Fair Work Act 1994

Version: 28.3.2024

Published under the Legislation Revision and Publication Act 2002 1

South Australia

Fair Work Act 1994

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

Contents

Chapter 1—Preliminary

1 Short title

3 Objects of Act

4 Interpretation

5 Outworkers

6 Application of Act to employment

Chapter 2—Jurisdiction of SAET—special provisions

Part 1—Conferral of jurisdiction, declarations and orders

7 Jurisdiction of SAET

8 Jurisdiction to interpret awards and enterprise agreements

9 Jurisdiction to decide monetary claims under industrial laws or instruments

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

11 Declaratory jurisdiction

12 Orders to remedy or restrain contraventions

13 Advisory jurisdiction

Part 2—Processes associated with industrial matters and disputes

14 Amendment or rectification of proceedings

15 Power to re-open questions

16 General power of waiver

17 Applications to SAET

18 Advertisement of applications

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

20 Voluntary conferences

21 Compulsory conference

22 Reference of questions for determination

23 Experience gained in settlement of dispute

24 Costs generally

Part 3—Representation

25 Representation

26 Registered agents

27 Inquiries into conduct of registered agents or other representative

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Part 4—Concurrent appointments—other industrial authorities

28 Concurrent appointments

29 Powers of member holding concurrent appointments

Part 5—Special provisions relating to monetary claims

30 Interpretation

31 Limitation of action

32 Who may make a claim

33 Simultaneous proceedings not permitted

34 Award to include interest

35 Monetary judgment

36 Costs

Chapter 3—Employment

Part 1—General conditions of employment

Division 1—Basic contractual features

66 Basis of contract of employment

67 Accrual of wages

68 Form of payment to employee

Division 2—Contracts to be construed subject to relevant minimum standards

69 Remuneration

70 Sick leave/carer's leave

70A Bereavement leave

70B Family and domestic violence leave

71 Annual leave

72 Parental leave

72A Minimum standards—additional matters

72B Special provision relating to severance payments

Part 2—Regulation of industrial matters by enterprise agreements

73 Objects of this Part

74 Nature of enterprise agreement

75 Who may make enterprise agreement

76 Negotiation of enterprise agreement

76A Best endeavours bargaining

77 Form and content of enterprise agreement

78 Enterprise agreement has no force or effect without approval

79 Approval of enterprise agreement

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

confidential

81 Effect of enterprise agreement

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

83 Duration of enterprise agreement

84 Power of SAET to vary or rescind an enterprise agreement

85 SAET may release party from obligation to comply with enterprise agreement

86 Limitation on SAET's powers

87 Representation

88 Confidentiality

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Contents

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Part 3—Regulation of industrial matters by award

Division 1—Awards generally

90 Power to regulate industrial matters by award

90A Equity in remuneration

91 Who is bound by award

92 Retrospectivity

93 Form of awards

94 Effect of awards on contracts

95 Effect of multiple award provisions on remuneration

96 Duration of award

97 Effect of amendment or rescission of award

98 Consolidation or correction of awards

Division 1A—Special provision relating to child labour

98A Special provision relating to child labour

Division 1B—Special provision relating to trial work

98B Special provision relating to trial work

Division 2—Review of awards

99 Triennial review of awards

Part 3A—Outworkers

Division 1—Preliminary

99A Interpretation

99B Responsible contractors

Division 2—Code of practice

99C Code of practice

Division 3—Recovery of unpaid remuneration

99D Outworker may initiate a claim against a responsible contractor

99E Liability of apparent responsible contractor on a claim

99F Liability of actual employer to which a claim is referred

99G Recovery of amount of unpaid remuneration

99H Ability of responsible contractor to claim contribution or to make deduction

99I Offence provision

99J Non-derogation

Part 4—General principles affecting determination of working conditions

100 Adoption of principles affecting determination of remuneration and working conditions

101 State industrial authorities to apply principles

Part 5—Enforcement of obligations arising from employment

Division 1—Records to be kept by employers

102 Records to be kept

103 Employer to provide copy of award or enterprise agreement

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Part 6—Unfair dismissal

Division 1—Preliminary

105 Interpretation

105A Application of Part

Division 2—Application for relief

106 Application for relief

Division 4—Determination of application

108 Question to be determined at the hearing

109 Remedies for unfair dismissal from employment

Division 5—Miscellaneous

110 Costs

111 Decisions to be given expeditiously

Part 7—Exemption from employment conditions

112 Slow, inexperienced or infirm workers

113 Non-application of awards

114 Exemption for charitable organisations

Chapter 4—Associations

Part 1—Freedom of association

Division 1—Preliminary

115 Prohibited reason

Division 2—Protection of freedom of association

116 Freedom of association

116A General offences against the principle of freedom of association

116B Dismissal etc for prohibited reason

117 Prohibition of discrimination in supply or purchase of goods or services

118 Conscientious objection

Part 2—Locally based associations

Division 1—Application for registration

119 Eligibility for registration

120 Application for registration

121 Objections

Division 2—Registration and incorporation

122 Registration of associations

123 Registration confers incorporation

Division 3—Rules

124 Rules

125 Alteration of rules of registered association

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126 Model rules

127 Orders to secure compliance with rules etc

Division 4—Financial records

128 Financial records

Division 5—Amalgamation

129 Amalgamation

Division 6—De-registration

130 De-registration of associations

Part 3—Federally based associations

Division 1—Application for registration

131 Eligibility for registration

132 Application for registration

133 Objections

Division 2—Registration and de-registration

134 Registration

135 De-registration

Division 3—Federations

136 Federation

Part 4—Provisions generally applicable to associations

Division 1—Purpose of association

137 Restraint of trade

138 Limitations of actions in tort

139 Industrial services not to be provided to non-members

Division 2—Powers of entry and inspection

140 Powers of officials of employee associations

Division 3—Records

141 Register of members and officers of associations

142 Rules

Division 4—Miscellaneous

143 Certificate of registration

144 Service

145 Saving of obligations

146 Sequestration orders

147 Exercise of powers of SAET

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Chapter 6AA—Industrial Relations Consultative Council

Part 1—Establishment of Consultative Council

218 Establishment of Consultative Council

Part 2—Functions and powers

218A Functions and powers of Consultative Council

Part 3—Composition of Consultative Council

218B Membership of Consultative Council

218C Terms and conditions of office

218D Fees, allowances and expenses

Part 4—Proceedings of Consultative Council

218E Meetings

218F Proceedings

218G Conflict of interest under Public Sector (Honesty and Accountability) Act 1995

218H Validity of acts

Part 5—Use of staff and facilities

218I Use of staff and facilities

Part 6—Committees

218J Committees

Part 7—Related matters

218K Confidentiality

Chapter 6—Miscellaneous

219 Confidentiality

219A Who are inspectors

219B General functions of inspectors

219C Powers of inspectors

219D Compliance notices

220 Notice of determinations of SAET

223 Discrimination against employee for taking part in industrial proceedings etc

224 Non-compliance with awards and enterprise agreements

225 Improper pressure etc related to enterprise agreements

225A Use of offensive language against a representative

226 False entries

227 Experience of apprentice etc how calculated

228 No premium to be demanded for apprentices or juniors

229 Illegal guarantees

230 Orders for payment of money

231 Recovery of penalty from members of association

232 General defence

233 Order for payment against convicted person

234 Proof of awards etc

235 Proceedings for offences

236 Conduct by officers etc of body corporate

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Contents

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236A Offences by body corporate

237 Regulations

Schedule 1—Transitional provisions

4 Definitions

5 References to former Court or Commission

6 Awards and other determinations of the former Commission

7 Industrial agreements

7A References to industrial agreements

8 Continuation of part-heard proceedings etc

9 Certificates and licences

10 The President of the former Court

11 Deputy Presidents of the Court

12 Industrial magistrates

13 Other officers of former Court and Commission

14 Inspectors

15 Members of Industrial Relations Advisory Council

16 Registered associations

17 Enterprise agreements and spouses and domestic partners

18 National industrial relations system

Schedule 2—Continuity of industrial arrangements—government business

enterprises

1 Preliminary

2 Operation of federal industrial instruments

3 Ability to carry over matters

Schedule 2A—Continuity of industrial arrangements—local government

sector

1 Preliminary

2 State industrial instruments

3 Federal industrial instruments—immediate changeover

4 Federal enterprise agreements—later changeover

5 Ability to carry over matters

Schedule 3—Minimum standard for sick leave/carer's leave

1 Definitions

2 Application of standard

3 Accrual of sick leave entitlement

4 Taking sick leave

5 Sick leave to be on full pay

6 Carer's leave

Schedule 3A—Minimum standard for bereavement leave

1 Bereavement leave

Schedule 3B—Family and domestic violence leave

1 Definitions

2 Entitlement to family and domestic violence leave

3 Taking family and domestic violence leave

4 Family and domestic violence leave to be at full rate of pay

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5 Confidentiality

Schedule 4—Minimum standard for annual leave

1 Definitions

2 Application of standard

3 Accrual of annual leave entitlement

4 Taking annual leave

5 Annual leave to be on full pay

Schedule 5—Minimum standard for parental leave

1 Definitions

2 Entitlement to parental leave

3 Maternity leave to start 6 weeks before birth

4 Medical certificate

5 Notice of spouse's parental leave

6 Starting and finishing dates of parental leave

7 Return to work after parental leave

8 Effect of parental leave on employment rights

9 Part-time employment in lieu of parental leave

Schedule 6—Equal Remuneration Convention

Schedule 7—Termination of Employment Convention

Schedule 8—Rules for terminating employment

1 Employee to be given notice of termination

2 Employee to have opportunity to respond to allegations

3 Employer to comply with obligations imposed by regulation

Schedule 9—Worst Forms of Child Labour Convention 1999

Schedule 10—Workers with Family Responsibilities Convention 1981

Schedule 11—Workers' Representatives Convention 1971

Legislative history

28.3.2024—Fair Work Act 1994

Preliminary—Chapter 1

Published under the Legislation Revision and Publication Act 2002 1

The Parliament of South Australia enacts as follows:

Chapter 1—Preliminary

1—Short title

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

3—Objects 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

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

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(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

4—Interpretation

(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;

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Preliminary—Chapter 1

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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.

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

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);

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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;

(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;

(b) a ban, limitation, or restriction affecting the performance of work, or the

offering or acceptance of work; or

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

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

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Preliminary—Chapter 1

Published under the Legislation Revision and Publication Act 2002 5

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;

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;

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(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

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

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);

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Preliminary—Chapter 1

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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

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

(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

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.

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Chapter 1—Preliminary

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(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.

5—Outworkers

(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.

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Preliminary—Chapter 1

Published under the Legislation Revision and Publication Act 2002 9

(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.

6—Application 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.

1.7.2017—Fair Work Act 1994

Jurisdiction of SAET—special provisions—Chapter 2

Conferral of jurisdiction, declarations and orders—Part 1

Published under the Legislation Revision and Publication Act 2002 1

Chapter 2—Jurisdiction of SAET—special provisions

Part 1—Conferral of jurisdiction, declarations and orders

7—Jurisdiction 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

8—Jurisdiction to interpret awards and enterprise agreements

(1) SAET has jurisdiction to interpret an award or enterprise agreement.

(2) In exercising its interpretative jurisdiction—

(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

(b) if a common intention is ascertainable—give effect to that intention.

9—Jurisdiction 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:

(a) a claim for a sum due to an employee or former employee from an employer

or former employer under—

(i) the Fair Work Act 1994, an award, enterprise agreement or contract

of employment; or

(ii) the Commonwealth Act, or an award or agreement under the

Commonwealth Act;

(b) a claim for a sum due to an employer or former employer from an employee

or former employee under—

(i) the Fair Work Act 1994, an award, enterprise agreement or contract

of employment; or

(ii) the Commonwealth Act, or an award or agreement under the

Commonwealth Act;

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Chapter 2—Jurisdiction of SAET—special provisions

Part 1—Conferral of jurisdiction, declarations and orders

2 Published under the Legislation Revision and Publication Act 2002

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;

(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.

10—Jurisdiction 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)—

(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

(b) a claim to recover a liquidated sum or debt under a contract of employment;

and

(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—

(a) make an order for specific performance against an employer or an employee

under a contract of employment;

(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;

manner of a breach of the contract (including where the breach constitutes or

gives rise to a termination of the contract);

(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—

(a) even if such a remedy is in addition to, or in substitution for, an award of

damages; and

(b) even if, but for this subsection, only damages would be awarded.

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(4) The South Australian Employment Court—

(a) should not, except in exceptional circumstances, in exercising its jurisdiction

under this section—

(i) make an order for specific performance against a natural person; or

(ii) grant an injunction, or give equivalent relief, against a natural person

under a contract of employment,

if to do so would—

(iii) effectively require an employer to reorganise, to a material extent,

his or her undertaking; or

(iv) effectively prevent an employee from obtaining other employment;

and

(b) in considering the interests of justice under subsection (3), should take into

account—

(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

(ii) the extent to which there no longer exists mutual confidence in the

employment relationship between the employer and the employee;

and

(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.

11—Declaratory jurisdiction

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

this Act.

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12—Orders 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.

13—Advisory 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 2—Processes associated with industrial matters and

disputes

14—Amendment 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.

15—Power to re-open questions

SAET may re-open a question previously decided and amend or quash an earlier

determination.

16—General 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.

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17—Applications 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

(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.

18—Advertisement 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.

19—Provisions 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.

20—Voluntary conferences

(1) SAET may, if it appears desirable, call a voluntary conference of the parties involved

in an industrial dispute.

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(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.

21—Compulsory 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.

22—Reference 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.

23—Experience 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

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(b) encouraging the parties to agree on procedures for preventing or settling

further disputes by discussion and agreement; and

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.

24—Costs 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 3—Representation

25—Representation

(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

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

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(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.

26—Registered 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

(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;

of an unregistered association.

