(iv)
the terms or conditions under which work is performed by outworkers;
(v)
the protection of outworkers in any other respect;
(l)
the performance of work nude or partially nude, or in transparent clothing;
(m)
a matter classified as an industrial matter by regulation;
(n)
all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole;
industry means a trade, business or occupation in which employees are employed;
inspector—see section 219A;
junior means an employee under the age of 21 years (but not an apprentice);
legal practitioner means a person admitted to practise the profession of the law in this State;
order includes direction;
organisation means an organisation registered under the Commonwealth (Registered Organisations) Act;
outworker—see section 5;
peak entity means—
(a)
the Minister; and
(b)
the United Trades and Labor Council; and
(c)
the South Australian Employers' Chamber of Commerce and Industry Incorporated; and
(e)
any other body brought within the ambit of this definition by the regulations;
place includes—
(a)
a building or structure; and
(b)
a vehicle; and
(c)
a ship or vessel;
President means the President of SAET;
public employee means—
(a)
a public sector employee, within the meaning of the Public Sector Act 2009, employed under, or subject to, that Act; or
(b)
any other person employed for salary or wages in the service of the State;
registered agent means a person who is entitled to represent a party in proceedings before SAET by registration as an agent under this Act (See Chapter 2 Part 3);
registered association means an association (which may include an organisation or branch) registered under Chapter 4 (Associations);
Registrar means the Registrar or Deputy Registrar of SAET;
remuneration means—
(a)
wages or salary; or
(b)
payment to or for the benefit of an employee in the nature of piece-work rates, penalty rates, shift premiums, overtime or special work rates; or
(c)
allowances;
rules means the rules of SAET;
SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014;
single business means—
(a)
a business carried on by a single employer; or
(b)
a business carried on by two or more employers as a joint venture or common enterprise; or
(c)
a single project or undertaking; or
(d)
activities carried on by—
(i)
the State; or
(ii)
a body, association, office or other entity established for a public purpose by or under a law of the State; or
(iii)
another body in which the State has a controlling interest;
spouse—a person is the spouse of another if they are legally married;
State includes a Territory of the Commonwealth;
taxi means a vehicle—
(a)
licensed or exempted from the requirement to be licensed under Part 6 (Taxis) of the Passenger Transport Act 1994; and
(b)
with seating accommodation for not more than 12 passengers; and
(c)
used predominantly for the transport of passengers rather than the transport of goods or other freight;
Termination of Employment Convention means the Convention concerning Termination of Employment at the Initiative of the Employer set out in Schedule 7;
workplace means any place where an employee works and includes any place where such a person goes while at work but does not include any premises of an employer used for habitation by the employer and his or her household other than any part of such premises where an outworker works.
(3)
A group of employees cannot be defined by reference to membership of a particular association.
(4)
If a monetary sum is followed by the word (indexed), the amount is to be adjusted on 1 January of each year by multiplying the stated amount by a proportion obtained by dividing State average full-time adult total earnings (seasonally adjusted) as at 30 June in the previous year by State average full-time adult total earnings (seasonally adjusted) as at 30 June in the year in which the stated amount was fixed by Parliament.

5Outworkers

(1)
A person is an outworker if—
(a)
the person is engaged, for the purposes of the trade or business of another (the employer) to—
(i)
work on, process, clean or pack articles or materials; or
(ii)
carry out clerical work; or
(b)
a body corporate of which the person is an officer or employee and for which the person personally performs all or a substantial part of the work undertaken by the body corporate is engaged, for the purposes of the trade or business of another (the employer) to—
(i)
work on, process, clean or pack articles or materials; or
(ii)
carry out clerical work,
and the work is carried out in or about a private residence or other premises that would not conventionally be regarded as being a place where business or commercial activities are carried out.
(2)
A person is also an outworker if—
(a)
the person is engaged, for the purposes of the trade or business of another (the employer) to—
(i)
negotiate or arrange for the performance of work by outworkers; or
(ii)
distribute work to, or collect work from, outworkers; or
(b)
a body corporate of which the person is an officer or employee and for which the person personally performs all or a substantial part of the work undertaken by the body corporate is engaged, for the purposes of the trade or business of another (the employer) to—
(i)
negotiate or arrange for the performance of work by outworkers;
(ii)
distribute work to, or collect work from, other outworkers.
(3)
To avoid doubt, a person who is engaged by another person to clean the private residence of a third person is not an outworker under this section.
(4)
Apart from this Chapter, the other provisions of this Act apply to outworkers if (and only if)—
(a)
a provision of an award or enterprise agreement relates to outworkers; or
(b)
a regulation made for the purposes of this subsection extends the application of this Act to, or in relation to, outworkers,
and then, in such a case, the Act will apply in all respects to the relevant outworkers.
(5)
A regulation made for the purposes of subsection (4) cannot come into operation until the time has passed during which the regulation may be disallowed by resolution of either House of Parliament.

6Application of Act to employment

This Act does not apply to—
(a)
employment by the employee's spouse, domestic partner or parent; or
(b)
employment excluded by regulation from the ambit of this Act.

Chapter 2—Jurisdiction of SAETspecial provisionsPart 1Conferral of jurisdiction, declarations and orders7Jurisdiction of SAET

SAET has the jurisdiction conferred by this Act—
(a)
to adjudicate on rights and liabilities arising out of employment; and
(b)
in relation to industrial matters—
(i)
to approve enterprise agreements regulating remuneration and other industrial matters; and
(ii)
to make awards regulating remuneration and other industrial matters; and
(iii)
to hear, determine and regulate any matter or thing arising from or relating to an industrial matter; and
(c)
to settle and resolve industrial disputes.

8Jurisdiction to interpret awards and enterprise agreements

(1)
SAET has jurisdiction to interpret an award or enterprise agreement.
(2)
In exercising its interpretative jurisdiction—
1. (a)
  SAET should have regard to any evidence that is reasonably available to it of what the author of the relevant part of the award or enterprise agreement, and the parties to the award or enterprise agreement, intended it to mean when it was drafted; and
2. (b)
  if a common intention is ascertainable—give effect to that intention.

9Jurisdiction to decide monetary claims under industrial laws or instruments

(1)
SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine monetary claims of the following kinds:
1. (a)
  a claim for a sum due to an employee or former employee from an employer or former employer under—
  1. (i)
    the Fair Work Act 1994, an award, enterprise agreement or contract of employment; or
  2. (ii)
    the Commonwealth Act, or an award or agreement under the Commonwealth Act;
2. (b)
  a claim for a sum due to an employer or former employer from an employee or former employee under—
  1. (i)
    the Fair Work Act 1994, an award, enterprise agreement or contract of employment; or
  2. (ii)
    the Commonwealth Act, or an award or agreement under the Commonwealth Act;
3. (c)
  a claim for compensation to an employee or former employee from an employer or former employer for failure to make contributions (before or after the commencement of this Act) for the benefit of the claimant to a superannuation fund;
4. (d)
  a claim for payment of a benefit against the trustee of a superannuation fund to which contributions have been made.
(2)
In this section—

Commonwealth Act means the Fair Work Act 2009 of the Commonwealth.

10Jurisdiction to hear and determine questions arising under contracts of employment

(1)
SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine any question, action or claim founded on, or otherwise arising out of or in relation to, a contract of employment (including a contract of employment that has been terminated) including (but not limited to)—
1. (a)
  a claim for damages with respect to a breach of a contract of employment (including a claim where the employee under a contract of employment has been dismissed); and
2. (b)
  a claim to recover a liquidated sum or debt under a contract of employment; and
3. (c)
  an action for an order for specific performance; and
4. (d)
  an action for the grant of an injunction.
(2)
Subject to subsection (4), the South Australian Employment Court may, in exercising its jurisdiction under this section—
1. (a)
  make an order for specific performance against an employer or an employee under a contract of employment;
2. (b)
  grant an injunction, or give equivalent relief, against an employer or an employee under a contract of employment even if to do so would effectively require specific performance of a contractual term against the employer or employee;
3. (c)
  award damages against a party to a contract of employment on account of the manner of a breach of the contract (including where the breach constitutes or gives rise to a termination of the contract);
4. (d)
  award damages and also provide a remedy by way of an order for specific performance or an injunction.
(3)
Subject to subsection (4), if the South Australian Employment Court is satisfied that it would best serve the interests of justice in a particular case, the Court should provide for specific performance or an injunction as a remedy—
1. (a)
  even if such a remedy is in addition to, or in substitution for, an award of damages; and
2. (b)
  even if, but for this subsection, only damages would be awarded.
(4)
The South Australian Employment Court—
1. (a)
  should not, except in exceptional circumstances, in exercising its jurisdiction under this section—
  1. (i)
    make an order for specific performance against a natural person; or
  2. (ii)
    grant an injunction, or give equivalent relief, against a natural person under a contract of employment,
if to do so would—
1. (iii)
  effectively require an employer to reorganise, to a material extent, his or her undertaking; or
2. (iv)
  effectively prevent an employee from obtaining other employment; and
1. (b)
  in considering the interests of justice under subsection (3), should take into account—
  1. (i)
    the length of time that elapsed between the time when the cause of action in the proceedings arose and the time when the proceedings were commenced; and
  2. (ii)
    the extent to which there no longer exists mutual confidence in the employment relationship between the employer and the employee; and
  3. (iii)
    the extent to which there is evidence that compliance with an order for specific performance or an injunction would be impracticable or cause undue hardship, including, in the case of an employer, by taking into account the size of the employer's undertaking and the circumstances of the particular employment situation,
and may take into account such other matters as the Court thinks fit.
(5)
Subsection (4)(a)(iv) does not apply so as to limit the orders that the South Australian Employment Court may make in relation to a restraint of trade clause in a contract of employment that is enforceable at common law.
(6)
The costs in any proceedings under this section will be awarded on the same basis (and in accordance with the same rules) as costs would be awarded in a corresponding civil action or claim brought in the District Court or the Magistrates Court (as the case may be).
(7)
This section does not limit the operation of section 9.
(8)
This section does not limit the operation of the Return to Work Act 2014.
(9)
In this section—

contract of employment means a contract recognised at common law as a contract of employment.

11Declaratory jurisdiction

SAET has jurisdiction to make declaratory judgments conferred by other provisions of this Act.

