Construction Industry Long Service Leave Act 1987

Decision on preliminary argument about the jurisdiction being exercised by the SAET - Whether sitting in Court session or as an industrial relations commission when dealing with these applications for review pursuant to s 34 of the Construction Industry Long Service Leave Act 1987 - Whether s 6(2) of the South Australian Employment Tribunal Act 2014 prescribes an exclusive code for the assignment of matters to the Tribunal sitting in Court session - If no specific assignment to the Court in conferring Act or in the SAET Rules must SAET by default be sitting as an industrial relations commission - Whether lacuna between legislation and rules such that lack of assignment by either of the processes defined in ss 6(2)(a) or 6(2)(b) deprives SAET of jurisdiction - HELD - Decision of Full Bench in Kimber determinative and binding - Where jurisdiction has been conferred and the power to be exercised to deal with the matter is judicial the SAET is sitting in Court session - Legislative provisions conferring power not to be confused with provisions about procedure - Assignment provisions in s 6(2) are procedural for matters within jurisdiction and are permissive not exclusive - Matters heard in the South Australian Employment Court.

DSM Services Pty Ltd v Construction Industry Long Service Leave Board [2021] SAET 160

Ritson v South Australia Police [2019] SAET 205

Chief Executive, Department of Premier and Cabinet, for Chief Executive, Department of Health and Wellbeing (SA Ambulance Service) v Kimber [2021] SAET 71

Re Ranger Uranium Mines Pty Ltd, ex parte Federated Miscellaneous Workers Union of Australia (1987) 163 CLR 656; [1987] HCA 63

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

League Engineering Services Pty Ltd v Construction Industry Long Service Leave Board [2022] SAET 76

Turnkey Communication & Power Solutions Pty Ltd (ABN 84 124 194 618) v Construction Industry Long Service Leave Board (ABN 26 476 100 527) [2022] SAET 93

McIntosh v Construction Industry Long Service Leave Board [2018] SAET 18

1. This decision is on a preliminary jurisdictional issue, about whether the South Australian Employment Tribunal ('SAET') is sitting in Court session as the South Australian Employment Court ('the Court') when considering these applications for review brought under s 34 of Construction Industry Long Service Leave Act 1987 ('the CILSL Act').
2. The applicants, DSM Service Pty Ltd ('DSM')[1] and RAP2 Pty Ltd ('RAP2'),[2] have, in two separate proceedings, both applied for orders that the same respondent, the Construction Industry Long Service Leave Board ('the Board') pay their costs of their respective applications to SAET for review of Board decisions.
3. The Board has opposed the costs applications on jurisdictional grounds, arguing that, in considering the applications for review, the SAET is not sitting in Court session. The central disagreement is whether s 6(2) of the South Australian Employment Tribunal Act 2014 ('the SAET Act') constitutes an exclusive code for the assignment of matters to the Court. The Board argues it does. The applicants argue that it does not.
4. The parties agreed to have the jurisdictional argument determined as a preliminary matter.
5. Because the argument is identical in each case and the circumstances so similar that any minor differences are immaterial to the jurisdictional argument, both matters were argued together and these reasons apply equally to both.
6. DSM applied on 21 January 2021 for review of a Board decision dated 8 February 2019 and RAP2 applied on 31 August 2022 for review of a Board decision dated 1 August 2022.
7. Both applications were allocated to the same Deputy President Magistrate for hearing. Although there was an interlocutory dispute which was the subject of published decision in the DSM matter,[3] the substantive review proceedings in each matter were resolved by consent. Orders were made by consent in the DSM application on 16 December 2022 setting aside the Board's Notice of Assessment of 8 February 2019; and the RAP2 application was dismissed on 19 December 2022 after the Board withdrew the decision under review.
8. Initially it was agreed by the parties that the information on the Tribunal files was sufficient for the matter to be determined on the papers, following written submissions. However, after the submissions were filed, the respondent requested a hearing for oral argument, which was agreed by the applicants.
9. The hearing proceeded with the only evidence being an affidavit of David Putland dated 5 July 2023 affirming that Notices were sent pursuant s 78B of the Judiciary Act 1903 (Cth) to each of the Commonwealth, State and Territory Attorneys-General of constitutional issues raised by the applicants. None chose to intervene.

1. There is in South Australia a legislative regime which provides portability of long service leave to employees in the construction industry.
2. The CILSL Act requires employers in the construction industry (as defined) to pay a levy for each of their eligible employees, from which the long service leave of those employees is funded.
3. The Board is established by the CILSL Act, and has responsibility for administering the Construction Industry Fund, into which the levies are paid and from which the employee's entitlements are paid. The Board is charged with the power and responsibility to assess, collect, invest and disperse those funds.
4. What this means for construction employees is that their entitlement to long service leave accrues according to the days they work as a construction worker, including any period of allowable absence, whether or not those days were worked with the same employer or different employers.
5. It is the Board which has responsibility for the assessment and collection of the levies payable by employers under the CILSL Act. To this end, it has legislative powers to impose levies, require the provision of information, and impose penalties and fines for late payment.
6. Section 34 of the CILSL Act provides for a review of Board decisions as follows:

A person who is dissatisfied with a decision of the Board under this Act may, within 30 days after the date of the decision (or such longer period as SAET may allow) apply to SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 for a review of the decision.

1. Section 37 provides for Board levy decisions to stand pending review by the SAET as follows:

(1) An obligation to pay a levy or a right to recover a levy is not suspended by the commencement of proceedings for a review by SAET.

