South Australia: Fair Work Act 1994 (SA)

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 4A Meaning of employer for public employees 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 Jurisdiction to settle and resolve industrial disputes 12 Orders to remedy or restrain contraventions 13 Advisory jurisdiction 13A Mandatory injunctions Part 2—Processes associated with industrial matters and disputes Division 1—Processes generally 14 Amendment or rectification of proceedings 15 Power to re-open questions 16 General power of waiver 17 Applications to SAET Division 2—Processes when constituted as an industrial relations commission 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 Part 3—Representation 25 Representation 26 Registered agents 27 Inquiries into conduct of registered agents or other representative 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 A1—Interpretation 65 References to SAET 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 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 100A State Wage Case 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 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 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 3A—Extension of Federal administration of CFMEU 136A Interpretation 136B Application by Federal administrator of CFMEU 136C Effect of administration of ABCWF 136D Administrator not liable in civil proceedings 136E Regulations under this Part 136F Cessation of administration 136G Anti-avoidance 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 144A Demarcation agreements etc 145 Saving of obligations 146 Sequestration orders 147 Exercise of powers of SAET 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 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 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 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 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 (c) to facilitate industrial efficiency and flexibility, and improve the productiveness of South Australian industry; and (ca) to promote and facilitate employment; and (d) to encourage enterprise agreements that are relevant, flexible and appropriate; and (e) to provide for awards that are relevant, flexible and expressed in non-technical language; and (f) to provide a framework for making enterprise agreements, awards and determinations affecting industrial matters that is fair and equitable to both employers and employees; (fa) to establish and maintain an effective safety net of fair and enforceable conditions for the performance of work by employees (including fair wages); and (fb) to promote and facilitate security in employment; and (g) to encourage prevention and settlement of industrial disputes by amicable agreement, and to provide a means of conciliation for that purpose; and (h) to provide a means for settling industrial disputes that cannot be resolved by amicable agreement as expeditiously as possible and with a minimum of legal formality and technicality; and (i) to ensure compliance with agreements and awards made for the prevention or settlement of industrial disputes, and to ensure compliance with any obligations arising under this Act; and (j) to provide employees with an avenue for expressing employment-related grievances and having them considered and remedied including provisions for a right to the review of harsh, unjust or unreasonable dismissals— (i) directed towards giving effect to the Termination of Employment Convention; and (ii) ensuring industrial fair play; and (k) to provide for absolute freedom of association and choice of industrial representation; and (l) to encourage the democratic control of representative associations of employers or employees, and the full participation by members in their affairs; and (m) to help prevent and eliminate unlawful discrimination in the workplace; and (ma) to promote and facilitate gender equity; and (n) to ensure equal remuneration for men and women doing work of equal or comparable value; and (o) to facilitate the effective balancing of work and family responsibilities; and (p) to facilitate the establishment and operation of a national industrial relations system based on co‑operative federalism through— (i) the use of dual appointments to Commonwealth and State bodies; and (ii) the promotion and facilitation of other arrangements that assist in integrating State and federal workplace relations systems and processes. (2) In exercising powers and carrying out functions under this Act, SAET is to have regard (where relevant) to the provisions of— (a) the Worst Forms of Child Labour Convention 1999 (See Schedule 9); and (b) the Workers with Family Responsibilities Convention 1981 (See Schedule 10); and (c) the Workers' Representatives Convention 1971 (See Schedule 11). 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; contract of employment means— (a) a contract recognised at common law as a contract of employment under which a person is employed for remuneration in an industry; or (b) a contract under which a person (the employer) engages another (the employee) to drive a vehicle that is not registered in the employee's name to provide a public passenger service (even though the contract would not be recognised at common law as a contract of employment); or Exception— The contract is not a contract of employment if the vehicle is a taxi and the contract would not be recognised at common law as a contract of employment. (c) a contract under which a person (the employer) engages another (the employee) to carry out personally the work of cleaning premises (even though the contract would not be recognised at common law as a contract of employment); or (d) a contract under which a person (the employer) engages another (the employee) to carry out work as an outworker (even though the contract would not be recognised at common law as a contract of employment); decision includes a refusal or failure to make a decision; demarcation dispute includes— (a) a dispute within an association or between associations about the rights, status or functions of members of the association