12Orders to remedy or restrain contraventions

(1)
SAET has jurisdiction to order a person who contravenes or fails to comply with a provision of this Act, an award or an enterprise agreement—
(a)
to take steps, specified in the order, within a time specified in the order, to remedy the contravention or non‑compliance; or
(b)
to refrain from further contravention of, or non‑compliance with, the provision.
(2)
If there are reasonable grounds to believe that a person is about to contravene or to fail to comply with a provision of this Act, an award or enterprise agreement, SAET has jurisdiction to order the person to refrain from the contravention or non‑compliance.

13Advisory jurisdiction

(1)
SAET has jurisdiction to inquire into, and report and make recommendations to the Minister on, a question related to an industrial or other matter that is referred to SAET for inquiry by the Minister.
(2)
The jurisdiction conferred on SAET under subsection (1)—
(a)
is not to be assigned to the South Australian Employment Court; and
(b)
does not extend to inquiring into the South Australian Employment Court or matters that may be brought before the Court or that are being dealt with, or have been dealt with, by the Court.

Part 2Processes associated with industrial matters and disputes14Amendment or rectification of proceedings

(1)
SAET may—
(a)
allow the amendment of an application, notice, submission, report or other document associated with proceedings; or
(b)
correct an error, defect or irregularity (even though the error, defect or irregularity may be such as to render the proceedings void).
(2)
If SAET exercises its power to correct an error, defect or irregularity under subsection (1)(b), the proceedings are as valid and effective as if the error, defect or irregularity had never happened.

15Power to re-open questions

SAET may re‑open a question previously decided and amend or quash an earlier determination.

16General power of waiver

(1)
SAET may, on conditions it considers appropriate, waive compliance with a procedural requirement of this Act or the rules.
(2)
SAET may punish non‑compliance with a procedural direction by striking out proceedings, or any defence, in whole or in part.

17Applications to SAET

(1)
For the purposes of the South Australian Employment Tribunal Act 2014, proceedings before SAET under this Act are commenced by an application made to SAET—
(a)
if, in the Minister's opinion, it is in the public interest that the matter be dealt with by SAET—by the Minister; or
(b)
by an employer, or group of employers; or
(c)
by an employee, or group of employees; or
(d)
by a registered association of employers; or
(e)
by a registered association of employees; or
(f)
by the United Trades and Labor Council.
(2)
A natural person may bring an application as of right if the application is authorised under some other provision of this Act but otherwise must establish to the satisfaction of SAET—
(a)
that the claim arises out of a genuine industrial grievance; and
(b)
that there is no other impartial grievance resolution process that is (or has been) reasonably available to the person.

18Advertisement of applications

(1)
Before SAET deals with the subject matter of an application, SAET must satisfy itself that reasonable notice of the substance of the application and the day and time it is to be heard has been given.
(2)
The substance of an application and the day and time it is to be heard must be—
(a)
advertised in the manner prescribed in the rules of SAET; or
(b)
communicated to all persons who are likely to be affected by a determination in the proceedings or their representatives.

19Provisions of award etc relevant to how SAET intervenes in dispute

If the parties to an industrial dispute are bound by an award or an enterprise agreement that provides procedures for preventing or settling industrial disputes between them, SAET must, in considering whether, when or how it will exercise its powers in relation to the industrial dispute, have regard to—
(a)
the procedures contemplated by the parties for preventing or settling industrial disputes; and
(b)
the extent the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or non‑compliance with the procedures.

20Voluntary conferences

(1)
SAET may, if it appears desirable, call a voluntary conference of the parties involved in an industrial dispute.
(2)
A person who attends a voluntary conference called under this section is, on application to the Registrar, entitled to be paid an amount certified by the person presiding at the conference to be reasonable, having regard to the conduct of the person both before and at the conference and to the expenses and loss of time incurred by the person.
(3)
The amount certified under subsection (2) will be paid out of money appropriated by Parliament for the purpose.

21Compulsory conference

(1)
SAET may, if it appears desirable, call a compulsory conference of the parties involved in an industrial dispute.
(2)
SAET may summon the parties to the dispute and any other person who may be able to assist in resolving the dispute to appear at the conference.
(3)
A compulsory conference may, at the discretion of SAET, be held in public or in private or partly in public and partly in private.
(4)
A person who fails to attend a compulsory conference as required by SAET's summons or who, having attended, fails to participate in the conference as required by the person presiding at the conference commits a contempt of SAET.
(5)
A person who attends a conference as directed by the person presiding at the conference will, on application to the Registrar, be entitled to be paid an amount certified by the person presiding at the conference to be reasonable, having regard to the conduct of the person both before and at the conference and to the expenses and loss of time incurred by the person.
(6)
The amount certified under subsection (5) will be paid out of money appropriated by Parliament for the purpose.

22Reference of questions for determination

(1)
The person presiding at a compulsory conference may, after giving reasonable notice to the persons attending at the conference, refer the subject matter of the conference for determination by SAET (which may be constituted of the person who presided at the conference under this Part).
(2)
A matter may be referred for determination by SAET under subsection (1) orally and without formality.
(3)
An order of SAET on a reference under subsection (1)—
(a)
is binding only on persons represented before SAET or summoned to appear at the conference; and
(b)
if the parties to the industrial dispute are bound by an enterprise agreement, may not affect the terms of the agreement.

23Experience gained in settlement of dispute

After the settlement of an industrial dispute, SAET may invite the parties to the dispute to take part in discussions with a view to—
(a)
improving the process of conciliation and arbitration in accordance with the objects of this Act; and
(b)
encouraging the parties to agree on procedures for preventing or settling further disputes by discussion and agreement; and
(c)
deciding whether it would be appropriate for the parties to regulate their relationship by making an enterprise agreement or amending the terms of an existing enterprise agreement to provide more adequate means of dispute prevention or resolution.

24Costs generally

(1)
SAET may only, in the exercise of jurisdiction under this Act, make an order for costs where specifically authorised to do so under this Act.
(2)
Subsection (1) does not apply in relation to proceedings that constitute an appeal under the South Australian Employment Tribunal Act 2014 in respect of the exercise of jurisdiction under this Act.

Part 3Representation25Representation

(1)
In addition to section 51(1)(a) and (b) of the South Australian Employment Tribunal Act 2014, a party to proceedings before SAET under this Act is entitled, without leave, to be represented by—
(a)
in the case of a party that is not otherwise represented by counsel in accordance with section 51(1)(b) of the South Australian Employment Tribunal Act 2014—a registered agent; or
(b)
an officer or employee of an industrial association acting in the course of employment with that industrial association.
(2)
However, in the case of a voluntary or compulsory conference, a party or intervener may, subject to subsections (3) and (4), only be represented by a legal practitioner or registered agent with the permission of the person presiding at the conference.
(3)
Permission is not required under subsection (2) if—
(a)
the legal practitioner or registered agent is an officer or employee of—
(i)
an employer who is a party to the proceedings; or
(ii)
the United Trades and Labor Council; or
(iii)
a registered association of which a member is a party to the relevant industrial dispute; or
(b)
the legal practitioner is acting on behalf of the Minister for the purposes of the conference; or
(c)
in the case of a compulsory conference—the matter has already been referred to SAET.
(4)
Permission will only be granted under subsection (2) if (and only if)—
(a)
all of the parties consent to the application for permission; or
(b)
another party is represented by a legal practitioner or registered agent; or
(c)
another party is a legal practitioner or is legally qualified; or
(d)
the person presiding at the conference is satisfied—
(i)
the party or intervener would, if permission were not granted, be unfairly disadvantaged; or
(ii)
permission is appropriate in the circumstances.
(5)
The costs incurred by a party for representation at a voluntary or compulsory conference by a legal practitioner or registered agent acting under the preceding subsections will not be included in any order for costs.

26Registered agents

(1)
The Registrar must maintain a register of registered agents.
(2)
A person who applies for registration or renewal of registration is entitled to registration or renewal of registration (as the case requires) if the person—
(a)
has the qualifications and experience required by regulation for registration or the renewal of registration (as the case requires); and
(b)
satisfies the Registrar as to any other matter or requirement prescribed by the regulations; and
(c)
pays the relevant fee fixed by regulation.
(3)
A person who is not entitled to practise as a legal practitioner because his or her name has been struck off the roll of legal practitioners in this State or elsewhere or because of other disciplinary action taken against him or her is not eligible to become or remain registered as an agent.
(4)
Registration will be granted or renewed for a period (not exceeding 2 years) determined by the Registrar.
(5)
The Governor may, by regulation, establish a code of conduct to be observed by registered agents.
(6)
The code of conduct may (for example) deal with the following matters:
(a)
it may regulate the fees to be charged by registered agents;
(b)
it may require proper disclosure of fees before the registered agent undertakes work for a client;
(c)
it may limit the extent to which a registered agent may act on the instructions of an unregistered association.

27Inquiries into conduct of registered agents or other representative

(1)
The Registrar may inquire into the conduct of a registered agent or other representative in order to determine whether proper grounds for disciplinary action exist.
(2)
Proper grounds for disciplinary action exist if—
1. (a)
  in the case of a registered agent—
  1. (i)
    the agent commits a breach of the code of conduct; or
  2. (ii)
    the agent is not a fit and proper person to remain registered as an agent; or
2. (b)
  in the case of another representative—the representative's conduct falls short of the standards that should reasonably be expected of a person undertaking the representation of another in proceedings before SAET.
(3)
If, on inquiry, the Registrar finds that proper grounds for disciplinary action exist, the Registrar may—
1. (a)
  issue a letter of admonition; or
2. (b)
  if the representative is a legal practitioner—refer the matter to the Legal Profession Conduct Commissioner for investigation; or
3. (c)
  if the representative is a registered agent—
  1. (i)
    suspend the agent's registration for a period of up to 6 months; or
  2. (ii)
    cancel the agent's registration.
(4)
An appeal lies to SAET against a decision of the Registrar under subsection (3)(c).
(5)
An appeal must be instituted in accordance with the rules of SAET.

Part 4—Concurrent appointmentsother industrial authorities28Concurrent appointments

(1)
A member of SAET may, with the Minister's approval, be appointed also as a member of an industrial authority under the law of the Commonwealth or another State.
(2)
If the Minister revokes an approval under subsection (1), the member must resign from office as a member of the other industrial authority.
(3)
A member of an industrial authority constituted under the law of the Commonwealth or another State may be appointed also as a member of SAET (to hold a position within SAET determined by the President after consultation with the Minister) and, if such an appointment is made, this Act applies with the following qualifications:
(a)
the appointment terminates if the member ceases for any reason to hold office as a member of the relevant industrial authority;
(b)
the member is not entitled to be remunerated as a member of SAET but is entitled, in circumstances determined by the Governor, to allowances for expenses at rates fixed by the Governor.
(4)
If a member holds concurrent appointments, then—
(a)
if the member was appointed first to SAET and subsequently to the other industrial authority, the extent the member performs the duties of a member of that other industrial authority will be determined by agreement between the President and the head of that other industrial authority; or
(b)
if the member was appointed first to the other industrial authority and subsequently to SAET, the extent the member performs the duties of a member of SAET will be determined by agreement between the President and the head of that other industrial authority.