27—Inquiries 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—

(a) in the case of a registered agent—

(i) the agent commits a breach of the code of conduct; or

(ii) the agent is not a fit and proper person to remain registered as an

agent; or

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(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—

(a) issue a letter of admonition; or

(b) if the representative is a legal practitioner—refer the matter to the Legal

Profession Conduct Commissioner for investigation; or

(i) suspend the agent's registration for a period of up to 6 months; or

(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 appointments—other industrial authorities

28—Concurrent 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.

29—Powers 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.

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Part 5—Special provisions relating to monetary claims

30—Interpretation

In this Part—

monetary claim means a claim under section 9 or a claim for a sum or a debt under

section 10.

31—Limitation 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.

32—Who 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.

33—Simultaneous 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.

34—Award 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

for which judgment is given by consent except by consent of the parties.

35—Monetary 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.

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36—Costs

(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.

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Basic contractual features—Division 1

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Chapter 3—Employment

Part 1—General conditions of employment

Division 1—Basic contractual features

66—Basis 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.

67—Accrual 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

of employment is less than a week, wages accrue at the end of the period of

employment.

68—Form 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

court, or under a law of the State or the Commonwealth.

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(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 2—Contracts to be construed subject to relevant minimum

standards

69—Remuneration

(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;

(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.

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70—Sick 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.

70A—Bereavement 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.

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70B—Family 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.

71—Annual 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.

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72—Parental 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.

72A—Minimum 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.

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(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.

72B—Special 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—

(a) review the minimum standard for severance payments on termination of

employment for redundancy 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.

(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—

(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.

(5) SAET may, on application by—

(a) an employee (or a group of employees); or

(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)—

(a) —

(i) the relevant employee or employees have been given notice of a

pending redundancy or redundancies; or

(ii) the employment of the relevant employee or employees has been

terminated for redundancy; and

(b) the application is made within 21 days after the notice is given or the

employment is terminated.

(7) An order under subsection (5)—

(a) need not be made by SAET; and

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(b) may provide for the variation of the minimum standard for severance

payments in the circumstances of the particular case; and

(8) SAET must only act under subsection (7)(b) if satisfied that there are cogent reasons

for doing so.

Part 2—Regulation of industrial matters by enterprise

agreements

73—Objects 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

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.

74—Nature of enterprise agreement

An enterprise agreement may be made about remuneration and other industrial

matters.

75—Who 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.

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(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).

76—Negotiation 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.

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(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.

76A—Best 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

(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.

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(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.

77—Form 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

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 employees

; 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—

1 However, the provision must be consistent with section 116(1).

78—Enterprise agreement has no force or effect without approval

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

79—Approval 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—

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(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

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.

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(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

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(b) the enterprise is suffering significant economic difficulties; and

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 group

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.

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(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—

1 The group may, if the appropriate authorisation exists, be represented in the negotiations

by an association or associations of employees—See section 75.

80—Extent 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—

(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

(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.

81—Effect 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.

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(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—

(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

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

(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.

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(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);

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.

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

(1) An enterprise agreement cannot limit—

(a) SAET's powers of conciliation; or

(b) SAET's powers to settle industrial disputes between the employer and the

employees bound by the agreement.

(2) However—

(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

(b) a determination made by SAET in settlement of such a dispute—

(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

(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.

83—Duration 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.

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(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.

84—Power of SAET to vary or rescind an enterprise agreement

(1) SAET may vary an enterprise agreement—

(a) to give effect to an amendment agreed between the employer and a majority

of the employees currently bound by the agreement; or

(b) to correct an ambiguity or uncertainty in the agreement; or

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—

(a) that the employer or a majority of the employees bound by the agreement

want it rescinded; and

(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,

SAET may rescind the agreement.

85—SAET may release party from obligation to comply with enterprise

agreement

(1) If an employer or employee bound by an enterprise agreement engages in industrial

action in relation to a matter dealt with in the agreement, SAET may, on application

by another person bound by the agreement who is affected by the industrial action,

order that the applicant be released from the agreement or that the terms of the

agreement be varied in a specified way.

(2) Subject to the terms of an enterprise agreement, SAET may, on application by a

person bound by the agreement, include, omit or vary a term authorising the employer

to stand down an employee.

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(3) SAET may only make an order under this section if satisfied it is fair and reasonable

to do so.

86—Limitation on SAET's powers

SAET has no power to vary or rescind an enterprise agreement apart from the powers

expressly conferred on SAET by this Part.

87—Representation

An association of employers or employees may, subject to the provisions of any

relevant enterprise agreement

, represent members of the association in negotiations

and proceedings under this Part.

Note—

1 See section 77(1)(d).

88—Confidentiality

(1) If an enterprise agreement prohibits the disclosure of information of a confidential

nature, a person who discloses the information contrary to the agreement is guilty of

an offence.

Maximum penalty: $750.

(2) However, an enterprise agreement cannot prohibit the disclosure of information of a

statistical nature to the Minister.

Part 3—Regulation of industrial matters by award

Division 1—Awards generally

90—Power to regulate industrial matters by award

(1) SAET may make an award about remuneration and other industrial matters

(2) However—

(a) SAET cannot regulate the composition of an employer's workforce except in

relation to the employment of juniors and apprentices; and

(b) if there is an inconsistency between an award and an enterprise agreement,

then, while the agreement continues in force, the agreement prevails to the

extent of the inconsistency.

(3) SAET may provide in an award for remuneration, leave or other conditions of

employment that are more favourable to employees than the standards that apply

under Part 1 Division 2.

(4) SAET may refrain from hearing, further hearing, or determining an application for an

award binding only one employer or two or more employers who together carry on a

single business or for variation of such an award for so long as SAET—

(a) considers that, in all the circumstances, the parties concerned should try to

negotiate an enterprise agreement to deal with the subject matter of the

application; and

28.3.2024—Fair Work Act 1994

Employment—Chapter 3

Regulation of industrial matters by award—Part 3

Awards generally—Division 1

Published under the Legislation Revision and Publication Act 2002 19

(b) is not satisfied that there is no reasonable prospect of the parties making such

an agreement.

(5) An award may be made on a provisional or interim basis.

(6) In making an award, SAET is not restricted to the specific relief claimed by the

parties, but may include in the award provisions SAET considers necessary or

appropriate.

(7) Before SAET makes an award, it must take reasonable steps to ensure that all persons

who are to be bound by the award have been given a reasonable opportunity to appear

and be heard before SAET.

Note—

1 Any of the bodies or persons mentioned in section 194 may bring an application for the

making of an award.

90A—Equity in remuneration

In making an award regulating remuneration, SAET must take all reasonable steps to

ensure that the principle of equal remuneration for men and women doing work of

equal or comparable value is applied (insofar as may be relevant).

91—Who is bound by award

(1) An award of SAET is binding on all persons expressed to be bound by the award.

(2) If—

(a) an award is expressed to apply to a particular employer, or to an employer

engaged in a particular business or undertaking (the outgoing employer); and

(b) another employer (the incoming employer) becomes the successor,

transmittee or assignee of the whole or part of the business or undertaking of

the outgoing employer,

the incoming employer succeeds to rights and obligations of the outgoing employer

under the award.

(3) Subsection (2) operates subject to any provision made by SAET (on application under

this Act) to vary or rescind the relevant award.

92—Retrospectivity

(1) An award of SAET has, if it so provides, retrospective operation.

(2) However, an award cannot operate retrospectively from a day antecedent to the day on

which the application for the award was lodged with SAET unless—

(a) the date of operation is fixed by consent of all parties to the proceedings; or

(b) there is a nexus between the award and—

(i) another award of SAET; or

(ii) a fair work instrument under the Commonwealth Act,

and, in view of the nexus, it is imperative that there should be common dates

of operation; or

Fair Work Act 1994—28.3.2024

Chapter 3—Employment

Part 3—Regulation of industrial matters by award

Division 1—Awards generally

20 Published under the Legislation Revision and Publication Act 2002

principles, guidelines or conditions relating to remuneration enunciated or

laid down in, or attached to, a relevant decision or determination of the Fair

Work Commission and there are reasons of exceptional cogency for giving it

a retrospective operation.

93—Form of awards

(1) An award must be expressed in plain English and must avoid unnecessary technicality

and excessive detail.

(2) An award must be settled and sealed by the Registrar.

94—Effect of awards on contracts

An award prevails over a contract of employment to the extent the award is more

beneficial to the employee than the contract.

95—Effect of multiple award provisions on remuneration

(1) If—

(a) an employee is engaged in work of different classes; and

(b) an award or awards fix different rates of remuneration for the different classes

of work,

the remuneration of the employee is to be calculated by reference to the time spent in,

and the rate of remuneration for, each class of work.

(2) However, an award may fix a special rate of remuneration for an employee engaged in

work of different classes.

96—Duration of award

An award continues in operation, subject to its terms, and subject to amendment or

revocation, until superseded by a later award.

97—Effect of amendment or rescission of award

The variation or rescission of an award does not affect—

(a) legal proceedings previously commenced under or in relation to the award; or

(b) rights existing at the time of the variation or rescission.

98—Consolidation or correction of awards

(1) The Registrar must ensure that the text of any award that has been amended by

another award is consolidated to include the amendments at least once in each period

of 12 months.

(2) The Registrar may, at any time, correct clerical or other errors in an award.

28.3.2024—Fair Work Act 1994

Employment—Chapter 3

Regulation of industrial matters by award—Part 3

Special provision relating to child labour—Division 1A

Published under the Legislation Revision and Publication Act 2002 21

Division 1A—Special provision relating to child labour

98A—Special provision relating to child labour

(1) SAET may, by award—

(a) determine that children should not be employed in particular categories of

work or in an industry, or a sector of an industry, specified by the award;

(b) impose special limitations on hours of employment of children;

(d) provide for the supervision of children who work;

(e) make any other provision relating to the employment of children as SAET

thinks fit.

(2) Subsection (1) does not limit the powers of SAET to make awards that relate to

children under the other provisions of this Act.

(3) Without limiting subsection (1), SAET must, within 1 year after the commencement

of this section, commence reviewing the awards applying under this Act that may be

relevant to the employment of children to ensure that they reflect appropriate

standards with respect to the employment of children (insofar as may be relevant).

(4) SAET must, in acting under subsection (3), give priority to those awards that relate to

industries (or sectors of industries) where the employment of children is most

prevalent.

(5) SAET may, in making an award under this section, make a determination that only

relates to children of a specified age or ages.

Division 1B—Special provision relating to trial work

98B—Special provision relating to trial work

(1) SAET may, by award—

(a) determine that a person who undertakes a specified category of work (in any

specified circumstances) on a trial basis in an industry, or a sector of an

industry, specified by the award with a view to obtaining employment with

the person from whom the work is performed is entitled to be paid for that

work in accordance with the terms of the award;

(b) impose limitations of the performance of work on a trial basis in an industry,

or a section of an industry, specified in the award;

if SAET is of the opinion that action under this section is justified in order to prevent

the abuse of the performance of work on a trial basis in the relevant circumstances.

(2) SAET may, in setting rates of pay with respect to particular work under

subsection (1), specify different rates according to the different levels of skill or

experience that persons undertaking the work may possess.

Fair Work Act 1994—28.3.2024

Chapter 3—Employment

Part 3—Regulation of industrial matters by award

Division 1B—Special provision relating to trial work

22 Published under the Legislation Revision and Publication Act 2002

(3) Subsection (1) does not limit the powers of SAET to make any award under the other

provisions of this Act.

(4) Subsection (1) applies even though the persons to whom an award will relate will not

be employees for the purposes of this Act.

(5) A person who is entitled to be paid under an award under this section is entitled to

recover the amount that should be paid as if the person were an employee of the

person for whom the work was performed.

Division 2—Review of awards

99—Triennial review of awards

(1) SAET must review each award at least once in every three years.

(1a) However, in the case of the first review to be conducted after the commencement of

this Act, the period allowed for the review is extended to 31 December 1997.

(2) At least 21 days before it begins a review under this section, SAET must give notice

of the review—

(a) to associations and other persons that appeared in the proceedings in which

the award was made; and

(b) by notice in a newspaper circulating generally throughout the State.

(3) On a review under this section, SAET may vary an award to ensure that the award—

(a) is consistent with the objects of this Act; and

(b) affects only to the minimum extent necessary the way work is carried out; and

workplace; and

(d) is consistent with industrial, technological, commercial and economic

developments applicable to the relevant industry; and

(e) complies with other requirements prescribed by regulation.

(4) If, on review of an award it appears that the award is obsolete, SAET should rescind

the award.

(5) Before it varies or rescinds an award under this section, SAET must give the parties to

the award a reasonable opportunity to make submissions on the proposed action, and

take any submissions made by the parties into consideration.

Part 3A—Outworkers

Division 1—Preliminary

99A—Interpretation

In this Part—

apparent responsible contractor—see section 99D;

code of practice means the code of practice in operation under Division 2 (if any);

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Employment—Chapter 3

Outworkers—Part 3A

Preliminary—Division 1

Published under the Legislation Revision and Publication Act 2002 23

remuneration includes—

(a) any remuneration or other amount, including commission, payable in relation

to work done by an outworker;

(b) any amount payable to an outworker in respect of annual leave or long service

leave;

compensated for under the code of practice;

unpaid remuneration means remuneration that is the subject of a claim under

section 99D.

99B—Responsible contractors

(1) Subject to this section, a person will be taken to be a responsible contractor in relation

to an outworker or a group of outworkers engaged (or previously engaged) under a

contract of employment with someone else if the person is a person who initiates an

order for the relevant work (other than (if relevant) as a purchaser at the point of sale

by retail), or distributes the relevant work (even though there may then be a series of

contracts before the work is actually performed by the outworker or outworkers).

(2) The fact that a person is to be taken to be a responsible contractor for the purposes of

this Part does not affect any obligation of another person as an employer under a

contract of employment.

(3) A person whose sole business in connection with the clothing industry is the sale of

clothing (and associated items) by retail will not be taken to be a responsible

contractor under this section (but may be taken to be an employer under a contract of

employment between the person and an outworker).

