South Australian Salaried Medical Officers Association v Chief-Executive, Attorney-General's Department & Anor [2026] SAET 43

SOUTH AUSTRALIAN SALARIED MEDICAL OFFICERS ASSOCIATION

JURISDICTION: South Australian Employment Court - Fair Work Act 1994 - Preliminary point

HEARING DATE: Written submissions received 31 October 2025 and 19 November 2025

JUDGMENT OF: His Honour Deputy President Judge Calligeros

Applicant gives notice of an industrial dispute - Respondent challenges the jurisdictional basis of the dispute and proposes that the matter proceed as under s 8 of the Fair Work Act 1994 (FW Act) as the determination of a question of construction of two clauses in an enterprise agreement - The applicant submits that as an industrial dispute involving an industrial matter within the meaning of the FW Act has been notified, the Tribunal is required to proceed to settle and resolve the industrial dispute - HELD: The Tribunal sits as an industrial relations commission and not a court when it attempts to resolve an industrial dispute so it does not matter that the question raised by the dispute may be hypothetical and may not quell an inter partes dispute - Because an industrial dispute involving an industrial matter has been notified, the Tribunal is required to attempt to resolve the dispute.

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

Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VCSA 226

Bass v Permanent Trustee Co Ltd [1999] HCA 9, (1999) 198 CLR 334

Rapson v WorkCover [2007] SASC 172

Teague v Department for Health and Wellbeing [2023] SAET 80

Waterside Workers' Federation of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434

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

Federated Clerks' Union of Australia v Victorian Employers' Federation [1984] HCA 53; (1984) 154 CLR 472; (1984) 58 ALJR 475; (1984) 54 ALR 489; (1984) 8 IR 157

Director-General of the New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93

Palmer v Ayres; Ferguson v Ayres [2017] HCA 5; (2017) 259 CLR 478

1. This decision concerns a jurisdictional issue raised by the Department for Health and Wellbeing (DHW) in relation to an industrial dispute raised by the South Australian Salaried Medical Officers Association (SASMOA) against DHW. The dispute concerns members of SASMOA who are engaged to work as consultants at the Royal Adelaide Hospital Emergency Department (RAH ED) on temporary contracts. The RAH operates under the aegis of the Central Adelaide Local Health Network (CALHN).
2. The background to the dispute is described by SASMOA in this way:[1]

On 5 December 2024, the Applicant wrote to CALHN representatives raising SASMOA members' concerns regarding advice staff had received from CALHN that CALHN had over-recruited Consultants in the RAH ED by around 3.6 FTE. Some members were new hires and had only been working in the ED for a few weeks, some relocated to work in SA at great personal expense, and some are on temporary contracts which are due to expire in February 2025. SASMOA sought CALHN's plans for RAH ED staffing, and the basis for the current temporary contracts. Annexed and marked 'A1' is a copy of the Applicant's email to CALHN.

Earlier in 2024, members were advised by CALHN that those then on temporary contracts ought not apply for permanent employment in August 2024 when the opportunity arose, because they would have another opportunity in February 2025. In light of the over-recruitment, the opportunity to apply for permanent employment was significantly diminished.

On 19 December 2024, in the absence of a substantive response in respect to the temporary contracts from CALHN, SASMOA placed the matter in dispute...

1. The dispute concerns the basis on which the consultants are engaged on temporary contracts given the entitlement for them to have permanent employment, subject to cl 19 of the SA Health Salaried Medical Officers Enterprise Agreement 2022 (SMOEA), which was approved under the FW Act and provides:

19.1 Subject to 19.2, permanent/ongoing employment is the preferred employment status.

19.2 An employee (other than an employee employed as an Intern, Medical Practitioner or Senior Registrar) may be employed on a temporary basis in the following circumstances:

• Backfill/coverage of leave (e.g. maternity/adoption leave, long service leave, leave without pay etc) or workers compensation absences; or
• Positions carrying out a project of limited duration (e.g. research project); or
• Positions carrying out a specific task (e.g. undertaking a review); or
• To fill externally funded positions, whereby funding is wholly or substantially by grants or payments from a government other than the State Government or from a private or community body; or
• Positions for dealing with workload fluctuations; or
• Where the outcome of a service/function review is pending; or
• Managerial appointment in accordance with clause 9 of this Agreement; or
• Other circumstances as may be agreed between the parties.