29Powers of member holding concurrent appointments

A member who holds concurrent appointments under this Part may, in an appropriate case, simultaneously exercise powers deriving from both or all appointments.

Part 5Special provisions relating to monetary claims30Interpretation

In this Part—
monetary claim means a claim under section 9 or a claim for a sum or a debt under section 10.

31Limitation of action

A monetary claim must be made within 6 years after the sum claimed became payable, but no time limitation applies to a claim for the non-payment of superannuation contributions.

32Who may make a claim

(1)
A monetary claim may be made on behalf of the claimant by an association.
(2)
A monetary claim may be made by a minor as if the minor had attained the age of majority.
(3)
A claim relating to money that should have been paid to or for the benefit of a person who is now dead may be made by the personal representative of the deceased person or a beneficiary of the deceased person's estate.

33Simultaneous proceedings not permitted

The South Australian Employment Court may not hear a monetary claim if it appears that proceedings based on the same claim have begun in another court and the proceedings have not been withdrawn or struck out.

34Award to include interest

(1)
Unless there is good reason for not doing so, the South Australian Employment Court must, on the application of a person to whom it makes an award on a monetary claim, include in the judgment an award of interest or a lump sum instead of interest.
(2)
However—
(a)
the South Australian Employment Court may not authorise the award of interest on interest; and
(b)
if interest is payable because of an antecedent right, the award may reflect the antecedent right but may not create a right to additional interest; and
(c)
the South Australian Employment Court may not award interest on an amount for which judgment is given by consent except by consent of the parties.

35Monetary judgment

(1)
The South Australian Employment Court may authorise or direct that a monetary amount awarded be paid in instalments.

(2)
The South Australian Employment Court may direct that compensation for non-payment of contributions that should have been, but were not, made to a superannuation fund be paid to a superannuation fund on the claimant's behalf.

36Costs

(1)
The South Australian Employment Court may only award costs in proceedings based on a monetary claim as follows—
(a)
the Court may award costs on a claim for non-payment of superannuation contributions to cover reasonable expenses incurred by the claimant to establish the present value of the loss; and
(b)
the Court may award costs on an appeal.
(2)
In connection with the operation of subsection (1)(b)—
(a)
costs need not be awarded so as to follow the event; and
(b)
the Court, in considering whether to award costs and, if so, the extent of the award, must take into account—
(i)
the conduct of the parties; and
(ii)
the relevant positions and circumstances of the appellant and the respondent (and of the successful and unsuccessful parties); and
(iii)
the nature of the question in dispute and whether the proceedings have a broader impact than simply inter-parte proceedings between individual parties,
and may take into account such other matters as the Court thinks fit to ensure a just outcome in the circumstances of the case.
(3)
This section does not apply in relation to a claim under section 10.

Chapter 3EmploymentPart 1General conditions of employmentDivision 1Basic contractual features66Basis of contract of employment

A contract of employment may be for a fixed term, or on a monthly, fortnightly, weekly, daily, hourly or other basis.

67Accrual of wages

(1)
Wages accrue under a contract of employment from week to week.
(2)
However—
(a)
if an employee is employed on an hourly basis, wages accrue from hour to hour; and
(b)
if an employee is employed on a daily basis, wages accrue from day to day; and
(c)
if a person is employed on neither an hourly nor a daily basis, but the period of employment is less than a week, wages accrue at the end of the period of employment.

68Form of payment to employee

(1)
If an employee does work for which the remuneration is fixed by an award or enterprise agreement, the employer must pay the employee in full, and without deduction, the remuneration so fixed.
(2)
The payment must be made—
(a)
in cash; or
(b)
if authorised in writing by the employee or in an award or enterprise agreement by an employee association whose membership includes the employee or employees who do the same kind of work—
(i)
by cheque (which must be duly met on presentation at the ADI on which it is drawn) payable to the employee; or
(ii)
by postal order or money order payable to the employee; or
(iii)
by payment into a specified account with a financial institution.
(3)
However, the employer may deduct from the remuneration—
(a)
an amount the employer is authorised, in writing, by the employee to deduct and pay on behalf of the employee; and
(b)
an amount the employer is authorised to deduct and pay on behalf of the employee under an award or enterprise agreement; and
(c)
an amount the employer is authorised or required to deduct by order of a court, or under a law of the State or the Commonwealth.
(4)
An employee may, by giving written notice to the employer, withdraw an authorisation under this section.
(5)
Despite the other provisions of this section, remuneration may be paid by the Crown to an employee by cheque or by payment into an account with a financial institution specified by the employee, but, if payment is by cheque, there must be no deduction from the amount payable because the payment is made by cheque.
(6)
An employer who fails to comply with a requirement under subsection (2) or (5) is guilty of an offence.
Maximum penalty: $3 250.
Expiation fee: $325.

Division 2Contracts to be construed subject to relevant minimum standards69Remuneration

(1)
A contract of employment is to be construed as if it provided for remuneration in accordance with the minimum standard for remuneration in force under this section unless—
(a)
a rate that is more favourable to the employee is fixed by the contract of employment; or
(b)
the rate of remuneration is fixed in accordance with an award or enterprise agreement.
(2)
A rate of remuneration fixed by a contract of employment, or an award or enterprise agreement, must be consistent with the Equal Remuneration Convention.
(3)
The minimum standard for remuneration in force under this section is a standard established by SAET in accordance with the following provisions:
(a)
SAET must establish a minimum standard for remuneration at least once in every year;
(b)
proceedings to establish the standard may be commenced by application by a peak entity, or by SAET acting on its own initiative;
(c)
a minimum standard for remuneration must—
(i)
fix a minimum weekly wage for an adult working ordinary hours; and
(ii)
fix a minimum hourly rate for an adult working on a casual basis; and
(iii)
fix age-based gradations for juniors having regard to existing award conditions; and
(iv)
cover such other incidental or related matters as should, in the opinion of SAET, be dealt with in the minimum standard.

70Sick leave/carer's leave

(1)
A contract of employment is to be construed as if it provided for sick leave/carer's leave in terms of the minimum standard for sick leave/carer's leave in force under this section unless—
(a)
the provisions of the contract are more favourable to the employee; or
(b)
the provisions of the contract are in accordance with an award or enterprise agreement.
(2)
The minimum standard for sick leave/carer's leave in force under this section is—
(a)
the standard set out in Schedule 3; or
(b)
a standard substituted for that standard on review by SAET under subsection (3).
(3)
SAET may, on application by a peak entity—
(a)
review the minimum standard for sick leave/carer's leave in force under this section; and
(b)
if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard.
(4)
An application under subsection (3) must not be made within 2 years after the completion of a previous review of the standard by SAET under this section.

70ABereavement leave

(1)
A contract of employment is to be construed as if it provided for bereavement leave in terms of the minimum standard for bereavement leave in force under this section unless—
(a)
the provisions of the contract are more favourable to the employee; or
(b)
the provisions of the contract are in accordance with an award or enterprise agreement.
(2)
The minimum standard for bereavement leave in force under this section is—
(a)
the standard set out in Schedule 3A; or
(b)
a standard substituted for that standard on review by SAET under subsection (3).
(3)
SAET may, on application by a peak entity—
(a)
review the minimum standard for bereavement leave in force under this section; and
(b)
if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard.
(4)
An application under subsection (3) must not be made—
(a)
within 2 years after the commencement of this section; or
(b)
within 2 years after the completion of a previous review of the standard by SAET under this section.

70BFamily and domestic violence leave

(1)
A contract of employment is to be construed as if it provided for family and domestic violence leave in terms of the minimum standard for family and domestic violence leave in force under this section unless the provisions of the contract are more favourable to the employee.
(2)
The minimum standard for family and domestic violence leave in force under this section is—
(a)
the standard set out in Schedule 3B; or
(b)
a standard substituted for that standard on review by SAET under subsection (3).
(3)
SAET may, on application by a peak entity—
(a)
review the minimum standard for family and domestic violence leave in force under this section; and
(b)
if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard.
(4)
An application under subsection (3) must not be made—
(a)
within 2 years after the commencement of this section; or
(b)
within 2 years after the completion of a previous review of the standard by SAET under this section.

71Annual leave

(1)
A contract of employment is to be construed as if it provided for annual leave in terms of the minimum standard for annual leave in force under this section unless—
(a)
the provisions of the contract are more favourable to the employee; or
(b)
the provisions of the contract are in accordance with an award or enterprise agreement.
(2)
The minimum standard for annual leave in force under this section is—
(a)
the standard set out in Schedule 4; or
(b)
a standard substituted for that standard on review by SAET under subsection (3).
(3)
SAET may, on application by a peak entity—
(a)
review the minimum standard for annual leave in force under this section; and
(b)
if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard.
(4)
An application under subsection (3) must not be made within 2 years after the completion of a previous review of the minimum standard by SAET under this section.

72Parental leave

(1)
A contract of employment is to be construed as if it provided for maternity, paternity and adoption leave (and associated part-time work) in terms of the minimum standard for parental leave in force under this section unless—
(a)
the provisions of the contract are more favourable to the employee; or
(b)
the provisions of the contract are in accordance with an award or enterprise agreement.
(2)
The minimum standard in force under this section is—
(a)
the standard set out in Schedule 5; or
(b)
a standard substituted for that standard on review by SAET under subsection (3).
(3)
SAET may, on application by a peak entity—
(a)
review the minimum standard for parental leave in force under this section; and
(b)
if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard.
(4)
An application under subsection (3) must not be made within 2 years after the completion of a previous review of the minimum standard by SAET under this section.