Division 2—Code of practice

99C—Code of practice

(1) The Governor may, by regulation, establish a code of practice for the purpose of

ensuring that outworkers are treated fairly in a manner consistent with the objects of

this Act.

(2) The code of practice may make different provision according to the matters or

circumstances to which they are expressed to apply.

(3) The code of practice may apply, adopt or incorporate, with or without modification, a

standard or other document prepared or published by a body specified in the code, as

in force at a particular time or as in force from time to time.

(4) A code of practice may—

(a) require employers or other persons engaged in an industry, or a sector of an

industry, specified or described in the code to adopt the standards of conduct

and practice with respect to outworkers set out in the code; and

(b) make arrangements relating to the remuneration of outworkers, including by

specifying matters for which an outworker is entitled to be reimbursed or

compensated for with respect to his or her work or status as an outworker;

and

Fair Work Act 1994—28.3.2024

Chapter 3—Employment

Part 3A—Outworkers

Division 2—Code of practice

24 Published under the Legislation Revision and Publication Act 2002

(d) make such other provision in relation to the work or status of outworkers as

the Governor thinks fit.

(5) SAET may make an award incorporating any term of the code of practice or make any

other provision to give effect to the code of practice.

(6) Subsection (5) does not limit the powers of SAET to make awards that relate to

outworkers under the other provisions of this Act.

(7) If there is an inconsistency between an award and the code of practice, the award

prevails to the extent of the inconsistency.

Division 3—Recovery of unpaid remuneration

99D—Outworker may initiate a claim against a responsible contractor

(1) An outworker may initiate a claim for unpaid remuneration (an unpaid remuneration

claim) against a person identified by the outworker as the person who the outworker

believes on reasonable grounds to be a responsible contractor in relation to the

outworker (the apparent responsible contractor).

(2) The unpaid remuneration claim may be for all or any of the remuneration that is

payable to the outworker on account of work performed by the outworker that was (or

apparently was) initiated or distributed by the apparent responsible contractor (and it

does not matter that there may be more than 1 responsible contractor).

(3) The unpaid remuneration claim must be made within 6 months after the relevant work

is completed by the outworker.

(4) The unpaid remuneration claim is to be made by serving a written notice on the

apparent responsible contractor that—

(a) claims payment of the unpaid remuneration; and

(b) sets out the following particulars:

(i) the name of the outworker; and

(ii) the address at which the outworker may be contacted; and

(iii) a description of the work that has been performed; and

(iv) the date or dates on which the work was performed; and

(v) the amount of unpaid remuneration claimed in respect of the work.

(5) The particulars set out in the unpaid remuneration claim must be verified by statutory

declaration.

(6) A claim under this section may only be made in respect of work performed after the

commencement of this section.

99E—Liability of apparent responsible contractor on a claim

(1) Except as provided by subsection (4), an apparent responsible contractor served with

an unpaid remuneration claim is liable for the amount of unpaid remuneration

claimed.

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Employment—Chapter 3

Outworkers—Part 3A

Recovery of unpaid remuneration—Division 3

Published under the Legislation Revision and Publication Act 2002 25

(2) An apparent responsible contractor may, within 14 days after being served with an

unpaid remuneration claim, refer the claim to another person the apparent responsible

contractor knows or has reason to believe is the employer of the outworker under this

Act (the designated employer).

(3) An apparent responsible contractor refers an unpaid remuneration claim under

subsection (2) by—

(a) advising the outworker who has made the claim, in writing, of the name and

address of the designated employer; and

(b) serving a copy of the claim (a referred claim) on the actual employer.

(4) The apparent responsible contractor is not liable for the whole or any part of an

amount of an unpaid remuneration claim for which the designated employer served

with a referred claim accepts liability in accordance with section 99F.

99F—Liability of actual employer to which a claim is referred

(1) A designated employer served with a referred claim under section 99E may, within

14 days after being served, accept liability for the whole or any part of an amount of

unpaid remuneration claimed by paying it to the outworker concerned.

(2) A designated employer who accepts liability under subsection (1) must serve notice in

writing on the apparent responsible contractor of that acceptance and of the amount

paid.

99G—Recovery of amount of unpaid remuneration

(1) An amount payable to an outworker by an apparent responsible contractor that is not

paid in accordance with the requirements of this Division may be recovered by the

outworker as a monetary claim under section 9.

(3) In proceedings brought under this section, an order for the apparent responsible

contractor to pay the amount claimed must be made unless the apparent responsible

contractor satisfies the South Australian Employment Court that the work was not

performed or that the amount of the claim for the work in the unpaid remuneration

claim is not the correct amount in respect of the work.

99H—Ability of responsible contractor to claim contribution or to make

deduction

(1) If an apparent responsible contractor pays to the outworker concerned the whole or

any part of the amount of any unpaid remuneration claim under this Division, the

apparent responsible contractor may—

(a) recover the amount paid from a related employer; or

(b) deduct or set-off the amount paid from or against any amount that the

apparent responsible contractor owes to a related employer (whether or not in

respect of work that has been carried out by the outworker).

(2) For the purposes of subsection (1), a related employer in relation to an apparent

responsible contractor is—

(a) the actual employer of the outworker concerned; or

Fair Work Act 1994—28.3.2024

Chapter 3—Employment

Part 3A—Outworkers

Division 3—Recovery of unpaid remuneration

26 Published under the Legislation Revision and Publication Act 2002

(b) another responsible contractor whose contractual relationship with the

outworker concerned on account of the work performed by the outworker is,

when all relevant contractual relationships are considered, closer than the

contractual relationship between the apparent responsible contractor and the

outworker.

99I—Offence provision

A person must not—

(a) by intimidation or by any other act or omission, intentionally hinder or

prevent a person from making an unpaid remuneration claim under

section 99D; or

(b) make a statement that the person knows to be false or misleading in a material

particular in any referred claim under section 99E or any notice served for the

purposes of section 99F; or

know, or have reasonable grounds to believe, is an actual employer.

Maximum penalty: $5 000.

99J—Non-derogation

Nothing in this Division—

(a) limits or excludes any other right of recovery of remuneration of an

outworker, or any liability with respect to payment of remuneration to an

outworker (whether arising under this Act or any other Act or law or whether

arising by virtue of any award or other industrial instrument or by virtue of an

agreement or otherwise); or

(b) limits or excludes any right of recovery arising under any other law with

respect to any amount of money owed by a responsible contractor to another

person.

Part 4—General principles affecting determination of working

conditions

100—Adoption of principles affecting determination of remuneration and

working conditions

(1) SAET may, on its own initiative, or on the application of—

(a) the Minister; or

(b) the United Trades and Labor Council; or

Incorporated,

make a declaration adopting in whole or in part, and with or without modification,

principles, guidelines, conditions, practices or procedures enunciated or laid down in,

or attached to, a decision or determination of the Fair Work Commission.

(2) However, a declaration may only be made if the terms of the declaration are consistent

with the objects of this Act.

28.3.2024—Fair Work Act 1994

Employment—Chapter 3

General principles affecting determination of working conditions—Part 4

Published under the Legislation Revision and Publication Act 2002 27

(3) A declaration under this section may be made on the basis that it is to apply in relation

to (and prevail to the extent of any inconsistency with)—

(a) awards generally; or

(b) awards generally, other than a specified award or awards; or

(4) In addition, a party to an award that is affected by a declaration under this section

may, within 28 days after the declaration is made, apply to SAET to have the award

excluded from the declaration (or a part of the declaration), despite the operation of

subsection (3).

(5) SAET may grant an application under subsection (4) on such conditions as SAET

thinks fit.

101—State industrial authorities to apply principles

(1) In arriving at a determination affecting remuneration or working conditions, a State

industrial authority must have due regard to and may apply and give effect to

principles, guidelines, conditions, practices or procedures adopted by SAET under this

Part.

(2) However, principles adopted under this Part are not applicable to enterprise

agreements.

(3) In this section—

State industrial authority means—

(a) SAET; or

(b) the Remuneration Tribunal; or

(d) another person or body declared by regulation to be a State industrial

authority.

Part 5—Enforcement of obligations arising from employment

Division 1—Records to be kept by employers

102—Records to be kept

(1) An employer must, subject to subsections (6) and (7), keep for all employees—

(a) a record of the names and addresses of the employees; and

(b) a record (a time book) in which are entered as far as practicable—

(i) each employee's times of beginning and ending work on each day

(including a note of time allowed for meals and other breaks); and

(ii) the wages paid to each employee and the date of each payment of

wages; and

granted to each employee; and

Fair Work Act 1994—28.3.2024

Chapter 3—Employment

Part 5—Enforcement of obligations arising from employment

Division 1—Records to be kept by employers

28 Published under the Legislation Revision and Publication Act 2002

(d) a record of the date of birth of employees under 21 years of age; and

(e) other records prescribed by regulation.

Maximum penalty: $2 500.

Expiation fee: $160.

(2) The records must be kept in the English language.

Maximum penalty: $2 500.

Expiation fee: $160.

(2a) The records may be kept in writing or in electronic form.

(2b) The information kept in the time book must be verified as follows:

(a) if the time book is kept in writing, it must, if practicable, be verified by

signature of the employee on, or as soon as possible after, each pay day and

the signature constitutes evidence of the correctness of the entries;

(b) if the time book is kept electronically, a printout of the relevant entries must,

if practicable, be verified by signature of the employee on, or as soon as

possible after, each pay day and the employer must keep the signed printouts

as evidence of the correctness of the entries.

Maximum penalty: $1 250.

Expiation fee: $105.

(3) An employer must retain a record kept under this section for 7 years after the date of

the last entry made in it.

Maximum penalty: $2 500.

Expiation fee: $160.

(4) An employer must—

(a) at the reasonable request of an employee or former employee, produce a

record relating to the employee or former employee kept under this section

and permit the employee or former employee to make copies of, or take

extracts from, the record; or

(b) at the reasonable request of an inspector, produce a record relating to a

specified employee or former employee kept under this section and permit the

inspector to make copies of, or take extracts from, the record; or

payment of wages and details of how the amounts of the payments were

calculated and details of any amounts that remained unpaid and how they are

calculated.

Maximum penalty: $2 500.

Expiation fee: $160.

(5) When a business, or part of a business, is transferred or assigned, the transferor or

assignor must transmit to the transferee or assignee all records referred to in this

section relating to employees who become employees of the transferee or assignee.

Maximum penalty: $1 250.

Expiation fee: $105.

28.3.2024—Fair Work Act 1994

Employment—Chapter 3

Enforcement of obligations arising from employment—Part 5

Records to be kept by employers—Division 1

Published under the Legislation Revision and Publication Act 2002 29

(5a) On the transmission of the records, the employer's obligations in relation to the

records passes to the transferee or assignee.

(6) An award or enterprise agreement may direct that, in relation to some or all of the

persons bound by the award or agreement—

(a) a time book need not be kept; or

(b) specified information need not be included in the time book.

(7) The requirement to keep a time book does not apply with respect to any employee

who is not paid on an hourly basis, or on a basis under which the employee's

remuneration varies according to the time worked.

(8) When an employer makes a payment of wages, the employer must provide the

employee with a pay slip showing—

(a) the name of the employer; and

(b) the amount of the payment; and

(d) if the employee is paid on an hourly basis, or on a basis on which the rate of

pay varies according to the time worked—

(i) the number of hours worked by the employee during the period to

which the payment relates (distinguishing between ordinary time and

overtime); and

(ii) the rate or rates of pay on which the payment is based; and

(e) if the employer has made a contribution to a superannuation fund for the

benefit of the employee—the name of the fund to which the contribution was

made and the amount of the contribution.

Maximum penalty: $1 250.

Expiation fee: $105.

103—Employer to provide copy of award or enterprise agreement

(1) An employer who is bound by an award or enterprise agreement must, at the request

of an employee bound by the award or enterprise agreement, produce a copy of the

award or enterprise agreement as soon as practicable after the request and allow the

employee a reasonable opportunity to examine it.

Maximum penalty: $750.

Expiation fee: $80.

(2) If an employee bound by an award or enterprise agreement asks the employer for a

copy of the award or agreement, the employer must give the employee a copy of the

award or agreement within 14 days after the date of the request.

Maximum penalty: $750.

Expiation fee: $80.

Fair Work Act 1994—28.3.2024

Chapter 3—Employment

Part 5—Enforcement of obligations arising from employment

Division 1—Records to be kept by employers

30 Published under the Legislation Revision and Publication Act 2002

(3) However, an employer is not obliged to comply with a request under subsection (2)

if—

(a) the employer has previously given the employee a copy of the award or

agreement within the preceding 12 months; or

(b) SAET has, on the application of the employer, relieved the employer from the

obligation to comply with the request.

(4) An employer must ensure that a copy of an award or enterprise agreement is exhibited

at a place that is reasonably accessible to the employees bound by the award or

agreement.

Maximum penalty: $750.

Expiation fee: $80.

(5) However, an enterprise agreement, or a part of an enterprise agreement, that SAET

has suppressed from public disclosure under this Act

need not be exhibited under

subsection (4).

Note—

1 See section 80.

Part 6—Unfair dismissal

Division 1—Preliminary

105—Interpretation

In this Part—

adjudicating authority means—

(a) SAET; or

(b) any other court, tribunal, commission or other authority with power to grant

relief for wrongful or unfair dismissal;

non-award employee means an employee whose employment is not covered by an

industrial instrument.

105A—Application of Part

(1) This Part does not apply—

(a) to a non-award employee whose remuneration immediately before the

dismissal took effect is $100 322 (indexed) or more a year; or

(b) an employee who is an apprentice.

Note—

An apprentice may apply to SAET under the South Australian Skills Act 2008

in respect of disputes or grievances involving their employer.

