South Australian Salaried Medical Officers Association v Chief Executive, Attorney General's Department [2025] SAET 115

1. The SASMOA filed a Notification of an Industrial Dispute ('the Notification') pursuant to s 7 of the Fair Work Act 1994 ('the FW Act') on 16 May 2023 in relation to a dispute about administrative resourcing for respiratory and sleep consultants engaged in the Department of Respiratory, Sleep Medicine and Ventilation at the Flinders Medical Centre ('the Department').
2. Consultants within the Department have certain rights to engage in private practice within the Department. The terms of that arrangement are contained in a memorandum called the Department of Health Private Practice Agreement 2008 ('the PPA'), which includes an obligation on the respondent to provide sufficient administrative support to enable the PPA to operate as intended.
3. The notification was filed on Form A45, a form prescribed by the then South Australian Employment Tribunal Rules 2022.
4. Unlike forms for the commencement of court proceedings or other forms of civil litigation, this form does not ask what form of relief is being sought. It asks at section 5 DETAIL OF DISPUTE for the following details "Summary of matters in dispute or aggrieved including any industrial action taken or threatened (attach additional pages if necessary)."
5. To this form was attached Annexure 1, which included paragraphs 17 & 18 under the heading "Outcome Sought" as follows:

17. The applicant seeks redress of the backlog of billings to be submitted, and ongoing administrative support to Respiratory and Sleep Outpatient Services

18. Specifically that all potentially billable sleep, lung function studies and outpatient encounters with named referrals to be processed over the next 4 weeks.

1. There was then a long period of conciliation and negotiation during which some issues were resolved, with the remainder referred for hearing and determination on 24 December 2024. There were then several adjournments by consent to allow for further negotiations which were still ongoing.
2. On 4 April 2025, as the first step in the preparation of the dispute for hearing and determination, I made orders for the parties to each file a SIC to clarify what issues remained in dispute and the contentions of each in relation to those issues.
3. The SIC filed by SASMOA on 8 May 2025 included paragraph 25 which reads
   1. Given the inadequacy of the level of administrative support provided to the Department, the respondent should be ordered:

25.1. to provide 6 FTE additional ASO2 administrative staff to the Department on an ongoing basis, being the additional staffing resources necessary to enable the Department to operate efficiently and to enable the respondent to meet its obligations under the private practice arrangements;

25.2.1. to commission an independent review of the level of administrative support required for the efficient functioning of the Department in particular by reference to private practice billings, patient bookings, patient attendance and patient documentation available to the Department;

25.2.2. in respect of the independent review, consult with the applicant on the terms of reference of the review prior to it being commissioned;

25.2.3. in respect of the independent review, require the reviewer to report back within four months of the review being commissioned;

25.2.4. to undertake to provide the level of resources recommended by the independent review;

25.2.5. pending the outcome of the independent review, employ the equivalent of two FTE ASO2-level administrative support, to be provided to the Department, over and above the current level of approved administrative resourcing.

1. As can be seen, the relief stated by SASMOA in its SIC is quite different from that stated in the Notification. The difference is easily understood in the context of this being an industrial dispute in which the parties have engaged in prolonged negotiations between the date of the Notification and the date of the SIC.
2. The respondent in its SIC contended that the relief proposed by SASMOA is not available. It said:

1. The relief sought at [25] of the SIC is relief that is beyond the Tribunal's power. Such relief is prohibited by s90(2) of the FW Act as:

1. determining an industrial dispute invokes the Tribunal's award making function; 2. the relief sought is directed at the composition of the respondents workforce; and therefore 3. the Tribunal does not have the power to order the relief sought.

1. In the alternative to [1] above, the relief sought by the applicant ought not be entertained by the Tribunal. Ordering such relief would be inconsistent with s90(2) of the FW Act and the operation of the Act as a whole. In exercise of its discretion in s11(2) to deal with the industrial dispute, the Tribunal ought not entertain an order for relief of a kind it could not order in making an award.
2. The respondent's SIC did not propose any relief of its own, nor any other proposal for resolution of the dispute.
3. The respondent's contention at paragraph 1 of its SIC is a summary of the basis for its strike out application.