72AMinimum standards – additional matters

(1)
SAET may, on application by a peak entity, establish a standard relating to paid parental leave that, subject to this section, is also to apply as a minimum standard to all employers and employees.
(2)
A contract of employment is to be construed as if it incorporated any minimum standard established under subsection (1) unless—
(a)
the provisions of the contract are more favourable to the employee; or
(b)
the provisions of the contract are in accordance with an award or enterprise agreement.
(3)
SAET may, when substituting or establishing a standard under this Division, exclude an award from the ambit of the standard (or a part of the standard).
(4)
Subject to subsections (5) and (6), a standard substituted or established by SAET under this Division prevails over a preceding award to the extent that the standard is more favourable to employees than any standard prescribed by the particular award.
(5)
A party to an award may, within 28 days after a standard is set by SAET under this Division, apply to SAET to have the award excluded from the ambit of the standard (or a part of the standard).
(6)
SAET may grant an application under subsection (5) if (and only if) SAET is satisfied that there are cogent reasons for doing so taking into account matters or conditions that specifically apply or prevail in the relevant industry or industries.
(7)
SAET may grant an application under subsection (5) on such conditions as SAET thinks fit.
(8)
SAET, in acting under this Division—
(a)
must ensure that each peak entity is notified of the relevant proceedings and allowed a reasonable opportunity to make representations; and
(b)
may (as it thinks fit) receive and take into account oral or written representations (or both) from any other person or persons who have, in the opinion of SAET, a proper interest in the matter.

72BSpecial provision relating to severance payments

(1)
SAET must establish a minimum standard for severance payments on termination of employment for redundancy that will apply in the manner contemplated by subsection (5).
(2)
SAET may thereafter, on application by a peak entity—
1. (a)
  review the minimum standard for severance payments on termination of employment for redundancy in force under this section; and
2. (b)
  if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard.
(3)
An application under subsection (2) must not be made within 2 years after the completion of previous proceedings to establish or review the standard by SAET.
(4)
SAET, in acting under this section—
1. (a)
  must ensure that each peak entity is notified of the relevant proceedings and allowed a reasonable opportunity to make representations; and
2. (b)
  may (as it thinks fit) receive and take into account oral or written representations (or both) from any other person or persons who have, in the opinion of SAET, a proper interest in the matter.
(5)
SAET may, on application by—
1. (a)
  an employee (or a group of employees); or
2. (b)
  a registered association acting on behalf of an employee or a group of employees,

make an order applying the minimum standard for severance payments in such manner as SAET thinks fit.

(6)
An application may be made under subsection (5) if (and only if)—
1. (a)
  —
  1. (i)
    the relevant employee or employees have been given notice of a pending redundancy or redundancies; or
  2. (ii)
    the employment of the relevant employee or employees has been terminated for redundancy; and
2. (b)
  the application is made within 21 days after the notice is given or the employment is terminated.
(7)
An order under subsection (5)—
1. (a)
  need not be made by SAET; and
2. (b)
  may provide for the variation of the minimum standard for severance payments in the circumstances of the particular case; and
3. (c)
  may be made on such conditions as SAET thinks fit.
(8)
SAET must only act under subsection (7)(b) if satisfied that there are cogent reasons for doing so.

Part 2Regulation of industrial matters by enterprise agreements73Objects of this Part

The objects of this Part are—
(a)
to encourage and facilitate the making of agreements governing remuneration, conditions of employment and other industrial matters at the enterprise or workplace level; and
(b)
to provide a framework for fair and effective negotiation and bargaining between employers and employees with a view to the making of such agreements and to provide for the participation of associations in the process of negotiation and bargaining; and
(c)
to ensure that award remuneration and conditions of employment operate as a safety net underpinning the negotiated agreements at the enterprise or workplace level; and
(d)
to provide for improved flexibility in conditions of employment at the enterprise and workplace level with consequent increases in efficiency and productivity.

74Nature of enterprise agreement

An enterprise agreement may be made about remuneration and other industrial matters.

75Who may make enterprise agreement

(1)
An enterprise agreement may be made between—
(a)
1 or more employers;
(b)
a group of employees.
(2)
A registered association may enter into an enterprise agreement on behalf of—
(a)
any member or members of the association who have given the association an authorisation to negotiate the enterprise agreement on their behalf; or
(b)
any group of employees (whether or not members of the association) if the association is authorised, after notice has been given as required by the regulations, by a majority of the employees constituting the group to negotiate the enterprise agreement on behalf of the group.
(3)
A member of an association is taken to have given the association an authorisation for the purposes of subsection (2) for as long as the member remains a member of the association unless the member, by written notice given to the association, withdraws the authorisation.
(4)
An authorisation given to an association by an employee who is not a member of the association—
(a)
cannot be given generally but must be specifically related to a particular proposal for an enterprise agreement; and
(b)
remains in force (subject to revocation by written notice given to the association) until the relevant enterprise agreement is rescinded or superseded.
(5)
If—
(a)
an employer proposes to have an enterprise agreement with a group of employees who are yet to be employed by the employer; and
(b)
the employees—
(i)
are of a class not currently, or formerly, employed by the employer or a related employer in South Australia; or
(ii)
are to be engaged in operations of a kind that are not currently, and have not been formerly, carried on by the employer or a related employer in South Australia,
the employer may enter, on a provisional basis, into an enterprise agreement binding on the employees who become members of the group (a provisional enterprise agreement) with a registered association of employees (or both).
(7)
A notice under subsection (6) must include details of the group of employees to which the agreement is to apply.
(9)
A person who becomes, or ceases to be, a member of a group of employees defined in an enterprise agreement as the group bound by the agreement, becomes or ceases to be bound by the enterprise agreement (without further formality).

76Negotiation of enterprise agreement

(1)
An employer must, before beginning negotiations on the terms of an enterprise agreement give the employees who may be bound by the agreement at least 14 days' notice, in accordance with procedures prescribed by regulation, that negotiations are about to begin (but notice is not required if the agreement is negotiated to settle an industrial dispute, or SAET determines that there is good reason in the circumstances of the case to exempt the employer from this requirement).
(2)
The employer must, before beginning negotiations on the terms of an enterprise agreement, inform the employees of their right to representation in the negotiation, and proceedings for approval, of the agreement and, in particular, that an employee may be represented by an agent of an employee's choice, or a registered association of employees.
(3)
If an employer is aware that an employee is a member of a registered association, the employer must, before beginning negotiations on the terms of an enterprise agreement, take reasonable steps to inform the association that the negotiations are about to begin.
(4)
An employer who negotiates an enterprise agreement with employees who are subject to an award must ensure that the employees have reasonable access to the award.
(5)
A person involved in negotiations for an enterprise agreement must comply with procedures and formalities applicable to that person that are required by regulation.
(5a)
If an employee involved in negotiations for an enterprise agreement suffers from an intellectual disability that prevents the employee from having a proper understanding of the negotiations, then any of the following may negotiate on the employee's behalf and take any steps that the employee might take if he or she did not suffer from the disability:
(a)
a person who is—
(i)
a guardian at law of the employee; or
(ii)
the donee of a power of attorney from the employee; or
(iii)
a substitute decision‑maker under an advance care directive (within the meaning of the Advance Care Directives Act 2013) given by the employee (being a substitute decision‑maker who is authorised to make decisions relating to the employee's employment); or
(b)
a person appointed to represent the employee's interests for the purposes of this Act by a person within the ambit of paragraph (a).
(6)
This section does not prevent employees or a registered association of employees from initiating negotiations on a proposed enterprise agreement, but in that case, the employer must, before entering into the negotiations, give the notice and information required by this section to ensure that the interests of all employees who may be affected by the proposed agreement are properly protected.

(7)
This section does not apply to negotiations on the terms of an enterprise agreement that is to be entered into on a provisional basis.

76ABest endeavours bargaining

(1)
The parties to the negotiations must use their best endeavours to resolve questions in issue between them by agreement.
(2)
In particular, the parties to the negotiations (or their duly authorised representatives)—
(a)
must meet at reasonable times, and at reasonable places, for the purpose of commencing and furthering the negotiations; and
(b)
must state and explain their position on the questions at issue to all other parties to the negotiations; and
(c)
must disclose relevant and necessary information; and
(d)
must act openly and honestly; and
(e)
must not alter or shift the ground of negotiation by capriciously adding matters for consideration or excluding matters from consideration; and
(f)
must adhere to agreed negotiation procedures; and
(g)
must adhere to agreed outcomes and commitments; and
(h)
if the parties are able to arrive at an agreed timetable for achieving agreement—must use their best endeavours to meet the timetable.
(3)
SAET may, on the application of a party to any negotiations, give directions to resolve any dispute as to the composition of the group of employees for negotiating purposes.
(4)
An employer cannot be required, as part of any negotiations under this Part, to produce any financial records relating to any business or undertaking of the employer.
(5)
SAET may, on the application of a party to the negotiations, take steps to resolve a matter by conciliation.
(6)
Nothing in a preceding subsection prevents a party to negotiations for an enterprise agreement deciding to withdraw from the negotiations entirely.

77Form and content of enterprise agreement

(1)
An enterprise agreement—
(a)
must be in writing; and
(b)
must—
(i)
specify the employer to be bound by the agreement; and
(ii)
define the group of employees to be bound by the agreement; and
(c)
must include procedures for preventing and settling industrial disputes between the employer and employees bound by the agreement; and
(d)
if a majority of at least two-thirds of the total number of employees to be covered by the agreement agree—may include a provision giving an association of employees that is able to represent the industrial interests of the employees' rights to represent the industrial interests of those employees to the exclusion of another association of employees1; and
(e)
must provide that sick leave is available, subject to limitations and conditions prescribed in the agreement, to an employee if the leave becomes necessary because of the sickness of a child, spouse, domestic partner, parent or grandparent (unless the agreement specifically excludes the extension of sick leave to such circumstances); and
(f)
must make provision for the renegotiation of the agreement at the end of its term; and
(g)
must be signed as required by regulation by or on behalf of the employer, and on behalf of the group of employees, to be bound by the agreement.
(2)
An enterprise agreement should be submitted to SAET for approval within 21 days after the agreement is signed by or on behalf of the persons who are to be bound by it.
Note—
1However, the provision must be consistent with section 116(1).

78Enterprise agreement has no force or effect without approval

An enterprise agreement has no force or effect unless approved by SAET.