or associations in relation to the employment of those members; or (b) a dispute between employers and employees, or between members of different associations, about the demarcation of functions of employees or classes of employees; or (c) a dispute about the representation under this Act of the industrial interests of employees by an association of employees; determination means an award, order, declaration, approval or decision; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; employee means a person employed for remuneration under a contract of employment and includes a public employee; employer means— (a) for public employees—see section 4A; (b) for other employees—a person who employs the employees for remuneration in an industry under a contract of employment; enterprise agreement means an agreement under Chapter 3 Part 2 of this Act between 1 or more employers and a group of employees regulating remuneration or other industrial matters (and includes a provisional enterprise agreement); Equal Remuneration Convention means the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value set out in Schedule 6; Fair Work Commission means the Fair Work Commission established under the Commonwealth Act (or an industrial authority that takes the place of the Fair Work Commission under Commonwealth law); family—the following are to be regarded as members of a person's family— (a) a spouse or domestic partner; (b) a child; (c) a parent; (d) any other member of the person's household; (e) any other person who is dependent on the person's care; group of employees—see subsection (2); (indexed)—see subsection (4); industrial action means— (a) a work practice, or a way of performing work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of the work; or (b) a ban, limitation, or restriction affecting the performance of work, or the offering or acceptance of work; or (c) a failure or refusal in connection with an industrial dispute to attend for work, or to perform work, but does not include action taken by an employer with the agreement of the employees, or action taken by employees with the agreement of the employer; industrial authority means— (a) SAET; or (b) a commission, court, board, tribunal, or body having authority under the law of the Commonwealth or another State to exercise powers of conciliation, determination or arbitration in industrial matters; or (c) a body declared by regulation to be an industrial authority for the purposes of this definition; industrial dispute means a dispute, or a threatened, impending or probable dispute, about an industrial matter (and an industrial dispute does not come to an end only because the parties, or some of them, cease to be in the relationship of employer and employee); industrial instrument means— (a) an award or enterprise agreement under this Act; or (b) a fair work instrument under the Commonwealth Act; or (c) an instrument (but not an Australian workplace agreement) given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; industrial matter means a matter affecting or relating to the rights, privileges or duties of an employer or employers (including a prospective employer or prospective employers) or an employee or employees (including a prospective employee or prospective employees), or the work to be done in employment, including, for example— (a) the wages, allowances or remuneration of employees or prospective employees in an industry, or the piece-work, contract or other prices paid or to be paid for the employment, including any loading or amount that may be included in wages, allowances, remuneration or prices as compensation for lost time and the wages, allowances or remuneration to be paid for work done during overtime or on holidays, or for other special work, and also the question whether piece-work will be allowed in an industry; (b) the hours of employment in an industry, including the lengths of time to be worked, and the quantum of work or service to be done, to entitle employees to any given wages, allowances, remuneration or prices, and what times are to be regarded as overtime; (c) the age, qualification or status of employees, and the manner, terms and conditions of employment; (d) the relationship between an employer and an apprentice (and any matter relating to employment arising between an employer and an apprentice); (e) the employment of juniors and apprentices in an industry (including the number or proportion that may be employed); (f) the employment of any person, or of any class of persons, in addition to those referred to above, in an industry; (fa) matters in an industrial instrument relating to wage parity; (g) the refusal or neglect, without reasonable cause or excuse, of any person bound by an award, order or enterprise agreement to offer or accept employment, or to continue to be employed on the terms of the award, order or agreement; (h) any established or allegedly established custom or usage of an industry, either generally or in a particular locality; (i) the monetary value of allowances granted to or enjoyed by employees; (j) the dismissal of an employee by an employer; (k) a demarcation dispute; (ka) any matter affecting or relating to the performance of work by outworkers, including— (i) the giving out of work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker; (ii) the regulation of any person who gives out work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker; (iii) the creation of 1 or more contracts (including a series of contracts) dealing with the performance of work by outworkers; (iv) the terms or conditions under which work is performed by outworkers; (v) the protection of outworkers in any other respect; (l) the performance of work nude or partially nude, or in transparent clothing; (m) a matter classified as an industrial matter by regulation; (n) all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole; industry means a trade, business or occupation in which employees are employed; inspector—see section 219A; junior means an employee under the age of 21 years (but not an apprentice); legal practitioner means a person admitted to