(2) If the assessment of a levy is altered on a review, a due adjustment must be made and, where the assessment is increased, a further amount is payable in accordance with the increase and, where an assessment is decreased, the Board must refund any amount overpaid.

1. Section 4 of the CILSL Act defines the SAET as follows:

SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014.

1. The conferral of jurisdiction on the SAET by s 34 of the CILSL Act is not at large. It is specifically for review under Pt 3 Div 1 of the SAET Act. Part 3 is entitled Exercise of Jurisdiction. Division 1 is entitled Review Jurisdiction. I will refer to this as the SAET's review jurisdiction.

Subject to this Act or a relevant Act, parties bear their own costs in any proceedings before the Tribunal (other than proceedings assigned to the South Australian Employment Court to which section 26B applies).

1. The CILSL Act is silent about the question of costs in relation to review applications, so it is only the SAET Act which governs that question in accordance with s 52(1).
2. Section 26B of the SAET Act says:

Without limiting any other provision of this Act, the South Australian Employment Court may, in exercising any jurisdiction that is in the nature of a civil jurisdiction, exercise any power under Part 6 of the District Court Act 1991, subject to any exclusion or modification prescribed by the regulations as if references to the District Court extended to the South Australian Employment Court.

1. Part 6 of the District Court Act includes s 42(1):

Subject to subsection (2) and the rules, costs in any proceedings in the Civil Division will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).

1. An application for review pursuant to s 34 of the CILSL Act is a civil proceeding. That is not in dispute.
2. Consequently, and the parties are agreed on this, an order for the costs the applicants seek is only available if the proceedings are being heard in the South Australian Employment Court.

1. When the SAET was established by the SAET Act in 2015, it replaced the former Workers Compensation Tribunal. Also in existence at that time were the Industrial Relations Court of South Australia ('IR Court') and the South Australian Industrial Relations Commission ('IR Commission').
2. By the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (the Amendment Act), the jurisdiction of the SAET was expanded to include the jurisdictions of the IR Court and the IR Commission, replacing them and folding their operations into the SAET.
3. The second reading speech for the Statutes Amendment (South Australian Employment Tribunal) Bill articulated the legislative intention of this combination with these words:

...to enable SAET to exercise both non-judicial and judicial powers, with the latter being exercised in the Court part of SAET.[4]

(1) The South Australian Employment Tribunal is established.

(2) The Tribunal will have a part that is the Tribunal in Court Session and as so established by force of this Act, is a court of record.

(3) The Tribunal in Court Session is to be the South Australian Employment Court.

(4) The Tribunal will also have a part that is the Tribunal acting as an industrial relations commission.

• 29 At the time of hearing, s 6 read as follows:[5]

(1) Subject to this or any other Act, the Tribunal will have the jurisdiction, (including jurisdiction to try a charge for an offence) conferred on it by or under this or any other Act.

(2) Matters within the jurisdiction of the Tribunal will be assigned to the South Australian Employment Court as follows:

(a) an Act conferring jurisdiction on the Tribunal may specifically assign matters to the South Australian Employment Court;

(b) the rules may (unless to do so is inconsistent with a provision of a relevant Act) -

(i) assign matters to the South Australian Employment Court;

(ii) assign matters to the South Australian Employment Court for resolution or determination after initial consideration or other steps having been undertaken in that part of the Tribunal that does not sit as the Court:

(c) the jurisdiction to try a charge for an offence is assigned to the South Australian Employment Court.

(3) Matters within the jurisdiction of the Tribunal (and not assigned to the South Australian Employment Court) and dealt with by the Tribunal acting as an industrial relations commission do not need to be specifically assigned to such a commission.

1. While the CILSL Act confers jurisdiction on the Tribunal to deal with applications for review, it does not specifically assign those matters to the Court as allowed for in s 6(2)(a).
2. The South Australian Employment Tribunal Rules ('the SAET Rules') do not currently, nor did they at the time of these applications, assign matters brought under the CILSL Act to the Court as allowed for in s 6(2)(b).
3. The applicants argue that the CILSL Act confers jurisdiction on the SAET to determine applications for review, which requires the exercise of judicial power. Therefore, in order to fulfill that function, it must be sitting as the Court and not as an industrial relations commission, whether there is a specific assignment pursuant to s 6(2) or not.
4. The Board argues that those provisions, ss 6(2)(a) and 6(2)(b), are an exclusive code for the assignment of matters to the Court. Absent assignment by either of those specified methods, it says matters cannot be dealt with by the Court.
5. The parties are also at odds as to the application of s 6B(1):[6]

Section 6B - Conferral of jurisdiction - related matters

(1) Without limiting any other provision, if a provision of an Act specifically enables an application to be made to the Tribunal, or a claim to be brought before the Tribunal, the Act will be taken to confer jurisdiction on the Tribunal to deal with the matter concerned.