1. The Tribunal is granted the power by ss 41(1)(a) and 41(2) of the South Australian Employment Tribunal Act 2014 ('the SAET Act') to strike out a proceeding, including if it believes that the proceeding is "misconceived or lacking in substance", the ground relied upon by the respondent. This is supplemented by r 50 of the South Australian Employment Tribunal Rules 2024 ('the Rules') which provides that "at any time during a proceeding a Presidential member may make such directions or orders necessary to achieve the fair and expeditious resolution of a proceeding, including but not limited to ... (v) dismissing or striking out a proceeding or part of a proceeding".
2. Consequently, the power is not limited to striking out the whole of a proceeding but includes any part of a proceeding. In this case, at issue is paragraph 25 of SASMOA's SIC.
3. The jurisdiction to determine industrial disputes is granted to the South Australian Employment Tribunal ('SAET') by s 7 of the FW Act, which is the first section in Ch 2, Pt 1, entitled Conferral of jurisdiction, declarations and orders. I will set out s 7 in full for the context of the arguments put before me.

7. 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

1. to settle and resolve industrial disputes."

1. This jurisdiction then includes adjudication, regulation and dispute resolution in relation to industrial matters and "any other matter or thing arising from an industrial matter". For convenience - it has an adjudicative jurisdiction, a regulatory jurisdiction and a dispute resolution jurisdiction.
2. These proceedings were filed by way of a Notification of Industrial Dispute, thereby invoking the dispute resolution jurisdiction.

Jurisdiction to settle and resolve industrial disputes

1. Section 11, also in Ch 2, Pt 1, governs the jurisdiction to settle and resolve industrial disputes as follows:

(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.

1. The power of the Tribunal under s 11 then remains wide. The referral for determination having been made, the further conduct of the dispute could involve any of the measures in s 11(2), but is not limited to those measures.
2. That said, the jurisdiction conferred on the Tribunal sitting as an industrial relations commission is different from that conferred on the Tribunal sitting as the Court. It does not include any exercise of judicial power.
3. Part 2 of Ch 2 is entitled Processes associated with industrial matters and disputes, and is concerned with procedural matters.
4. Relevantly, it includes a requirement at s 18(2)(b) that the substance of an application and the day and time it is to be heard must be "communicated to all persons who are likely to be affected by a determination in the proceedings or their representatives".
5. Section 19 requires the Tribunal to have regard to the dispute settling procedures in any award or enterprise agreement that binds the parties in considering when and how it will exercise it powers in relation to an industrial dispute.
6. Sections 20 and 21 refer to the conciliation process and voluntary and compulsory conferences.
7. Section 22 deals with how disputes are referred for determination and at s 20(3) limits the orders which may then be made in the following terms:

(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."

1. Chapter 3 of the FW Act is entitled Employment. Within Ch 3 there is Part 1, General Conditions of employment which sets out minimum standards for all employees covered by the FW Act, then Part 2 Regulation of industrial matters by enterprise agreement, which sets out the powers and processes associated with enterprise agreements, then Part 3 Regulation of industrial matters by award, which sets out the powers and processes associated with awards.
2. Section 90 is the first of ten sections in Div1 - Awards Generally, itself the first of four divisions in Pt 3:

90 - Power to regulate industrial matters by award

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

(a) SAET cannot regulate the composition of an employer's workforce except in relation to the employment of juniors and apprentices; and

(b) if there is an inconsistency between an award and an enterprise agreement, then, while the agreement continues in force, the agreement prevails to the extent of the inconsistency.

(3) SAET may provide in an award for remuneration, leave or other conditions of employment that are more favourable to employees than the standards that apply under Part 1 Division 2.

(4) SAET may refrain from hearing, further hearing, or determining an application for an award binding only one employer or two or more employers who together carry on a single business or for variation of such an award for so long as SAET -

(a) considers that, in all the circumstances, the parties concerned should try to negotiate an enterprise agreement to deal with the subject matter of the application; and

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

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

(6) In making or varying an award, SAET is not restricted to the specific relief claimed by the parties, but may include in the award provisions SAET considers necessary or appropriate.

(7) Before SAET makes or varies an award, it must take reasonable steps to ensure that all persons who are to be bound by the award have been given a reasonable opportunity to appear and be heard before SAET.