1. The SMOEA expired on 2 February 2025 and has been replaced by the SA Health Salaried Medical Officers Enterprise Agreement 2025 (2025 EA) which was approved by the Tribunal on 20 October 2025. The dispute was therefore notified whilst the SMOEA was in operation. Clause 22 of the 2025 EA is identical to cl 19 of the SMOEA in any event.

1. DHW asserts that before cl 19.2 of the SMOEA can be construed, an issue of jurisdiction must be resolved. DHW submits that the Tribunal does not have jurisdiction to determine what it calls a question of pure construction under s 7 of the Fair Work Act 1994 (SA) (FW Act) because:[2]

The Tribunal is asked to answer an hypothetical question or to give an advisory opinion in the absence of determining actual or potential rights and liabilities (quelling a controversy);

Practically speaking, no order of discovery under s 7 would assist the applicant in identifying a person said to be adversely affected by clause 19.2 in the manner advanced; and

The remedy sought is an order that temporary FTE contracts be converted to permanent FTE. That requires the interpretation of clause 19.2 of the Enterprise Agreement in the terms advanced by the applicant without reference to any identified individual temporary contract which has changed as alleged. In other words, the remedy is sought at large.

1. Rather than dismissing the dispute outright, DHW submits that it should be "converted and proceed pursuant to s 8 of the FW Act". DHW submits that s 8 provides the Tribunal with jurisdiction to determine questions about the construction of industrial instruments "without having to determine rights and liabilities of individuals in relation to a specific claim or dispute".[3] In support of that position, DHW also submits that:[4]

The applicant is not the regulator of the Enterprise Agreement and it is not appropriate to use the dispute process to conduct speculative enquiries into whether the terms of the Enterprise Agreement are being complied with on its own interpretation.

Furthermore, there is likely to be substantial prejudice and cost incurred by the respondent in having to respond to each stage of a dispute under s 7 where the underpinning facts have not been articulated by the applicant. A trial or arbitration would only serve to confuse the issue between the parties in the absence of an underlying dispute. The applicant's SOFIC[5] does not identify where the contest lies with the result that the usual discovery process is reversed in the manner discussed below.

1. DHW submits that it appears from SASMOA's SOFIC that no affected consultant has asked for their rights to be determined by reference to cl 19.2 of the SMOEA. It followed that no party or person named stood to be affected by a decision on the issue, and should SASMOA succeed, no one is claiming that their engagement should move to ongoing employment.
2. DHW acknowledged that while "industrial matter" is defined broadly by the FW Act,[6] there still must be a "matter" or justiciable controversy for the Tribunal to have jurisdiction: Thurin v Krongold Constructions (Aust) Pty Ltd.[7] Bass v Permanent Trustee Co Ltd [8] was cited as authority for the proposition that a tribunal cannot determine a hypothetical dispute or give an advisory opinion on an issue if there is no actual dispute in relation to present or potential rights and liabilities. The Court in Bass said:[9]

As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred

1. DHW also made reference to Teague v Department for Health and Wellbeing,[10] where Dolphin PJ emphasised the importance of considering jurisdiction at the outset of an industrial matter and stated that both arbitral power and judicial power "presuppose a dispute",[11] even if they employ different mechanisms for resolution.
2. DHW submits that s 8 of the FW Act is the appropriate vehicle for SASMOA's complaint, not s 7. When describing the difference between judicial power and arbitral power, DHW observed that in Chief Executive, Department of Premier and Cabinet for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) v Kimber,[12] in the context of determining whether the respondent's injury arose when he was "placed in a dangerous situation" within the meaning of the relevant Award, Dolphin PJ held that the proceeding came within the ambit of s 8:[13]

... it is clear that the remedy being sought was for an interpretation of Sch 6 of the Award, particularly S6.34 and S6.35. The power to make such a determination is contained in s 8 of the FW Act. The issue being that the end result of the interpretation will establish the standard by which the facts of Mr Kimber's injury of 25 September 2012 may be measured, so as to ascertain whether he had a legal right to the entitlements provided by Schedule 6 of the Award, and, if so, whether he is able to enforce that right.