1. While their written submissions were lengthy and comprehensive, I will summarise the key arguments put by the applicants as follows:
   1. Jurisdiction should be understood to mean the power to determine a justiciable controversy.
   2. The SAET sits as a court when it is exercising judicial power. It is the exercise of judicial power which determines whether a matter is heard by the Court.
   3. Section 6 of the SAET Act must be read in context, including s 6B, and does not constitute an exclusive code for the assignment of matters to the Court.
   4. Section 6B clarifies that the jurisdiction to be exercised is that which is required to deal with the matter. If what is required to deal with the matter is the exercise of judicial power, then s 6B means that matter must be heard in the Court.
   5. Where it is required to exercise judicial power in respect of any of the classes of federal matters arising under ss 75 and 76 of the Constitution, it can only do so as a 'court of a state' and not as an industrial tribunal.
   6. A reviewable decision under the CILSL Act is likely to involve federal matters due to the need to consider inter alia whether provisions of the Fair Work Act 2009 (Cth) apply and whether a modern award applies.
   7. The intention of the legislature that the SAET consider these review proceedings in Court session is readily discerned from the history of the review provisions of the CILSL Act and the SAET Act.
   8. The power it exercises is uncontrovertibly judicial power, which can only be validly exercised by a Court - in this case the Tribunal sitting in court session as the South Australian Employment Court. It is quite distinct from the powers exercised by an industrial relations commission, which is the settlement, through conciliation or arbitration, of industrial disputes about the rights, obligations and relationships of the parties including into the future.
   9. SAET is exercising judicial power in these proceedings, and so must be sitting as the Court.
2. Among the many authorities that the applicants cited in support of these submissions were two decisions of the Full Bench of the SAET which both dealt with the question of when a matter is heard in the Court. These are Ritson and Kimber[7]. I will return to them later.

1. The Board's arguments may be summarised as follows.
   1. The SAET Act distinguishes between the conferral of jurisdiction on the SAET and the assignment of matters within jurisdiction of the SAET to the Court. Jurisdiction and assignment have distinct meanings in the statute.
   2. Section 6 of the SAET Act must be read according to the plain meaning of the words, which require that civil matters (i.e. not criminal matters) will be specifically assigned to the Court by one of the ways identified in s 6(2) - either by the SAET Act or another Act, or by inclusion in the SAET Rules.
   3. The structure of s 6 supports this by prescribing how matters will be assigned to the Court in s 6(2) but clarifying in s 6(3) that no specific assignment is required for matters to be dealt with by the Tribunal acting as an industrial relations commission. It says the effect of this is that matters are by default within the Tribunal acting as an industrial relations commission unless they are specifically assigned to the Court by one of the means in s 6(2).
   4. That Parliament intended this to be so is supported by the clarity that parties would have prior to the commencement of proceedings as to whether the matter is to be heard in the Court or not, and the scope of the orders that could be made, including, but not limited to, costs.
   5. Section 6B is separate from and does not affect the operation of s 6(2). The purpose of s 6B is to clarify that if an Act says something like "an application may be made to the SAET" without specifically saying that it confers jurisdiction on the SAET, it will be taken to have conferred jurisdiction on the SAET. However, that still leaves assignment of such matters to s 6(2).
   6. If a review requires the exercise of judicial power it can only be undertaken by a Court. However, it says that does not of itself confer jurisdiction. It says that if there is lacuna in the relationship between the CILSL Act and the SAET Act and Rules, it can and should be rectified. Those options are by the means currently available in s 6(2)(b) - the SAET itself making a rule assigning such matters to the Court; or by legislative amendment of the CILSL Act or the SAET Act to make specific assignment to the Court to bring it within s 6(2)(a).
2. The Board in its submissions referred to no authority in support of any aspect of its arguments. It referred to Kimber only in response to the applicant's submissions.

1. In support of their argument that s 6(2) is not exhaustive, the applicants referred to the history of CILSL Act reviews being conducted by the IR Court prior to the transfer of its jurisdiction to the SAET, and to the transitional provisions that accompanied the transfer as well as the legislative intent for that process.
2. The Amendment Act included legislative amendments to other Acts as well as the SAET Act, including the CILSL Act, to accord with the transfer of jurisdiction to SAET from the IR Court and the IR Commission.
3. These amendments included the deletion of ss 35 and 36 of the CILSL Act. These deleted provisions referred to the detail of the CILSL Act review process, and were effectively replaced with matching powers in Pt 3 Div 1 of the SAET Act. Essentially, the powers on review under the CILSL Act were identical to the current powers on review under the SAET Act.
4. Relevantly, argue the applicants, the review provisions under the former CILSL Act s 33(2) established that there was a review tribunal which included an industrial magistrate of the IR Court. Given the review powers were transferred without alteration as to their scope or operation, the applicants argue that the intention of the Parliament is to be read as those powers continuing to be dealt with by the Court.
5. Counter to that, the Board argued that the Amendment Act does not specifically assign the CILSL Act review matters to the Court when it could have and did in relation to other Acts conferring jurisdiction on the SAET. It pointed to the Dust Diseases Act 2005 as an example where the Amendment Act included the specific assignment of matters under that Act to the Court. It says that because some amendments specifically assigned matters to the Court, and others did not, that it was not an oversight by Parliament that no such assignment was included in the amendments to the CILSL Act. It says that by excluding the CILSL Act from s 6(2)(a), Parliament must be understood to have made a deliberate decision to leave the question of assignment of CILSL Act matters to the SAET rule makers pursuant to s 6(2)(b).
6. It argues that the means by which Parliament intended assignment to the Court to occur is clear and unambiguous - it is by one of the mechanisms that it has provided in s 6(2). It says there is no room for inserting an expanded process when there is a specific process stipulated in mandatory terms. It says the word "will" in s 6(2) connotes a mandatory requirement.
7. It further argued that where the Amendment Act amended the Equal Opportunity Act to confer jurisdiction on the SAET, it did not specifically assign such matters to the Court. However, the later amendments which inserted s 6AB into the SAET Act in relation to diversity proceedings clarified the intention to have those matters heard in the Court by amending the SAET Act to make that assignment.
8. Both parties referred to the history of the Rules in relation to assignments under s 6(2)(b). Although little guidance can be taken from this history, I will refer to it for the sake of completeness.
9. The SAET Rules 2017 which came into effect on 1 July 2017 included assignment of matters under the CILSL Act to the Court in then r 11, by these words:

11. Assignment of additional jurisdictions to the Court

In addition to the jurisdiction conferred on the Court by the SAET Act or a relevant Act, non-criminal proceedings under any of the following Acts or parts of Acts, and proceedings in the Tribunal's jurisdiction at common law or in equity, are assigned to the Court for resolution or determination should the relevant proceedings not be conciliated in that part of the Tribunal that does not sit as the Court:

(a) Construction Industry Long Service Leave Act 1987

1. It was one of ten Acts referred to in the Rule. By its reference to the proceedings not being conciliated in that part of the Tribunal which does not sit as a Court, this reference appears not to be an assignment pursuant to s 6(2)(b)(i), but to then s 6(2)(b)(ii) - that is, assignment after "initial consideration or other steps" in the Tribunal acting as an industrial relations commission.
2. Rule 11 was varied as at 6 February 2018, completely removing reference to the CILSL and four of the other Acts originally included, and amending the references to four other Acts to identify specific provisions within those Acts, retaining only the reference to the SAET Act unchanged.[8]
3. Neither party referred me to any rationale of which they were aware for the removal of the CILSL Act. However, the history of applications to SAET under the CILSL Act appears to be that upon lodgement they were allocated directly to presidential members for determination and did not proceed through the conciliation process conducted by the Tribunal not sitting as a Court. That practice was consistent with them having previously been proceedings in the IR Court. Indeed, that was the case with the present applications. As such, it appears that the SAET Rule referring to them being assigned following conciliation was otiose.
4. The applicants argue that the procedural allocation of CILSL Act review matters straight to presidential members is consistent with the transfer of the review jurisdiction from the IR Court without change and is consistent with the judicial power that the review process requires. That the SAET Rules initially recognised that they are Court matters in the original r 11 and then removed the reference when they were not being dealt with in the non-court part of SAET, is consistent with them being considered Court matters from the outset.
5. The Board submits that the history of the CILSL Act being temporarily in r 11 does not inform the argument. There was no reference to the CILSL Act in the SAET Rules at the time of these applications.
6. In this I agree with the Board. The temporary appearance of the CILSL Act in r 11 appears to be an historical anomaly which does not assist in determining the question of jurisdiction for these matters which post-date that rule change.

1. Part 3 of the SAET Act is titled "Exercise of jurisdiction". Division 1 is entitled "Review Jurisdiction". The first section in Div 1 is s 26J entitled "Application of Division" and which reads:

(1) this Division applies if-

(a) the Tribunal is dealing with a matter that involves the review of a decision made under an Act (including in a case that constitutes an appeal under a relevant Act); or

(b) a relevant Act provides for the Tribunal to deal with a matter under this Division: or

(c) The rules apply this Division to a matter within the jurisdiction of the Tribunal

(2) Subsection (1)(a) does not apply in any circumstances prescribed by the regulations.[9]

1. Section 27 provides amongst other things that the review will be a rehearing of the original decision, will include examination of the evidence available to the original decision maker and may consider further evidence.
2. Section 27(7) relevantly for this matter says:

Furthermore, a relevant Act may modify the operation of this Act in relation to a matter that comes within the exercise of the Tribunal's jurisdiction under this Division.

1. Section 37 of the CILSL Act modifies the operation of s 29 of the SAET Act in relation to the effect of review proceedings on decisions being reviewed. That is, if the decision being reviewed is a levy decision, the CILSL Act says the decision continues to operate pending the review.
2. The power of the SAET on review is described in s 30 of the SAET Act:

(1) the Tribunal may, on a review of a decision-

(a) affirm the decision that is being reviewed; or

(b) vary the decision that is being reviewed; or

(c) set aside the decision being reviewed and-

(i) substitute its own decision; or

(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendation that the Tribunal considers appropriate,

and, in any case, may make any order the Tribunal considers appropriate (including any interim order pending the reconsideration and determination of the matter by the decision-maker, or any ancillary or consequential order, that the Tribunal considers appropriate).

1. In summary, what this adds up to for a review brought under s 34 of the CILSL Act, is that the SAET considers the decision of the Board afresh, and in doing so it can take into account new evidence and substitute the decision of the Board with its own assessment on the merits. It is not necessary for it to act only on an identified error in the original decision. It can reach its own preferable conclusion on the evidence and argument it has considered.
2. Such a review is a determination of whether an administrative decision within the powers of the Board should be confirmed, varied, substituted or sent back with recommendations.
3. Not all reviews in the SAET review jurisdiction necessarily require the exercise of judicial power. If that were the case, one would expect that the assignment to the Court would be stated as it is for the criminal jurisdiction. There are other Acts which confer review jurisdiction on the SAET where the subject matter of the review is more amenable to the Tribunal not acting as a Court. For example, where the review jurisdiction is invoked in relation to an employment grievance, where the resolution of that grievance may involve a range of possible administrative actions within the employment relationship, or where the conferring legislation limits the power of the SAET to exclude orders of a judicial nature.
4. Notably, applications for review under the CILSL Act are by a person dissatisfied with a Board decision. That means that in each case, the respondent is the Board, and the challenge is to a decision it has made in the exercise of its legislative power. Those decisions involve the rights and obligations of persons pursuant to that legislation.
5. In the case of reviews from the CILSL Act, it is hard to see how the subject matter could require anything other than the exercise of judicial power. Where the review is in challenge of a decision which purports to give effect to the rights and obligations of the parties pursuant to a legislative scheme requiring financial contributions from employers to be distributed to employees according to the legislated criteria, the power to make orders in relation to those rights and obligations is judicial. What is required is not in the nature of settlement of an industrial dispute.
6. The distinction was articulated by the High Court in the Re Ranger Uranium Mines case:

The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterised as an arbitral function when performed by a body charged with the resolution of disputes by arbitration. [10]

1. In these particular matters, the orders sought by DSM in its originating application were for the stay of a Board determination dated 8 February 2019, for the determination dated 18 December 2020 to be set aside, and for the Board to pay the applicant's costs on an indemnity basis. The challenged determination was that DSM was considered to be an employer as prescribed in the Act, was required to register as an employer with the Board and contained an assessment of levies due for all its employees from 1 July 2013 to 30 June 2018.
2. The orders sought by RAP2 were a stay of the operation of the Assessment dated 1 August 2022 pursuant to s 29(2) of the SAET Act; to set aside "the determination dated 1 August 2022 December 2020 (sic)"; and such further orders as deemed appropriate by the Court. The challenged determination was of a levy payable under the Act.
3. In each case, the applicants sought orders of the Court. There was no objection or query raised by the Board about whether the Tribunal was sitting in Court session until the applicants pressed for orders for their costs, although costs was identified in the DSM application at the outset.
4. While jurisdiction cannot be conferred by application or by agreement between the parties, the controversy which the applicants brought to SAET in their applications was a justiciable controversy in relation to the rights and obligations of the parties pursuant to a statutory scheme administered by the Board. The conferral by the Parliament on SAET of jurisdiction to review the Board's decisions, as on the IR Court before it, makes sense given the liability of employers to register with the Board and pay levies and the entitlement of employees to claim long service leave payments from the Fund. It is also likely to require interpretation of Awards and Enterprise Agreements in determining whether the duties being performed by the relevant employees fall within the entitlement criteria.
5. As such, the function of the SAET is to determine those rights and obligations, which is a judicial function. An application for review under the CILSL Act is not an industrial dispute such as may be dealt by the dispute settlement powers of an industrial relations commission.
6. To exercise that power when it involves interpreting industrial instruments pursuant to the Fair Work Act 2009 (Cth), being federal matters, SAET can only do so when sitting as a Court, pursuant to s 78B of the Judiciary Act 1903.
7. I did not understand the Board to be arguing that the exercise of power in CILSL Act review matters is not judicial, only that if it is and the matter has not been assigned to the Court by one of the means in s 6(2), the Tribunal sitting as an industrial relations commission would not have jurisdiction either. That is the lacuna that it referred to in its submissions.

1. Although the parties did not seek such a referral, in contemplating this decision I considered whether or not to myself refer this preliminary issue of jurisdiction as a question of law to the Full Bench of the Court as provided in s 22(1) of the SAET Act.
2. Ultimately, I considered that there was already sufficient guidance from the Full Bench on the question of when the Tribunal sits in Court session in both the matters of Ritson and Kimber.
3. Given it came first in time, being decided in 2019, I will refer first to the matter of Ritson. This authority was cited by the applicants but there was no submission, written or oral, about it by the Board.
4. The question of jurisdiction arose in Ritson after the primary Deputy President made an order for the applicant to pay security for costs. The power to do so depended on the power to award costs. The applicant, Mr Ritson, argued on appeal that there had not been a valid assignment to the Court.
5. The matter was the subject of conciliation in that part of the Tribunal not sitting as a Court before it was referred for hearing and determination.
6. Firstly, the Full Bench held that the matter had been validly assigned to the Court, having been referred for hearing and determination following a conciliation process in accordance with then r 11(c), which referred to the Equal Opportunity Act 1984. It held that the referral was an assignment to the Court.
7. Mr Ritson also argued that the jurisdiction of the Court was excluded via s 6B because he had made a complaint to the Equal Opportunity Commission, which then referred the matter to the SAET having been unsuccessful in resolving it by conciliation. He argued that his complaint was not an "application" or a "claim" as specified in s 6B.
8. Hannon DPJ, with whom the other members of the bench agreed, said in relation to s 6B:

The submissions of the appellant as to the limiting effect of the terms of s 6B of the SAET Act are misconceived. That provision simply clarifies that where another Act specifically enables any application or a claim to be brought before the Tribunal, the other Act will be taken to confer jurisdiction on the Tribunal to deal with the matter. Section 6B is complementary to the conferral of jurisdiction under section 6, and does not have a limiting effect in that respect.[11]