1. Clearly this section is concerned with the exercise of powers which sit within the Tribunal's regulatory jurisdiction and, in particular, the regulatory power in s 7(b)(ii) to make awards.
2. The linchpin of the respondent's argument is that the word 'award' in s 90 includes orders made in the resolution of industrial disputes. It points to the definition of award in s 4(1) as "an order of the SAET regulating remuneration or other industrial matters".
3. It says this means that when exercising its arbitral power to resolve an industrial dispute by way of orders regulating the future conduct of parties, the Tribunal makes an 'award'. It argues that the relief referred to by SASMOA in para 25 of the SIC would require orders of that kind and consequently s 90 relevantly limits the Tribunal's powers in this matter. In particular, an order that it employ a certain number of administrative staff in the Department would be an order regulating the composition of its workforce and therefore prohibited by s 90(2)(a).
4. Conversely, SASMOA submits that s 90 read in context is concerned with making or varying those industrial instruments which are referred to as awards, and is neither concerned with nor limiting of the dispute settling power in s 7(c).

1. The respondent submits that as the current dispute was referred for determination under s 22 of the FW Act the Tribunal, acting as an industrial relations commission, does not exercise judicial power, but rather arbitral power 'to ascertain and declare, but not enforce' the determined rights and liabilities of the parties.
2. It then argues that the Tribunal's arbitral power in s 11 is only concerned with the future regulation of the parties. It does not extend to the adjudication of the parties' rights and obligations as at the date of proceedings, or the making of binding declarations in relation to same, with such power being judicial power that is restricted by s 26A of the SAET Act to the South Australian Employment Court. Contrastingly, the Tribunal's arbitral power does not permit it to issue general declaratory relief. Further, while the Tribunal may form an opinion about the legal rights and obligations of the parties, such opinions may only be formed as a necessary step "in arriving at the conclusion as to what their future regulation ought to be', and are not binding on the parties.[1]
3. Given these limitations, the respondent submits that the arbitration 'is not, and can never be, a freestanding inquiry as to the genesis and progress of the industrial dispute' but is defined by the ultimate relief sought.[2] Without such limitation, the Tribunal risks exercising judicial power by ascertaining, declaring and enforcing rights at large, as opposed to merely forming an opinion as a step to determining the appropriate orders for the regulation of parties' future conduct.
4. The respondent therefore submits that the outcome sought the applicant in an arbitration is significant, assisting not only with procedural fairness but also in defining the extent and scope of both the dispute itself and the Tribunal's task in resolving it. In the current application, the relief sought by SASMOA is contained within and limited to what is set out in its SIC.

1. The respondent submits that the relief sought by SASMOA is 'clearly captured by the prohibition contained in [s 90(2)]'.[3] It argues that orders requiring the respondent to either employ new staff members directly, on an interim basis, or consequential to a review clearly involve the regulation of the 'composition' of the respondent's workforce.
2. The respondent referred to determinations of the former South Australian Industrial Relations Commission as authority that clauses that define when an employee would be a term or casual employee did not infringe the scope of the prohibition in s 90(2), however clauses that require employers to employ employees or stipulate the number of employees of a particular classification or class to be employed, would. It highlighted the following authorities.
3. In Conditions of Employment for DECS and DFEEST (TAFE) Employees Decision No 2,[4] the Commission dealt with disputes relating to the regulation of various categories of employees within the education sector. The relevant union argued that the employing bodies were over-utilising temporary contracts, resulting in improper levels of insecure employment, and proposed model provisions that defined the categories of casual and fixed term or task employment and provided for conversion from those types of employment to ongoing employment. The Commission rejected the employer's argument that the imposition of such an award would be inconsistent with s 90(2) of the FWA, on the basis that the provision:

...does not mandate the engagement of employees, the numbers of employees to be engaged, the classification of the employees to be engaged, the duties to be performed (provided that they fall within the classification held by the relevant employee) or the location where they will be employed.[5]

1. Rather, the relevant provisions merely prescribed the circumstances in which casual and fixed term or task employees may be engaged.[6] The award was therefore found not to regulate the composition of the employer's workforce.
2. In Clerks (SA) Award,[7] an application was brought by the relevant union to vary the Award as it related to casual and part-time employees and to redefine these categories of employees and limit the circumstances in which they could be employed. In granting some of the requested variations, the presiding Deputy President dismissed the argument that such an award amounted to an infringement of s 90(2)(a) of the FWA. While noting that the Commission could not regulate the number or proportion of employees of each classification that an employer could employ or should be assigned 'at a particular workstation', the Deputy President held that it was well within the Commission's ability to define the categories of full-time, part-time and casual employment.[8]
3. While the variations to the Award made by the Deputy President in that matter were overturned on appeal, the Full Commission upheld the reasons of the Deputy President in relation to the operation of s 90(2)(a) in these circumstances.[9]
4. The respondent relied on these authorities as support for its argument that the relief sought by the applicant would result in an award that fell squarely within the prohibition outlined in s 90(2)(a) of the FW Act and should be struck out in accordance with r 50(v)[10] of the Rules.

