Statutes Amendment (South Australian Employment Tribunal) Act 2024 (SA)

South Australia

Statutes Amendment (South Australian Employment Tribunal) Act 2024

An Act to amend the Equal Opportunity Act 1984, the Fair Work Act 1994, the Magistrates Court Act 1991, the South Australian Employment Tribunal Act 2014 and the Work Health and Safety Act 2012.

The Parliament of South Australia enacts as follows:

Part 1Preliminary1Short title

This Act may be cited as the Statutes Amendment (South Australian Employment Tribunal) Act 2024.

2Commencement

This Act comes into operation on a day to be fixed by proclamation.

Part 2Amendment of Equal Opportunity Act 1984

3Amendment of section 95B – Referral of complaints to Tribunal

1. (1)

   Section 95B(1)(ba)—delete "to the Tribunal"

2. (2)

   Section 95B(2)—delete subsection (2) and substitute:

   1. (2)

      However if, in respect of a complaint, the Commissioner is of the opinion that the matter involves—

      1. (a)

         an alleged contravention of Part 3 Division 2, Part 4 Division 2, Part 5 Division 2, Part 5A Division 2 or Part 5B Division 2; or

      2. (b)

         an alleged contravention of section 86, 87 or 88 by a person against—

         1. (i)

            a person with whom they work; or

         2. (ii)

            a person who is seeking to become a fellow worker,

      the Commissioner must not refer the matter to the Tribunal under subsection (1) but must instead refer the matter to SAET (subject to subsection (2a)).

   2. (2a)

      If, in respect of a complaint, the Commissioner is of the opinion that the matter involves both alleged contraventions of a kind referred to in subsection (2) and other matters, the Commissioner may refer the matter to SAET or to the Tribunal, as the Commissioner thinks fit.

3. (3)

   Section 95B(3)—after "subsection (2)" insert:

   or (2a)

Part 3Amendment of Fair Work Act 19944Amendment of section 4 – Interpretation

1. (1)

   Section 4(1), definition of employer, (a)—delete the paragraph and substitute:

   1. (a)

      for public employees—see section 4A;

2. (2)

   Section 4(1), definition of industrial matter—after paragraph (f) insert:

   1. (fa)

      matters in an industrial instrument relating to wage parity;

5Insertion of section 4A

After section 4 insert:

4A—Meaning of employer for public employees

1. (1)

   For the purposes of paragraph (a) of the definition of employer in section 4(1), the employer for public employees is the body or person (not being a Minister) declared by regulation to be the employer of the employees.

2. (2)

   The body or person referred to in subsection (1) is an instrumentality of the Crown and is capable of binding the Crown in relation to an industrial matter.

6Amendment of section 8 – Jurisdiction to interpret awards and enterprise agreements

Section 8(1)—after "SAET" insert:

(constituted as the South Australian Employment Court)

7Substitution of section 11

Section 11—delete the section and substitute:

11—Jurisdiction to settle and resolve industrial disputes

1. (1)

   SAET (constituted as an industrial relations commission) has jurisdiction to settle and resolve industrial disputes.

2. (2)

   In exercising its dispute settlement jurisdiction SAET may deal with a dispute as it considers appropriate including by any of the following:

   1. (a)

      conciliation or mediation;

   2. (b)

      making a recommendation or expressing an opinion;

   3. (c)

      arbitration.

8Amendment of section 12 – Orders to remedy or restrain contraventions

Section 12(1)—after "SAET" insert:

(constituted as the South Australian Employment Court)

9Amendment of section 13 – Advisory jurisdiction

Section 13(1)—after "SAET" insert:

(constituted as an industrial relations commission)

10Insertion of section 13A

After section 13 insert:

13A—Mandatory injunctions

Section 7(2) of the Crown Proceedings Act 1992 does not apply in respect of proceedings under this Act (other than proceedings under section 10).