1. The applicants quoted the last line only of this statement in support of its argument that "pursuant to s 6B of the SAET Act, SAET sits in the capacity demanded by the nature of the inquiry and the powers to be exercised by the conferring legislation."[12]
2. While I accept that the interpretation pressed by the applicant is open on the words of the provision and is not disavowed by the Full Bench in Ritson, I do not accept that Hannon DPJ's comment goes as far as the applicant contends. In the context of the argument before the appeal Court, his comment clarified that the jurisdiction which is conferred by s 6 is not limited by s 6B.
3. What I consider relevantly binding from the decision of the Full Bench in Ritson is that the assignment was effective by the process of referral for hearing and determination - that specific words of assignment to the Court were not required in orders or the referral document. I do not find in it a ratio of the Full Bench which I am bound to follow in relation to the meaning of s 6B.
4. However, I do find persuasive the applicant's argument that, being complementary to s 6, the ordinary words of s 6B confirm that the jurisdiction thus conferred extends to what it is required to deal with the matter.
5. In relation to Kimber, the parties urged on me different versions of its relevance. In particular, the Board submitted that the comments in Kimber about jurisdiction were obiter, did not include any ratio and that I should not take from it any binding general statement on the question at hand.
6. The applicants submitted that this Full Bench decision was authority for their argument that, as the determination of applications for review under the CILSL Act require the exercise of judicial power, they must be in the Court. They say Kimber stands as Full Bench authority that it is the power being exercised which determines whether a matter is in the Court, while s 6(2) provides a means of specific assignment.
7. I propose to consider first those submissions and then make some further observations of my own in relation to the specific issues arising from the CILSL Act.
8. In Kimber, the Full Bench was called on to determine an appeal from Mr Kimber's employer of the decision of the primary Deputy President to set aside its decision that he was not entitled to compensation benefits under the Ambulance Award. A question considered in that appeal was whether Mr Kimber's application had proceeded in the Court or the Tribunal acting as an industrial relations commission. In that matter, the jurisdiction of the SAET was granted by the Fair Work Act 1994 (FW Act). Mr Kimber's initial application referred to ss 7, 8, 9, 12 and 34 of the FW Act, and requested that if it was not resolved at conciliation it be referred to the Court.
9. In the primary judgment, where the presiding Deputy President set aside the employer's decision to refuse Mr Kimber's claim for the award entitlements, he did so without referring to which jurisdictional power he was relying on.
10. In reasons delivered by President Dolphin specifically on this point, with which the two other presidential members agreed, the Full Bench held that it was necessary to identify the function required of the SAET in determining the application brought by Mr Kimber, and that function was the interpretation of particular provisions of the award such as to determine retrospective entitlements. This, it said, was a judicial function of the Court rather than the dispute settling function of an industrial relations commission. Consequently, it held that the proceedings had been dealt with by the Court.
11. The Board submitted that the jurisdictional commentary in Kimber was purely obiter and was not ratio for the applicant's proposition. In its further outline of argument it said:

The ratio of Kimber concerns the construction of a relevant Award provision. Jurisdiction of the Tribunal was not in issue and was not addressed by the parties (see reasons [40]). The Tribunal at first instance had jurisdiction to determine the matter whether it was under s 7 or s 8 of the Fair Work Act 1994 (SA). The Full Bench had jurisdiction to determine the Appeal whether the Tribunal at first instance was sitting as an industrial relations commission or as the Court. The relevance to the observations as to whether the jurisdiction arose under s 7 or s 8 of the Fair Work Act is because of the different treatment of these matters under the Rules (an (sic) s 8 matter is assigned to the Court whereas an(sic) s 7 matter is not.) The analysis of judicial versus arbitral power is no more than the rational (sic) as to why the Rules provide for s 8 and not s 7 matters to be assigned to the Court.[13]

1. While the President referred to s 5 of the SAET Act in his reasons, he then moved to consider the conferral provisions of the FW Act without referring in particular to s 6 of the SAET Act and its options for the assignment of matters to the Court.
2. Before he did so, he said at [19] by reference to conferring provisions of the FW Act:

Most of the functions and powers set out in Part 1 are that which would be expected to exercised by a court rather than a Tribunal. In that regards the jurisdiction of SAEC would be enlivened and the power exercised would be judicial.

(emphasis added)

1. He noted in a footnote that this description excluded ss 7(b), 7(c) and s 13. By this footnote he was confirming that he included s 7(a) in the judicial powers that would enliven the jurisdiction of the Court.
2. Section 7(a) confers jurisdiction on the SAET (not defined as Court or industrial relations commission) "to adjudicate on rights and liabilities arising out of employment", which his Honour noted is consistent with the powers exercised by a Court. Section 7(b) and 7(c) refer to functions which are consistent with those usually performed by an industrial relations commission. So, s 7 of the FW Act is somewhat of a hybrid provision, conferring powers in part judicial and in part arbitral.
3. Section 7 of the FW Act does not specifically assign matters within that section to the Court. Nor at the time of Kimber did ss 8, 11 or 12, or Chapter 3, Part 6 of the FW Act. The Rules at that time did not assign s 7, but did assign ss 8, 11 and 12, and Chapter 3, Part 6 "should the proceedings be referred for hearing and determination at the conclusion of conciliation in that part of the Tribunal that does not sit as the Court."[14]
4. His Honour then went on to consider the detail of the provisions of Part 2 of the FW Act, which is appropriately entitled "Processes associated with industrial matters and disputes", and opined that they:

...ha[ve] all the features of the dispute resolution procedures of an industrial relations commission or tribunal, with the relevant powers being of a conciliation and arbitration nature as opposed to judicial...

...when performing the functions, and exercising the power, of Part 2, SAET would be operating as an industrial relations commission.[15]

Whilst the source of jurisdiction appears to not necessarily be an important feature of this case, in other similar cases it may be. In particular when the question of what remedy can be provided is to be considered. Accordingly, when a litigant seeks to invoke the functions and powers of SAET, in relation to entitlement pursuant to an industrial award or enterprise agreement, the particular jurisdictional method to be employed should be clearly established, whether that be orders by way of judicial power, or other remedies to resolve an industrial dispute/matter.