79Approval of enterprise agreement

(1)
Except as otherwise provided, SAET must approve an enterprise agreement if, and must not approve an enterprise agreement unless, it is satisfied that—
(a)
before the application for approval was made, reasonable steps were taken—
(i)
to inform the employees who are covered by the agreement about the terms of the agreement and the intention to apply to SAET for approval of the agreement; and
(ii)
to explain to those employees, the effect the agreement will have if approved and, in particular—
•
to identify the terms of an industrial instrument (if any) that currently apply to the employees and will, if the agreement is approved, be excluded by the agreement; and
•
if the agreement supersedes an earlier enterprise agreement, to identify the differences in the terms of the agreements; and
•
to explain the procedures for preventing and settling industrial disputes as prescribed by the agreement; and
•
to inform the employees of their right to representation in the negotiation, and proceedings for approval, of the agreement and, in particular, that an employee may be represented by an agent of an employee's choice, or an association of employees; and
(b)
the agreement has been negotiated without coercion and a majority of the employees covered by the agreement have genuinely agreed to be bound by it; and
(c)
if the agreement is entered into by a registered association as representative of 1 or more employees bound by the agreement—SAET is satisfied (in such manner as it thinks fit) that the association is authorised to act in accordance with the provisions of this Act; and
(d)
the agreement provides for consultation between the employer and the employees bound by the agreement about changes to the organisation and performance of work or the parties have agreed that it is not appropriate for the agreement to contain provision for such consultation; and
(e)
the agreement—
(i)
is, on balance, in the best interests of the employees covered by the agreement (taking into account the interests of all employees); and
(ii)
does not provide for remuneration or other conditions of employment that are inferior to the standards that apply under Part 1 Division 2; and
(iii)
does not provide for remuneration or conditions of employment that are (considered as a whole) inferior to remuneration or conditions of employment (considered as a whole) prescribed by an award under this Act that applies to the employees at the time of the application for approval; and
(f)
the agreement is consistent with the objects of this Part; and
(g)
the agreement complies with the other requirements of this Act.
(1a)
The agreement of employees to be bound by a proposed enterprise agreement may be indicated by ballot or in some other way.
(1b)
If a ballot of employees is taken—
(a)
SAET must be satisfied that—
(i)
all employees were given a reasonable opportunity to participate in the ballot; and
(ii)
the ballot was conducted in accordance with the rules for the conduct of ballots (if any) laid down by regulation; and
(iii)
a majority of the employees casting valid votes at the ballot voted in favour of the proposal; and
(b)
if SAET is so satisfied, it will be presumed that a majority of the total number of the employees (including those who did not vote at the ballot) is in favour of the proposal.
(1c)
In deciding whether an agreement is in the best interests of an employee with a disability, SAET must have regard to the Supported Wage System of the Commonwealth (or any system that replaces it), and any other relevant national disability standard identified by or under the regulations.
(2)
SAET must refuse to approve an enterprise agreement if a provision of the agreement discriminates against an employee because of, or for reasons including, race, colour, sex, sexual preference, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(3)
SAET must not approve an enterprise agreement if the agreement applies to part of a single business or a distinct operational or organisational part of a business and SAET considers that—
(a)
the agreement does not cover employees who should be covered having regard to—
(i)
the nature of the work performed by the employees whom the agreement does cover; and
(ii)
the relationship between that part of the business and the rest of the business; and
(b)
it is unfair that the agreement does not cover those employees.
(4)
In deciding whether to approve an enterprise agreement, SAET must identify the employees (if any) who are covered by the agreement but whose interests may not have been sufficiently taken into account in the course of negotiations and must do whatever is necessary to ensure that those employees understand the effect of the agreement and their interests are properly taken into account.
(5)
Despite subsection (1)(e)(ii) and (iii), SAET may, on referral of an enterprise agreement by a member of SAET who considered the agreement in the first instance, approve the agreement if SAET is satisfied that—
(a)
a majority of at least two-thirds of the total number of employees to be covered by the agreement is in favour of making the agreement; and
(b)
the enterprise is suffering significant economic difficulties; and
(c)
the agreement would make a material contribution to the alleviation of those difficulties; and
(d)
there are reasonable prospects of the economic circumstances of the enterprise improving within the term of the agreement; and
(e)
having regard to any relevant award under this Act (which should be considered as a whole) the agreement does not substantially disadvantage the employees covered by the agreement.
(6)
An enterprise agreement must also be referred to SAET for approval if the member of SAET before whom the question of approval comes in the first instance is in serious doubt about whether the agreement should be approved.
(7)
If an enterprise agreement is to be entered into on a provisional basis—
(a)
the prescribed provisions do not apply to its approval under this section; but
(b)
the agreement may only be approved on condition that—
(i)
the agreement is to be renegotiated between the employer and the group of employees within a period (not exceeding 6 months) SAET considers appropriate in the circumstances and fixes on approving it; and
(ii)
if, in the course of the renegotiation, the employer and the group1 reach agreement (either in the same or on different terms), the agreement is, on its approval under this Part, to take the place of the provisional agreement and, if agreement is not reached, the provisional agreement lapses at the end of the period fixed for its renegotiation.
Explanatory note—
The prescribed provisions are subsection (1)(a), (b), (c) and subsections (4) and (5).
(9)
If SAET is of the opinion that grounds may exist for withholding approval of an enterprise agreement but—
(a)
an undertaking is given to SAET by one or more of the persons who are to be bound by the agreement (or by a duly authorised representative on their behalf) about how the agreement is to be interpreted or applied; and
(b)
SAET is satisfied that the undertaking adequately deals with the aspects of the agreement that might otherwise lead SAET to withhold its approval,
SAET may incorporate the undertaking as part of the agreement, or amend the agreement to conform with the undertaking, and approve the agreement in its modified form.
(10)
Before SAET rejects an application for approval for an enterprise agreement on the ground that its provisions do not meet the criteria for approval, it should identify the aspects of the agreement that are of concern to SAET and allow a reasonable opportunity for the renegotiation of those aspects of the agreement.
(11)
SAET may approve an enterprise agreement without proceeding to a formal hearing if SAET—
(a)
is satisfied on the basis of documentary material submitted in support of the application that the agreement should be approved; and
(b)
has given public notice of its intention to approve the agreement in accordance with the rules.
Note—
1The group may, if the appropriate authorisation exists, be represented in the negotiations by an association or associations of employees—See section 75.

80Extent to which aspects of negotiations and terms of the agreement are to be kept confidential

(1)
An association that enters into an enterprise agreement as representative of a group of employees, must not disclose to the employer which employees authorised the association to act on their behalf.
(2)
However—
1. (a)
  an association, if authorised in writing by an employee, may disclose to an employer that the association is authorised to act on behalf of the employee; and
2. (b)
  an association may be authorised by SAET to disclose to an employer the identity of employees who authorised the association to act on their behalf and may be required by SAET to disclose the identity of those employees to SAET.
(3)
An enterprise agreement, once approved, must be lodged in the Registrar's office and must, subject to an order under subsection (4), be available for public inspection.
(4)
SAET may, if satisfied that an order under this subsection is justified by the exceptional nature or circumstances of the case, declare that an enterprise agreement or a particular part of an enterprise agreement is to be kept confidential to the persons bound by it, and make an order suppressing public disclosure of the agreement or the relevant part of the agreement.
(5)
A person must not contravene an order of SAET under subsection (4).

Maximum penalty: $2 500.

81Effect of enterprise agreement

(1)
An enterprise agreement prevails over a contract of employment to the extent the agreement is inconsistent with the contract.
(2)
However, if an employer and employee agree, at or after the time of entering into an enterprise agreement, that a term of a contract of employment that is more beneficial to an employee than the corresponding provision of the enterprise agreement is to prevail despite the enterprise agreement, the contractual term prevails over the corresponding provision of the enterprise agreement.
(3)
An enterprise agreement operates to exclude the application of an award only to the extent of inconsistency with the award.
(4)
Subject to subsection (5), if—
(a)
an enterprise agreement applies to the employees or a particular class of employees engaged in a particular business or undertaking; and
(b)
a new employer becomes the successor, transmittee or assignee of the whole or part of the business or undertaking,
the new employer succeeds to the rights and obligations of the employer under the enterprise agreement.
(5)
If—
(a)
an employer is bound by an enterprise agreement (the outgoing employer); and
(b)
another employer (the incoming employer) then becomes, or is likely to become at a later time, the successor, transmittee or assignee of the whole or part of the business or undertaking of the outgoing employer,
SAET may, on application under this subsection, by order—
(c)
vary the enterprise agreement; or
(d)
rescind the enterprise agreement.
(6)
An application under subsection (5) may be made—
(a)
by the outgoing employer (including such an employer who was previously an incoming employer), while he or she is still the employer under the enterprise agreement; or
(b)
by the incoming employer after he or she takes over the whole or a part of the business or undertaking of the outgoing employer; or
(c)
by an employee bound by the enterprise agreement (or a group of such employees) after the incoming employer takes over the whole or a part of the business or undertaking of the outgoing employer; or
(d)
by a registered association acting on behalf of an employee or a group of employees bound by the enterprise agreement after the incoming employer takes over the whole or a part of the business or undertaking of the outgoing employer.
(7)
SAET may make an order on application under subsection (5) if (and only if)—
(a)
the order only relates to provisions that regulate the performance of duties by employees or that relate to the remuneration of employees; and
(b)
SAET is satisfied that exceptional circumstances exist justifying the making of the order; and
(c)
SAET is satisfied—
(i)
that the order will not disadvantage employees in relation to their terms and conditions of employment; or
(ii)
that the order will assist in a reasonable strategy on the part of the employer to deal with a short-term crisis in, and to assist in the revival of, the relevant business or undertaking.
(8)
For the purposes of subsection (7), an order disadvantages an employee or employees in relation to their terms and conditions of employment if, on balance, its making would result in a reduction in the overall terms and conditions of employment of that employee or those employees.
(9)
SAET must, in making an order under subsection (5), take into account the length of time remaining until the end of the term of the enterprise agreement.
(10)
An order under subsection (5)—
(a)
must not take effect before the transfer of the relevant business or undertaking to the incoming employer;
(b)
may be made on the basis that the incoming employer will only be bound by the enterprise agreement for a limited period of time (and then the enterprise agreement will be taken to be rescinded);
(c)
may be made on the basis that any variation to the enterprise agreement will only have effect for a limited period of time.
(11)
Nothing in this section limits the ability to vary or rescind an enterprise agreement under another provision.

82SAET's jurisdiction to act in disputes under an enterprise agreement

(1)
An enterprise agreement cannot limit—
1. (a)
  SAET's powers of conciliation; or
2. (b)
  SAET's powers to settle industrial disputes between the employer and the employees bound by the agreement.
(2)
However—
1. (a)
  before SAET intervenes in an industrial dispute between an employer and employees bound by an enterprise agreement, SAET should ensure that the procedures laid down in the agreement for settling industrial disputes have been followed and have failed to resolve the dispute; and
2. (b)
  a determination made by SAET in settlement of such a dispute—
  1. (i)
    must not be made in relation to a condition of employment that is a subject matter of the agreement (unless the determination is to correct an ambiguity or uncertainty in the agreement); and
  2. (ii)
    must be consistent with the agreement.
(3)
SAET may, in acting under this section, settle a dispute over the application of an enterprise agreement.