11Insertion of heading

Before section 14 insert:

Division 1—Processes generally

12Insertion of heading

Before section 18 insert:

Division 2—Processes when constituted as an industrial relations commission

13Repeal of section 24

Section 24—delete the section

14Amendment of section 34 – Award to include interest

Section 34—after subsection (1) insert:

1. (1a)

   An award of interest, or lump sum instead of interest, determined under this section must take into account the period between the day the relevant cause of action arose and the day the judgement is delivered.

15Insertion of Chapter 3 Part A1

Chapter 3—before Part 1 insert:

Part A1—Interpretation

65—References to SAET

A reference in this Chapter to SAET is a reference to SAET constituted as an industrial relations commission.

16Amendment of section 69 – Remuneration

1. (1)

   Section 69(3)—before "SAET" first occurring insert:

   a Full Bench of

2. (2)

   Section 69(3)(a)—delete paragraph (a)

17Amendment of section 70 – Sick leave/carer's leave

Section 70(3)—before "SAET" insert:

A Full Bench of

18Amendment of section 70A – Bereavement leave

Section 70A(3)—before "SAET" insert:

A Full Bench of

19Amendment of section 70B – Family and domestic violence leave

Section 70B(3)—before "SAET" insert:

A Full Bench of

20Amendment of section 71 – Annual leave

Section 71(3)—before "SAET" insert:

A Full Bench of

21Amendment of section 72 – Parental leave

Section 72(3)—before "SAET" insert:

A Full Bench of

22Amendment of section 72A—Minimum standards – additional matters

Section 72A(1)—before "SAET" insert:

A Full Bench of

23Amendment of section 72B – Special provision relating to severance payments

Section 72B(1)—before "SAET" insert:

A Full Bench of

24Amendment of section 79 – Approval of enterprise agreement

1. (1)

   Section 79(5)—before "SAET" first occurring insert:

   a Full Bench of

2. (2)

   Section 79(6)—delete "must also be referred to SAET" and substitute:

   may be referred to a Full Bench of SAET

25Amendment of section 90 – Power to regulate industrial matters by award

1. (1)

   Section 90(1)—after "make" insert:

   or vary

2. (2)

   Section 90(5)—after "made" insert:

   or varied

3. (3)

   Section 90(6)—after "making" insert:

   or varying

4. (4)

   Section 90(7)—after "makes" insert:

   or varies

5. (5)

   Section 90, note—delete the note appearing at the foot of the section

26Insertion of section 100A

After section 100 insert:

100A—State Wage Case

1. (1)

   A Full Bench of SAET must conduct an annual review of—

   1. (a)

      the minimum standard of remuneration under section 69; and

   2. (b)

      minimum wage rates in awards; and

   3. (c)

      minimum work-related allowances and loadings in awards.

2. (2)

   The review must commence within 3 months of the conclusion of the Annual Wage Review conducted by the Fair Work Commission.

3. (3)

   Subject to subsection (5), in conducting the review, SAET may make a declaration under section 100(1) adopting the outcomes of the Annual Wage Review without receiving evidence or submissions, or conducting a hearing, if there is no objection from an interested party.

4. (4)

   If SAET proposes to act in accordance with the above, SAET must—

   1. (a)

      take reasonable steps to ensure that all persons who are likely to have an interest in the review are given a reasonable opportunity to appear and be heard before SAET; and

   2. (b)

      at least 21 days before making the declaration, publish a notice in a manner prescribed by the rules—

      1. (i)

         setting out the terms of the proposed declaration; and

      2. (ii)

         advising that, in the absence of any objection from an interested party, SAET will make the declaration on its own initiative.

5. (5)

   If there is an objection from an interested party, SAET must conduct the review by considering the matter de novo.

6. (6)

   In this section—

interested party means—

1. (a)

   the Minister; or

2. (b)

   an employer or group of employers; or

3. (c)

   a registered employee association; or

4. (d)

   the United Trades and Labor Council (trading as SA Unions).