(2) The regulations may exclude from the operation of this Part or specified provisions of

this Part—

(a) employees serving a period of probation or a qualifying period providing that

the period—

28.3.2024—Fair Work Act 1994

Employment—Chapter 3

Unfair dismissal—Part 6

Preliminary—Division 1

Published under the Legislation Revision and Publication Act 2002 31

(i) is determined in advance; and

(ii) is reasonable having regard to the nature and circumstances of the

employment; and

(iii) does not exceed 12 months; or

(b) employees engaged on a casual basis for a short period except where—

(i) the employee has been engaged by the employer on a regular and

systematic basis extending over a period of at least nine months; and

(ii) the employee has, or would have had, a reasonable expectation of

continuing employment by the employer; or

special arrangements giving rights of review of, or appeal against, decisions

to dismiss from employment which, when considered as a whole, provide

protection that is at least as favourable to the employees as the protection

given under this Part; or

(d) employees in relation to whom the application of this Part or the specified

provisions of this Part causes or would cause substantial difficulties because

of—

(i) their conditions of employment; or

(ii) the size or nature of the undertakings in which they are employed; or

(e) employees of any other class.

(3) To the extent that a regulation under subsection (2)(c), (d) or (e) is inconsistent with

the Termination of Employment Convention it is invalid.

(4) If a contract provides for employment for a specified period or for a specified task,

this Part does not apply to the termination of the employment at the end of the

specified period, or on completion of the specified task, unless the employee has, on

the basis of the employer's conduct, a clear expectation of continuing employment by

the employer.

Division 2—Application for relief

106—Application for relief

(1) If an employer dismisses an employee, the employee may, before the end of a period

of 21 days from the date the dismissal takes effect, apply to SAET for relief under this

Part.

(2) An employee cannot simultaneously bring proceedings for dismissal before 2 or more

adjudicating authorities.

(3) If an employee takes proceedings for dismissal under this Part or some other law and

the adjudicating authority before which the proceedings are brought considers that the

proceedings might have been more appropriately brought under another law before

another adjudicating authority—

(a) the adjudicating authority may, after hearing the parties, refer the proceedings

to the other adjudicating authority to be dealt with under that other law; and

Fair Work Act 1994—28.3.2024

Chapter 3—Employment

Part 6—Unfair dismissal

Division 2—Application for relief

32 Published under the Legislation Revision and Publication Act 2002

(b) the adjudicating authority to which the proceedings are referred must deal

with the proceedings as if they had been commenced before that adjudicating

authority under the relevant law.

Note—

Suppose that an employee brings proceedings under the Equal Opportunity Act 1984

seeking relief for dismissal on the ground that the dismissal constitutes an act of

discrimination in respect of which a remedy is available under that Act. The relevant

authorities under that Act might, if of the opinion that the proceedings might have been

more appropriately brought before SAET under this Act, refer the proceedings to SAET.

The proceedings would then proceed in SAET as if they had been commenced by an

application for relief under this Part.

(3a) The period that applies under subsection (1) does not apply in a case involving the

referral of proceedings to SAET under another law.

(4) No fee may be imposed with respect to an application for relief under this Part.

Division 4—Determination of application

108—Question to be determined at the hearing

(1) At the hearing of an application under this Part, SAET must determine whether, on the

balance of probabilities, the dismissal is harsh, unjust or unreasonable.

(2) In deciding whether a dismissal was harsh, unjust or unreasonable, SAET must have

regard to—

(a) the Termination of Employment Convention; and

(b) the rules and procedures for termination of employment prescribed by or

under Schedule 8; and

business impacted on the procedures followed in effecting the dismissal; and

(d) the degree to which the absence of dedicated human resource management

specialists or expertise in the relevant undertaking, establishment or business

impacted on the procedures followed in effecting the dismissal; and

(e) whether the employer has failed to comply with an obligation under

section 58B or 58C of the Workers Rehabilitation and Compensation

Act 1986; and

(f) any other factor considered by SAET to be relevant to the particular

circumstances of the dismissal.

(3) If a redundancy payment is made on the dismissal in accordance with a relevant

industrial instrument, the dismissal cannot be regarded as harsh, unjust or

unreasonable solely on the ground that the payment is inadequate.

109—Remedies for unfair dismissal from employment

(1) If SAET is satisfied on application under this Part that an employee's dismissal is

harsh, unjust or unreasonable, SAET may—

(a) order that the applicant be re-employed in the applicant's former position

without prejudice to the former conditions of employment; or

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(b) if it would be impracticable for the employer to re-employ the applicant in the

applicant's former position, or re-employment in the applicant's former

position would not, for some other reason, be an appropriate remedy—order

that the applicant be re-employed by the employer in some other position (if

such a position is available) on conditions determined by SAET; or

not be an appropriate remedy—order the employer to pay to the applicant an

amount of compensation determined by SAET.

(1a) Re-employment is to be regarded as the preferred remedy, and SAET may only award

an alternative remedy if satisfied that there are cogent reasons to believe that

re-employment would not, in the circumstances of the particular case, be an

appropriate remedy.

(1b) However, SAET need not regard re-employment as the preferred remedy if the

position to which the applicant would be re-employed is in a business or undertaking

where, at the time of SAET's decision on the application, less than 50 employees are

employed.

(2) If SAET makes an order for re-employment under this section, then, subject to any

contrary direction of SAET—

(a) the employee must be remunerated for the period intervening between the

date that the dismissal took effect and the date of re-employment as if the

employee's employment in the position from which the employee was

dismissed had not been terminated; and

(b) the employer is entitled to the repayment of any amount paid to the employee

on dismissal on account of or arising from the dismissal; and

leave, and parental leave, the interruption to the employee's continuity of

service caused by the dismissal will be disregarded.

(3) SAET must not order compensation exceeding 6 months' remuneration at the rate

applicable to the dismissed employee immediately before the dismissal took effect, or

$33 100 (indexed), whichever is the greater.

(4) An order for the payment of a monetary amount under this section may provide for

payment by instalments if—

(a) SAET is satisfied that exceptional circumstances exist justifying the making

of the order; and

(b) insofar as the order compensates loss of remuneration—the instalments of

compensation are at least as favourable to the employee as the payments of

remuneration (to which the order relates) would have been if the employment

had continued.

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Division 5—Miscellaneous

110—Costs

(1) If an application under this Part proceeds to hearing and SAET is satisfied that a party

to the proceedings clearly acted unreasonably in failing to discontinue or settle the

matter before the hearing concluded, SAET may, on the application of the other party

to the proceedings, make an order for costs (including—if relevant—the costs of

representation) against the party.

(2) If an employee discontinues proceedings under this Part more than 14 days after the

conclusion of the conference of the parties, SAET may, on the application of the

employer, make an order for costs (including—if relevant—the costs of

representation) against the employee if SAET is satisfied that the employee has acted

unreasonably.

(3) An application for an order for costs under this section must be made within 14 days

after the determination or discontinuance of the proceedings.

111—Decisions to be given expeditiously

(1) SAET must hand down its determination on an application under this Part, and its

reasons for the determination, within 3 months after the parties finish making their

final submissions on the application.

(2) The President may extend the time for handing down a determination, or the reasons

for a determination, but only if there are special reasons in the circumstances of the

individual case for doing so.

Part 7—Exemption from employment conditions

112—Slow, inexperienced or infirm workers

(1) SAET may, on application by a slow, inexperienced or infirm employee, grant the

employee a licence to work at a wage less than the minimum that would otherwise

apply to the employee under this Act, an award or an enterprise agreement.

(2) If it appears to SAET that an association may have an interest in an application under

this section, it will give the association at least seven days notice of the time and place

at which it intends to hear the application, and the association is then entitled to appear

and be heard on the application.

(3) SAET will not grant a licence until satisfied that the employee is, because of slowness,

inexperience or infirmity, unable to obtain employment at the minimum wage fixed

under this Act, an award or enterprise agreement.

(4) A licence—

(a) must specify the wage at which the worker is licensed to work; and

(b) continues in force for 12 months but may be renewed from time to time for

successive terms of 12 months.

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(5) An employer must not, without the consent of SAET, employ a number of licensed

employees exceeding one-fifth of the total number of persons employed by the

employer in the same class of work (but if the employer employs fewer than five

employees in the relevant class of work, the employer may employ one licensed

employee).

Maximum penalty: $2 500.

(6) A person must not pay or offer to pay a slow, inexperienced or infirm employee a

wage lower than specified in the licence.

Maximum penalty: $2 500.

(7) If an award or enterprise agreement makes provision for the remuneration of

employees who are under a disability that adversely affects work performance in some

way, the award or enterprise agreement excludes from the ambit of this section an

employee who comes within the terms of the relevant provision of the award or

enterprise agreement.

113—Non-application of awards

(1) This section applies to a person (an assisted person)—

(a) who has an intellectual, psychiatric, sensory or physical impairment or a

combination of such impairments; and

(b) who is unlikely to obtain employment at ordinary rates of pay and needs

substantial ongoing support to obtain or retain paid employment; and

(i) that provides employment services to disabled workers; and

(ii) that is declared by regulation to be a recognised organisation for the

purposes of this section.

(2) No award applies to work performed by an assisted person unless the award makes

specific provision for assisted persons.

(3) The regulations may exclude certain industrial matters affecting assisted persons from

regulation by award.

114—Exemption for charitable organisations

(1) If the Minister is satisfied that—

(a) the objects of an organisation are charitable, religious or non-profit making;

and

(b) it is in the public interest to grant an exemption under this subsection,

the Minister may, by notice in the Gazette, exempt all activities of the organisation, or

specified activities of the organisation, from the operation of awards.

(2) The Minister may, by notice in the Gazette, vary or revoke an exemption under

subsection (1).

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Chapter 4—Associations

Part 1—Freedom of association

Division 1—Preliminary

115—Prohibited reason

An employer acts for a prohibited reason if the employer discriminates against

another person for one or more of the following reasons or for reasons that include one

or more of the following:

(a) because the other person is, has been or proposes to become an officer,

delegate or member of an association;

(b) because the other person is not, or does not propose to become, a member of

an association;

(i) has one or more employees who are not, or do not propose to

become, members of an association; or

(ii) has not paid, or does not propose to pay, a fee (however described) to

an association;

(d) because the other person has refused or failed to join in industrial action;

(e) because the other person (being an employee) has refused or failed to agree or

consent to, or vote in favour of, the making of an agreement to which an

association of which the employee is a member would be a party;

(f) because the other person has made, proposes to make or has at any time

proposed to make an application to an industrial authority for an order for

holding a secret ballot;

(g) because the other person has participated in, proposes to participate in or has

at any time proposed to participate in a secret ballot ordered by an industrial

authority;

(h) because the other person is entitled to the benefit of an instrument dealing

with conditions of employment or an order of an industrial authority;

(i) because the other person has made or proposes to make an inquiry or

complaint to a person or body with power under a law relating to industrial

relations to seek—

(i) compliance with that law; or

(ii) the enforcement of rights under an instrument dealing with

conditions of employment;

(j) because the other person has participated in, proposes to participate in, or has

at any time proposed to participate in a proceeding under a law relating to

industrial relations;

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(k) because the other person has given or proposes to give evidence in a

proceeding under a law relating to industrial relations;

(l) because an association is seeking better industrial conditions for the other

person;

(m) because the other person (being an employee) has absented himself or herself

from work without leave if—

(i) the absence was for the purpose of carrying out duties or exercising

rights as an officer of an association; and

(ii) the person applied for leave before absenting himself or herself and

leave was unreasonably refused or withheld;

(n) because the other person, as an officer or member of an association, has done,

or proposes to do, a lawful act within the officer's or member's authority

under the rules of the association, for the purpose of furthering or protecting

the industrial interests of the association.

Division 2—Protection of freedom of association

116—Freedom of association

(1) No person may be compelled to become, or remain, a member of an association.

(2) A provision of a contract of employment, or an associated undertaking, to become or

remain, or not to become or remain, a member of an association is void.

116A—General offences against the principle of freedom of association

A person must not—

(a) require another to become, or remain, a member of an association; or

(b) prevent another from becoming or remaining a member of an association of

which the other person is, in accordance with the rules of the association,

entitled to be a member; or

a member of an association.

Maximum penalty: $20 000.

116B—Dismissal etc for prohibited reason

(1) An employer must not, for a prohibited reason, do or threaten to do any of the

following:

(a) dismiss an employee from employment;

(b) injure an employee in employment;

(d) refuse to employ a person;

(e) discriminate against a person in the terms or conditions on which the

employer offers to employ the person.

Maximum penalty: $20 000.

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(2) A court by which an employer is convicted of an offence against this section may, on

application by the employee (or prospective employee) against whom the offence was

committed—

(a) award compensation to the applicant for loss resulting from the commission

of the offence; and

(b) if the applicant was dismissed from employment—order the employer to

re-employ the applicant on conditions determined by the court.

117—Prohibition of discrimination in supply or purchase of goods or services

(1) A person who carries on a business involving the supply or purchase of goods or

services must not discriminate against an employer by refusing to supply or purchase

goods or services, or in the terms on which goods or services are supplied or

purchased, on the ground that the employer's employees are, or are not, members of an

association.

Maximum penalty: $20 000.

(2) A person must not, on the ground that an employer's employees are, or are not,

members of an association—

(a) attempt to induce a person who carries on a business involving the supply or

purchase of goods or services to discriminate against an employer by refusing

to supply or purchase goods or services, or in the terms on which goods or

services are supplied or purchased; or

(b) attempt to prevent a person who carries on a business involving the supply or

purchase of goods or services from supplying or purchasing goods or services

to or from the employer.

Maximum penalty: $20 000.

(3) This section does not prevent an association from discriminating between members

and non-members of the association.

118—Conscientious objection

(1) If a person satisfies the Registrar by the evidence required by the Registrar that the

person has a genuine conscientious objection based on religious belief to becoming a

member of an association, the Registrar must issue a certificate of conscientious

objection to the person.

(2) The Registrar must cancel a certificate of conscientious objection if asked to do so by

the person for whom it was issued.

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Part 2—Locally based associations

Division 1—Application for registration

119—Eligibility for registration

(1) The following associations are eligible for registration under this Part—

(a) an association formed to represent, protect or further the interests of

employers and consisting of two or more employers who employ, in

aggregate, not less than 100 employees (whether or not the membership of the

association includes persons who are not employers);

(b) an association formed to represent, protect or further the interests of

employees and consisting of not less than 100 employees (whether or not the

membership includes persons who are not employees).