83Duration of enterprise agreement

(1)
An enterprise agreement is to be made for a term (not exceeding 3 years) stated in the agreement.
(2)
At least 28 days before the end of the term of an enterprise agreement, SAET must give written notice to the parties to the agreement advising them that the term of the agreement is about to end.
(3)
After giving the notice, SAET may, on its own initiative or on the application of a party, invite the parties to an enterprise agreement to a conference to explore the possibility of renegotiating the agreement.
(4)
Despite the expiration of the term stated in the enterprise agreement, the agreement continues in force until superseded or rescinded.

84Power of SAET to vary or rescind an enterprise agreement

(1)
SAET may vary an enterprise agreement—
1. (a)
  to give effect to an amendment agreed between the employer and a majority of the employees currently bound by the agreement; or
2. (b)
  to correct an ambiguity or uncertainty in the agreement; or
3. (c)
  to bring the agreement into conformity with an undertaking on the basis of which the agreement was approved.
(2)
In deciding whether to vary an enterprise agreement, SAET must (unless the variation is merely to correct an ambiguity or uncertainty) apply the same tests as apply to the approval of an enterprise agreement.
(3)
SAET may rescind an enterprise agreement during its term if satisfied that the employer and a majority of the employees currently bound by the agreement want it rescinded.
(4)
A party to an enterprise agreement, an employee bound by the agreement, or a registered association with at least 1 member who is bound by the agreement, may apply to SAET for an order rescinding the agreement after the end of the term of the agreement.
(5)
On receiving an application for rescission under subsection (4), SAET must take such steps as it considers appropriate to obtain the views of the persons bound by the agreement about whether the agreement should be rescinded.
(6)
If on an application under subsection (4) SAET is satisfied—
1. (a)
  that the employer or a majority of the employees bound by the agreement want it rescinded; and
2. (b)
  that the rescission of the agreement will not unfairly advance the bargaining position of a particular person or group in the circumstances of the particular case,

s 140
s 140(1)	amended by 3/2005 s 57(1)—(3)	16.5.2005
s 140(1a)	inserted by 3/2005 s 57(4)	16.5.2005
s 140(2)	amended by 3/2005 s 57(5)	16.5.2005
s 140(2a) and (2b)	inserted by 3/2005 s 57(6)	16.5.2005
s 140(3)	amended by 68/1997 Sch cl 17	4.9.1997
amended by 3/2005 s 57(7), (8)	16.5.2005
s 140(4)	amended by 63/2016 s 57(1)	1.7.2017
s 140(5)	inserted by 3/2005 s 57(9)	16.5.2005
deleted by 58/2009 s 20	1.1.2010
Ch 4 Pt 4 Div 3
s 141
s 141(3)	amended by 3/2005 s 58(1)	16.5.2005
s 141(3a)	inserted by 3/2005 s 58(2)	16.5.2005
s 141(5)	amended by 68/1997 Sch cl 18	4.9.1997
s 141(6)	amended by 68/1997 Sch cl 19	4.9.1997
s 141(7)	amended by 58/2009 s 21	1.1.2010
s 142
s 142(1)	amended by 68/1997 Sch cl 20	4.9.1997
Ch 4 Pt 4 Div 4
s 144	amended by 63/2016 s 57(1)	1.7.2017
s 147
s 147(1)	amended by 63/2016 s 57(1)	1.7.2017
s 147(2)	amended by 63/2016 s 57(1), (4)	1.7.2017
Ch 5 before deletion by 63/2016
Ch 5 Pt 1
Ch 5 Pt 1 Div 1
s 148
s 148(3)	substituted by 67/1995 s 12	31.8.1995
s 150
s 150(3)	amended by 1/2015 s 13	10.4.2015
Ch 5 Pt 1 Div 2
s 151	substituted by 67/1995 s 13	31.8.1995
s 151(1)	amended by 3/2005 s 59	16.5.2005
s 151(2)	amended by 30/2008 Sch 2 cl 6	1.9.2008
s 152
s 152(2)—(5)	substituted by 3/2005 s 60	16.5.2005
s 152(6)	inserted by 3/2005 s 60	16.5.2005
s 152A	inserted by 3/2005 s 61	16.5.2005
s 152A(3)	amended by 44/2013 Sch 2 cl 1	1.7.2014
Ch 5 Pt 1 Div 3
s 153
s 153(2)	amended by 17/2006 s 121	4.9.2006
s 153(3)	amended by 1/2015 s 14	10.4.2015
Ch 5 Pt 1 Div 4
s 155
s 155(1)	amended by 30/2008 Sch 2 cl 7(1)	1.9.2008
s 155(3)	amended by 30/2008 Sch 2 cl 7(2)	1.9.2008
Ch 5 Pt 1 Div 4A	inserted by 3/2005 s 62	16.5.2005
s 155A	substituted by 30/2008 Sch 2 cl 8	1.9.2008
s 155B
s 155B(2)	amended by 26/2013 Sch 1 cl 3	4.7.2013
Ch 5 Pt 1 Div 6
s 167
s 167(3)	inserted by 3/2005 s 63	16.5.2005
amended by 58/2009 s 22	1.1.2010
s 171
s 171(3)	amended by 17/2006 s 122	4.9.2006
s 174A	inserted by 3/2005 s 64	16.5.2005
s 175
s 175(3)	inserted by 3/2005 s 65	16.5.2005
Ch 5 Pt 1 Div 7
s 177
s 177(1)	amended by 68/1997 Sch cl 21	4.9.1997
Ch 5 Pt 1 Div 8
s 178
s 178(6)	inserted by 3/2005 s 66	16.5.2005
Ch 5 Pt 2 Div 1
s 185
s 185(1)	s 185 redesignated as 185(1) by 58/2009 s 23	1.1.2010
s 185(2)	inserted by 58/2009 s 23	1.1.2010
Ch 5 Pt 2 Div 2
s 187
s 187(1)	s 187 redesignated as s 187(1) by 3/2005 s 67	16.5.2005
s 187(2)	inserted by 3/2005 s 67	16.5.2005
s 190
s 190(3)	amended by 3/2005 s 68	16.5.2005
Ch 5 Pt 2 Div 3
s 191
s 191(1)	amended by 17/2006 s 123(1)	4.9.2006
s 191(4)	amended by 17/2006 s 123(2)	4.9.2006
Ch 5 Pt 3
Ch 5 Pt 3 Div 2
s 194
s 194(1)	s 194 redesignated as s 194(1) by 3/2005 s 69	16.5.2005
s 194(2)	inserted by 3/2005 s 69	16.5.2005
Ch 5 Pt 3 Div 3
s 198
s 198(2)	amended by 67/1995 s 14	31.8.1995
substituted by 68/1997 s 12	4.9.1997
deleted by 3/2005 s 70	16.5.2005
Ch 5 Pt 3 Div 4
s 203
s 203(1)	amended by 17/2006 s 124(1)	4.9.2006
s 203(2)	amended by 17/2006 s 124(2)	4.9.2006
s 203(3)	amended by 17/2006 s 124(3), (4)	4.9.2006
s 207
s 207(1)	amended by 35/2008 Sch 2 cl 9	1.9.2008
s 207(2)	amended by 17/2006 s 125(1)	4.9.2006
s 207(3)	amended by 17/2006 s 125(2)	4.9.2006
s 207(4)	amended by 17/2006 s 125(3)	4.9.2006
s 208
s 208(3)	amended by 3/2005 s 71	16.5.2005
s 210
s 210(3)	inserted by 58/2009 s 24	1.1.2010
s 213
s 213(1)	substituted by 68/1997 s 13	4.9.1997
s 213(1a) and (1b)	inserted by 68/1997 s 13	4.9.1997
Ch 5 Pt 4
s 215
s 215(3)	amended by 58/2009 s 25(1)	1.1.2010
s 215(4)	amended by 58/2009 s 25(2), (3)	1.1.2010
s 216
s 216(1)	substituted by 58/2009 s 26(1)	1.1.2010
s 216(2)	amended by 58/2009 s 26(2)	1.1.2010
s 216(3)	amended by 58/2009 s 26(3)	1.1.2010
s 216(4)	amended by 58/2009 s 26(4)	1.1.2010
s 216(5)	amended by 58/2009 s 26(5)	1.1.2010
Ch 5	deleted by 63/2016 s 58	1.7.2017
Ch 6AA	inserted by 36/2015 s 7	19.11.2015
s 218A
s 218A(1)	amended by 20/2024 Sch 1 cl 1	1.9.2024
Ch 6
s 218	deleted by 84/2009 s 137	1.2.2010
s 219
s 219(1)	amended by 68/1997 Sch cl 22	4.9.1997
s 219(2)	amended by 10/1998 s 3	2.4.1998
amended by 1/2015 s 15	10.4.2015
amended by 63/2016 s 59	1.7.2017
ss 219A—219D	inserted by 63/2016 s 60	1.7.2017
s 220
s 220(1) and (2)	amended by 63/2016 s 61	1.7.2017
s 221	deleted by 63/2016 s 62	1.7.2017
s 222	deleted by 58/2009 s 27	1.1.2010
s 223
s 223(1)	amended by 68/1997 Sch cl 23	4.9.1997
(e) deleted by 1/2015 s 16	10.4.2015
amended by 63/2016 s 63(1)	1.7.2017
s 223(2)	amended by 63/2016 s 63(2)	1.7.2017
s 224	amended by 68/1997 Sch cl 24	4.9.1997
s 225
s 225(1)	amended by 68/1997 Sch cl 25	4.9.1997
s 225(3)	amended by 68/1997 Sch cl 26	4.9.1997
s 225(4)	amended by 68/1997 Sch cl 27	4.9.1997
s 225A	inserted by 3/2005 s 72	16.5.2005
s 226	amended by 68/1997 Sch cl 28	4.9.1997
s 228
s 228(1)	amended by 68/1997 Sch cl 29	4.9.1997
s 229
s 229(1)	amended by 68/1997 Sch cl 30	4.9.1997
s 230
s 230(1)	amended by 63/2016 s 64	1.7.2017
s 234
s 234(1)	amended by 63/2016 s 65(1)	1.7.2017
s 234(2)	amended by 63/2016 s 65(2)	1.7.2017
s 234(3)	amended by 63/2016 s 65(3)	1.7.2017
s 235
s 235(1)	substituted by 63/2016 s 66	1.7.2017
s 235(2)	amended by 3/2005 s 73	16.5.2005
s 236A	inserted by 3/2005 s 74	16.5.2005
s 237
s 237(1)	substituted by 58/2009 s 28(1)	1.1.2010
s 237(1a)	inserted by 58/2009 s 28(1)	1.1.2010
s 237(2)	substituted by 68/1997 Sch cl 31	4.9.1997
s 237(3)	inserted by 58/2009 s 28(2)	1.1.2010
Sch 1
ss 1—3	omitted under Legislation Revision and Publication Act 2002	29.4.2004
s 7
s 7(1)	substituted by 57/1996 s 3(a)	8.8.1996
s 7(3)	substituted by 57/1996 s 3(b)	8.8.1996
s 7A	inserted by 67/1995 s 15	31.8.1995
s 16
s 16(2)	substituted by 86/1996 s 2	12.12.1996
substituted by 48/1997 s 2	31.7.1997
s 16(3) and (4)	inserted by 86/1996 s 2	12.12.1996
deleted by 48/1997 s 2	31.7.1997
s 17	inserted by 43/2006 s 101	1.6.2007
s 18	inserted by 58/2009 s 29	1.1.2010
Sch 2	deleted by 3/2005 s 75	16.5.2005
Sch 2	inserted by 58/2009 s 30	1.1.2010
cl 2
cl 2(3)	amended by 63/2016 s 67(1)	1.7.2017
cl 2(4)	amended by 63/2016 s 67(1), (2)	1.7.2017
cl 3	amended by 63/2016 s 67(2)	1.7.2017
Sch 2A	inserted by 58/2009 s 30	1.1.2010
cl 1
State industrial instrument	amended by 63/2016 s 68(1)	1.7.2017
cl 3
cl 3(3)	amended by 63/2016 s 68(1)	1.7.2017
cl 3(4)	amended by 63/2016 s 68(1), (2)	1.7.2017
cl 4
cl 4(2)	amended by 63/2016 s 68(1)	1.7.2017
cl 4(3)	amended by 63/2016 s 68(1), (2)	1.7.2017
cl 5	amended by 63/2016 s 68(2)	1.7.2017
Sch 3	heading substituted by 3/2005 s 76	16.5.2005
s 4
s 4(5) and (6)	inserted by 3/2005 s 77(1)	16.5.2005
s 6	inserted by 3/2005 s 77(2)	16.5.2005
Sch 3A	inserted by 3/2005 s 78	16.5.2005
Sch 3B	inserted by 10/2023 s 5	1.9.2023
Sch 4
s 5
s 5(3)	inserted by 3/2005 s 79	16.5.2005
Sch 5
s 1
adoption	amended by 43/2006 s 102(1)	1.6.2007
spouse	deleted by 43/2006 s 102(2)	1.6.2007
s 2
s 2(1), (3) and (4)	amended by 43/2006 s 102(3)	1.6.2007
s 4	amended by 43/2006 s 102(4)	1.6.2007
s 5
s 5(1)	amended by 43/2006 s 102(5)	1.6.2007
Schs 9—11	inserted by 3/2005 s 80	16.5.2005

