Public Service Association (SA) Inc v State of South Australia

The Public Service Association (SA) Inc appealed to the Full Court of the Supreme Court of South Australia against a decision of the Industrial Relations Court of South Australia. The appeal concerned the imposition of car parking fees on employees covered by an enterprise agreement, who had previously enjoyed free or subsidised parking. The Association alleged that the employer had contravened clauses of the enterprise agreement by failing to consult appropriately with employee representatives and by failing to maintain the status quo after notification of a dispute regarding the new parking fee policy.

The legal issues before the Full Court were whether the Industrial Relations Court had erred in its interpretation of the expression "conditions of employment," whether it had erred in finding no contravention of the obligation to consult, and whether it had erred in failing to exercise its discretion to make orders under section 15 of the *Fair Work Act 1994* (SA). The Industrial Relations Court had found that car parking was not a "condition of employment" in the relevant sense, that there had been no contravention of the obligation to consult, and that while there had been a breach of a different clause, it declined to make orders under section 15 of the Act due to the failure to establish breaches of the primary clauses.

The Full Court upheld the decision of the Industrial Relations Court. It reasoned that car parking was not a necessary requisite, attribute, qualification, environment, or other circumstance affecting employment, and therefore was not a "condition of employment" for the purposes of the enterprise agreement. The Court found that the evidence did not establish an ongoing, unfettered entitlement to free or subsidised parking that could not be unilaterally altered by the employer, noting that any such entitlement typically arose from individual permits with varying terms and conditions, and that hospital operations and contractual arrangements for parking facilities had changed over time. Consequently, the Court found no contravention of the obligation to consult and no basis to interfere with the Industrial Relations Court's discretionary decision not to make orders under section 15 of the Act. The appeal was dismissed.