practise the profession of the law in this State; order includes direction; organisation means an organisation registered under the Commonwealth (Registered Organisations) Act; outworker—see section 5; peak entity means— (a) the Minister; and (b) the United Trades and Labor Council; and (c) the South Australian Employers' Chamber of Commerce and Industry Incorporated; and (e) any other body brought within the ambit of this definition by the regulations; place includes— (a) a building or structure; and (b) a vehicle; and (c) a ship or vessel; President means the President of SAET; public employee means— (a) a public sector employee, within the meaning of the Public Sector Act 2009, employed under, or subject to, that Act; or (b) any other person employed for salary or wages in the service of the State; registered agent means a person who is entitled to represent a party in proceedings before SAET by registration as an agent under this Act (See Chapter 2 Part 3); registered association means an association (which may include an organisation or branch) registered under Chapter 4 (Associations); Registrar means the Registrar or Deputy Registrar of SAET; remuneration means— (a) wages or salary; or (b) payment to or for the benefit of an employee in the nature of piece-work rates, penalty rates, shift premiums, overtime or special work rates; or (c) allowances; rules means the rules of SAET; SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; single business means— (a) a business carried on by a single employer; or (b) a business carried on by two or more employers as a joint venture or common enterprise; or (c) a single project or undertaking; or (d) activities carried on by— (i) the State; or (ii) a body, association, office or other entity established for a public purpose by or under a law of the State; or (iii) another body in which the State has a controlling interest; spouse—a person is the spouse of another if they are legally married; State includes a Territory of the Commonwealth; taxi means a vehicle— (a) licensed or exempted from the requirement to be licensed under Part 6 (Taxis) of the Passenger Transport Act 1994; and (b) with seating accommodation for not more than 12 passengers; and (c) used predominantly for the transport of passengers rather than the transport of goods or other freight; Termination of Employment Convention means the Convention concerning Termination of Employment at the Initiative of the Employer set out in Schedule 7; workplace means any place where an employee works and includes any place where such a person goes while at work but does not include any premises of an employer used for habitation by the employer and his or her household other than any part of such premises where an outworker works. (3) A group of employees cannot be defined by reference to membership of a particular association. (4) If a monetary sum is followed by the word (indexed), the amount is to be adjusted on 1 January of each year by multiplying the stated amount by a proportion obtained by dividing State average full-time adult total earnings (seasonally adjusted) as at 30 June in the previous year by State average full-time adult total earnings (seasonally adjusted) as at 30 June in the year in which the stated amount was fixed by Parliament. 4A—Meaning of employer for public employees (1) For the purposes of paragraph (a) of the definition of employer in section 4(1), the employer for public employees is the body or person (not being a Minister) declared by regulation to be the employer of the employees. (2) The body or person referred to in subsection (1) is an instrumentality of the Crown and is capable of binding the Crown in relation to an industrial matter. 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. (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. 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 (c) to settle and resolve industrial disputes. 8—Jurisdiction to interpret awards and enterprise agreements (1) SAET (constituted as the South Australian Employment Court) 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; (c) a claim for compensation to an employee or former employee from an employer or former employer for failure to make contributions (before or after the commencement of this Act) for the benefit of the claimant to a superannuation fund; (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 (c) an action for an order for specific performance; 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; (c) award damages against a party to a contract of employment on account of the manner of a breach of the contract (including where the breach constitutes or gives rise to a termination of the contract); (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. (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—Jurisdiction to settle and resolve industrial disputes (1) SAET (constituted as an industrial relations commission) has jurisdiction to settle and resolve industrial disputes. (2) In exercising its dispute settlement jurisdiction SAET may deal with a dispute as it considers appropriate including by any of the following: (a) conciliation or mediation; (b) making a recommendation or expressing an opinion; (c) arbitration. 12—Orders to remedy or restrain contraventions (1) SAET (constituted as the South Australian Employment Court) 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 (constituted as an industrial relations commission) 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. 13A—Mandatory injunctions Section 7(2) of the Crown Proceedings Act 1992 does not apply in respect of proceedings under this Act (other than proceedings under section 10). Part 2—Processes associated with industrial matters and disputes Division 1—Processes generally 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. 