Treasurer for the State of South Australia v United Trades and Labour Council (Trading as SA Unions)

The Treasurer for the State of South Australia appealed a decision of the South Australian Employment Tribunal (SAET) concerning the interpretation and application of section 100 of the *Fair Work Act 1994* (SA). The SAET had made a declaration and order that increased a recreation leave loading entitlement under an award. The Treasurer contended that the SAET had erred in its finding that a relevant principle from a Fair Work Commission (FWC) annual wage review decision was sufficiently "attached to" the FWC decision to permit the SAET's action under section 100.

The central legal issue before the Full Court of the Supreme Court of South Australia was the proper construction of section 100 of the *Fair Work Act 1994* (SA), which allows the SAET to make declarations adopting principles, guidelines, conditions, practices, or procedures that are "enunciated, laid down in or attached to" a decision or determination of the FWC. Specifically, the court had to determine whether the SAET had correctly identified and applied such a principle from the FWC's Annual Wage Review 2017-2018 decision to justify its order regarding the recreation leave loading.

The Full Court, allowing the appeal, held that the requirement in section 100 necessitated that the principles be expressly or impliedly found within the text of the FWC decision or in an incorporated document. The court found that the SAET erred in concluding that the principle it relied upon – that entitlements related to or fixed by reference to variations in minimum award rates are capable of adjustment following an FWC annual wage review if deemed appropriate to maintain a fair safety net – was sufficiently "attached to" the FWC's decision. The court reasoned that the FWC's decision was concerned with national minimum wages and did not address recreation leave loading, meaning no principle relevant to increasing such loading could be found in its text, either expressly or by implication. Consequently, the condition precedent for making a declaration under section 100 was not established.

The Full Court set aside the declaration and order made by the SAET on 1 May 2019. The matter was remitted to the SAET for further consideration.