Transitional etc provisions associated with Act or amendments

Industrial and Employee Relations (Miscellaneous) Amendment Act 1996

4—Transitional provision

An assignment made under the principal Act before the commencement of this Act—
(a)
assigning a District Court Judge to be the Senior Judge, or a Judge, of the Court; or
(b)
assigning a magistrate to be an industrial magistrate,
continues in force, subject to the principal Act, as an assignment under the corresponding provision of the principal Act as amended by this Act.

Industrial and Employee Relations (President's powers) Amendment Act 1996

3—Cancellation of appointment

The purported appointment of the President of the Industrial Relations Commission of South Australia as a Commissioner is cancelled and is taken never to have been made.

Industrial Law Reform (Fair Work) Act 2005, Sch 1—Transitional provisions

1—Interpretation

(1)
In this Schedule—
principal Act means the Industrial and Employee Relations Act 1994.
(2)
Unless the contrary intention appears, terms used in this Schedule have meanings consistent with the meanings they have in the principal Act.

2—Enterprise Agreement Commissioners

A person holding office as an Enterprise Agreement Commissioner immediately before the commencement of this clause will continue as a Commissioner appointed to the Commission for the balance of his or her term of appointment as an Enterprise Agreement Commissioner (and is then eligible for reappointment under the principal Act as amended by this Act).

3—Term of office of other members of Commission

The amendments made to the principal Act by sections 12 or 15 of this Act do not apply to members of the Commission appointed before the commencement of this clause (and accordingly such a member of the Commission will cease to hold office at the end of the term for which he or she was appointed (unless the term comes to an end under the principal Act sooner) but the member will then be eligible for reappointment under the principal Act as amended by this Act).

4—Enterprise agreements

(1)
The amendments made to the principal Act by section 32(2), 33(1), (2) and (4) and 35(1) of this Act do not apply with respect to any negotiations or proceedings to enter in an enterprise agreement being conducted or undertaken by an association that is not a registered association if the association was, before the commencement of this subclause, authorised to negotiate the agreement on behalf of a group of employees in accordance with section 75(2) of the principal Act (as in existence immediately before the commencement of this clause).
(2)
The amendment made to section 81 of the principal Act by this Act does not apply with respect to the transfer of a business or undertaking that takes effect before the commencement of this subclause.

5—Awards

The amendment made to section 91 of the principal Act by this Act does not apply with respect to the transfer of a business or undertaking that takes effect before the commencement of this clause.

6—Registered agents

The term of registration of a person holding a registration as an agent immediately before the commencement of this clause will be taken to be 2 years from the date of that commencement.

7—Minimum standards

(1)
Schedule 2 of the principal Act (and any determination of the Full Commission under that Schedule) will, despite the repeal of that Schedule by this Act, continue to have effect until the Full Commission establishes a minimum standard under subsection (3) of section 69 of the principal Act (as enacted by this Act).
(2)
The President of the Commission must take reasonable steps to ensure that the first determination of the Full Commission under subsection (3) of section 69 of the principal Act (as enacted by this Act) is made as soon as is reasonably practicable after the commencement of this subclause.
(3)
The President of the Commission must take reasonable steps to ensure that the Full Commission establishes the minimum standard contemplated by section 72B of the principal Act (as enacted by this Act) as soon as is reasonably practicable after the commencement of this subclause.
(4)
Proceedings for the purposes of subclause (2) or (3) may be commenced by application by a peak entity, or by the Full Commission acting on its own initiative.

8—Other provisions

(1)
The Governor may, by regulation, make additional provisions of a saving or transitional nature consequent on the enactment of this Act.
(2)
A provision of a regulation made under subclause (1) may, if the regulation so provides, take effect from the commencement of this Act or from a later day.
(3)
To the extent to which a provision takes effect under subclause (2) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by—
(a)
decreasing the person's rights; or
(b)
imposing liabilities on the person.
(4)
The Acts Interpretation Act 1915 will, except to the extent of any inconsistency with the provisions of this Part, apply to any amendment or repeal effected by this Act.

Statutes Amendment (Public Sector Employment) Act 2006, Sch 1—Transitional provisions

Note—

Also see Statutes Amendment (Public Sector Employment) (Transitional Provisions) Regulations 2007.

1—Interpretation

In this Part, unless the contrary intention appears—
Commonwealth Act means the Workplace Relations Act 1996 of the Commonwealth;
employing authority means—
(a)
subject to paragraph (b)—the person who is the employing authority under a relevant Act;
(b)
in a case that relates to employment under the Fire and Emergency Services Act 2005—the Chief Executive of the South Australian Fire and Emergency Services Commission, or the Chief Officer of an emergency services organisation under that Act, as the case requires;
Industrial Commission means the Industrial Relations Commission of South Australia;
prescribed body means—
(a)
the Aboriginal Lands Trust;
(b)
the Adelaide Cemeteries Authority;
(c)
the Adelaide Festival Centre Trust;
(d)
the Adelaide Festival Corporation;
(e)
SA Ambulance Service Inc;
(f)
the Minister to whom the administration of the Children's Services Act 1985 is committed;
(g)
the Minister to whom the administration of the Education Act 1972 is committed;
(h)
the Electricity Supply Industry Planning Council;
(i)
a body constituted under the Fire and Emergency Services Act 2005;
(j)
the History Trust of South Australia;
(k)
the Institute of Medical and Veterinary Science;
(l)
a regional NRM board constituted under the Natural Resources Management Act 2004;
(m)
the Senior Secondary Assessment Board of South Australia;
(n)
the South Australian Country Arts Trust;
(o)
the South Australian Film Corporation;
(p)
the South Australian Health Commission;
(q)
an incorporated hospital under the South Australian Health Commission Act 1976;
(r)
an incorporated health centre under the South Australian Health Commission Act 1976;
(s)
the South Australian Motor Sport Board;
(t)
the South Australian Tourism Commission;
(u)
The State Opera of South Australia;
(v)
the State Theatre Company of South Australia;
(w)
the Minister to whom the administration of the Technical and Further Education Act 1975 is committed;
relevant Act means—
(a)
in a case that relates to employment with a prescribed body established under an Act being amended by this Act—that Act;
(b)
in a case that relates to employment with a prescribed body who is a Minister to whom the administration of an Act being amended by this Act is committed—that Act;
(c)
in a case that relates to employment with a body constituted under the Fire and Emergency Services Act 2005—that Act.