(2) An organisation, or a branch, section or part of an organisation, registered under the

Commonwealth (Registered Organisations) Act is not eligible for registration under

this Part.

120—Application for registration

(1) An association eligible for registration under this Part may apply to SAET for

registration.

(2) If an application for registration is made, the Registrar must—

(a) publish notice of the application in a newspaper circulating generally

throughout the State;

(b) give notice of the application to any registered association the Registrar

considers to have a proper interest in the subject matter of the application.

(3) The notice must contain a statement of the right of interested persons to lodge

objections to the registration of the applicant association.

121—Objections

A person may, within the time allowed by the Rules, object to the registration of the

association.

Division 2—Registration and incorporation

122—Registration of associations

(1) SAET may, after considering objections to registration duly made in accordance with

the Rules, register an association under this Part if satisfied—

(a) that the association is eligible for registration under this Part; and

(b) that the rules of the association conform with the requirements of this Part;

and

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(d) that the registration of the association would be consistent with the provisions

and objects of this Act; and

(e) that—

(i) the association is entirely comprised of employees employed in a

single business; or

(ii) if the association is not an association of that kind—there is no other

registered association to which the members of the association might

conveniently belong; and

(f) that the name of the applicant association would not cause confusion with the

name of another registered association or with the name of an organisation

registered under the Commonwealth (Registered Organisations) Act; and

(g) in the case of an association of employees—that the association is not

dependent for financial or other resources on an employer, employers, or an

association of employers and is, in other respects, independent of control or

significant influence by an employer, employers or an association of

employers.

(2) SAET may, in an appropriate case, waive compliance with any of the prescribed

conditions referred to in paragraph (c) above.

123—Registration confers incorporation

On registration of an association under this Part, the association becomes a body

corporate—

(a) with the name stated in its rules; and

(b) with power to acquire, hold, deal with and dispose of real and personal

property; and

Division 3—Rules

124—Rules

The rules of an association registered under this Part—

(a) must state the association's name; and

(b) must conform with the prescribed conditions; and

and its members; and

(d) must not impose on applicants for membership, or members, of the

association conditions, obligations or restrictions that are oppressive,

unreasonable or unjust.

125—Alteration of rules of registered association

(1) An association registered under this Part may resolve to alter its rules.

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(2) The resolution must be passed in accordance with the relevant rules of the association

unless the purpose of the proposed alteration is only to change the name of the

association in which case a resolution passed by a majority of the members present

and voting at an ordinary meeting of the association is sufficient provided that at least

14 days' notice of the time and place of the meeting was given to the members in

accordance with the association's rules and the notice of meeting contained the

proposed resolution for the change of name.

(3) An alteration of the rules of a registered association does not take effect unless and

until registered by SAET.

(4) If an alteration of the rules of a registered association is of a kind that would or could

affect the composition of the membership of the association, notice of an application

for registration must be given, and objections may be made, in the same way, and on

the same or similar grounds, as if the application were for registration of a new

association.

(5) SAET may register an alteration of rules if satisfied that—

(a) the alteration would be consistent with the provisions and objects of this Act;

and

(b) in the case of a change of name—would not cause confusion with the name of

another registered association or the name of an organisation registered under

the Commonwealth (Registered Organisations) Act.

126—Model rules

(1) To the extent the rules of an association conform with model rules published by

regulation, no objection can be taken to the rules.

(2) To the extent a proposed alteration of rules brings the rules into conformity with

model rules published by regulation, no objection can be taken to the proposed

alteration.

127—Orders to secure compliance with rules etc

(1) SAET may, on the application of a member of an association registered under this Part

or a person who has been expelled from membership of such an association, order the

association or specified officers of the association—

(a) to carry out an obligation imposed by the rules of the association;

(b) to make good any contravention of, or failure to comply with, the rules of the

association;

desirable in the circumstance.

(2) An association or other person who fails to comply with an order of SAET under this

section is guilty of an offence.

Maximum penalty: $1 250.

(3) SAET may, on application by a member of an association registered under this Part or

a person who has applied for membership of such an association, declare a rule of the

association to be invalid on the ground that the rule is inconsistent with this Act.

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(4) SAET may adjourn proceedings on an application under subsection (3) for a period,

and on terms and conditions, SAET considers appropriate, to give the association an

opportunity to alter its rules.

Division 4—Financial records

128—Financial records

(1) An association registered under this Part must keep proper accounting records of all its

financial transactions.

(2) An association registered under this Part must prepare annually the following

accounts—

(a) a balance sheet giving a true and fair view of the assets and liabilities of the

association as at the end of the relevant accounting period; and

(b) a statement of receipts and payments over the relevant accounting period.

(3) The association must have the accounts prepared under subsection (2) audited by a

registered company auditor.

(4) The accounts and accounting records to be kept and prepared under this section must

conform with the requirements of the Rules.

(5) An association that fails to comply with a requirement of this section is guilty of an

offence.

Maximum penalty: $750.

Division 5—Amalgamation

129—Amalgamation

(1) An association registered under this Part may resolve to amalgamate with another

association or other associations registered under this Part.

(2) A resolution to amalgamate—

(a) must be passed—

(i) by the executive committee, or committee of management, of the

association; or

(ii) by the members of the association in the same way as a resolution for

alteration of the rules of the association; or

(iii) in some other way provided by the rules; and

(b) must approve the rules of the association to be formed by the amalgamation.

(3) If a resolution to amalgamate is passed by the executive committee, or committee of

management, of an association (and authority to pass the resolution is not conferred on

the executive committee or committee of management by the rules), notice of the

resolution must be given by post to all members of the association.

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(4) If, within six weeks of the posting of the notices under subsection (3), the Registrar is

requested by 20 members of the association or 10% of the total membership

(whichever is the lesser) to conduct a ballot—

(a) the Registrar will conduct (at the expense of the association, which may be

recovered as a debt from the association) a ballot of the members of the

association; and

(b) unless the resolution is supported by a majority of the members voting on the

ballot, the resolution will lapse.

(5) The rules of the association to be formed by the amalgamation may provide for

persons holding office in the amalgamating associations to hold office in the new

association for up to four years before an election is held for the relevant offices.

(6) A registered association may use its financial and other resources in support of a

proposed amalgamation if at least 14 days' notice of its intention to do so has been

given to its members (but this section does not limit any other power that the

association may have under its rules to support a proposed amalgamation).

(7) If two or more associations resolve to amalgamate, an application for registration of

the association to be formed by the amalgamation must be made and dealt with under

this Division.

(8) On registration of the new association—

(a) the amalgamating associations are dissolved; and

(b) all property, rights and liabilities of the amalgamating associations are vested

in the new association.

Division 6—De-registration

130—De-registration of associations

(1) SAET may de-register an association registered under this Part if—

(a) the association applies for de-registration; or

(b) the association contravenes or fails to comply with a provision of this Act or

its rules about the way its affairs are to be conducted; or

(d) the association, or a substantial number of the members of the association,

has wilfully contravened, or failed to comply with, a determination of SAET;

(e) there is some other substantial reason for de-registration of the association.

(2) An application for de-registration of an association may be made by—

(a) the association itself; or

(b) a member or former member of the association; or

(d) the Registrar.

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(3) SAET may, on making an order for de-registering an association, suspend the order

and direct that, if a stated requirement is complied with to SAET's satisfaction within

a stated period, the order will lapse but otherwise will take effect at the end of the

stated period.

(4) If SAET finds that grounds for de-registering an association exist and that those

grounds arise wholly or mainly from the conduct of a particular class or section of the

members of the association, SAET may, instead of de-registering the association, alter

the rules of the association to exclude persons belonging to the relevant class or

section from membership of the association.

Part 3—Federally based associations

Division 1—Application for registration

131—Eligibility for registration

(1) An association that is an organisation registered under the Commonwealth (Registered

Organisations) Act is eligible for registration under this Part.

(2) However, if the rules of the organisation provide for a South Australian branch, the

organisation is not eligible for registration under this Part unless the rules confer on

the branch a reasonable degree of autonomy in the administration and control of South

Australian assets and in the determination of questions affecting solely or principally

members resident in this State.

(3) A branch of an organisation is eligible for registration under this Part if the rules of the

organisation confer on the branch a reasonable degree of autonomy in the

administration and control of South Australian assets and in the determination of

questions affecting solely or principally members resident in this State.

132—Application for registration

(1) An association eligible for registration under this Part may apply to SAET for

registration.

(2) If an application for registration is made, the Registrar must—

(a) publish notice of the application in a newspaper circulating generally

throughout the State;

(b) give notice of the application to any registered association the Registrar

considers to have a proper interest in the subject matter of the application.

(3) The notice must contain a statement of the right of interested persons to lodge

objections to the registration of the applicant association.

133—Objections

A person may, within the time allowed by the Rules, object to the registration of the

association.

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Division 2—Registration and de-registration

134—Registration

SAET may, after considering objections to registration duly made in accordance with

the rules, register an organisation, or a branch of an organisation, under this Division

if satisfied—

(a) that the organisation or branch is eligible for registration under this Division;

and

(b) that the registration of the organisation or branch would be consistent with the

provisions and objects of this Act; and

of the applicant organisation or branch might conveniently belong.

135—De-registration

(1) SAET may de-register an organisation or branch registered under this Division if—

(a) the organisation or branch applies for de-registration; or

(b) the organisation or branch contravenes or fails to comply with a provision of

this Act or its rules about the way its affairs are to be conducted; or

determination of SAET; or

(d) the organisation or branch is being administered in a way that is oppressive or

unfair to members resident in this State; or

(e) the organisation abolishes its South Australian branch or its rules cease to

confer on the South Australian branch a reasonable degree of autonomy in the

administration and control of South Australian assets or in the determination

of questions affecting solely or principally the members resident in this State;

(f) there is some other substantial reason for de-registering the organisation or

branch.

(2) An application for de-registration of an organisation or branch may be made by—

(a) the organisation or branch itself; or

(b) a member or former member of the organisation or branch; or

(d) the Registrar.

(3) SAET may, on making an order for de-registration of an organisation or branch,

suspend the order and direct that, if a stated requirement is complied with to SAET's

satisfaction within a stated period, the order will lapse but otherwise will take effect at

the end of the stated period.

(4) If an organisation registered under this Division ceases to be an organisation

registered under the Commonwealth (Registered Organisations) Act, its registration

under this Division automatically terminates.

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(5) If a branch of an organisation is registered under this Division, and the organisation

ceases to be an organisation registered under the Commonwealth (Registered

Organisations) Act, registration of the branch under this Division automatically

terminates.

Division 3—Federations

136—Federation

(1) If a federation of organisations is recognised under the Commonwealth (Registered

Organisations) Act, and one or more of its constituent members are registered under

this Part, the federation may, subject to the regulations, act under this Act as the

representative of the registered constituent members.

(2) However, this section does not limit the right of a constituent member of a federation

to represent itself or its members.

Part 4—Provisions generally applicable to associations

Division 1—Purpose of association

137—Restraint of trade

(1) Even though an association (whether registered or not) has purposes in restraint of

trade, its purposes will not, for that reason, be regarded as unlawful.

(2) It follows that an association is not to be regarded as an unlawful association because

it has purposes in restraint of trade, nor are its members liable to prosecution for

conspiracy or any other criminal offence for that reason, nor is any agreement or trust

rendered void by the restraint of trade.

138—Limitations of actions in tort

(1) Subject to this section, no action in tort lies in respect of an act or omission done or

made in contemplation or furtherance of an industrial dispute.

(2) This section does not prevent—

(a) an action for the recovery of damages for death or personal injury; or

(b) an action for the recovery of damages for damage to property (not being

economic damage); or

(d) an action for defamation.

(3) If an industrial dispute has been resolved by conciliation or arbitration and SAET

determines on application under this section that, in the circumstances of the case, the

industrial dispute arose or was prolonged by unreasonable conduct on the part of a

particular person, then the applicant may bring an action in tort against that person

despite subsection (1).

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Chapter 4—Associations

Part 4—Provisions generally applicable to associations

Division 1—Purpose of association

12 Published under the Legislation Revision and Publication Act 2002

(4) If SAET determines, on application under this section, that—

(a) all means provided under this Act for resolving an industrial dispute by

conciliation or arbitration have failed or there is no immediate prospect of

resolving the dispute; and

(b) having regard to the nature of the dispute and the gravity of its consequences,

it is in the public interest to allow the action,

then the applicant may bring an action in tort despite subsection (1).

(5) SAET must, in hearing and determining an application under subsection (4)(b), act as

expeditiously as possible.

139—Industrial services not to be provided to non-members

An association, or an officer or employee of an association, must not, except at the

request of the person, represent a person who is not a member of the association, and

has not made an application to become a member of the association, in proceedings

before SAET.

Maximum penalty: $2 500.

Division 2—Powers of entry and inspection

140—Powers of officials of employee associations

(1) An official of an association of employees may enter any workplace at which 1 or

more members of the association work and—

(a) inspect time books and wage records, at the workplace; and

(b) inspect the work carried out at the workplace and note the conditions under

which the work is carried out; and

enterprise agreement have been made—interview any person who works at

the workplace about the complaints.

(1a) The powers conferred by subsection (1) may be exercised at a time when work is

being carried out at the workplace.

(2) Before an official exercises powers under subsection (1), the official must give

reasonable notice to the employer.

(2a) For the purposes of subsection (2)—

(a) the notice must be given in writing; and

(b) a period of 24 hours notice will be taken to be reasonable unless some other

period is reasonable in the circumstances of the particular case.

(2b) An official exercising a power under subsection (1) must not interrupt the

performance of work at the workplace.

(3) A person exercising powers under this section must not—

(a) harass an employer or employee; or

(ab) address offensive language to an employer or an employee; or

(b) hinder or obstruct an employee in carrying out a duty of employment; or

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Associations—Chapter 4

Provisions generally applicable to associations—Part 4

Powers of entry and inspection—Division 2

Published under the Legislation Revision and Publication Act 2002 13

other person.