27Amendment of section 108 – Question to be determined at the hearing

Section 108(2)(e)—delete "section 58B or 58C of the Workers Rehabilitation and Compensation Act 1986" and substitute:

section 18 or 20 of the Return to Work Act 2014

28Amendment of section 120 – Application for registration

Section 120(1)—after "SAET" insert:

(constituted as an industrial relations commission)

29Amendment of section 125 – Alteration of rules of registered association

Section 125(5)—after "SAET" insert:

(constituted as an industrial relations commission)

30Amendment of section 127 – Orders to secure compliance with rules etc

1. (1)

   Section 127(1)—after "SAET" insert:

   (constituted as the South Australian Employment Court)

2. (2)

   Section 127(3)—after "SAET" insert:

   (constituted as the South Australian Employment Court)

31Amendment of section 130 – De-registration of associations

Section 130(1)—after "SAET" insert:

(constituted as an industrial relations commission)

32Amendment of section 132 – Application for registration

Section 132(1)—after "SAET" insert:

(constituted as an industrial relations commission)

33Amendment of section 134 – Registration

Section 134—after "SAET" insert:

(constituted as an industrial relations commission)

34Amendment of section 135 – De-registration

Section 135(1)—after "SAET" insert:

(constituted as an industrial relations commission)

35Amendment of section 138 – Limitations of actions in tort

Section 138(3) and (4)—delete "SAET" wherever occurring and substitute in each case:

a Full Bench of SAET (constituted as an industrial relations commission)

36Amendment of section 140 – Powers of officials of employee associations

Section 140(4)—after "SAET" insert:

(constituted as an industrial relations commission)

37Amendment of section 219D – Compliance notices

Section 219D(3)—after "SAET" insert:

(constituted as the South Australian Employment Court)

38Repeal of section 230

Section 230—delete the section

39Transitional provisions

1. (1)

   Section 4(1) of the Fair Work Act 1994 (as amended by section 4(2) of this Act) applies in relation to an industrial instrument made or approved on or after the day on which this subclause comes into operation.

2. (2)

   Nothing in section 4A(2) of the Fair Work Act 1994 (as inserted by section 5 of this Act) affects the interpretation of the term 'employer' in an industrial instrument made or approved before the commencement of this subclause.

3. (3)

   Where a provision of this Act amends the Fair Work Act 1994 to require the South Australian Employment Tribunal to be constituted—

   1. (a)

      as an industrial relations commission; or

   2. (b)

      as the South Australian Employment Court; or

   3. (c)

      as a Full Bench of the South Australian Employment Tribunal,

the amendment only applies in relation to proceedings commenced after the commencement of the amendment.

1. (4)

   Section 13A of the Fair Work Act 1994, as in force after the commencement of section 10 of this Act, applies in relation to proceedings determined by SAET after the commencement of section 10 (regardless of when the proceedings were commenced).

2. (5)

   Section 34(1a) of the Fair Work Act 1994, as inserted by section 14 of this Act, applies in relation to an award of interest, or lump sum instead of interest, determined after the commencement of section 14 of this Act (regardless of when the proceedings were commenced).

3. (6)

   In this clause—

industrial instrument has the same meaning as in the Fair Work Act 1994.

Part 4Amendment of Magistrates Court Act 199140Amendment of section 9 – Criminal jurisdiction

Section 9(4)(b)(i)—delete "$300 000" and substitute:

$1 500 000

41Transitional provision

Section 9(4)(b)(i) of the Magistrates Court Act 1991, as in force after the commencement of section 40 of this Act, applies in relation to proceedings commenced in the Magistrates Court after the commencement of section 40 of this Act.

Part 5Amendment of South Australian Employment Tribunal Act 2014

42Amendment of section 6 – Jurisdiction of Tribunal

1. (1)

   Section 6(2)(b)—delete paragraph (b) and substitute:

   1. (b)

      the rules may (unless to do so is inconsistent with a provision of a relevant Act) assign matters to the South Australian Employment Court;

2. (2)

   Section 6—after subsection (2) insert:

   1. (2a)

      If a matter is assigned to the South Australian Employment Court, the Court may direct, or an Act or the rules may provide, that the matter be the subject of a compulsory conference (within the meaning of section 43) in the part of the Tribunal that is acting as an industrial relations commission.