1. SASMOA's primary submission is that how the Tribunal sees fit to resolve an industrial dispute is a matter for it to determine in the exercise of its jurisdiction.
2. It also argues that the Tribunal's power to dismiss proceedings (including part thereof) under s 41 of the SAET Act, is an exceptional power that case law dictates is reserved for only those cases that are so obviously untenable that they cannot succeed. It submits that the current dispute is not such a case.
3. Further, it claims that the relief referred to in its SIC is not beyond the jurisdiction of the Tribunal.
4. SASMOA submits that neither of these two arguments are so obviously untenable as to warrant denying its members the assistance of the Tribunal in considering its proposed relief in resolving the dispute.

1. SASMOA submits that the respondent has fundamentally misconceived the industrial dispute jurisdiction of the Tribunal. It notes that under this jurisdiction, the Tribunal has wide power to resolve disputes affecting the employer and employee relationship, with the breadth of this power said to assist the Tribunal's protective role in preventing "the serious impact on the community of industrial dislocation arising from such disputes".[11] It points to s 11(2) of the FW Act granting the Tribunal jurisdiction to deal with industrial disputes 'as it considers appropriate' as supporting this contention.
2. Because of this 'public protective jurisdiction', SASMOA argues the Tribunal is not and has never been confined to merely granting the relief sought by the parties to a dispute.
3. It referred to Master Builders in which the Supreme Court found that some of the relief sought by the union was too broadly cast and if granted in those terms would be beyond jurisdiction, but concluded that it was "within the power of the Commission to make any determination on the [union's] application which it thinks is proper and which is within its jurisdiction." [12]

1. SASMOA contests the notion that by settling the dispute the Tribunal makes an 'award' within the meaning of s 90 of the FW Act, such that s 90(2) necessarily applies. It argues that s 90 distinguishes between the forms of award contemplated therein and enterprise agreements. For example, sub-s (2)(b) provides that in the event of inconsistency, an enterprise agreement prevails over an award. Further, sub-s (4) permits the Tribunal to refrain from hearing or determining an application for an award if it considers that the parties should try to negotiate an enterprise agreement.
2. In this context, SASMOA contends that s 90 contemplates 'a particular form of industrial instrument which is distinct from an enterprise agreement, and is certainly distinct from a determination settling an industrial dispute between parties bound by an already existing enterprise agreement'.[13] SASMOA submits that the dispute is therefore not governed by s 90 and that the Tribunal's powers are in turn not limited by s 90(2).
3. Further SASMOA argues that the relief it seeks would not be precluded by s 90(2) anyway. While it agrees that the starting point in considering the operation of the subsection is the statutory language, it argues context is an important factor in this consideration.
4. SASMOA relies on the dictionary definition to demonstrate that the 'composition' of a workforce does not refer its size or the number of employees comprising it, but rather how it is structured or combined. Similarly, the definition of 'regulate' is identified as 'to control or direct by rule'. Together, this produces an interpretation of s 90(2) that precludes an award from regulating the way in which a workforce is structured, such as the proportions of different types of employees to be employed (for example, the ratio of supervisors to supervised staff). SASMOA submits this interpretation is consistent with the qualification relating to the employment of juniors and apprentices, given the practical difficulties that may eventuate if the ratio of experienced staff to apprentices or juniors is not regulated.
5. SASMOA contends that it is unlikely that the legislature intended to prohibit awards from requiring an employer to provide additional resources when many industrial award provisions that have been the subject of arbitration cause employers to engage additional staff in order to meet the required conditions. In particular, the applicant highlights provisions relating to amounts of leave, limitation of hours and the provision of breaks. On the respondent's construction, these routine provisions could not be made the subject of an award under the FW Act.
6. With regard to the case authorities cited by the respondent, SASMOA emphasised the phrasing used by the Deputy President in Clerks (SA) Award (as noted above), being that s 90(2) prohibited regulation of 'how many or what proportion of persons of each classification' should be employed, or 'how many or what proportion' of those persons should be assigned at a particular time.[14] That statement was agreed with and adopted by the Full Commission on appeal,[15] and also in the matter of Conditions of Employment for DECS and DFEEST (TAFE) Employees Decision No 2,[16] where the Full Commission imposed industrial conditions limiting the workload of education staff whilst 'clearly cognisant of the fact that those limits may require the government to employ additional staff'.[17]
7. The reference by the Deputy President in the Clerks SA Award was to proportions in each classification or assigned at a particular time, not numbers of employees per se.
8. For these reasons, the applicant contends that the respondent's application for directions should fail and seeks orders for the programming of the hearing and determination of the dispute.