Maximum penalty: $5 000.

(4) If SAET is of the opinion that a person has abused powers under this section, SAET

may withdraw the relevant powers.

Division 3—Records

141—Register of members and officers of associations

(1) A registered association must keep—

(a) a register of its officers; and

(b) a register of its members.

(2) The registers must be kept available for inspection by the members of the association

or the Registrar at the association's registered office.

(3) A registered association must in the month of July in each year furnish the Registrar

with—

(a) a list of the association's officers; and

(b) notice of changes in the officers of the association that have occurred since a

list was last furnished under this section; and

(i) the number of financial members of the association; and

(ii) the number of non-financial members of the association,

as at the immediately preceding 30 June.

(3a) A person is entitled to inspect (without charge) a copy of any information provided

under subsection (3) during ordinary business hours at the office of the Registrar.

(4) A registered association must, at the request of the Registrar, furnish the Registrar

with an up-to-date list of the members or officers of the association.

(5) If a registered association fails to comply with this section, or a requirement made

under this section, the association is guilty of an offence.

Maximum penalty: $750.

(6) A person employed in duties connected with the administration of this Act who

divulges information about the membership of a registered association except in the

performance of official duties or as may be authorised by the association or the

President is guilty of an offence.

Maximum penalty: $750.

(7) If a registered association is an organisation registered under the Commonwealth

(Registered Organisations) Act, a reference to the members of the association in this

section will be construed as a reference to members resident in this State.

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Chapter 4—Associations

Part 4—Provisions generally applicable to associations

Division 3—Records

14 Published under the Legislation Revision and Publication Act 2002

142—Rules

(1) A registered association must, at the request of any person, furnish the person with a

printed or typewritten copy of its rules as in force for the time being.

Maximum penalty: $750.

(2) The association may charge a fee (not exceeding a limit fixed by regulation) for

supplying a copy of its rules under this section.

(3) A document apparently certified by the secretary or some other officer of a registered

association to be a copy of the rules of the association will be accepted in any legal

proceedings as evidence of the rules and of their validity.

Division 4—Miscellaneous

143—Certificate of registration

(1) On registration of an association, the Registrar will issue a certificate of registration to

the association.

(2) The registration of an association may be proved, in the absence of evidence that the

association has ceased to be registered, by production of a certificate of registration

issued under this Act or a corresponding previous enactment for the association.

144—Service

Service of any process, notice or other document may be effected on a registered

association—

(a) by leaving it at the registered office of the association; or

(b) by sending it by certified mail addressed to the association at its registered

address; or

145—Saving of obligations

The de-registration of an association does not relieve the association, or any member

of the association, from a penalty, liability or obligation imposed or arising before the

de-registration.

146—Sequestration orders

(1) If a registered association does not satisfy a judgment for the payment of money on

demand by the judgment creditor, the Court may, on application by the judgment

creditor, make an order for sequestration of the association's property to the extent

necessary to ensure the judgment is satisfied.

(2) The order must—

(a) provide for appointment of a sequestrator; and

(b) confer on the sequestrator the powers necessary to take possession of the

property to which the order relates and realise it; and

property.

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Provisions generally applicable to associations—Part 4

Miscellaneous—Division 4

Published under the Legislation Revision and Publication Act 2002 15

147—Exercise of powers of SAET

(1) Subject to any contrary direction by the President, the powers of SAET under this

Chapter will be exercised by the Registrar.

(2) If the President so directs, the powers of SAET under this Chapter will be exercised

by—

(a) a Presidential Member or Industrial Magistrate nominated by the President; or

(b) SAET.

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Industrial Relations Consultative Council—Chapter 6AA

Establishment of Consultative Council—Part 1

Published under the Legislation Revision and Publication Act 2002 1

Chapter 6AA—Industrial Relations Consultative Council

Part 1—Establishment of Consultative Council

218—Establishment of Consultative Council

The Industrial Relations Consultative Council is established.

Part 2—Functions and powers

218A—Functions and powers of Consultative Council

(1) The functions of the Consultative Council are—

(a) to assist the Minister in formulating, and advise the Minister on

implementing, policies affecting—

(i) industrial relations and employment in the State; or

(ii) work health and safety in the State; and

(b) to advise the Minister on legislative proposals of—

(i) industrial significance; or

(ii) significance to work health and safety; and

members of the Consultative Council; and

(d) to perform such other functions as are conferred on it by this or any other Act.

(2) The Consultative Council has the power to do anything necessary, expedient or

incidental to the performance of its functions.

Part 3—Composition of Consultative Council

218B—Membership of Consultative Council

(1) The Consultative Council consists of 13 members of whom—

(a) 1 is the Minister; and

(b) 12 are persons appointed by the Governor—

(i) 6 being persons who, in the opinion of the Minister, are suitable to

represent the interests of employers (at least 1 being a person

considered by the Minister to be suitable to represent the interests of

the public sector as an employer), appointed on the recommendation

of the Minister after the Minister has consulted with the South

Australian Employers' Chamber of Commerce and Industry Inc

(trading as Business SA), and with other associations representing

the interests of employers determined to be appropriate by the

Minister; and

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2 Published under the Legislation Revision and Publication Act 2002

(ii) 6 being persons who, in the opinion of the Minister, are suitable to

represent the interests of employees (at least 1 being a person

considered by the Minister to be suitable to represent the interests of

employees in the public sector), appointed on the recommendation of

the Minister after the Minister has consulted with the United Trades

and Labor Council (trading as SA Unions), and with other

associations representing the interests of employees determined to be

appropriate by the Minister.

(2) A member of the Consultative Council may, with the Minister's approval, appoint a

suitable person to act as an alternate member of the Consultative Council and a person

so appointed may, in the member's absence, act as a member of the Consultative

Council.

218C—Terms and conditions of office

(1) An appointed member of the Consultative Council will hold office on conditions, and

for a term (not exceeding 3 years), determined by the Governor and, on the expiration

of a term of appointment, is eligible for re-appointment.

(2) The Governor may remove an appointed member from office for—

(a) breach of, or non-compliance with, a condition of appointment; or

(b) mental or physical incapacity to carry out duties of office satisfactorily; or

(d) dishonourable conduct.

(3) The office of an appointed member becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not re-appointed; or

(d) is found guilty of an indictable offence; or

(e) is removed from office by the Governor under subsection (2).

(4) On the office of an appointed member of the Consultative Council becoming vacant, a

person must be appointed, in accordance with this Act, to the vacant office.

(5) The Minister must ensure that a vacant office is filled within 6 months after the

vacancy occurs.

218D—Fees, allowances and expenses

A member of the Consultative Council (other than the Minister) is entitled to fees,

allowances and expenses approved by the Governor.

Part 4—Proceedings of Consultative Council

218E—Meetings

(1) The Consultative Council must meet at times appointed by the Minister.

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Proceedings of Consultative Council—Part 4

Published under the Legislation Revision and Publication Act 2002 3

(2) The Minister must convene a meeting of the Consultative Council if requested to do

so by 4 or more of its members.

218F—Proceedings

(1) The Minister must chair meetings of the Consultative Council.

(2) A quorum of the Consultative Council consists of 8 members of whom—

(a) 1 must be the Minister; and

(b) at least 3 must be members appointed to represent the interests of employers;

and

(3) A telephone or video conference between members of the Consultative Council

constituted in accordance with procedures determined by the Consultative Council

will, for the purposes of this section, be taken to be a meeting of the Consultative

Council at which the participating members are present.

(4) The Consultative Council must cause an accurate record to be kept of its proceedings.

(5) Subject to this Act, the proceedings of the Consultative Council will be conducted in a

manner determined by the Consultative Council.

218G—Conflict of interest under Public Sector (Honesty and Accountability)

Act 1995

(1) A member of the Consultative Council will not be taken to have a direct or indirect

interest in a matter for the purposes of the Public Sector (Honesty and Accountability)

Act 1995 by reason only of the fact that the member has an interest in a matter that is

shared in common with employers or employees generally, or a substantial section of

employers or employees.

(2) Despite the Public Sector (Honesty and Accountability) Act 1995, a member of the

Consultative Council who has made a disclosure of an interest in a matter decided or

under consideration by the Consultative Council may, with the permission of a

majority of the members of the Consultative Council who may vote on the matter,

attend or remain at a meeting when the matter is under consideration in order to ask or

answer questions, or to provide any other information or material that may be relevant

to the deliberations of the Consultative Council, provided that the member then

withdraws from the room and does not in any other way take part in any deliberations

or vote on the matter.

218H—Validity of acts

An act or proceeding of the Consultative Council is not invalid by reason only of a

vacancy in its membership or a defect in the appointment of a member.

Part 5—Use of staff and facilities

218I—Use of staff and facilities

(1) The Consultative Council may, by agreement with the Minister responsible for an

administrative unit in the Public Service, make use of the services of the staff,

equipment or facilities of that administrative unit.

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Chapter 6AA—Industrial Relations Consultative Council

Part 5—Use of staff and facilities

4 Published under the Legislation Revision and Publication Act 2002

(2) The Consultative Council may, by agreement with the relevant agency or

instrumentality, make use of the services of the staff, equipment or facilities of any

other agency or instrumentality of the Crown.

Part 6—Committees

218J—Committees

(1) The Consultative Council may establish such committees as it thinks fit to advise the

Consultative Council on, or to assist it with respect to, any aspect of its functions

under this or any other Act.

(2) A committee established under subsection (1)—

(a) must consist of at least 2 members of the Consultative Council; and

(b) must be chaired by a member of the Consultative Council; and

(d) must be established for a specified duration determined by the Consultative

Council (but may then be re-established if the Consultative Council thinks

fit); and

(e) must report to the Consultative Council as required by the Consultative

Council; and

(f) may invite persons with experience or knowledge relevant to a matter to be

considered at a meeting of the committee to attend and participate in the

meeting.

(3) The procedures to be observed by the committee will be—

(a) as determined by the Consultative Council; or

(b) insofar as the procedure is not determined under paragraph (a)—as

determined by the committee.

Part 7—Related matters

218K—Confidentiality

(1) A member of the Consultative Council who, as a member of the Consultative Council,

acquires information that—

(a) the member knows to be of a commercially sensitive nature, or of a private

confidential nature; or

(b) the Consultative Council classifies as confidential information,

must not divulge the information without the approval of the Consultative Council.

Maximum penalty: $10 000.

(2) Subsection (1) extends to members of a committee established by the Consultative

Council as if—

(a) the committee were the Consultative Council; and

(b) a member of the committee were a member of the Consultative Council.

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Miscellaneous—Chapter 6

Published under the Legislation Revision and Publication Act 2002 1

Chapter 6—Miscellaneous

219—Confidentiality

(1) A person employed or formerly employed in an office or position under this Act, or

authorised under this Act to enter a workplace or inspect an employer's records, must

not divulge—

(a) information acquired through the employment, or the exercise of the

authorised powers, about the contents of records kept by an employer under

this Act; or

(b) information of a confidential nature acquired through the employment, or the

exercise of the authorised powers, about the conduct of an employer's

business; or

authorised powers, about the persons bound by enterprise agreements.

Maximum penalty: $5 000.

(2) However, this section does not prevent—

(a) the disclosure of information in the ordinary course of employment; or

(b) the disclosure of information to SAET; or

(d) the use of information for the purpose of compiling statistical records; or

(da) the disclosure to an employee or former employee of information required to

be kept under this Act in relation to the employee or former employee; or

(e) a disclosure of information required by the Minister.

219A—Who are inspectors

(1) The following are inspectors for the purposes of this Act:

(a) persons appointed by the Minister to be inspectors;

(b) persons appointed under the Commonwealth Act who are, under an

arrangement between the Minister and the Minister responsible for

administering the Commonwealth Act, authorised to exercise the powers of

an inspector under this Act.

(2) Each inspector must be furnished by the Minister with an identity card.

(3) An inspector must produce the identity card for inspection by a person who questions

the inspector's authority to exercise powers under this Act.

219B—General functions of inspectors

(1) The functions of the inspectors are—

(a) to investigate complaints of non-compliance with the Act, enterprise

agreements and awards; and

(b) to conduct audits and systematic inspections to monitor compliance with this

Act and enterprise agreements and awards; and

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Chapter 6—Miscellaneous

2 Published under the Legislation Revision and Publication Act 2002

and people within the workforce of their rights and obligations under this Act,

and under enterprise agreements and awards; and

(d) to do anything else that may be appropriate to encourage compliance and, if

appropriate, take action to enforce compliance.

(2) The powers of an inspector under this Act extend to acting in relation to persons who

are no longer engaged in the performance of work.

(3) An inspector, or a person assisting an inspector, who—

(a) addresses offensive language to any other person; or

(b) without lawful authority, hinders or obstructs or uses or threatens to use force

in relation to any other person,

is guilty of an offence.

Maximum penalty: $5 000.

219C—Powers of inspectors

(1) An inspector may at any time, with any assistance the inspector considers necessary,

without any warrant other than this section—

(a) enter any workplace; and

(b) inspect and view any work, process or thing in the place; and

industrial matter.

(2) An inspector must, when entering or as soon as practicable after entering a place under

this section, produce his or her identity card for inspection by the occupier or person

in charge of the place.

(3) An inspector may require the production of a time book, paysheet, notice, record, list,

indenture of apprenticeship or other document required to be kept by this Act or any

other Act and may inspect, examine and copy it.

(4) In addition to the powers set out in subsections (1) and (3), if an inspector has reason

to believe that a document required to be kept by an employer under this Act or any

other Act is not accessible during an inspection under subsection (3), the inspector

may, by notice in writing to an employer, require the employer to produce the

document to the inspector within a reasonable period (of at least 24 hours) specified

by the inspector.

(5) A document produced under subsection (3) or (4) may be retained by the inspector for

examination and copying (and, accordingly, the inspector may take it away), subject to

the qualification that the inspector must then return the document within 7 days.