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 (c) by an employee, or group of employees; or (d) by a registered association of employers; or (e) by a registered association of employees; or (f) by the United Trades and Labor Council. (2) A natural person may bring an application as of right if the application is authorised under some other provision of this Act but otherwise must establish to the satisfaction of SAET— (a) that the claim arises out of a genuine industrial grievance; and (b) that there is no other impartial grievance resolution process that is (or has been) reasonably available to the person. Division 2—Processes when constituted as an industrial relations commission 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. (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 (b) encouraging the parties to agree on procedures for preventing or settling further disputes by discussion and agreement; and (c) deciding whether it would be appropriate for the parties to regulate their relationship by making an enterprise agreement or amending the terms of an existing enterprise agreement to provide more adequate means of dispute prevention or resolution. 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 (c) in the case of a compulsory conference—the matter has already been referred to SAET. (4) Permission will only be granted under subsection (2) if (and only if)— (a) all of the parties consent to the application for permission; or (b) another party is represented by a legal practitioner or registered agent; or (c) another party is a legal practitioner or is legally qualified; or (d) the person presiding at the conference is satisfied— (i) the party or intervener would, if permission were not granted, be unfairly disadvantaged; or (ii) permission is appropriate in the circumstances. (5) The costs incurred by a party for representation at a voluntary or compulsory conference by a legal practitioner or registered agent acting under the preceding subsections will not be included in any order for costs. 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 (c) pays the relevant fee fixed by regulation. (3) A person who is not entitled to practise as a legal practitioner because his or her name has been struck off the roll of legal practitioners in this State or elsewhere or because of other disciplinary action taken against him or her is not eligible to become or remain registered as an agent. (4) Registration will be granted or renewed for a period (not exceeding 2 years) determined by the Registrar. (5) The Governor may, by regulation, establish a code of conduct to be observed by registered agents. (6) The code of conduct may (for example) deal with the following matters: (a) it may regulate the fees to be charged by registered agents; (b) it may require proper disclosure of fees before the registered agent undertakes work for a client; (c) it may limit the extent to which a registered agent may act on the instructions of an unregistered association. 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 (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 (c) if the representative is a registered agent— (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. 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. (1a) An award of interest, or lump sum instead of interest, determined under this section must take into account the period between the day the relevant cause of action arose and the day the judgment is delivered. (2) However— (a) the South Australian Employment Court may not authorise the award of interest on interest; and (b) if interest is payable because of an antecedent right, the award may reflect the antecedent right but may not create a right to additional interest; and (c) the South Australian Employment Court may not award interest on an amount for which judgment is given by consent except by consent of the parties. 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. 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. Chapter 3—Employment Part A1—Interpretation 65—References to SAET A reference in this Chapter to SAET is a reference to SAET constituted as an industrial relations commission. 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 (c) if a person is employed on neither an hourly nor a daily basis, but the period of employment is less than a week, wages accrue at the end of the period of employment. 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 (c) an amount the employer is authorised or required to deduct by order of a court, or under a law of the State or the Commonwealth. (4) An employee may, by giving written notice to the employer, withdraw an authorisation under this section. (5) Despite the other provisions of this section, remuneration may be paid by the Crown to an employee by cheque or by payment into an account with a financial institution specified by the employee, but, if payment is by cheque, there must be no deduction from the amount payable because the payment is made by cheque. (6) An employer who fails to comply with a requirement under subsection (2) or (5) is guilty of an offence. Maximum penalty: $3 250. Expiation fee: $325. Division 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 a Full Bench of SAET in accordance with the following provisions: (b) proceedings to establish the standard may be commenced by application by a peak entity, or by SAET acting on its own initiative; (c) a minimum standard for remuneration must— (i) fix a minimum weekly wage for an adult working ordinary hours; and (ii) fix a minimum hourly rate for an adult working on a casual basis; and (iii) fix age-based gradations for juniors having regard to existing award conditions; and (iv) cover such other incidental or related matters as should, in the opinion of SAET, be dealt with in the minimum standard. 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) A Full Bench of 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) A Full Bench of 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. 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) A Full Bench of 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) A Full Bench of 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. 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) A Full Bench of 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) A Full Bench of 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 par