1. The respondent has effectively applied for the Tribunal, sitting as an industrial relations commission, to determine on a strike out application its jurisdiction in relation to a form of relief proposed by SASMOA to settle the ongoing dispute between them, prior to any evidence being filed or considered.
2. In the hearing I queried whether this was an abstract exercise of interpretation of s 90 of the FW Act, which would be a question of law and a matter for the Tribunal sitting as a court, not as an industrial relations commission. Following the hearing I made orders for the parties to file any submissions on this question, which they both did.
3. On this question their submissions, although differently expressed, were in accord. Ultimately I have accepted that what I am being asked to do, is make a decision on whether or not, sitting as an industrial relations commission, I have the jurisdiction to make orders for the relief proposed by SASMOA. Making a decision on the limits of my jurisdiction is appropriate in order to complete the Tribunal's dispute resolution function that is required in this matter.
4. I have also accepted that it is appropriate for me to do so on the application to strike out part of SASMOA's SIC, which application is itself a part of the ongoing dispute.
5. I want to be clear that I do so because I consider it the most expeditious path to resolving the dispute, in accordance with s 3(1)(h) of the FW Act. The respondent has asked, as a matter of procedural fairness, to know in advance of filing its evidence whether the orders proposed by SASMOA are among the possible outcomes of the determination.
6. I do not accept the respondent's argument that the scope of relief available in the exercise of the Tribunal's dispute resolution powers is limited by the outcome sought or proposed by either party in their SICs.
7. If this were so, in the circumstances of this matter where the respondent did not propose any alternative outcome in its SIC, the Tribunal would have no option other than to grant or deny the orders proposed by SASMOA, whether or not that had the effect of resolving the dispute.
8. Industrial dispute notifications to SAET are not the same as inter partes civil litigation proceeding by way of application for specified relief with grounds detailed in formal pleadings.
9. The wide scope of the Tribunal's dispute resolution powers conferred by ss 7(c) and 11 of the FW Act contain no hint of such limitations. The Tribunal is charged with an active role in the resolution of industrial disputes, specifically not limited to the processes identified in s 11. In the course of any of those processes, options may emerge from the evidence, from the parties or from the Tribunal itself as to appropriate measures to resolve the dispute.
10. As can be seen from the evolution of this matter, the course of industrial disputes can be fluid. A particular outcome proposed at commencement may no longer feature when proceeding to determination.
11. Typically, the parties to an industrial dispute each have a view on how the dispute should be resolved. It is the conflict between those positions which the Tribunal is called on to resolve. The purpose of SICs in an industrial dispute is for the parties to confirm for the Tribunal and each other the positions they hold in that conflict as it proceeds to determination, in order to facilitate the resolution of the dispute.
12. I adopt the reasoning of the Court in Master Builders that the Tribunal has the power to determine an industrial dispute on whatever terms it thinks fit and that are within jurisdiction.
13. I consider this to be consistent with the purpose of granting the dispute resolution jurisdiction to the Tribunal. As properly identified by SASMOA, that is to protect the community as far as possible from the serious impact of industrial dislocation which might otherwise arise from such disputes.
14. As referred to earlier, the Tribunal sitting as an industrial relations commission does not have the jurisdiction conferred by s 7(a) to adjudicate on rights and liabilities arising out of employment. Those are matters requiring the exercise of judicial power and are for the Tribunal sitting as the South Australian Employment Court.
15. Sitting as an industrial relations commission the Tribunal has both the regulatory jurisdiction conferred by s 7(b) and the dispute resolution jurisdiction conferred by s 7(c).
16. Having formed the view that the Tribunal is not limited in the exercise of its dispute resolution function to the relief sought by either party, I am left with the question of whether, as the respondent submits, determining an industrial dispute invokes the Tribunal's award making function and, if it does, whether that prohibits the relief proposed by SASMOA.
17. The exercise of the dispute settling jurisdiction of the Tribunal is covered specifically in ss 18 to 23 inclusive of the FW Act. The only reference to awards here is in s 19 which directs the Tribunal to have regard to the dispute settling provisions of a relevant award in how it goes about its own dispute settlement process.