(6) However—

(a) the inspector may not retain an original document if the employer supplies a

copy of it to the inspector for the inspector's own use; and

(b) the inspector may not retain the original of a document that is required for the

day-to-day operations of the employer (but the inspector may copy it at the

time of its production).

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Miscellaneous—Chapter 6

Published under the Legislation Revision and Publication Act 2002 3

(7) It is the duty of an employer at all reasonable times to facilitate, as far as practicable,

the exercise by an inspector of powers under this section.

(8) If an inspector puts a question to a person through an interpreter, the question will, for

the purposes of this Act, be taken to have been put to the person by the inspector and

an answer to the question given by the person to the interpreter will be taken to have

been given to the inspector (and in any legal proceedings it will be presumed that the

interpreter's translation of the answer is the person's answer to the question as put by

the inspector unless it is shown that the interpreter mistranslated the question or the

answer).

(9) A person must not—

(a) hinder or obstruct an inspector in the exercise of a power conferred by or

under this section; or

(b) refuse an inspector entrance to a place the inspector is authorised to enter

under subsection (1); or

(d) fail, without lawful excuse, to comply with a requirement of an inspector

acting under this section.

Maximum penalty: $1 250.

219D—Compliance notices

(1) If it appears that an employer has failed to comply with a provision of this Act, or of

an award or enterprise agreement, an inspector may issue a compliance notice

requiring the employer, within a period stated in the notice—

(a) to take specified action to remedy the non-compliance; and

(b) to produce reasonable evidence of the employer's compliance with the notice.

(2) An employer who fails to comply with a compliance notice within the time allowed in

the notice is guilty of an offence.

Maximum penalty: $3 250.

Expiation fee: $325.

(3) The following applications may be made to SAET for a review of a notice issued

under this section:

(a) an employer may apply to SAET on the ground that the employer has in fact

complied with this Act, or the relevant award or enterprise agreement (as the

case may be);

(b) an employee may apply to SAET on the ground that the employer's failure to

comply with this Act, or an award or enterprise agreement, is more extensive

than stated in the notice.

(4) SAET may, at the conclusion of the review—

(a) confirm the notice; or

(b) confirm the notice with such modification as it thinks fit; or

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Chapter 6—Miscellaneous

4 Published under the Legislation Revision and Publication Act 2002

(5) A reference in this section to this Act includes a reference to a code of practice made

under this Act.

220—Notice of determinations of SAET

(1) Notice of a determination of SAET (unless of an interlocutory nature or affecting only

parties who are represented before SAET) must be published, in accordance with the

Rules, in a newspaper circulating generally throughout the State.

(2) Copies of all determinations of SAET must be kept available for public inspection at

the office of the Registrar unless—

(a) the determination is of an interlocutory nature; or

(b) the determination relates to an enterprise agreement or part of an enterprise

agreement that has been suppressed from public disclosure under this Act

Note—

1 See section 80.

223—Discrimination against employee for taking part in industrial

proceedings etc

(1) An employer must not discriminate against an employee by dismissing or threatening

to dismiss the employee from, or prejudicing or threatening to prejudice the employee

in, employment for any of the following reasons—

(a) because of the employee's participation in proceedings before SAET; or

(b) because of anything said or done, or omitted to be said or done, by the

employee in proceedings before SAET; or

(d) because the employee is entitled to the benefit of an award or enterprise

agreement, or has participated, or declined to participate, in negotiations or

proceedings intended to lead to the formation of an award or enterprise

agreement.

Maximum penalty: $20 000.

(2) However, discrimination against an employee on the ground that the employee has

contravened a determination of SAET or has committed an offence is not made

unlawful by subsection (1).

(3) A prosecution for an offence against this section may be commenced by the employee

against whom the offence is alleged to have been committed, or an inspector.

(4) A court by which an employer is convicted of an offence against this section may, on

application by the employee against whom the offence was committed—

(a) award compensation to the applicant for loss resulting from the commission

of the offence; and

(b) if the applicant was dismissed from employment—order the employer to

re-employ the applicant on conditions determined by the court.

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Miscellaneous—Chapter 6

Published under the Legislation Revision and Publication Act 2002 5

224—Non-compliance with awards and enterprise agreements

If a person who is bound by an award or enterprise agreement contravenes or fails to

comply with a provision of the award or agreement, the person is guilty of an offence.

Maximum penalty: $2 500.

225—Improper pressure etc related to enterprise agreements

(1) A person must not harass an employer or employee, or apply improper pressure to an

employer or employee—

(a) to prevent, or discourage the employer or employee, from supporting or

entering into an enterprise agreement; or

(b) to induce the employer or employee to seek variation or rescission of an

enterprise agreement.

Maximum penalty: $20 000.

(2) The provision of advice in a reasonable manner to an employee about issues

surrounding an enterprise agreement (or potential enterprise agreement) cannot be

regarded as improper pressure under subsection (1).

(3) A person must not coerce an employee to enter into an enterprise agreement.

Maximum penalty: $20 000.

(4) A person must not state that an employee has voluntarily supported or entered into an

enterprise agreement knowing the statement to be false.

Maximum penalty: $5 000.

225A—Use of offensive language against a representative

An employer, or an officer, employee or representative of an association of employers,

must not address offensive language to a duly authorised representative of an

association of employees (insofar as the person is acting as such a representative).

Maximum penalty: $5 000.

226—False entries

A person must not—

(a) wilfully make a false entry in a time book, notice, certificate, list or document

required by this Act to be kept, served or sent; or

(b) wilfully make or sign a false declaration under this Act; or

Maximum penalty: $2 500.

227—Experience of apprentice etc how calculated

For the purposes of an award or enterprise agreement under which wages are to vary

in accordance with experience in an industry, a period of employment as an apprentice

or junior in the industry will be brought into account.

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228—No premium to be demanded for apprentices or juniors

(1) A person must not ask for, or receive, any consideration, premium or bonus for

engaging or employing a person as an apprentice or junior.

Maximum penalty: $2 500.

(2) However, this section does not prevent the payment or receipt of a consideration,

premium or bonus under an arrangement approved by the Minister.

(3) A person who gives a consideration, premium or bonus to a person who is, because of

this section, not entitled to receive it may recover it as a debt.

229—Illegal guarantees

(1) A person must not require or permit another—

(a) to pay a sum of money; or

(b) to enter into or make a guarantee or promise to pay a sum of money,

in the event of the conduct of an apprentice, junior or employee not being satisfactory

to the employer.

Maximum penalty: $1 250.

(2) However, this section does not invalidate, or render unlawful, a guarantee entered into

on terms approved by the Minister.

(3) A sum paid in contravention of this section is recoverable as a debt.

230—Orders for payment of money

(1) If SAET makes an order for the payment of a monetary sum, the Registrar may issue a

certificate under the seal of SAET, certifying the amount payable and the persons by

whom and to whom it is to be paid.

(2) The certificate may be filed in a court that has civil jurisdiction up to, or exceeding,

the amount of the certificate and it will then be enforceable as a judgment of that

court.

231—Recovery of penalty from members of association

(1) If an association is ordered to pay a penalty or other monetary sum under this Act and

the penalty or other sum is not fully paid within one month after the date of the

order—

(a) the persons who were members of the association when the order was made

are jointly and severally liable to pay the penalty or other sum as if the order

had been made against them personally; and

(b) proceedings to enforce the order may be taken against them, or any of them,

accordingly.

(2) However, a person's liability on an order to which this section applies is limited to

$20.

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Published under the Legislation Revision and Publication Act 2002 7

232—General defence

(1) In proceedings against an employer for an offence against this Act, it is a defence to

show—

(a) that another person was responsible for the act or omission constituting the

offence; and

(b) that the defendant employer used all due diligence to prevent the commission

of the offence; and

employer and in contravention of the employer's orders.

(2) If a defence is made out by an employer under subsection (1), the person responsible

for the act or omission alleged to constitute the offence may be prosecuted and

convicted of the offence as if that person were the employer.

(3) In proceedings against an employee for an offence against this Act, it is a defence to

show that the defendant used all due diligence to prevent the commission of the

offence.

233—Order for payment against convicted person

(1) If an employer is convicted of an offence against this Act, the court may, on

application by an employee in respect of whom the offence was committed, order the

convicted person to pay to the applicant an amount due from the convicted person to

the applicant.

(2) On an applicant under subsection (1), an inspector's certificate will be accepted, in the

absence of proof to the contrary, as proof of an amount due from the convicted person

to the applicant.

(3) An amount that a convicted person is ordered to pay under this section may be

recovered in the same way as a fine.

234—Proof of awards etc

(1) A copy of a determination under the seal of SAET and certified under the Registrar's

signature, is admissible in all courts and tribunals and before all persons as evidence

of the determination.

(2) A copy of an enterprise agreement certified under the Registrar's signature to be an

enterprise agreement approved by SAET, is admissible in all courts and tribunals and

before all persons as evidence of the existence of the enterprise agreement and its

terms.

(3) It is not necessary to prove the seal of SAET or of the signature of the Registrar.

235—Proceedings for offences

(1) An offence against a provision of this Act lies within the criminal jurisdiction of

SAET.

(2) A prosecution for an offence against this Act must be commenced within 2 years after

the date on which the offence is alleged to have been committed.

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Chapter 6—Miscellaneous

8 Published under the Legislation Revision and Publication Act 2002

236—Conduct by officers etc of body corporate

(1) If it is necessary to establish, for the purposes of this Act, the state of mind of a body

corporate in relation to particular conduct, it is sufficient to show—

(a) that an officer, director, employee or agent of the body corporate engaged in

the conduct within the scope of his or her actual or apparent authority; and

(b) that the officer, director, employee or agent had the state of mind.

(2) Any conduct in which—

(a) an officer, director, employee or agent of the body corporate engages within

the scope of his or her actual or apparent authority; or

(b) another person engages at the direction or with the consent or agreement

(express or implied) of an officer, director, employee or agent of the body

corporate, who gives the direction, consent or agreement within the scope of

the actual or apparent authority,

is, for the purposes of this Act, conduct of the body corporate.

(3) A reference in this section to the state of mind of a person extends to the knowledge,

intent, opinion, belief or purpose of the person and the person's reasons for the intent,

opinion, belief or purpose.

236A—Offences by body corporate

(1) If—

(a) a body corporate commits an offence against this Act; and

(b) a member of the governing body of the body corporate intentionally allowed

the body corporate to engage in the conduct comprising the offence,

that person also commits an offence and is liable to the same penalty as may be

imposed for the principal offence.

(2) A person referred to in subsection (1) may be prosecuted and convicted of an offence

against that subsection whether or not the body corporate has been prosecuted or

convicted of the principal offence committed by the body corporate.

237—Regulations

(1) The Governor may make such regulations as are contemplated by this Act or as are

necessary or expedient for the purposes of this Act.

(1a) Without limiting the generality of subsection (1), regulations may make provision for

any matter, including matters of a saving or transitional nature, relevant to the

interaction between this Act and an Act of the Commonwealth.

(2) The regulations may impose fines not exceeding $2 500 for offences against the

regulations.

(3) A regulation under this Act—

(a) may make different provision according to the matters or circumstances to

which it is expressed to apply;

(b) may be of general or limited application;

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Miscellaneous—Chapter 6

Published under the Legislation Revision and Publication Act 2002 9

regulated or prohibited according to the discretion of the Minister or any

other person or body prescribed by the regulations.

1.9.2023—Fair Work Act 1994

Transitional provisions—Schedule 1

Published under the Legislation Revision and Publication Act 2002 1

Schedule 1—Transitional provisions

4—Definitions

In this Schedule—

former Act means the Industrial Relations Act (S.A.) 1972;

former Commission means the Industrial Commission of South Australia established

under the former Act;

former Court means the Industrial Court of South Australia established under the

former Act.

5—References to former Court or Commission

A reference in an Act or other instrument to the former Court or the former

Commission must, where the context admits, be read as a reference to the Court or the

Commission under this Act.

6—Awards and other determinations of the former Commission

(1) An award in force under the former Act immediately before the commencement of

this Act continues in force, subject to this Act, as if it were an award of the

Commission under this Act even though the award makes provisions for conditions of

employment that cannot be made by award under this Act.

(2) However—

(a) a provision of an award that continues in force under subsection (1) providing

for preference to members of an association lapses on the commencement of

this Act; and

(b) a right of entry and inspection conferred by an award that continues in force

under subsection (1) must be read down so as to be consistent with this Act.

(3) All other determinations of the former Commission in force immediately before the

commencement of this Act continue in force subject to this Act as if they were

determinations of the Commission under this Act.

(4) If a recommendation was made before the commencement of this Act by the

Commission or a member of the Commission for the prevention or settlement of an

industrial dispute, the recommendation continues in effect as if it had been made by

the Commission or a member of the Commission under this Act.

7—Industrial agreements

(1) An industrial agreement in force under the former Act immediately before the

commencement of this Act continues in force under this Act, unless earlier superseded

by an enterprise agreement, until 31 December 1996.

(2) However—

(a) a provision of an industrial agreement that continues in force under

subsection (1) providing for preference to members of an association lapses

on the commencement of this Act; and

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Schedule 1—Transitional provisions

2 Published under the Legislation Revision and Publication Act 2002

(b) a right of entry and inspection conferred by an industrial agreement that

continues in force under subsection (1) must be read down so as to be

consistent with this Act.

(3) The Commission—

(a) must take reasonable steps to ensure that the parties to industrial agreements

are aware that the agreements will lapse on 31 December 1996; and

(b) must, as far as practicable and appropriate, encourage the renegotiation of the

agreements as enterprise agreements.

(4) The provisions of the former Act apply, with adaptations and modifications prescribed

by regulation, to an industrial agreement that continues in force under this section.

7A—References to industrial agreements

(1) A reference to an industrial agreement in an Act or statutory instrument extends to an

enterprise agreement under this Act.

(2) However, this section does not apply to references to an industrial agreement in the

Long Service Leave Act 1987 or a statutory instrument under that Act.