1. Addressing the practical consequences of allowing the matter to proceed under s 8, DHW submitted that substantial cost and prejudice is likely to be incurred by DHW where the underpinning facts have not been identified by SASMOA. It was said that making discovery if the matter proceeded under s 7 would be impermissibly broad because all temporary contracts and leave applications of affected contractors would need to be discovered. The final submission made by DHW states:[14]

It is neither appropriate nor an efficient use of court resources to pursue an undefined and costly dispute where there is no evidence of any individual's temporary contract (and presumably only evidence directed to the situation at large) in relation to employment arrangements in RAH ED. This will ultimately be of little utility and potential ambiguity where any remedy would not be in response to a particular claim or dispute, but, unhelpfully, at large

1. SASMOA outlined the scheme contained in the FW Act that governs industrial relations for State and Local Government employees. SASMOA did not challenge DHW's contention that the relief sought is to convert temporary FTE contracts to permanent full-time FTE contracts.
2. SASMOA submitted that s 7 of the FW Act contains a headline provision that describes the totality of the jurisdictions that the Tribunal may exercise. Those jurisdictions have been described as "adjudicative", "regulatory" and "dispute resolution".[15] The sections that follow confer those jurisdictions. Sections 8, 9, 10 and 12 confer the jurisdiction that the Tribunal exercises when sitting as the South Australian Employment Court (Court). Sections 11 and 13 confer jurisdictions the Tribunal exercises when sitting as an industrial relations commission. Section 11(1) expressly confers the power to "settle and resolve industrial disputes".
3. Following on from the broad nature of the power conferred by s 11, SASMOA submitted that the power to settle disputes is not just for the benefit of parties. It also presents an alternative to disputation, which may take the form of strikes and lockouts, and avoid the "serious impact on the community of industrial dislocation" that can arise if a dispute is resolved by attrition or might.[16] Industrial arbitration legislation may "make available an avenue for the 'prompt and fair' resolution of disputes by conciliation and arbitration without the need to resort to the 'rude and barbarous process of strike and lock-out'."[17]
4. SASMOA accepts that no individual is asking for their rights to be determined. To the extent that involves contending that the adjudicative function in s 7(a) of the FW Act is not invoked, SASMOA acknowledges that is so. However, SASMOA contends that it is not seeking a determination of rights and liabilities but wishes to notify the Tribunal of an industrial dispute.
5. In response to DHW's reliance on the passages cited in Thurin and Bass, SASMOA submits that the power the application invokes is not the judicial power of the Tribunal and the dispute is not theoretical. SASMOA contends that the dispute is about the proper application of the SMOEA and it plays out in CALHN workplaces in a practical way.
6. SASMOA submits that DHW's core complaint is that SASMOA has not identified with precision which employees are on temporary contracts. In response to that, SASMOA submits that when acting as an industrial relations commission, the Tribunal's role is not necessarily to resolve an inter partes dispute in relation to a discrete issue.
7. Finally SASMOA submits that if the application should be converted into a cause that is before the Tribunal sitting as a Court, there would be no justiciable controversy for the reasons given by DHW, and the application would then be liable to be dismissed.

1. Sections 7 and 8 of the FW Act are in the following terms:

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 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.

1. Section 10 of the FW Act confers jurisdiction to hear and determine questions under contracts of employment, s 11 provides that the Tribunal has jurisdiction to make declaratory judgments conferred by other provisions of the FW Act, s 12 confers power to make orders in relation to contraventions of the FW Act and s 13 confers an advisory jurisdiction to that part of the Tribunal that does not sit as the Court.
2. Section 4 of the FW Act defines "industrial dispute" and "industrial matter" as follows:

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 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;

1. Section 19 of the FW Act is in the following terms:

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.

21. INDUSTRIAL DISPUTE RESOLUTION

21.1 This procedure aims to avoid industrial disputes, or where a dispute occurs, to provide a means of settlement based on consultation, cooperation and discussion and the avoidance of interruption to work performance.

21.2 During any dispute comma other than one involving a bona fide Health and safety issue, the status quo existing immediately prior to the matter giving rise to the dispute will remain an work shall continue as it was prior to the dispute without stoppage or the imposition of any ban, limitation or restriction.