18. The only express limitation to an order of the Tribunal on a determination of an industrial dispute appears in s 22(3), where it prescribes that such an order is binding only on persons represented or summonsed to appear before the Tribunal, and may not affect the terms of an enterprise agreement which binds the parties.
19. What this means is that the orders contemplated by the FW Act for the resolution of industrial disputes cannot have general application, as an order that creates an award will do, nor may they change an enterprise agreement. Section 22(3) specifically excludes regulatory orders of the kind contemplated by the FW Act for the making and variation of awards and enterprise agreements, which may bind parties other than those who applied for or responded to them.
20. The creation and/or variation of awards and enterprise agreements are separately governed in the later specific parts of the FW Act - Ch 3, Pt 2 in relation to the regulation of industrial matters by way of enterprise agreements and Pt 3 in relation to regulation of industrial matters by award.
21. Here there is a corresponding limitation to that on dispute resolution orders not affecting the terms of an enterprise agreement. Section 82(1) of the FW Act states that an enterprise agreement cannot limit the Tribunal's powers of conciliation or its powers to settle industrial disputes between the employer and employees bound by an enterprise agreement. The dispute settling power and the regulatory power are clearly separated.
22. This distinction is confirmed by the difference between the requirement in s 18 that the substance of an application be communicated to "persons likely to affected by a determination", and s 90(7) which requires the Tribunal to "take reasonable steps to ensure that all persons who are to be bound by the award have been given a reasonable opportunity to appear and be heard before SAET."
23. In the case of industrial dispute proceedings, the key reference is to persons likely to be affected by a determination, with orders binding only on those who are represented or are summoned in relation to that particular dispute. There is further the specific prohibition on exercising its regulatory power in relation to an extant enterprise agreement.
24. In the case of the exercise of its regulatory jurisdiction in relation to awards, the requirement is for notice to persons who are to be bound by the award. Persons who do not appear, and are not represented will still be bound by that award if they come within its coverage. An obvious category of such persons are those employed after an award takes effect.
25. The orders available to the Tribunal in the exercise of its dispute resolution jurisdiction are wider in scope, but narrower in persons bound, than those available in the exercise of its jurisdiction to regulate industrial matters via the creation and variation of industrial instruments.
26. When the limitation on who those orders may bind is taken into account, it makes sense that the scope of orders available in the determination of an industrial dispute is not limited in the same way as it is in the exercise of the regulatory jurisdiction.
27. They are orders with a different purpose, which is to determine a specific dispute between identified persons who have been represented or summoned. They are therefore not subject to the limitations on the exercise of the Tribunal's power to regulate industrial matters by way of orders which create or vary industrial instruments.
28. While the word "regulate" is not defined in the FW Act, in context it appears to relate to its power to make orders which bind persons more broadly than those who have appeared or been represented before it.
29. I conclude that s 90 of the FW Act does not apply to orders that the Tribunal may make in the exercise of its dispute resolution jurisdiction.
30. Having found that s 90 does not apply, I do not need to decide whether the relief proposed by SASMOA would be excluded by s 90(2)(a).
31. I have nevertheless summarised the arguments on that question as they were put to me and I have formed the opinion that they are sufficiently complex that they would warrant full consideration in the light of the factual circumstances to which they would relate. Had I reached a different conclusion about the application of s 90, I would still have refused the strike out application to enable that full consideration to occur.

1. The respondent's application to strike out paragraph 25 of the applicant's Statement of Issues and Contentions is refused.

[1] Respondent's Outline of Submissions (26 August 2025) [11], citing Port Pirie Regional Council v Australian Services Union, SA & NT Branch [2014] SAIRComm 3, [14].

[4] [2010] SAIRComm 7.

[7] [2000] SAIRComm 41.

[9] Clerks (SA) Award Casual Provisions Appeal Case (2001) 107 IR 355; [2001] SAIRComm 7 [89].

[10] It is noted that the respondent has cited r 51(v) in its submissions. This is presumed to be an error.

[11] Applicant's Outline of Submissions (8 September 2025) [10]-[11].

[12] Ibid [13] citing R v Industrial Commission of South Australia: Ex Parte Master Builders Association of South Australia Incorporated (1981) 26 SASR 535, 540.

[14] Ibid [31]; Clerks (SA) Award (n 9) [196(1)].

[15] Clerks (SA) Award Casual Provisions Appeal Case (n 9) [90].

[17] Applicant's Submissions [32]-[33].