43Amendment of section 6A—Conferral of jurisdiction – criminal matters

Section 6A(6)(a)—delete "$300 000" and substitute:

$1 500 000

44Amendment of section 13 – Appointment of Deputy Presidents

Section 13(13)—after paragraph (a) insert:

1. (ab)

   the President; and

45Amendment of section 19 – Constitution of Tribunal

1. (1)

   Section 19(3)—delete subsection (3) and substitute:

   1. (3)

      A Full Bench of the Tribunal consists of—

      1. (a)

         when sitting as the South Australian Employment Court—3 Presidential members; or

      2. (b)

         when acting as an industrial relations commission—3 members of which at least 1 must be a Presidential member.

2. (2)

   Section 19—after subsection (4) insert:

   1. (4a)

      If a member of the Tribunal who is not a Presidential member is to constitute the Tribunal, or is to be a member of a Full Bench of the Tribunal, for the purpose of dealing with any matter, the President must be satisfied that the member has appropriate knowledge, expertise, or experience relating to that class of matter.

46Amendment of section 43 – Compulsory conciliation conferences

1. (1)

   Section 43—after subsection (5) insert:

   1. (5a)

      The parties to a compulsory conference must ensure, so far as is reasonably practicable, that the conference is attended by persons with sufficient decision-making authority to fully participate in settlement discussions.

2. (2)

   Section 43(7) and (8)—delete subsections (7) and (8) and substitute:

   1. (7)

      However —

      1. (a)

         proceedings constituting a compulsory conference under the Return to Work Act 2014 should not run over a period exceeding 10 weeks; and

      2. (b)

         if the rules fix a period of time in relation to proceedings constituting a compulsory conference under another relevant Act, those proceedings should not run over a period exceeding the period so fixed,

   unless the member of the Tribunal presiding at the conference is satisfied that an extension of time is justified on the basis that there is a substantial likelihood the proceedings will resolve by settlement if the extension occurs.

   1. (8)

      If the period in which proceedings constituting a compulsory conference are conducted is extended in accordance with subsection (7), the member of the Tribunal presiding at the conference must notify the parties in writing of the decision to extend the period.

3. (3)

   Section 43(11)—after paragraph (c) insert:

   1. (ca)

      enlarge the scope of the proceedings in accordance with section 65;

47Amendment of section 44 – Referral of matters for hearing and determination

Section 44—after "must" insert:

(unless a relevant Act provides otherwise)

48Amendment of section 51 – Representation

Section 51—after subsection (3) insert:

1. (4)

   If, in accordance with a relevant Act, a person who is not a legal practitioner (the representative) is entitled to appear in proceedings before the Tribunal as a representative of a party (the first party), evidence is not to be adduced in proceedings and material is not required to be disclosed to another party in proceedings if, on objection by the first party, the Tribunal finds that—

   1. (a)

      adducing the evidence or disclosing the material would result in the disclosure of—

      1. (i)

         a confidential communication between the first party and the representative; or

      2. (ii)

         the contents of a confidential document prepared by the representative; and

   2. (b)

      the communication or document was for the dominant purpose of—

      1. (i)

         providing advice to the first party; or

      2. (ii)

         preparing for or conducting a proceeding, or anticipated proceeding,

   in relation to a matter in which the representative would be entitled to appear before the Tribunal in accordance with a relevant Act.

49Substitution of section 65

Section 65—delete the section and substitute:

65—Power to enlarge scope

1. (1)

   The Tribunal may enlarge the scope of proceedings to include questions that are not presently at issue in the proceedings—

   1. (a)

      in the case of proceedings under the Return to Work Act 2014—if, on application and after giving all parties an opportunity to be heard, the Tribunal is satisfied it is in the interests of justice that a question should be determined as part of the proceedings; or

   2. (b)

      in any case—with the consent of all parties to the proceedings.

2. (2)

   In considering whether it is in the interests of justice that a question should be determined as part of the proceedings under subsection (1)(a), the Tribunal must have regard to the principle that all issues in dispute between the parties should be heard and determined in the same proceeding insofar as is just and appropriate.