21.3 No party shall be prejudiced as to final settlement by the continuance of work in accordance with this clause.

21.4 Any grievance or dispute will be handled as follows:

21.4.1 All parties have a right to seek representation in order to resolve any dispute.

Stage 1 Discussions between the employee/s and supervisor/manager.

Stage 2 Discussions involving the employee/s and nominated delegates with a management representative of the work unit. For health units, management representative means the Chief Executive Officer of the health unit or their delegate.

Stage 3 Discussions involving nominated delegates with a representative of Workforce Division, Workforce Relations of DHW.

21.4.2 A dispute will not be referred to the next stage until a genuine attempt to resolve the matter has been made at the appropriate level.

21.5 There is to be a commitment by the parties to achieve adherence to this procedure including the earliest possible advice by one party to the other of any issue or problem that may give rise to a grievance or dispute. Throughout all stages of the procedure all relevant facts are to be clearly identified and recorded.

21.6 Sensible time limits will be allowed for the completion of the various stages of the discussions. Discussions outlined in stages (1) and (2) above will, if possible, take place within 24 hours after the request of the employees or the employee's representative.

21.7 Emphasis is placed on reaching a negotiated settlement. However, if the process is exhausted without the dispute being resolved, any party may refer the matter to the SAET. In order to allow for peaceful resolution of grievances the parties will be committed to avoid industrial disputation while the procedures of negotiation and conciliation are being followed.

21.8 The parties will ensure that all practises applied during the operation of the procedure are in accordance with safe working practises.

21.9 These procedures are for dealing with industrial disputes or likely industrial disputes and not for personal grievances. Personal grievances will in the first instance be dealt with pursuant to the HR Manual or Public Sector Act 2009 (as applicable).

1. Part 1 of Chapter 2 of the FW Act comprises ss 7 - 13, all of which describe the various jurisdictions conferred on the Tribunal by the FW Act. Part 2 of Chapter 2 describes the procedures associated with industrial matters. These include the procedures referred to in s 19, and voluntary and compulsory conferences that are able to be called by the Tribunal.
2. In South Australian Salaried Medical Officers Association v Chief Executive, Attorney General's Department,[18] Eaton DP described the ambit of s 11 of the FW Act in the following way:[19]

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.

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.

1. Eaton DP was there dealing with an issue not dissimilar to the issue in this proceeding. Later in the reasons her Honour said:[20]

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.

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).

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.

1. Her Honour concluded that the scope of orders available to determine an industrial dispute is not limited as it is when the Tribunal exercises its regulatory jurisdiction:[21]

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.

1. I respectfully agree with that analysis. It follows that SASMOA was correct to say that ss 9 and 10of the FW Act confer jurisdiction on the Tribunal sitting as the Court while the power to settle and resolve industrial disputes in s 7(c) is conferred upon the Tribunal sitting as an industrial relations commission. DHW did not contend otherwise.
2. In Federated Clerks' Union of Australia v Victorian Employers' Federation, Mason J said the following:[22]

...On the other hand, the popular understanding of an industrial dispute extends to any dispute between employees and employers that may result in the dislocation of industrial relations, for example, by the withdrawal of labour or the introduction of work or other bans. What is more, reflection on the serious impact on the community of industrial dislocation suggests that the scope and purpose of statutes regulating conciliation and arbitration and industrial relations extend to the conferment of jurisdiction on industrial tribunals in relation to industrial disputes in their broadest conception.

1. Dolphin PJ began his reasons in Kimber by observing that the appeal to the Full Bench was somewhat novel and came by an unorthodox route. The parties agreed that the Tribunal had jurisdiction to decide the matter at first instance and on appeal but did not specify the provision that conferred that jurisdiction. Kimber was one of the first cases the Tribunal heard concerning the payment of additional compensation under an award or enterprise agreement after compensation ceased to be payable under the Return to Work Act 2014. His Honour concluded that the application for additional compensation was made pursuant to s 8 of the FW Act.
2. This proceeding concerns an industrial dispute. DHW did not submit that there was no industrial dispute here but contended that it needs to be dealt with by reference to s 8 for the reasons described earlier.
3. In Bass, the appellants alleged that the respondents, including the State of NSW, had engaged in deceptive and misleading and deceptive conduct contrary to the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW). One issue was whether the action could be maintained against the State of NSW. The primary Judge referred 6 questions to the Full Court of the Federal Court, the first of which concerned the issue identified. The High Court agreed with the Full Federal Court that the action could not be maintained against a State but criticised the form of the questions. The main criticism was that the questions were theoretical in nature and did not seek to quell a controversy between parties or determine their rights and liabilities. The High Court said the following:[23]

As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.