2—Transfer of employment

(1)
Subject to this clause, a person who, immediately before the commencement of this clause, was employed by a prescribed body under a relevant Act will, on that commencement, be taken to be employed by the employing authority under that Act (as amended by this Act).
(2)
The following persons will, on the commencement of this clause, be taken to be employed as follows:
(a)
a person who, immediately before the commencement of this clause, was employed under section 6L(1) of the Electricity Act 1996 will, on that commencement, be taken to be employed by the employing authority under that Act (as amended by this Act);
(b)
a person who, immediately before the commencement of this clause, was employed by the South Australian Fire and Emergency Services Commission will, on that commencement, be taken to be employed by the Chief Executive of that body;
(c)
a person who, immediately before the commencement of this clause, was employed by an emergency services organisation under the Fire and Emergency Services Act 2005 will, on that commencement, be taken to be employed by the Chief Officer of that body;
(d)
a person who, immediately before the commencement of this clause, was employed by an incorporated hospital or an incorporated health centre under the South Australian Health Commission Act 1976 will, on that commencement, be taken to be employed by an employing authority under that Act (as amended by this Act) designated by the Governor by proclamation made for the purposes of this paragraph.
(3)
Subject to this clause, the Governor may, by proclamation, provide that a person employed by a subsidiary of a public corporation under the Public Corporations Act 1993 will be taken to be employed by a person or body designated by the Governor (and the arrangement so envisaged by the proclamation will then have effect in accordance with its terms).
(4)
Subject to subclause (5), an employment arrangement effected by subclause (1), (2) or (3)—
(a)
will be taken to provide for continuity of employment without termination of the relevant employee's service; and
(b)
will not affect—
(i)
existing conditions of employment or existing or accrued rights to leave; or
(ii)
a process commenced for variation of those conditions or rights.
(5)
If, immediately before the commencement of this clause, a person's employment within the ambit of subclause (1), (2) or (3) was subject to the operation of an award or certified agreement (but not an Australian Workplace Agreement) under the Commonwealth Act, then, on that commencement, an award or enterprise agreement (as the case requires) will be taken to be created under the Fair Work Act 1994—
(a)
with the same terms and provisions as the relevant industrial instrument under the Commonwealth Act; and
(b)
with any terms or provisions that existed under an award or enterprise agreement under the Fair Work Act 1994, that applied in relation to employment of the kind engaged in by the person, immediately before 27 March 2006, and that ceased to apply by virtue of the operation of provisions of the Commonwealth Act that came into force on that day,
subject to any modification or exclusion prescribed by regulations made for the purposes of this subclause and subject to the operation of subclause (6).
(6)
Where an award or enterprise agreement is created by virtue of the operation of subclause (5)—
(a)
the award or enterprise agreement will be taken to be made or approved (as the case requires) under the Fair Work Act 1994 on the day on which this clause commences; and
(b)
the Fair Work Act 1994 will apply in relation to the award or enterprise agreement subject to such modifications or exclusions as may be prescribed by regulations made for the purposes of this subclause; and
(c)
the Industrial Commission may, on application by the Minister to whom the administration of the Fair Work Act 1994 is committed, or an application by a person or body recognised by regulations made for the purposes of this subclause, vary or revoke any term or provision of the award or enterprise agreement if the Industrial Commission is satisfied that it is fair and reasonable to do so in the circumstances.

3—Superannuation

(1)
If a prescribed body under a relevant Act is, immediately before the commencement of this clause, a party to an arrangement relating to the superannuation of one or more persons employed by the prescribed body, then the relevant employing authority under that Act will, on that commencement, become a party to that arrangement in substitution for the prescribed body.

(2)
Nothing that takes effect under subclause (1)—
(a)
constitutes a breach of, or default under, an Act or other law, or constitutes a breach of, or default under, a contract, agreement, understanding or undertaking; or
(b)
terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy,
and subclause (1) may have effect despite any other Act or law.
(3)
An amendment effected to another Act by this Act does not affect a person's status as a contributor under the Superannuation Act 1988 (as it may exist immediately before the commencement of this Act).

4—Interpretative provision

(1)
The Governor may, by proclamation, direct that a reference in any instrument (including a statutory instrument) or a contract, agreement or other document to a prescribed body, or other specified agency, instrumentality or body, will have effect as if it were a reference to an employing authority under a relevant Act, the Minister to whom the administration of a relevant Act is committed, or some other person or body designated by the Governor.
(2)
A proclamation under subclause (1) may effect a transfer of functions or powers.

5—Related matters

(1)
A notice in force under section 51 of the Children's Services Act 1985 immediately before the commencement of this clause will continue to have effect for the purposes of that section, as amended by this Act.
(2)
A notice in force under section 28 of the Institute of Medical and Veterinary Science Act 1982 immediately before the commencement of this clause will continue to have effect for the purposes of that section, as amended by this Act.
(3)
A notice in force under section 61 of the South Australian Health Commission Act 1976 immediately before the commencement of this clause will continue to have effect for the purposes of that section, as amended by this Act.
(4)
A notice in force under section 13(6) of the South Australian Motor Sport Act 1984 immediately before the commencement of this clause will continue to have effect after that commencement but may, pursuant to this subclause, be varied from time to time, or revoked, by the Minister to whom the administration of that Act is committed.
(5)
The fact that a person becomes an employer in his or her capacity as an employing authority under an Act amended by this Act does not affect the status of any body or person as an employer of public employees for the purposes of the Fair Work Act 1994 (unless or until relevant regulations are made under the provisions of that Act).

6—Other provisions

(1)
The Governor may, by regulation, make additional provisions of a saving or transitional nature consequent on the enactment of this Act.
(2)
A provision of a regulation made under subclause (1) may, if the regulation so provides, take effect from the commencement of this Act or from a later day.
(3)
To the extent to which a provision takes effect under subclause (2) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by—
(a)
decreasing the person's rights; or
(b)
imposing liabilities on the person.
(4)
The Acts Interpretation Act 1915 will, except to the extent of any inconsistency with the provisions of this Schedule (or regulations made under this Schedule), apply to any amendment or repeal effected by this Act.

Statutes Amendment (National Industrial Relations System) Act 2009, Sch 1

1—Transitional provisions

(1)
A reference in any Act or statutory instrument to the Australian Industrial Relations Commission will be taken to be a reference to Fair Work Australia.
(2)
A reference in an Act or statutory instrument to the Industrial Relations Act 1988 or the Workplace Relations Act 1996 of the Commonwealth, insofar as the reference relates to associations or organisations registered under either Act, will, unless the contrary intention appears, be construed as a reference to the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.

Fair Work (Miscellaneous) Amendment Act 2015

17—Transitional provision

The person holding office as the Employee Ombudsman will cease to do so on the commencement of this section.

Statutes Amendment (Industrial Relations Consultative Council) Act 2015

8—Transitional provision

A member of the Industrial Relations Advisory Committee established under the Fair Work Act 1994 ceases to hold office on the commencement of this section.

Statutes Amendment (South Australian Employment Tribunal) Act 2016

69—Transitional provisions

(1)
In this section—
determination has the same meaning as in the principal Act;
industrial authority means the Industrial Relations Court of South Australia or the Industrial Relations Commission of South Australia;
principal Act means the Fair Work Act 1994;
relevant day means the day on which this section comes into operation;
Tribunal means the South Australian Employment Tribunal.
(2)
The Industrial Relations Court of South Australia and the Industrial Relations Commission of South Australia are dissolved by force of this subsection.
(3)
The commencement of this subsection brings to an end the appointment of a person as a member of the Industrial Relations Court of South Australia or the Industrial Relations Commission of South Australia (as the case may be).
(4)
No right of action arises, and no compensation is payable, in respect of an appointment coming to an end by virtue of the operation of subsections (3) and (4).
(5)
However—
(a)
subsections (2) and (3) do not affect appointment of a person as a member of the Tribunal before the relevant day; and
(b)
in the case of a member of the Industrial Relations Commission of South Australia who, immediately before the relevant day, was not a member of the Tribunal—the person will be taken to have been appointed (by force of this subsection) as a Commissioner under the South Australian Employment Tribunal Act 2014 subject to the following provisions:
(i)
the person's term of office will (subject to section 17 of that Act) be taken to be a period of 5 years from the relevant day;
(ii)
the person's appointment will be on any conditions determined by the Governor and specified in an instrument executed by a Minister acting under this provision within 14 days after the relevant day.
(6)
The salary and allowances of a person to whom subsection (5)(a) applies will not be reduced during the person's term of office as a member of the Tribunal.
(7)
A person to whom subsection (5)(b) applies is not entitled, after the relevant day, to any salary, benefits or allowances on account of the person's position as a member of the Industrial Relations Commission of South Australia before the relevant day.
(8)
However, the salary payable to a person to whom subsection (5)(b) applies as a member of the Tribunal cannot be less than the salary payable to the person as a member of the Industrial Relations Commission of South Australia immediately before the relevant day (unless the person requests or agrees to a change to the number of hours to be worked or to work on a sessional or other basis).
(9)
In addition, a person to whom subsection (5)(b) applies will be taken to have continuity of service in all respects and will not be taken, for the purposes of any Act or law, to have resigned or to have ceased to hold any office for the purposes of any accrued or accruing rights or entitlements to any pension.
(10)
Nothing in a preceding subsection is, in the case of a member of the Industrial Relations Commission of South Australia who, immediately before the relevant day, held an appointment as a member of an industrial authority under a law of the Commonwealth, intended to affect the person's position or status for the purposes of continuing to hold the appointment under that law of the Commonwealth.
(11)
A determination of an industrial authority under the principal Act in force immediately before the relevant day will, on and from the relevant day, be taken to be a determination of the Tribunal.
(12)
A right to bring proceedings before an industrial authority in existence under the principal Act before the relevant day (but not so exercised before that day) will be exercised as if this Part had been in operation before the right arose, so that the relevant proceedings may be commenced before the Tribunal rather than the industrial authority.
(13)
Any proceedings before an industrial authority under the principal Act immediately before the relevant day will, subject to such directions as the President of the Tribunal thinks fit, be transferred to the Tribunal where they may proceed as if they had been commenced before that Tribunal.
(14)
The Tribunal may—
(a)
receive in evidence any transcript of evidence in proceedings before an industrial authority, and draw any conclusions of fact from that evidence that appear proper; and
(b)
adopt any findings or determinations of an industrial authority that may be relevant to proceedings before the Tribunal; and
(c)
adopt or make any determination in relation to proceedings before an industrial authority before the relevant day (including so as to make a determination in relation to proceedings fully heard before the relevant day); and
(d)
take other steps to promote or ensure the smoothest possible transition from 1 jurisdiction to another in connection with the operation of this section.
(15)
Nothing in this section affects a right of appeal to the Supreme Court against a decision, direction or order of the Full Court of the Industrial Relations Court of South Australia made or given before the relevant day.
(16)
A reference in any instrument or enterprise agreement to the Industrial Relations Court of South Australia or the Industrial Relations Commission of South Australia will, unless the context otherwise requires, be taken to be a reference to the Tribunal.

Historical versions

Reprint No 1—17.7.1995
Reprint No 2—31.8.1995
Reprint No 3—21.12.1995
Reprint No 4—8.8.1996
Reprint No 5—14.11.1996
Reprint No 6—12.12.1996
Reprint No 7—31.7.1997
Reprint No 8—4.9.1997
Reprint No 9—2.4.1998
Reprint No 10—1.7.1999
29.4.2004
16.5.2005
4.9.2006
1.4.2007
1.6.2007
1.9.2008
1.1.2010
1.2.2010
4.7.2013
1.7.2014
10.4.2015
19.11.2015
1.7.2017
1.7.2021
1.9.2023
28.3.2024