1. In my view the decision of the Full Bench, expressed in the reasons of the President, extends beyond the narrow description that the Board seeks to apply to it. While the issue of jurisdiction had not been raised by the parties, it was identified by the Full Bench as an issue upon which it needed to decide. I also consider that it intended its reasons on that issue to be applied generally to matters coming before the SAET.[16]
2. I do not think it plausible that the Full Bench omitted reference to s 6(2) of the SAET Act by oversight. It engaged in a significant exploration of when the power to be exercised was judicial and by the Court and when consistent with the settlement of industrial disputes and exercised in that part of the SAET sitting as an industrial relations commission. It did so where the conferring legislation made no specific assignment and the Rules did not cover the scope of the matter, in particular s 7(a) of the FW Act.
3. If it considered s 6(2) to be an exclusive code for the assignment of matters to the Court, as the Board submits is the case, it could simply have referred to it as such and settled the issue on that basis without embarking on the lengthy clarification that it considered necessary.
4. I conclude from the way his Honour approached the jurisdictional issue in Kimber, that he confined himself to consideration of what was unclear from the Act and the Rules. Mr Kimber's application included reliance on s 7 of the FW Act, which was not included in r 11 and itself contained no assignment to the Court. So, it stood outside of the assignment provisions in s 6(2), as does s 34 of the CILSL Act.
5. Moreover, if it considered that jurisdiction was in some way dependent on the assignment avenues permitted in s 6(2) it could have said so.
6. If the Full Bench considered that all matters outside of those s 6(2) assignment avenues are by default in the commission part of the Tribunal it would have had no reason to embark on the clarification that it thought necessary.
7. I consider it to be a general statement of the Full Bench at [19] of his Honour the Presidents' reasons that the jurisdiction of the Court is enlivened and the power exercised is judicial, when the functions and powers conferred on the SAET are that which would be exercised by a court rather than a tribunal.
8. I consider this to be a clear statement by the Full Bench which I am bound to follow. It would be a matter for the Full Bench to decide if I have wrongly interpreted its reasons in Kimber.
9. That said, I wish to provide further reasons of my own in relation to the specific arguments that have been put to me.

1. While the Board argued that jurisdiction and assignment have distinct meanings in the statute, it was not specific about what those meanings are or how they interact with each other. Nor did it assist me with any authority on that distinction, what it is, or how it should apply.
2. I turn then to legal dictionary definitions - "jurisdiction - the scope of the court's power to examine and determine the facts, interpret and apply the law, make orders and declare judgment."[17]
3. In the case of the SAET, its jurisdiction is limited by statute, specifically by s 6(1) of the SAET Act, to that which is conferred on it by the SAET or any other Act.
4. The conferral of jurisdiction is therefore a conferral of the power on SAET necessary to deal with the matters properly before it. In this regard I do consider the s 6B is a provision of general application. It is I think obvious that it serves the purpose for which the Board contends and which Hannon DPJ referred to in Ritson, that of clarifying that if a conferring Act says that an application or claim may be brought to the SAET, the SAET has jurisdiction without there needing to be a specific provision generally conferring jurisdiction. However, there is no need to read it down to be limited to that purpose alone when the wording goes further to say that "the Act will be taken to confer on the Tribunal the jurisdiction to deal with the matter concerned."
5. What this represents is an acknowledgement that a conferring Act need not include all the specifics of what the SAET can do with a matter brought within its jurisdiction. It simply says it will have jurisdiction to deal with the matter concerned.
6. The Board argued that s 6B refers only to jurisdiction and not assignment because s 6(2) deals with assignment. I think that is correct. In my view s 6B does not need to refer to the issue of assignment because it is not concerned with assignment, it is concerned with jurisdiction and empowering the SAET to do what is required to deal with the matter.
7. The conferral of jurisdiction carries with it the jurisdiction to deal with the matters so conferred. The High Court has directly addressed this in Grassby[18] in relation to the powers of inferior courts, of which the SAEC is one:

However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise.[19]