50Amendment of section 67 – Appeals

Section 67(6)—delete "(including orders for costs)" and substitute:

(but may only make an order for costs if this Act, or a relevant Act, specifically provides for the making of such an order)

51Amendment of section 72 – Functions of registrars

Section 72—after subsection (3) insert:

1. (4)

   A person affected by an exercise of administrative power by a registrar in relation to a proceeding before the Tribunal may, on application made in a manner and within the time prescribed by the Rules, apply to the Tribunal for a review of that exercise of power.

2. (5)

   A Presidential member of the Tribunal may, on an application made under subsection (4), review the exercise of power that is the subject of the application (by holding a hearing or in any other manner the member thinks fit) and make such orders as the member thinks fit with respect to the matter.

3. (6)

   No appeal lies against a decision of a Presidential member of the Tribunal under subsection (5).

52Amendment of section 83A – Transfer of proceedings

1. (1)

   Section 83A—after subsection (3) insert:

   1. (3a)

      The Magistrates Court or a Magistrate may transfer civil proceedings in the Magistrates Court that lie within the jurisdiction of the Tribunal to the Tribunal.

2. (2)

   Section 83A(5)—delete "or (3)" and substitute:

   , (3) or (3a)

53Amendment of section 86 – Enforcement of decisions and orders of Tribunal

Section 86(1)—delete subsection (1) and substitute:

1. (1)

   If the Tribunal constituted as the South Australian Employment Court makes a monetary order, the order is enforceable, and any action may be taken in respect of the order, as if it were a judgment or order of the appropriate court.

2. (1a)

   If the Tribunal constituted as an industrial relations commission makes a monetary order, the amount specified in the order may be recovered in the appropriate court as if it were a debt.

3. (1b)

   No court fees are payable in relation to proceedings in an appropriate court in respect of a monetary order made by the Tribunal, including proceedings under the Enforcement of Judgments Act 1991.

4. (1c)

   Where, in accordance with a relevant Act, a person who is not a legal practitioner is entitled to act as a representative of a party before SAET, that person may also act as a representative of that party in any proceedings under the Enforcement of Judgments Act 1991 before an appropriate court with respect to an order made by SAET.

54Amendment of section 91 – Disrupting proceedings of Tribunal

Section 91(2)(a)—delete "(other than an order for payment of money)"

55Amendment of section 92 – Rules

Section 92(1)—after paragraph (l) insert:

1. (la)

   providing for the suspension of inactive proceedings; and

56Transitional provisions

1. (1)

   Section 6A of the principal Act, as amended by section 43 of this Act, applies in relation to proceedings commenced in the South Australian Employment Court after the commencement of section 43 of this Act.

2. (2)

   Section 19(3) of the principal Act, as substituted by section 45(1) of this Act, applies in relation to proceedings commenced before a Full Bench of the South Australian Employment Tribunal after the commencement of section 45(1) of this Act.

3. (3)

   Section 19(4a) of the principal Act, as inserted by section 45(2) of this Act, applies in relation to proceedings commenced before the South Australian Employment Tribunal after the commencement of section 45(2) of this Act.

4. (4)

   Section 51(4) of the principal Act, as inserted by section 48 of this Act, applies, on and from the commencement of section 48 of this Act, to any proceedings regardless of when the communication or document referred to in section 51(4) occurred or was created (as the case requires).

5. (5)

   Section 65 of the principal Act, as substituted by section 49 of this Act, applies, on and from the commencement of section 49 of this Act, to any proceedings regardless of whether the proceedings were commenced before or after that commencement.

1. (6)

   Section 72(4) and (5) of the principal Act, as inserted by section 51 of this Act, apply to an exercise of administrative power occurring after the commencement of section 51 of this Act.

2. (7)

   In this section—

principal Act means the South Australian Employment Tribunal Act 2014.

Part 6Amendment of Work Health and Safety Act 201257Amendment of section 230 – Prosecutions

Section 230(4)—delete "$300 000" and substitute:

$1 500 000

58Transitional provision

Section 230(4) of the Work Health and Safety Act 2012, as amended by section 57 of this Act, applies in relation to proceedings commenced in the South Australian Employment Court after the commencement of section 57 of this Act.