1. The critical difference between this case and Bass is that an industrial dispute is not a judicial proceeding before a court. The considerations that SASMOA referred to in its submissions apply here. The Tribunal sitting as an industrial relations commission is to not just have regard to the interests of the parties but to the impact of the dispute on the community.
2. The passage cited in Thurin that DHW relies upon is from Palmer v Ayres; Ferguson v Ayres,[24] where the High Court said the following:[25]

A 'matter', as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - 'controversies which might come before a Court of Justice' (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. What comprises a 'single justiciable controversy' must be capable of identification, but it is not capable of exhaustive definition. 'What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'.

The requirement that, for there to be a 'matter', there must be an 'immediate right, duty or liability to be established by the determination of the Court' reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established. [Citations omitted}

1. Once again, those comments apply to courts, not to the Tribunal sitting as an industrial relations commission when attempting to resolve an industrial dispute.
2. As well as being satisfied that there is an industrial dispute here, I am satisfied the dispute is about an industrial matter as it is about the rights and privileges of the contractors SASMOA represents. Attempting to 'convert' the industrial dispute to an application to interpret an enterprise agreement under s 8 without the consent of both parties would likely give rise to a very real jurisdictional issue in my view.
3. In dismissing DHW's jurisdictional argument I do not discount the merit of some of the submissions that DHW has made. The interpretation of cl 19.1 and cl 19.2 is at the heart of the issue between the parties, and employing s 8 to interpret those clauses would be a sensible and suitable way to resolve the issue had an industrial dispute not been notified.
4. In relation to the practical concerns raised by DHW, if there are quite different circumstances and contractual terms form one consultant to the next, a wholesale resolution of the dispute may not be achievable. If that is the case, the Tribunal may still be able to clarify the operation of cl 19.1 and cl 19.2 in a way that assists the parties. If the dispute proves to be inefficient and costly as DHW suggests, submissions to that effect can be made if and when appropriate. It must be remembered that a 7(2) of the FW Act provides that the Tribunal may resolve the dispute as it thinks fit. The same comment applies in relation to the conduct of the dispute.

1. The Tribunal has jurisdiction to entertain the dispute notified by SASMOA on 19 December 2024.
2. The dispute is listed for in person directions on 29 April 2026 at 11am with liberty to apply if that time is unsuitable.

[1] Attachment 1 to the Notification of an Industrial Dispute or Grievance, [4]-[6].

[2] Respondent's Outline of Argument [2.1]-[2.3].

[5] Statement of Facts, Issues and Contentions.

[6] Chief Executive, Department of Premier and Cabinet for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) v Kimber [2021] SAET 71 [27]-[28] per Dolphin PJ.

[8] [1999] HCA 9; (1999) 198 CLR 334; see also Rapson v WorkCover [2007] SASC 172 [10]-[16].

[9] Ibid [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

[10] [2023] SAET 80.

[11] Ibid [16], referring to Waterside Workers' Federation of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 at 463 per Isaacs and Rich JJ.

[12] [2021] SAET 71.

[14] Respondents Outline of Argument [29].

[15] South Australian Salaried Medical Officers Association v Chief Executive, Attorney General's Department [2025] SAET 115 at [21] per Eaton DP.

[16] Federated Clerks' Union of Australia v Victorian Employers' Federation [1984] HCA 53; (1984) 154 CLR 472; (1984) 58 ALJR 475; (1984) 54 ALR 489; (1984) 8 IR 157 per Mason J at [11].

[17] Director-General of the New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93 at [27].

[18] [2025] SAET 115.

[22] [1984] HCA 53 [11].

[23] [1999] HCA 9 [49].

[24] [2017] HCA 5; (2017) 259 CLR 478.

[25] Ibid [26]-[27] (Kiefel, Keane, Nettle and Gordon JJ).