1. I agree with the Board that the word "assignment" has a meaning distinct from jurisdiction.
2. So uncontentious is it that the only relevant legal dictionary definitions I could find use the word itself in context to define its meaning - "assignment of proceedings - the assignment of the proceedings of the court to the various divisions of the court".[20]
3. The distinction is this - assignment is procedural.
4. The SAET Act includes provisions relating to its powers and provisions relating to its procedures.
5. Section 6(1) is a provision relating to its powers, the conferral of jurisdiction. Section 6(2) is a provision relating to its procedures, not to its jurisdiction. That much is clear from its own words, "matters within the jurisdiction of the Tribunal will be assigned".
6. That s 6(2) is a procedural provision is confirmed by the power of the SAET to assign matters in the SAET Rules. The SAET Act s 92 allows the SAET to make rules in relation to a range of procedural matters. This includes at s 92(1)(j) the power to make rules providing for the Tribunal to waive any procedural requirement and at 92(2) the power to make rules in respect of any jurisdiction conferred on the Tribunal by a relevant Act. The Tribunal also has the power to give directions in relation to procedural matters.[21]
7. Assignment is the procedure for allocating matters to that part of the Tribunal which is appropriate to the exercise of the jurisdiction conferred. Only the SAET Act or a conferring Act can confer jurisdiction. However, the procedural step of assignment of matters to the Court can be specified by either the SAET Act, a conferring Act, or by the SAET.
8. The effect of the Board's submission is that the absence of a specific assignment by way of only those avenues identified in s 6(2) means that the matter is not heard in Court session regardless of the power required to determine the matter. It elevates a procedure above the jurisdiction that it exists within. That, I think, cannot be right, without clear and unambiguous words in the SAET Act or a conferring Act.
9. While the Board argues that the plain words of the section, by the use of the word "will" allow for no other valid option, they are not so clearly exclusionary as one might expect if Parliament had that intention. Such an exclusion is not articulated with clear and unambiguous words.
10. Had the Parliament intended s 6(2) to operate as a code exclusive of any other option, it could have used additional words such as "must", "only", "if", "unless", or a range of other exclusionary synonyms.
11. The use of the word "will" has another possible interpretation here that is not exclusionary. That is to make clear that where any of the measures which are permitted by the use of the word "may" in s 6(2)(a) or 6(2)(b) are met, the matter will be assigned to the Court without the need for any other procedural measures.
12. I agree with the applicants that Kimber is authority for their argument that once jurisdiction has been conferred on the SAET, there must be an assignment of the matter to the Court where the power to be exercised is judicial power. SAET has responsibility for ensuring that it exercises the jurisdiction conferred on it. Where the rule making power referred to in s 6(2)(b) has not been exercised to assign a particular class of matters to the Court, but the controversy nonetheless requires the exercise of judicial power which has been conferred on the SAET, assignment to the Court must take another procedural form or the SAET would fail to fulfill the jurisdiction conferred on it.
13. The CILSL Act reviews have been within the jurisdiction of the SAET since the Amendment Act came into effect in 2017.
14. While referring to no authority in support of its own submissions, the Board submitted that the applicant had not been able to refer to any case in the SAET where a matter had been heard in the Court absent a specific assignment pursuant to s 6(2)(a) or 6(2)(b) because, it said, there were none.
15. However, the within matters are not the first CILSL proceedings to come before the SAET. In each case by virtue of the review provisions the Board is always the respondent.
16. On examination of published judgments in those matters, I conclude that in each case the determination of the application involved the use of judicial power.[22] Only in one matter was there an assignment by virtue of the SAET Rules, being the now deleted r 11(a).[23]

1. Consistent with what I consider to be my obligation to follow the reasoning in Kimber, I find that where jurisdiction is conferred and the power to be exercised in determining a matter is judicial, it will be heard in the Court.
2. Section 6(2) of the SAET Act is not an exclusive code for civil matters within jurisdiction to be assigned to and heard in the Court.
3. I find that the within matters are, and were from the outset, heard in the Court.
4. Therefore, by virtue of s 26B of the SAET Act, the Court has a discretion as to whether to order costs as sought by the applicants.
5. I will hear from the parties on the further progress of the applicants' application for costs.

[1] Applicant in matter number ET-21-00269.

[2] Applicant in matter number ET-22-04256.

[3] DSM Services Pty Ltd v Construction Industry Long Service Leave Board [2021] SAET 160.

[5] The SAET Act was subsequently amended, with the removal of s 6(2)(b)(ii) and the insertion of s 6(2a), but not such as to affect the outcome of the argument on this preliminary point. They now read:

Section 6(2)(b) The rules may (unless to do so is inconsistent with a provision of a relevant Act) assign matters to the South Australian Employment Court;

Section 6(2a) If a matter is assigned to the South Australian Employment Court, the Court may direct, or an Act or the rules may provide, that the matter be the subject of a compulsory conference (within the meaning of section 43) in the part of the Tribunal that is acting as an industrial relations commission.

[6] Section 6B(2) is not in dispute. Division 6 refers to Representation and Division 7 refers to Costs including s 52(1) referred to above.

[7] Ritson v South Australia Police [2019] SAET 205 ('Ritson') and Chief Executive, Department of Premier and Cabinet, for Chief Executive, Department of Health and Wellbeing (SA Ambulance Service) v Kimber [2021] SAET 71 ('Kimber').

[8] For example, the reference to the Fair Work Act 1994 was expanded to include ss 8, 11 and 12, as well as Ch3, Pt 6 which was already there.

[9] Subsection (2) has no application to the current proceedings.

[10] Re Ranger Uranium Mines Pty Ltd, ex parte Federated Miscellaneous Workers Union of Australia [1987] HCA 63; (1987) 163 CLR 656 at p666; [1987] HCA 63.

[12] Applicant's Outline of Submissions 30 March 2023 [28].

[13] Respondent's Further Outline of Argument 22 June 2023 [10].

[14] SAET Rules 2017 r 11 (as varied at 6 February 2018).

[17] Butterworths Concise Australian Legal Dictionary 2nd Ed.

[18] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1.

[20] Lexis Nexis (online) 'assignment of proceedings'.

[21] Part 4 of the SAET Act (entitled 'Principles, powers and procedures', relates to various procedural matters and the Tribunal's power in relation to same), in particular Div 3 'Procedures' - ss 36-42.

[22] League Engineering Services Pty Ltd v Construction Industry Long Service Leave Board [2022] SAET 76; Turnkey Communication & Power Solutions Pty Ltd (ABN 84 124 194 618) v Construction Industry Long Service Leave Board (ABN 26 476 100 527) [2022] SAET 93.

[23] McIntosh v Construction Industry Long Service Leave Board [2018] SAET 18.