8—Continuation of part-heard proceedings etc

(1) The jurisdiction of the Court and the Commission under this Act extends to causes of

action that arose before the commencement of this Act.

(2) Any proceedings that had been commenced before the former Court or the former

Commission may be continued and completed by the Court or the Commission under

this Act.

(3) The Court or Commission will apply the substantive law in force when the cause of

action arose, or if proceedings relate to the making or variation of an award, when the

application was made.

(4) However, if an application for an award or variation of an award is made after 14 May

1994, the application is to be determined in accordance with this Act.

9—Certificates and licences

(1) A certificate under section 144 of the former Act (a "section 144 certificate")

continues in force (unless cancelled by the Registrar at the request of the person for

whom the certificate was issued) as a certificate of conscientious objection under this

Act and a reference in an award or agreement to a section 144 certificate will be

construed as a reference to a certificate of conscientious objection under this Act.

(2) A certificate under section 167 of the former Act continues in force as if it were a

certificate under section 230 of this Act.

(3) A licence in force under section 88 of the former Act immediately before the

commencement of this Act continues in force, subject to this Act, as if it were a

licence under section 112 of this Act.

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Transitional provisions—Schedule 1

Published under the Legislation Revision and Publication Act 2002 3

10—The President of the former Court

(1) The person holding office as President of the former Court immediately before the

commencement of this Act—

(a) becomes on the commencement of this Act the Senior Judge of the Court (and

is entitled while continuing in the office to the title of President of the Court);

and

(b) continues, while holding that office, to have the same rank, status and

precedence as a Judge of the Supreme Court and to be entitled to be styled

"The Honourable Justice …".

(2) The person to whom subsection (1) applies is, while continuing to hold office as the

Senior Judge of the Court under this section, a member of the principal judiciary of

the Court.

(3) The provisions of the former Act about salary, tenure and conditions of office relating

to the office of President of the former Court apply (with the necessary modifications)

to the office of Senior Judge of the Court for as long as the person to whom

subsection (1) applies continues to hold that office.

(4) Other provisions of this Act that are inconsistent with this section must be read subject

to this section.

11—Deputy Presidents of the Court

(1) Each person who held office as a Deputy President of the former Court immediately

before the commencement of this Act becomes, on that commencement, a judge of the

Court.

(2) A person to whom subsection (1) applies is, while continuing to hold office as a Judge

of the Court under this section, a member of the principal judiciary of the Court.

(3) The provisions of the former Act about salary, tenure and conditions of office relating

to the office of Deputy President of the former Court apply (with necessary

modifications) to the office of a judge to whom subsection (1) applies for as long as

the judge continues to hold office in accordance with those provisions as a judge of

the Court.

(4) Other provisions of this Act that are inconsistent with this section must be read subject

to this section.

12—Industrial magistrates

(1) Each person who held office under the former Act as an industrial magistrate

immediately before the commencement of this Act becomes, on the commencement of

this Act, a magistrate under the Magistrates Act 1983.

(2) A magistrate to whom subsection (1) applies will, for so long as he or she continues to

hold office under the Magistrates Act 1983, continues to be an industrial magistrate

and a member of the principal judiciary of the Court unless he or she resigns the office

of industrial magistrate.

(3) A person may resign the office of industrial magistrate under this section without

resigning as a magistrate under the Magistrates Act 1983.

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Schedule 1—Transitional provisions

4 Published under the Legislation Revision and Publication Act 2002

(4) The accrued and accruing rights in respect of employment of a magistrate to whom

this section applies are unaffected by this section.

(5) Other provisions of this Act that are inconsistent with this section must be read subject

to this section.

13—Other officers of former Court and Commission

(1) A person who held office as a commissioner under the former Act immediately before

the commencement of this Act becomes, on the commencement of this Act, unless the

Governor otherwise determines, a commissioner under this Act as if appointed on the

commencement of this Act as a commissioner under this Act.

(2) The commissioner will be taken to have been appointed for a term of six years (which

may be renewed once for a further term of six years) but if the commissioner is over

60 at the time of the appointment or renewal, the term will end when the

commissioner reaches 65 years of age.

(3) The Registrar and other staff of the former Court and the former Commission (other

than those specifically mentioned above) are, on the commencement of this Act,

transferred to corresponding positions on the staff of the Court or the Commission (or

both) under this Act.

(4) The salary and accrued and accruing rights to annual leave, sick leave, family leave

and long service leave of persons who are transferred by this section to offices and

positions under this Act are not to be prejudiced by the transfer.

(5) However, a salary difference that exists between a transferee and another person in the

same office or position, and in favour of the transferee, is not preserved beyond the

point when the salary of the other person reaches or exceeds the level of the

transferee's salary at the time of transfer.

14—Inspectors

A person who was an inspector under the former Act continues, subject to this Act, as

an inspector under this Act.

15—Members of Industrial Relations Advisory Council

A person who held office as a member of the Industrial Relations Advisory Council

immediately before the commencement of this Act continues in office, subject to this

Act, as a member of the Committee.

16—Registered associations

(1) An association that was, immediately before the commencement of this Act, a

registered association under the former Act continues as a registered association under

this Act.

(2) No objection of a kind that was prevented by section 133(1) of the former Act

immediately before the re-enactment of Part 9 of that Act pursuant to section 41 of the

Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment

Act 1991 (and then prevented by section 55 of that Amendment Act) may be taken in

relation to an association registered under this Act immediately before the

commencement of the Industrial and Employee Relations (Registered Associations)

Amendment Act 1997.

1.9.2023—Fair Work Act 1994

Transitional provisions—Schedule 1

Published under the Legislation Revision and Publication Act 2002 5

Note—

1 Section 133(1) of the former Act provided as follows:

133(1) The legal existence or registration of an association, the membership

of any member or any person claiming to be a member of an

association, the validity of the appointment or election of any officer

of an association or of any action or decision of such an officer, or

the validity of any resolution passed or decision made at any meeting

of an association or of any committee of the association, cannot be

challenged, impugned or in any way affected, nor can the compliance

of any rule or rules of an association with the prescribed conditions,

or the observance or validity of any such rule or rules or the

operation of any award or order made under this Act, be challenged,

impugned or in any way affected by reason only that—

(a) the association is also registered as an organization

pursuant to the Commonwealth Act, or is a branch or forms

part of an organization so registered;

(b) members of the association are also members of an

organization registered under the Commonwealth Act, and

no register of members separate and distinct from the

Commonwealth Act is kept by the association, or no

application for membership or membership fee separate

from the application or fee made and paid to the

organization registered under that Commonwealth Act has

been made or paid to the association by any member;

books, accounts, records or rules which are separate and

distinct from any books, accounts, records or rules kept and

maintained by an organization registered under the

Commonwealth Act, of which some or all of its members

are members;

(d) officers or the association have been elected or appointed

by or are also officers of an organisation registered under

the Commonwealth Act; or

(e) any matter consequential upon or arising out of the matters

referred to in paragraphs (a) to (d).

17—Enterprise agreements and spouses and domestic partners

From the commencement of this clause, an enterprise agreement that provides that

sick leave is available to an employee if the leave becomes necessary because of the

sickness of a spouse, will be taken to provide that sick leave is available to an

employee if the leave becomes necessary because of the sickness of a spouse or

domestic partner (whether the agreement was entered into before or after the

commencement of this clause).

18—National industrial relations system

(1) In this clause—

designated day means the day on which a Commonwealth law in the terms, or

substantially in the terms, set out in the tabled text under the Fair Work

(Commonwealth Powers) Act 2009 comes into operation.

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Schedule 1—Transitional provisions

6 Published under the Legislation Revision and Publication Act 2002

(2) This Act will operate in relation to—

(a) any matter arising under this Act before the designated day (including a

matter that is not in the nature of a right or that is procedural in nature); and

(b) any matter arising, directly or indirectly, out of such a matter,

insofar as the matter is not dealt with under the Fair Work Act 2009 of the

Commonwealth on or after the designated day.

(3) Nothing in this clause is intended to limit or affect the operation of this Act—

(a) in relation to industrial or other matters that are not affected by a law of the

Commonwealth relating to matters referred to the Parliament of the

Commonwealth under the Fair Work (Commonwealth Powers) Act 2009; or

(b) in any other respect (except to the extent that this Act cannot apply by virtue

of a law of the Commonwealth).

Schedule 2—Continuity of industrial

arrangements—government business enterprises

1—Preliminary

In this Schedule—

federal industrial instrument means any award, agreement determination, order or

other form of instrument that relates to 1 or more industrial matters under the National

Fair Work legislation, other than an Australian workplace agreement, a pre-reform

AWA or an Individual Transitional Employment Agreement;

GBE means an agency or instrumentality of the Crown declared by proclamation to be

a government business enterprise for the purposes of this Schedule;

GBE employee means a person employed or appointed by a GBE;

National Fair Work legislation means—

(a) the Commonwealth Act; or

(b) the Fair Work (Transitional and Consequential Amendments) Act 2009 of the

Commonwealth;

relevant day means, in relation to each GBE, a day fixed by the Governor by

proclamation as being the relevant day for the purposes of the application of this

Schedule to the GBE.

2—Operation of federal industrial instruments

(1) A federal industrial instrument that, on the relevant day in relation to a particular

GBE, relates (or purports to relate) to the GBE employees of that GBE (being a

federal industrial instrument in operation (or purportedly in operation) immediately

before the relevant day), will, on the relevant day, be taken to be an award or

enterprise agreement (as the case may require in order to achieve the greatest degree

of correspondence) under this Act (insofar as it relates to those employees and any

other relevant parties)—

(a) with the same terms and provisions as the relevant instrument under the

relevant Act of the Commonwealth; but

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Published under the Legislation Revision and Publication Act 2002 7

(b) subject to any modification or exclusion prescribed by regulations made for

the purposes of this subclause and subject to the operation of subclauses (2),

(3), (4) and (5).

(2) The regulations may prescribe rules that are to be applied for the purposes of

achieving the greatest degree of correspondence envisaged by subclause (1).

(3) If an award or enterprise agreement is taken to exist under this Act by virtue of the

operation of subclause (1)—

(a) the award or enterprise agreement will be taken to be made or approved under

this Act on the relevant day; and

(b) this Act 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

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 SAET

is satisfied that it is fair and reasonable to do so in the circumstances.

(4) SAET may, in varying an award or enterprise agreement under subclause (3)(c) (after

taking into account what is fair and reasonable in the circumstances), confer an

exemption from the operation of any provision of this Act (being an exemption that

has effect subject to such conditions (if any) as SAET thinks fit to impose).

(5) Despite a preceding subclause, if an award or enterprise agreement taken to exist

under this clause would, but for this subclause, provide for remuneration or other

conditions of employment that are inferior to the standards that apply under Chapter 3

Part 1 Division 2, the award or enterprise agreement will be taken to be modified to

the extent necessary to meet those standards.

(6) An award or enterprise agreement taken to exist under this clause will, unless it has

been superseded or rescinded in the meantime, expire at the end of the period of

2 years from the relevant day.

3—Ability to carry over matters

SAET may, in connection with the operation of this Schedule, or any matter arising,

directly or indirectly, out of the operation of this Schedule—

(a) accept, recognise, adopt or rely on any step taken under, or for the purposes

of, the National Fair Work legislation; and

(b) accept or rely on any matter or thing (including in the nature of evidence

presented for the purposes of any proceedings) that has been presented, filed

or provided under, or for the purposes of, the National Fair Work legislation;

and

of, the National Fair Work legislation.

Fair Work Act 1994—1.9.2023

Schedule 2A—Continuity of industrial arrangements—local government sector

8 Published under the Legislation Revision and Publication Act 2002

Schedule 2A—Continuity of industrial arrangements—local

government sector

1—Preliminary

In this Schedule—

designated day means the day on which this Schedule comes into operation;

federal enterprise agreement means an enterprise agreement under the

Commonwealth Act;

federal industrial instrument means any award, agreement determination, order or

other form of instrument that relates to 1 or more industrial matters under the National

Fair Work legislation, other than an Australian workplace agreement, a pre-reform

AWA or an Individual Transitional Employment Agreement;

local government sector employee has the same meaning as in the Fair Work

(Commonwealth Powers) Act 2009;

National Fair Work legislation means—

(a) the Commonwealth Act; or

(b) the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 of the Commonwealth;

State industrial instrument means—

(a) an enterprise agreement approved (or purportedly reached) under this Act; or

(b) an agreement reached (or purportedly approved) as a result of a referral of a

matter to SAET under Schedule 1 of the Commercial Arbitration and

Industrial Referral Agreements Act 1986.

2—State industrial instruments

A State industrial instrument—

(a) that relates (or purports to relate) to local government sector employees; and

(b) that is in operation (or purportedly in operation) immediately before the

designated day,

is to be taken to be, and to have always been, valid and effectual for the purposes of

the law of the State.

3—Federal industrial instruments—immediate changeover

(1) A federal industrial instrument—

(a) that relates (or purports to relate) to local government sector employees; and

(b) that is in operation (or purportedly in operation) immediately before the

designated day; and

proclamation,

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Continuity of industrial arrangements—local government sector—Schedule 2A

Published under the Legislation Revision and Publication Act 2002 9

will, on the designated day, be taken to be an award or enterprise agreement (as the

case may require in order to achieve the greatest degree of correspondence) under this

Act (insofar as it relates to those employees and any other relevant parties)—

(d) with the same terms and provisions as the relevant instrument under the

relevant Act of the Commonwealth; but

(e) subject to any modification or exclusion prescribed by regulations made for

the purposes of this subclause and subject to the operation of subclauses (2),

(3), (4) and (5).

(2) The regulations may prescribe rules that are to be applied for the purposes of

achieving the greatest degree of correspondence envisaged by subclause (1).

(3) If an award or enterprise agreement is taken to exist under this Act by virtue of the

operation of subclause (1)—

(a) the award or enterprise agreement will be taken to be made or approved under

this Act on the designated day; and